scholarly journals The Impact of Legislative Harmonisation on Effective Judicial Protection in Europe's Area of Criminal Justice

2019 ◽  
Vol 12 (2) ◽  
pp. 117-142
Author(s):  
Valsamis Mitsilegas
Keyword(s):  
Criminal Justice ◽  
Mutual Recognition ◽  
Eu Law ◽  
Criminal Proceedings ◽  
Minimum Standards ◽  
Judicial Protection ◽  
Procedural Rights ◽  
The Impact ◽  
The Relationship ◽  
The Eu

By focusing on the adoption of EU minimum standards in the field of procedural rights in criminal proceedings, this article will assess the relationship between secondary law harmonisation, and the principles of effectiveness of EU law and of effective judicial protection in Europe's area of criminal justice. This article will begin by exploring the third pillar legacy on harmonisation, by focusing on what the EU has not done (i.e.to legislate on a horizontal instrument on defence rights) and what the EU has done (i.e.to legislate specifically on judgments in absentia with the specific purpose of clarifying, and in some instances limiting, the grounds for refusal in a number of EU mutual recognition measures). The analysis will then examine the impact of the entry into force of the Lisbon Treaty and will evaluate critically the impact of EU harmonisation measures on defence rights on effective judicial protection. The analysis will focus on the relationship between EU law and national law, as well as on the relationship between EU law and the Charter and ECHR. Great emphasis will be placed on the strengthening of enforcement avenues offered by the normalisation of EU criminal law after Lisbon. These avenues have the potential to ensure that, even minimum, harmonisation measures in the field of defence rights can have a real impact on enhancing effective judicial protection and achieving the effectiveness of EU legislation on the ground.

European Arrest Warrants and Minimum Standards for Trials in absentia – Blind Trust vs. Transnational Direct Effect?

2021 ◽  
Vol 11 (3) ◽  
pp. 275-287
Author(s):  
Martin Böse
Keyword(s):  
Mutual Recognition ◽  
Minimum Standard ◽  
Minimum Standards ◽  
Cross Border ◽  
Court Of Justice ◽  
European Arrest Warrant ◽  
The Right ◽  
Procedural Rights ◽  
Cross Border Cooperation ◽  
The Eu

The right of the accused person to be present at the trial and defend himself in person forms an essential part of the right to a fair trial. In this regard, the minimum standard enshrined in Art. 6 ECHR has been further developed by the minimum rules on procedural rights established by the EU legislator. According to a recent judgment of the Union’s Court of Justice, the Framework Decision on the European Arrest Warrant still allows the executing state to surrender a person convicted in absentia even if the EU minimum standard is not met. This paper will argue that common minimum standards have repercussions on cross-border cooperation based on mutual recognition and may emerge as a ground for refusal.

A Comparative Study of the Relationship Between Time and Criminal Justice: the New Face of Criminal Statutes of Limitations in Italy

2019 ◽  
Vol 9 (3) ◽  
pp. 300-334
Author(s):  
Simone Lonati
Keyword(s):  
Criminal Justice ◽  
Good Practice ◽  
Criminal Proceedings ◽  
Legal Traditions ◽  
Limitation Periods ◽  
The Government ◽  
The One ◽  
The Impact ◽  
The Relationship ◽  
Made In

Addressing the need to avoid punishing long past events that have fallen into oblivion, only to then come into play when the government, by means of proceedings, stages a re-enactment and thus a reminiscence of those events: statutes of limitations in criminal law are marked by an axiological ambiguity. The debate on their quomodo becomes particularly heated when the focus turns to the possible interferences between limitation periods and criminal proceedings. The discussion stems from the difficult attempt to balance primary and essentially heterogeneous interests: on the one hand, protecting the accused from the “punishment of trial” and, on the other, providing the criminal justice system with adequate time for prosecuting and adjudicating criminal offences as a way to effectively protect the interests harmed by the commission of certain crimes. Furthermore, there is a widespread concern to avoid instrumental conducts by the parties solely aimed at running out the clock. The matter is undoubtedly complex, as the issues and implications it gives rise to are multiple and varied. In an attempt to outline a possible statutory framework that may govern the relationship between the passage of time after the commission of an offence and the time needed for its adjudication, it may be useful to expand the knowledge base from which to draw upon in order to identify appropriate solutions: to look beyond domestic boundaries is, after all, good practice when faced with an impasse. This analysis aims to closely examine the choices made in two legal systems-Germany and Spain-whose legal traditions are the closest to Italy. Firstly, the study will describe the key features characterizing, in general, limitation periods for criminal offences. Subsequently, special attention will be paid to the rules governing the impact that the launch and dynamics of criminal proceedings have on the running of limitation periods. Based on the differences and especially the similarities between the respective rules in force in the two countries, it will be possible to formulate a number of observations regarding the provisions implemented by the Italian legislator. Lastly, comparing and contrasting the German and Spanish legal experiences will allow a closer look at the more recent reforms of statutes of limitations in Italy, to the extent that the latter appear roughly inspired by the principles applied in the aforementioned systems.

Effective Judicial Protection: some recent developments – moving to the essence

2020 ◽  
Vol 13 (2) ◽  
pp. 175-190 ◽  
Author(s):  
Sacha Prechal
Keyword(s):  
Case Law ◽  
Eu Law ◽  
Judicial Decision ◽  
Concrete Case ◽  
Effective Protection ◽  
Court Of Justice ◽  
Recent Developments ◽  
Judicial Protection ◽  
The Relationship ◽  
The Eu

This article looks briefly into the evolution of the principle of effective judicial protection in EU law and into the relationship between the different manifestations of that principle, which is by now given expression in Article 47 CFR, Article 19 TEU and various provisions of secondary law. Next, it focusses on recent developments in the case law of the Court of Justice of the EU, which concern two central aspects of the principle of effective judicial protection: the compliance with court judgments and the independence of the judiciary. As far as the first topic is concerned, two rather extreme cases addressed the issue what should be done, as a matter of EU law, in situations where a public authority refuses to comply with a final judicial decision. Then the article continues by discussing the independence of the judiciary as a key rationale for the principle of effective protection. In particular, it summarizes the increasingly detailed requirements to be satisfied in order to protect the independence of judges and indicates how an alleged lack of independence should be assessed in a concrete case.

Judicial dialogue in three silences

2018 ◽  
Vol 9 (1) ◽  
pp. 38-42
Author(s):  
Valsamis Mitsilegas
Keyword(s):  
Criminal Justice ◽  
Constitutional Law ◽  
Considerable Degree ◽  
Constitutional Court ◽  
Eu Law ◽  
Court Of Justice ◽  
Criminal Justice Systems ◽  
Justice Systems ◽  
The Impact ◽  
The Relationship

The Taricco litigation before the Court of Justice and the Italian Constitutional Court has generated a number of fundamental questions about the relationship between EU law and national constitutional law and about the impact of EU law on domestic criminal justice systems. The ensuing dialogue between the two Courts has resulted in a considerable degree of mutual accommodation, while leaving a number of issues unresolved. The aim of this comment is to contextualize the Taricco litigation by focusing not on what the Courts have said, but on what the Courts have actually chosen to omit or sideline in their direct conversation, focusing thus on judicial dialogue via the two Courts’ silences. Three silences will be analysed here, one for each of the rulings in the Taricco litigation in sequence.

scholarly journals Crime victims’ rights in the European area of justice and Polish legislation

2019 ◽  
Vol 52 ◽  
pp. 9-36
Author(s):  
Joanna Beata Banach-Gutierrez
Keyword(s):  
Crime Victims ◽  
The European Union ◽  
Criminal Proceedings ◽  
Eu Member States ◽  
Minimum Standards ◽  
European Area ◽  
Criminal Justice Systems ◽  
Victims Of Crime ◽  
Procedural Rights ◽  
The Eu

In recent years, more and more attention has been focused on the interests of crime victims, including their enlarging role in criminal proceedings. The procedural rights of, and assistance to, victims of crime are gradually becoming essential aspects of contemporary criminal justice systems. In the transnational context at the European Union level, the Directive 2012/29/EU establishing minimum standards on the rights, support and protection of victims of crime is of significant importance as this legal instrument contains some concrete rights for victims of crime and clearer obligations imposed on the competent national authorities. Unfortunately, in many EU Member States the regulations on the standing victims in criminal proceedings are not properly or fully implemented into national legislation. This paper aims to give some insight to the provisions of the EU Victims’ Directive, and also the issue regarding its transposition into the Polish legal order.

scholarly journals INSTRUMENTI ZAŠTITE PROCESNIH PRAVA OBRANE U ISTRAZI PREMA ZAKONU O KAZNENOM POSTUPKU BOSNE I HERCEGOVINE

2021 ◽  
Vol 37 (2) ◽  
pp. 167-187
Author(s):  
Maja Pilić ◽  
Zdravko Rajić
Keyword(s):  
Criminal Justice ◽  
Criminal Justice System ◽  
Bosnia And Herzegovina ◽  
Justice System ◽  
Fair Trial ◽  
Criminal Proceedings ◽  
Constitutional Right ◽  
The Right ◽  
Judicial Protection ◽  
Procedural Rights

With the entry into force of the Criminal Procedure Code of Bosnia and Herzegovina, the roles of the prosecutor and the court have been changed significantly compared to the earlier legislation, especially in the investigative procedure. According to the existing normative framework, the role of the court in the investigation is much more passive since at this stage of the procedure the court does not control the merits of conducting the investigation. The mixed accusatorial concept of investigation as the one existing in the criminal justice system of Bosnia and Herzegovina has led to certain restrictions on the rights of the defence in investigation. Investigation is an important stage in criminal proceedings that is conducted for evidence and data collecting necessary to decide whether to file an indictment or discontinue the proceedings, as well as for evidence that can be presented at the main hearing and upon which the judgment is rendered. It is therefore necessary to ensure that a proper and lawful investigation is conducted. This means to make sure that all parties involved in the investigation, especially defence are treated in a fair manner. The right to defence is a fundamental human and constitutional right guaranteed by international conventions. The right to defence results in several individual rights enjoyed by suspects in preliminary proceedings. In order to ensure effective judicial protection of the rights of the suspects, the paper analyses the domestic criminal justice system and presents comparative legal solutions regarding the protection of procedural rights of the defence in investigation. The fundamental issues in analysing regulatory framework in Bosnia and Herzegovina are the lack of effective judicial protection of procedural rights of the defence, the absence of an effective legal remedy to conduct an investigation facilitating the principle of a fair trial for defence and the principle of equality of arms in pre-trial proceedings. In addition, the paper analyses the issue of informing the suspect of an order for investigation, since according to applicable regulations, the suspect does not even need to know about an investigation conducted against him, which is a violation of the principle of right to a fair trial.

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 ...

The Interaction of Judicial and Legislative Policymaking

2018 ◽  
Author(s):  
Susanne K. Schmidt
Keyword(s):  
Mutual Recognition ◽  
Case Law ◽  
Legislative Process ◽  
European Legislation ◽  
Eu Legislation ◽  
Political Preferences ◽  
General Rules ◽  
Judicial Policymaking ◽  
The Impact ◽  
The Eu

Chapter 4 systematizes the different ways that judicial policymaking can have an impact on European legislation. Identifying the codification of case-law principles in secondary law contributes to research on the EU in two important ways: it shows how EU legislation is embedded in case-law development, and that the impact of case law cannot be reduced to the question of compliance with single rulings. A differentiation is made between several types of judicial ‘shadow’ over the legislative process. Then the Services Directive and the regulation on the mutual recognition of goods are analysed. The principles of case law that were motivated by the specific circumstances of individual cases constrain the design of general rules. Secondary law cannot modify constitutional principles. At best, the legislature can hope to signal its political preferences to the Court.

The Democratic Costs of Constitutionalization— The European Case

2017 ◽  
Author(s):  
Dieter Grimm
Keyword(s):  
At Risk ◽  
Economic Integration ◽  
Fundamental Rights ◽  
European Law ◽  
European Court ◽  
Political Implications ◽  
The Impact ◽  
The Relationship ◽  
The Eu

This chapter examines the democratic costs of constitutionalization by focusing on the European case. It first considers the interdependence of democracy and constitutionalism before discussing how constitutionalization can put democracy at risk. It then explores the tension between democracy and fundamental rights, the constitutionalization of the European treaties, and the European Court of Justice’s (ECJ) two separate judgments regarding the relationship between European law and national law. It also assesses the impact of the ECJ’s jurisprudence on democracy, especially in the area of economic integration. The chapter argues that the legitimacy problem the EU faces is caused in part by over-constitutionalization and that the remedy to this problem is re-politicization of decisions with significant political implications.

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