Europeanisation of criminal law

Abstract

How far has the Europeanisation of criminal law come and where is it heading? Who are the players bringing Europeanisation and what does it take for Sovereign Member States to consider themselves a part of Europe in fighting crime? In the first chapter it was my aim to give an overview of the constitutional and institutional clockwork for achieving Europeanisation. The term clockwork is suitable for expressing an element of development over time which is explored in this chapter. A complex web of political and power interests becomes apparent. Firstly within the EU itself through the question of competence of its various organs according to the Treaties, at the scrutiny of the watchful ECJ is tackled. The next sub-chapter juxtaposes European law and the effects of it on national legal systems and the interests of nation States, again here a huge role for the European Court. In order for there to be an AFSJ where freedom, security and justice are balanced I have placed a spotlight on the issue of human rights area. The State is traditionally the guarantor of human rights for its citizens, however the state also has interest to maintain security and ensure the administration of justice. Alongside the agenda of the EU and the interests of the nation states, the latter part of the first chapter concentrates on the rights of the individual citizen. The European Union has already established certain criminal law instruments and structures which show a process of Europeanisation. In the procedural sphere the framework decision on the standing of victims in criminal proceedings and the framework decision on procedural safeguards are examples of setting certain common standards. Judicial cooperation and mutual legal assistance are the main pillars upholding the AFSJ, these modus operandi are analysed in practice by looking at extradition procedures, the EA W and surrender procedures. Since both judicial cooperation and mutual legal assistance have existed for some years now in the EU it is appropriate to discuss both successes and failures of these practices. In order for there to be efficient trans-border law enforcement there must also be trans border judicial bodies. The European Judicial Network and Eurojust have played a crucial role in the Europeanisation process. Furthermore at the judicial level an important development brought about at the national level is the mutual recognition of judicial decisions. Harmonisation of substantive criminal law has also contributed to Europeanisation of criminal law examples of where harmonisation or approximation has taken place are discussed in chapter three. The ECJ with regards to criminal sanctions or 'national enforcement law' plays a role of central importance, essentially being the arbiter of how far harmonisation should go and what constitutes and what does not constitute harmonisation, directly or indirectly. This chapter describes the battle of the pillars and the increasing need of European criminal sanction in areas of Community Competence, what is known as the first pillar. The activity of Europeanisation of criminal law is not exclusive to the European Union. Every influence, event, movement or institution that brings cooperation in the criminal law field in the European region is in fact contributing to Europeanisation of Criminal law. Four important entities are discussed in this thesis are; the Council of Europe, the United Nations, the United States of America and the OSCE. The Conclusions of this thesis point towards the inevitability of greater Europeanisation of criminal matters. If there is any area in European cooperation that needs restructuring that is surely the area of criminal law. In the conclusion there is a recognition that criminal law is not limited to the importance that it has per se, but that criminal justice and criminal law enforcement have a special connection to the sovereign status of a State. Therefore, in the conclusion of my thesis, there is a call to the EU Member States which envisaged the creation of an Area of Freedom Security and Justice, to exercise a measure of pooling of sovereignty and adopt harmonising measures so that an AFSJ can effectively be achieved. In the Conclusion emphasis is placed on the Lisbon Treaty because rather than plainly solving problems it rectifies many of the anomalous situations discussed in previous chapters through the amendment of institutional powers.