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 >>>

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 >>>

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.