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 >>>

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 >>>