Abstract
More than 60 years have passed since the Treaty of Paris, after having established the European Steel and Coal Community, set the foundations of what has become the present European Union (EU). While the security and market interests were – and still are – dominant in the then European Community which is now the European Union, the decisive move towards greater political integration and the efforts to create a true European citizenship have turned this regional supranational organization into one of the most interesting constitutional ‘laboratories’ in the world. Judicial cooperation in civil and commercial matters has for long been at the forefront of European interests, as long as the free circulation this kind of judgments is crucial for economic transactions and the transnational enforcement of contracts. This is why already on 27 September 1968 the European Convention of Brussels on the jurisdiction, recognition and enforcement of judgments in civil and commercial matters was adopted, a Convention that has evolved in the present EU Regulation 1215/12. In contrast, cooperation in criminal matters was somehow lagging behind, not only because sovereign States have always been reluctant to yield powers in the field of crime and criminal prosecution, but perhaps because it was not regarded as a priority for a European Community striving primarily to become a strong economic player.
But cooperation in criminal matters has not only gained relevance, since the alarming increase of truly transnational crimes – such as cybercrime and organised criminality –, but it has become highly necessary since the abolition of internal border controls through the Schengen agreement. Cooperation needs to be effective in the area of criminal matters. Mirroring somewhat the principle of automatic recognition already tested with regard to civil and commercial judgments, Europe has also advanced toward cooperation based on the principle of mutual recognition in criminal matters. While an efficient cooperation is demanded in the single Area of Freedom, Security and Justice, the increasing powers of the prosecution cannot leave behind the need for protection of fundamental rights, and as criminal procedure is mainly a framework of guarantees for citizens, the protection of procedural rights have to be effectively upheld in a European Union that aims to be governed by the Rule of Law.
This newly published Handbook of European Criminal Procedure, is edited by Roberto E Kostoris, Professor at the University of Padova (Italy), who needs no introduction: he is well known in academia and not only among those who study criminal justice. In his lengthy carriera accademica, his works have focused primarily on fundamental rights at the European level, but he has also written extensively on diverse topics relating to criminal procedure. It is not by chance that he is ‘accompanied’ in this Handbook by one of the most qualified scholars and lawyers in the field: indeed, the director of the volume has selected ideal co-authors as companions for this literary journey.
The Handbook deals with the evolution, instruments and principles that frame what could be called ‘European Criminal Procedure’, in which the European multilevel system for the protection of fundamental rights plays a crucial role.
This comprehensive, rigorous and fully updated Handbook represents a major contribution in the field. This is not only because it embraces all the dimensions of EU criminal procedure, but also because it has been written by highly specialized and qualified academics and practitioners. It is not just another manual: this Handbook is the product of very experienced academics who are very much aware of the importance of integrating the views and knowledge of legal practitioners into legal analysis. Each contributor is a renowned scholar and professional and, led by Roberto Kostoris, the result can only be described as outstanding and I am sure it is a core text in this field.
Indeed, one of the significant contributions of this Handbook is that it covers the main instruments operating in the area of freedom, security and justice (AFSJ) – both in the realm of policing and in the realm of judicial cooperation –but it also includes the broad perspective for understanding where such instruments are to be applied and the standards of fundamental rights with which they have to comply. To that end, the book starts with a detailed analysis by Kostoris of the European Criminal Justice System. The complexity of the historical evolution and the institutional setting of the European Union and the even more difficult interplay between the systems for protecting fundamental rights, integrating within the EU the standards set out by the European Court of Human Rights (ECHR), are addressed in the first chapter. The Handbook succeeds in giving a complete but concise overview of the European system – principles, decision-making processes, sources of law and coordination between domestic and supranational law – while at the same time it provides the necessary depth to understand the area of freedom, security and justice (AFSJ) and also the aims and foundations of the so-called European criminal procedure.
The second part of the Handbook is devoted to the protection of fundamental rights, starting with a clear and well balanced explanation on how the system of multilevel protection works, it then elaborates on the precise content of those fundamental rights. It requires a very deep knowledge and structured mind to succeed in making easy the understanding of the complex relationship between the peculiar multilayered system of the protection of fundamental rights by the national courts, the European Court of Justice (CJEU) applying the Charter of Fundamental Rights, and the Strasbourg Court in a Handbook. But Kostoris gently guides the reader through different layers of the European system of protection of fundamental rights and succeeds in providing clarity on the intricacies of this complex system.
The author analyses the principles of conferral and equivalence, the principle of propotionality and its meaning within the unique system provided in Article 6.3 of the Treaty of the European Union– “Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law–” in connection with Article 52.3 of the Charter. The Handbook also addresses the difficult issue regarding the EU’s accession to the ECHR – non-accession to date following the refusal by the CJEU to the agreement in its Opinion 2/13 of 14 December – which is clearly explained. And this is not an easy task taking into account the special structure of the EU and the unique interplay between the two Courts, due to the need to preserve the specificities of the EU and the principles of the effectiveness and primacy of EU law over domestic law in the areas governed by it. The relationship between EU secondary law and the level of protection granted by the Member States’ Constitutions as set out under Article 53 of the Charter is also clarified in a successful way without entering into tiny details and complex diverse constitutional theories, but including important references to the leading cases of the CJEU, as well as the national Constitutional Courts. Balancing the interests of the EU and those of the national constitutional traditions is one of the major challenges within the EU legal framework because sometimes unavoidable risk of a clash the between courts is often evident as clearly seen in the cases of Melloni or Taricco.
In chapter 3 Antonio Balsamo deals with the content and regulation of each of the fundamental rights enshrined in the broad concept of ‘Fair Trial safeguards’ both within the ECHR framework and in the EU Directives on the rights of the accused and the victims in criminal proceedings. By addressing them jointly, the author facilitates the understanding of the two systems which need to be coherent, despite the fact that the EU level of protection is not restricted to the one granted by the ECHR system according to the principle of more extensive protection of Article 53 of the Charter.
Part III is devoted to cooperation, paying special attention to its origins, the institutional framework and the typology of instruments that underpin judicial and police cooperation. The historical chapter by Anne Weyembergh begins with the Schengen Agreement and concludes with an assessment of the 8 years of application of the Lisbon Treaty which is essential for understanding the development and present state of the AFSJ, because without knowing the past it is impossible to advance to the future. The move from intergovernmental cooperation towards the building of a single judicial area based on the principle of mutual recognition has been nothing but easy with each of the member States fighting for their own interests, while at the same time striving to make the most out of the European Union and play the game together, despite the many discrepancies. Professor Weyembergh also achieves to summarize – as required in a Handbook – the complex history of the cooperation by correctly selecting the major elements and sparing the reader from unimportant details and useless nuances.
Chapters 5 and 6 deal with the systems of police and judicial cooperation, both at the vertical and the horizontal level. Gaetano de Amicis and Roberto Kostoris analyse OLAF, Europol, Eurojust and the European Public Prosecutor’s Office as well as all the horizontal cooperation institutions – customs cooperation, financial intelligence units, the European Judicial Network or the joint investigation teams among others. Along more than 70 pages both authors manage to address the most relevant features of the diverse institutions that act in the police and judicial coopertion in criminal matters.
Part IV focuses mainly on the instruments of mutual recognition and harmonization. In chapter 7, John Spencer examines the concept of mutual recognition addressing in detail its evolution, its meaning the differences with the traditional conventional mutual legal assistance system, as well as the potential for confusion if the principles of mutual recognition applicable to civil and commercial matters and within the trade regulations are translated to the area of criminal law. Prof. Spencer underlines again that in order to ensure the smooth implementation of the principle of mutual recognition in criminal matters, further harmonization and mutual trust might be necessary and further dialogue with national constitutional principles might also be unavoidable.
Chapters 8 and 9 are focused on two of the most relevant mutual recognition instruments regarding cooperation in criminal matters, namely the European Arrest Warrant (EAW), and the recently transposed European Investigation Order. It is not by chance that Chapter 8, written by Marta Bargis, is one of the longest, as the experience with the EAW has paved the way for the subsequent instruments adopted, but has also shown the obstacles that the principle of mutual recognition is encountering. Throughout more than 50 pages, Bargis delves into the background, content and implementation of the EAW, as well as the challenges this instrument is facing vis-à-vis the constitutional principles of the Member States. The next chapter by Marcello Daniele and Ersilia Calvanese analyses transnational evidence gathering in the EU, from the MLA system of letters rogatory to the European Investigation Order. The negotiations within the EU towards the adoption of an instrument that would ensure a swift cooperation in the gathering, transfer and admissibility of evidence have been long and challenging. Following the Tampere European Council of 1999, a first proposal for a limited European Evidence Warrant was presented in 2003 which was not adopted until 2008. Since the very beginning it was foreseeable that this instrument would not be successful due to its limited scope of application, and this explains why the Commission was working in parallel on a more comprehensive instrument: but it was not until 2014 that the Directive on the European Investigation Order (EIO) was adopted, although it took another 3 years to enter into force. As the authors show, the development of this evidence-gathering instrument has been softened by the fear of going too far into the principle of mutual recognition. At the end, the EIO is a hybrid instrument, based upon the mutual recognition principle but keeping the flexibility of the mutual legal assistance regime, a solution that might not have pleased everyone, but one that still seems to strike the right balance between the competing interests of the different Member States. All these issues are rigorously addressed in the Chapter by Daniele and Calvanese in which they demonstrate their solid academic background. Calvanese also writes Chapter 12 on the enforcement of confiscation orders and she thoroughly addresses the content of the mutual recognition instrument as regulated under the 2014 Directive, including the problems of the extended confiscation.
Chapter 10, written by Pier Paolo Paulesu, addresses the most relevant aspects regarding the principle of ne bis in idem and the rules on conflicts of jurisdiction, pointing out the problems for avoiding litsipendentia and for ensuring the rights of the defence when it comes to the choice of forum. Paulesu correctly underscores the need to adopt precise rules on jurisdiction in criminal matters in a scenario where an increasing number of crimes have a transnational dimension, and the possible conflicts of jurisdiction will also increase accordingly. While traditional rules based on national sovereignty did not view such an overlap as somethign problematic in a single area of freedom, security and justice the approach has to evolve to a different understanding. Paulesu also writes the next Chapter 11 on the Enforcement of Judicial Decisions, addressing the questions that Framework Decision 2008/909/JHA poses. In particular he analyses the means of reconciling the aim of resocialization of the person convicted with the effective serving of the sentence, and the difficulties that entail as regards the cross-border application of the suspension of sentences and the application of alternative measures to a custodial sentence.
As Kostoris explains, this book is an updated and revised version of the Handbook published in Italian by Giuffrè, which is already by its third edition. It is indeed a welcome addition that the Handbook now appears in English, thus making it available to a much broader readership. Italian legal scholarship is widely recognized and has a long-established worldwide prestige. However, its vast academic and excellent reputation is sometimes not sufficiently recognized in the European scientific arena precisely because of such language barriers. This is why European criminal lawyers will be glad to be able to avail of this comprehensive Handbook on criminal procedure, which will definitely contribute to the understanding and establishment of a genuine European judicial and law enforcement culture.