RICERCA ITALIANA     

Preventative custody of the accused and the right to freedom in the European Union

Università degli Studi di Perugia

Abstract

In the sphere of the relationship between remand and the right to freedom in Europe, the rapid circulation of measures limiting personal freedom during a criminal trial represents an undeniable change. While this phenomenon has been studied at the national level, little research exists that examines this argument in an international context.
It should be specified that article 6 of the E.U. Treaty imposes that each individual jurisdiction of the member states adapts the rules emanating from the European Convention regarding human rights; so that article 5 of said pact – where the criteria and limits to the deprivation of personal freedom during a criminal trial are fixed - will have to be taken into account by the member countries.
In the sphere of the relationship between remand and the right to freedom in Europe, the rapid circulation of measures limiting personal freedom during a criminal trial represents an undeniable change. The need to create justice and security in a European framework has driven the Council of Europe to deliberate the argument (n. 584/2002/GAI). It might be possible to replace the laborious system of extradition with a more flexible system, to make it possible to execute an arrest warrant issued by one EU member state with international authority.
The effectiveness of this system requires that the legislature of the individual countries implement the necessary legislation to put this decision into effect. But there has been recent non-homogenous internal legislation among the states.
To cite some examples, the United Kingdom (Extradition Act 2003), allows the immediate arrest of a suspect on a European arrest warrant, once some formalities are taken care of. Another “soft” example is the Danish legislation (Chapter 2a of the law 433/2003) where, beyond the call of 584/2002/GAI, there is in force an explicit prohibition of criticism of any probationary deficit as regards the guilt of the accused in the issuing country.
The aim of this research is to pin point a description of the minimum requirements for European regulation as regards the deprivation of liberty ante judicatum.
To this end, the three fields of research are:
1) to verify through the jurisprudence of the European Court (of justice and of human rights) the potential configuration of guide lines with which to anchor to berth the requirements of the restrictive measures and the degree of guarantee understood in the management of the personal freedom of the suspect;
2) to analyse the disciplines of the main EU countries - those in which the problem is more traditional - in order to find similarities and differences between the single norms and to find a common ground of minimal guarantees;
3) to inquire on the legislation of the main EU countries that have put 584/2002/GAI into effect as regards the European arrest warrant demonstrating the differing degrees of resolution as regards the European arrest warrant.
The research into these three fields will reveal a common framework for safeguards as regards the deprivation of freedom during a criminal trial, and the possibility to draw up a series of minimal rules, which would render the European arrest warrant more effective, while at the same time guaranteeing the international circulation of custodial measures. <<<

Principal Investigator

Adolfo SCALFATI Università degli Studi di PERUGIA

Research Objectives

The objective of the program is to analyse the discipline of precautionary custody (presumptions, controls, and duration) as regards the main EU countries, particularly in those with a greater sense of respect for fundamental freedoms.
The aim is not only to draw not to draw conclusions that reflect on the current Italian legislation, but also, and above all, to individuate a common framework of European guarantees as a basis in order to create conformity between the distinct national jurisdictions as regards this topic. This survey also allows us to progress with the other aim of the search, which concerns the search for a common criteria for mutual acknowledgement between nations as regards each others coercive measures, in order to obtain the smooth hand over of suspects for trial. The analysis of the jurisprudence of the European court of human rights is essential to this aim, and the elaboration of the represented criteria and principles is an ideal starting point. <<<

Timescale

24 months

National and international background

The relationship between coercive measures in the criminal trial and fundamental freedoms has up to now mostly been observed from the perspective of individual national disciplines, with a detached tendency to compare the norms with their respective constitutions charters. In recent times, specific research has pre-selected a trans-national perspective, attempting to analyse the principles and criteria from the jurisprudence of the European courts of justice and human rights, which direct domestic legislation.
But such research is not in sufficient depth and does not deal with the problems presented by the field of the preventive custody. Article 6 of the EU treaty provides the impetus for the study of the European conventions on human rights, as it takes in the fundamental freedoms ratified in the above-mentioned treaty.
The theme of the European minimal conditions that legitimise ante judicatum coercive provision coincides with the theme of the mutual acknowledgement between EU states of such provisions, as regards the handing over of suspects.
This argument, whose elaboration has up to now been limited to observations on a national level as regards the enforcement of
decision n. 584/2002/gai in individual nation states, has also been concerned with studies on the subject of extradition, without departing from the area of the relationships between the various jurisdictions.
Only recently have the first steps been taken towards a different idea of judicial collaboration in Europe, in the sense that to the free movement of the people in the European Union equally corresponds with the free circulation of the judicial decisions, in the attempt to export them, without great limits from one country to another. The real problem, then, is the location of the minimal safeguards of protection that can induce an EU country to accept the decisions made about freedom in other state of the union. <<<