RICERCA ITALIANA     

Research program

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

University Co-ordinator

Università degli Studi di MILANO - STUDI INTERNAZIONALI - MILANO(MI)

Research Unit Leader

Marco PEDRAZZI

Description

The project will deal with several critical aspects regarding the relationship between EU measures aiming at the mutual recognition of judicial decisions in criminal matters and procedural safeguards. In the first place, the incidence of these measures on procedural rights protected by international conventions, in particular, by the European Convention on Human Rights (ECHR), and the need for EU harmonisation action in this field will be evaluated. All EU measures and proposals designed with the specific aim to set minimum procedural safeguards will then be examined, under several points of view: firstly, EU competence for adopting the provisions at issue, in the light of the Treaty on European Union in force, as well as, in the long run, in accordance with the Treaty establishing a Constitution for Europe; secondly, the nature of the instruments (framework decisions or others) used for this aim, their legal effect and their actual capacity to affect the legal systems of Member States and, once more in the long run, the nature of the instruments that shall be used once the constitutional Treaty has entered into force; thirdly, the measures' compliance, as well with the principles set out in art. 6 of the Treaty on the European Union and in the Charter of fundamental rights proclaimed in Nice on 7 December 2000, as with the provisions of international conventions on human rights and, in particular, of ECHR; finally, the suitability of the above measures to respond to their aims, in relation with the demand of legal protection emerged from the first part of the research.
Specific attention will be devoted, at the first stage, to the safeguards identified by the Green Paper from the Commission of 19.02.2003 on procedural safeguards for suspects and defendants in criminal proceedings throughout the European Union (COM/2003/0075 final), and subsequently by the Commission proposal for a council framework decision of 28.04.2004 (COM/2004/0328 final): i.e., the right of access to legal assistance before and during trial, the right of access, without charge, to interpretation and translation of procedural acts, the right for suspects to communicate with the outside world, and, in particular, that of foreigners to communicate with consular authorities, and the right for suspects to receive a written communication of their rights; further attention will be devoted to those safeguards that have already been the object of harmonisation measures by the EU, such as in the case of the standing of victims in criminal proceedings (Council Framework Decision 2001/220/JHA of 15 March 2001). The research will then encompass any other safeguard on which EU measures will focus in the near future, as much as any safeguard which is not yet identified by such measures, but is considered needing a harmonisation action.
The investigation requires an exhaustive study of the case law and legal writings relating, on one side, to procedural safeguards in international conventions on human rights, with particular regard to ECHR, as well as in the EU Charter of Fundamental Rights; on the other side, to EU competences and to the nature and the effects of EU legal acts both under the Treaty on European Union and under the Constitutional Treaty. However, the research won't be only theoretical: a great attention will be paid to the data resulting from practical implementation of EU measures pertaining both to the fulfilment of the principle of mutual recognition of decisions in criminal matters and to the determination of minimum procedural safeguards. The whole will be useful in order to weigh the real incidence of the various measures on procedural safeguards; and, at the same time, the incidence that violations of those safeguards inevitably have on the effectiveness of the process leading to the establishment of a single judicial area. In fact, it is clear that if, on the one hand, the adoption of the principle of mutual recognition can make it easier to disregard some safeguards, violations of the latter surely influence the implementation of the principle of mutual recognition and, consequently, the effective working of the whole system. For example, the framework decision on the European arrest warrant is one of the most relevant measures, as far as the incidence on individual safeguards is concerned: today we can get valuable indications from a comparative analysis, as well of national legislations adopted by Member States (as for Italy, in approval stage) in order to implement this framework decision, as from the early enforcement practice of the decision as it emerges, among other things, from the Report from the Commission based on art. 34 of the Council Framework Decision (COM(2005) 63 final) adopted on 23 February 2005.
The research will, then, require the collection and analysis of a huge amount of relevant materials, practice, EU documents, in addition to legal writings on the subject, and it will be necessary to constantly follow the developments of EU legislation on the matter, which is evolving every day.
For a better success of the research program and a better use of efforts and resources, we deem it necessary to have a contribution by a young scholar, with a particular experience in the field of international protection of human rights, who could devote him or herself entirely to the collection and the analysis of the relevant materials, and to search into some of the complex theoretical aspects highlighted above, in order to produce a monographic study: for these reasons we apply for the financing of a research scholarship for a period of 20 months.