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The summer is coming to an end, and it is about time for all of us, EU Criminal Law academics and practitioners, to prepare for the rentrée by diving back into the hot topics of the upcoming Judicial and Academic Year.
This September issue is an ideal starting point, covering an appealing set of topics: (i) digital and cross-border evidence; (ii) the European Public Prosecutor’s Office (‘EPPO’); (iii) the rights of victims of crime; (iv) ne bis in idem and conflicts of jurisdiction; and (v) proportionality as a tool for limitation of criminal-law related fundamental rights.
The first topic is covered in a piece by Georgios Sagittae, 1 dealing with the legality of ‘EncroChat’ and ‘Sky-ECC’ operations. The author argues that the procedures put in place by the Dutch authorities in those cases are compliant with Articles 6 and 8 European Convention on Human Rights (‘ECHR'). This is in direct response to what was argued in a joint statement made by several EU lawyers and the NGO Fair Trials. 2 Will there be a rebuttal by the defence? The subject is and will continue to be highly topical, as evidence obtained in the relevant operations continues to travel through Europe by means of law enforcement and judicial cooperation channels. One of the next landmarks will be the delivery of the Opinion of Advocate General Capeta in case C-670/22, expected late October this year. 3
Secondly, this issue includes a piece by Maria Slimani 4 discussing the changes brought about into the French criminal justice system by the EPPO and the impact these may have on the role and place of the investigative judge in the French system. She equally addresses the impact arising from the prerogative given to the European Delegated Prosecutors in France as to the choice to conduct the investigation under the legal framework of a ‘simple investigation’ or a ‘judicial information’ and, consequently, the applicable legal framework of the rights of the defence. The author notes that the Regulation only refers to limited minimum standards in this respect, that may (or not) be supplemented by stronger domestic protections. She hopes for a more harmonised legal framework in the field of the rights of the defence and argues for the creation of a trial criminal court at EU level for EPPO cases, thereby ensuring greater equality between those who will stand for trial in such cases, not only at a procedural level, but also in terms of sentencing. Again, this piece touches on a topical matter, as we wait for the Court of Justice of the EU (‘CJEU') to issue its first-ever preliminary ruling in an EPPO case (C-281/22) 5 later this year, and see the Court’s docket of EPPO cases growing and touching fundamental issues such as the right to judicial review (see cases C-292/23, 6 T-385/23 and T-103/23). 7
Two pieces approach the rights of victims at EU level from different yet complementary perspectives. Liam O’Driscoll 8 looks at victims of violent crime and their right to compensation by the state, showing that the scope of protection offered through Directive 2004/80/EC has been limited and uncertain. The contribution offers a detailed account of the development of EU legislation and the development of the EU case law in this field, from a more limited view to the recognition of a right to fair and appropriate state compensation, i.e. a EU-forged minimum right. Despite the existing limitations, the author argues that the most recent developments show the adoption of a genuine rights-based approach to victim support in EU law and policy which should set the tone of future reform, namely by legislating on the right to state compensation and further victims’ rights in a sole instrument. Again, the piece is highly topical as the Commission recently published a Proposal for a Directive amending the Victims’ Rights Directive. 9 While Liam looks at victims of violent crime, a piece authored by Diogo Pereira Coelho and myself 10 looks at the rights of victims from a completely different perspective, focusing on our practice defending victims of cross-border fraud involving money laundering throughout the banking systems in EU Member States. The piece notes that in this context Anti-Money-Laundering (AML) mechanisms such as the preventive suspension of banking operations, which have not been built or designed bearing victims' interests in mind, are essential to the recovery of the proceeds and their return to fraud victims. This begs the question: should the victim of the predicate fraud offence have an explicit place in the AML legal framework? A topic that should also be addressed in the context of the strategy for victims’ rights.
Ger Coffey 11 and Andrew Zuidema 12 in turn take us through two different but well-connected topics: ne bis in idem and conflicts of jurisdiction. Andrew addresses the issue of conflicts of jurisdiction from a less common perspective, comparing the system in place in respect of conflicts between Member States (Framework Decision 2009/948/JHA) and in EPPO cases (Regulation 2017/1939). The author argues that the Regulation establishes a more developed system, in that it provides for ‘tangible criteria when deciding on the MS of forum (preventing forum-shopping), forbids two authorities from conducting an investigation (prevents potential ne bis in idem consequences), and provides a way to merge cases together to the benefit of the accused (principle of concentration), and finally expands beyond only resolving in concreto positive conflicts by also including in abstracto positive conflicts and in concreto negative conflicts’. The development of an effective and binding system for decisions on jurisdictional conflicts is indeed a relevant topic which should be on the table of EU legislators. Last April the Commission published a Proposal for a Regulation on the transfer of proceedings in criminal matters. 13 Despite stating that the proposed common rules on ‘criteria and procedure for requesting the transfer of criminal proceedings and for the procedure for taking a decision on the transfer of criminal proceedings […] aim to prevent unnecessary parallel criminal proceedings concerning the same facts and the same person being conducted in two or more Member States, as well to reduce the number of multiple proceedings and to avoid impunity where the surrender of a person for whom a European Arrest Warrant was issued is refused’, the proposed Regulation does not address the topic of the prevention and settlement of conflicts of jurisdiction itself. One of the key reasons and purposes of preventing positive conflicts of jurisdiction is the protection of ne bis in idem which normally includes, at the domestic level, a prohibition of parallel proceedings for the same facts against the same person. The prohibition of lis pendens at cross-border level does not exist so far in EU law – should it be established in the framework of the development of a more advanced system of prevention and settlement of conflicts of jurisdiction? Lawyers in need to read a comprehensive yet concise and up-to-date account of the case law of the European Court of Human Rights (‘ECtHR') and of the CJEU on three fundamental provisions recognising the right to be free from multiple prosecution and punishment (Articles 7 ECHR, 50 Charter of Fundamental Rights of the EU, and 54 of the Convention Implementing the Schengen Agreement) will find what they need in Ger Coffey’s piece. The author analyses the relevant case law with a critical eye, in order to identify the relevant criteria and the points of contact and of conflict between the two European Courts. He points out that the issue causing the most tension is the combination of (formally) administrative and criminal proceedings for the same facts, where there is nonetheless a reciprocal influence among the two Courts. An issue that continues to be on the forefront, as cases touching this essential fundamental right keep coming before both the ECtHR and CJEU, but the approach of these Courts is subject to criticism, as shown in the last contribution addressed in this editorial.
Last – but not the least – Emil Śliwiński 14 provides us with a critical assessment of the principle of proportionality as tool for limitation of fundamental rights in the realm of criminal law. Looking at the ECtHR and CJEU case law – such as A and B v Norway, 15 Menci, 16 Tsonyo Tsonev v Bulgaria (no 4,) 17 Saquetti Inglesias v Spain 18 and the P16-2021-001 advisory opinion 19 – the author shows how the use of proportionality as a principle for balancing competing fundamental rights is often not only dogmatically flawed but likewise at odds with the effective protection of rights, as is the case with nullum crime sine lege, ne bis in idem and the right to appeal. He therefore argues that the principle of proportionality has no place in the definition of the content of such rights, which should rather be seen as rules and not principles (following the distinction by Dworkin and Alexy). Emil identifies a dangerous trend in the case law of those Courts, insofar as they seem to try to correct legislative defects ex post using the principle of proportionality, and invites both the ECtHR and the CJEU to review their approach and implement a ‘proportionality-free, effectiveness-focused attitude to criminal-law-related provisions of human rights acts‘. A must-read for those trying to challenge the existing case-law.
Looking at the breadth of matters addressed in this issue of our Journal, and the ongoing legislative and judicial processes in respect thereof, one cannot but corroborate that a far-reaching European Criminal Justice System is on the forge.
I reiterate my wishes that this system fulfils the ‘dream of a real “Union founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights” which “shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States”, including “full compliance” with the Charter and the aim of fairness and equality of arms'. 20 We are all able to give our small contribution to reach this aim, by researching, reflecting, advocating, and publishing on the relevant topics. Our readership is invited to use the New Journal of European Criminal Law to this end!
Defence Lawyer, Vice-Chair of the European Criminal Bar Association