Memorandum by Professor Maria Kaiafa-Gbandi[21]
SUMMARY
According to the Reform Treaty the EU becomes
the primary holder of competence in the area of judicial and police
cooperation in criminal matters, while on the other hand the exertion
of its competences on a Community basis means that it can bind
its Member States in the criminal field much more effectively.
Through the Reform Treaty the EU expands and deepens its competences
in the area of substantive criminal law and attempts to assume
for itself, in view of the desired approximation of laws between
Member States, the demarcation of minimum standards of criminal
acts for a vast ambit of fields, open to further expansion in
the future. This decisive specification of the breadth of criminal
repression (as far as its starting point is concerned) combined
with the cardinal aim of security, on which the EU focuses its
attention, provokes justifiable anxieties, because the democratic
deficit which used to characterize the EU, despite its retreat,
does not disappear. On the other hand the principle of judicial
decisions' mutual recognition, as a harbinger of an effective,
simplified criminal law with minimum requirements at the level
of procedural guarantees, becomes the basic instrument for promoting
the security aim which runs through the field of EU criminal law
competences according to the Treaty on the Functioning of the
EU (TFEU). The criminal procedural law according to the latter
will be developed in the EU in order to facilitate the recognition
of judicial decisions and thus attain a function which violates
its historical identity as a Charter of free people. Even though
the EU expands through the Reform Treaty the competences of its
existent organs in the field of penal repression (Europol, Eurojust)
in a way that gradually surpasses their coordinating role or even
promotes a central model of criminal prosecutions (European Public
Prosecutor's Office), it does not accomplish to surmount considerable
well-known deficits of the present system. Furthermore, and this
is more perilous, although the power of the Public Prosecutor's
Office may principally infringe upon people's rights, it is set
on the basis of a democratic deficit which remains essentially
intact in relation to its present form. Lastly, the weighty novelty
of the entrenchment of fundamental rights (art 6§1 TEU) and
the judicial protection provided for them (art 230 fourth phrase
TFEU) unfortunately cannot recant the worries created by certain
provisions of the Reform Treaty related to criminal law, because
despite the significant progress made by the institutional recognition
of the European Charter of Human Rights and the accession of the
EU to the Convention for the Protection of Human Rights and Fundamental
Freedoms the essence of certain rights becomes relative through
the Reform Treaty itself.
I. GENERAL REMARKS
1. The Reform Treaty (CIG 1/1/07, REV 1,
Brussels, 5. October 2007) abolishes the pillar distinction and
unifies the EU structure by establishing a supranational organization,
which is much more cogent and potent, because now all the EU competences
conferred by the Member States are invariably exerted on a Community
basis (art 1 last phrase TEU: "The Union shall replace
and succeed the European Communities"). In this way the current
field of transnational cooperation (Third Pillar), where all criminal
matters are subsumed, ceases to exist and this means that the
EU role in the area of criminal law is perspicuously reinforced.
2. Certainly every competence of the Union
remains granted (art 5 Treaty on the Functioning of the EU-TFEU).
Nevertheless, to the extent that the judicial (art 69f and subsequent
TFEU) and police cooperation (art 69j and subsequent TFEU) in
criminal matters are categorically defined as an area of shared
competence between the EU and the Member States (art 4§2j
TFEU), the EU competence in the field of criminal law cannot be
questioned. Moreover, the fact that this competence is characterized
as a shared one should not make us jump into the conclusion that
the role of the EU and the Member States is coequal. On the contrary,
according to the TFEU when the Treaties confer on the Union a
competence shared with the Member States in a specific area, .
. . the Member States shall exercise their competence to the extent
that the Union has not exercised, or has decided to cease exercising,
its own (art 2§2 TFEU). This practically means that the shared
competence becomes from the moment of its exertion an exclusive
one. Hence, to the extent that the shared competences displace
those of the Member States according to the "rule of prevention",
it is clear that the EU has the precedence in the area of judicial
and police cooperation in criminal matters.
3. The above findings lead to a first important
conclusion: according to the Reform Treaty the EU becomes the
primary holder of competence in the area of judicial and police
cooperation in criminal matters and consequently the choice of
a concentrating model appears as evident. Beyond this issue,
the exertion of the EU competences on a Community basis means
that the EU can bind the Member States in the criminal field much
more effectively through the imposition of sanctions if they do
not comply with the measures that it determines (art 228§2
TFEU), while the enactment of these measures generally requires
majority and not unanimity.
4. At this point one might contend that
the cooperation in criminal matters between the Member States
favours by its own nature an EU primacy and under this context
the aforementioned inferences should not be faced with caution.
Nonetheless, the clarification of the leading aim of the EU
competences in the sensitive area of criminal law is of decisive
importance, before one adjudges whether the unquestionable transfer
of power to the supranational organization of the EU and the commensurate
retreat of the state sovereignty takes place with the perspective
of serving the people of Europe and their freedoms.
5. From article 61§3 of the TFEU, the
first provision devoted to the area of freedom, security and justice,
it clearly stems that the EU has placed as a predominant aim the
guarantee of "a high level of security", which is endeavoured
to be fulfilled through the enactment of various measures, including
measures of preventing and combating crime, judicial and police
cooperation in criminal matters etc. So, although one would expect
that the EU interventions in the area of criminal law would express
beyond the aim of the protection of legal interests the guarantee
of people's freedoms—especially after the institutional
recognition of the Charter of Fundamental Rights from the Reform
Treaty (art 6 TEU)—the established imbalance through
the institutionalized priority to security is apparent.
II. SUBSTANTIVE
CRIMINAL LAW
6. In order to facilitate in the long term
the mutual recognition of judgments (art 69e§1 TFEU), the
Treaty foresees the EU intervention in the field of substantive
criminal law too. This is an intervention that seeks to approach
the legislation of the Member States in areas of particularly
serious criminality with cross-border dimensions. The TFEU does
not certainly open the prospect of creating a "Model of European
Criminal Code". However, the areas—in which the EU
competence of intervention is recognized—are not only open
to expansion in the future (art 69f§1TFEU) but also they
have such amplitude already that any scrutiny of the EU actions
in the field of criminal law within its granted, specialized and
restricted power is made excessively difficult. The Reform Treaty
enumerates areas in the field of criminal law with ambiguous content
such as those of organized crime, corruption etc.
7. On the other hand if we compare this
adjustment with the currently valid provisions (arts 29 and 31
TEU) we will ascertain that the EU competence to intervene in
the area of criminal law through minimum rules, even for the definition
of criminal offences and sanctions, is significantly expanded
as far as the possible fields of criminal activities that can
become subject-matter of its intervention are concerned. Furthermore,
the EU expressly now attains the competence to enact even by
itself (ie through a regulation) measures for combating and
thus criminalizing the fraud against its financial interests (art.
280§4 TFEU), a power which was not granted by its founding
Treaties. In other words, the Reform Treaty clearly expands
and deepens the EU competence in the area of substantive criminal
law.
8. If we leave aside the special adjustments
for combating crime against its financial interests, we will ascertain
that the EU becomes competence according to the TFEU to enact
minimum rules about the definition of criminal offences and
sanctions. However, this does not mean that its relevant competence
retains its present form, because the power to enact minimum rules
according to the Treaty (and in view of its exercise on a Community
basis) begets a much more effective commitment on the Member States,
which can now be obliged to transfer the European legal act in
their internal legal system even through the imposition of sanctions
(art 228§2 TFEU).
9. However, one would object perhaps that
any reservations should recede to the extent that the European
legislative acts in this field require now the co-decision of
European Parliament, at least in the matters like this one where
the normal legislative procedure is followed (art 251 TFEU). Undoubtedly,
the co-equal participation of European Parliament in the Union's
legislative process reduces the democratic deficit which constituted
the basic core of criticism regarding the EU intervention in the
area of criminal law. Here indeed one should acknowledge that
the change in the EU legislative process is a significant progress
from a formal as well as a substantive point of view, because
it signifies the transition from an organization governed by powerful
executive organs (which include representatives from the Member
States) to a democratic union in which the legislative function
is delegated on equal terms to the elected representatives of
European people. And this is indisputably a very important progress
on institutional level too. Moreover, one would argue that the
normal legislative procedure, as it is now foreseen by the TFEU,
expresses the dual legitimizing base of the Union as a union of
people but simultaneously as a union of European Member States
too which participate in the legislative procedure through the
Council.
10. Nevertheless, the question that still
remains, according to my opinion, is whether the enactment of
directives concerning the establishment of criminal acts or minimum
binding rules for them satisfies the democratic principle. The
cornerstone of the legal principle nullum crimen nulla poena
sine lege, which is constitutionally embedded in numerous
Member States, does not depend upon the name of a regulating rule
as law but upon its identity as expression of the democratic principle.
Despite the fact that the participation of European Parliament
in the legislative procedure clearly improves the situation, as
it provides an outlet for the democratic principle's expression,
it does not solve the problem. According to the legislative procedure
prescribed by the TFEU it is possible to enact a European legislative
act even when there is no majority within the European Parliament.
This can happen if the European Parliament at the second reading
does not express its views within three months from the time the
Council informed Parliament of its position. In this case "the
act concerned shall be deemed to have been adopted in the wording
which corresponds to the position of the Council" (art 251§7a
TFEU). The same applies if the European Parliament does not succeed
in rejecting, by a majority of its component members, the Council's
position (art 251§7b). In the aforementioned instances the
European legal act will be issued simply because it obtained the
Council's approval by majority. Nonetheless, restrictions and
interventions in people's freedom imposed by criminal law as ultima
ratio according to the tradition of the European legal civilization
can only be determined by an organ, which conveys with the most
representative way people's sovereignty. Certainly, this organ
cannot be other but a Parliament elected by a free, co-equal,
general and secret balloting. Thus the well-known problem of governmental
enactment of law, which predominantly characterized EU as an institution,
is reduced but not extinguished. And understandably one cannot
contend that at least in the directives the democratic principle
is duly kept through the intervention of national parliaments.
Because the fact that the definition of criminal acts in the sense
of minimum rules is binding for the Member States obviously constitutes
a preordained decision of utmost importance.
11. On the other hand, I do not deem as
convincing the argument that the situation in EU could not be
different, since the EU is a union not only of European people
but also of states which must express themselves through the legislative
process even in the field of criminal law. This is the case because
in the internal legal system of the Member States also the legality
of the enactment of criminal laws rests upon the parliament and
not upon the executive power. Hence, the participation of Member
States within the EU, particularly at this issue, ultimately requires
parliamentary expression. This participation can take place either
by granting exclusive competence to the European Parliament especially
for the enactment of European legal acts concerning criminal matters
(procedural and substantive), and with a majority, that expresses
the majority of the European people, or at least, if one insists
upon the Council's participation, by amending the TFEU (art 251)
so that the enactment of European legal acts related to criminal
matters will not be feasible unless a qualified majority of
the European Parliament expressing the majority of European people
exists.
12. The preceded analysis shows that through
the Reform Treaty the EU expands and deepens the field of its
competences in the area of criminal law and attempts to assume
for itself, in view of the desired approximation of laws between
Member States, the demarcation of minimum standards of criminal
acts for a vast ambit of fields, open to further expansion in
the future. This decisive specification of the breadth of criminal
repression (as far as its starting point is concerned) combined
with the cardinal aim of security, on which the EU focuses its
attention, provokes justifiable anxieties because the democratic
deficit which used to characterize the EU, despite its retreat,
does not disappear.
III. PROCEDURAL
CRIMINAL LAW
13. The provisions concerning the law of
criminal procedure have apparently greater significance for the
EU, since they primarily underpin the aimed judicial and police
cooperation. Besides, for the first time in the primary law related
to criminal matters, the mutual recognition of judgments and
judicial decisions is proclaimed as a fundamental principle,
while furthermore it is categorically stated that the judicial
cooperation in criminal matters includes also the approximation
of Member States' laws and regulations in the areas of criminal
law and criminal procedural law according to what is stipulated
more specifically in following provisions (art. 69e§1 TFEU).
14. An initial observation is that the principle
of mutual recognition can be compatible with the field of free
movement of goods, from where it originates, but this does not
connote that its transfer in the field of criminal judicial decisions
can take place without severe disputes for the rule of law, as
the basic objective for this transfer in the field of criminal
law is its detachment from the principle of double criminality.
It is evident of course that the promotion of the principle of
the judicial decisions' mutual recognition is capable of securing
the maximum possible effectiveness with the maximum possible
simplification, because the provisions of the member state
from which we would petition for the recognition of a decision
would not need to be taken into consideration or could not impede
the proceedings. Since a measure like this cannot become unquestionably
acceptable, the TFEU envisages the establishment through a directive
of minimum rules of evidence, procedural guarantees and
other specialized elements of criminal procedure as well as minimum
rules regarding the definition of a range of crimes and their
sanctions.
15. However, one must not overlook two points:
first it is obvious that, exactly because the recognition of judicial
judgments and decisions is envisaged to unconditionally cover
all their range (art 69e§1) while the approximation
of the substantive and procedural criminal law through minimum
rules between Member States is initially foreseen only for certain
areas (arts 69e§2 and 69f§1), the TFEU considers as
given the possibility for the judicial judgments' recognition
even in areas where such an approximation may not have taken place.
Hence, to name but one example, the possibility a member state
to be called to recognize in the future a convicting decision
of another member state against a citizen of its own or a legal
entity located within its territory with all the consequences
that this might entail, cannot be ruled out, although this might
concern an act which according to its own legislation is not criminalized.
This possible scenario has already been validated by the framework
decision of the European arrest warrant for a certain list of
offences.
16. As one can understand, such an outcome,
touches the hard core of the rule of law, since we cannot argue
that this constitutes merely "a transnational criminal procedure",
where lex is the criminal law of the state having jurisdiction
and consequently that the law of the member state where the decision
is executed is immaterial. This is the case because when coercive
actions with the maximum possible constraint for people's freedom
occur in the member state, where the recognition or execution
of a foreign convicting decision takes place, this state can indeed
have the pretension, even if it executes the decision on behalf
of another state, to keeping the limits that it has set for
itself when it issues or executes convicting decisions within
its national borders. And it is self-evident that the existence
of double criminality appears as a minimum precondition at this
issue. Hence it becomes apparent that the generalized acceptance
of the principle of the judicial decisions' mutual recognition
between Member States leads inevitably to the dominance of the
most punitive criminal legislation.
17. On the other hand, we must also not
overlook the point where exactly the actions of facilitating the
aforementioned procedure through directives establishing minimum
rules for the mutual acceptance of evidence, the rights of
victims etc. will lead to. These obligatory minimum rules will
in turn be transferred to the internal law of Member States, which
is of course not hindered to provide a higher level of protection
(art 69e§2 TFEU). Subsequently it becomes evident that in
order to facilitate the use of the principle of mutual recognition
procedural guarantees of two speeds are created: those
which the EU promotes as minimum rules for facilitating the above
principle and those providing higher protection perhaps, which
could be valid only within a state's territory. But what is the
logic of such a structure? Apparently the logic is that what one
enjoys as a right in one state does not mean that one will also
enjoy it in an internationalized procedural criminal law within
the EU. And what about the future of such a structure? Rationally
the dominance of the minimum rules content, because no state that
exerts power and is prone to be subjected to the minimum possible
restrictions will sustain in the long run a minimum and maximum
level of protection. Hence, sooner or later the flattening of
guarantees towards the lower level is inescapable, since this
will be the level where precisely the EU will accomplish to find
the minimum points of consensus between Member States in order
to describe these minimum rules. What the EU needs is not minimum
rules for the mutual recognition of judicial judgments between
Member States but primarily a consensus concerning the necessary
standards of the procedural rights' protection or, in other
words, a model of protection which is not ruled by considerations
of effectiveness or simplification but which defines the unswerving,
indispensable level of protection for a law community with principles
inherited by the national constitutions and ECHR.
18. In accordance with the above inferences
we can add one more important conclusion to those we achieved
deducing till now: the principle of judicial decisions' mutual
recognition, as a harbinger of an effective, simplified criminal
law with minimum requirements at the level of procedural guarantees,
becomes the basic instrument for promoting the security
aim which runs through the field of EU criminal law competences
according to the TFEU. The criminal procedural law according to
the latter will be developed in the EU in order to facilitate
the recognition of judicial decisions and thus attain a distorted
function which violates its historical identity as a Charter of
free people.
IV. EU ORGANS
RELATED TO
PENAL REPRESSION
19. If we now turn our attention to the
provisions of the TFEU concerning the EU organs in the field of
criminal repression we observe that, apart from the expansion
of the current organs' competences, ie, Eurojust and Europol (arts
69h-l TFEU), the possibility of creating a new but highly contested
organ, the European Public Prosecutor's Office, is also foreseen
(art 69i TFEU).
20. It is evident that Eurojust as well
as Europol transcend through the TFEU their coordinating character
and expressly acquire decisive competences for all the serious
crimes affecting two or more Member States. Thus, it is foreseen
that Eurojust, apart from coordinating the prosecutions and reinforcing
the judicial cooperation between Member States, may also undertake
through the enactment of a regulation the initiation of criminal
investigations as well as the proposition of the initiation of
prosecutions conducted by competent national authorities (art
69h§1a TFEU).
21. As far as Europol is concerned it is
foreseen correspondingly that regulations shall determine its
action and duties and may assign to Europol, apart from the duty
of data collection and processing, the coordination of investigations
and operational actions of Member States, their organization
as well as their implementation in cooperation with the competent
authorities of the Member States (art 69k§2b TFEU).
22. Moreover, the evident problems in the
relationship between Europol and Eurojust remain intact. As it
is well known in the EU Europol was established first as a police
coordinating organ for combating interstate criminality. Nonetheless,
the function of Europol even in the field of its original competence,
ie the collection, analysis and supply of information to the relevant
authorities of the member-states, quickly made clear the rule
of law deficits that accompany its role. It suffices here to recall
two points: First, that Europol's action is extended even to a
stage of a pro-proactive policing, since the collection of information
may concern people who cannot be deemed as suspects for committing
crimes even in the future (art 10 para1(4) of Europol Convention).
Second, that the level of legal protection which is provided to
the people for their right of informative self-determination towards
the function of Europol presents very serious deficits, especially
due to Europol's immunities. The provision for lifting Europol's
immunities is completely incompatible with the principles of our
legal civilization, because this decision is always taken by its
director (after considering Europol's interests) and scrutinized
by the Council, ie by an organ of primarily executive power. Hence,
it becomes obvious that the exerted criticism for the fact that
Europol has obtained through its competences a de facto leading
role in the administration of pre-trial evidence is justified
since this procedure should be in the hands of justice. For the
purpose of overcoming these serious deficits it was deemed necessary
to establish in the area of criminal matters a judicial coordinating
organ as a counterbalance, the Eurojust, on which various
expectations were trusted. Nonetheless, even the way the TFEU
eventually regulated Eurojust's and Europol's competences clearly
shows that Eurojust was not given the competence to judicially
control Europol's actions. This might be considered as justified
due to the primarily coordinating character of Eurojust. However,
if one considers that the action of Europol even in the field
of its original competence constitutes basically collection of
pre-trial material which should be judicially scrutinized then
one can perceive the deficit left unfortunately unsettled by the
TFEU.
23. Additionally, according to the TFEU
the EU aspires to establish an aggregate model of criminal prosecutions
through the creation of a European Public Prosecutor's Office,
which will stem from Eurojust's context and will be initially
competent to combat crimes affecting the EU financial interests.
However, the powers of the European Public Prosecutor's Office
can be extended to include all serious crimes having a cross-border
dimension, if subsequently the European Council adopts unanimously
a relative European decision after obtaining the consent of the
European Parliament and after consulting the Commission. Although
these novelties are of decisive importance, since they are related
to the creation of an EU organ with the most sensitive for people's
rights field of action, the European legal act, which will envisage
the foundation, the regime, the conditions governing the performance
of its functions, the procedural rules governing the activities
of the Public Prosecutor's Office, the admissibility of evidence
and the rules for the judicial review of its procedural actions
will be according to the TFEU a regulation adopted in accordance
with a special legislative procedure that will merely require
the European Parliament's consent in advance (art 69i§1TFEU).
24. Hence, we observe that even though the
EU expands through the Reform Treaty the competences of its existent
organs in the field of penal repression in a way that gradually
surpasses their coordinating role or even promotes a central model
of criminal prosecutions, it does not accomplish to surmount considerable
well-known deficits of the present system. Furthermore, and this
is more perilous, although the power of the Public Prosecutor's
Office may principally infringe upon people's rights, it is set
on the basis of a democratic deficit which remains essentially
intact in relation to its present form. Therefore, although the
EU obtains organs with more decisive powers in the field of criminal
repression, it parallel binds them much tighter on to the executive
power of the Council, which demarcates the most significant of
their competences for European citizens. Undoubtedly, this favours
the efficacious achievement of security that the EU deems as a
priority aim, but it abrogates a traditional principle of European
legal civilization, which demands the most intense interventions
in people's freedoms to be commensurate with their democratic
legitimation.
25. According to the aforementioned thoughts
which run through the area of substantive as well as procedural
criminal law it becomes understandable that the role of the Member
States' national penal systems remains indisputable. This can
be clearly seen even from the provisions of the TFEU regulating
the Eurojust's and Europol's competences or the European Public
Procecutor's Office. However, the development of a criminal law
which is co-determined in decisive aspects by the EU intervention
justifiably focuses our attention on the issue of its potential
democratic deficits, because it is exactly this European criminal
law, which will influence decisively the character of the
national penal systems, since they will be called to function
within its frame at least in the cases of crimes with cross-border
dimensions which are primarily regulated by the provisions of
the TFEU concerning criminal law.
V. THE PROTECTION
OF FUNDAMENTAL
RIGHTS IN
THE FIELD
OF CRIMINAL
MATTERS
26. On the other hand the weighty novelty
of the entrenchment of fundamental rights (art 6§1 TEU) and
the judicial protection provided for them (art 230 fourth phrase
TFEU) unfortunately cannot recant the worries created by certain
provisions of the Reform Treaty related to criminal law. Certainly,
this development is decisive, especially if one takes into account
that amongst the rights that will institutionally bind the EU
organs and be protected by the EU judicial mechanism there are
the prohibition of death penalty, the prohibition of torture and
inhuman or degrading treatment or punishment, the protection of
personal data, the right to an effective remedy and a fair trial,
the presumption of innocence and right of defence, the principle
ne bis in idem and the basic principles of legality and
proportionality of crimes and sentences.
27. Nevertheless, despite the significant
progress made by the aforementioned adjustments, it must be made
clear that through the same Treaty the essence of these rights
becomes relative. The specific provisions from the TFEU regarding
the police and judicial cooperation in criminal matters have shown,
to name but one example, that the classical powers of Europol
regarding the selection and processing of personal data are not
subject to any judicial scrutiny during their exertion,
although they are linked to the investigation of punishable acts.
Certainly this fact can generate significant problems for the
rights of the defence of the accused, the respect of which according
to the Charter of Fundamental Rights must be safeguarded. Likewise,
the judicial protection which is expanded significantly in the
Union and it is foreseen to be offered by the European Court of
Justice in criminal matters by granting the right of an individual
action (art. 230c TFEU), although it is extremely important, it
cannot but be restricted in its scope by the limits set by the
TFEU itself.
28. Lastly, one should welcome the accession
of the EU to the Convention for the Protection of Human Rights
and Fundamental Freedoms. Despite the difficulties that it faces,
the ECtHR is the most noteworthy model of protection of these
rights that we presently have because the European Court of Human
Rights (ECtHR), contrary to the Court of the Union, functions
exclusively as a mechanism of protection for the fundamental
rights and as an external to the states or the European
Union institutional mechanism, ie, to the systems of power
from which the fundamental rights are violated. The EU is not
justified any more not to participate in this mechanism, especially
when we recall the increased powers that it has lately attained.
For this reason it is very positive that the amendment according
to which the EU shall accede to the ECHR (art 6§2 TEU) has
been eventually accepted while a relative protocol has been annexed
to the Reform Treaty amending TEU and TEC.
VI. CONCLUSION
29. The EU will be marching in the years
to come through more and more intense forms of co-existence between
its members. The crucial point during this course is not to abandon
conquests of its legal civilization that made its presence distinctive
and which are interrelated to people's freedoms, particularly
in sensitive areas such as the criminal law. The Reform Treaty
represents a significant effort towards this direction by diminishing
the democratic deficit in the legislative procedure and institutionally
safeguarding fundamental rights. However, more steps need to be
taken. It is of utmost importance to convert the current European
criminal law of intergovernmental enactment, which primarily serves
the aim of security, into a democratically legitimate, European
criminal law that along with the protection of legal interests
will effectively guarantee the rights of people in a transnationally
developing criminal trial.
17 November 2007
21 Professor at the Aristotle University of Thessaloniki,
Law Faculty, Department for Criminal Law and Criminology. Back
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