New Journal of European Criminal Law

This paper examines the relationship between Directive (EU) 2024/1385 on violence against women, which criminalises the non-consensual sharing of intimate or manipulated material (NCSIMM), and Directive 2011/93/EU on combating child sexual abuse and exploitation, together with its proposed Recast, which addresses child sexual abuse material (CSAM). Although rooted in distinct policy rationales, gender equality on the one hand, and child protection on the other, both instruments adopt a structurally similar approach, linking criminalisation to platform governance, and enhancing victim support and judicial cooperation. Nonetheless, their coordination remains limited, particularly in cases involving minors above the age of sexual consent. Overlapping provisions risk creating ambiguity in interpretation, enforcement and victim protection. As a result, the paper tries to offer legal clarification and policy-oriented guidance. It argues that the scope of CSAM-related offences is significantly broader and more future-oriented than that of NCSIMM, reflecting the persistent framing of children as inherently vulnerable and in need of heightened protection. However, where the boundaries between these offences become blurred, especially in relation to teenagers, the interpretation and enforcement of the law must be guided by respect for sexual autonomy and consent – principles essential to ensuring coherence, proportionality and rights-based protection across the EU framework.

The integration of artificial intelligence (AI) into the area of Anti-Money Laundering and Countering the Financing of Terrorism (AML/CFT) marks an essential shift in how financial institutions and regulators approach the fight against financial crime. In the EU, in 2024, two major regulatory projects reached key milestones: the revision of the AML/CFT framework and the adoption of the AI Act. Although these legislative efforts progressed in parallel, there appears to have been limited coordination between the drafters, resulting in considerable inconsistencies and areas of ambiguity. Even such seemingly basic – yet crucial – issues as the consistent application of the definition of an AI system, the determination of risks possibly entailed by such a system, or the terminology concerning human oversight give rise to concerns. The present article has two primary objectives: first, to provide an in-depth analysis of the interplay between the AI-relevant provisions of the revised AML/CFT framework and the AI Act, highlighting instances of conceptual confusion and practical challenges that those implementing AI in the AML/CFT area may have to face; and second, to identify and examine the areas where the problematic interplay between the two regimes may negatively affect the scope and availability of the protective human rights standards enshrined in the AI Act.

The term ‘executing judicial authority’ (Article 6(2) FD EAW) responsible for deciding on the execution of EAWs, once the final decision to surrender is reached, has recently sparked a discussion. This particularly pertains to the determination of (exceptional) circumstances for temporary postponement of surrender – force majeure, serious humanitarian reasons and the postponement of surrender for criminal prosecution/execution of a sentence (Articles 23(3) and (4) and 24(1) FD EAW). This article unpacks the meaning of these circumstances and analyses the ECJ’s requirement for ‘necessary independence vis-à-vis the executive’, clarifying who qualifies as an ‘executing judicial authority’. The findings illustrate the difficulty in meeting the requirement by bodies other than a judge/court. Its impact on the Dutch system, leading to a new amendment to the surrender law, is demonstrated. The FD establishes a higher standard than the extradition regime (European Convention on Extradition), which does not necessarily require intervention by a ‘judicial authority’. Nonetheless, it is argued that the ECJ’s stringent criteria for an ‘executing judicial authority’ in decisions on actual surrender ensure a consistent interpretation of the FD EAW and maintain a balance between safeguarding (fundamental) rights and the need for efficiency in the EAW system.

Pre-trial detention has been at the centre of the European Union’s policy debate in the last few years. Suggestions to adopt a set of harmonised rules on pre-trial detention within the EU, so far, have been met with resistance. This article begins with an analysis of the existing body of norms set by the EU procedural rights Directives, suggesting how they could enhance the rights of pre-trial detainees. It is argued that this current piecemeal approach to pre-trial detention in the EU remains deeply dissatisfying. The article then moves on to dissect the limits of EU competences to legislate on this field with a view, in particular, to reduce pre-trial detention. It is suggested that the scope of the Union’s normative intervention can be either functional (instrumental to judicial cooperation and mutual trust) or principled (focused on the rights of persons detained, irrespective of its relevance for inter-state cooperation). The article goes on to analyse the recently adopted European Commission’s Recommendation on pre-trial detention. In doing so, it tests the ability of this text to incorporate ECtHR’s case law into EU law and suggests that the Court of Justice may be nudged to develop a bolder interpretation of secondary legislation in accordance with some guidelines included in the Recommendation. The contribution conclusively reflects on the possible way forward, by discussing the constitutional constraints deriving from a strict reading of Article 82 Treaty on the Functioning of the EU and the strategies to get around the main ‘roadblocks’ in the path towards harmonisation and greater protection of fundamental rights behind bars.

This article provides a doctrinal and policy-oriented analysis of the Second Additional Protocol to the Budapest Convention, with a particular focus on its mechanisms for law enforcement access to non-content communications data in non-emergency situations. It interrogates whether the Second Protocol addresses the persistent legal and practical barriers faced by law enforcement agencies in accessing electronic evidence stored overseas. Through a close examination of the Second Protocol’s substantive provisions and their anticipated implementation in the UK and EU member states, the article argues that the Second Protocol is unlikely to achieve its stated objectives. While it formalises elements of voluntary cooperation and introduces safeguards intended to protect fundamental rights, its utility is constrained by legal fragmentation, potential conflicts with domestic data protection frameworks and the lack of robust enforcement mechanisms. Moreover, the article contends that the Second Protocol may, in some instances, complicate existing informal data-sharing practices unless domestic legal frameworks – particularly in the United Kingdom – are aligned with its requirements. Persistent uncertainty regarding the Second Protocol’s compatibility with the EU General Data Protection Regulation and the UK’s data protection regime further undermines its effectiveness. Ultimately, the article concludes that although the Second Protocol marks a significant step in multilateral cooperation in criminal matters, it does not obviate the continued need for bilateral frameworks. Substantial challenges remain in achieving a harmonised, rights-compliant and effective regime for cross-border access to electronic evidence.