The Limitations of the Harmonisation of Criminal Law in the European Union Protected by Articles 82(3) and 83(3) tfeu

2018 ◽  
Vol 26 (4) ◽  
pp. 315-334
Author(s):  
Kaie Rosin ◽  
Markus Kärner
Keyword(s):  
European Union ◽  
Criminal Justice ◽  
Criminal Law ◽  
Justice System ◽  
The European Union ◽  
Judicial Cooperation ◽  
Minimum Standards ◽  
Legislative Procedure ◽  
Definition Of ◽  
Criminal Matters

Articles 82(3) and 83(3) tfeu give Member States the possibility to suspend the legislative procedure of eu criminal law. Article 82(3) allows that kind of emergency brake mechanism for the process of adopting minimum standards for harmonising rules of criminal procedure enhancing judicial cooperation in criminal matters and Article 83(3) for establishing minimum rules concerning the definition of criminal offences and sanctions. A Member State can only use the emergency brake clause when the proposal for the directive would affect the fundamental aspects of its criminal justice system. This prerequisite deserves a closer analysis, therefore the aim of this article is to interpret the meaning of tfeu articles 82(3) and 83(3) to better understand the limitations of the harmonisation of criminal law in the European Union.

scholarly journals The position of youth justice in EU criminal law: No game for kids

2020 ◽  
Vol 11 (2) ◽  
pp. 135-160
Author(s):  
Jantien Leenknecht ◽  
Johan Put
Keyword(s):  
European Union ◽  
Juvenile Offenders ◽  
Criminal Law ◽  
Criminal Responsibility ◽  
The European Union ◽  
Youth Justice ◽  
Criminal Proceedings ◽  
Judicial Cooperation ◽  
Criminal Matters ◽  
The Eu

In criminal matters, the European Union (EU) managed to establish several mechanisms to strengthen and facilitate judicial cooperation over the years but does not clearly nor uniformly define the concepts of ‘criminal matters’, ‘criminal proceedings’, ‘criminal responsibility’ and so on in any of the cooperation instruments themselves. It is however important to know as to what the EU understands by the notion ‘criminal’ because Member States have developed specific rules in response to delinquent behaviour of minors, which are somewhat different from ‘general’ criminal law. The question arises whether the existing cooperation mechanisms only apply to ‘adult’ criminal matters or also include youth justice matters. This article therefore aims to find out whether a consistent and shared view exists on the meaning of the concept ‘criminal’ and to subsequently clarify to what extent the existing EU instruments in criminal matters also apply to juvenile offenders.

scholarly journals The Reform of the Albanian Legal System Between Challenges and Problems, With Particular Focus on the Criminal Justice Issues

2021 ◽  
Vol 10 (6) ◽  
pp. 248
Author(s):  
Ersi Bozheku ◽  
Enida Bozheku
Keyword(s):  
European Union ◽  
Criminal Justice ◽  
Criminal Law ◽  
Legal System ◽  
Justice System ◽  
The European Union ◽  
Critical Issues ◽  
The Face ◽  
Criminal Procedure Law ◽  
The Republic

This article aims to carry out an analysis of the problems affecting the legal system, with particular reference to the criminal law and criminal procedure law, of the Republic of Albania. We will start from a rapid reconstruction of the Albanian system in a historical key to understand its peculiarities, to move on to the most significant steps in its evolution. At a later stage we will try to highlight the critical issues that have arisen not only on the level of criminal law, but also on the cultural one. The reasons that led to the 2016 constitution reform and then to the subsequent reforms that changed the face of the country's legal system will be highlighted. Will be highlighted. The news, the improvements and the problems related to the knowledge of the law and above all to the ability to create a law capable of being systematic. In this perspective, we will try to understand the reasons that still leave many perplexities on the Albanian reform path. the improvement of the justice system represents the central point for Albania to successfully undertake the path of accession to the European Union.   Received: 15 August 2021 / Accepted: 6 October 2021 / Published: 5 November 2021

scholarly journals Ściganie karne w Unii Europejskiej przed i po Traktacie z Lizbony – wybrane zagadnienia

2019 ◽  
Author(s):  
Michał Toruński ◽  
Filip Gołba
Keyword(s):  
European Union ◽  
Criminal Law ◽  
Criminal Prosecution ◽  
The European Union ◽  
Criminal Proceedings ◽  
European Union Law ◽  
Judicial Cooperation ◽  
Before And After ◽  
Legislative Activities ◽  
Criminal Matters

Current legislative activity of the European Union performed under Title V, Chapter 4 of the Treaty on the Functioning of the European Union: “Judicial cooperation in criminal matters” is part of a wider process of internationalisation of criminal law. It shows a paradigm shift of this branch of law, which until now has, fi rst and foremost, been a product of national legal systems. The article discusses selected issues concerning the regulation of criminal prosecution under European Union law. Due to the fact that the present shape of this regulation is the result of a long process of numerous legislative activities as well as various non-legislative forms of international cooperation, the article is not limited to the discussion of the current state of the criminal prosecution in the EU, but takes into account the historical emergence of various institutions, both before and after the establishment of the European Union. Its fi rst part presents the historical development of instruments designed to cope with crime, which the European Community and then the European Union had at their disposal. This part has two objectives: to describe the diffi culties encountered when the fi rst attempts to coordinate the fi ght against crime at the European level were undertaken and to show the signifi cance of the progress that has been made in this area in recent years. After that, selected issues concerning the harmonisation of rules governing the procedural rights of suspects and defendants in criminal proceedings are discussed. The issue of minimum standards relating to penalties is also raised. The concluding part of the article assesses, whether the path of internationalization of criminal law chosen by the Member States in the post-Lisbon reality is justifi ed.

European Union Criminal Law

2018 ◽  
Author(s):  
Valsamis Mitsilegas ◽  
Niovi Vavoula
Keyword(s):  
European Union ◽  
Criminal Justice ◽  
Criminal Law ◽  
Community Action ◽  
The European Union ◽  
Eu Member States ◽  
Legal Traditions ◽  
Gradual Evolution ◽  
Treaty Of Rome ◽  
Criminal Matters

The past three decades have witnessed the gradual evolution of a supranational system of criminal law by the European Union. This is a striking development, since criminal law is an area of great significance for state sovereignty and national identity, whereby EU Member States have developed divergent legal traditions and understandings. Although the Treaty of Rome did not confer any express power on the then European Community (EC) in the field of criminal justice, the European integration process proved that it was difficult to disassociate Community action in the main areas of EC competence, including free movement and the completion of the internal market, from criminal justice policy. Thus, the Maastricht Treaty established a Union competence in the field of Justice and Home Affairs, under the (former) Third Pillar, including judicial and police cooperation in criminal matters. However, decision-making in relation to this took place on the basis of unanimity within the Council, with mere consultation of the European Parliament. With the entry into force of the Amsterdam Treaty, the ‘policy core’ of EU criminal law became more firmly defined, resulting in the adoption of a wide range of framework decisions (e.g. on terrorism, trafficking in human beings, corruption). Importantly,

scholarly journals The European Public Prosecutor’s Office: An institution built on sand?

2015 ◽  
pp. 171-174
Author(s):  
Brian O’Reilly
Keyword(s):  
European Union ◽  
Criminal Justice ◽  
Criminal Law ◽  
Eu Law ◽  
The European Union ◽  
Direct Involvement ◽  
Minimum Standards ◽  
European Public ◽  
Set Up ◽  
The Eu

The European Union has traditionally had a limited role in the area of criminal justice enforcement. Many other areas of EU law involve detailed legislation and direct involvement, but in relation to criminal law the EU has thus far been limited to a coordinating and harmonising role. There are, for example, certain minimum standards set on the national definitions of some serious criminal offences, and an attempt has been made to harmonise the types and level of sanctions applicable to certain offences, but when it comes to actually prosecuting these crimes the Member States still reign supreme. In Ireland, the job of prosecuting criminal offences in the Courts falls ultimately on the Director of Public Prosecutions (DPP). This could be set to change, however, as a regulation is currently (slowly) working its way through the EU legislature that would set up a European Public Prosecutor’s Office (EPPO), which could effectively ...

Human rights and the rule of law in judicial cooperation in criminal matters under the EU–UK Trade and Cooperation Agreement

2021 ◽  
pp. 203228442199593
Author(s):  
Wolfgang Schomburg ◽  
Anna Oehmichen ◽  
Katrin Kayß
Keyword(s):  
European Union ◽  
Human Rights ◽  
Fundamental Rights ◽  
European Convention ◽  
The European Union ◽  
Cooperation Agreement ◽  
Judicial Cooperation ◽  
Human Rights Protection ◽  
Criminal Matters ◽  
The Eu

As human rights have increasingly gained importance at the European Union level, this article examines the remaining scope of human rights protection under the EU–UK Trade and Cooperation Agreement. While some international human rights instruments remain applicable, the Charter of Fundamental Rights of the European Union did not become part of the Trade and Cooperation Agreement (TCA). The consequences, especially the inapplicability of the internationalised ne bis in idem principle, are analysed. Furthermore, the conditionality of the TCA in general as well as the specific conditionality for judicial cooperation in criminal matters are discussed. In this context, the risk that cooperation may cease at any moment if any Member State or the UK leave the European Convention of Human Rights is highlighted. Lastly, the authors raise the problem of the lack of judicial review, as the Court of Justice of the European Union is no longer competent.

scholarly journals TOWARDS MINIMUM PROCEDURAL GUARANTEES FOR THE DEFENCE IN CRIMINAL PROCEEDINGS IN THE EU

2011 ◽  
Vol 60 (4) ◽  
pp. 1017-1038 ◽  
Author(s):  
Laurens van Puyenbroeck ◽  
Gert Vermeulen
Keyword(s):  
European Union ◽  
Criminal Law ◽  
Criminal Policy ◽  
Fundamental Rights ◽  
The European Union ◽  
Criminal Proceedings ◽  
Judicial Cooperation ◽  
Democratic Rule ◽  
Constitutional System ◽  
The Eu

A critical observer would not deny that the practice of European Union (‘EU’) policy making in the field of criminal law in the past decade since the implementation of the Tampere Programme has been mainly repressive and prosecution-oriented.1 The idea of introducing a set of common (minimum) rules, guaranteeing the rights of defence at a EU-wide level, has not been accorded the same attention as the introduction of instruments aimed at improving the effectiveness of crime-fighting. What does this mean for the future of EU criminal policy? Will the EU succeed in the coming years in developing an area where freedom, security and justice are truly balanced? According to several authors, to date the EU has evolved in the opposite direction. As one observer put it:[I]f Procedural Criminal Law arises from the application of Constitutional Law, or indeed if it may be described as “a seismograph of the constitutional system of a State”, then as a consequence the Procedural Criminal Law of the European Union shows the extent of the Democratic Rule of Law, of the existence of a true “Rechtsstaat”, within an integrated Europe. This situation may be qualified as lamentable, as the main plank of the EU's criminal justice policy relates to the simplification and the speeding up of police and judicial cooperation—articles 30 and 31 of the Treaty of the EU—but without at the same time setting an acceptable standard for fundamental rights throughout a united Europe.2

scholarly journals Legality Letter of Statement of Khilaf in Indonesia Criminal Justice System

FIAT JUSTISIA ◽  
2018 ◽  
Vol 12 (2) ◽  
pp. 128
Author(s):  
Rugun Romaida Hutabarat
Keyword(s):  
Criminal Justice ◽  
Criminal Justice System ◽  
Criminal Law ◽  
Justice System ◽  
Primary Source ◽  
Secondary Data ◽  
Criminal Offense ◽  
Criminal Procedure Law ◽  
The Law ◽  
Criminal Matters

In criminal law, a person charged with a criminal offense may be punished if it meets two matters, namely his act is unlawful, and the perpetrator of a crime may be liable for the indicated action (the offender's error) or the act may be dismissed to the perpetrator, and there is no excuse. The reasons may result in the death or the removal of the implied penalty. But it becomes a matter of how if the Letter of Statement Khilaf is the answer to solve the legal problems. The person who refuses or does not do what has been stated in the letters is often called "wanprestasi" because the statement is categorized as an agreement. The statement includes an agreement which is the domain of civil law or criminal law, so its application in the judicial system can be determined. This should be reviewed in the application of the law, are there any rules governing wrong statements in the criminal justice system. By using a declaration of khilaf as a way out of criminal matters, then the statement should be known in juridical rules. This study uses normative juridical methods, by conceptualizing the law as a norm rule which is a benchmark of human behavior, with emphasis on secondary data sources collected from the primary source of the legislation. The result of this research is that the statement of khilaf has legality, it is based on Jurisprudence No. 3901 K / Pdt / 1985 jo Article 189 Paragraph (1) of Indonesian criminal procedure law. However, this oversight letter needs to be verified in front of the court to be valid evidence, but this letter of error is not a deletion of a criminal offense, because the culpability of the defendant has justified the crime he committed. Such recognition, cannot make it free from the crime that has been committed.Keywords: Legality, Letter of Statement, Criminal Justice System

Chinese Curses, Lawyers’ Dreams, Political Nightmares and New Dawns: Interesting Times for the UK’s Relationship with the EU

2013 ◽  
Vol 15 ◽  
pp. 83-99 ◽  
Author(s):  
Nicholas Forwood
Keyword(s):  
European Union ◽  
Member State ◽  
The European Union ◽  
Judicial Cooperation ◽  
Opt Out ◽  
Scottish Independence ◽  
The Uk ◽  
Criminal Matters ◽  
The Eu ◽  
End Results

AbstractThis chapter aims to explore some challenges that are likely to arise in the context of the UK’s present and future relationships with the EU. Three aspects come under scrutiny, namely the global opt-out available for the UK in the field of police and judicial cooperation in criminal matters (Protocol 36 to the Treaty on the Functioning of the European Union (TFEU)), the 2014 referendum on Scottish independence and the contemplated 2017 referendum on whether the UK should remain an EU Member State. The chapter stresses not only the importance of restoring objectivity in the debates surrounding these issues, but also the necessity of taking due account of the uncertainties that these processes unavoidably entail as to their end results for both the UK and Scotland.

Harmonisation and Cooperation within the Third Pillar—Built in Risks

2001 ◽  
Vol 4 ◽  
pp. 15-23
Author(s):  
Petter Asp
Keyword(s):  
European Union ◽  
Criminal Law ◽  
Maastricht Treaty ◽  
Internal Market ◽  
The European Union ◽  
Community Law ◽  
The Third ◽  
The Past ◽  
The Creation ◽  
Criminal Matters

During the past nine years, co-operation in criminal matters within the European Union has developed in a rather fascinating way. Before the Maastricht Treaty, which entered into force in 1993, there was not much co-operation in this area at all.During the time before Maastricht, the focus was on the creation of the internal market, on the rules on competition etc. and criminal law did not fall within the scope of the Treaties. Thus, although Community law had (and has) some implications for national criminal law and despite the fact that some conventions were agreed upon within the European Political Co-operation one cannot really say that criminal law questions were formally on the agenda before Maastricht.

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