Criminal Procedures and Cross-Border Cooperation in the EU Area of Criminal Justice

Together but apart?

This book examines to what extent differences between national procedural criminal laws hinder the negotiations and the operation of cross-border cooperation instruments in the EU area of criminal justice. Read More

For the past decade, judicial cooperation in criminal matters in the European Union has been premised on the principle of mutual recognition. Its operation presupposes the acceptance of mutual trust between the – diverse – legal systems of the Member States. That trust is grounded on their shared commitment to the principles of freedom, democracy, respect for human rights and the rule of law. Since the entry into force of the Lisbon Treaty, the EU legislator has adopted six directives on the procedural rights of defendants, together with one directive on victims' rights. However, against the background of intense legislative activity in criminal matters, illustrated by the adoption of the EPPO Regulation and the release of the E-Evidence Proposal, recent debates questioned whether further approximation efforts should be undertaken in the field of procedural criminal law.
In this context, this edited volume examines to what extent differences between national procedural criminal laws hinder the negotiations and the operation of cross-border cooperation instruments. It is based on a comparative analysis of a representative sample of Member States. It identifies several forms of "hindrances" to cross-border cooperation, ranging from mere delays to the suspension and the non-execution of assistance requests, alongside the striking underuse of some of the existing instruments. There is no simple or single answer to these challenges. Therefore, several non-legislative and legislative recommendations are put forward for the short- and long-term horizon.


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Specifications


Publisher
Éditions de l'Université de Bruxelles
Edited by
Élodie Sellier, Anne Weyembergh,
Foreword by
Pedro Caeiro,
Introduction by
Élodie Sellier, Anne Weyembergh,
Contributions by
Petra Bárd, Aart de Vries, Joske Graat, Diana Ionescu, Tony Marguery, Daniel Niţu, Alexander Oppers, Élodie Sellier, Perrine Simon, Thomas Wahl, Anne Weyembergh,
Collection
European Studies
ISSN
13780352
Language
English
Supporting Website
Oapen.org
Publisher Category
Publishers own classification > Law
BISAC Subject Heading
LAW027000 LAW / Criminal Procedure
CLIL (Version 2013-2019)
3280 Droit de l'Union européenne
Title First Published
20 August 2020
Subject Scheme Identifier Code
Thema subject category: International law

Paperback


Publication Date
20 August 2020
ISBN-13
978-2-8004-1721-9
Product Content
Text (eye-readable)
Extent
Main content page count : 459
Code
1721
ONIX XML
Version 2.1, Version 3

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Contents


Acknowledgments

Foreword | Pedro CAEIRO

List of abbreviations

Introduction | Élodie SELLIER and Anne WEYEMBERGH
I.     Background and objectives of the research
II.    Literature review
III.   Methodology
IV.   Structure

PART I - National contributions

Chapter I - France: Smooth cooperation in criminal matters and a minimalistic approach towards the harmonisation of
criminal procedural law | Perrine SIMON
I.     Introduction: the main features of the French criminal procedure, from the inquisitorial to the mixed model
II.    The 'a minima' transposition of the procedural rights directives for defendants
III.   The deficiencies of French rules on evidence, a potential obstacle to mutual recognition
IV.   Detention law, the gap between theory and practice
V.    The strong focus on protection of victims in French procedural criminal law
VI.   The scarcity of horizontal issues of judicial cooperation in criminal matters
VII.  Conclusion

Chapter II - European criminal procedural law in Germany: between tradition and innovation
| Thomas WAHL and Alexander OPPERS
I.     Introduction
II.    Transposition and implementation of procedural rights' directives for defendants
III.   Evidence law
IV.   Detention law
V.    Victims' law
VI.   Horizontal issues of implementation, coordination and cooperation
VII.  Conclusion and policy recommendations

Chapter III - Hungary | Petra BÁRD
I.     Main features of national criminal procedure
II.    Transposition and implementation of procedural rights directives for defendants
III.   Evidence law
IV.   Detention law
V.    Victims' law
VI.   Horizontal issues of implementation, coordination and cooperation
VII.  Conclusions

Chapter IV - The European Union's influence on criminal procedural law in the Netherlands:
Driving forces, critical notes and possible future steps in criminal matters | Aart DE VRIES, Joske GRAAT, Tony MARGUERY
I.     Introduction
II.    A bird's-eye view of Dutch criminal procedural law
III.   The EU's instruments and their impact on Dutch criminal proceedings
IV.   Investigations and evidence under Dutch criminal law
V.    The system of pre-trial detention in the Netherlands and prison conditions in other Member States – central
        questions on detention from a Dutch perspective
VI.   Increased rights for the victim in Dutch criminal proceedings
VII.  Cross-border complexities
VIII. To sum it all up – conclusions and recommendations from the Dutch perspective

Chapter V - Romanian criminal procedure at a crossroads: Legacies of the past and current challenges | Daniel NIŢU and Diana IONESCU
I.     General background
II.    Main features of Romania's criminal procedure
III.   Transposition and implementation of procedural rights' Directives for defendants – minimum standards, gaps
       and delays
IV.   Romanian system of evidence law. The rule of law versus the finding of the truth, a continuous challenge
V.    Detention law in Romania. The difficult choice between a preventive measure and an anticipated penalty
VI.   Victim’s law. Extensive powers under statutory law, low level of use of these powers in practice
VII.  Horizontal issues of implementation, coordination and cooperation
VIII. Conclusions. Policy recommendations

PART II - Comparative study | Élodie SELLIER and Anne WEYEMBERGH

Chapter I - Investigative measures
I.    Comparative analysis of investigation regimes
II.   Impact of these differences on cross-border cooperation

Chapter II - Admissibility of illegally and improperly obtained evidence
I.    Comparative analysis of inadmissibility regimes
II.   Impact on cross-border cooperation

Chapter III - Transnational investigations and equality of arms
I.    Different understandings of the principle of equality of arms
II.   Accommodating and circumventing differences by extreme reliance on national law: investigative tools, procedural
      safeguards and legal remedies
III.  Weak position of the defence in EU cross-border cooperation frameworks
IV.  Limited efforts undertaken by the EU to mitigate existing challenges
V.   Lack of consideration for the defence in EU cross-border cooperation frameworks

Chapter IV - Pre-trial detention regimes and alternatives to detention
I.    Comparative analysis of pre-trial detention regimes
II.   Impact on mutual trust and mutual recognition

Chapter V - Mutual recognition post-Aranyosi and Căldăraru: Diversity of approaches and resulting challenges
I.    Comparative analysis of approaches to surrender post-Aranyosi and Căldăraru
II.   Impact on mutual recognition

Chapter VI - Compensation schemes for unjustified detention: Missing from the picture?
I.     Comparative analysis of compensation schemes
II.    Impact on mutual recognition and cross-border cooperation.

Chapter VII - The right to be present at a trial and conditions of EAW surrenders
I.     Comparative analysis of national regimes governing in absentia trials
II.    Impact on mutual recognition

Chapter VIII - Compensation schemes for victims
I.     Comparative analysis of compensation schemes
II.    Impact on cross-border cooperation

Chapter IX - Protection measures for victims
I.     Comparative analysis of protection measures
II.    Impact on mutual recognition and cross-border cooperation

PART III - Conclusion and recommendations | Élodie SELLIER and Anne WEYEMBERGH

Chapter I - General assessment
I.     Practical impact of differences in criminal procedures on mutual recognition and cross-border cooperation
II.    How to cope with differences? Typology of existing trends among Member States...
III.   ... Alongside the 'flexibility approach’ developed by the EU
IV.   Imbalances and inconsistencies between actors and instruments

Chapter II - Recommendations
I.     Practical recommendations and soft law tools
II.    Legislative action

Biographies


Excerpt


Introduction


Table des matières / Contents