New Journal of European Criminal Law

This article examines, first of all, the role of fundamental rights in the evolution of European law through the interpretation of the ECtHR (above all in the so-called ‘pilot’ judgments) and the CJEU, and, secondly, how the recognition of fundamental rights by the European Courts influences and harmonises the domestic legal orders, particularly in the field of criminal law.

Viewed in this way, fundamental rights assume a double function: on the one hand as a limit on the punitive power of the State, and on the other hand as a source of positive obligation to criminalise in order to guarantee their protection. It is argued that the principle of proportionality represents the criterion used by the European Courts to evaluate the respect of fundamental rights within European and national legislation, in particular on the imposition of punitive sanctions, as provided for by Article 49(3) of the Nice Charter.

This article analyses the impact of the use of data processing mechanisms (i.e. data mining and profiling) as investigative tools on the fundamental rights of individuals. It highlights the pressing need to achieve a fair balance between social security and individual's freedoms when data processing mechanisms are used in criminal investigations, providing for a set of limits to ensure the necessary protection of fundamental rights of individuals, without frustrating investigation exigencies. In this respect, the article examines the current EU legislation and the new proposals under discussion concerning the protection of privacy and data protection at the EU level, the relevant case law of the European Courts (CJEU and EctHR) and the general tendencies in the Member States' legislation, in order to build up an ‘integrated table’ of constraints, particularly useful for the European legislator in the adoption of common legislation at the EU level.

The article also stresses the crucial role of the CJEU in achieving the above mentioned balance between investigation needs and individuals' rights protection, especially after the entry into force of the Lisbon Treaty and the explicit recognition of the binding nature of the Charter of fundamental rights of the European Union providing for an express provision on data protection. The authors nevertheless point out the remaining prominent role of the ECtHR in protecting fundamental rights at the supranational level, because of some persisting limitations to the competence of the CJEU in AFSJ matters, and the perspective of enhancement of fundamental rights protection at EU level following future EU accession to ECHR.

The article examines the concretisation of criminal defence rights under EU law through a set of Directives designed to strengthen procedural safeguards. The article reviews the origins of the new measures, designed to provide a stronger basis for judicial cooperation based on mutual trust. It examines the shortcomings of the existing system of protection of fair trial rights under the European Convention on Human Rights and considers whether, and how, EU law can improve the situation. The article recognises that the new measures, monitored and enforced by the European Commission, provide new possibilities for civil society organisations. However, it argues that the main opportunity is for enhanced protection of defence rights in the national courts. The measures themselves, the Charter of Fundamental Rights and the possibility to seek timely guidance from the Court of Justice of the EU constitute new tools which, if national courts can be persuaded to use them, could appreciably advance fair trial rights protection in the EU. The experiment will reveal the usefulness of EU law as a driver of fundamental rights compliance in the post-Lisbon era.

After having eradicated the death penalty from its own territory about ten years ago, the EU shifted its focus towards retentionist states outside its borders. Given the importance of extradition and mutual legal assistance, the refusal of cooperation was a powerful tool to spread abolition beyond European shores. In the 21^st century, however, the unstoppable growth of transnational mobility and communications has pushed traditional judicial cooperation to its limits. Transnational crime is flourishing and law enforcement simply cannot lag behind. In the framework of the ‘area of Freedom, Security and Justice’, the European Union started to create new forms of cooperation which simplify the burdensome procedures of traditional extradition and mutual legal assistance and which speed up the proceedings. The pragmatic new instruments make criminal law enforcement practice easier, so it is likely there will be a spill-over effect on cooperation between the EU or its Member States and third countries. The central thesis of this contribution is that this evolution is bound to lead to the demise or at least, the growing irrelevance of death penalty clauses as a tool in the EU's fight against capital punishment.