RICERCA ITALIANA     

Individual guarantees and judicial cooperation in criminal matters in the European Union

Università degli Studi di Milano

Abstract

The judicial cooperation in criminal matters in the European Union – regulated in the Maastricht Treaty Third Pillar, as modified and integrated by Amsterdam and Nice Treaties - is founded on a complex institutional framework and, in the last years, it gave rise to a variety of initiatives aimed at the creation of a unified European judicial area, both through the fulfilment of the principle of mutual recognition of decisions in criminal matters and the promotion of an increasing harmonization of procedural and substantive law among Member States. These measures unavoidably affect individual safeguards, raising problems about the consistency both with national constitutions and with international conventions on human rights, in particular with the 1950 European Convention on the Protection of Human Rights and Fundamental Freedoms.
First of all, the research programme aims at devising the institutional framework responsible for the judicial cooperation in criminal matters in the European Union, emphasizing inconsistencies and lacunae, and checking the incidence that the coming into force of the Treaty establishing a Constitution for Europe will have on the whole picture. It aims, then, at analysing the bearing on individual safeguards of the various measures adopted, during the last years, in the framework of the Third Pillar, under two specific aspects: that relating to procedural safeguards in criminal proceedings, and that relating to the necessary balancing between preventing and fighting terrorism and promoting and respecting fundamental rights. European Union law will be considered, in particular, in the light of Member States' obligations arising out of international human rights conventions. <<<

Principal Investigator

Bruno NASCIMBENE Università degli Studi di MILANO

Research Objectives

The research program aims at examining the delicate issue of the compliance by EU measures adopted in the field of judicial cooperation in criminal matters with the need to protect individual rights, which in the European area are especially enshrined in the European Convention on Human Rights. Respect for individual rights is also imposed by other international treaties, as the 1966 International Covenant on Civil and Political Rights, to which all EU Member States are parties, and by Article 6 of the Treaty on European Union. Moreover, a "constitutionalization" of fundamental rights is envisaged, owing to the coming into force of the Treaty establishing a Constitution for Europe: it incorporates the EU Charter of Fundamental Rights, proclaimed in Nice on 7 September 2000, and provides for EU accession to ECHR, so that EU acts would be subject to control by the European Court of Human Rights.
After the September 11 events, the question of the relationship between the protection of human rights and the legitimate demand of enhanced effectiveness in crime fighting re-emerged with absolute urgency. That demand is obviously acute, above all in relation to transnational organised crime, in an integrated economic area, with all the complexities and problems arising out of the attribution to the Union, with the Treaty of Amsterdam, of the relative competence. Through a considerable number of measures, multiplied during the last years, the Community and the Union have been pursuing the aim of creating a single judicial area in criminal matters. The potential direct incidence of public security measures – both at the Community and at the Union level – on individual rights, has already alarmed scholars and led up to the first applications to the European Court on Human Rights and to the Court of First Instance; exhaustive doctrinal efforts in view of an overall assessment of the different measures and of a critical reading of them is needed.
Indeed, some uncertainties already lie in the definition of EU competencies in this field, due to the States' unwillingness to give up their national prerogatives, which determined a restriction of the Union powers in respect of those defined in the so-called Community pillar: this topic will be the subject of the research program that will be carried out by Research Unit I (University of Milan – Faculty of Law). That investigation will also deal with the competences and the relations among the various Community institutions and the newly created bodies, such as Europol and Eurojust, dealing with the promotion of judicial cooperation; and it will cover the relevant changes introduced by the Treaty establishing a Constitution for Europe.
With regard to human rights protection, the topic of the relationship between EU measures aiming at the mutual recognition of judicial decisions in criminal matters and the protection of the rights of suspects and defendants in criminal proceedings is particularly critical. Research Unit II (University of Milan – Faculty of Political Sciences) will deal with this subject. In particular, it aims at evaluating the incidence of these measures on procedural safeguards provided for by international conventions, in particular by the European Convention on Human Rights; and at establishing the need to elaborate common minimum standards with regard to procedural safeguards, in order to counterbalance some effects of mutual recognition measures, the most famous example among which is the European arrest warrant. The issue is not only very delicate – practice shows that measures adopted for collective security reasons, both by the Community as in national contexts, are precisely aimed at affecting procedural safeguards – but it is also evolving every day. The engagement of the Union to achieve common minimum standards with regard to procedural safeguards is very recent and still largely in a planning phase.
The fight on terrorism is undoubtedly the main challenge for the European Union, when exercising its competences in the wider framework of judicial cooperation in criminal matters. The Community and Union measures in this field will be enquired by Research Unit III (University of Turin – Faculty of Law –), which will investigate their capacity to affect individual rights, as guaranteed by international human rights conventions and by EU itself. Apart from the well-known Council Framework Decision of 13 June 2002, defining terrorism as one of the most serious violations of the EU founding principles of democracy and the rule of law, several other measures have been adopted to combat the terrorist phenomenon: some of them, such as some common positions, were adopted in the CFSP framework; others, in the Community framework, such as, for instance, Regulation 467/2001 – specifically aimed at freezing assets belonging to members of the Taliban regime – and Regulation 2580/2001 – more generally aimed at hitting the terrorist suspects' funds. The various critical aspects relating to the implementation of these measures shall be examined, as well with regard to the substantive aspect of their actual incidence on fundamental human rights, as with reference to the judicial issues, due to the lack of remedies for individuals in the EU legal system, at least in the case of common position identifying their targets as persons involved in terrorist actions. <<<

Timescale

24 months

National and international background

The research program scientific bases consist of:
a) the Community legal acts, establishing bodies with the specific function of promoting cooperation in criminal matters among Member States;
b) the EU measures pursuing the aim of mutual recognition of final decisions in criminal matters, and their national implementation;
c) the specific antiterrorism measures, adopted both under the CFSP and the Community frameworks;
d) the case law of the Community judicial bodies and of the European Court of Human Rights, as well as the UN Human Rights Committee practice, establishing a balancing between collective security needs and the protection of individual rights;
e) the outcomes of legal writings, as mentioned in the bibliography.

For further and more specific information relating to the research program scientific bases, please consult model B of the various Research Units. <<<