scholarly journals Fundamental rights and punishment: Is there an EU perspective?

2019 ◽  
Vol 10 (1) ◽  
pp. 17-27
Author(s):  
Anabela Miranda Rodrigues
Keyword(s):  
European Union ◽  
Criminal Law ◽  
Fundamental Rights ◽  
Criminal Sanctions ◽  
Principle Of Proportionality ◽  
Criminal Matters ◽  
European Criminal Law ◽  
The Eu

Taking fundamental rights into account means a limitation of repression, as an instance of the principle of proportionality or principle of necessity, of criminal intervention. The need to design European Union (EU) criminal law in compliance with the principle of proportionality is especially clear in the post-Lisbon stage, in view of the strengthening and expansion of the EU’s competence to legislate on criminal matters, enshrined in Article 83 of the Treaty on the Functioning of the EU. This article aims at analysing the terms in which European criminal law respects the aforementioned principle of proportionality of punishment and translates an EU perspective in the field of criminal sanctions.

scholarly journals The Future of Criminal Law within the European Union - Union Law or Community Law Competence?

2007 ◽  
Vol 38 (1) ◽  
pp. 145
Author(s):  
Verena Murshetz
Keyword(s):  
European Union ◽  
Criminal Law ◽  
The European Union ◽  
European Constitution ◽  
Criminal Sanctions ◽  
Court Of Justice ◽  
European Court ◽  
Recent Developments ◽  
Criminal Matters ◽  
The Eu

Recent developments regarding criminal matters within the European Union (EU) show a trend towards a supranational criminal competence, which could be realised before the entry into force of the European Constitution whose future is uncertain. The strongest indicators in this development are two judgments of the European Court of Justice (ECJ), one that extends the powers of the European Community (EC) over the protection of the environment through criminal sanctions  and the other applying the principle of conforming interpretation to framework decisions . This trend is questionable though, as the Treaty of the European Union (TEU) does not confer a criminal competence upon the EC. The third pillar containing criminal matters is intergovernmental in nature. This article critically discusses the recent trend and presents arguments against an implied supranational criminal law within the EU.

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 A legitimacy-based approach to EU criminal law: Maybe we are getting there, after all

2020 ◽  
Vol 11 (1) ◽  
pp. 20-39
Author(s):  
Kimmo Nuotio
Keyword(s):  
European Union ◽  
Social Theory ◽  
Criminal Law ◽  
Criminal Policy ◽  
Point Of View ◽  
Eu Law ◽  
Member States ◽  
Strong Emphasis ◽  
European Criminal Law ◽  
The Eu

European Union (EU) law is known for its strong emphasis on effectivity and more generally for its instrumental character. This is not foreign even to European criminal law, a feature which creates some tension between the EU criminal law and criminal law in the national setting. EU Framework Decisions and Directives often require the Member States to criminalize certain forms of conduct with sanctions that are ‘Effective, Dissuasive and Proportionate’. In this article, I try to show that it would be timely to look at EU criminal law from an alternative point of view, as a more mature law. I call this a legitimacy-based approach. Such a reading would ease some of these tensions. It would also be helpful in developing a criminal policy for the EU, a policy which would be realistic and pragmatic. And it would be easier to look at EU criminal law from the point of view of justice. In order to get there, we need to see where the (current) narrow deterrence argument gets is wrong or one-sided. Some social theory is needed in order to make the point.

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.

Europäisches Strafrecht nach dem Vertrag von Lissabon: Macht die Reform den Weg frei?

2021 ◽  
Author(s):  
Grazyna Marina Plump
Keyword(s):  
Criminal Law ◽  
Academic Community ◽  
Point Of View ◽  
Democratic Deficit ◽  
Eu Law ◽  
Legal Basis ◽  
Vertrag Von Lissabon ◽  
Criminal Matters ◽  
European Criminal Law ◽  
The Eu

This study deals with a topic that has been matter of debate among the academic community for some time: The competences of the EU in Criminal Law. With the current EU law after Lisbon the basic academic criticism of European Criminal Law, especially the prominent objection of a democratic deficit, is being scrutinized. Thereafter the analysis deals with the EU’s legislative powers in criminal matters. The competences with regard to the harmonization of Criminal Law are examined as well as the EU’s legislative power to define offences via regulations. The work relates the analysis of the current legal basis of European Criminal Law to the fundamental criticism that is voiced especially from the point of view of democratic theory.

The “Struggle” to Dissolve the Kosovo Specialist Chambers in The Hague: Stuck between Constitutional Text and Mission to Pursue Justice

2021 ◽  
Vol 20 (3) ◽  
pp. 548-575
Author(s):  
Avni Puka ◽  
Fisnik Korenica
Keyword(s):  
European Union ◽  
Criminal Law ◽  
International Criminal ◽  
Fundamental Rights ◽  
International Criminal Law ◽  
The European Union ◽  
The Hague ◽  
The Republic ◽  
The Eu

Abstract The Kosovo Specialist Chambers (KSC) manifest the first effort of the European Union to participate in an international criminal law project by running a hybrid criminal tribunal, vested with jurisdiction to investigate the Parliamentary Assembly of the Council of Europe’s Marty Report. The KSC is entrusted with a mandate originating in a number of legal instruments. A “termination clause” is also present in the Constitution of the Republic of Kosovo. The Specialist Constitutional Chamber has recently ruled on an amendment discreetly activating the termination of the KSC. The Chamber’s decision outlawing “the amendment” manifests an attempt to reinforce the constitutive nature of the EU’s proprietorship over the KSC, attaching to it an international personality detached from that of Kosovo. The decision contends that the “power to dissolve” the KSC is basically vested with the EU, and Kosovo’s internal law cannot affect that relationship unilaterally. The article argues that the strong adherence of the Chamber’s decision on fundamental rights is an attempt to expose the victim-rights-centered mission of the KSC, clearly leaning towards a legitimacy rather than a legalistic exercise. The article concludes that the decision will have ample effect on the EU’s responsibility over the KSC, the nature of the “power to dissolve”, and the KSC’s mission in the European fundamental rights landscape in general.

scholarly journals European Criminal Law and the Dangerous Citizen

2018 ◽  
Vol 25 (6) ◽  
pp. 733-751
Author(s):  
Valsamis Mitsilegas
Keyword(s):  
Criminal Justice ◽  
Criminal Law ◽  
Fundamental Rights ◽  
Security Threats ◽  
Temporal Shift ◽  
Global Trend ◽  
Terrorist Acts ◽  
The Impact ◽  
European Criminal Law ◽  
The Eu

This article will examine the impact of the Europeanization of punishment, and of criminal justice in general, on the focus of criminal law on dangerousness and on dangerous citizens, rather than on harm and facts. It argues that the EU criminal law is part of a growing global trend pushing towards preventive criminal justice, namely the exercise of state power in order to prevent future acts that are deemed to constitute security threats, which at EU level is problematic in terms of fundamental rights and citizenship rights. The article argues EU criminal law is contributing to three main shifts: a shift from an investigation of acts that have taken place due to an emphasis on suspicion, a shift from targeted action to generalized surveillance, or, underpinning both, a temporal shift from the past to the future. It develops this argument looking at administrative terrorist sanctions, criminalization of terrorist acts, mass surveillance and expulsion of convicted criminals.

On the borders of criminal law. A tentative assessment of italian “non-conviction based extended confiscation”

2017 ◽  
Vol 8 (2) ◽  
pp. 150-170 ◽  
Author(s):  
Sofia Milone
Keyword(s):  
Criminal Law ◽  
Criminal Sanctions ◽  
Principle Of Proportionality ◽  
The Eu

The article discusses the legitimacy of “non-conviction based extended confiscation” and proposes an assessment of this measure under the principle of proportionality. So far, the analysis has mainly focused on the qualification of the measure as punitive or preventive, in order to ascertain the relevance to its assessment of the principles governing criminal sanctions. After showing that the issue of the nature of this form of confiscation is quite controversial, the paper suggests to use the principle of proportionality as a benchmark. Indeed, this principle constitutes a minimum constraint on State measures, regardless of their (non)criminal nature. Although the article focuses on Italian “non-conviction based extended confiscation”, it may have an impact on the debate concerning similar measures known in other systems, as well as on the adoption of a common model of non-conviction based confiscation at the EU level.

What Principles Drive (or Should Drive) European Criminal Law?

2010 ◽  
Vol 11 (10) ◽  
pp. 1115-1130 ◽  
Author(s):  
Ester Herlin-Karnell
Keyword(s):  
European Union ◽  
Criminal Law ◽  
Transition Period ◽  
Lisbon Treaty ◽  
Eu Law ◽  
New Era ◽  
The Core ◽  
The Future ◽  
European Criminal Law ◽  
The Eu

The entry into force of the Lisbon Treaty has changed the framework and possibilities of the development of European Union (EU) criminal law. Gone is the long-lived and awkward cross-pillar character of EU criminal law, as mainly a third pillar EU ‘intergovernmental’ issue but also partly a first (EC) pillar question. The Lisbon Treaty marks a new era for the criminal law as it brings it within the core of the EU law project. Nevertheless, Article 10 of the transitional protocol as attached to the Lisbon Treaty stipulates a five-year transition period before former third pillar instruments will be treated in the same way as EU acts. This paper will focus on two issues in particular. The first question that will be addressed concerns what EU law principles drive or decide the EU's involvement in criminal law. After having identified these principles the second question is whether they should drive it and if so what implications will it have for the criminal law in the future.

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