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The development of the European Union’s criminal justice system and its judicial rights deficit


-  Still a decade ago - when negotiations on the Treaty of Amsterdam had just started - any reference to a “criminal justice system” of the European Union would have sounded quite utopian, perhaps even as an outflow of an aggressive federalist agenda with a European criminal law code as its final objective. Yet since the entry into force of the Treaty of Amsterdam and the Tampere agenda of 1999 we have arguably seen nothing less than the emergence of an EU “system” of criminal justice with its basic principles, methods, growing corpus of legislation and institutional framework.

As far as principles are concerned the first of those is that the system is aimed at enhancing internal security within the EU as Union measures in the criminal justice domain fall within the scope of the Treaty objective of providing citizens with a high level of safety.[i] This is also reflected in the main EU programme documents. Already the Vienna Action Plan of December 1998 described the “area of justice” as aimed at “bringing to justice those who threaten the freedom and security of individuals and society”,[ii] and the Hague Programme of November 2004 has defined the further development of judicial cooperation in criminal matters as “essential to provide for an adequate follow-up to investigations of law enforcement authorities”.[iii]

However, the scope of EU action and EU competences in this domain are not aimed at the creation of single integrated criminal justice system replacing the national systems but one in which the persisting national systems can cooperate - and be coordinated - more effectively to ensure that “criminals [...] find no ways of exploiting differences in the judicial systems of the Member States”.[iv] The EU criminal justice system is therefore built on a logic of cooperation rather than integration. This can be defined as its second major principle and is also reflected in the retention of “judicial cooperation in criminal matters”[v] as the overall treaty heading for this domain to the present day.

The focus on enhancing cooperation between national systems implies a concentration on - and practically limitation to - action regarding forms of cross-border crime which the national systems find difficult to tackle by purely national measures. These are normally referred to as “serious forms of cross-border crime” and include, for instance, terrorism, organised crime and trafficking in human beings. Although so far the principle of subsidiarity has been rarely been invoked as such in the construction of the EU’s criminal justice system, subsidiarity can be regarded as the third major principle of the EU criminal justice system in the sense that EU action on a criminal justice issue needs both a cross-border and a “value added” dimension with respect to purely national measures in order to be justified. This has meant, for instance, that initiatives for the EU to also deal with youth crime have not resulted in any substantial action.

As regards the methods for developing the EU’s criminal justice system three main methods have emerged : Mutual recognition - for which the European Arrest Warrant constitutes the most prominent example[vi] -, minimum harmonisation of substantive and procedural criminal law - for which the Framework Decision on Combating Terrorism can be cited as an example -, and the institutionalisation of certain forms of cooperation through the creation of permanent rather than ad hoc structures and procedures which can facilitate cooperation between the national systems - for which the cross-border prosecution unit Eurojust is the primary example.

These methods have resulted in a growing corpus of legislation which now comprise well over twenty Framework Decisions, Council Decisions and related EC legislative acts. Although essentially limited to a minimum - often enough even minimalist - harmonisation of the constituent elements of certain criminal acts and penalties[vii], this growing legislation is making a major contribution to the creation of a common basic platform of criminal law provisions regarding serious forms of cross-border crime, and the recent extension of mutual recognition to the execution of orders freezing property or evidence,[viii] to the confiscation of crime-related proceeds, instruments and properties[ix] and to financial penalties[x] can also be regarded as important steps forward to the elimination of obstacles to the cross-border application of criminal justice decisions.[xi]

The results as regards institutionalisation have been at least as significant. Since its establishment in 2002 Eurojust has rapidly developed into an institution which not only facilitates the cross-border interaction between national prosecution services - which is reflected in an impressive growth of its case-load[xii] - but also improves the coordination of investigations and prosecutions through analyses, concrete suggestions and training seminars. The European Judicial Network, which is based at the Eurojust seat in The Hague, has developed a crucial role in facilitating direct contacts between judicial authorities in the Member States. Also part of the successful institutionalisation process are the frequent meetings of the Council working parties on substantive criminal law (DROIPEN) and cooperation in criminal matters (COPEN), the increasingly proactive role of the European Commission and the effective support of decision-making by the responsible unit in the Council’s General Secretariat. The progress achieved in terms of mutual

recognition, harmonisation and institutionalisation have made judicial cooperation in the EU develop into what may be classified as a cooperative and coordinated system of criminal justice. Yet while interaction between the national systems and their respective authorities has been steadily facilitated and improved as a result of it, one major lacuna remains to be addressed, and this is the domain of judicial rights within the EU system. As the main focus of the construction of the EU’s criminal justice system has been on improving the cross-border interaction between courts and prosecution services, comparatively little effort has gone into developing in parallel the judicial rights of individuals which might in one way or another become subject to this interaction. Legislative action has so far been limited to the rather specific issue of the standing of victims in criminal proceedings.[xiii]

The EU Constitutional Treaty has offered a major opportunity to address the judicial rights deficit of the EU’s criminal justice system. With the formal codification of the Charter of Fundamental Rights of the European Union (CFREU) in its Part II the Constitutional Treaty provides actually for a whole list of judicial rights : the prohibition of imposing and executing the death penalty (Art II-62(2), the prohibition of torture and inhuman or degrading treatment or punishment (Art. II-64), the prohibition of extraditing a person to a third state where there is a serious risk of the death penalty, torture or inhuman or degrading treatment or punishment (Art. II-79(2), the right to an effective remedy and to a fair trial (Art. II-107), the presumption of innocence and the right of defence (Art. II-108), the principles of legality and non-retroactivity (Art. II-109(1), the principle of proportionality of criminal offences and penalties (Art. II-109(3) and the principle of a Union wide ne bis in idem which includes the prohibition to try a person who has already been finally acquitted and convicted within the EU. To these one may also add the establishment of the ECHR as a minimum standard of rights (Art. II-113(2) and the quite comprehensive right to good administration (Art. II-101) which includes rights such as access to files which are of obvious importance for the criminal justice domain. With this extensive catalogue, which goes beyond a purely minimalist approach, inter alia, by introducing an EU wide ne bis in idem and proportionality principle, the current lacuna of the EU’s judicial rights system would have been remedied in a fundamental and far-reaching way.[xiv] In addition the Constitutional Treaty would also have strengthened the judicial review possibilities by the European Court of Justice (ECJ) by removing some of the restrictions to the application of the action for annulment and preliminary rulings procedures in the current “third pillar” domain of judicial cooperation in criminal matters.[xv] The legal codification of the Charter could also have generally encouraged the EU judiciary to adopt a more proactive reasoning with regard to the protection of fundamental rights in the internal security domain than that which has recently transpired from the judgements of the Court of First Instance on 21 September regarding the EC/EU ordered freezing of funds of individuals and entities in connection with the fight against terrorism.[xvi] The Constitutional Treaty would certainly have reduced the risk of leaving the protection of rights within the EU’s “area of freedom, security and justice” to what has pertinently been referred to as “the lottery of national judicial solutions”.[xvii] However, as a result of the 2005 referenda debacle all this positive potential will now remain in limbo with whole Constitutional Treaty.

In April 2004 the Commission made a proposal for a Framework Decision on procedural rights in criminal proceedings throughout the Union which was based - as the Commission put it - on the “spirit of the CFREU”.[xviii] Aimed specifically at ensuring that the rights of foreign suspects or defendants who lack knowledge of the language and of the criminal justice system of the host country are protected the proposal contains, inter alia, detailed provisions on the right and obligation to provide effective legal assistance, access to interpretation and translation, rights to specific attention in case of need, the right to communicate and right to a written communication of procedural rights. Although this proposal is far from addressing all judicial rights issues which a full legislative implementation of the rights provided for by the Constitutional Treaty would imply, it has encountered protracted difficulties in the Council. At the time of writing major issues remain unresolved in the Council over the legal basis the Commission has proposed for the Framework Decision[xix] - which six Member States consider to be inappropriate -, the relationship between the proposed Framework Decision and the European Convention on Human Rights (ECHR) - with five member States objecting to the potential risks of a dual ECHR and EU protection system and three not seeing any added value of the proposed Framework Decision in relation to the ECHR -, and the question of potential exceptions to be made from the provisions of the Framework Decision for specific restrictive measures in force in national legislation in the context of the fight against certain serious and complex forms of crime, in particular terrorism.[xx] While the Commission’s proposal is certainly not without its flaws and does not address some of most essential aspects of the judicial rights deficit[xxi] this has to be weighted against the current risk of the negotiations either failing to produce any outcome or a least common denominator text deprived of much of its original substance.

The judicial rights deficit of the Union’s criminal justice system therefore remains as glaring as ever. Some might argue - and this argument has indeed been raised repeatedly in negotiations in the Council - that there is no such thing as a judicial rights deficit of the EU’s criminal justice system as the judicial rights of individuals are amply protected by national constitutional and criminal law as well as the ECHR. Yet in the light of the more and more extensive EU measures regarding cooperation between and coordination of the national systems with their mutual recognition mechanisms, minimum rules on the constituent elements of criminal acts and institutionalised structures this argument seems less and less sustainable as individuals involved in cross-border criminal justice cases can already now in many ways be directly or indirectly affected by EU legislation and the supporting and coordinating role of EU structures. In addition the persisting differences between national procedurals rights and standards mean that there are discrepancies in the level of safeguards which may result in a defendant of another Member State enjoying less comprehensive procedural guarantees than in his home country.[xxii]

For at least two reasons filling the judicial rights lacuna must be seen as crucial for the further development of the EU’s criminal justice system : The first is that even the most minute risk of individuals suffering a loss of rights in criminal proceedings with a cross-border dimension as a result of being subject to cooperation between and coordination of the national systems within the EU will undermine the legitimacy of the EU’s criminal justice system from a human rights perspective and at the same time also question the political rationale of the Union’s fundamental treaty objective of the “area of freedom, security and justice”[xxiii] as being not only a “security” oriented law enforcement area but also a project of “freedom” and “justice”. This is not only a question of concern for the position of every individual which may be subject to what arguably belongs to the most invasive activities of public authorities, the administration of criminal justice. It is also a question of the fundamental political - and one may even say moral - rationale of this integration project as well as its public perception. At a time when the EU system is facing serious scepticism amongst citizens - as the referenda disaster of 2005 have amply demonstrated - it can ill afford creating the perception of giving preference to the effectiveness of the interaction between national law enforcement authorities to the detriment of individuals caught in the gearing of that interaction.

The second reason is that the absence of a substantial common judicial rights platform of the EU’s criminal justice system puts at risk both its effectiveness and further development prospects. As long as national authorities continue to have misgivings about similar judicial rights standards being provided for in other EU Member States they will lack the necessary trust to fully engage in that crucial method for the functioning and further development of EU criminal justice cooperation and coordination which is mutual recognition. The ruling of the German Federal Constitutional Court in the “European Arrest Warrant Case” of 18 July 2005 is a case in point :[xxiv]

In its ruling, which declared the European Arrest Warrant and its national legislative basis void, the Court held that the legality proviso of Article 16(2) sentence 2 of the German Basic Law, which permits the extradition of Germans only “as long as the rule of law is upheld”, constitutes “an expectation referring to the requesting Member State [...] in terms of structural correspondence”, as has also been set out in Article 23(1) of the Basic Law. As a result the German legislator, when permitting the extradition of Germans, must examine “whether the prerequisites of the rule of law are complied with by the requesting authorities”.[xxv] The Federal Constitutional Court acknowledged that as every Member State of the EU is to observe the principles set out in Article 6(1) TEU - which include the principle of proportionality - “a basis for mutual confidence exists”. According to the Court, however, the mere existence of this provision, of a mechanism for imposing sanctions that secures the structural principles (Art. 7 TEU) and the existence of an all-European standard of human rights protection established by the ECHR do not justify “the assumption that the rule-of-law structures are synchronised between the Member States of the European Union as regards substantive law” and that a corresponding examination at the national level on a case-by-case basis of a European Arrest warrant is therefore superfluous. The Court therefore took the position that “putting into effect a strict principle of mutual recognition, and the extensive statement of mutual confidence among the states that is connected with it, cannot restrict the constitutional guarantee of the fundamental rights” under the German Basic Law.[xxvi]

The judgement of the German Constitutional Court can be interpreted as a statement of ‘constitutional distrust’ - if such a term can be employed - as regards the compatibility of judicial rights in other EU countries with the standards provided for by the German constitutional and judicial system. It is almost directly in contradiction with the position adopted by the ECJ in Gözütok and Brügge that “there is a necessary implication that the Member States have mutual trust in their criminal justice systems and that each of them recognises the criminal law in force in the other Member States even when the outcome would be different if its own national law were applied”.[xxvii] The German judgement shows that whatever the assumptions and frequent political statements regarding mutual trust within the EU’s criminal justice system may be its functioning will always be vulnerable to actual or perceived differences in standards as long as there is no substantial common platform of defined judicial rights. In addition to the disruption of the functioning of the interaction between the national systems - which can have serious negative implications for the fight against cross-border crime - this problem can also cast a shadow over the further development possibilities of the EU’s criminal justice system which cannot progress without sufficient trust between national authorities.

All this leads to the conclusion that judicial rights must now more than ever be regarded as a crucial element of the EU’s criminal justice system and that the existing deficit must be addressed as a matter of urgency. This implies not only the need for a successful conclusion of the current negotiations on the procedural rights Framework Decision and further legislative action but also a consideration of how the judicial rights enshrined in the Constitutional Treaty might be “saved” from the EU’s current constitutional limbo. This is only one of many reasons why one may wish for the Member States to agree in spite of the current constitutional impasse at least on transforming the EU’s Charter of Fundamental Rights into a binding instrument, something to which most of the citizens who voted “no” in the 2005 referenda would probably not object to as these would after all be their own rights.

[i] Articles 29 TEU and 61(e) TEC.

[ii] OJ C 19 of 23.01.1999, paragraph 15.

[iii] OJ C 53 of 3.3..2005, paragraph 3.3.

[iv] European Council : Presidency Conclusions of the Tampere European Council. Bulletin EU 10-1999, paragraph 5.

[v] Article 31 TEU.

[vi] Council Framework Decision of 13 June 2002 on combating terrorism. OJ L 164 of 22.6.2002.

[vii] Normally in the form of minimum maximum penalties.

[viii] Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence, OJ L 196 of 2.8.2003.

[ix] Council Framework Decision 2005/212/JHA of 24 February 2005 on Confiscation of Crime-Related Proceeds, Instrumentalities and Property, OJ L 68 of 15.3.2005.

[x] Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties, OJ L 76 of 22.3.2005.

[xi] Negotiations on the introduction of a European Evidence Warrant (Framework Decision) have also reached an advanced stage (see Council document 8402/06 of 28.4.2066, p. 28.

[xii] The case-load increased in 2005 by 54% in comparison to 2004 to a total of 588 (Eurojust Annual Report 2005, The Hague 2006, p. 28).

[xiii] Council Framework Decision of 15 March 2001 on the standing of victims in criminal proceedings, OJ L 82 of 22.3.2001.

[xiv] See also the positive evaluation in Joachim Vogel : The European Integrated Criminal Justice System and its constitutional framework, in : Maastricht Journal, vol. 12 (2005), no. 2, p. 140.

[xv] See Art. III-365 and 369 of the Constitutional Treaty. The exemption of national law and order and internal security measures from the Court’s review has been maintained however (Art. III-377).

[xvi] Case T-306/01 Yusuf and Al Barakaat InternationalFoundation v Council and Commission [2005] ECR II-0000, and Case T-315/01 Kadi v Council and Commission [2005] ECR II-0000 (not yet reported). Cases T-306/01 and T-315/01.

[xvii] Henri Labayle : Architecte ou spectatrice ? La Cour de justice de l’Union dans l’Espace de liberté, sécurité et justice, in : Revue trimestrielle de droit européen, vol. 42 (2006), no. 1, p. 44.

[xviii] COM(2004) 328 of 29.04.2004.

[xix] Art. 31(1)(c) TEU.

[xx] Presidency note to COREPER of 19 April 2006, Council document no. 8466/06.

[xxi] For a critical view see Robin Lööf : Shooting from the Hip : Proposed Minimum Rights in Criminal Proceedings throughout the EU, in : European Law Journal , vol. 12 (2006), No. 3, pp. 421-430.

[xxii] See the points made by the European Commission in COM(2004) 328 of 29.04.2004, paragraphs 7 and 19. [xxiii] Art. 2 TEU.

[xxiv] BVerfG, 2 BvR 2236/04 of 18.7.2005 (the following citations are from the official translation).

[xxv] Ibid., paragraph 78.

[xxvi] Ibid., paragraph 119.

[xxvii] Joined Cases C-187/01 and C-385/01 Gözütok and Brügge [2003] ECR I-1345.


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