Metamorphosis Of The 3Rd Pillar: The Halt Of The Transition Menses For Eu Criminal In Addition To Policing Law

by Emilio De Capitani

On 1st Dec 2014, afterward 5 years of “legal gestation”, the previous “third pillar” of European Union law volition finally transform itself from an intergovernmental larva into a supranational butterfly. But volition this actually ensure a coherent policy, correctly applied past times Member US too inward total compliance amongst human rights?

More precisely, inward compliance amongst Article 10 of Protocol 36 to the Treaties, added past times the Lisbon Treaty, all the European Union measures dealing amongst police describe too judicial cooperation inward criminal matters adopted earlier the entry into strength of the Lisbon Treaty volition live treated similar all the other European Union legislative measures every bit far every bit the jurisdiction of the CJEU is concerned. Their transposition should live verified on the the world and, inward illustration of problems, the Commission volition live entitled to convey the Member US to the CJEU, which volition also receive got the mightiness to translate these measures next references for a preliminary ruling from all national courts (only some national courts tin send questions at present).

Moreover, amongst the halt of the lastly transitional menstruum for the Area of Freedom Security too Justice (AFSJ) it volition live possible on the footing of existent too transparent information to create upwards one's hear if dozens of measures (such every bit the European arrest warrant or the PRUM decision) which receive got been negotiated inward a dissimilar political too legal context should live revised to comply amongst the novel European Union constitutional framework.

Quite surprisingly the aforementioned deadline – which volition inevitably receive got a profound impact on the Member States’ policies too on the rights of the European Union citizens – is approaching without whatever form of populace scrap past times the civil society, the national parliaments or the academia.

Even at European Union grade during the lastly Justice too Home affairs Council where the indicate was on the agenda no delegations took the flooring nor the recent European Council referred to it inward the Guidelines framing the time to come of the liberty safety too judge area.

UK opt-in, opt-out too re-opt-in…

Why this silence? It is to a greater extent than than probable that such a “diplomatic” reserve too understatement are due to the fact that the U.K. is currently negotiating amongst the Council too the Commission which volition live its lastly seat on the erstwhile European Union 3rd pillar measures. (see here) It is was indeed to comply amongst the UK’s “red lines” that inward Oct 2007 inward the lastly stage of the Lisbon Treaty negotiations, a 5 yr menstruum freezing the Commission too CJEU enforcement powers was inserted inward Protocol 36 (transitional measures).

At that fourth dimension the U.K. government’s aim was (and in all likelihood even therefore is) to protect its mutual law systems, too its police describe too judicial processes from the chance of the CJEU’s “judicial activism”. According to a House of Lords report, the U.K. Government asked it because the “vast majority” of pre-Lisbon police describe too judicial cooperation (PCJ) measures were non drafted amongst CJEU jurisdiction inward hear too had ofttimes been agreed at the “lowest mutual denominator” inward monastic enjoin to secure unanimity. As a result, much of the drafting was “not of a high touchstone too may live opened upwards to expansive interpretation past times the ECJ” (see indicate 91 of House Of Lords Report “EU police describe too criminal judge measures: The UK’s 2014 opt-out decision” HL Paper 159).

Very skilfully the U.K. also obtained inward the same Protocol the right to opt out from all the erstwhile 3rd pillar measures earlier May 2014 every bit good every bit the possibility of a minute thought, afterward Dec 1st 2014 of agreeing amongst the Council (for Schengen related measures) too amongst the Commission a novel opt-in on some (or all) the erstwhile 3rd pillar measures. However, according to Protocol 26 the U.K. re-opt-in could live granted solely “without seriously affecting the practical operability” of the 3rd pillar measures too past times “respecting their coherence”.

Last yr the U.K. Government submitted to the Council its Opt-Out determination too is immediately informally negotiating the possible re-opt-in for but about 35/37 3rd pillar measures (see here)

It is also early on to know which volition live the resultant of the EU-UK negotiations. However if the Council too the Commission volition pick out the U.K. re-opt-in asking (which for some measures tin live delayed afterward the halt of 2015) the province of affairs volition non live extremely dissimilar from the 1 existing earlier the block opt-out – except that the U.K. volition immediately live plain of study to the Commission too CJEU enforcement powers.

The hard cry for of the erstwhile 3rd pillar acquis ….

The UK’s (and Denmark’s) peculiar province of affairs aside, the Definition of the pre-Lisbon acquis for police describe too judicial cooperation inward criminal matters volition live extremely of import also for the other European Union fellow member US and, quite in all likelihood for the European Parliament (EP) too for the national parliaments. The EP is, since the halt of 2009, a co-legislator also for police describe too judicial cooperation inward criminal matters but volition non live associated amongst the implementation of Protocol 36. As for national parliaments, they volition immediately percentage amongst the EP broad scrutiny powers (Articles 70, 71 85 too 88 TFEU) on these policies, too volition at lastly receive got the chance to banking enterprise jibe what happened inward the European Union exterior their national borders too fifty-fifty to a greater extent than within their national territory. Maybe the Dec 1st deadline could therefore live an occasion at to the lowest degree for some of them to verify if these European Union measures receive got been correctly transposed and, if they receive got to live amended (as it even therefore possible for measures such every bit Europol too Eurojust which are currently renegotiated at European Union level).

A revised list of the erstwhile 3rd pillar measures has been late established past times the Commission inward cooperation of MS representatives. The 123 measures currently covered past times Protocol 36 are rattling diverse: some of them are of quasi legislative nature (such every bit the Framework Decisions) some others (such every bit the international agreements or Conventions, too the Council Decision) fifty-fifty if non legislative, are binding, too some others are of uncertain nature every bit it is the illustration for the “Joint Actions” adopted nether the Maastricht Treaty regime.

As far every bit the content is concerned these measures bargain with:

- mutual recognition of national decisions (such every bit the European Arrest Warrant (EAW) the European Supervision Order, the mutual recognition of freezing orders; fines; confiscation orders, probation orders; too of prison theatre sentences…);
- harmonization of the definitions of sure criminal offenses too minimum penalties;
- criminal procedures;
- cross-border cooperation, inward item betwixt police describe too law enforcement agencies, including the central of information too the investigation of crime;
- European Union agencies (Europol, Eurojust too the European Police College (CEPOL));
- agreements amongst 3rd countries on information sharing, mutual legal assistance too extradition

The Commission’s listing is non lastly because betwixt immediately too Dec 1st some of the measures could even therefore live replaced past times texts currently nether negotiation. Moreover the Commission has also announced that some of them – which tin live considered obsolete – volition live repealed.

…the work of their transposition too operability …

To assess the “operability” of these measures the European Commission has to verify if they receive got been correctly transposed past times the Member States. The Commission is already collecting the relevant information fifty-fifty if it is non yet entitled to opened upwards infringement procedures inward illustration of non compliance past times the Member States.

It is worth recalling that inward some cases (such every bit for the European Arrest Warrant) the Commission has already submitted several implementing reports. For other cases, the Commission has solely late adressed to the Member US some pre-alert communications which should live taken inward work concern human relationship to avoid judicial proceedings afterward Dec 1st 2014.

The origin pre-alert Commission report deals amongst the Framework Decisions 2008/909/JHA, 2008/947/JHA too 2009/829/JHA on the mutual recognition of judicial decisions on custodial sentences or measures involving deprivation of liberty, on probation decisions and option sanctions too on supervision measures as an option to provisional detention. These Framework Decisions (FD) receive got to live seen every bit a packet of coherent too complementary legislation that addresses the number of detention of European Union citizens inward other Member States and has the potential to Pb to a reduction inward pre-trial detention or to facilitate social rehabilitation of prisoners inward a cross edge context. 

The origin FD (transfer of Prisoners) allows a Member State to execute a prison theatre judgement issued past times some other Member State against a soul who remains inward the origin Member State. On the other hand, it establishes a arrangement for transferring convicted prisoners dorsum to their Member State of nationality or habitual residence (or to some other Member State amongst which they receive got closed ties) to serve their prison theatre sentence. Article 25 of the Transfer of Prisoners FD inward conjunction amongst Article 4(6) too 5(3) of the European arrest warrant, allows a Member State to reject to give upwards its nationals or residents or persons staying inward the latter if the other Member State undertakes to enforce the prison theatre judgement inward accordance amongst the same FD.

The minute FD (Probation too Alternative Sanctions) applies to many alternatives to custody too to measures facilitating early on release (e.g. an obligation non to move inward sure localities, to ship out community service or instructions relating to residence or preparation or professional person activities). The probation determination or other option sanction tin live executed inward some other Member State, every bit long every bit the soul concerned consents.

The 3rd FD (European Supervision ) concerns provisional release inward the pretrial stage. It volition enable a non-custodial supervision (e.g. an obligation to remain at a specified house or an obligation to study at specified times to a specific authority) to live transferred from the Member State where the non resident is suspected of having committed an offense to the Member State where he unremarkably resides. This volition allow a suspected soul to live subjected to a supervision stair out inward his dwelling work solid Member State until the trial takes house inward some other Member State, instead of beingness placed into pre-trial detention.

It is worth recalling that at the fourth dimension of the Commission Communication, good afterward the relevant deadlines, respectively 10, xiv too xvi Member US receive got non yet transposed the Framework Decisions.

Another pre-alert Commission report deals amongst the implementation of the Framework Decision 2008/675/JHA of 24 July 2008 on taking into work concern human relationship of convictions inward the Member US of the European Union inward the course of study of novel criminal proceedings. This Framework Decision aims to ensure that similar legal effects are given to domestic convictions too convictions from other Member States. Its article iii is based on the regulation of uncomplicated assimilation of convictions too imposes every bit a thing of regulation that the legal effects of unusual convictions must live equivalent to the legal effect of domestic convictions. More than iii years afterward the implementation date, half dozen Member US receive got yet to notify the measures transposing the obligations of this Framework Decision: BE, ES, IT, LT, MT too PT.

A 3rd pre-alert Commission report deals amongst the Framework Decision 2009/948/JHA of thirty Nov 2009 on prevention too village of conflicts of jurisdiction inward criminal proceedings. This FD addresses the situations where potentially several Member US are competent to demeanor criminal investigations inward abide by of the criminal offense too proceedings against the alleged perpetrators. This poses challenges non solely inward price of coordination too effectiveness of criminal prosecutions, but also amongst regard to abide by for the key regulation of criminal law, also enshrined inward the Charter of Fundamental Rights of the European Union (“the Charter”), that a soul may non live prosecuted too convicted twice for the same offense (Ne bis inward idem). More than 1 yr afterward the implementation date, thirteen Member US yet to notify the measures transposing the obligations of this Framework Decision: BG, DK, EE, EL, ES, FR, IE, IT, LT, LU, MT, SE too the UK. Seven Member US informed the Commission of the physical care for of preparing relevant transposition measures at national grade (BG, EL, ES, FR, LT, MT too SE). However, none of these Member US adopted the measures or notified the Commission at to the lowest degree earlier Apr 2014.

In all these pre-alert Communications the Commission has abundantly made clear that the non-implementation of the Framework Decisions past times some Member US is problematic since those Member US who receive got properly implemented the Framework Decisions cannot create goodness from their co-operation provisions inward their relations amongst those Member US who did non implement them inward time. As a consequence, when cooperating amongst a Member State who did non implement inward time, fifty-fifty those Member US who did therefore volition receive got to rely on the random too ofttimes lengthy exercise of traditional mutual legal assistance inward criminal matters without a reliable guarantee of a timely detection of bis inward idem cases, which should already pick out house at early on stages of criminal proceedings. Such a exercise increases significantly a chance of double jeopardy.

…and the work of their “coherence” too compliance amongst the European Union Charter.

But the priority for the European Union legislator inward the coming months should live to verify if the erstwhile 3rd pillar measures which were negotiated without taking inward work concern human relationship the immediately binding Fundamental rights Charter are consistent amongst the novel European Union institutional too legal framework.

Even if some scholars too politicians attempt to sell the view that at that topographic point is a substantial continuity betwixt the pre Lisbon too Post Lisbon era this is for sure non the illustration for the AFSJ, where the entry into strength of the Charter has marked a clear modify of perspective. H5N1 proof of this has been late offered past times the recent CJEU jurisprudence inward the asylum domain where the presumption of compliance amongst key rights past times some other Member State has been considered rebuttable inward circumstances where key rights are nether threat (CJEU data retentiveness judgment, where the European Union information retentiveness  Directive was annulled for violation of the regulation of proportionality too of the Charter. If this is the seat of the CJEU how many of the 123 measures inward the Commission listing volition require a substantial revision to live considered “coherent” amongst the novel post – Lisbon legal too constitutional framework?

Please don’t throw out existent rights for mistaken security…

Pre-Lisbon measures should also live plain of study to the parliamentary scrutiny at European too national grade every bit it is required since 5 years past times Article seventy of the TFEU. They should also live effective every bit they tin demeanor on European Union citizens’ safety too key rights. However it is hard to ascertain if the interference amongst European Union citizens’ rights has been proportionnate too effective. As the post-Snowden saga has immediately abundantly showed, “intelligence led policing” too “operational cooperation” encompass practices which tin live extremely intrusive without offering clear results to the European and/or to the national parliaments. Moreover what is fifty-fifty to a greater extent than worrying is that parliamentarians create non examine whether their seat down is playing whatever role inward the therefore called European Union “Internal safety strategy” or inward the “policy cycle” which are less transparent than the “joint actions” negotiated nether the Maastricht regime… Are these “soft law” initiatives even therefore justified 40 years afterward the origin TREVI cooperation was launched inward these domains?  Or, afterward Lisbon, tin the European Union citizens await from the European Union too its Member US a legislative framework which tin at the same fourth dimension deliver effective safety too protect key rights?

This was announced past times the novel treaties too past times the Charter 5 years agone too what European Union citizens are deemed to obtain; it is therefore the duty of the incoming Commission too of the newly elected European Parliament to create what the European Council didn’t dare to propose.

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