Abstract
European criminal justice is not only about harmonization and Europeanization of the domestic criminal justice systems but also about common criminal policies and shared values, including key values related to the rule of law. What has been achieved in the European integration process and what are the challenges ahead of us? The author assesses this in the area of harmonization of substantive criminal law and criminal procedure; mutual recognition; European judicial agencies and the external dimension of the Area of Freedom, Security and Justice.
Keywords
Opening words
I am convinced that at the end of this conference we could quote from a very famous Portuguese writer, Fernando Pessoa: ‘O valor das coisas não está no tempo que elas duram mas na intensidade com que acontecem. Por isso existem momentos inesquecíveis, coisas inexplicáveis e pessoas incomparáveis’; or to put it in English: ‘The value of the things is not the time they last but the intensity with which they occur. This is why there are unforgettable moments, there are inexplicable things and incomparable persons’. The intensity of the development of European criminal law in the last few decades is unquestionable. The way in which Pedro has organised this conference in Coimbra makes him incomparable.
Sovereignty and interdependence
When dealing with European criminal justice and underlying values, principles and policies, it is obvious to start with the actual institutional political context. This very week Le Figaro published an article by Jean-Pierre Chevènement, a socialist former minister, with the title ‘La supranationalité européenne a échoué, faisons confiance aux nations’. 1 We all know that there is an increasing political narrative in favour of going back to the nation states, back to national identity, back to national sovereignty, back to national borders and national territory and, of course, back to national people, and even to our people first. With all due respect, this narrative rests on a dream of a sort of nation state in terms of an Eden paradise with Adam and Eve. This dream is as such a social construct, because nation states and the sovereignty of nation states and national territory are all social constructs, even under the Westphalian concept of peace. And even those who believe in the paramount importance of nation states and national sovereignty are very much aware of the fact that for many policies, including in the criminal justice area, nation states rely on strong European and international cooperation. Even pro-Brexit politicians are already dreaming of strengthening the cooperation regimes in the Commonwealth or opting into Eurojust and the European arrest warrant system.
Moreover, the globalization we have been experiencing in the last few decades will not stop and cannot be stopped by a national sovereignty discourse or nationalist populism. Most of the masterminds of this political trend do not effectively understand what the European Union (EU) is all about. And here I quote Paul Magnette, the former Professor of European Law and the current President of Wallonia in Belgium, who has become very famous since he tried to stop the course of the negotiations on and the signature of the CETA Treaty with Canada. Magnette said in one of his interviews: ‘L’Europe est un régulateur de la globalisation’. The EU construction is indeed a functional authority to develop regulation and enforcement for certain policies in functional territories such as the internal market or the area of freedom, security and justice. These are shared areas of common interest with also shared sovereignty and territoriality. Some people even qualify this as a composite constitutional order. 2 The European criminal justice policy is a perfect example thereof.
European functional territoriality and criminal justice
Since the 1950s, the criminal justice system has been part of a fundamental transformation of functional authority and territoriality, as the domestic criminal justice systems have been substantially intertwined with the functional authority of the Council of Europe. This intertwining has several dimensions, ranging from suppression treaties to treaties on judicial cooperation in criminal matters and the European Convention on Human Rights and the related case law of the European Court of Human Rights. The result is that national criminal policies and their underlying values and principles have substantially changed throughout the cooperation within the Council of Europe. This is not only from a top-down approach, as Member States are also stakeholders in this process and steer initiatives and put cooperation instruments on the agenda. The result in the Member States is that for national substantive criminal law and related judicial cooperation, a greater equivalent level playing field is created. Through the European Convention of Human Rights (ECHR) and the case law of the European Court of Human Rights (ECtHR), the inherent values and principles, in the form of human rights, are also becoming common standards in the European States. The constitutionalization of criminal justice has become a reality, and this also includes criminal procedure (investigative methods, procedural safeguards, the execution of sanctions, etc.).
The impact of the European integration process should not be underestimated either. Although the European Communities did not have direct legislative powers in the field of criminal justice before the Maastricht Treaty, they did have these powers from the very beginning of the Rome Treaties and these affect the domestic criminal justice systems, through abolishing obstacles under national law or through imposing enforcement obligations, certainly in the field of the internal market and its economic policies and later also in new policy areas, such as the protection of the environment. The increasing impact of the EU on criminal justice since the Maastricht Treaty is a well-known story. 3
Criminal justice and the regulatory triangle
Today the intertwining in the criminal justice area is based on interaction between the domestic level, which remains as the grass-roots level, the EU and Council of Europe legal order. The constant dialogue between the ECtHR and the Court of Justice of European Union (CJEU) on values and rights in relation to criminal justice, based on the increasing interaction between the ECHR and the Charter of Fundamental Rights (CFR), is of increasing importance for norm setting and application in the domestic domain of criminal justice. However, these new common standards have to take into account the common constitutional standards in the Member States. Notwithstanding, it is the European courts that decide on the commonalities. Obviously, if every Member State could impose its own constitutional standards, then this would fully undermine the idea of pacta sunt servanda (for the ECHR and EU) and the primacy of EU law. The more Member States can develop common constitutional standards, also under the influence of the Council of Europe and the EU, the better the dialogue between the European Courts will function. Does this not mean that all legal orders have to strive for unified values? The ECHR is setting minimum standards. The EU can opt for a higher level of protection in an integrated legal area such as the area of freedom, security and justice.
Criminal justice, supranationality and common values
Some countries define their own Constitution as the highest ranking source of law, having primacy over EU law, by which they are rebalancing the hierarchy of law within the EU legal order. In other words, the supremacy of EU law is conditioned by its compatibility with national constitutional standards and values. In their vision, both the ECHR and the CFR are setting minimum standards of protection that can be upgraded by the national Constitution. Since the stance taken in Melloni 4 and the Opinion on the EU’s accession to the ECHR, 5 it is clear that the CJEU has ruled in favour of common standards that can be combined with functional EU integration.
Primacy, uniformity and effectiveness are used as constitutive tools to guarantee shared values in a common functional legal order. The minimum standards of the ECHR can be upgraded by the CFR and the case law of the CJEU and can even be upgraded by national constitutional standards, but subject to the condition that they do not undermine the uniformity and effectiveness of the EU legal order. Of course, the reasoning could be different if constitutional protection is needed to set aside possible violations of ECHR obligations. The supremacy of EU law is only valid if it guarantees sufficient human rights protection in the combined legal order.
In a composite legal order such as the EU, all types of jurisdiction are shared. The EU has far-reaching jurisdiction to prescribe, let us say, the power to legislate in criminal matters. The EU has the necessary jurisdiction to enforce by means of European enforcement agencies such as Europol, Eurojust and the future European Public Prosecutor’s Office (EPPO). Although the EU has no jurisdiction to adjudicate in cases of criminal liability, the CJEU, through its preliminary rulings, does have a strong impact on the outcome of criminal justice in the member states.
This setup of the three dimensions of jurisdiction at the European level ensures that a transfer of power and sovereignty to the supranational level is granted by law (through the EU Treaties, signed and ratified by the Member States), but it is also subject to command and control by the law and especially the rule of law. European criminal justice is only legitimate if it is based on a community of values.
The content of the criminal justice dimension in the area of freedom, security and justice is based upon this premise of conformity with the community of values. The content itself can be divided into four policy areas: (1) the harmonization of substantive criminal law and criminal procedure, (2) horizontal judicial cooperation (mutual legal assistance and mutual recognition), (3) the development of European enforcement agencies and (4) the development of the external dimension of the EU in the criminal justice area (such as, for instance, extradition treaties with third countries or counterterrorism policy setting). The first three policy areas are all about building up the content of internal territoriality in the shared domestic EU setting. The fourth is about externalizing internal territoriality as part of a global EU strategy.
Once the policy areas are defined, the following question arises: who are the actors, who are the stakeholders – and why are we doing this? What do we want to protect? What types of interests are at the forefront in order to legitimize all of these policy fields within the area of freedom, security and justice? One could define many of the common interests that deserve policymaking at this level, for example, beyond the nation states, or that even not only deserve but must be protected at that level. Criminal policies dealing with trafficking in human beings or the counterfeiting of the single currency are difficult to imagine without an EU-based involvement. However, as stated before, this is not only about common interests but also about common values. Some values are widely accepted, although these days even they are being questioned. I am referring, for example, to the prohibition of the death penalty in the European context, or the non-acceptance of severe violations of human rights, such as unlawful killing or torture. Nevertheless, there are other common values that are not that well established, such as, for example, the protection of common public goods, for example, the protection of Mother Earth, our environment. Illegal and unreported fishing or the trade in endangered species, often combined with organized crime, is putting at risk not only animals and plants but also human beings and our own future. Around 70 years ago, we invented the concept of genocide, but we are still struggling with the concept of ‘ecocide’. These values are global values that do need protection and should be upgraded in the EU to common values.
Criminal justice policies: Challenges and risks
The harmonization of substantive criminal law and criminal procedure
Let us zoom in somewhat more on the policy areas. If we look at harmonization, we notice that a great deal has been done and that there has been an incredible wave of harmonizing substantive law. In the area of the so-called ‘euro crimes’, which are now on the list of Article 83(1) TFEU, there might even be a certain risk of overactivity. With too much harmonization that is too detailed, there is a risk of overcriminalization, and this is being voiced as criticism. 6 In certain fields, it is even putting civil liberties and human rights at risk. The way in which the last Counterterrorism Directive 7 has been limiting the freedom of expression, the freedom of association, procedural safeguards and so on is a good example of this.
Why has this occurred? In my view, this is due to a combination of autonomous policies in the Member States and the EU and the internalization of norms that form the international legal order, such as the United Nations (UN) and the Council of Europe, all of them triggered by dramatic terrorist attacks and short-term populism. This is not only the case for terrorism but in fact for organized crime, trafficking in human beings and crimmigration, corruption, terrorism, cybercrime, money laundering, and so on. Most of these policy fields are very closely linked to policy fields at the UN level, at the Council of Europe level or at other specialized bodies or agencies, such as Organisation for Economic Co-operation and Development (OECD) and the Financial Action Task Force (FATF). Does this mean that we are simply sitting and waiting until certain norms emerge and we then internalize them? No, because the Member States but also the Union are very strong actors interacting in the production of these norms in other fora. They participate, they negotiate, they sit at the table, and so on. So, the EU is not only the receptor of these norms, but it also triggers legislative action at the international level. I therefore think that one of the reasons for this risk of overcriminalization in these areas is the policy tendency to elaborate very specific rules also in a very special political time setting. Let me just give one good example of overcriminalization and also the limiting of civil liberties and human rights. In 2014, the UN Security Council voted on one of its last binding resolutions, Resolution 2178 on terrorism, 8 and it imposed upon all UN States substantive criminal law obligations linked to the phenomenon of foreign terrorist fighters. If one looks at the list, one can see that it is a quite long list of obligations and offences. In 2015, the Council of Europe adopted the Additional Riga Protocol 9 to the Warsaw Convention of 2005, adding new offences, especially in relation to foreign terrorist fighters and their passive training, their travel to areas of conflict and funding and material support for these trips. The recent EU Directive 10 is not only a reaction to the wave of cruel attacks in France and Belgium, but it also reflects the influence of the UN Regulation and the Council of Europe’s protocol. The new directive leads to new offences in an anticipative setting, and this does not even relate to perpetrated offences: Conduct is being criminalized before any preparation for a terrorist organization or a terrorist act, which is a good example of limiting human rights and of overcriminalization.
A second risk in substantive harmonization is linked to the general policy of the Union in the area of freedom, security and justice. To a certain extent, the security agenda has hijacked the liberty and the justice dimension of the area. And, of course, we are living in times when security is very important but that should not come at the price of hijacking the other two areas.
The harmonization of criminal procedure is a rather new field of harmonization. As one knows, harmonization has mostly been bound to the basic procedural safeguards in Article 6 of the ECHR. If one looks at it from a certain distance, it is quite astonishing to see how limited it is. In other continents, there have been enormous reforms of criminal procedure in the direction of introducing accusatorial models. This has not happened in the EU and still today major reforms of criminal procedure are completely driven by a national agenda and do not take into account the EU dimension of national criminal justice. So, if we are speaking about the gathering of evidence (and related procedural safeguards) in a common space linked to this type of offences, we think about it as if it was only a national endeavour. In this field, there is no risk of overcriminalization but rather inactivity or underactivity at the EU level.
Judicial cooperation and mutual recognition
The European arrest warrant is a great success and is extensively used. However, it comes with problems of its disproportionate use (for cases of little importance) by some Member States and of blind trust in compliance with human rights standards. It has only been recently that the CJEU has found a leeway 11 to assess human rights compliance in a transnational setting. Finally, the European arrest warrant regime, as implemented in the legal order of the Member states, includes the risk of different treatment between national citizens (or persons having the status of long-term residents) and others, even if they are EU citizens. From a criminal justice and human rights perspective, it is difficult to accept these differences in a single legal area such as the Area of Freedom,Ssecurity and Justice (AFSJ).
European judicial agencies
As to the third policy area, many of the European enforcement agencies (Europol, Eurojust, the European Judicial Network, etc.) have been put in place and have now already been operating for some 25 years, but they are still struggling with quite a few problems. The agencies still have very weak enforcement powers, mostly limited to police intelligence analysis (Europol) and coordination (Eurojust). Moreover, they are suffering from a weak embedment in the domestic legal orders. Although these agencies are treaty-based and are soundly elaborated in secondary EU law, in many countries they are not embedded in national criminal procedure or in special statutes. They simply do not exist. In an integrated model, the regulatory framework for these agencies should also be mirrored in the domestic judicial regimes. Last, but not least, the inter-agency cooperation at the EU level is far from perfect. Information sharing can be improved and where they are involved in national investigative measures with a transnational dimension, such as within the framework of joint investigation teams, there should be strong cooperation between Europol and Eurojust.
External dimension of AFSJ
Finally, we come to the fourth policy area, the external dimension and the externalization of justice and home affairs within the area of freedom, security and justice. There is a fair amount of scholarship on the externalization of EU policies, dealing with the Brussels effect, the spillover effect, extraterritorial application, the EU as a global governance actor, and so on. 12 But the scholarly work on the criminal law dimension of the AFSJ is extremely limited and mostly sectoral.
A good example of such a sectoral approach is counterterrorism. At the international level, the Union is negotiating the production of the necessary norms. Second, in this cooperation setting, the EU has concluded agreements with third parties on extradition and on mutual legal assistance, especially the United States. The EU has also concluded strongly debated agreements on the personal name records (PNR), the personal data for aviation, and on terrorist financial tracking programme (TTFP), the famous SWIFT (swift company) file. Some are of the opinion that these agreements are just verbatim copies of US domestic policy and that they are on our table because the US exports its security agenda to the European region. There is indeed much truth in this, it does not seem to be that black and white. In those agreements – be it the one on extradition, the one on mutual legal assistance with the United States or be it the PNR or the TFTP agreements – Europe has at least tried (even if with moderate success) to build in references to our common values. They have tried to build in the prohibition of the death penalty in the agreement in extradition. Maybe not strongly enough, but at least they have tried. If one looks at the agreements on PNR and TFTP as an example, they have tried in several stages (because on several occasions the agreements were sent back or declared void by the Court of Justice) to build in notions of privacy and data protection, which are, as one knows, human rights under the ECHR and the Charter. Also concerning terrorism, one can see the actions taken by the Court of Justice concerning the restrictive measures and the sanctions coming from the UN, which were copy pasted from the ones that were introduced in the United States during and after the Clinton Administration. The CJEU has been very clear about this in its landmark ruling in Kadi & Barakaat 13 in the sense that these sanctions are only acceptable if they are in line with the basic values of the EU constitutional legal order. This means that if these sanctions are imposed by executive bodies, like the Commission, or the Council, they must be proportionate, they must be reasonable and they must be subject to judicial scrutiny by the courts; and of course, there are certain rights for those persons involved, such as access to the file, access to the courts and defence rights. So, this reasoning of the Court of Justice, compared to the reasoning in all the international fora, is a very strong endorsement of the rule of law in the EU.
There are also other examples and that is the reason for the reference to a larger category of European values or global values at the beginning of this text. Europe is a strong, internal market. For many countries and many economic operators, it is a most interesting market to have access to and to sell goods or services therein. If one has a strong market, one can regulate the goods that enter and lay down conditions that have to be met. So, one can regulate access and only import the goods that one wants. For instance, we import a great deal of timber, tropical wood as well as exotic wood. We know that in the countries of origin for this wood, its exploitation is not always done in a very legal manner and sometimes causes a great deal of harm to the environment. Europe has elaborated a timber regulation setting specific standards for the importation of that type of wood and also standards that are linked to the production and the whole chain of commercialization to Europe. These standards concern the preservation of the environment and also have to do with the contextual conditions in the countries of origin. The regime is flanked by enforcement mechanisms under administrative law and (possibly) under criminal law, as well as civil law mechanisms. While regulating access to the European market, the EU has been trying not only to maximize economic interests but also to bring in interests of a global value. But the whole enforcement of regulatory policies remains very invisible and if there are obligations, they are mostly in the administrative area. Criminal law obligations remain rare and, if they are imposed, it is very often the case that they are not enforced in practice.
The other example concerns illegal, unreported and unregulated fishing (IUU fishing). The EU is the biggest importer of fish in the world. It is an enormous market, very interesting for many economic operators. Most of the fish do not come from the Community pond, they come from far away. Also here, Europe has a tremendous responsibility. There are many international treaties and also many EU regulations on fishing, but they mostly concentrate on fisheries management. Enforcement is left to the nation states even when there is the substantial involvement of organized crime in IUU fishing. To improve the situation, the EU could trigger the negotiation of an additional protocol to the UN Treaty on Organised Crime for instance.
A final example: the trade in conflict diamonds. In the Jewish diamond neighbourhood of Antwerp, there are not only specialized facilities for the cutting and selling of such diamonds but also hotels specialized in clients who have been smuggling these diamonds from West Africa. Many of these diamonds have not only been illegally transported and traded but are emanating from areas in military conflict. Illegal mining and trading in these diamonds is simply a tool to finance the military conflict, which is the reason why they are called blood diamonds. So, it is also about serious violations of human rights. The Kimberley Process, in which governments, NGOs and industry cooperate, has established a body charged with ensuring that these diamonds do not fall into the hands of consumers. This week its annual plenary session closed in Dubai, hailing ‘progress’ in the industry to meet the challenges in the supply chain. It is a good example of how one can regulate and develop enforcement schemes to protect global values.
Maybe the same could be said, although it is admittedly a little more complicated, about data protection. The EU has recently adopted a regulatory package on data protection, with the aim being to also give it an extraterritorial reach. That means that also economic operators from the United States, for instance, have to comply therewith and that EU citizens can derive rights under this scheme. It is of course very interesting that one can say to an economic operator, a service provider, ‘you have to clean this and this and you have to remove certain messages’, but it is also an enforcement issue related to these economic operators. What if they do not do so? And how will we deal with this in an external setting with operators who do have their legal domicile in the United States?
A last example concerning an issue that is still under negotiation. The Commission has proposed a regulation in order to, in its own words, ‘modernise and strengthen controls on exports of dual-use items’. So, here we are not dealing with access to the market, we are dealing with the export of our products. The problem is that dual-use items can be used for military purposes and for civilian purposes. 14 For instance, in the past, there have been some problems with special night vision binoculars which are also useful in times of war, and not only to go birdwatching at night. Now, technology is developing so rapidly that a whole set of cyber-surveillance techniques can have a dual use. We produce these technologies and we export them to countries where there are wars or to countries which are known to engage in very serious human rights violations. So, the Union wants to impose licensing and conditions for the export of these products which are also linked to these types of human rights violations in order to regulate and control potential risks. Also, the same question of the enforcement regime emerges. And considering the items we are dealing with, it is not unthinkable that criminal law could or should play a role here.
Concluding remarks
If we overlook this, what are the challenges? Quite a lot, I am afraid. This area (freedom, security and justice), whatever the political dynamic might be in the years to come, will remain an important area of functional territoriality. There are weaknesses, however, like overcriminalization in certain areas, and, in other areas such as the gathering and admissibility of evidence, a lack of activity and proposals. But one of the main problems of the AFSJ is that its transnational dimension is still very weak. When one thinks about gathering evidence transnationally in the area, it is still very much based on the activity of the national domestic systems, which mostly work for a national agenda. Also, the transnational application of procedural safeguards remains fragile. Hopefully, the Court of Justice will provide more content to this transnational dimension when it has the possibility to do so through the Charter.
There is also a serious problem with Article 83(2) – the criminal enforcement of harmonized areas – and we have already seen this from my examples. There is a great deal of potential here that has not been used and that should be used in order to meet these new challenges and protect the new global values. Also, bearing in mind the financial and economic crisis, if we look into how the United States is dealing with serious violations of corporate bodies, tax violations, financial violations, economic violations, corruption and how we in Europe are dealing with corporate bodies, both European and foreign, we conclude that we are very weak. 15 And if we do have an approach it is mostly a domestic one, it is not a coordinated one, there is no EU agenda on this, and it depends so much on the national agenda. Switzerland is very active, the United Kingdom is very active, while in some other countries it does not seem to exist at all. That is awkward, because there is also a common challenge and a common interest.
Concerning the mutual legal assistance and mutual recognition scheme, which is also one of the topics, there have been many initiatives and a great deal of work here, but many of these instruments are not applied in practice, the European Arrest Warrant being one of the few exceptions. Even with those that function, we should have important discussions on the (re)equilibration of what is an equivalent application of this instrument in the common area and what is also the equivalent protection of human rights under this instrument. These discussions have already been ongoing for a couple of years but a crystallized balance of interests should now be attained in all of these instruments.
Finally, for the external perspective, if we look at what the Union has been doing in externalizing these policies, a great deal has been done, but it remains mostly invisible. Just to give an example: if the (metaphorical) ‘embassy of the EU’ in the United States is intervening in many cases where there is the risk of the death penalty, why do we not see this? In many instances, it is more a question of visibility, coordination and transparency rather than of the renewal of this policy. The EU and its Member States should be proud of their achievements when it comes to upholding common values and they should keep trying to externalize them – and publicize those efforts.
Footnotes
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.