Memorandum by Prof Dr jur M Kaiafa-Gbandi,
Aristotle University Thessaloniki
The above mentioned proposal of the Commission
for a Framework Decision on procedural rights in criminal matters
poses according to my view three basic questions:
— the first refers to the principle
of mutual recognition;
— the second refers to the legal basis
of the proposal, and
— the third relates (a) to the central
position of the Commission for proposing minimum common standards
that provide for such rights and (b) to the Non-regression clause
of article 17.
SPECIFICALLY:
1. The principle of mutual recognition,
which is held by the Council as "cornerstone of judicial
co-operation" in criminal matters is not foreseen in the
treaties for the field of criminal law. Its transfer from other
fields is not at all self-evident, because of the special character
of criminal law. Besides, such a transfer does not express the
will of the legislator of TEU. Therefore every promotion of this
principle, as long as the proposed regulations cannot be based
on other provisions of the treaties, constitutes an excess of
power from the organs of the Union, as the powers of the latter
are given, special and restricted.
The principle of mutual recognition is accepted
in the field of criminal matters for the first time in the primary
law of the Union in the Treaty for a Constitution for Europe,
though it has caused in the frame of this Treaty as well intense
dispute from different scholars[9].
On the other hand it should be stressed, that
the Commission considers its proposal as "a necessary complement
to the mutual recognition measures that are designed to increase
efficiency of prosecution .... especially with measures that envisage
surrender of persons or of evidence to another Member State"
(p 12 margin nr 51 of the proposal). In this way it becomes obvious,
that the principle of mutual recognition does not serve here the
rights of persons in criminal proceedings as such, but it ensures
mostly the recognition of prosecution acts against them between
the Member States. This constitutes a totally different starting
point in finding ways for safeguarding the rights of persons.
In other words the real motive, which is luckily visible in the
proposal, is not a better safeguard for the rights of suspects
or accused, but the facilitation of the penal repression through
a more effective judicial co-operation between the Member States.
In order to achieve that through mutual recognition of judicial
acts an agreed minimum standard of rights for persons in criminal
proceedings is required and has to be respected.
The objective of effective penal repression
through a more efficient judicial co-operation is, of course,
not at all to be underestimated. All the same it has to be clear,
that trying to find solutions for a better safeguard of rights
for persons involved in criminal proceedings leads to different
results than serving the judicial co-operation through common
minimum standards, which could allow the mutual recognition of
judicial acts. For the latter objective not only the philosophy
but also the method and the outcome of the regulations differ.
2. According to the Commission its proposal
is based on article 31 par 1c of the TEU. However this article,
which regulates common action on judicial co-operation in criminal
matters, when it talks about "ensuring compatibility in rules
applicable in the Member States, as may be necessary to improve
such co-operation", it is obvious that it refers to rules,
which concern the judicial co-operation directly, as for example
regulations for the transmission of documents, the communication
of judicial authorities etc. The Commission regarding the rules
about the rights of persons in criminal proceedings as rules which
are necessary for the improvement of the judicial co-operation
undertakes such a wide interpretation of article 31 par 1c TEU,
that could practically include all the rules of the procedural
system in a Member State. In other words even rules for the procedural
settlements, for example, would be candidates for regulations
of common minimum standards, so as to enable thereafter the mutual
recognition of the relevant decisions of judicial authorities
between the Member States. The same could be said about the possibilities
of suspending prosecution etc. Obviously that was not the meaning
of article 31 par 1c TEU. Thus under the existing legal frame
there is no competence of the EU for setting standards for rights
of persons in criminal proceedings. Such a competence is recognized
for the first time in the Treaty for a Constitution for Europe,
though even there is being intensely criticised, because of its
orientation to the principle of mutual recognition.
3. (a) The danger that is related
to the very concrete proposal of the Commission on certain procedural
rights in criminal proceedings throughout the European Union results
from the logic of the minimum standards, which it introduces.
The regulations aim at achieving a common agreement of the Member
States for the safeguard of certain rights, that is to say a common
point that will be reached after concession especially for those
countries that ensure a higher lever of such rights in their internal
legal space. That is the general philosophy of common minimum
standards. Such a philosophy serves obviously a more effective
judicial co-operation, because as long as the minimum common standards
will be respected the recognition of the relevant judicial acts
can be also achieved.
However if our objective is an actually effective
safeguard for the rights of persons in criminal proceedings, this
option is not the only one and definitely is not also the preferable
one. In the legal theory, for example, it has been argued that
"instead of only establishing common EU minimum standards
regarding the rights of the defense and procedural safeguards
one should also maximise these rights and safeguards, meaning
that suspects and defendants should where possible be given the
procedural rights that accrue to him/her under either the law
of the issuing or enforcing Member State. This would mean that
Member States enforce or execute another Member States' decision,
as if it were taken or delivered in their own state, ie respecting
the procedural rights and safeguards of their own criminal justice
system plus, as a consequence of recognition of the other Member
States' criminal justice system, also the procedural rights and
safeguards of that other Member State that go beyond protection
offered to suspects, defendants or accused persons in their own
criminal justice system"[10].
Of course it is evident, that such an option is not easy to realise,
but the question here is, how important the objective is. If the
EU takes seriously its recent declaration, which is to be found
in the Treaty for a Constitution for Europe, according to which
the person is to be put in the core of the EU's action, it is
clear that it has to look for more inventive solutions, at least
in the field of safeguards for the rights of persons in criminal
proceedings.
(b) The danger that the Commission's proposal
creates, cannot on the other hand be avoided with the Non-regression
clause of article 17. According to it "nothing in this framework
decision shall be construed as limiting or derogating from any
of the rights and procedural safeguards that may be ensured under
the laws of any Member State and which provide a higher level
of protection". Such a provision does not solve the problem.
Because a Member State will, of course, implement its own rules,
which may ensure a higher level of protection, nevertheless it
will recognise at the same time the judicial decision of another
Member State taken with lower standards, as long as the latter
one respects the common minimum rules set in the proposed Framework-Decision.
And here lies the difficulty, because in this way we are driven
to a system of procedural rights of two speeds. The one related
to the internal rules of a Member State, which may offer a higher
level of protection for internal use only and the other, lower
one, related to common minimum standards for use on the level
of the relations with other Member States in criminal matters.
The longterm effects of such a scheme are foreseeable and not
at all to underestimate. Because no state that exercises power
and tends to be amenable to less possible restrictions will retain
for long its own higher level of protection, when from the system
of common minimum standards will be clear, that generally something
less is sufficient. The proposal of the Framework-Decision follows
to that point also the logic of the Treaty for a Constitution
for Europe, which has been justifiably criticised for leading
to the predominance of the most punitive legislation in the EU[11],
as the most protective rules for the rights of persons at the
level of Member States are set aside in the frame of the law,
which is developed in the Union.
This is why according to my opinion the whole
undertaking needs a basic re-orientation in order to be acceptable
and could be proposed only through a Convention according to art
34 par 2d TEU.
October 2004
9 H Fuchs, Bemerkungen zur gegenseitigen Anerkennung
justizieller Entscheidungen, ZStW 2004, 369-371, S. Gle , Zum
Prinzip der gegenseitigen Anerkennung justizieller Entscheidungen,
ZStW 2004, 361-362, M Kaiafa-Gbandi, I Synthiki gia to Europaiko
Szntagma kai i proklisis gia ti poiniko dikaio sto xekinima tou
21 eona, (The Treaty for establishing a Constitution for Europe
and the challenges for penal law at the beginning of the 21st
century), Poiniki Dikkaiosini 2004, 572-573, B Schunemann,
Grundzuge eines Alternativ-Entwurfs zur europaischen
Strafverfolgung, ZStW 2004, 382. Compare however J Vogel, Licht
und Schatten im Alternativ-Entwurf Europaische Strafverfolgung,
ZStW 2004, 411-412, 422. Back
10
G Vermeulen, Mutual Recognition of Criminal Decisions, Expert
Meeting on Criminal Law in European Dimensions, Maastricht University,
26-27.8.2004, in publication in Maastricht Journal of European
and Comparative Law 2005. Back
11
B Schunemann, Fortschritte und Fehltritte in der Strafrechtspflege
der EU, GA 2004, 202. Back
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