10. Supplementary memorandum submitted
by JUSTICE
1. JUSTICE is grateful for the opportunity
to submit further comments to this very timely and important inquiry
into current issues of EU justice and home affairs (JHA), adding
to the more general comments provided in our initial written evidence
of October 2006.
THE BENEFITS
OF PRACTICAL
JUDICIAL CO
-OPERATION BETWEEN
MEMBER STATES
AND THE LIMITS
OF THE PRINCIPLE
OF MUTUAL RECOGNITION
2. Improved co-operation between EU member
states in the area of criminal justice is an important goal of
European integration as expressed in Art 2 of the Treaty on European
Union (TEU), the Tampere conclusions and, of course, the Hague
Programme. It forms an integral part of the Union's aspirations
for the creation of an area of freedom, security and justice as
envisaged in the Treaty of Amsterdam. In an EU of (largely) invisible
internal borders where EU citizens may move freely between member
states, working towards a European judicial area is a logical
step.
3. The introduction of the European Arrest
Warrant (EAW; implemented in the UK in the Extradition Act 2003)
and its use to effect swift extradition of a one of the main suspects
in the failed London underground bombings in July 2005 from Italy
to the UK, demonstrate the efficiency and beneficial effect EU
measures to improve criminal justice co-operation between member
states can have. This is not meant to say that the EAW scheme
is beyond criticism in its design or operation in certain cases;
it only goes to show that there is an undeniable need for, and
salutary result in, improved co-operation.
4. Rather, it is the way in which this improved
co-operation is being achieved which has been subject of justified
criticism. Now, in an EU of 27 very soon, it is more debatable
than ever whether an almost blind application of the mutual recognition
principle without the adoption of flanking measures is the right
way for member states to facilitate and improve judicial co-operation.
The principle of mutual recognition, as borrowed from EC internal
market law, was hailed by some member states as an alternative
to (at least partial) harmonisation or approximation of laws in
the area of criminal justice. JUSTICE believes, that this view
overestimates what the principle of mutual recognition can achieve.
While it can bridge certain differences in the detail of different
laws and procedures between member states in the process of judicial
co-operation, it cannot make up for the quite wide divergence
in trial standards, definition of criminal offences and the available
sanctions and penalties for certain offences that still marks
the criminal justice systems of the soon to be 27 member states.
5. Judicial co-operation on the basis of
the principle of mutual recognition requires a certain level of
mutual trust and understanding of the actors of member states'
respective criminal justice systems. It also demands an approximation
of certain elements of member states' criminal law and procedure
in order to ensure that the application of the mutual recognition
principle does not lead to a distortion of the original judicial
decision through the recognition (and execution) in the executing
member state. The mutual recognition principle (especially where
the EU co-operation instrument does not envisage a verification
of dual criminality) may also have the consequence of giving effect,
in the executing state, to solutions to social problems adopted
in the issuing state, which (sometimes deliberately) have not,
or at least not in the same way, been chosen in the executing
state (eg the [de]criminalisation of abortion and euthanasia,
the denial of the holocaust or the level of sentences for certain
offences).
6. With reference to different levels of
criminal sanctions, the European Commission has expressed the
problem as follows: "The differences between the member states'
legislations on penalties are still quite sharp. There are historical,
cultural and legal reasons or this, deeply-rooted in their legal
systems which have evolved over time and are expression of the
way in which member states have faced and answered fundamental
questions about criminal law. The systems have their own internal
coherence [ ... ]".[95]
7. This internal coherence can be at risk
not only where misguided harmonising measures are being adopted
but also where a member state is called upon to blindly execute
another member state's judicial decision, taking it out of its
domestic context. The problems resulting from this approach to
judicial co-operation exclusively based on mutual recognition
are apparent in two legislative proposals on the agenda of the
JHA Council meeting on 4-5 December 2005: one covering the mutual
recognition of judgments imposing custodial sentences (transfer
of prisoners) and the other governing the mutual recognition of
final criminal judgments in the context of new criminal proceedings
for other offences in another member state. These problems are
highlighted both in JUSTICE's response to a Home Office Consultation
on a European Commission proposal for a Council Framework Decision
on taking account of convictions in the course of new criminal
proceedings of November 2005 and in our Briefing for the European
Parliament on the draft Council framework decision on the application
of the principle of mutual recognition to judgments in criminal
matters imposing custodial sentences or measures involving deprivation
of liberty for the purpose of their enforcement in the European
Union of May 2006 which we enclose.[96]
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THE PASSERELLEEFFECTS
AND (DIS)ADVANTAGES
8. We believe that the activation of Art
42 TEU (the passerelle) might have a significant impact on the
future development of EU policies in the Third Pillar. We have
summarised these in our written evidence to the House of Lords
EU Sub-Committee E of June 2006 which we have enclosed.[97]
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THE UNANIMITY
REQUIREMENT AND
THE RISK
OF A
FRAGMENTATION OF
THIRD PILLAR
CO -OPERATION
9. The recurring impasses in the EU Council
on certain Third Pillar instruments (eg the Framework Decision
on certain rights in criminal proceedings in the EU, the Third
Pillar Data Protection Framework Decision and the Framework Decision
on improved police co-operation) have led to the conclusion of
bi- and multilateral agreements between some EU member states
covering issues on which unanimity in the Council could not be
reached (as in the Pruem Treaty on improved police co-operation)
and to some member states actively contemplating the activation
of the TEU's provisions on enhanced co-operation (Arts 40-41 and
43-45 TEU).
10. Both these avenues of solving the difficulties
in the Council short of activation of the passerelle will lead
to a fragmentation of Third Pillar co-operation between member
states. This, in itself, does not have to be considered a negative
phenomenon to be avoided at all costs. Enhanced co-operation between
groups of member states, through the formal route of the TEU or
outside the structures of the Treaty, may serve as a powerhouse
for EU policy development, as could be witnessed with the Schengen
Convention and the eventual formal integration of the Schengen
acquis into the EU structure.
11. Yet, despite enhanced co-operation being
formally envisaged in the TEU, it is debatable whether such fragmentation,
potentially spreading to more than an isolated Third Pillar instrument,
would conform to the spirit of the EU as a body of states achieving
a common goal by means of uniform common action.
Maik Martin
Legal Officer
9 November 2006
95 European Commission, Green Paper on the approximation,
mutual recognition and enforcement of criminal sanctions in the
EU, COM(2004) 334 final, p 8. Back
96
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97
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