The current body of EU criminal law offers inconsistent and incomplete legal protection to European citizens. The Meijers Committee has researched and found several shortcomings in the procedural safeguards in instruments of mutual recognition, the proposal on a European Public Prosecutor’s Office and the criteria used to decide on criminalization of conduct at the EU level. In light of an expert meeting held at the European Parliament in January 2015 on these inconsistencies, the Meijers Committee has issued three short notes discussing the issues further.
The first note concerns the need to reform current mutual recognition instruments that overlap but contradict each other in their content and to strengthen judicial review in criminal proceedings.
The second note concerns the need ensure that citizens can foresee under which legal regime the EPPO will conduct an investigation against them and the effectiveness of national judicial review in a transnational context.
The third note concerns the use of criteria to determine whether material prohibitions are appropriate at the EU level and the role of the European Parliament therein.
1. Inconsistent legal protection in mutual recognition instruments
The current body of EU criminal law offers inconsistent and incomplete legal protection to European citizens. Shortcomings are found in the procedural safeguards in instruments of mutual recognition, the proposal on a European Public Prosecutor’s Office and the criteria used to decide on criminalization of conduct at the EU level. In light of an expert meeting held at the European Parliament in January 2015, the Meijers Committee publishes three short notes on gaps and inconsistencies in the legal protection offered by EU criminal law. This first note concerns the need to reform existing mutual recognition instruments that overlap but also contradict each other and to strengthen judicial review.
In the past few years, significant steps have been taken to strengthen procedural safeguards for persons suspected and accused in criminal proceedings throughout the European Union. Further steps are expected in the post-Stockholm era. At the same time, there is a broad political and academic consensus that the consolidation of previously passed legislation in the field of procedural rights in criminal proceedings needs more attention. Current consolidation efforts appear to focus on the adequate implementation of EU legislation at the Member State level, and the effective exercise of procedural rights in practice. The Meijers Committee supports these ambitions, as adequate legal protection needs to be provided equally in national and transnational cases in order to counterbalance the intrusive powers of law enforcement. However, in order to realize these ambitions, it is recommended that the following inconsistencies should be dealt with: A) inconsistencies in overlapping mutual recognition instruments, and B) inconsistencies regarding the exercise of procedural rights in practice.
Inconsistencies throughout overlapping mutual recognition instruments
Procedural safeguards for the individual are generally included in the various instruments that apply the principle of mutual recognition to a variety of judicial decisions and judgments. As explained below, it may happen that different instruments apply to the same judicial decision at the same time, while these instruments differ in the exact content of legal protection. As a result, according to the Meijers Committee, there are cases in which the level of protection depends on the legal instrument chosen, without justification.
The following examples illustrate the potential consequences of such inconsistencies.
Example 1: The double criminality requirement
In cases where a judge imposes certain restrictions or prohibitions on a convicted person, Framework Decision 2008/947/JHA and Directive 2011/99/EU may apply simultaneously. For example, this is the case when a judge imposes an obligation on an offender to avoid contact with his victim, or the prohibition on entering certain areas. Such measures fall under the definition of a protection order (Art. 2 Directive 2011/99/EU), but – since they may also be imposed as part of a conditional or suspended sentence – at the same time they constitute probation measures in the sense of FD 2008/947/JHA.
While Art. 10(1)(c) of the Directive leaves the executing Member State an option to refuse recognition in cases where a foreign protection measure relates to an act that does not constitute a criminal offence under its own law, the Framework Decision prohibits, in principle, the executing Member States from verifying double criminality if the underlying offence is on the well-known list of offences (Art. 10). Thus, depending on which instrument is chosen, the level of legal protection differs for the same measure.
Example 2: Limitations on the possibility of adapting foreign criminal sanctions Another inconsistency occurs in the same situation as described under example 1 (where a probation measure falls under the scope of both FD 2008/947/JHA and Directive 2011/99/EU). Both instruments enable the executing Member State to adapt the foreign probation measure/protection order. However, while the possibility to adapt is limited under the Framework Decision – the adapted sanction may never be longer or more severe than the original sanction (Art. 9) – the Directive does not restrict the executing Member State on this point.
Example 3: Fundamental rights exception
Both Framework Decision 2002/584/JHA (on the European Arrest Warrant) and Directive 2014/41/EU (on the European Investigation Order) cover the seizure or transfer of property at the request of the issuing Member State. However, whereas the EIO Directive (Art. 11(1)(f)) provides an optional ground for refusal when there are substantial grounds for believing that the execution of such a seizure would be incompatible with Art. 6 TEU and the Charter on Fundamental Rights, the EAW Framework Decision contains no such fundamental rights exception (see art. 29).
These examples concern situations that are covered by more than one mutual recognition instrument. In some cases, the applicability of an instrument may simply depend on whether either the victim or a government authority submits a request or issues a warrant to have a judicial decision recognized and executed in another Member State. As a consequence, the level of legal protection becomes arbitrary. The examples above warrant the scrutiny of divergences in the level of legal protection throughout mutual recognition instruments in light of the interests of the defendant. Such scrutiny should include an assessment of variations in situations where instruments overlap, and consideration of whether such variations could be justified in light of such principles as the principle of legality, social reintegration, and lex mitior. If they are found to be unjustified, then coherent solutions should be introduced by way of a horizontal measure applicable to all mutual recognition instruments.
Inconsistencies in the effective exercise of procedural rights
On the road to strengthening procedural safeguards in cross-border investigations and prosecutions, inadequate attention seems to be paid to the effective exercise of rights in practice. In cross-border cases in particular, it often remains unclear which of the Member States involved is responsible for guaranteeing the effective exercise of procedural safeguards, with the likely result that neither Member State takes responsibility. Suspects or convicts are in danger of falling between two stools.
For example, if Member State A seeks the surrender of a suspected person by issuing a European Arrest Warrant to Member State B, this decision will not necessarily be subject to judicial review of the merits (including the degree of suspicion) and proportionality of the arrest. The EAW Framework Decision allows Member States to appoint a public prosecutor or a police officer as the competent ‘issuing judicial authority’ (see Art. 6(1).) If Member State B arrests the person sought on the basis of the EAW and this person is to remain in detention pending the decision on surrender, the EAW Framework Decision only permits Member State B to conduct a very limited test of the proportionality and lawfulness of the EAW issued by Member State A. Due to the principle of mutual recognition, Member State B is generally obliged to execute the EAW and transfer the person sought to Member State A. As a result, the lawfulness of pre-trial detention in surrender proceedings may not automatically be subject to full judicial review, in either the issuing or the executing Member State.
In a genuine area of freedom, security and justice, the Meijers Committee cannot conceive of any justification for such gaps in the exercise of Union-wide procedural rights and judicial protection. As a solution, the Committee proposes to create common rules to allocate who is responsible for guaranteeing procedural rights in situations of cross-border cooperation, including clear rules on the allocation of responsibilities for judicial review of such cooperation measures.
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2. Legal Protection and the future European Public Prosecutor’s Office
The current body of EU criminal law offers inconsistent and incomplete legal protection to European citizens. Shortcomings are found in the procedural safeguards in instruments of mutual recognition, the proposal on a European Public Prosecutor’s Office and the criteria used to decide on criminalization of conduct at the EU level. In light of an expert meeting held at the European Parliament in January 2015, the Meijers Committee publishes three short notes on gaps and inconsistencies in the legal protection offered by EU criminal law. This second note concerns the need ensure that citizens can foresee under which legal regime the EPPO will conduct an investigation against them and the effectiveness of national judicial review in a transnational context.
The proposal to establish a European Public Prosecutor’s Office is unique in several ways. Several EU institutions and agencies already carry out law enforcement tasks (e.g. the ECB, ESMA), and Member States cooperate extensively in criminal cases. However, unlike other EU agencies, the EPPO can take almost any intrusive investigative measure that a Member State can, such as directly ordering arrests, searches and seizures. Moreover, unlike the Member States, its competences ratione territoriae cover the territories of all participating Member States. This dual horizontal and vertical integration of a new criminal justice body into the legal orders of the Member States poses new challenges. Much of the political negotiation around the exact design focus on the competences of the EPPO and the details of shared law enforcement in practice.
The Meijers Committee observes that fundamental rights protection is given less priority by the institutional actors. Further interferences with national criminal procedure than those that are now on the table are often considered disproportionate. To better embed legal protection, three aspects should be considered more closely by the co-legislators. First, the EPPO should have clearer rules on determining the applicable law. Second, procedural guarantees should be updated to function effectively in transnational criminal cases. Third, rules on the gathering and admissibility of evidence should be developed further.
Determining the applicable legal regime: accessibility and foreseeability revisited
In its current form, the decentralized structure of EPPO prejudices the rights of suspects in a transnational common law enforcement area. The concept of European territoriality presupposes that the EPPO may move its activities from one country to another. It may even be considered the raison d’être of the EPPO to be able to concentrate the investigation in a particular state, while carrying out specific investigative acts elsewhere. Nonetheless, while there are diverging national rules on the use and control of investigative powers and coercive measures, the EPPO proposal does not contain clear criteria as to which national law is applicable during pre-trial investigations. This ambiguity not only gives the EPPO a potentially very wide margin of discretion in determining the applicable legal regime, it also creates an incentive for prosecutors to make strategic choices based on where the most lenient national rules apply. This design may result in a system where an attorney could pick and choose the rules, rather than a balance between effective crime fighting and fair trial rights. This makes it hard for citizens to foresee the conditions under which powers may be used against them: not because national rules are absent, vague, or ignored, but because – at the interface of over 20 diverging national legal orders – the EPPO will always find a legal path for its investigative measures, using rules that are most convenient in a given instance. Current proposals
allow the EPPO to change the applicable set of rules without citizens and courts being able to monitor the protection of their interests. To that extent, such situations not only poses problems in light of the accessibility and foreseeability of the applicable law(s); they may also be considered unfair and in contradiction with the equality of arms. Even if all national criminal codes are in full compliance with human rights standards, there is still a lurking arbitrariness. This, incidentally, not only concerns suspects, but also witnesses, victims or individuals whose telephones may be tapped or computers hacked.
Judicial Review of EPPO’s actions
Apart from a lack of rules on the applicable law, the current proposal leaves judicial review of EPPO investigative and prosecutorial actions almost entirely at the national level, even though many EPPO decisions will, by their very definition, involve the legal orders of multiple Member States. The question is to what extent are national courts able, have been trained, and are equipped to monitor EPPO activities that were not executed on their national territory. The proposal requires trial courts to admit evidence that was collected under different rules elsewhere in the EU, save for a human rights and a general fairness exception. Yet both the original proposal and certainly later proposals refrain from defining the applicable procedural safeguards and applicable remedies in sufficient detail, leaving these matters to national law. Nevertheless, in its explanatory memorandum, the European Commission considers this modest harmonization of judicial review as justification for the mandatory admissibility of evidence.
The Meijers Committee is greatly concerned about the effectiveness of the organization of judicial review, in both the pre-trial and trial stages. National courts are not well equipped to address these issues. At present, they largely operate on the basis of a rule of non-inquiry and do not, as a general rule, assess the legality of actions by foreign authorities. The question is whether this concept still fits within the EPPO design, which is not based on individual states cooperating, but on a single EU body, competent to act in all participating states, yet under the control of national courts. Save for the provisions just mentioned, the proposal is silent on how national courts must perform this role. The current system of European cooperation in criminal law enforcement, for instance, even after the entry into force of the European Investigation Order, will not be sufficient to have foreign witnesses readily available before national courts, as situations may fall outside the scope of that system or because grounds for refusal may be present.
The Meijers Committee urges the EU legislator to give national courts full competence and powers to assess the legality of actions performed by the EPPO, regardless of where they were executed,
and certainly in cases where the legality of such actions has not already been reviewed by local judicial authorities. The Meijers Committee stresses that where the legality or reliability of materials cannot be reviewed, such materials should be omitted from the evidence presented.
3 . Inconsistencies in applied grounds for adopting Union-wide criminal prohibitions
The current body of EU criminal law offers inconsistent and incomplete legal protection to European citizens. Shortcomings are found in the procedural safeguards in instruments of mutual recognition, the proposal on a European Public Prosecutor’s Office and the criteria used to decide on criminalization of conduct at the EU level. In light of an expert meeting held at the European Parliament in January 2015, the Meijers Committee publishes three short notes on gaps and inconsistencies in the legal protection offered by EU criminal law. This third note concerns the use of criteria to determine whether material prohibitions are appropriate at the EU level and the role of the European Parliament therein.
The European Commission, the Council, and the Parliament have published separate documents calling for a coherent policy with regard to the adoption of Union-wide criminal prohibitions. The institutions have developed so-called criminalization criteria in order to avoid the adoption of unnecessary and unclear harmonized definitions of criminal offences and sanctions, and to ensure a certain degree of coherence in developing EU substantive criminal law. Bearing this aim in mind, the Meijers Committee wishes to draw particular attention to the following issues.
Proposals to harmonize substantive criminal law require a repeated application of criminalization criteria
The Parliament’s role in this regard should not be underestimated, given in particular the Commission’s assumption that with regard to the so-called Euro-crimes (Art. 83 (1) TFEU) the listed criminalization criteria have automatically been met. Indeed, according to the Commission, the guiding principles apply only when the proposed harmonization is based on Art. 83(2) TFEU . However, it should be stressed that the mere existence of a legal basis for harmonization with regard to Euro-crimes does not automatically legitimate the adoption of criminal prohibitions. A coherent criminal policy requires the repeated verification of those criteria that have been accepted as relevant criminalization principles. Regardless of the Commission’s opinion on the assessment of all relevant criteria, it is up to the Parliament to evaluate the need for a criminal law solution to a societal problem, on the basis of those principles to which it has previously agreed.
Facilitation of judicial cooperation between Member States: a ground for criminalization?
A second concern is the ‘facilitation of judicial cooperation between Member States’ as one of the reasons for creating a Union-wide criminal prohibition. See, for instance, the most recent Directive on insider dealing and market manipulation (Directive 2014/57/EU, recital no. 7). See also, before the entry into force of Lisbon, the Framework Decision on racism and xenophobia (2008/913/JHA, recitals no. 4-5, 12-13). Throughout the legislative process of these instruments, no one questioned the facilitation of judicial cooperation as a legitimate ground for criminalization. The use of such a ground for criminalization expands the scope of substantive criminal law in the EU – and would easily undermine the principles of subsidiarity and last resort. The Meijers Committee invites the Union legislator to consider more carefully whether and when the facilitation of judicial cooperation constitutes a legitimate reason to adopt Union-wide criminal prohibitions.
‘Damage’ as a ground for criminalization
It is particularly important for the Parliament to pay attention to the substantive criterion of ‘harm’ or ‘damage’. As its own report states: only conduct ‘causing significant pecuniary or non-pecuniary damage to society, individuals or a group of individuals’ should be criminalized. This also relates to the principle of lex certa: the offences shall be clearly defined and delimited to include only conduct that causes damage to society, individuals or a group of individuals.
The field of ‘Euro-crimes’ (Art. 83 (1) TFEU) includes terrorist crimes, which may cause very serious damage. However, FD 2008/919/JHA (amending FD 2002/475/JHA on combating terrorism) also includes several preparatory offences – actions that could precede the actual perpetration of a terrorist act, such as provocation of terrorist crimes. With regard to these preparatory offences, the question of actual risks of such conduct – to what extent does it create a real and actual danger that such terrorist offences are eventually committed? – is important. As the Council states,
‘criminalization of a conduct at an unwarrantably early stage’ should be avoided – ‘conduct which only implies an abstract danger to the protected right or interest should be criminalized only if appropriate considering the particular importance of the right or interest which is the object of protection.’
In the current debate about ‘foreign fighters’, new calls are to be expected for the criminalization of offences in the ‘pre-phase’ of perpetration. Even though the political urge to take action (including criminal law measures) to deal with this problem is strong, the Meijers Committee calls upon all European institutions take into account the criminalization criteria to which they have committed themselves.
A revision of certain existing instruments may also be necessary in this regard. For instance, the current wording of the offence ‘provocation of terrorism’ in Framework Decision 2008/919/JHA appears to relate to an abstract rather than an actual danger. ‘Provocation, according to the FD, concerns the distribution of messages ‘with the intent to incite terrorist offences, where such conduct, whether or not directly advocating terrorist offences, causes a danger that one or more such offences may be committed’. Although it does make mention of the danger that can be caused, it does not require a clear and present danger and it obliges states to criminalize indirect advocacy of terrorist offences. It is important to ask whether the conduct described is actually capable of creating such harm or only in exceptional situations. If so, the prohibition should be limited only to those exceptional situations. This relates to the lex certa principle: the elements must be worded ‘precisely in order to ensure predictability’, as the EP states. This is not only the responsibility of Member States in their implementation of EU instruments, but also of the European legislature itself.
Criminalizing indirect provocation of terrorism is on the boundary of what is still an acceptable restriction of freedom of expression. Often, domestic law actually targets speakers because their speech is insulting rather than seriously capable of leading to terrorist acts. Although conduct is sometimes criminalized on a domestic level on the grounds that it also constitutes an insult, in light of the subsidiarity principle, constituting an insult should never be a sufficient reason for criminalization at the EU level.
The amendments tabled by the European Parliament to Framework Decision 2008/919/JHA – although they were ultimately not adopted – are a good example of how the European institutions can go about dealing with these criminalization criteria: the Parliament proposed only to criminalize conduct that clearly and intentionally advocates the commission of a terrorist offence where such conduct manifestly causes a danger that such offences are committed.
The Meijers Committee calls upon all the institutions to pay serious attention to the question
whether the conduct criminalized causes a real and actual danger of harm, and to guard against criminalization at an unwarrantably early stage or criminalization of conduct that is merely offensive rather than harmful.
The Meijers Committee hopes that these notes will be of use in future discussions about the development of EU criminal law. As always, we remain at your disposal for questions and comments. Please note that all our previous comments from 2000 and onwards are available on our new website.
The Meijers Committee is an independent group of legal scholars, judges and lawyers that advises on European and International Migration, Refugee, Criminal, Privacy, Anti-discrimination and Institutional Law. The Committee aims to promote the protection of fundamental rights, access to judicial remedies and democratic decision-making in EU legislation.
The Meijers Committee is funded by the Dutch Bar Association (NOvA), Foundation for Democracy and Media (Stichting Democratie en Media) the Dutch Refugee Council (VWN), Foundation for Migration Law Netherlands (Stichting Migratierecht Nederland), the Dutch Section of the International Commission of Jurists (NJCM), Art. 1 Anti-Discrimination Office, and the Dutch Foundation for Refugee Students UAF.
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