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The current EU approach to jurisdictional conflicts is discussed in the first part of this article. The article highlights the persistent problems of the existing legal framework as well as those emanating from Eurojust’s approach to the matter. After linking the topic with the ne bis in idem principle, the Member States’ interests in prosecuting criminal offenses under their competence, and the EU’s objective in the AFSJ when fighting impunity, the author presents some pivotal reflections on a better solution in the second part. Any solution first and foremost has to respect the EU’s main characteristic as a supranational organisation aligned to its constitutional treaties and to its Charter of Fundamental Rights. Within this framework, the article:
- Opts for models that not only solve but also prevent conflicts of jurisdiction
- Highlights the possibility of distinguishing between more flexible and less flexible models;
- Illustrates a model based on the territoriality principle … Read more
Application Problems Relating to “Ne bis in idem” as Guaranteed under Art. 50 CFR/Art. 54 CISA and Art. 4 Prot. No. 7 ECHR
The principle of ne bis in idem as an individual right is textually guaranteed in Art. 50 CFR / Art. 54 CISA, on the one hand, and in Art. 4 Prot. No. 7 ECHR, on the other. The CJEU and the ECtHR have delineated many issues in their detailed case law and have reciprocally influenced each other’s jurisprudence. The article identifies three major problems: Firstly, the definition of “criminal proceeding” as a prerequisite for application of the principle relies on the Engel criteria identified by the ECtHR, but it is difficult to incorporate new forms of sanctions, such as “naming and shaming,” into this definition, and the fact that administrative sanctions do not fall within the ambit of ne bis in idem is not justifiably accounted for. Secondly, the courts may have determined which procedural acts meet the requirement of res judicata (terminating a criminal proceeding) and which ones do … Read more
Institutional Framework for EU Criminal Justice Cooperation
Refining Relations between the EJN, Eurojust and the EPPO
The article deals with the relations between the European Judicial Network (EJN), Eurojust, and the European Public Prosecutor’s Office (EPPO) , in particular the question of how to shape their relationship.
Direct communication between Member States’ judicial authorities is the underlying principle of international cooperation in criminal matters in the EU. This needs to be reflected in the legal instruments covering international cooperation. Technical platforms for secure electronic communication between judicial authorities must be designed in such a way as to facilitate direct communication and should not lead to an enhanced role for central authorities.
The EJN and Eurojust are both important facilitators of international cooperation. Their tasks overlap and a lot of typical EJN cases are handled by Eurojust. Therefore, the delimitation between cases to be dealt with by the EJN and Eurojust should be more clearly defined by improving existing guidelines on the distribution of roles. At Eurojust, rules of … Read more
Pre-trial detention (PTD) is an inherently problematic concept. Not only does it conflict with the right to liberty and the presumption of innocence but its use is associated with an extensive range of problems that affect pre-trial detainees, their families, the fair administration of criminal justice and wider society. Many of these problems have an EU dimension. Case law of the CJEU confirms, for example, that deficiencies in Member States' PTD regimes threaten to undermine mutual trust and thus the effective functioning of mutual recognition instruments, such as the European arrest warrant (cf. the cases of Aranyosi and Căldăraru). Against this background, the article examines the need for, and possible content of, EU PTD rules.
It begins by summarising the problems that are associated with PTD and identifies their causal connection with deep-seated systematic practices and/or political and legal cultures at national level that tend to promote an over-reliance on … Read more
Improving Defence Rights
Including Available Remedies in and (or as a Consequence of) Cross-Border Criminal Proceedings
The rights of individuals in criminal procedures have been prominent on the agenda since the entry into force of the Lisbon Treaty. In this article, the authors take stock of the state of the art, evaluating the content and implementation of the 2009 “Stockholm Roadmap Directives” (ABC Directives). Furthermore, they identify the main challenges for the years ahead. The work is organised around three, closely connected issues, i.e. the need for additional minimum rules in the area of cross-border cooperation proceedings, the need for additional minimum rules on defence rights and procedural safeguards beyond the first generation of the Roadmap Directives and the need for minimum rules on remedies, in cases where rights have been violated. The authors suggest topics and strategies for legislative intervention, backed up by soft law measures.Read more
EU legislation in the field of financial and organised crime is affected by different issues. The anti-money laundering (and counter-terrorist financing) legislation is dense, but it still lacks effectiveness. Although the approximation between the Member States still presents some concerns, what seems to be desirable is not further legislative intervention from the EU but to foster monitoring activities (on criminal law usage, suspicious transaction reports, and FIU functioning, etc.). In this context, a specialised agency could be of remarkable value, but the corresponding draft needs accurate analysis. With regard to organised crime, FD 2008/841/JHA features too narrow a scope, on the one hand, when it requires the aim of obtaining “financial or other material benefit.” On the other hand, the EU definitions on the matter are too broad (e.g., as to what concerns participation in a criminal organisation). A more specific set of autonomous definitions oriented towards the specific forms … Read more