Since the concept of an ‘area of freedom, security and justice’ was introduced in 1997 with the Amsterdam Treaty, the European Union (EU) has added a new dimension to the traditional police and judicial cooperation between its member states. In the main EU policy documents aimed to elaborate this ambitious goal, European policy makers have always stressed the importance of a well-balanced agenda taking into account the core principles which lay at the foundation of the EU itself. In the conclusions of the Tampere European Council of 15 and 16 October 1999, the following principles
– which have been reiterated in subsequent policy documents in this area ever since
– were expressed:
“From its very beginning European integration has been firmly rooted in a shared commitment to freedom based on human rights, democratic institutions and the rule of law. These common values have proved necessary for securing peace and developing prosperity in the European Union. They will also serve as a cornerstone for the enlarging Union. ”People have the right to expect the Union to address the threat to their freedom and legal rights posed by serious crime. To counter these threats a common effort is needed to prevent and fight crime and criminal organisations throughout the Union. The joint mobilisation of police and judicial resources is needed to guarantee that there is no hiding place for criminals or the proceeds of crime within the Union.” In other words, according to Europe’s leaders, in building the ‘area of freedom, security and justice’, crime-fighting and protection of fundamental rights and freedoms should go hand in hand. Within this context, European criminal (procedural) law has developed with the central goal of improving cooperation, both at the supranational as the inter-state level. Important achievements have indeed been made since the Tampere Council. The European arrest warrant being probably the best example of the direction in which the EU wants to proceed. The main characteristic of this innovative instrument (the adoption of which was highly influenced by the post ‘9/11’ trauma) is the principle of mutual recognition. This principle, in a broad sense meaning the recognition of foreign decisions without prior conditions and with immediate effect in the requested state, has taken judicial cooperation in criminal matters to a new level. However, the practical implementation of the mutual recognition principle may be detrimental to fundamental rights. The most striking example is the formal removal of the nondiscrimination rule from extradition/surrender law in the European Arrest Warrant (EAW) framework. A critical observer of EU policy in the field of criminal law, cannot deny that the practice
of EU-policy making (in the implementation of the Tampere Programme, particularly since September 2001) and the main emphasis of the Action Plan implementing the Hague Programme are mainly repressive and prosecution-oriented. The idea of introducing a set of common (minimum) rules, guaranteeing the rights of defence at a EU-wide level, has not been accorded the same attention as the introduction of instruments aimed at improving the effectiveness of crime-fighting. Although some
symbolic steps have been taken (such as the signing of the Charter of Fundamental Rights of the European Union in December 2000 by the European Commission, the Council and the Parliament and the Proposal for a Council Framework Decision on certain procedural rights in criminal proceedings throughout the European Union, submitted by the European Commission on 28 April 2004), the realisation of minimum standards still seems far away. What does this finding mean for the future of the EU’s criminal policy? Will the EU succeed the coming years in developing an area where freedom, security and justice are truly balanced? According to several authors, the EU has evolved in the opposite direction. As one observer put it: “if Procedural Criminal Law arises from the application
of Constitutional Law, or indeed if it may be described as ‘a seismograph of the constitutional system of a State’, then as a consequence the Procedural Criminal Law of the European Union shows the extent of the Democratic Rule of Law, of the existence of a true ‘Rechtsstaat’, within an integrated Europe. This situation may be qualified as lamentable, as the main plank of the EU’s criminal justice policy relates to the simplification and the speeding up of police and judicial cooperation – articles
30 and 31 of the Treaty of the EU – but without at the same time setting an acceptable standard for fundamental rights throughout a united Europe.” Against this background, the current article aims to explore some of the options available to the EU in proceeding with its work in this field. Three aspects constitute the main framework. Firstly, a description of the work the EU has done so far in relation to procedural rights in criminal proceedings. Depending on this ‘status questionis’, a positive answer to the question whether there is a real need for EU action in this field is a prerequisite in order to proceed to the final aspect, comprising an in-depth analysis of the ideal (legal) mechanism(s) to achieve the two core objectives in this area: (1) improving judicial (and police) cooperation and (2) providing suspects and defendants within the EU with a procedural protection adequate to counterbalance the rapidly expanding spectrum of investigation/prosecution-oriented instruments.