EUROPEAN CRIMINAL LAW

Size: px

Start display at page:

Download "EUROPEAN CRIMINAL LAW"

Wilfrid Golden
5 years ago
Views:

1 EUROPEAN CRIMINAL LAW An Integrative Approach Andre KLIP 2 nd edition intersentia Cambridge - Antwerp - Portland

2 TABLE OF CONTENTS PREFACE FOR THE SECOND EDITION PREFACE FOR THE FIRST EDITION LIST OF ABBREVIATIONS v vii xvii CHAPTER 1. INTRODUCTION 1 1. European Criminal Law 1 2. The Structure of the Book 3 3. The Treaty of Lisbon and the Use of Terminology 7 4. Methodology and Characterisation of the Law 8 5. Currency of this Book 10 PART I. THE LEGAL ORDER OF THE UNION CHAPTER 2. INSTITUTIONAL FOUNDATIONS OF THE EUROPEAN UNION Introduction From the European Coal and Steel Community to the European Union Two Converging Areas: The Internal Market and the Area of Freedom, Security and Justice A New Legal Order Sincere Co-Operation The Three Pillars of Maastricht One Legal Order for the Union Application of Internal Market Principles on the Area of Freedom, Security and Justice European Integration European Integration Common Policies and Co-Ordination Tools Harmonisation and Approximation 31 ix

3 4.5. The Principles of Conferral, Subsidiarity and Proportionality Fundamental Aspects of the Criminal Justice System The Effects of Harmonisation: A Critical Assessment Institutions, Agencies, Bodies and Offices Institutions Agencies Bodies and Offices in the Field of Criminal Law 47 CHAPTER 3. CONSTITUTIONAL PRINCIPLES OF UNION LAW Introduction Legal Acts of the Union Post-Lisbon Legislation Pre-Lisbon Legislation Choice of the Union Act Variable Geometry: Diverging Application of the Law Rules on the Enforcement of Union Law Union Law Creates Its "Own Legal System" The Principle of Sincere Co-Operation Freedom of Choice of Means Substantive Rules of Union Law: The Five Freedoms Introduction Free Movement The Need to Fall within the Scope of the Treaties No Discrimination upon the Basis of Nationality Mutual Recognition and Mutual Trust Justified Restrictions on Free Movement Justifications Substantive Rights in Secondary Legislation The Stand-alone Status of Secondary Legislation Outside the Scope of the Treaties? The Interpretation of Union Law Competence of the Court The Lisbon Competence The Transition Period: The First Five Years until 1 December Admissibility of the Reference Sources and Techniques of Interpretation 143

4 PART II. CRIMINAL LAW IN THE EUROPEAN UNION CHAPTER 4. EUROPEAN SUBSTANTIVE CRIMINAL LAW Introduction Legislative Competences of the European Union in Criminal Law Fragments of the General Part of Criminal Law Legality Jurisdiction Territorial Jurisdiction The Flag Principle The Active Nationality Principle The Passive Nationality Principle The Domicile Principle The Principle of Complementary Jurisdiction The Protective Principle The Principle of Universal Jurisdiction The Prevention of Conflicts of Jurisdiction Jurisdictional Principles in the European Union The Objective and Subjective Element of the Crime Actus Reus Metis rea, Intent and Strict Liability Participation and Inchoate Offences Participation Inchoate Offences Legal Entities Justifications and Excuses Special part - Eurocrimes Crimes Against Fair Competition Crimes Against (the Integrity of) the Financial Sector Crimes Against the Financial Interest of the Union Crimes Against Human Dignity Crimes Against the Democratic Society Crimes Against the Integrity of Public Administration Crimes Against Public Health Crimes Against the Fair Administration of Justice Crimes Against the Environment A European Criminal Policy? Implementation into National Criminal Law 221 xi

5 CHAPTER 5. EUROPEAN CRIMINAL PROCEDURE Introduction The General Principles of Union Law Fundamental Rights General Principles of Criminal Procedure The Accession of the European Union to the ECHR Complaints Against the European Union The Protocol on the Accession The Right to Prosecute Introduction Ne Bis in Idem Article 54 CISA "Finally Disposed of" The Same Act Two Types of Mutual Recognition Other Reasons Restricting the Right to Prosecute Time Bars to the Prosecution Immunity Other Formalities To Prosecute or Not to Prosecute? Investigations, Coercive Measures and Evidentiary Matters Investigations Evidence Collected by National Authorities Evidence Collected by the Commission Weight of Evidence/Degree of Proof Detention on Remand/Eligibility for Bail Provisional Arrest Data Protection Sui Generis Measures: Freezing Orders, Sanctions and Boycotts The Scope and Form of the Criminal Proceedings National Implementation and Preliminary References Implementation Interpretation in Conformity with the Directive or Framework Decision The Procedural Consequences of a Finding that National Law Must Be Set Aside A Question of Interpretation Reference to the Court Proceedings before the Court The Answer of the Court 313 xii

6 CHAPTER 6. EUROPEAN SENTENCING AND PENITENTIARY LAW Introduction Penalties to be Provided under National Law Sentencing Criteria The Character of Punishment and the Treatment of Sentenced Persons 330 PART III. EUROPEAN COOPERATION AND EUROPEAN ENFORCEMENT CHAPTER 7. BILATERAL COOPERATION IN CRIMINAL MATTERS Introduction The Historical Development of Co-Operation in Criminal Matters The Network of Multilateral Treaties Created by the Council of Europe Models of Co-Operation The Request Model The Mutual Recognition Model (Order Model) The Availability Model Vertical Co-Operation Extra-Territorial Investigations and Self-Help Mutual Recognition as a Cornerstone Principle What Does Mutual Recognition Mean? What Triggers Mutual Recognition? The Absolute Character of the Obligation to Recognise The Character of Mutual Recognition The Consequences of Mutual Recognition Forms of International Co-Operation Mutual Assistance The Exchange of Information The Collection of Evidence The Facilitation of Criminal Proceedings Serving the Interests of Third Parties The Building of Skills and Expertise The Building of Liaisons European Supervision Order in Pre-Trial Procedures The Transfer of Proceedings, the Resolution of Conflicts of Jurisdiction and the Concentration of Proceedings Extradition or Surrender of Persons 411 xiii

7 5.5. The Transfer of the Execution of Judgments Supervision of Decisions Other than Unconditional Imprisonment The Position of the Defence in Co-Operation in Criminal Matters The Possibilities of Requesting International Co-Operation The Rights of the Defence in International Co-Operation Legal Remedies and the Responsibility of Co-Operating Member States Human Rights and International Co-Operation in Criminal Matters 422 CHAPTER 8. MULTILATERAL COOPERATION AND DIRECT ENFORCEMENT Introduction Multi-Lateral Co-Operation The Police Level Automated Computerised Systems Europol: Intelligence Centre for Strategic Analysis Multi-Lateral Investigations: Joint Investigation Teams Prosecutorial Level: Eurojust The Judicial Level: the European Judicial Network Common Prevention of Piracy Direct Enforcement Competition Law The European Public Prosecutor's Office The Position of the Defence in Multi-Lateral Co-Operation and Direct Enforcement The Emergence of Co-Ordinated European Investigations 465 PART IV. THE CHALLENGES FOR EUROPEAN CRIMINAL LAW CHAPTER 9. RETHINKING EUROPEAN CRIMINAL LAW Introduction The Convergence of the Internal Market and the Area of Freedom, Security and Justice Rights for Citizens and Rights for Member States Freedom of Movement and Equal Treatment as the Fifth Freedom Mutual Recognition: From a State Approach to a Union Approach The Added Value of Transfer of Proceedings Sincere Co-Operation and Enforcement Through Criminal Law The General Principles of the Union's Criminal Law 476 xiv

8 9. The Uniform Interpretation of the Law and the Diverging Application of the Law Fundamental Aspects of the National Criminal Justice System Union Law as Common Law The Emergence of a European Criminal Justice System Human Rights Protection as a Collective Responsibility The Model for the European Public Prosecutor's Office Building Mutual Trust in Times of Upcoming Nationalism 483 ANNEXES TABLE OF CASES 487 TABLE OF LEGISLATION 531 SELECTED BIBLIOGRAPHY ON EUROPEAN CRIMINAL LAW 547 LITERATURE ON EUROPEAN CRIMINAL LAW IN THE MEMBER STATES 553 RELEVANT WEBSITES 569 INDEX 571 xv

Criminal Law in Greece

Criminal Law in Greece by Ilias G. Anagnostopoulos and Konstantinos D. Magliveras 2000 Kluwer Law International The Hague London Boston Sakkoulas Athens The Authors 3 List of Abbreviations 17 General Introduction