A need to learn lessons from current achievements and complete the EU integration process

On some points, the EU integration process in the penal domain is incomplete and this entails the risk of resulting in an unbalanced EU area of criminal justice or an area missing some of its objectives or not being efficient enough in reaching them. Four illustrations of such incompleteness follow.

First, there is a certain level of incompleteness resulting from the poor level of transposition by the Member States. There is an obvious need to monitor this closely, to check for correct transposition in the Member States and to launch infringement procedures if necessary. Since 1 December 2014, i.e. the end of the transitional period, such infringement procedures can also be launched for the absence of or bad transposition of ‘old instruments’ of the ex-third pillar of the Treaty on European Union. Such a possibility does not seem to have been fully exploited so far. Furthermore, it should be exploited in all the domains of criminal justice – not only in those sectors seeking to develop security, but also in the approximation of procedural

24 _{See the decisions of the CJEU in Case C-77/05, UK v Council (Frontex Regulation) [2007]}

and Case C-482/08, UK v Council (Decision concerning access to the Visa Information System) [2010].

25 _{Case C-482/08 (supra), para 48.}

26 _{Council Regulation (EC) No. 2007/2004 of 26 Oct. 2004 establishing a European Agency}

for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, OJ L 349, 25.11.2004, p. 1.

27 _{Council Decision 2008/633/JHA of 23 June 2008 concerning access for consultation of}

the Visa Information System (VIS) by designated authorities of Member States and by Europol for the purposes of the prevention, detection and investigation of terrorist offences and of other serious criminal offences, OJ L 218, 13.8.2008, p. 129.

TWO CRUCIAL CHALLENGES IN CROSS-BORDER CRIMINAL INVESTIGATIONS  29

guarantees for suspects and accused persons, for instance. Indeed, it is the effectiveness of the whole area of criminal justice that is to be guaranteed.

Second, mutual recognition is not complete in the sense that it does not cover the entire landscape of judicial cooperation. We refer here to the transfer of proceedings, where a proposal was negotiated before the entry into force of the Lisbon Treaty but was abandoned,28 _{and to the quite}

complex field of disqualification decisions.29 _{There is also a need to}

accompany mutual recognition with other measures, without which it can be detrimental to individuals. Two examples are worth recalling here. On the one hand, more ambitious rules to prevent and solve conflicts of jurisdiction but also to modernise and reinforce the ne bis in idem principle should be on the EU’s legislator’s agenda.30 _{Indeed, on several points, the}

existing ones are not sufficiently ambitious. On the other hand, the EU should also address the issue of compensation for unjustified arrest, detention and surrender or transfer on the basis of EAWs or other relevant instruments of mutual recognition. Indeed, practice shows that cases of unjustified detention for the purpose of executing an EAW, for instance, do take place. Unjustified detentions may be the consequence of different circumstances, i.e. clear mistakes by the issuing or executing states (or both), or errors by the person, for example following the theft or selling of identity cards.

The concerned persons sometimes receive compensation but sometimes they do not. The question is extremely complex: situations that should give rise to compensation are very different, the difficulties the persons may face, and the way responsibility may shift between the issuing and executing states may vary considerably. EU intervention in this field is urgently needed. The differences among national compensation mechanisms may be regarded as impairing the achievement of an EU area of criminal justice where EU citizens can equally enjoy their rights. The EU should ensure that reinforced judicial cooperation is not detrimental to individuals’ fundamental rights. It follows that in order to counterbalance the

28 _{Council of the European Union, Proposal for a Council Framework Decision on the}

transfer of proceedings in criminal matters, 11119/09, 30 June 2009.

29 _{See the Programme of measures to implement the principle of mutual recognition of}

decisions in criminal matters, OJ C 12, 15.1.2001, pp. 10-22.

30 _{See potential derogations to the ne bis in idem principle as provided in Art. 55 of the}

30ANNE WEYEMBERGH

‘prosecutorial effect’ of the EAW and other mutual recognition instruments, the EU has a responsibility to ensure that the individual who suffers from unjustified detention receives fair compensation, as provided for by Art. 6 of the Charter read together with Art. 53, para. 2. This EU obligation would mirror the one provided for in Art. 5, para. 5 of the European Convention on Human Rights31 _{as interpreted by the European Court of Human Rights.}32

Third, on a series of points, the defence position and cooperation should be strengthened. In recent years and particularly since the entry into force of the Lisbon Treaty, a lot of initiatives have been launched and several new, important instruments have been adopted, as illustrated by the six directives approximating procedural guarantees for suspects and accused persons.33 _{Yet, much is still to be done, concerning for instance the training}

of defence lawyers, EU handbooks specifically designed for them, the

31 _{The European Convention on Human Rights provides in its Art. 5(5) as follows:}

“Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.” Under EU law a right to compensation may be deduced from Art. 6 of the Charter read together with Art. 53(2).

32 _{For more details, see “Compensation” in Council of Europe, A guide to the}

implementation of Art. 5 of the ECHR, Human Rights Handbook No. 5, Strasbourg, pp. 67-68.

33 _{See the following directives of the European Parliament and of the Council: Directive}

2010/64/EU of 20 October 2010 on the right to interpretation and translation in criminal proceedings, OJ L 280, 26.10.2010, pp. 1-7; Directive 2012/13/EU of 22 May 2012 on the right to information in criminal proceedings, OJ L 142, 1.6.2012, pp. 1-10; Directive 2013/48/EU (op. cit.), pp. 1-12; Directive (EU) 2016/343 of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings, OJ L 65, 11.3.2016, pp. 1-11; Directive (EU) 2016/800 of 11 May 2016 on procedural safeguards for children who are suspects or accused persons in criminal proceedings, OJ L 132, 21.5.2016, pp. 1-20; and Directive (EU) 2016/1919 of 26 October 2016 on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings, OJ L 297, 4.11.2016, pp. 1-8.

TWO CRUCIAL CHALLENGES IN CROSS-BORDER CRIMINAL INVESTIGATIONS  31

creation of an institutionalised network of defence lawyers34,35 _{or the set-up}

of a secure system for exchanging information in cross-border cases.36

Fourth, the integration process is incomplete because it does not go far enough in some respects, in the sense that it does not push EU integration as far as needed to achieve its objectives. This is, for instance, clear in protecting the EU’s financial interests if one takes a look at the current version of the EPPO Regulation: the question is whether it goes far enough to be able to attain the objectives of effectively preventing and fighting fraud related to the EU budget and of protecting individuals’ rights. Indeed, during the negotiations, Member States tended to renationalise – or re-horizontalise – the EPPO as much as possible.37