Prosecution, National Legal Diversity and Human Rights after Lisbon

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The European Public Prosecutor’s Office: Towards a Truly European Prosecution Service?

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Inhoud: This Article provides an overview of the possible institutional designs of the European Public Prosecutor’s Office [EPPO] with a view to the forthcoming proposal of the Commission. To this purpose, it clarifies meaning, scope and limits of Article ...86 TFEU. Furthermore, it argues that in order for the EPPO to be able to act as a real European prosecution service and for complying with the objectives of an Area of Freedom, Security and Justice, a set of powers uniformly formulated and valid in all Member States participating in the EPPO need to be elaborated.hide

Towards a Decentralised European Public Prosecutor’s Office?

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Inhoud: The author puts forward three models for the implementation of a European Public Prosecutor’s Office, taking into account the legislative progress that has been made in the area of the European Criminal Law since the initial project was proposed in... the late 1990s. She argues that the project is evolving towards a decentralised version of its former self, to fit in not only with legislative developments but also with the Zeitgeist, which calls for projects focussing resources on the EU Member States.hide

European Public Prosecutor’s Office – Cui Bono?

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Inhoud: The establishment of a European Public Prosecutor’s Office could be described as one of the most topical issues currently under discussion in the European Union. The authors present a comprehensive interpretation of the problem areas most widely di...scussed in relation to the establishment of an EPPO. The contribution is divided into two parts. For the sake of completeness, the authors provide a description of the events preceding the enshrinement of this concept in the Lisbon Treaty. The second part of the paper is focused on the main problem areas that need to be resolved not only from a practical perspective, but also in order to achieve the greatest possible agreement between the individual Member States.hide

Resolving Conflicts of Jurisdiction in Criminal Proceedings: Interpreting Ne Bis in Idem in Conjunction with the Principle of Complementarity

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Inhoud: The manner of establishing criminal jurisdiction by domestic courts of competent criminal jurisdiction presents the most important aspect of the relation between states and international tribunals. The analyses of the jurisprudence of international... courts and tribunals pertaining to the principle ne bis in idem has resulted in the conclusion that this principle can be fully understood and applied in conjunction with the principle of complementarity.hide

Running before We Can Walk? Mutual Recognition at the Expense of Fair Trials in Europe’s Area of Freedom, Justice and Security

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Inhoud: The last decade has seen the EU place unprecedented emphasis on increasing and improving cooperation between Member States in criminal justice matters. However, for most of this period the fundamental rights of suspects and defendants have been lar...gely ignored. In recognition of this, the EU adopted the Roadmap for strengthening the procedural rights of suspected or accused persons in criminal proceedings in 2009. This paper examines the steps necessary to establish an effective and coherent system of EU criminal justice procedure: one which enables Member States’ prosecution and judicial authorities to cooperate effectively in the fight against serious cross-border crimes, while also ensuring efficient protection for the fundamental rights of suspects and defendants. It looks at the progress that has been made under the Roadmap and the work that remains to be done. Fair Trials International’s case studies are used to demonstrate the dangers of introducing mutual recognition instruments such as the European Arrest Warrant for prosecutors when suspects and defendants do not have tangible, enforceable fair trial rights in many EU countries.hide

Onward Transfer under the European Arrest Warrant: Is the EU Moving Towards the Free Movement of Prisoners?

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Inhoud: Neither the European Arrest Warrant Framework Decision (EAW FD) nor its predecessors provide clear rules on which authorities retain control over the onward transfer of surrendered suspects. In the West judgment, the Court of Justice resolved this ...question by limiting the originating state’s powers of control in successive surrender proceedings. This article examines onward transfer rules in the EAW FD and preceding European instruments. It considers the ruling in West and its implications for the EU system of surrender. A new right not to be transferred appears to be emerging as a general principle of EU law. If accepted as a general principle, the right not to be transferred will provide genuine added value beyond existing human rights instruments and defence rights legislation.hide

The European Arrest Warrant under the Scrutiny of the Italian Constitutional Court

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Inhoud: The paper illustrates how the European Arrest Warrant was enacted in Italy, and highlights some of the contradictions arising out of its reception into Italian law. In particular, the article focuses on issues relating to the compatibility of the E...AW with the Italian Constitution and analyses the decisions No. 143 of 2008 and No. 227 of 2010 through which the Italian Constitutional Court declared the partial unconstitutionality of EAW implementing law (Act No. 69 of 2005). In the former decision the Court considered the rule provided by Article 33 of Act No. 69 contrary to the principle of equality enshrined by Article 3 of the Italian Constitution. In the latter decision the Court held that Article 18(1)(r) of EAW implementing law conflicted with the principles of non-discrimination and EU citizenship.hide

Probation Measures and Alternative Sanctions in Europe: From the 1964 Convention to the 2008 Framework Decision

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Inhoud: In 2008, the Council of the EU adopted the Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and a...lternative sanctions, subsequently amended by the Framework Decision 2009/299/JHA of 26 February 2009. It replaces the 1964 Council of Europe Convention on the supervision of Conditionally Sentenced or Conditionally Released Off enders between Member States. This article observes how the new instrument will be more effective than the Convention on the supervision: a more efficient procedure would better achieve the objective of rehabilitation and should reduce discrimination in the granting of conditional measures to foreign sentenced persons. Furthermore, the article identifies some other interests of sentenced persons in the procedure and examines whether the Framework Decision takes these interests into account.hide

Globalised Criminal Justice in the European Union Context: How Theory Meets Practice

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Inhoud: This paper will explore a question about the operation of an increasingly globalised criminal justice system in the European Union context. The emergence of European Union criminal law, characterised by its legal supremacy and universalism is a rel...atively new research area in penal science. This raises the need for some discussion of governing rules and principles. European Union criminal justice should be based on the principle of mutual recognition which is now formally recognised as a foundation stone of judicial cooperation in criminal matters among the Members States. Such an approach presupposes that each competent national authority should trust the criminal justice systems of its peers. This allows therefore for some legal pluralism. However, the principle of mutual recognition does not have an absolute character, in the sense of allowing for the adoption of rules and procedures in a pure legal form in another Member State.hide