Guest Editorial eucrim 1/2020
Several anniversaries were recently celebrated in relation to the EU, in general, and to the Area of Freedom, Security and Justice (ASFJ), in particular: 60 years since the signature of the Treaty of Rome, 20 years since the enactment of the principle of mutual recognition, 10 years since the entry into force of the Treaty of Lisbon. The dynamic European landscape is giving rise to an increasing number of actors and instruments in judicial cooperation in criminal matters, with undeniable repercussions for the Member States.
This can be seen not only from a legal/judicial perspective but also from a social one, since the repercussions basically have an impact on the daily life of citizens. Call to mind the issuance/execution of a European Arrest Warrant (EAW) or, even more recently, a European Investigation Order (EIO). Other areas where we can observe repercussions are procedural rights in criminal proceedings, e.g., access to a lawyer, and protection of victims of crime.
There are currently two principles that convey the legal basis for the construction of the European judicial area: the principles of “mutual recognition of judgments and judicial decisions” and “the approximation of the laws and regulations of the Member States.” Presented as an alternative to the prevailing proposal of European harmonisation at the Tampere Council (1999), the principle of mutual recognition on its own was soon found to be insufficient to sustain judicial cooperation, especially in the criminal law field.
Almost a decade after enactment of the first mutual recognition instrument, i.e., the EAW in 2002, the first directive aimed at strengthening the procedural rights of suspects/accused persons in criminal proceedings under the formula of legislative approximation came to light, i.e., Directive 2010/64 on the right to interpretation and translation. Further procedural instruments on judicial cooperation in criminal matters following both principles were later enacted,
Alongside this specific procedural regulation employing the principles of mutual recognition and approximation, other legislation of a dual nature was enacted: Firstly, a kind of organic legislation aimed at creating European institutions/bodies, with the objective of promoting European judicial cooperation within the Member States, e.g. the European Public Prosecutor’s Office (EPPO) in 2017 as the most recent. Secondly, substantive European criminal legislation, also articulated on the basis of the principles of mutual recognition and approximation. Both perspectives are addressed in this issue, in order to provide a general view of European judicial cooperation in criminal matters.
But the European judicial area does not end here. Instead, it continues to evolve unstoppably. This is why new proposals and challenges must be included in the analyses. The framework of e-evidence is undoubtedly the star in the field of criminal procedure, with instruments that will again use the two principles of mutual recognition and approximation of legislations as shown in the 2018 Commission legislative proposals on European Production and Preservation Orders.
The analyses presented here do not tackle the aforementioned matters only from a European perspective but also include the national one. In this issue, Spain serves as an example of the integration of such European instruments into the country’s legal system. Spain has greatly contributed to the development of the European judicial area, particularly in the criminal law field, due to its own vested interest in the fight against terrorism and organised crime. The nation maintains an intense level of activity in applying mutual recognition instruments, as evidenced by the annual statistics provided for the EU, and it is a “key player” in judicial cooperation in criminal matters within the Union.