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Rethinking Judicial Cooperation between Africa and Europe
The Nigerian Case
In 1993, France appointed the first liaison magistrate in Italy to improve judicial cooperation between the two countries. Since then, various European, American, North African, and Middle Eastern countries have created liaison magistrate posts worldwide, but this tradition does not exist in Sub-Saharan Africa. Such deployments could be particularly useful, however, considering the challenges European countries face as regards judicial cooperation with West and Central African countries in the field of transnational organized crime. The United Nations Office on Drugs and Crime has tackled these challenges by supporting the deployment of two Nigerian prosecutors to Italy and Spain since 2018, in order to strengthen judicial cooperation in the field of human trafficking and smuggling of migrants.
This innovative approach has contributed to shortening the channels of communication between jurisdictions; to better understanding respective legal, institutional, procedural frameworks as well as the nature and type of criminal networks; and to building ... Read more
Judicial Cooperation Between the EPPO and Third Countries
Chances and Challenges
The article deals with the European Public Prosecutor’s Office’s (EPPO’s) specific role in the fight against EU fraud in relation to third countries, i.e. countries outside the EU. It contains an overview of the various legal avenues in the EPPO Regulation that the EPPO may explore for engaging in judicial cooperation with such third countries. It then describes the legal parameters that will mostly affect the application of these various modalities in practice. In its conclusion, the article assumes that it may well prove to be rather challenging for the EPPO to develop its external role and that it is likely to have to deal with a patchwork of forms of judicial cooperation as a result, as this will depend on factors like the nature of the case and the third country involved. Equally, once the EPPO is up and running and in a position to start defining its external ... Read more
This article discusses the recent developments in the case laws of the European Courts on the principle of ne bis in idem at the interface between criminal and administrative law, in particular with regard to the legitimacy of double-track enforcement systems. It is argued that both, the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU), have aligned not only in lowering their previously more protective standards, but also in laying down new rules that, though partially converging, remain highly unclear. Through an analysis of the case law following the ECtHR’s judgment in A and B v Norway and the three CJEU 2018 decisions in Menci, Garlsson and Di Puma and Zecca, it is demonstrated that the uncertainty generated as to the precise conditions under which dual criminal and administrative proceedings are permissible leads to unforeseeable outcomes. The potential consequences, most importantly, also ... Read more
Compliance with the Rule of Law in the EU and the Protection of the Union’s Budget
Further reflections on the Proposal for the Regulation of 18 May 2018
Strengthening the rule of law – and in particular judicial independence – has been on the EU agenda for several years and it is still a high priority. The situation in Poland and Hungary has confirmed that the measures provided in the Treaties are not sufficient to effectively counteract certain risks or infringements of the rule of law that may occur in the Member States. On May 2018, the Commission presented the Proposal for a Regulation on the protection of the Union’s budget in cases of generalised deficiencies as regards the rule of law in the Member States. In general, the proposed Regulation allows activation of a system to block access to EU funds in order to protect the Union’s financial interests from the risk of financial loss in the event of “generalised deficiencies” as regards the rule of law are detected.
This paper will discuss the justification of ... Read more
Obtaining Records from a Foreign Bank
Note on the Decision of the Federal Court, Washington, DC, of March 18, 2019
A federal court in the United States granted a motion to compel two Chinese banks to comply with subpoenas served on their US branches, demanding records of transactions occurring in China. The same court also granted a motion to compel a third Chinese bank that has no US branches to comply with a similar subpoena for foreign records, holding that, because the bank maintains a correspondent account at a US bank, it is required by law to comply with such a demand for records. Those orders have now been affirmed by a federal appellate court in Washington, DC. This article explains the background of the case, the content of the court decision, and its importance.Read more
Ne bis in idem and Tax Offences
How Belgium Adapted its Legislation to the Recent Case Law of the ECtHR and the CJEU
For decades, Belgian fiscal criminal law was governed by the fundamental principle that there had to be an absolute separation between the administrative tax investigations by tax authorities and criminal prosecutions carried out by the public prosecutor. In the light of the recent case law of the European Court of Human Rights and the Court of Justice of the European Union on the duality of administrative and criminal proceedings, this principle could no longer be upheld. A new law passed on 5 May 2019 brought Belgian legislation in line with this supranational case law. A consultation mechanism (introduced in 2012) between the tax administration and the prosecution service to give guidance to tax investigations, has been made more efficient.
In order to respect the “ne is in idem” principle, criminal courts must now take into account administrative sanctions of a criminal nature when sentencing tax crimes. The competences of the tax ... Read more