Select Committee on Home Affairs Written Evidence

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.


  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] *


  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] *


  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   * not printed Back

97   * not printed Back

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