9
9.1. Introduction
Criminal law: Mutual Recognition and
Criminal Procedure
to ensure that substantive criminal law achieves its intended objectives,
obviouslv necessary both to investigate alleged crimes and to prosecute the
offenders, and then to carry out any sentence imposed. But in democratic
committed to human rights, ensuring effective prosecutions cannot be
sole objective. Since it is unacceptable to punish the innocent with the force
criminal sanctions such as imprisonment, the process of determining guilt or
ocence needs to be fair. So the right to a fair trial carries a prominent place
any general international human rights treaty or national constitutional bill
rights, along with associated principles like the legality and non-retroactivity
criminal law.
Yet putting in practice the right to a fair trial, balancing defendants' rights
ith the need to ensure effective prosecutions, is a complex and often conversial
process, both as regards the general rules of criminal procedure and
eir application to specific cases. The process is complicated when there are
ss-border elements, such as the presence of a suspect, witness, or other evillce
in another country. To address such issues, there is a considerable body of
rnational treaties, mostly emanating from the Council of Europe. But since
(operation of these treaties is often considered to be ineffective in light of a
rceived increase in cross-border crime, the EU has been active in adopting
easures in this area and planning further measures. In particular, since 1999,
~ ,EU has been implementing a principle of mutual recognition in criminal
atters, according to which the decisions of the judicial authorities of one
ember State should as far as possible take effect automatically in all other
ember States.
There are objections to the detailed measures adopted to apply this prinple,
most notably from national parliaments and courts, in light of doubts
particular about the fairness of foreign criminal procedures due to the
iversity of systems of criminal procedure between Member States and fears
at criminal suspects facing trial in a foreign system will face de facto disimination.
These doubts could be addressed by EU-wide harmonization of
Civil Cooperation654
who argue for greater similarity in national civil procedural laws, but
shied away from any significant steps in that direction. That reticence
under question eventually, particularly if the Common Frame of L"'.1~leTe,!lC(
contract law is further developed.
. As for human rights, while the EU's civil cooperation measures have
nse to the same concerns over civil liberties and human rights protection
Issues discussed in this book, all such matters fall within the scope of
ECHR. The case law ofthe Court ofJustice has largely (but not entirelv)
the right balance between developing efficient rules on civil jurisdiction
mutual recognition ofjudgment, on the one hand, and the protection
rights on the other. Furthermore, effective civil cooperation measures
desirable result of assisting the Member States to fulfil their Article 6
to guarantee a trial within a reasonable time and to ensure the execuno,
judgments.
9.2.1 Cooperation before the Treaty of Amsterdam
657Institutional framework and overview
below. 2 See 9.6.1.1 below. 3 See 9.7 below. 4 See ibid.
and 9.7.4 below.
ratification details of all of the Conventions and Protocols, see Appendix 1.
EPC process, see 2.2.1.1 above. 8 See 9.5.1,9.6.1.1, and 9.7 below.
ratification details of all of the Conventions and Protocols, see Appendix 1.
48-53 of the Convention (Chapter 2 ofTitle lll), [2000] OJ L 239. See 9.6.1 below.
59-66 ofthe Convention (Chapter 4 of Title lll). See 9.5.1 below.
67-69 ofthe Convention (Chapter 5 of Title lll). See 9.7.1.2 below.
respectively 9.6.1 and 9.7.1.1 below.
particularly Arts 95, 98, and 100 ofthe Convention. On the SIS, see 12.6.1.1 below.
9.5.1 below.
hich addressed in turn: extradition;' mutual assistance in transferring evidence."
.e international validity of criminal judgments (or transfer of sentences);" the
nsfer of sentenced persons, with a subsequent protocol);" and measures conrning
the proceeds ofcrime.5 Most ofthese Conventions have been universally
tified by Member States, but the Convention on the international validity of
iminal judgments attracted much less interest."
At first, the EU Member States focused on agreeing European Political
Qoperation (EPe) Conventions that would enhance the application of the
ouncil of Europe Conventions among themselves, and encourage cooperation
tween Member States in the areas where the Council of Europe Conventions
d attracted little enthusiasm.' To this end, they agreed on Conventions conrning
the application of a Council of Europe terrorism Convention (which
ntains further extradition and mutual assistance rules), the faxing of extradin
requests, the international validity ofcriminaljudgments, and the transfer of
tenced persons." However, none ofthese EPC Conventions entered into force,
they failed to attract much enthusiasm among Member States."
Outside the framework of cooperation between the (then) EEC Member
tes, the 1990 Schengen Convention contained a number of detailed provison
cross-border cooperation, addressing mutual assistance," extradition,'!
the transfer ofsentenced persons." The Schengen Executive Committee also
ted two relevant Decisions, concerning mutual assistance as regards drug
icking and a separate agreement concerning cooperation regarding road trafoffences.D
Furthermore, the Schengen Information System (SIS) contains data
use to prosecutions and judicial investigations, in particular as regards extradirI,
wanted persons, and objects which could be used as evidence."
With the entry into force of the Treaty of Maastricht, the EU had a forLintergovernmental
framework to address criminal procedural issues. The
in development during the 'Maastricht era' was the signature of two extradiConventions
in 1995 and 1996, concerning in turn consented and disputed
clition." These Conventions sought to reduce or eliminate a number ofthe
bars to extradition under the Council ofEurope Conventions. During this
there were also lengthy attempts, starting in 1995, to agree a Convention
Criminal Law: Mutual Recognition and Criminal Procedure656
9.2. Institutional framework and nVPI"\/IP1~A'
domestic criminal procedural law, but there have been objections in
such measures due to the limited legal powers of the EU as regards
criminal procedure, qualms about harmonization of national law in
sensitive and distinctive field, and doubts about the necessity of such
in light of the fair trial provisions of the European Convention of
Rights (ECHR) and the possibility of enforcing those rights in the Europe
Court of Human Rights. But in the absence ofharmonized procedural
the 'free movement of prosecutions and sentences' could arguably
violation of the right to a fair trial. To address these concerns, the
Lisbon provides for a specific legal base for the adoption of measures re
ing domestic criminal procedure, and the EU has committed itself
legislation in this area.
This chapter surveys these issues in detail, starting with the
of the institutional framework, an overview of measures adopted,
petence, territorial scope, human rights, and overlaps with other In"n·~1 t
EU law. It then examines the EU's mutual recognition measures,
with extradition and the 'flagship' European Arrest Warrant, moving
lyse pre-trial measures addressing issues such as the movement of
and freezing orders, and then post-trial measures such as the recogrntio)
sentences and confiscation orders and the transfer of prisoners. It
ines EU harmonization of domestic criminal procedure, in the SPI~C1t1C
referred to in the Treaty of Lisbon (evidence law, suspects' rights,
tirns' rights). Finally, it concludes by examining the issues of acrrumstr:
cooperation and EU funding and external relations, as they apply to
procedure.
Issues related to jurisdiction (including cross-border double JeopaDClY;
prosecution, notably the development of Eurojust and the nrosnecr
ing a European Public Prosecutor, are addressed separately in '--"w!:,'.u
connected issue of substantive criminal law is addressed in Chapter
closely related issue ofpolicing is examined in Chapter 12. As noted
chapter, this book observes the English distinction between the prosecuno
trial process before the courts (addressed in this chapter) and the inv'csti,iZal
crime by the police or similar authorities (addressed in Chapter 12),
in continental countries, investigations are more closely linked to
process.
Before the entry into force ofthe Treaty ofAmsterdam in 1999, the uu"u 0",..,
the law on international criminal procedure was Council U'~~<LU'J:"~y'JUY",'"
9.2.1 Cooperation before the Treaty of Amsterdam
657Institutional framework and overview
below. 2 See 9.6.1.1 below. 3 See 9.7 below. 4 See ibid.
and 9.7.4 below.
ratification details of all of the Conventions and Protocols, see Appendix 1.
EPC process, see 2.2.1.1 above. 8 See 9.5.1,9.6.1.1, and 9.7 below.
ratification details of all of the Conventions and Protocols, see Appendix 1.
48-53 of the Convention (Chapter 2 ofTitle lll), [2000] OJ L 239. See 9.6.1 below.
59-66 ofthe Convention (Chapter 4 of Title lll). See 9.5.1 below.
67-69 ofthe Convention (Chapter 5 of Title lll). See 9.7.1.2 below.
respectively 9.6.1 and 9.7.1.1 below.
particularly Arts 95, 98, and 100 ofthe Convention. On the SIS, see 12.6.1.1 below.
9.5.1 below.
hich addressed in turn: extradition;' mutual assistance in transferring evidence."
.e international validity of criminal judgments (or transfer of sentences);" the
nsfer of sentenced persons, with a subsequent protocol);" and measures conrning
the proceeds ofcrime.5 Most ofthese Conventions have been universally
tified by Member States, but the Convention on the international validity of
iminal judgments attracted much less interest."
At first, the EU Member States focused on agreeing European Political
Qoperation (EPe) Conventions that would enhance the application of the
ouncil of Europe Conventions among themselves, and encourage cooperation
tween Member States in the areas where the Council of Europe Conventions
d attracted little enthusiasm.' To this end, they agreed on Conventions conrning
the application of a Council of Europe terrorism Convention (which
ntains further extradition and mutual assistance rules), the faxing of extradin
requests, the international validity ofcriminaljudgments, and the transfer of
tenced persons." However, none ofthese EPC Conventions entered into force,
they failed to attract much enthusiasm among Member States."
Outside the framework of cooperation between the (then) EEC Member
tes, the 1990 Schengen Convention contained a number of detailed provison
cross-border cooperation, addressing mutual assistance," extradition,'!
the transfer ofsentenced persons." The Schengen Executive Committee also
ted two relevant Decisions, concerning mutual assistance as regards drug
icking and a separate agreement concerning cooperation regarding road trafoffences.D
Furthermore, the Schengen Information System (SIS) contains data
use to prosecutions and judicial investigations, in particular as regards extradirI,
wanted persons, and objects which could be used as evidence."
With the entry into force of the Treaty of Maastricht, the EU had a forLintergovernmental
framework to address criminal procedural issues. The
in development during the 'Maastricht era' was the signature of two extradiConventions
in 1995 and 1996, concerning in turn consented and disputed
clition." These Conventions sought to reduce or eliminate a number ofthe
bars to extradition under the Council ofEurope Conventions. During this
there were also lengthy attempts, starting in 1995, to agree a Convention
Criminal Law: Mutual Recognition and Criminal Procedure656
9.2. Institutional framework and nVPI"\/IP1~A'
domestic criminal procedural law, but there have been objections in
such measures due to the limited legal powers of the EU as regards
criminal procedure, qualms about harmonization of national law in
sensitive and distinctive field, and doubts about the necessity of such
in light of the fair trial provisions of the European Convention of
Rights (ECHR) and the possibility of enforcing those rights in the Europe
Court of Human Rights. But in the absence ofharmonized procedural
the 'free movement of prosecutions and sentences' could arguably
violation of the right to a fair trial. To address these concerns, the
Lisbon provides for a specific legal base for the adoption of measures re
ing domestic criminal procedure, and the EU has committed itself
legislation in this area.
This chapter surveys these issues in detail, starting with the
of the institutional framework, an overview of measures adopted,
petence, territorial scope, human rights, and overlaps with other In"n·~1 t
EU law. It then examines the EU's mutual recognition measures,
with extradition and the 'flagship' European Arrest Warrant, moving
lyse pre-trial measures addressing issues such as the movement of
and freezing orders, and then post-trial measures such as the recogrntio)
sentences and confiscation orders and the transfer of prisoners. It
ines EU harmonization of domestic criminal procedure, in the SPI~C1t1C
referred to in the Treaty of Lisbon (evidence law, suspects' rights,
tirns' rights). Finally, it concludes by examining the issues of acrrumstr:
cooperation and EU funding and external relations, as they apply to
procedure.
Issues related to jurisdiction (including cross-border double JeopaDClY;
prosecution, notably the development of Eurojust and the nrosnecr
ing a European Public Prosecutor, are addressed separately in '--"w!:,'.u
connected issue of substantive criminal law is addressed in Chapter
closely related issue ofpolicing is examined in Chapter 12. As noted
chapter, this book observes the English distinction between the prosecuno
trial process before the courts (addressed in this chapter) and the inv'csti,iZal
crime by the police or similar authorities (addressed in Chapter 12),
in continental countries, investigations are more closely linked to
process.
Before the entry into force ofthe Treaty ofAmsterdam in 1999, the uu"u 0",..,
the law on international criminal procedure was Council U'~~<LU'J:"~y'JUY",'"
16 See 9.7.3 below. 17 See 9.9 below. 18 See ibid.
20 See 9.9 below. 21 See 9.6.2 and 9.7.4 below. 22 See
23 Case C-105/03 [2005] ECR 1-5285; see discussion in ibid.
9.2.2. The Treaty of Amsterdam
9.2.2.1 Institutional framework
The Treaty of Amsterdam inserted an Article 31 into
provided that:
659Institutional framework and overview
T4) [1999] OJ L 176/17. 25 Paras 32-52 ofthe conclusions.
,6 [2001] OJ C 12/10. See earlier Commission communication on the issue (COM (2000) 495,
July 2000) and discussion of the development of the principle in S Peers, 'Mutual Recognition
Implementing the Treaty of Amsterdam
other areas ofJHA cooperation, some key basic principles for developent
of policy and legislation in this area were set out by the Tampere European
ouncil in the autumn of 1999. 25
The relevant conclusions focused in particular
n mutual recognition of judicial decisions, described as the 'cornerstone' of
riminal (and civil) judicial cooperation; the principle of mutual recognition
should apply not just to judgments but also to 'other decisions ofjudicial authorities'.
However, the conclusions also referred to the 'necessary approximation of
egislation'. Approximation and mutual recognition together 'would facilitate
-operation between authorities and the judicial protection ofindividual rights'.
More specifically, the conclusions urged Member States to ratify the EU's two
tradition Conventions, and stated that extradition as such should be abolished
the case ofpersons who fled after final sentencing. In other cases, there should
consideration of 'fast track' extradition procedures, 'without prejudice to the
inciple of fair trial'. Furthermore, there should also be mutual recognition of
re-trial orders, in particular' measures on seizure of assets and evidence, and
vidence lawfully gathered by one Member State's authorities should be admisle
before the courts of other Member States, taking into account the standards
t apply there'. Finally, the conclusions asked the Council and Commission to
opt a programme ofmeasures to implement the principle ofmutual recognition
the end of2000.
The conclusions also provided that 'minimum standards should be drawn
on the protection of the victims of crime, in particular on crime victims'
~ess to justice and on their rights to compensation for damages'. Member States
~re called upon to provide full mutual legal assistance in the investigation and
secution of serious economic crime (referring to taxes and duties), money
ndering 'should be rooted out wherever it occurs', and the European Council
as 'determined to ensure that concrete steps are taken to trace, freeze, seize
dconfiscate the proceeds ofcrime'. To that end, Member States were urged to
plement various relevant EU and international measures.
'Io implement this agenda, the Council agreed upon the mutual recognition
rk programme, as requested, by the end of2000.26
The programme ultimately
sw;pects;],whose legal position may be altered significantly by the ability to invoke
indirect effect of a Framework Decision.
Also, with the entry into force of the Treaty of Amsterdam, the various
lchlengen rules on criminal procedural matters were allocated to the third pillar
EU.24
Criminal Law: Mutual Recognition and Criminal Procedure658
The Treaty of Nice subsequently added a second paragraph to
Article 31 TEU, referring to the 'Eurojust' prosecutors' agency
ers had agreed to create in the meantime. This issue, along with
regarding conflicts ofjurisdiction, is addressed further in Chapter
The measures adopted pursuant to Article 31 TEU were zovemed
revised general third pillar rules on the jurisdiction of the Court
role of the political institutions, and the use of specific instruments
legal effect." On the latter point, the Court's judgment in Pupino,
Framework Decisions had indirect effect;" was of great relevance
since a number of Framework Decisions in the field ofcriminal procedure
or wholly govern the legal position ofindividuals (particularly crime
Common action on judicial cooperation in criminal matters shall include:
(a) facilitating and accelerating cooperation between competent ministries
cial or equivalent authorities of the Member States in relation to proceeding
the enforcement of decisions;
(b) facilitating extradition between Member States;
(c) ensuring compatibility in rules applicable in the Member States, as
sary to improve such cooperation;
(d) preventing conflicts of jurisdiction between Member States;
(e) progressively adopting measures establishing minimum rules relating
stituent elements ofcriminal acts and to penalties in the fields
terrorism and illicit drug trafficking.
on mutual assistance to supplement the Council of Europe measures,
attempts did not bear fruit until after the Treaty of Amsterdam was in
Convention on recognition of driving disqualifications was signed in
it has attracted few ratifications." There were also a handful ofJoint
addressing criminal procedural issues. These measures concerned the
of liaison magistrates;" the 'Grotius' programme of incentives and
for legal practitioners;" good practice in mutual legal assistance." the
of a European judicial network;" and money laundering and connscatior
proceeds."
16 See 9.7.3 below. 17 See 9.9 below. 18 See ibid.
20 See 9.9 below. 21 See 9.6.2 and 9.7.4 below. 22 See
23 Case C-105/03 [2005] ECR 1-5285; see discussion in ibid.
9.2.2. The Treaty of Amsterdam
9.2.2.1 Institutional framework
The Treaty of Amsterdam inserted an Article 31 into
provided that:
659Institutional framework and overview
T4) [1999] OJ L 176/17. 25 Paras 32-52 ofthe conclusions.
,6 [2001] OJ C 12/10. See earlier Commission communication on the issue (COM (2000) 495,
July 2000) and discussion of the development of the principle in S Peers, 'Mutual Recognition
Implementing the Treaty of Amsterdam
other areas ofJHA cooperation, some key basic principles for developent
of policy and legislation in this area were set out by the Tampere European
ouncil in the autumn of 1999. 25
The relevant conclusions focused in particular
n mutual recognition of judicial decisions, described as the 'cornerstone' of
riminal (and civil) judicial cooperation; the principle of mutual recognition
should apply not just to judgments but also to 'other decisions ofjudicial authorities'.
However, the conclusions also referred to the 'necessary approximation of
egislation'. Approximation and mutual recognition together 'would facilitate
-operation between authorities and the judicial protection ofindividual rights'.
More specifically, the conclusions urged Member States to ratify the EU's two
tradition Conventions, and stated that extradition as such should be abolished
the case ofpersons who fled after final sentencing. In other cases, there should
consideration of 'fast track' extradition procedures, 'without prejudice to the
inciple of fair trial'. Furthermore, there should also be mutual recognition of
re-trial orders, in particular' measures on seizure of assets and evidence, and
vidence lawfully gathered by one Member State's authorities should be admisle
before the courts of other Member States, taking into account the standards
t apply there'. Finally, the conclusions asked the Council and Commission to
opt a programme ofmeasures to implement the principle ofmutual recognition
the end of2000.
The conclusions also provided that 'minimum standards should be drawn
on the protection of the victims of crime, in particular on crime victims'
~ess to justice and on their rights to compensation for damages'. Member States
~re called upon to provide full mutual legal assistance in the investigation and
secution of serious economic crime (referring to taxes and duties), money
ndering 'should be rooted out wherever it occurs', and the European Council
as 'determined to ensure that concrete steps are taken to trace, freeze, seize
dconfiscate the proceeds ofcrime'. To that end, Member States were urged to
plement various relevant EU and international measures.
'Io implement this agenda, the Council agreed upon the mutual recognition
rk programme, as requested, by the end of2000.26
The programme ultimately
sw;pects;],whose legal position may be altered significantly by the ability to invoke
indirect effect of a Framework Decision.
Also, with the entry into force of the Treaty of Amsterdam, the various
lchlengen rules on criminal procedural matters were allocated to the third pillar
EU.24
Criminal Law: Mutual Recognition and Criminal Procedure658
The Treaty of Nice subsequently added a second paragraph to
Article 31 TEU, referring to the 'Eurojust' prosecutors' agency
ers had agreed to create in the meantime. This issue, along with
regarding conflicts ofjurisdiction, is addressed further in Chapter
The measures adopted pursuant to Article 31 TEU were zovemed
revised general third pillar rules on the jurisdiction of the Court
role of the political institutions, and the use of specific instruments
legal effect." On the latter point, the Court's judgment in Pupino,
Framework Decisions had indirect effect;" was of great relevance
since a number of Framework Decisions in the field ofcriminal procedure
or wholly govern the legal position ofindividuals (particularly crime
Common action on judicial cooperation in criminal matters shall include:
(a) facilitating and accelerating cooperation between competent ministries
cial or equivalent authorities of the Member States in relation to proceeding
the enforcement of decisions;
(b) facilitating extradition between Member States;
(c) ensuring compatibility in rules applicable in the Member States, as
sary to improve such cooperation;
(d) preventing conflicts of jurisdiction between Member States;
(e) progressively adopting measures establishing minimum rules relating
stituent elements ofcriminal acts and to penalties in the fields
terrorism and illicit drug trafficking.
on mutual assistance to supplement the Council of Europe measures,
attempts did not bear fruit until after the Treaty of Amsterdam was in
Convention on recognition of driving disqualifications was signed in
it has attracted few ratifications." There were also a handful ofJoint
addressing criminal procedural issues. These measures concerned the
of liaison magistrates;" the 'Grotius' programme of incentives and
for legal practitioners;" good practice in mutual legal assistance." the
of a European judicial network;" and money laundering and connscatior
proceeds."
661Institutional framework and overview
)See 9.8.3 below. 34 See 12.6.1.1 below.
~5J2008] OJ L 350/60. See 12.6.4 below. 36 See generally ch 10 below.
37 Cases: C-l05/03 Pupino[2005] ECR 1-5285; C-467/05 Dell'Orto [2007] ECR 1-5557; C-404/07
tz [2008] ECR 1-7607; C-205/09 Eredics, pending (opinion ofl July 2010); and C-483/09 Gueye,
dingo On the substance of these cases, see 9.8.3 below.
38 Case C-303/05 Advocaten voor de Wereld [2007] ECR 1-3633. On the substance see 9.5.2
below.
"Cases: C-66/08 Koslowski [2008] ECR 1-6041; C-296/08 PPU Santesteban Goicoechea [2008]
R 1-6307; C-388/08 PPU Leymann and Pustovarov [2008] ECR 1-8993; C-123/08 Wolzenburg
009] ECR 1-9621; C-261/09Mantello, pending (opinion of7 Sep 2010); and C-306/09 lB, pending
pinion of 6 July 2010). On the substance, see ibid.
40 The Court ofJustice has not yet been asked whether an identical clause must be interpreted the
illeway in different mutual recognition instruments, although see the opinion in Mantello (ibid).
.2.2.3. Basic principles of mutual recognition in criminal law
lthough the various EU measures setting out the details of the principle of
utual recognition in criminal law differ in the detail, they have certain common
tures which it is useful to summarize at the outset." These features remain
evant following the entry into force of the Treaty ofLisbon, as the pre-Lisbon
easures will remain in force until replaced or amended, and since post-Lisbon
easures appear set to follow the template established by previously adopted
easures.
A frequent feature of the mutual recognition measures is that they replace or
plement the Council of Europe measures referred to above, whether those
ad.dressed in particular by both a third pillar measure on their position in criminal
rocedure and by an EC law (as it then was) measure on cornpensatiou."
Other relevant measures have included the development of the Schengen
formation System (S1S), in particular as regards the inclusion of further data
levant to prosecutions, access to the S1Sby judicial authorities, and the creation
second-generation SIS (S1S II), which will in particular include information
nEAWs.34
Also, the Framework Decision on personal data protection, adopted
ir12008, also applies to the judicial sector."
There is also a link between measures on substantive criminal law and abolition
of the dual criminality principle (the requirement that an (alleged) act must
mount to a criminal offence in both States concerned) in the EU's mutual
recognition measures, because the harmonization of substantive criminal law
reduces the differences between national rules which underlie the principle of
al crirninahtv.r"
Finally, the Court ofJustice had begun to play a significant role as regards
terpretation of measures in this area even before the Treaty of Lisbon entered
to force, receiving five references for interpretation ofthe Framework Decision
crime victims' rights;" a reference on the validity ofthe Framework Decision
the European Arrest Warrarit;" and six references on the interpretation of the
me Framework Decision;"
Criminal Law: Mutual Recognition and Criminal Procedure660
included a list oftwenty-four measures, ranked by priority, but without
concluding the programme as a whole or agreeing individual measures.
According to its introduction, the mutual recognition programme was
subject to a number of 'parameters': whether each measure should be
in scope or limited to specific crimes; whether the concept of double
ity (requiring the act in question to be a crime in both the requesting
requested State) should be dropped; 'mechanisms for safeguarding the
third parties, victims and suspects'; the need to define 'common minimum
ards' necessary to facilitate mutual recognition (for example, the cornpeter
of courts); whether enforcement is direct or indirect;" the grounds for
recognition (such as public policy and double jeopardy, and exclusion
fiscal, or political offences); and the existence of 'liability arrangements
event of acquittal'.
Before the entry into force ofthe Treaty ofLisbon, this programme was
mented by Framework Decisions on: a European Arrest Warrant (EAW), w
replaces extradition between Member States; freezing orders; the mutual recti
nition offinancial penalties; execution ofconfiscation orders (and related dom
tic law on confiscation); a European Evidence Warrant (following an earlier
Convention and Protocol on mutual assistance in criminal matters); the tran
of sentenced persons; probation and parole orders; pre-trial supervision ord'
recognition ofconvictions; the exchange ofcriminal records; and in absentiain
(trials held without the attendance of the accused)." However, the Commiss
decided against proposing EU legislation on witness protection.i"
The development ofEU policy in this area was clearly accelerated by thet
rorist attacks of 11 September 2001, which were followed almost instantlvbv
proposal to establish the EAWand the agreement on the text. This Framew
Decision became the 'flagship' of the EU's mutual recognition policy-bu
was subsequently attacked on human rights grounds in the Court ofJustice>~
national courts.i'" The adoption offurther measures in this area was also enc
aged by the Hague Programme of2004, and its related Action Plan."
As for approximation oflegislation, there was no real development as regard
law ofevidence or suspects and defendants' rights. 32 However, victims'
and Criminal Law in the European Union: Has the Council Got it Wrong?', (2004) 41
at 7-10.
27 Direct enforcement means application of the foreign decision without
cedure in the executing Member State. Indirect enforcement means that SOme
(usually quite limited) by the executing State's authorities is necessary before the
executed there. 2B See
29 See the Communication on this issue (COM (2007) 693, 13 Nov 2(07).
30 See further 9.5.2 below.
31 [2005] OJ C 53/1 and [2005] OJ C 198/1. See also the Commission communication
recognition and harmonization of criminal law (COM (2005) 195, 19 May 2005; SEC
20 May 2005). n See
661Institutional framework and overview
)See 9.8.3 below. 34 See 12.6.1.1 below.
~5J2008] OJ L 350/60. See 12.6.4 below. 36 See generally ch 10 below.
37 Cases: C-l05/03 Pupino[2005] ECR 1-5285; C-467/05 Dell'Orto [2007] ECR 1-5557; C-404/07
tz [2008] ECR 1-7607; C-205/09 Eredics, pending (opinion ofl July 2010); and C-483/09 Gueye,
dingo On the substance of these cases, see 9.8.3 below.
38 Case C-303/05 Advocaten voor de Wereld [2007] ECR 1-3633. On the substance see 9.5.2
below.
"Cases: C-66/08 Koslowski [2008] ECR 1-6041; C-296/08 PPU Santesteban Goicoechea [2008]
R 1-6307; C-388/08 PPU Leymann and Pustovarov [2008] ECR 1-8993; C-123/08 Wolzenburg
009] ECR 1-9621; C-261/09Mantello, pending (opinion of7 Sep 2010); and C-306/09 lB, pending
pinion of 6 July 2010). On the substance, see ibid.
40 The Court ofJustice has not yet been asked whether an identical clause must be interpreted the
illeway in different mutual recognition instruments, although see the opinion in Mantello (ibid).
.2.2.3. Basic principles of mutual recognition in criminal law
lthough the various EU measures setting out the details of the principle of
utual recognition in criminal law differ in the detail, they have certain common
tures which it is useful to summarize at the outset." These features remain
evant following the entry into force of the Treaty ofLisbon, as the pre-Lisbon
easures will remain in force until replaced or amended, and since post-Lisbon
easures appear set to follow the template established by previously adopted
easures.
A frequent feature of the mutual recognition measures is that they replace or
plement the Council of Europe measures referred to above, whether those
ad.dressed in particular by both a third pillar measure on their position in criminal
rocedure and by an EC law (as it then was) measure on cornpensatiou."
Other relevant measures have included the development of the Schengen
formation System (S1S), in particular as regards the inclusion of further data
levant to prosecutions, access to the S1Sby judicial authorities, and the creation
second-generation SIS (S1S II), which will in particular include information
nEAWs.34
Also, the Framework Decision on personal data protection, adopted
ir12008, also applies to the judicial sector."
There is also a link between measures on substantive criminal law and abolition
of the dual criminality principle (the requirement that an (alleged) act must
mount to a criminal offence in both States concerned) in the EU's mutual
recognition measures, because the harmonization of substantive criminal law
reduces the differences between national rules which underlie the principle of
al crirninahtv.r"
Finally, the Court ofJustice had begun to play a significant role as regards
terpretation of measures in this area even before the Treaty of Lisbon entered
to force, receiving five references for interpretation ofthe Framework Decision
crime victims' rights;" a reference on the validity ofthe Framework Decision
the European Arrest Warrarit;" and six references on the interpretation of the
me Framework Decision;"
Criminal Law: Mutual Recognition and Criminal Procedure660
included a list oftwenty-four measures, ranked by priority, but without
concluding the programme as a whole or agreeing individual measures.
According to its introduction, the mutual recognition programme was
subject to a number of 'parameters': whether each measure should be
in scope or limited to specific crimes; whether the concept of double
ity (requiring the act in question to be a crime in both the requesting
requested State) should be dropped; 'mechanisms for safeguarding the
third parties, victims and suspects'; the need to define 'common minimum
ards' necessary to facilitate mutual recognition (for example, the cornpeter
of courts); whether enforcement is direct or indirect;" the grounds for
recognition (such as public policy and double jeopardy, and exclusion
fiscal, or political offences); and the existence of 'liability arrangements
event of acquittal'.
Before the entry into force ofthe Treaty ofLisbon, this programme was
mented by Framework Decisions on: a European Arrest Warrant (EAW), w
replaces extradition between Member States; freezing orders; the mutual recti
nition offinancial penalties; execution ofconfiscation orders (and related dom
tic law on confiscation); a European Evidence Warrant (following an earlier
Convention and Protocol on mutual assistance in criminal matters); the tran
of sentenced persons; probation and parole orders; pre-trial supervision ord'
recognition ofconvictions; the exchange ofcriminal records; and in absentiain
(trials held without the attendance of the accused)." However, the Commiss
decided against proposing EU legislation on witness protection.i"
The development ofEU policy in this area was clearly accelerated by thet
rorist attacks of 11 September 2001, which were followed almost instantlvbv
proposal to establish the EAWand the agreement on the text. This Framew
Decision became the 'flagship' of the EU's mutual recognition policy-bu
was subsequently attacked on human rights grounds in the Court ofJustice>~
national courts.i'" The adoption offurther measures in this area was also enc
aged by the Hague Programme of2004, and its related Action Plan."
As for approximation oflegislation, there was no real development as regard
law ofevidence or suspects and defendants' rights. 32 However, victims'
and Criminal Law in the European Union: Has the Council Got it Wrong?', (2004) 41
at 7-10.
27 Direct enforcement means application of the foreign decision without
cedure in the executing Member State. Indirect enforcement means that SOme
(usually quite limited) by the executing State's authorities is necessary before the
executed there. 2B See
29 See the Communication on this issue (COM (2007) 693, 13 Nov 2(07).
30 See further 9.5.2 below.
31 [2005] OJ C 53/1 and [2005] OJ C 198/1. See also the Commission communication
recognition and harmonization of criminal law (COM (2005) 195, 19 May 2005; SEC
20 May 2005). n See
663Institutional framework and overview
ofmutual recognition, the decision ofthe issuing State (comparable to the 'home
State' in free movement law) takes effect as such within the legal system of the
executing State (comparable to the 'host State' in free movement law), subject to
the remaining grounds for refusal to execute that decision. Therefore, the effect
of a mutual recognition system is that the executing State has in principle lost
some ofits sovereign power over the full control of the enforcement of criminal
decisions on its territory.
With some mutual recognition measures, there have been issues of material
scope (ie defining the concept ofcriminal proceedings) as well as, to some extent,
personal scope (ie limitations based on nationality and/or residence). The traditional
ground of refusal as regards criminal cooperation, dual criminality, has
been abolished in most cases for a standard list of thirty-two crimes, as defined
by the issuing State, subject to a three-year threshold of possible punishment (ie
the actual sentence which was imposed, or which is subsequently imposed in the
event ofa conviction, is not relevant for this purpose)." Other traditional grounds
pf refusal (political offences, military offences) have also been abolished, and
the traditional 'fiscal offence' ground for refusal is now limited by the standard
ualification that it cannot be applied merely because the two States in question
different taxes or duties.
As for human rights, there are standard clauses in the main text and the preto
the mutual recognition legislation," but almost all of these measures
the fundamental question as to whether Member States mayor must refuse
recogrnze other Member States' judgments or decisions on human rights
grounds-v-an issue discussed further below." Other remaining grounds for refusal
forms ofrestriction applying to most or all Framework Decisions (somesubject
to further exceptions or special procedural obligations) include:
territoriality (ie the possibility of refusing execution because the act concerned
place partly or wholly on the territory of the executing State);"? de minimis
(ie the amount ofa financial penalty, the length ofthe sentence which was or
be imposed, or the amount ofthe time ofcustodial sentence or supervision
still left to serve); double jeopardy or ne bis in idem, which raises questions
whether the general EU double jeopardy rules, including the provisions of
EU Charter of Rights, take precedence over the specific rules in the mutual
'recognition legislation;" the age of criminal responsibility; lapse of time (also
as statute-barring, ie the expiry of a time limit to begin and/or conclude
prosecution); lis pendens (ie proceedings for the same offence underway in the
this list ofcrimes, see Art 2(2) ofthe Framework Decision establishing the European Arrest
([2002] OJ L 190/1). 45 See 9.5-9.7 below, in particular the discussion in 9.5.2.
9.3.5 and 9.5.2. 47 On criminal jurisdiction generally, see 11.5 below.
On the general double jeopardy rules, and the case for giving priority to those rules over mutual
recognition measures, see 11.8 below.
Criminal Law: Mutual Recognition and Criminal Procedure662
measures have the full support of Member States or only limited support,
should be recalled that even those Council of Europe measures with wide su
port by Member States have restrictions on their scope and significant possibilit
for reservations, or provide only a general framework for cross-border crimin
law cooperation. So there is a clear perceived 'added value' to the EU's involve
ment, which principle provides for a far more intensive degree of cooperatio
In most cases, the EU mutual recognition measures 'replace' the 'correspondin
provisions of the relevant Council of Europe Conventions and prior EU meas
ures as between Member States, without specifying exactly which provisionsjo
the relevant Conventions are replaced. Most ofthe EU measures give a powert
Member States to retain existing bilateral or multilateral treaties, or to conch'!
new bilateral or multilateral treaties, which expand or enlarge on the EU mutu
recognition measures or simplify and facilitate the procedures for mutual reeo
nition, subject to an obligation to inform the Council and/or Commission abo
such measures. This begs the question as to when such criteria are met." A furth
underlying question is whether pursuant to such provisions, Member Statesc
reduce protections regarding human rights in order to facilitate the movem
ofjudgments and decisions between Member States."
During the Amsterdam era, mutual recognition measures always took thefo
ofFramework Decisions, while so far, all ofthe post-Lisbon proposals and agr
measures have taken the form ofDirectives. Their application by Member Sta:
has been reviewed by the Commission several years after the implementati
date. In a few cases, there have been time-limited derogations for a small nu
of Member States. Usually the mutual recognition measures apply regardle
when the underlying (alleged) criminal offence was committed, but in
Member States must or may limit the effect of the measures in time.
As for the substance, each ofthe mutual recognition measures sets out
gation to recognize another Member State's judgment or decision, with
grounds for a refusal to recognize such decisions. The measures refer to
ing' State and the 'executing' State, rather than the 'requesting' and ·~~~.. ~n.
State pursuant to Council ofEurope measures-demonstrating the
degree of obligation as compared to the latter measures, and the more
difference between the principle of mutual recognition in criminal
traditional judicial cooperation rules. Although, in the sphere
eration, the discretion of the requested State over whetherto assist the
State has been limited by successive treaties, a fundamental degree of
over whether to assist the requesting State remains." Conversely, in
41 See further 9.10 below. 42 See 9.3.5 and 9.5.2 below.
43 See A Weyembergh, 'La reconnaissance mutuelle des decisions judiciaires en
entre les Etats Membres de l'Union europeenne: mise en perspective' in G de Kerchove
A Weyembergh, eds, La reconnaissance mutuelle des decisionsjudiciaires penales dans
(Institut d'Etudes Europeennes, 2001), 25-63.
663Institutional framework and overview
ofmutual recognition, the decision ofthe issuing State (comparable to the 'home
State' in free movement law) takes effect as such within the legal system of the
executing State (comparable to the 'host State' in free movement law), subject to
the remaining grounds for refusal to execute that decision. Therefore, the effect
of a mutual recognition system is that the executing State has in principle lost
some ofits sovereign power over the full control of the enforcement of criminal
decisions on its territory.
With some mutual recognition measures, there have been issues of material
scope (ie defining the concept ofcriminal proceedings) as well as, to some extent,
personal scope (ie limitations based on nationality and/or residence). The traditional
ground of refusal as regards criminal cooperation, dual criminality, has
been abolished in most cases for a standard list of thirty-two crimes, as defined
by the issuing State, subject to a three-year threshold of possible punishment (ie
the actual sentence which was imposed, or which is subsequently imposed in the
event ofa conviction, is not relevant for this purpose)." Other traditional grounds
pf refusal (political offences, military offences) have also been abolished, and
the traditional 'fiscal offence' ground for refusal is now limited by the standard
ualification that it cannot be applied merely because the two States in question
different taxes or duties.
As for human rights, there are standard clauses in the main text and the preto
the mutual recognition legislation," but almost all of these measures
the fundamental question as to whether Member States mayor must refuse
recogrnze other Member States' judgments or decisions on human rights
grounds-v-an issue discussed further below." Other remaining grounds for refusal
forms ofrestriction applying to most or all Framework Decisions (somesubject
to further exceptions or special procedural obligations) include:
territoriality (ie the possibility of refusing execution because the act concerned
place partly or wholly on the territory of the executing State);"? de minimis
(ie the amount ofa financial penalty, the length ofthe sentence which was or
be imposed, or the amount ofthe time ofcustodial sentence or supervision
still left to serve); double jeopardy or ne bis in idem, which raises questions
whether the general EU double jeopardy rules, including the provisions of
EU Charter of Rights, take precedence over the specific rules in the mutual
'recognition legislation;" the age of criminal responsibility; lapse of time (also
as statute-barring, ie the expiry of a time limit to begin and/or conclude
prosecution); lis pendens (ie proceedings for the same offence underway in the
this list ofcrimes, see Art 2(2) ofthe Framework Decision establishing the European Arrest
([2002] OJ L 190/1). 45 See 9.5-9.7 below, in particular the discussion in 9.5.2.
9.3.5 and 9.5.2. 47 On criminal jurisdiction generally, see 11.5 below.
On the general double jeopardy rules, and the case for giving priority to those rules over mutual
recognition measures, see 11.8 below.
Criminal Law: Mutual Recognition and Criminal Procedure662
measures have the full support of Member States or only limited support,
should be recalled that even those Council of Europe measures with wide su
port by Member States have restrictions on their scope and significant possibilit
for reservations, or provide only a general framework for cross-border crimin
law cooperation. So there is a clear perceived 'added value' to the EU's involve
ment, which principle provides for a far more intensive degree of cooperatio
In most cases, the EU mutual recognition measures 'replace' the 'correspondin
provisions of the relevant Council of Europe Conventions and prior EU meas
ures as between Member States, without specifying exactly which provisionsjo
the relevant Conventions are replaced. Most ofthe EU measures give a powert
Member States to retain existing bilateral or multilateral treaties, or to conch'!
new bilateral or multilateral treaties, which expand or enlarge on the EU mutu
recognition measures or simplify and facilitate the procedures for mutual reeo
nition, subject to an obligation to inform the Council and/or Commission abo
such measures. This begs the question as to when such criteria are met." A furth
underlying question is whether pursuant to such provisions, Member Statesc
reduce protections regarding human rights in order to facilitate the movem
ofjudgments and decisions between Member States."
During the Amsterdam era, mutual recognition measures always took thefo
ofFramework Decisions, while so far, all ofthe post-Lisbon proposals and agr
measures have taken the form ofDirectives. Their application by Member Sta:
has been reviewed by the Commission several years after the implementati
date. In a few cases, there have been time-limited derogations for a small nu
of Member States. Usually the mutual recognition measures apply regardle
when the underlying (alleged) criminal offence was committed, but in
Member States must or may limit the effect of the measures in time.
As for the substance, each ofthe mutual recognition measures sets out
gation to recognize another Member State's judgment or decision, with
grounds for a refusal to recognize such decisions. The measures refer to
ing' State and the 'executing' State, rather than the 'requesting' and ·~~~.. ~n.
State pursuant to Council ofEurope measures-demonstrating the
degree of obligation as compared to the latter measures, and the more
difference between the principle of mutual recognition in criminal
traditional judicial cooperation rules. Although, in the sphere
eration, the discretion of the requested State over whetherto assist the
State has been limited by successive treaties, a fundamental degree of
over whether to assist the requesting State remains." Conversely, in
41 See further 9.10 below. 42 See 9.3.5 and 9.5.2 below.
43 See A Weyembergh, 'La reconnaissance mutuelle des decisions judiciaires en
entre les Etats Membres de l'Union europeenne: mise en perspective' in G de Kerchove
A Weyembergh, eds, La reconnaissance mutuelle des decisionsjudiciaires penales dans
(Institut d'Etudes Europeennes, 2001), 25-63.
9.2.3. Treaty of Lisbon
49 On the coordination of multiple prosecutions, see 11.6 below.
so On the standard in absentia exception, see 9.3.5 and 9.5.2 below.
665Institutional framework and overview
83(3) TFEU; see 10.2.3 below. 52 See 2.2.3.4.1 above. 53 See 9.2.4 below.
11.6-11.8. On jurisdiction over offences as such, see 11.5.
11.9 and 11.10. On the question of competing legal bases which might result, see 9.2.4
accordance with the ordinary legislative procedure, establish minimum rules. Such
shall take into account the differences between the legal traditions and systems of
Member States.
They shall concern:
(a) mutual admissibility of evidence between Member States;
the rights ofindividuals in criminal procedure;
the rights ofvictims ofcrime;
any other specific aspects of criminal procedure which the Council has identified
in advance by a decision; for the adoption ofsuch a decision, the Council shall act
unanimously after obtaining the consent of the European Parliament.
i).clop,tlClU of the minimum rules referred to in this paragraph shall not prevent Member
from maintaining or introducing a higher level of protection for individuals.
Treaty of Lisbon made a fundamental change to the decision-making in
area, applying the 'ordinary legislative procedure' (qualified majority voting
in Council and joint powers for the EP) in place ofthe prior rule ofunain
Council with consultation ofthe EP. However, Article 82(3) TFEU sets
a special 'emergency brake' rule, allowing a Member State to halt discussions
a measure proposed pursuant to Article 82(2) (but not Article 82(1)) 'would
fundamental aspects ofits criminal justice system'. This special procedure,
also applies to the adoption ofsubstantive criminal law measures,51 is disin
detail in Chapter 2.52
However, the application of this rule to Article
but not to Article 82(1), makes it necessary to distinguish between these
legal bases.P The power to adopt measures concerning the prevention and
settlement of conflicts ofjurisdiction (Article 82(1)(b)) is discussed in Chapter 11.54
Criminal procedure issues might also result from measures adopted regarding
Eurojust and the European Public Prosecutor (Articles 85 and 86 TFEU); such
are also discussed in Chapter 11.55
to the previous Treaty provisions, Article 82 TFEU includes a
eference to the principle of mutual recognition, which must include approxiof
law. The Treaty retains a reference to facilitating (but not accelerating)
cQoper:atlon between judicial or equivalent authorities (but not also ministries).
However, the specific reference to facilitating extradition was dropped. There is
reference to ensuring mutual recognition instead, along with a further
reference to judicial training. The previous power regarding ensuring
ofnational law was replaced by Article 82(2) TFEU Although the
reference to the basic principle ofmutual recognition is new as compared
previous Treaty rules, this principle had already been used as the basic
princrple governing the adoption of criminal law legislation within the previous
Criminal Law: Mutual Recognition and Criminal Procedure664
The relevant provision ofthe Treaties following the entry into force
ofLisbon is Article 82 of the Treaty on the Functioning of the European
(TFEU):
executing State);" immunity; amnesty or pardon-although sometimes
question ofapplicable law; in absentia trials, although the rules on this issue
relevant legislation have been harrnonized>'' and the rule ofspecialty (ie
on prosecuting a person for an offence other than that which motivated the
nal mutual recognition decision).
The mutual recognition legislation also includes technical rules on proCeS5'111.~
applications, costs, and languages, as well as the use ofstandard forms. Decision
or judgments are issued through judges or prosecutors, not ministries
Council of Europe measures. There are generally strict time limits to
with (or refuse) the issuing State's decisions, as well as rules on applicable
cedural law issues (ie determining when the power to take further decisions
transferred to the executing State, and when it is retained or transferred
the issuing State).
Finally, an obvious distinction between the Council of Europe legal
work and the EU legal framework is the jurisdiction of the Court
interpret the relevant EU measures, and thereby to ensure a greater
uniform interpretation.
1. Judicial cooperation in criminal matters in the Union shall be based on the
of mutual recognition ofjudgments and judicial decisions and shall include the
mation of the laws and regulations ofthe Member States in the areas referred to
graph 2 and in Article 83.
The European Parliament and the Council, acting in accordance with the
legislative procedure, shall adopt measures to:
(a) lay down rules and procedures for ensuring recognition throughout the
all forms ofjudgments and judicial decisions;
(b) prevent and settle conflicts ofjurisdiction between Member States;
(c) support the training of the judiciary and judicial staff;
(d) facilitate cooperation between judicial or equivalent authorities of
States in relation to proceedings in criminal matters and the enforcement
decisions.
2. To the extent necessary to facilitate mutual recognition of judgments and
decisions and police and judicial cooperation in criminal matters having a cross-bore
dimension, the European Parliament and the Council may, by means of directives
9.2.3. Treaty of Lisbon
49 On the coordination of multiple prosecutions, see 11.6 below.
so On the standard in absentia exception, see 9.3.5 and 9.5.2 below.
665Institutional framework and overview
83(3) TFEU; see 10.2.3 below. 52 See 2.2.3.4.1 above. 53 See 9.2.4 below.
11.6-11.8. On jurisdiction over offences as such, see 11.5.
11.9 and 11.10. On the question of competing legal bases which might result, see 9.2.4
accordance with the ordinary legislative procedure, establish minimum rules. Such
shall take into account the differences between the legal traditions and systems of
Member States.
They shall concern:
(a) mutual admissibility of evidence between Member States;
the rights ofindividuals in criminal procedure;
the rights ofvictims ofcrime;
any other specific aspects of criminal procedure which the Council has identified
in advance by a decision; for the adoption ofsuch a decision, the Council shall act
unanimously after obtaining the consent of the European Parliament.
i).clop,tlClU of the minimum rules referred to in this paragraph shall not prevent Member
from maintaining or introducing a higher level of protection for individuals.
Treaty of Lisbon made a fundamental change to the decision-making in
area, applying the 'ordinary legislative procedure' (qualified majority voting
in Council and joint powers for the EP) in place ofthe prior rule ofunain
Council with consultation ofthe EP. However, Article 82(3) TFEU sets
a special 'emergency brake' rule, allowing a Member State to halt discussions
a measure proposed pursuant to Article 82(2) (but not Article 82(1)) 'would
fundamental aspects ofits criminal justice system'. This special procedure,
also applies to the adoption ofsubstantive criminal law measures,51 is disin
detail in Chapter 2.52
However, the application of this rule to Article
but not to Article 82(1), makes it necessary to distinguish between these
legal bases.P The power to adopt measures concerning the prevention and
settlement of conflicts ofjurisdiction (Article 82(1)(b)) is discussed in Chapter 11.54
Criminal procedure issues might also result from measures adopted regarding
Eurojust and the European Public Prosecutor (Articles 85 and 86 TFEU); such
are also discussed in Chapter 11.55
to the previous Treaty provisions, Article 82 TFEU includes a
eference to the principle of mutual recognition, which must include approxiof
law. The Treaty retains a reference to facilitating (but not accelerating)
cQoper:atlon between judicial or equivalent authorities (but not also ministries).
However, the specific reference to facilitating extradition was dropped. There is
reference to ensuring mutual recognition instead, along with a further
reference to judicial training. The previous power regarding ensuring
ofnational law was replaced by Article 82(2) TFEU Although the
reference to the basic principle ofmutual recognition is new as compared
previous Treaty rules, this principle had already been used as the basic
princrple governing the adoption of criminal law legislation within the previous
Criminal Law: Mutual Recognition and Criminal Procedure664
The relevant provision ofthe Treaties following the entry into force
ofLisbon is Article 82 of the Treaty on the Functioning of the European
(TFEU):
executing State);" immunity; amnesty or pardon-although sometimes
question ofapplicable law; in absentia trials, although the rules on this issue
relevant legislation have been harrnonized>'' and the rule ofspecialty (ie
on prosecuting a person for an offence other than that which motivated the
nal mutual recognition decision).
The mutual recognition legislation also includes technical rules on proCeS5'111.~
applications, costs, and languages, as well as the use ofstandard forms. Decision
or judgments are issued through judges or prosecutors, not ministries
Council of Europe measures. There are generally strict time limits to
with (or refuse) the issuing State's decisions, as well as rules on applicable
cedural law issues (ie determining when the power to take further decisions
transferred to the executing State, and when it is retained or transferred
the issuing State).
Finally, an obvious distinction between the Council of Europe legal
work and the EU legal framework is the jurisdiction of the Court
interpret the relevant EU measures, and thereby to ensure a greater
uniform interpretation.
1. Judicial cooperation in criminal matters in the Union shall be based on the
of mutual recognition ofjudgments and judicial decisions and shall include the
mation of the laws and regulations ofthe Member States in the areas referred to
graph 2 and in Article 83.
The European Parliament and the Council, acting in accordance with the
legislative procedure, shall adopt measures to:
(a) lay down rules and procedures for ensuring recognition throughout the
all forms ofjudgments and judicial decisions;
(b) prevent and settle conflicts ofjurisdiction between Member States;
(c) support the training of the judiciary and judicial staff;
(d) facilitate cooperation between judicial or equivalent authorities of
States in relation to proceedings in criminal matters and the enforcement
decisions.
2. To the extent necessary to facilitate mutual recognition of judgments and
decisions and police and judicial cooperation in criminal matters having a cross-bore
dimension, the European Parliament and the Council may, by means of directives
667Institutional framework and overview
Competence issues
(2010] OJ C 115/1 and COM (2010) 171,20 Apr 2010; see also the 'roadmap' on suspects' rights
09] OJ C 295/1). See further the summaries offuture plans in 9.6-9.10 below.
'.See similarly the discussion of competence in 10.2.4 below.
°This interpretation is confirmed by the Opinions in Cases C-I05/03 Pupino (2005] ECR
;285 (paras 48-52) and C-303/05 Advocaten voor de Wereld (2007] ECR 1-3633 (note 21). See also
eOpinion in Case C-467/05 Dell'Orto (2007] ECR 1-5557, paras 36-37. For a different view, see
Mitsilegas, 'Trust-Building Measures in the EuropeanJudicial Area in Criminal Matters: Issues of
ompetence, Legitimacy and Institutional Balance', in T Balzacq and S Carrera, eds, Security versus
dam? A Challenge for Europe's Future (Ashgate, 2006), 282, who asserts that the previous TEU
no competence to adopt measures on criminal procedure.
discussion here on this point is adapted from S Peers, 'EU Criminal Law and the Treaty
(2008) 33 ELRev (2008) 507 at 510-514.
Furthermore, Art 82(2) requires the use ofDirectives, whereas Art 82(1) does not.
case law on dual legal bases, see 3.2.4 above.
treezmg and confiscation of assets), recognition of financial penalties, mutual
admissibility of evidence, the rights of criminal suspects, and victims' rights."
the entry into force of the Treaty of Lisbon, there was a dispute as to
w!JletJJ.er the EU could harmonize domestic criminal procedural law, in particular
Article 31(1)(a)-(d) of the previous TEU referred essentially to crossmatters,
with only Article 31(1)(c) referring to powers to 'ensur[e] cornpatin
rules applicable in the Member States, as may be necessary to improve
cooperation'. This issue remains relevant after the entry into force of the
of Lisbon, as long as there are still pre-existing measures in force whose
"01;...1;,." could still be called into question. On this point, the opening words of
~ previous Article 31(1) TEU provided that '[c]ommon action onjudicial cooption
in criminal matters shall include'the following list ofmeasures, indicating
arly that this list was non-exhaustive."? In any event, a broad interpretation of
ticle 31(1)(c) could be envisaged, in particular since the harmonization oflaw
procedural protection for suspects could in fact have facilitated national courts'
illingness to cooperate with foreign courts."
As for competence issues following the entry into force ofthe Treaty ofLisbon,
~.:basic issues arising are the extent of the competence conferred by Article 82
:ppU as such, including the distinction between Article 82(1) and (2),71 and the
tinction between Article 82 and the rest of the JHA provisions. These issues
be examined in turn.
:pirst of all, it is necessary to distinguish Article 82(1) and (2) TFEU, on the
that one paragraph is subject to the emergency brake and the other is
It would certainly be necessary to draw this distinction if a duallegal basis
paragraphs would be considered incompatible due to this difference in
ecision-making." However, since the emergency brake is not applicable every
Criminal Law: Mutual Recognition and Criminal Procedure
third pillar legal framework." The specific requirement that judicial cooperatioi
'shall include' approximation of procedural and substantive law indicates
that the EU cannot limit itself to adopting mutual recognition measures.
In the first nine months after the entry into force of the Treaty of
there were five proposals or initiatives in this area: two competing proposals
concerning interpretation and translation rights for criminal suspects
ofwhich has been agreed between the Council and EP);57a proposal to
a European protection order.l" a proposal to establish a European Investigatio
Order.i" and a proposal on the right to information for criminal suspects.
substantive criminal law proposals (one ofthem agreed within the C()U1J.CI.l)
include a dual legal base relating to procedural law." So far, the 'emergcncybr,
has not been pulled. The Commission also suggested the conclusion
ties in this field that had been signed, but not concluded, before the entry
force of the Treaty ofLisbon.62
This area is subject to the enhanced jurisdiction of the Court
measures adopted after the Treaty of Lisbon; this jurisdiction will also
pre-existing measures after the end of a five-year transitional period (so
1 December 2014) and to any pre-existing measures which are amended
this transitional period;" In the first few months after the entry into
the Treaty of Lisbon, there were three references to the Court ofJustice
area."
The revised rules on opt-outs from JHA matters also apply to this
do the general provisions ofTitle V ofPart Three ofthe TFEU, in particular
provision that the Union JHA policy must have 'respect for tundamental
and the different legal systems and traditions of the Member States',"
power to adopt measures concerning cooperation between the administratic
of Member States."
For the future, the Stockholm programme and the action plan concerning
implementation provide inter alia for measures on the proceeds ofcrime (acldl'es:~~
56 See 9.2.2 above.
57 (2010] OJ C 69/1 and COM (2010) 82, 9 Mar 2010. See 9.8.2 below.
58 (2010] OJ C 69/5. See 9.7.6 below. 59 (2010] OJ C 165/22. See 9.6.1.3 below.
60 COM (2010) 392, 20 July 2010. See 9.8.2 below.
61 COM (2010) 94 and 95, 29 Mar 2010, concerning sexual offences against children
ficking in persons. On the legal base issues, see 9.2.4 below. For the Council's agreement
latter proposal, see Council doe 10845/10, 10 June 2010; the Council must still agree
on this proposal. 62 See
63 On these transitional rules, see 2.2.3.3 above. The proposal for a European InvestigationC
(n 59 above) would repeal one pre-existing measure and replace the corresponding
several others.
64 Cases: C-l/I0 Salmeron Sanchez, pending, on the interpretation of the Framework
on standing of victims; C-I05/10 PPU Gataev, withdrawn, concerning the interpretation
Framework Decision on the European Arrest Warrant; and C-264/10 Kita, pending, on
issue. 65 See
66 Art 67(1) TFED. 67 Art 74 TFED. On the general provisions, see 2.2.3.2
666
667Institutional framework and overview
Competence issues
(2010] OJ C 115/1 and COM (2010) 171,20 Apr 2010; see also the 'roadmap' on suspects' rights
09] OJ C 295/1). See further the summaries offuture plans in 9.6-9.10 below.
'.See similarly the discussion of competence in 10.2.4 below.
°This interpretation is confirmed by the Opinions in Cases C-I05/03 Pupino (2005] ECR
;285 (paras 48-52) and C-303/05 Advocaten voor de Wereld (2007] ECR 1-3633 (note 21). See also
eOpinion in Case C-467/05 Dell'Orto (2007] ECR 1-5557, paras 36-37. For a different view, see
Mitsilegas, 'Trust-Building Measures in the EuropeanJudicial Area in Criminal Matters: Issues of
ompetence, Legitimacy and Institutional Balance', in T Balzacq and S Carrera, eds, Security versus
dam? A Challenge for Europe's Future (Ashgate, 2006), 282, who asserts that the previous TEU
no competence to adopt measures on criminal procedure.
discussion here on this point is adapted from S Peers, 'EU Criminal Law and the Treaty
(2008) 33 ELRev (2008) 507 at 510-514.
Furthermore, Art 82(2) requires the use ofDirectives, whereas Art 82(1) does not.
case law on dual legal bases, see 3.2.4 above.
treezmg and confiscation of assets), recognition of financial penalties, mutual
admissibility of evidence, the rights of criminal suspects, and victims' rights."
the entry into force of the Treaty of Lisbon, there was a dispute as to
w!JletJJ.er the EU could harmonize domestic criminal procedural law, in particular
Article 31(1)(a)-(d) of the previous TEU referred essentially to crossmatters,
with only Article 31(1)(c) referring to powers to 'ensur[e] cornpatin
rules applicable in the Member States, as may be necessary to improve
cooperation'. This issue remains relevant after the entry into force of the
of Lisbon, as long as there are still pre-existing measures in force whose
"01;...1;,." could still be called into question. On this point, the opening words of
~ previous Article 31(1) TEU provided that '[c]ommon action onjudicial cooption
in criminal matters shall include'the following list ofmeasures, indicating
arly that this list was non-exhaustive."? In any event, a broad interpretation of
ticle 31(1)(c) could be envisaged, in particular since the harmonization oflaw
procedural protection for suspects could in fact have facilitated national courts'
illingness to cooperate with foreign courts."
As for competence issues following the entry into force ofthe Treaty ofLisbon,
~.:basic issues arising are the extent of the competence conferred by Article 82
:ppU as such, including the distinction between Article 82(1) and (2),71 and the
tinction between Article 82 and the rest of the JHA provisions. These issues
be examined in turn.
:pirst of all, it is necessary to distinguish Article 82(1) and (2) TFEU, on the
that one paragraph is subject to the emergency brake and the other is
It would certainly be necessary to draw this distinction if a duallegal basis
paragraphs would be considered incompatible due to this difference in
ecision-making." However, since the emergency brake is not applicable every
Criminal Law: Mutual Recognition and Criminal Procedure
third pillar legal framework." The specific requirement that judicial cooperatioi
'shall include' approximation of procedural and substantive law indicates
that the EU cannot limit itself to adopting mutual recognition measures.
In the first nine months after the entry into force of the Treaty of
there were five proposals or initiatives in this area: two competing proposals
concerning interpretation and translation rights for criminal suspects
ofwhich has been agreed between the Council and EP);57a proposal to
a European protection order.l" a proposal to establish a European Investigatio
Order.i" and a proposal on the right to information for criminal suspects.
substantive criminal law proposals (one ofthem agreed within the C()U1J.CI.l)
include a dual legal base relating to procedural law." So far, the 'emergcncybr,
has not been pulled. The Commission also suggested the conclusion
ties in this field that had been signed, but not concluded, before the entry
force of the Treaty ofLisbon.62
This area is subject to the enhanced jurisdiction of the Court
measures adopted after the Treaty of Lisbon; this jurisdiction will also
pre-existing measures after the end of a five-year transitional period (so
1 December 2014) and to any pre-existing measures which are amended
this transitional period;" In the first few months after the entry into
the Treaty of Lisbon, there were three references to the Court ofJustice
area."
The revised rules on opt-outs from JHA matters also apply to this
do the general provisions ofTitle V ofPart Three ofthe TFEU, in particular
provision that the Union JHA policy must have 'respect for tundamental
and the different legal systems and traditions of the Member States',"
power to adopt measures concerning cooperation between the administratic
of Member States."
For the future, the Stockholm programme and the action plan concerning
implementation provide inter alia for measures on the proceeds ofcrime (acldl'es:~~
56 See 9.2.2 above.
57 (2010] OJ C 69/1 and COM (2010) 82, 9 Mar 2010. See 9.8.2 below.
58 (2010] OJ C 69/5. See 9.7.6 below. 59 (2010] OJ C 165/22. See 9.6.1.3 below.
60 COM (2010) 392, 20 July 2010. See 9.8.2 below.
61 COM (2010) 94 and 95, 29 Mar 2010, concerning sexual offences against children
ficking in persons. On the legal base issues, see 9.2.4 below. For the Council's agreement
latter proposal, see Council doe 10845/10, 10 June 2010; the Council must still agree
on this proposal. 62 See
63 On these transitional rules, see 2.2.3.3 above. The proposal for a European InvestigationC
(n 59 above) would repeal one pre-existing measure and replace the corresponding
several others.
64 Cases: C-l/I0 Salmeron Sanchez, pending, on the interpretation of the Framework
on standing of victims; C-I05/10 PPU Gataev, withdrawn, concerning the interpretation
Framework Decision on the European Arrest Warrant; and C-264/10 Kita, pending, on
issue. 65 See
66 Art 67(1) TFED. 67 Art 74 TFED. On the general provisions, see 2.2.3.2
666
669Institutional framework and overview
On these measures, see 9.2.2 above.
The EAW Framework Decision also had a legal base ofArt 31(1)(b) TEU, while the Framework
on recognition ofprobation and parole orders, and on recognition ofpre-trial orders also
base ofArt 31(1)(c)TEU. Moreover, the Framework Decisions on the EEW, the recogniconvictions
and criminal records were based generally on Art 31.
See, for instance, Cases C-187/01 and 385/01 Gozutok and Brugge [2003] ECR 1-1345, para 33.
latter appears to overlap with the former (since it also concerns 'facilitation' of,
inter alia, 'judicial cooperation'). Otherwise the specific safeguards in Article
82(2) could be circumvented.
Applying these principles, Article 82(1) would be a sufficient legal base for
adopting measures such as the Framework Decisions on the EAW; freezing
orders; the mutual recognition offinancial penalties and confiscation orders; the
European Evidence Warrant (EEW); the transfer ofprisoners; the mutual recognition
of criminal sentences; prior convictions and probation/parole and pre-trial
orders; mutual assistance and the transfer of information relating to criminal
records, as long as the relevant proceedings take place in ajudicial context. All of
the legislation adopted on these issues before the entry into force ofthe Treaty of
Lisbon was adopted on the basis ofthe previous Article 31(1)(a) TEU,78 which was
interpreted to encompass mutual recognition as a form of cooperation between
administrations, although several measures were additionally adopted on the
basis of other provisions of Article 31(1) TEU79 Article 82 TFEU provides for
two separate powers for mutual recognition on the one hand, and cooperation
between judicial authorities on the other.
In particular, it should be observed that the prior measures on the EEW and
mutual assistance rules do not concern the admissibility ofevidence (an issue which
falls within the scope ofArticle 82(2)(a) TFEU), but rather the transfer ofevidence
between Member States, an issue within the scope ofArticle 82(1). Furthermore,
a. measure amending the Schengen double jeopardy rules would not concern the
rights of suspects as such (Article 82(2)(b)), but rather fall within the scope of
rticle 82(1), since such a measure would concern mutual recognition (according
othe Court ofJustice),80 and possibly also conflicts ofjurisdiction.
As for Article 82(2) in particular, the adoption ofmeasures on domestic crimiprocedure
has to be 'necessary' to 'facilitate mutual recognition and police
and [criminal law] cooperation', which has to have a 'cross-border dimension'.
Only 'minimum rules' can be adopted, and these rules have to 'take into account'
national legal differences. In light ofArticle 82(2)(d), this list ofpowers (unlike the
.• t of powers in the prior Article 31(1) TEU) must necessarily be exhaustive.
First of all, the concept of 'minimum' rules is implicitly further defined in
third sub-paragraph ofArticle 82(2), which provides that Member States are
to introduce or maintain higher standards for individuals. This proviso must
that Member States are free to provide for higher standards ofprotection for
and victims than the EU measures provide for, but not lower standards.
Criminal Law: Mutual Recognition and Criminal Procedure
74 The requirement to 'respect' different national legal systems (set out in Art
to Art 82(1), but this is arguably a subtly different obligation than the requirement
systems into account, as set out in Art 82(2). See the discussion ofthis point
75 Art 83 TFEU. See 10.2.3 and 10.2.4 below.
76 See, by analogy, the special rules regarding recognition ofUKjudgments
maintenance proceedings ([2009] OJ L 7/1), discussed in 8.2.5 above. 77
time that Article 82(2) TFEU is used to adopt measures, but will only
the exceptional cases where a Member State pulls the brake, then it
possible to combine the two provisions. On the other hand, it is certainly
sary to distinguish between the two legal bases on the grounds that Article
is subject to a number of specific requirements ('necessary to facilitate',
a cross-border dimension' and 'tak[ing] into account' different national
traditions) which do not apply to Article 82(1).74 In the event of a dual
being used, an emergency brake could only be pulled as regards those
a proposal that fall within the scope ofArticle 82(2), and so 'fast-track'
cooperation could only apply to part ofthe relevant proposal. The remaining'pn
visions could still be adopted separately, and would therefore apply to all
States. But it is possible that many Member States (and/or the EP) would
to adopt a mutual recognition measure, for example, unless all the MemberSta
which would be bound by that measure were also bound by a parallel
harmonizing procedural law (or substantive criminal law, where the emerger
brake also applies)." A reasonable compromise would be to provide in
recognition measure for broader grounds for refusal to execute decisions
authorities of the Member State(s) which were not participating in to
lel measure." The same compromise could also be used to address
the UK or Ireland opted into a mutual recognition measure, but out
measure.
It is surprising to see that Member States were willing to accept the
of mutual recognition measures without a veto or at least an emergency
given the national constitutional disputes concerning the adoption
In light of those disputes, which reflected legitimate national concerns,
have been preferable to allow for an emergency brake here as well.
applying an emergency brake to both paragraphs would have avoided
to distinguish between them.
Having said that, how should Article 82(1) and (2) TFEU be distinguIsp
First of all, Article 82(1) concerns (inter alia) mutual recognition
whereas Article 82(2) concerns procedural harmonization in order
(inter alia) mutual recognition. Similarly, Article 82(2) cannot
concerning training, since Article 82(1) is a lex specialis for these
power in Article 82(1)(d) to 'facilitate cooperation' as regards crimmal
ings and enforcement ofdecisions, it cannot extend to the substance
procedural laws which fall within the scope of Article 82(2),
668
669Institutional framework and overview
On these measures, see 9.2.2 above.
The EAW Framework Decision also had a legal base ofArt 31(1)(b) TEU, while the Framework
on recognition ofprobation and parole orders, and on recognition ofpre-trial orders also
base ofArt 31(1)(c)TEU. Moreover, the Framework Decisions on the EEW, the recogniconvictions
and criminal records were based generally on Art 31.
See, for instance, Cases C-187/01 and 385/01 Gozutok and Brugge [2003] ECR 1-1345, para 33.
latter appears to overlap with the former (since it also concerns 'facilitation' of,
inter alia, 'judicial cooperation'). Otherwise the specific safeguards in Article
82(2) could be circumvented.
Applying these principles, Article 82(1) would be a sufficient legal base for
adopting measures such as the Framework Decisions on the EAW; freezing
orders; the mutual recognition offinancial penalties and confiscation orders; the
European Evidence Warrant (EEW); the transfer ofprisoners; the mutual recognition
of criminal sentences; prior convictions and probation/parole and pre-trial
orders; mutual assistance and the transfer of information relating to criminal
records, as long as the relevant proceedings take place in ajudicial context. All of
the legislation adopted on these issues before the entry into force ofthe Treaty of
Lisbon was adopted on the basis ofthe previous Article 31(1)(a) TEU,78 which was
interpreted to encompass mutual recognition as a form of cooperation between
administrations, although several measures were additionally adopted on the
basis of other provisions of Article 31(1) TEU79 Article 82 TFEU provides for
two separate powers for mutual recognition on the one hand, and cooperation
between judicial authorities on the other.
In particular, it should be observed that the prior measures on the EEW and
mutual assistance rules do not concern the admissibility ofevidence (an issue which
falls within the scope ofArticle 82(2)(a) TFEU), but rather the transfer ofevidence
between Member States, an issue within the scope ofArticle 82(1). Furthermore,
a. measure amending the Schengen double jeopardy rules would not concern the
rights of suspects as such (Article 82(2)(b)), but rather fall within the scope of
rticle 82(1), since such a measure would concern mutual recognition (according
othe Court ofJustice),80 and possibly also conflicts ofjurisdiction.
As for Article 82(2) in particular, the adoption ofmeasures on domestic crimiprocedure
has to be 'necessary' to 'facilitate mutual recognition and police
and [criminal law] cooperation', which has to have a 'cross-border dimension'.
Only 'minimum rules' can be adopted, and these rules have to 'take into account'
national legal differences. In light ofArticle 82(2)(d), this list ofpowers (unlike the
.• t of powers in the prior Article 31(1) TEU) must necessarily be exhaustive.
First of all, the concept of 'minimum' rules is implicitly further defined in
third sub-paragraph ofArticle 82(2), which provides that Member States are
to introduce or maintain higher standards for individuals. This proviso must
that Member States are free to provide for higher standards ofprotection for
and victims than the EU measures provide for, but not lower standards.
Criminal Law: Mutual Recognition and Criminal Procedure
74 The requirement to 'respect' different national legal systems (set out in Art
to Art 82(1), but this is arguably a subtly different obligation than the requirement
systems into account, as set out in Art 82(2). See the discussion ofthis point
75 Art 83 TFEU. See 10.2.3 and 10.2.4 below.
76 See, by analogy, the special rules regarding recognition ofUKjudgments
maintenance proceedings ([2009] OJ L 7/1), discussed in 8.2.5 above. 77
time that Article 82(2) TFEU is used to adopt measures, but will only
the exceptional cases where a Member State pulls the brake, then it
possible to combine the two provisions. On the other hand, it is certainly
sary to distinguish between the two legal bases on the grounds that Article
is subject to a number of specific requirements ('necessary to facilitate',
a cross-border dimension' and 'tak[ing] into account' different national
traditions) which do not apply to Article 82(1).74 In the event of a dual
being used, an emergency brake could only be pulled as regards those
a proposal that fall within the scope ofArticle 82(2), and so 'fast-track'
cooperation could only apply to part ofthe relevant proposal. The remaining'pn
visions could still be adopted separately, and would therefore apply to all
States. But it is possible that many Member States (and/or the EP) would
to adopt a mutual recognition measure, for example, unless all the MemberSta
which would be bound by that measure were also bound by a parallel
harmonizing procedural law (or substantive criminal law, where the emerger
brake also applies)." A reasonable compromise would be to provide in
recognition measure for broader grounds for refusal to execute decisions
authorities of the Member State(s) which were not participating in to
lel measure." The same compromise could also be used to address
the UK or Ireland opted into a mutual recognition measure, but out
measure.
It is surprising to see that Member States were willing to accept the
of mutual recognition measures without a veto or at least an emergency
given the national constitutional disputes concerning the adoption
In light of those disputes, which reflected legitimate national concerns,
have been preferable to allow for an emergency brake here as well.
applying an emergency brake to both paragraphs would have avoided
to distinguish between them.
Having said that, how should Article 82(1) and (2) TFEU be distinguIsp
First of all, Article 82(1) concerns (inter alia) mutual recognition
whereas Article 82(2) concerns procedural harmonization in order
(inter alia) mutual recognition. Similarly, Article 82(2) cannot
concerning training, since Article 82(1) is a lex specialis for these
power in Article 82(1)(d) to 'facilitate cooperation' as regards crimmal
ings and enforcement ofdecisions, it cannot extend to the substance
procedural laws which fall within the scope of Article 82(2),
668
671Institutional framework and overview
For instance, the provisions on victims' rights in the proposed Directives harmonizing the
'substantive law relating to trafficking in persons and offences against children: CaM (2010) 95 and
29 Mar 2010.
See particularly the tobacco advertising case law: Cases C-376/98 Germany v EP and Council
ECR 1-8419 and C-380/03 Germany v EP and Council [2006] ECR 1-11573.
See 9.3.5 and 9.5.2.
Dir 2004/80 ([2004] OJ L 261/15), based on the prior Art 308 EC. On the substance of this
see 9.8.3 below.
Art 308 EC became Art 352 TFEU after the entry into force of the Treaty ofLisbon.
Furthermore, Art 83(2) will in some cases require unanimous voting. See further 10.2.4
has set as regards the comparable general power to harmonize law for the purposes
offacilitating the internal market." Ofcourse, it also assumes that Member States
would otherwise have the power or even the obligation to refuse to recognize
other Member States' criminal law decisions on human rights grounds, an issue
examined further below." More generally, it must be kept in mind that measures
adopted pursuant to Article 82(2) are expressly not limited to those necessary to
facilitate mutual recognition, but can facilitate police and criminal law cooperation
ore generally.
Finally, there are questions regarding the scope ofthe individual provisions of
82(2). In the absence of any specific limit, the power to regulate suspects'
conferred by Article 82(2)(b) applies to any aspect ofthe right to a fair trial
than the double jeopardy rule, as noted above), provided that the general
on the powers conferred by Article 82(2) are complied with. As for victims'
Article 82(2)(c) does not apply to the harmonization of rules concerning
compensation of crime victims, which was the subject of a Directive adopted
pursl1arlt to the previous 'residual powers' clause of the EC Treaty," because
82 TFEU only applies to 'judicial cooperation'. In the absence of any
specific legal base addressing this issue, it remains within the scope of the
'I'r~ot,,'< residual powers clause."
next key issue is the distinction between Article 82 TFEU and otherJHA
bases. As compared to other criminal law powers, Article 82(1) in particular
be distinguished from the substantive criminal law powers set out in Article
because the latter Article is subject to the emergency brake procedure.88 While
concerning asserting jurisdiction can be regarded as ancillary to the definiof
substantive offences, other procedural rules cannot, and the EU can only
such powers as the Treaty has conferred upon it. For example, it should
noted that the proposals for Directives on trafficking in persons and sexual
exploitation of children include provisions on victim protection, which can be
are) based on Article 82(2)(a) TFEU.89
Treaty powers relating to Eurojust (Article 85 TFEU) must be distinguished
from Article 82(2) in particular, since there is no emergency brake
applicable to Article 85. It should follow that any harmonization of national
Criminal Law: Mutual Recognition and Criminal Procedure670
Next, the requirement to take account ofnational legal traditions and
is nearly identical to the general requirement set in Article 67(1) TFEU
EU must 'respect' such systems and traditions. However, it is arguable
requirement to 'take into account' is more ofa positive obligation than
tion to 'respect', perhaps entailing an obligation to reflect those ditterences
adopted legislation, rather than merely to refrain from damaging national
systems in that legislation.
This brings us to the most important limitation: the requirement
measure must be necessary to facilitate mutual recognition and policing
criminal law cooperation with a cross-border dimension. It might be temptins
first sight, to conclude that this power is be limited to matters which
cific relationship with cross-border proceedings, like the EU's civil law
But the wording ofthe criminal law power ('cross-border dimension')
than the wording ofthe civil law power ('cross-border implications').
the phrase 'cross-border dimensions' also governs the scope of the
tive criminal law powers.F and it is hard to believe that the Union's
harmonize substantive criminal law was intended to be limited to
alleged offence has factual links to more than one Member State. Furtller"Illl
the EU's specific criminal procedure powers would be rendered meamngles
they could only be applied in cross-border proceedings, given that
already sets out a power to regulate criminal proceedings with a
border nature.
In particular, although rules on mutual admissibility of evidence
sarily have a link to cross-border proceedings, it will be hard in practice
their impact to cross-border cases, given that some degree of harmonizatie
the laws of evidence is necessary in order to ensure mutual ad:missibility
that such harmonization cannot easily be restricted to cases which
cific cross-border element, given that the evidence might be collected
it was clear that such an element was present. The point applies
EU's powers as regards victims' and suspects' rights (which might
evidence issues),83 a fortiori because the Treaty does not insist upon
cross-border element in these matters as it requires as regards evidence
better approach to the limit on the EU's criminal procedure is therefore
on a degree ciflikelihood that the rules in question will have a particular
cross-border proceedings. This will be the case in particular whenever
(in effect) a 'free movement clause' in the legislation, which provides
that Member States could not refuse to recognize judgments and other
ofjudicial authorities on grounds falling within the scope of a measure
pursuant to Article 82(2) TFEU. This would parallel the
8\ See 8.2.4 above. 82 See Art 83(1) TFEU, discussed in 10.2.4 below.
83 See 9.8.3 below (as regards victims' rights) and Art 6(3)d ECHR (as
671Institutional framework and overview
For instance, the provisions on victims' rights in the proposed Directives harmonizing the
'substantive law relating to trafficking in persons and offences against children: CaM (2010) 95 and
29 Mar 2010.
See particularly the tobacco advertising case law: Cases C-376/98 Germany v EP and Council
ECR 1-8419 and C-380/03 Germany v EP and Council [2006] ECR 1-11573.
See 9.3.5 and 9.5.2.
Dir 2004/80 ([2004] OJ L 261/15), based on the prior Art 308 EC. On the substance of this
see 9.8.3 below.
Art 308 EC became Art 352 TFEU after the entry into force of the Treaty ofLisbon.
Furthermore, Art 83(2) will in some cases require unanimous voting. See further 10.2.4
has set as regards the comparable general power to harmonize law for the purposes
offacilitating the internal market." Ofcourse, it also assumes that Member States
would otherwise have the power or even the obligation to refuse to recognize
other Member States' criminal law decisions on human rights grounds, an issue
examined further below." More generally, it must be kept in mind that measures
adopted pursuant to Article 82(2) are expressly not limited to those necessary to
facilitate mutual recognition, but can facilitate police and criminal law cooperation
ore generally.
Finally, there are questions regarding the scope ofthe individual provisions of
82(2). In the absence of any specific limit, the power to regulate suspects'
conferred by Article 82(2)(b) applies to any aspect ofthe right to a fair trial
than the double jeopardy rule, as noted above), provided that the general
on the powers conferred by Article 82(2) are complied with. As for victims'
Article 82(2)(c) does not apply to the harmonization of rules concerning
compensation of crime victims, which was the subject of a Directive adopted
pursl1arlt to the previous 'residual powers' clause of the EC Treaty," because
82 TFEU only applies to 'judicial cooperation'. In the absence of any
specific legal base addressing this issue, it remains within the scope of the
'I'r~ot,,'< residual powers clause."
next key issue is the distinction between Article 82 TFEU and otherJHA
bases. As compared to other criminal law powers, Article 82(1) in particular
be distinguished from the substantive criminal law powers set out in Article
because the latter Article is subject to the emergency brake procedure.88 While
concerning asserting jurisdiction can be regarded as ancillary to the definiof
substantive offences, other procedural rules cannot, and the EU can only
such powers as the Treaty has conferred upon it. For example, it should
noted that the proposals for Directives on trafficking in persons and sexual
exploitation of children include provisions on victim protection, which can be
are) based on Article 82(2)(a) TFEU.89
Treaty powers relating to Eurojust (Article 85 TFEU) must be distinguished
from Article 82(2) in particular, since there is no emergency brake
applicable to Article 85. It should follow that any harmonization of national
Criminal Law: Mutual Recognition and Criminal Procedure670
Next, the requirement to take account ofnational legal traditions and
is nearly identical to the general requirement set in Article 67(1) TFEU
EU must 'respect' such systems and traditions. However, it is arguable
requirement to 'take into account' is more ofa positive obligation than
tion to 'respect', perhaps entailing an obligation to reflect those ditterences
adopted legislation, rather than merely to refrain from damaging national
systems in that legislation.
This brings us to the most important limitation: the requirement
measure must be necessary to facilitate mutual recognition and policing
criminal law cooperation with a cross-border dimension. It might be temptins
first sight, to conclude that this power is be limited to matters which
cific relationship with cross-border proceedings, like the EU's civil law
But the wording ofthe criminal law power ('cross-border dimension')
than the wording ofthe civil law power ('cross-border implications').
the phrase 'cross-border dimensions' also governs the scope of the
tive criminal law powers.F and it is hard to believe that the Union's
harmonize substantive criminal law was intended to be limited to
alleged offence has factual links to more than one Member State. Furtller"Illl
the EU's specific criminal procedure powers would be rendered meamngles
they could only be applied in cross-border proceedings, given that
already sets out a power to regulate criminal proceedings with a
border nature.
In particular, although rules on mutual admissibility of evidence
sarily have a link to cross-border proceedings, it will be hard in practice
their impact to cross-border cases, given that some degree of harmonizatie
the laws of evidence is necessary in order to ensure mutual ad:missibility
that such harmonization cannot easily be restricted to cases which
cific cross-border element, given that the evidence might be collected
it was clear that such an element was present. The point applies
EU's powers as regards victims' and suspects' rights (which might
evidence issues),83 a fortiori because the Treaty does not insist upon
cross-border element in these matters as it requires as regards evidence
better approach to the limit on the EU's criminal procedure is therefore
on a degree ciflikelihood that the rules in question will have a particular
cross-border proceedings. This will be the case in particular whenever
(in effect) a 'free movement clause' in the legislation, which provides
that Member States could not refuse to recognize judgments and other
ofjudicial authorities on grounds falling within the scope of a measure
pursuant to Article 82(2) TFEU. This would parallel the
8\ See 8.2.4 above. 82 See Art 83(1) TFEU, discussed in 10.2.4 below.
83 See 9.8.3 below (as regards victims' rights) and Art 6(3)d ECHR (as
673Institutional framework and overview
Territorial scope
See Council doc 6538/10, 17 Feb 2010.
See also the analysis of the Commission legal service (Council doe 10005/10, 19 May 2010),
points out inter alia that the EU cannot harmonize national law on crime prevention pursuto
Art 84 TFEU. 97 See the Convention on mutual assistance, discussed in 9.6.1 below.
See the Framework Decision on crime victims, discussed in 9.8.3 below. Note also the excluofdamages
and restitution claims from the Framework Decision on financial penalties ([2005]
76/16, Art l(b) of the Framework Decision).
See Cases C-7/98 Krombach [2000] ECR 1-1935 and 157/80 Rinkau [1981] ECR 1391. On the
case, see further 9.3 and 11.2.4 below.
On Art 74 generally, see 2.2.3.2 above.
to the entry into force of the Treaty of Lisbon, there were no opt-cuts
Member States in this area, except for the delayed application of the relSchengen
acquis to the UK and Ireland. The acquis applied to the UK from
Finally, it is necessary to distinguish the whole of Article 82, and Article
in particular, from Article 74 TFEU, which is a legal base for the adopofmeasures
concerning cooperation between national administrations, and
betwee-n national administrations and the Commission. Such measures are nonezislative
acts, adopted by QMV in the Council with consultation ofthe EP. The
distinction between Articles 74 and 82 TFEU is that the former concooperation
between civilservants, whereas the latter concerns cooperation
oetween iudoes.100
is understood that the Council legal service took the view that the prowas
correctly based on Article 82 TFEU, since the prevention of crime
fall within the scope of that Article." On this point, while it is true
Article 67(3) TFEU refers to prevention of crime, more specific referto
crime prevention are set out in Articles 84, 87(1), and 88(1) TFEU,
in Article 82.96
The requirement to respect different legal systems, as
out in Article 67(1) TFEU, instead points toward the need to respect the
different approaches that Member States have towards addressing this issue.
a measure based wholly on Article 82 can only address issues connected
criminal law proceedings. It would be possible to adopt a measure based
on Articles 81 and 82 TFEU-but it would have to be proposed by
Commission.
On the same issues, there are several criminal law measures that refer to issues
arguably fall within the scope ofcivil law, such as restitution ofproperty,"
compensation ofvictims by offenders, and return ofproperty for crime victims."
Converselv, EU civil law measures address issues such as civil claims related to
criminal proceedings and representation in criminal trials for non-intentional
offences."
Criminal Law: Mutual Recognition and Criminal Procedure672
criminal procedure directly related to the functioning of Eurojust, in particulaf
(but not only) concerning the specific functions of Eurojust mentioned in
85(l)(a), (b), and (c). Similarly, the Treaty powers relating to the European
Prosecutor (Article 86 TFEU) must be distinguished from Article 82 int
Article 86 requires unanimous voting. Again, any measure directly relating
the operation of the European Public Prosecutor, whether it concerns nation
procedural law or mutual recognition (ie national authorities' recognition oft
Prosecutor's decisions and vice versa) must be based on Article 86.90
Next, there is also a need to distinguish between Article 82 and ArticleS
TFEU, as regards policing powers, given that legislation on some aspects
police cooperation is not subject to an emergency brake (Article 87(2)), whe
measures on operational police cooperation are subject to unanimous vot
(Article 87(3)).91
On this point, it should be emphasized that Article 820
extends to judicial proceedings, arguably as defined by Member States,9211
to cooperation between police or other non-judicial authorities. The polid
legal bases would have to be used instead (or in addition) to adopt legislation
such issues. Although by way of exception, Article 82(1)(d) extends to author
ties which are equivalent to judicial authorities, this extension is clearly lim.it
in scope by the ejusdemgeneris rule of interpretation, considering also that
policing provisions of the Treaty are a lex specialis. Although Article 82(1)(d
not expressly limited to judicial authorities, the whole ofArticle 82(1) islirni
in scope to '[j]udicial cooperation' and Article 82(1)(d) is expressly limit
scope to criminal proceedings. Any other interpretation could render
redundant. In any case, it is hard to see how' police officers are
judges. Applying this rule, it may be doubted whether some of the
in the proposed Directive on the European investigation order fall
scope ofArticle 82.93
It is also necessary to distinguish between Article 82 and the
powers set out in Article 81 TFEU, given that civil law measures
subject to an emergency brake, can only be proposed by the
are subject to a stronger 'cross-border' requirement, and can potentiallyi
in fact usually) take the form of Regulations. The issue of dlStUlgll1S1ll.J
between these legal bases arose shortly after the entry into force
of Lisbon, when the Commission queried the correct legal base
posed Directive on a European protection order.?' since some Member
address such issues by means of civil or administrative law, not criminal
90 For instance, rules on the 'admissibility of evidence' referred to in Art
Arts 85 and 86, see 11.2.4 below.
91 For further details on these provisions, including the distinction between
see 12.2.4 below.
92 This follows from the requirement of respect for national legal systems, as set out rn 1;\)[[
TFEU. 93 [2010] OJ C 165/22. On the substance, see
94 [2010] OJ C 69/5. On the substance, see 9.7.6 below.
673Institutional framework and overview
Territorial scope
See Council doc 6538/10, 17 Feb 2010.
See also the analysis of the Commission legal service (Council doe 10005/10, 19 May 2010),
points out inter alia that the EU cannot harmonize national law on crime prevention pursuto
Art 84 TFEU. 97 See the Convention on mutual assistance, discussed in 9.6.1 below.
See the Framework Decision on crime victims, discussed in 9.8.3 below. Note also the excluofdamages
and restitution claims from the Framework Decision on financial penalties ([2005]
76/16, Art l(b) of the Framework Decision).
See Cases C-7/98 Krombach [2000] ECR 1-1935 and 157/80 Rinkau [1981] ECR 1391. On the
case, see further 9.3 and 11.2.4 below.
On Art 74 generally, see 2.2.3.2 above.
to the entry into force of the Treaty of Lisbon, there were no opt-cuts
Member States in this area, except for the delayed application of the relSchengen
acquis to the UK and Ireland. The acquis applied to the UK from
Finally, it is necessary to distinguish the whole of Article 82, and Article
in particular, from Article 74 TFEU, which is a legal base for the adopofmeasures
concerning cooperation between national administrations, and
betwee-n national administrations and the Commission. Such measures are nonezislative
acts, adopted by QMV in the Council with consultation ofthe EP. The
distinction between Articles 74 and 82 TFEU is that the former concooperation
between civilservants, whereas the latter concerns cooperation
oetween iudoes.100
is understood that the Council legal service took the view that the prowas
correctly based on Article 82 TFEU, since the prevention of crime
fall within the scope of that Article." On this point, while it is true
Article 67(3) TFEU refers to prevention of crime, more specific referto
crime prevention are set out in Articles 84, 87(1), and 88(1) TFEU,
in Article 82.96
The requirement to respect different legal systems, as
out in Article 67(1) TFEU, instead points toward the need to respect the
different approaches that Member States have towards addressing this issue.
a measure based wholly on Article 82 can only address issues connected
criminal law proceedings. It would be possible to adopt a measure based
on Articles 81 and 82 TFEU-but it would have to be proposed by
Commission.
On the same issues, there are several criminal law measures that refer to issues
arguably fall within the scope ofcivil law, such as restitution ofproperty,"
compensation ofvictims by offenders, and return ofproperty for crime victims."
Converselv, EU civil law measures address issues such as civil claims related to
criminal proceedings and representation in criminal trials for non-intentional
offences."
Criminal Law: Mutual Recognition and Criminal Procedure672
criminal procedure directly related to the functioning of Eurojust, in particulaf
(but not only) concerning the specific functions of Eurojust mentioned in
85(l)(a), (b), and (c). Similarly, the Treaty powers relating to the European
Prosecutor (Article 86 TFEU) must be distinguished from Article 82 int
Article 86 requires unanimous voting. Again, any measure directly relating
the operation of the European Public Prosecutor, whether it concerns nation
procedural law or mutual recognition (ie national authorities' recognition oft
Prosecutor's decisions and vice versa) must be based on Article 86.90
Next, there is also a need to distinguish between Article 82 and ArticleS
TFEU, as regards policing powers, given that legislation on some aspects
police cooperation is not subject to an emergency brake (Article 87(2)), whe
measures on operational police cooperation are subject to unanimous vot
(Article 87(3)).91
On this point, it should be emphasized that Article 820
extends to judicial proceedings, arguably as defined by Member States,9211
to cooperation between police or other non-judicial authorities. The polid
legal bases would have to be used instead (or in addition) to adopt legislation
such issues. Although by way of exception, Article 82(1)(d) extends to author
ties which are equivalent to judicial authorities, this extension is clearly lim.it
in scope by the ejusdemgeneris rule of interpretation, considering also that
policing provisions of the Treaty are a lex specialis. Although Article 82(1)(d
not expressly limited to judicial authorities, the whole ofArticle 82(1) islirni
in scope to '[j]udicial cooperation' and Article 82(1)(d) is expressly limit
scope to criminal proceedings. Any other interpretation could render
redundant. In any case, it is hard to see how' police officers are
judges. Applying this rule, it may be doubted whether some of the
in the proposed Directive on the European investigation order fall
scope ofArticle 82.93
It is also necessary to distinguish between Article 82 and the
powers set out in Article 81 TFEU, given that civil law measures
subject to an emergency brake, can only be proposed by the
are subject to a stronger 'cross-border' requirement, and can potentiallyi
in fact usually) take the form of Regulations. The issue of dlStUlgll1S1ll.J
between these legal bases arose shortly after the entry into force
of Lisbon, when the Commission queried the correct legal base
posed Directive on a European protection order.?' since some Member
address such issues by means of civil or administrative law, not criminal
90 For instance, rules on the 'admissibility of evidence' referred to in Art
Arts 85 and 86, see 11.2.4 below.
91 For further details on these provisions, including the distinction between
see 12.2.4 below.
92 This follows from the requirement of respect for national legal systems, as set out rn 1;\)[[
TFEU. 93 [2010] OJ C 165/22. On the substance, see
94 [2010] OJ C 69/5. On the substance, see 9.7.6 below.
675Human rights
9.3. Human rights
Right to a fair trial
C-436/03 Van Esbroek[2006] ECR 1-2623. 112 [2004] OJ L 26/1.
OJ L 292/1. See also the earlier Decision defining the Schengen extradition acquis as
Norway and Iceland ([2003] OJ L 76/25).
details of the EAW, see 9.5.2 below.
the proposals to conclude the treaties: COM (2009) 704 and 705, 17 Dec 2009.
Arts 25-38 oftreaty ([2009] OJ L 46/6). The treaty entered into force as regards most Member
the EC, and Switzerland on 8 Apr 2009 (see [2009] OJ L 17717).
(2009) 644, 23 Nov 2009.
at the outset, the human rights principle ofgreatest relevance to crimiprocedure
is the right to a fair trial. This right is set out in national constituArticle
6 ECHR, and Article 14 of the International Covenant on Civil
Political Rights (ICCPR). Article 6(2) ECHR expressly sets out a right to
resumption of innocence in criminal cases, and Article 6(3) sets out minimum
to be informed promptly ofan accusation (Article 6(3)(a)); to have time and
for a defence (Article 6(3)(b)); to have access to a defence lawyer and free
aid if 'the interests ofjustice' require (Article 6(3)(c)); to examine witnesses
and call witnesses for the defence (Article 6(3)(d)); and to 'to have the free
ofan interpreter ifhe [or she] cannot understand or speak the language
in court' (Article 6(3)(e)). The Seventh Protocol to the ECHR, which has
ratified by a large majority of Member States, also includes the right to an
the Court ofJustice has implicitly assumed that it has jurisdiction to rule on
Schengen association treaty with Norway and Iceland.'!'
The EU, Norway, and Iceland have also signed a treaty committing themselves
implement all of the provisions of the EU mutual assistance Convention and
fJr,nt"rc,1 which do not fall within the scope ofthe Schengen acquis,!!2 as well as
establishing a surrender procedure between the EU Member States and
and Norway.'!" The latter agreement is very similar to the Framework
Decision on the EAW, but contains variations, particularly allowing for the con.tinuation
of a 'political offence' exception and the option to refuse to extradite
own nationals, subject to some lirnitations.!" Neither of these treaties is
in force.!"
Switzerland and the EU (more precisely, the EC (asit was then) and the
Member States) have concluded a treaty which concerns the particular issue
ofprotection of the EU's financial interests. It contains a number of provisions
Xelev;mtto mutual legal assistance.!" The Commission has proposed the signature
conclusion of a parallel treaty with Liechtenstein.'!"
Criminal Law: Mutual Recognition and Criminal Procedure674
HI! See the decision on UK participation in Schengen ([2000] OJ L 131/43) and
application ofthat decision ([2004] OJ L 395170). For more detail on UK participation,
above.
102 See the decision on Irish participation in Schengen ([2002] OJ L 64/20). For
Irish participation, see 2.2.5.1.3 above.
103 For more detail on accession and the Schengen acquls, see 2.2.5.3 above.
104 On the substance of that acquis, see 9.2.1 above.
105 For the detail, see 2.2.5.1.2 and 2.2.5.1.3 above.
106 On the substance ofthese measures, see 9.8.2 and 9.7.6 below. However, there
that the UK will nonetheless be excluded from participation in the latter measure:
above.
107 See Council does 9262/10, 3 May 2010, and 7670/10, 7673/10, and 7676/10,
108 See 2.2.5.2 above. 109 See 2.2.5.4 above.
110 Art 7(5) ofthe Schengen association treaty with Switzerland ([2008] OJ L
ofthe Protocol to that treaty concerning the association ofLiechtenstein (COM
2006). It should be noted that the proposed Directive establishing the European Investigation.t
(see 9.6.1.3 below) would trigger these exceptions.
1January 2005,1°! and will also apply to Ireland at a date to be decided.l'" TheE
rules and the Schengen acquis relating to criminal procedural law applied fullyt
the new Member States from their dates ofaccession (1 May 2004 and 1Januar
2007),1Il3 and also applied fully to Denrnark.l'"
The position changed with the entry into force ofthe Treaty ofLisbon, whic
extended the British and Irish opt-outs to new measures in the area of policin
and criminal law, and provided for special rules if the UK and Ireland opte
out of a measure which amends a measure which already applies to them}05)
practice, the UK and Ireland have both opted into the Member States' initiativ
on suspects' rights to interpretation and translation, and the UK has opted in~
the proposals on the European protection order and the European investigati
order.l'" both have opted into the treaties in this area with Norway, Icelandja
japan."? Their opt-in decisions regarding the proposal on the right to infor
tion are not yet known. On the other hand, Denmark is now excluded.fro
measures in this area, unless those measures build upon the Schengen acquis.lO~
post-Lisbon measures are adopted which amend or repeal pre-Lisbon actsv,rh.i
already apply to the UK, Ireland, or Denmark, and those Member States do
participate in such measures, there is a possibility that their participation in
relevant pre-Lisbon acts will be terminated. In that case, the relevant Counci]
Europe treaties will then (re-)apply between those Member States and a1l9t
Member States.
As for non-Member States, pursuant to their association with the Schen
acquis, the relevant rules and measures building upon them (including asp
of the 2000 EU Convention on mutual assistance and its 2001 Protocol)
apply to Norway, Iceland, Switzerland, and (in future) Liechtenstein.'?" Hqv,re
Switzerland and Liechtenstein have an exemption as regards any future me as
building on the acquis which eliminate the 'double criminality' rule as
search and seizure for offences relating to direct taxation.110 It should
675Human rights
9.3. Human rights
Right to a fair trial
C-436/03 Van Esbroek[2006] ECR 1-2623. 112 [2004] OJ L 26/1.
OJ L 292/1. See also the earlier Decision defining the Schengen extradition acquis as
Norway and Iceland ([2003] OJ L 76/25).
details of the EAW, see 9.5.2 below.
the proposals to conclude the treaties: COM (2009) 704 and 705, 17 Dec 2009.
Arts 25-38 oftreaty ([2009] OJ L 46/6). The treaty entered into force as regards most Member
the EC, and Switzerland on 8 Apr 2009 (see [2009] OJ L 17717).
(2009) 644, 23 Nov 2009.
at the outset, the human rights principle ofgreatest relevance to crimiprocedure
is the right to a fair trial. This right is set out in national constituArticle
6 ECHR, and Article 14 of the International Covenant on Civil
Political Rights (ICCPR). Article 6(2) ECHR expressly sets out a right to
resumption of innocence in criminal cases, and Article 6(3) sets out minimum
to be informed promptly ofan accusation (Article 6(3)(a)); to have time and
for a defence (Article 6(3)(b)); to have access to a defence lawyer and free
aid if 'the interests ofjustice' require (Article 6(3)(c)); to examine witnesses
and call witnesses for the defence (Article 6(3)(d)); and to 'to have the free
ofan interpreter ifhe [or she] cannot understand or speak the language
in court' (Article 6(3)(e)). The Seventh Protocol to the ECHR, which has
ratified by a large majority of Member States, also includes the right to an
the Court ofJustice has implicitly assumed that it has jurisdiction to rule on
Schengen association treaty with Norway and Iceland.'!'
The EU, Norway, and Iceland have also signed a treaty committing themselves
implement all of the provisions of the EU mutual assistance Convention and
fJr,nt"rc,1 which do not fall within the scope ofthe Schengen acquis,!!2 as well as
establishing a surrender procedure between the EU Member States and
and Norway.'!" The latter agreement is very similar to the Framework
Decision on the EAW, but contains variations, particularly allowing for the con.tinuation
of a 'political offence' exception and the option to refuse to extradite
own nationals, subject to some lirnitations.!" Neither of these treaties is
in force.!"
Switzerland and the EU (more precisely, the EC (asit was then) and the
Member States) have concluded a treaty which concerns the particular issue
ofprotection of the EU's financial interests. It contains a number of provisions
Xelev;mtto mutual legal assistance.!" The Commission has proposed the signature
conclusion of a parallel treaty with Liechtenstein.'!"
Criminal Law: Mutual Recognition and Criminal Procedure674
HI! See the decision on UK participation in Schengen ([2000] OJ L 131/43) and
application ofthat decision ([2004] OJ L 395170). For more detail on UK participation,
above.
102 See the decision on Irish participation in Schengen ([2002] OJ L 64/20). For
Irish participation, see 2.2.5.1.3 above.
103 For more detail on accession and the Schengen acquls, see 2.2.5.3 above.
104 On the substance of that acquis, see 9.2.1 above.
105 For the detail, see 2.2.5.1.2 and 2.2.5.1.3 above.
106 On the substance ofthese measures, see 9.8.2 and 9.7.6 below. However, there
that the UK will nonetheless be excluded from participation in the latter measure:
above.
107 See Council does 9262/10, 3 May 2010, and 7670/10, 7673/10, and 7676/10,
108 See 2.2.5.2 above. 109 See 2.2.5.4 above.
110 Art 7(5) ofthe Schengen association treaty with Switzerland ([2008] OJ L
ofthe Protocol to that treaty concerning the association ofLiechtenstein (COM
2006). It should be noted that the proposed Directive establishing the European Investigation.t
(see 9.6.1.3 below) would trigger these exceptions.
1January 2005,1°! and will also apply to Ireland at a date to be decided.l'" TheE
rules and the Schengen acquis relating to criminal procedural law applied fullyt
the new Member States from their dates ofaccession (1 May 2004 and 1Januar
2007),1Il3 and also applied fully to Denrnark.l'"
The position changed with the entry into force ofthe Treaty ofLisbon, whic
extended the British and Irish opt-outs to new measures in the area of policin
and criminal law, and provided for special rules if the UK and Ireland opte
out of a measure which amends a measure which already applies to them}05)
practice, the UK and Ireland have both opted into the Member States' initiativ
on suspects' rights to interpretation and translation, and the UK has opted in~
the proposals on the European protection order and the European investigati
order.l'" both have opted into the treaties in this area with Norway, Icelandja
japan."? Their opt-in decisions regarding the proposal on the right to infor
tion are not yet known. On the other hand, Denmark is now excluded.fro
measures in this area, unless those measures build upon the Schengen acquis.lO~
post-Lisbon measures are adopted which amend or repeal pre-Lisbon actsv,rh.i
already apply to the UK, Ireland, or Denmark, and those Member States do
participate in such measures, there is a possibility that their participation in
relevant pre-Lisbon acts will be terminated. In that case, the relevant Counci]
Europe treaties will then (re-)apply between those Member States and a1l9t
Member States.
As for non-Member States, pursuant to their association with the Schen
acquis, the relevant rules and measures building upon them (including asp
of the 2000 EU Convention on mutual assistance and its 2001 Protocol)
apply to Norway, Iceland, Switzerland, and (in future) Liechtenstein.'?" Hqv,re
Switzerland and Liechtenstein have an exemption as regards any future me as
building on the acquis which eliminate the 'double criminality' rule as
search and seizure for offences relating to direct taxation.110 It should