Despite the adoption of MR, there still exists a continued relevance and importance for both approximation and harmonisation within the MR framework.
In its judgments, the Court of Justice of the EU (CJEU) does not regard harmonisation as a prerequisite for the application of MR. It states that a,
…necessary implication that the Member States have mutual trust in their criminal justice systems and that each of them recognises the criminal law in force in other Member States even where the outcome would be different if its own national law were applied.47
From the literature, there does not appear to be a common understanding and
application of the terms harmonization and approximation, in fact these terms are often used interchangeably. Harmonization is often the creation of a single set of provisions or standards in criminal law for all MSs, whilst approximation will have less
homogenous ambitions; attempting to increase understanding by highlighting and reinforcing similarities in systems rather than creating and artificially enforcing these similarities. “Approximation in the original spirit of the TEU is therefore an instrument to eliminate all the most relevant disparities”.48 Approximation may also be
accomplished through the adoption of common standards to be applied to their different national provisions by MSs. This characterization is in line with Article 67 TFEU. Article 82 TFEU is also relevant for approximation ambitions, in particular of HRs and forms the basis for the Defence Rights Directives being adopted and considered in Part 3.49
47
Gözütok and Brügge (n31)
48
Massimo Fichera, The European Arrest Warrant and the Sovereign State: A Marriage of Convinience? ELJ, (2009) Vol. 15 No. 1, 70-97,76 citing FM Tadic, ‘How Harmonious can Harmonisation be? A Theoretical Approach towards Harmonisation of (Criminal Law)’, in Andre Klip and H van der Wilt (Eds) Harmonisation and Harmonising Measures in Criminal Law, Royal Netherlands Academy of Arts and Science ( 2002)
49
Chapter One: On the Principle of Mutual Recognition
47
Fichera regards that a “means/ends relationship exists between approximation and mutual recognition” with one promoting the other.50 As noted above, the CJEU highlights the fact that MSs have opted for MR of decisions emanating from each others’ criminal justice systems. This MR is not necessarily based on an understanding of legal terms, let alone a deep comprehension of other legal systems. As it stands this MR is based on assumed mutual trust with misconceptions remaining unresolved. Commentators argue that for MR to continue to function there needs to be some harmonization. Harmonization of substantive criminal law, such as the proposed vertical solution of the corpus juris,51 is unlikely to receive majority support from MSs. As Megie points out, convergence is preferred to harmonisation, as illustrated by the rejection of the corpus juris and the support for a European Prosecutor.52 MSs have accepted MR since it offers an easy option requiring minimal amendments to their own systems, increases their powers and is less costly then harmonization. On the other hand, in areas where MSs have common domestic policies they have been more amenable to reaching a consensus on harmonization.53
In areas where agreement cannot be reached, approximation of some laws may be more acceptable for MSs. It is clear that whilst approximation is preferable in order to
advance the high level of un-questioned cooperation, MSs are still largely hesitant to hand over any further sovereignty in particular in an area as sensitive as criminal law
50
Fichera (n48) 77
51
In 1997, a group of legal experts presented this proposal for the development of a European Criminal Code. Whilst the proposal focused on budgetary fraud against the EC budget, enforced by a European public Prosecutor, the principle was intended for wider application. See John Spencer, EU Fair Trial
Rights : Progress at Last, NJECL (2010) Vol. 1 Issue 04, 447-457
52
Megie (n18)
53
An example of this would include the treatment of terrorism in Council of the EU, Council Framework
Decision 2002/475 on Combating Terrorism , OJ L-164, 22.06.2002, 3–7 as amended by Council of the
European Union, Council Framework Decision 2008/919/JHA of 28 November 2008 amending
Chapter One: On the Principle of Mutual Recognition
48
which strikes to the heart of their relationship with their subjects. MR “has been a convenient choice for MSs concerned about ceding sovereignty in criminal matters”.54 Thus whilst even in the field of criminal law a number of mutual recognition
Framework Decisions have been adopted, it can be concluded from the implementation reports of the European Commission that they have either not been implemented or only partly implemented by Member States. The reasons for the poor implementation levels, as well as the modest use that these measures are being put to in practice, would support the notion that MSs lack the appetite for further incursions into their criminal justice systems.
Weighing up the pros and cons of approximation, some commentators including Guild, clearly favour approximation. Whilst the process may take longer, requiring consensus across MSs and clearly involving interference with national systems, Guild feels that these are outweighed by the benefits inherent in approximation. Guild here is referring to the approximation of procedural guarantees seeing that “it has the advantage of building into the procedures the guarantees within Union law of compliance with fundamental rights.”55
The positioning of the individual within the procedures is also emphasized as a benefit; with approximation the individual finds themselves at the centre of common rules whereas with MR the common standards are accessible only by the MSs. The EU Fundamental Rights Agency (FRA) in its review of the Stockholm Programme states that for a sufficient level of mutual trust to be sustainable “a strong common reading of fundamental rights protection” and the rule of law is needed and should include harmonization of procedural safeguards in criminal law.56
54
Mitsilegas, Constitutional Principles of the European Community and European Criminal Law (n17) 314
55
Guild, Crime and the EU's Constitutional Future in an Area of Freedom, Security, and Justice (n19) 227
56
Fundamental Rights Agency, The Stockholm Programme: A chance to put fundamental rights
Chapter One: On the Principle of Mutual Recognition
49
Another staunch supporter of approximation is Weyemberg, who maintains that
approximation focuses on the contents of common norms as opposed to the effect alone. There is no doubt that as she states, approximation also offers “a stronger model of legal integration than coordination and cooperation. In principle, approximation implies adjustments of internal laws in order to meet specific objectives.” 57 Harmonization in this instance would dictate to MSs the letter of the law.
MR and approximation are however complimentary and not mutually exclusive. It is important that MR does not become an obstacle to the adoption of common standards which will see security continue to prevail over freedom and justice.
The adoption of MR does not however mean that the laws of MSs have remained unaltered. In fact in some MSs the effective implementation of the EAWFD required Constitutional amendments and new laws.58 It is anticipated that in the near future more changes will be necessary, in particular in relation to harmonization of procedural guarantees.
57
Anne Weyembergh, Approximation of Criminal Laws, the Constitutional Treaty and the Hague
Programme, CML Rev, (2005) Vol.42, 1567-1597, 1567
58
Amongst others, Polish and Cypriot Constitutions prohibited extradition of their own nationals, these were amended to permit surrender of their nationals under the EAWFD. In Germany Constitutional conflict led to adoption of a second implementing law. Consideration of these Constitutional conflicts is beyond the scope of this thesis, however a number of articles are written on the subject. For a summary of the Constitutional challenges and amendments see Zsuzanna Deen-Rasmany, The EAW and Surrender of
Nationals Revisited: The Lessons of Constitutional Challenges, (2006)14 Eur.J.Crime Cr.L.Cr.J. 271;
Isabelle Pérignon and Constance Daucé, The European Arrest Warrant: a growing success story, ERA Forum (2007) 8:203–214, 208-9. See also Daniel Saramieto, European Union: The European Arrest
Warrant and the quest for constitutional coherence, I-CON, (2008) Vol.6: 171; Angelika Nußberger, Poland: The Constitutional Tribunal on the implementation of the European Arrest Warrant, I•CON,
(2008) Volume 6, Number 1, 162–170; Bapuly (n28); Mitsilegas, Constitutional Principles of the
European Community and European Criminal Law (n17) 317-21; Elies van Sliedregt, The European Arrest Warrant: Between Trust, Democracy and the Rule of Law, European Constitutional Law Review,
(2007) 3: 244-252; Fichera (n48) 81-4; Jan Komarek, European Constitutionalism and the European
Chapter One: On the Principle of Mutual Recognition
50
1.6.1 The CJEU’s View
Advocate-General Colomer, in Advocaten voor de Werald, states that since it is a new concept, the EAWFD “does not seek to approximate pre-existing national laws”.59 On the other hand he stresses that the mechanisms used by this new concept already existed in MSs, namely the mechanisms to arrest and surrender which have been simply
harmonised. The EAWFD does not create relationships between ‘hermetically sealed spaces’ but between states who share common principles, values and objectives seeking the prevention and combat of crime in a “single area of freedom, security and justice, by facilitating cooperation between States and harmonising their criminal laws”.60 The operative part of the EAWFD harmonises the procedural law of MSs “by harmonising the form and content of the decision, the methods of and time-limits for transmission and execution, the grounds for non-execution, and the rights which protect the arrested person during the procedure and for the purposes of surrender”.61
So whilst the laws and procedures leading up to the decision to issue an EAW continue to be hermetically sealed; other aspects of the procedure, as set out above, are now uniform. What have been harmonized are the rules of cross-border engagement; thus the process of requesting and surrendering an individual has an autonomous meaning.
In the joined cases of Gozutuk and Brugge62, the CJEU considered the principle of ne
bis in idem under Article 54 of CISA.63 It confirmed that for a case to be 'finally
disposed of' in accordance with Article 54, the decision did not need to be made by a judge, a decision of the Public Prosecutor sufficed where certain conditions to punish an act had been satisfied. The emphasis placed by the court is not on the judicial nature of
59
Advocaten voor de Werald VZW (n33), Opinion of Advocate-General Colomer
60
ibid §44
61
ibid §49
62
Gözütok and Brügge (n31)
63
EU, Convention Implementing the Schengen Agreement of 14 June 1985 between the Governments of
the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic, on the Gradual Abolition of Checks at their Common Borders, OJ L 239, 22.09.2000 P. 0019-0062 (CISA)
Chapter One: On the Principle of Mutual Recognition
51
the decision, but on the “sanctioning character of the settlement/decision". Thwaites is of the opinion that the judgment “is an indirect appeal for some harmonisation of MSs' criminal justice systems”.64
This assertion is questionable; the Court simply took the line that if MSs cannot agree to harmonise their criminal systems but still want to
increase cooperation, they have no choice but to follow the principles of MR and mutual trust, which includes recognition of decisions which may have had a different
conclusion under their own systems.
This line of reasoning follows the Court’s own statements on harmonisation in criminal matters and mutual trust. A necessary implication is “that the MSs have mutual trust in their criminal justice systems and that each of them recognises the criminal law in force in other MSs even where the outcome would be different if its own national law were applied”.65
The Court highlights the fact that the operation of the principle is not
dependant on approximation of procedures, but instead MSs have opted for mutual trust and recognition of each other’s criminal justice systems.
Borgers argues convincingly that the CJEU’s concern is not the “legislative history of provisions but focuses on the uniform and autonomous meaning of the relevant rules”.66
In support he analyses not only the case of Gözütok and Brügge67, but also Pupino68 and
Kozlowski69. The focus on autonomous meanings is in the Court’s view necessary to
guarantee uniform application of the rules across the EU and is what provides coherence to the European system.
64
Nadine Thwaites, Mutual Trust in Criminal Matters: the European Court of Justice gives a first
interpretation of a provision of the Convention implementing the Schengen Agreement, German Law
Journal, (2003) Vol 4, No 3, 253-262, 261
65
Gözütok and Brügge (n31) §33
66
P. M Borgers, Mutual recognition of the European Court of Justice, Eur.J.Crime Cr.L.Criminology, (2010)
67
Gözütok and Brügge (n31)
68
C-105/03 Criminal proceedings against Maria Pupino [2005] ECR I-05285
69
C-66/08 Proceedings concerning the execution of a European arrest warrant issued against Szymon
Chapter One: On the Principle of Mutual Recognition
52
Any further approximation which will occur will take place in bite-sized pieces and be combined with MR. Harmonization of criminal law should remain at a minimum given its deep rooted integration in the democratic process of MSs. Rules of cross-border engagement should be harmonised whilst not interfering with the internal systems and remaining true to their individual heritages. Instead of standardizing substantial criminal law, it is preferable for common minimum standards to be adopted, such as procedural guarantees, which instill confidence in the procedures of each others’ systems. The suggestion in subsequent chapters is that these common standards should have a basis in the ECHR but where appropriate adopt higher standards.
Chapter Two: On the EAW Framework Decision
53
Chapter Two: On the European Arrest Warrant Framework
Decision
The EAWFD70 is the flagship MR measure heralded as a success because of both the unanimous implementation71 and the frequency it is used by all MSs.72 For this reason it will also be used as the case study for testing the relationship between the principle of MR and HRs. Although it is the most debated of the MR measures, debates fall short of getting to the root of the issues, identifying these only at the branch level, (i.e.) HRs, legality, constitutional conflicts, etc. Whilst on paper it has been heralded as a success, its practical implementation has not been as celebrated, with the main concerns
centering on issues of sovereignty, HRs and MS constitutional guarantees.
The terrorist attack in 2001 was taken as demonstrating the importance of the Tampere Conclusions and provided the necessary impetus to move what was until then a slow process. In response to these events an Extraordinary European Council73 was held on 21st September 2001 where the fight against terrorism was prioritized;74 the renewed list of priorities saw the EAW jump to position number one in the chart.75 This link between the EAW and the ‘war on terrorism’ is an often used excuse to explain the HRs deficit
70
For a detailed overview of the history relating to the EAWFD see Nico Keijzer, ‘Origination of the EAW Framework Decision’ in Elspeth Guild and Luisa Martin (Ed.), Still not resolved? Constitutional
Issues of the European Arrest Warrant, Wolf Legal Publishers, 2009
71
Here unanimous implementation refers to the fact that it has been implemented by all MSs and not to the level of satisfaction with which it has been implemented by MSs.
72
The Commission considers it a success. See also Pérignon and Daucé (n58)
73
European Council, Conclusions and Plan of Action,(2001) SN 140/01
74
Within a year three important Framework Decisions were adopted. Council of the EU, Council
Framework Decision 2002/475 on Combating Terrorism, 13.06.2002; Council Framework Decision setting up Eurojust with a view to reinforcing the fight against serious crime, 28.02.2002 and the
EAWFD (n15).
75
In the Council of Ministers (JHA), Programme of measures to implement the principle of mutual
recognition of decisions in criminal matters, adopted 30.11.2000, 2001/C 12/02, the EAW was priority 2
rated with priority 1 been allocated to evidence and asset freezing. See Fichera (n48) 71-2 who also highlights the fact that the offences referred to had till that point being limited to ‘serious offences’.
Chapter Two: On the EAW Framework Decision
54
in the EAWFD. However this link is neither a justification nor helpful in furthering either MR or HRs and is not reflected in the final text of the EAWFD.76