Limits to Criminal Law

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Limits to Criminal Lawby Prof. Dr. Gerard
StrijardsLeyden Conference 2008
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Lisbon Treaty

• The European constitution is ahead.
• Only for the sake of political hermeneuthics one
  should not speak of a constitution,
• as face saver for France and the Netherlands.
• As remainderof the 2004 constitution reference
  has been made in de final 2007 act to
• the possibility of an European Prosecutoral
  Service
• to be elaborated in an intergovernmental
  conference.
• This has been dealt with in
• The Lisbon Treaty
• Coming in to force in 2009

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EU Commissioner Frattini

• Freedom, Security Justice old
• Justice, Freedom Security Frattini
• QuoteThe European Public Prosecutor could
  prove useful in areas where important European
  interests are at stake
• European interests???

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This institution is a longly fostered ideal of

• Giscard dEstaing
• Rome 2004
• Sarkozy
• Merkel

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Sarkozy

• For Sarkozy
• the establishment of an EU Prosecutoral Service
  is a matter of course
• It should be an principal organ of the Union.
• In Sarkozys view the establishment would be the
  consummation of the Union as a prefederal
  entity.
• What does a prefederation mean?

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Prefederation

• What does a prefederation mean?
• A prefederation is a go-in-between.
• Bolkestein stipulated
• There should NOT BE
• an United States of EUROPE

A well known Leiden student
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States
United
All States
of
Europe
of
Europe
Europe
United !?
of
States
United
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Europe of United States

• Does that Europe of United States really need a
  prosecutorial service as a principal organ?
• This is the inflammatory todays question.
• Constitution 2004
• devoted three operative articles to the EU
  Prosecutoral Service

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Euro-prosecution service

• European Constitution Official Journal C310/55,
  16-12-2004
• Article III-273
• To
• Article III-275

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Jurisdictional scope

• Article III-274
• In order to combat crimes affecting the financial
  interests of the Union, a European law of the
  Council may establish a European Public
  Prosecutor's Office from Eurojust. The Council
  shall act unanimously after obtaining the consent
  of the European Parliament.
• The European Public Prosecutor's Office shall be
  responsible for investigating, prosecuting and
  bringing to judgment, where appropriate in
  liaison with Europol, the perpetrators of, and
  accomplices in, offences against the Union's
  financial interests, as determined by the
  European law provided for in paragraph 1. It
  shall exercise the functions of prosecutor in the
  competent courts of the Member States in relation
  to such offences.

• Cross bordering crimes against the financial
  interests of the Union
• other transnational crimes menacing the legal
  order of several EU-states.
• The establishment should be decided by
  unanimity.
• The Service should have own investigative and
  procedural powers.
• The Lisbon document is in line with those
  assumptions.
• This IS really an open ended provision cross
  bordering and transnational crimes are
  indefinienda.

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Asymmetry
See recommendation of the 2004 The Hague
conference on Organised Crime If there is
agreement on the setting up of an European Public
Prosecutor (EPP) we need to consider the
necessity also of having an European Court and an
European Police Force supporting it. This might
necessitate an European Criminal Code and an
European Code on Criminal Procedure. The
Lisbon document does not provide for this at all.

• At which level should the EU-Service seek access
  to the Judiciary?
• The proposals do not envisage the setting up of a
  prefederal EU Criminal Court
• Access should be sought at the national level to
  domestic courts.
• This is an asymmetry.

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Art. 29 EU-convention
Article 29 Without prejudice to the powers of
the European Community, the Union's objective
shall be to provide citizens with a high level of
safety within an area of freedom, security and
justice by developing common action among the
Member States in the fields of police and
judicial cooperation in criminal matters and by
preventing and combating racism and
xenophobia. That objective shall be achieved by
preventing and combating crime, organised or
otherwise, in particular terrorism, trafficking
in persons and offences against children, illicit
drug trafficking and illicit arms trafficking,
corruption and fraud, through - closer
cooperation between police forces, customs
authorities and other competent authorities in
the Member States, both directly and through the
European Police Office (Europol), in accordance
with the provisions of Articles 30 and 32, -
closer cooperation between judicial and other
competent authorities of the Member States
including cooperation through the European
Judicial Cooperation Unit ("Eurojust"), in
accordance with the provisions of Articles 31 and
32, - approximation, where necessary, of rules
on criminal matters in the Member States, in
accordance with the provisions of Article 31(e).

• Is there a substantive connection between the EPP
  and the four freedoms?
• Freedom to seek employment
• Freedom to render services
• Freedom of settlement
• Freedom to have capital circulating
• within the common EU-area

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Willing Partners

• Art.69E grants nine "willing EU-Partners" the
  right to establish the European Prosecutor,
  leaving the "unwilling partners" outside of the
  scheme.
• Thus we are gazing at an Europe with two
  accelerations in transnational criminal matters.
•  
• There is no guarantee that those "willing wise
  Willies" will be whispering within one monolithic
  common jurisdictional area.
•  
• Positive jurisdictional conflicts will be
  prompted by this interim solution to the
  detriment of the "unwise

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EPP European Public Prosecutor

• What should the EU-PP look like?
• Will it have the status of a judiciary?
• Where will it render its legitimacy?
• Rule of legality or expediency?
• Hierarchical relation to the National police
  forces?
• But the overarching question is
• The Kompetenz-Kompetenz

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Kompetenz-Kompetenz

• Who is to decide as to whether crimes fall within
  the jurisdictional scope of the Service?
• It depends on the crossbordering nature of the
  crime
• Will the Service rule on that?
• Will it be with the States concerned?
• Will it be with the Commission?
• The solution the rule of complementarity.???
• But then the involved States have to admit that
  their jurisdictions are not available or
  ineffective?

• The Kompetenz-Kompetenz should be with the
  Service.
• But quis custodiet custodes ipsos?

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A better alternative

• Accelerate the traditional EU-system on
  cooperation and assistance.
• The setting up of Joint Investigation Teams
  should be enhanced.
• The idea that the lex loci should be tyrannical
  should be abandoned.
• The same should go for the assumption that
  seconded members could only provide for
  assistance not having penal enforcement powers
  on their own footing.

Will it be in our lifetime? That is the most
inflammatory question. Thank you for your
kind attention.
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• Presentatie samengesteld door
• EULEC
• Brussel
• The European Institute for
• Freedom Security and Justice
• www.eulec.org
• Deze - en andere presentaties zijn opgenomen in
  de website

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