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Eucrim 1/2020, 4 eucrim 2020 / 1 THE EUROPEAN CRIMINAL LAW ASSOCIATIONS‘ FORUM Focus: New Challenges for Judicial Cooperation in Spain Dossier particulier: De nouveaux défis pour la coopération judiciaire en Espagne Schwerpunktthema: Neue Herausforderungen für die justizielle Zusammenarbeit in Spanien Guest Editorial Prof. Dr. Mar Jimeno-Bulnes The European Public Prosecutor’s Office – Protecting the Union’s Financial Interests through Criminal Law Prof. Dr. Mª Ángeles Pérez Marín Mutual Recognition of Judgements in Criminal Matters Involving Deprivation of Liberty in Spain Prof. Dr. Regina Garcimartín Montero The Proposal on Electronic Evidence in the European Union Prof. Dr. Ángel Tinoco-Pastrana Harmonization of Procedural Safeguards of Suspected and Accused Persons Prof. Dr. Félix Valbuena González Implementation of the Legal Aid Directive in Spain Prof. Dr. Begoña Vidal Fernández Legal Protection of Minors – Implementation of EU Directives in Spain Prof. Dr. Mª Belén Sánchez Domingo 2020/ 1 ISSUE / ÉDITION / AUSGABE The Associations for European Criminal Law and the Protection of Financial Interests of the EU is a network of academics and practitioners. The aim of this cooperation is to develop a European criminal law which both respects civil liberties and at the same time protects European citizens and the European institutions effectively. Joint seminars, joint research projects and annual meetings of the associations’ presidents are organised to achieve this aim. Contents News* Articles European Union New Challenges for Judicial Cooperation in Spain Foundations Procedural Criminal Law 36 The European Public Prosecutor’s Office – 2 Fundamental Rights 20 Procedural Safeguards Protecting the Union’s Financial Interests 7 Area of Freedom, Security 22 Data Protection through Criminal Law and Justice 25 Victim Protection Prof. Dr. Mª Ángeles Pérez Marín 10 Schengen 25 Freezing of Assets 41 Mutual Recognition of Judgements in Institutions Cooperation Criminal Matters Involving Deprivation 10 Council 26 European Arrest Warrant of Liberty in Spain 11 European Commission 28 Financial Penalties Prof. Dr. Regina Garcimartín Montero 11 European Court of Justice (ECJ) 29 Law Enforcement Cooperation 11 OLAF 46 The Proposal on Electronic Evidence 13 European Public Prosecutor’s Office in the European Union 13 Europol Prof. Dr. Ángel Tinoco-Pastrana 14 Eurojust 14 European Judicial Network (EJN) 50 Harmonization of Procedural Safeguards 15 Frontex of Suspected and Accused Persons – 15 Agency for Fundamental State of the Matter in Spain Rights (FRA) Prof. Dr. Félix Valbuena González Council of Europe Specific Areas of Crime / 55 Implementation of the Legal Aid Directive Substantive Criminal Law Foundations in Spain 15 Protection of Financial Interests 30 European Court of Human Rights Prof. Dr. Begoña Vidal Fernández 16 Money Laundering 17 Tax Evasion Specific Areas of Crime 59 Legal Protection of Minors – Implementation 19 Organised Crime 30 Corruption of EU Directives in Spain 19 Cybercrime 32 Money Laundering Prof. Dr. Mª Belén Sánchez Domingo 20 Racism and Xenophobia * The news contain Internet links referring to more detailed information. These links are being embedded into the news text. They can be easily accessed by clicking on the underlined text in the online version of the journal. If an external website features multiple languages, the Internet links generally refer to the English version. For other language versions, please navigate using the external website. Guest Editorial Dear Readers, Several anniversaries were recently celebrated in relation to bodies, with the objective of the EU, in general, and to the Area of Freedom, Security and promoting European judicial Justice (ASFJ), in particular: 60 years since the signature of cooperation within the Mem- the Treaty of Rome, 20 years since the enactment of the prin- ber States, e.g., the European ciple of mutual recognition, 10 years since the entry into force Public Prosecutor’s Office of the Treaty of Lisbon. The dynamic European landscape is (EPPO) in 2017 as the most giving rise to an increasing number of actors and instruments recent. Secondly, substantive in judicial cooperation in criminal matters, with undeniable re- European criminal legislation, percussions for the Member States. also articulated on the basis of the principles of mutual This can be seen not only from a legal/judicial perspective but recognition and approxima- also from a social one, since the repercussions basically have tion. Both perspectives are ad- an impact on the daily life of citizens. Call to mind the issu- dressed in this issue, in order ance/execution of a European Arrest Warrant (EAW) or, even to provide a general view of more recently, a European Investigation Order (EIO). Other European judicial cooperation areas where we can observe repercussions are procedural in criminal matters. Mar Jimeno-Bulnes rights in criminal proceedings, e.g., access to a lawyer, and protection of victims of crime. But the European judicial area does not end here. Instead, it continues to evolve unstoppably. This is why new proposals There are currently two principles that convey the legal basis and challenges must be included in the analyses. The frame- for the construction of the European judicial area: the princi- work of e-evidence is undoubtedly the star in the field of crim- ples of “mutual recognition of judgments and judicial deci- inal procedure, with instruments that will again use the two sions” and “the approximation of the laws and regulations of principles of mutual recognition and approximation of legisla- the Member States.” Presented as an alternative to the prevail- tions as shown in the 2018 Commission legislative proposals ing proposal of European harmonisation at the Tampere Coun- on European Production and Preservation Orders. cil (1999), the principle of mutual recognition on its own was soon found to be insufficient to sustain judicial cooperation, The analyses presented here do not tackle the aforementioned especially in the criminal law field. matters only from a European perspective but also include the national one. In this issue, Spain serves as an example of the Almost a decade after enactment of the first mutual recogni- integration of such European instruments into the country’s tion instrument, i.e., the EAW in 2002, the first directive aimed legal system. Spain has greatly contributed to the development at strengthening the procedural rights of suspects/accused per- of the European judicial area, particularly in the criminal law sons in criminal proceedings under the formula of legislative field, due to its own vested interest in the fight against ter- approximation came to light, i.e., Directive 2010/64 on the rorism and organised crime. The nation maintains an intense right to interpretation and translation. Further procedural in- level of activity in applying mutual recognition instruments, struments on judicial cooperation in criminal matters follow- as evidenced by the annual statistics provided for the EU, and ing both principles were later enacted. it is a “key player” in judicial cooperation in criminal matters within the Union. Alongside this specific procedural regulation employing the principles of mutual recognition and approximation, other Prof. Dr. Mar Jimeno-Bulnes legislation of a dual nature was enacted: Firstly, a kind of Full Professor of Procedural Law, Universidad de Burgos organic legislation aimed at creating European institutions/ (Spain) eucrim 1 / 2020 | 1 News* Actualités / Kurzmeldungen ests in case generalized deficiencies as regards the rule of law in Member States occur. 21 January 2020: The deputy disci- pline officer initiates first disciplinary proceedings against Polish judges having participated in the 1,000 Robes March. European Union 23 January 2020: Poland’s Supreme Court said rulings made by judges ap- Reported by Thomas Wahl (TW) and Cornelia Riehle (CR) pointed under new government rules (af- fecting several hundred judges) could be challenged, resulting in a number of cas- es being postponed. The Supreme Court Foundations ment, the Disciplinary Chamber contin- followed the lines of argument given by ued its activities. the CJEU. Fundamental Rights 11 January 2020: Thousands of peo- 23 January 2020: The Polish justice ple, including judges and lawyers from ministry – controlled by the ruling PIS Threat of Rule of Law in Poland – many EU Member States, assemble for a party – reacts and declares that the Su- Recent Developments march through Warsaw, in order to pro- preme Court’s judgment has no legal ef- spot New actions and regulations ini- test plans by the Polish government and fects. light tiated by the Polish ruling party ruling majority in parliament to disci- 23 January 2020: The lower house of to push through reforms in the pline the judiciary in Poland. The event the Polish parliament (the Sejm) passes justice system triggered further contro- was tagged as “1,000 Robes March.” a bill introducing further amendments versies between the country and Euro- 16 January 2020: The European Par- into the Polish judiciary system, despite pean institutions/civil society organisa- liament adopts a resolution on the Art. 7 rejection by the opposition-controlled tions. An overview of the main recent procedures against Poland and Hungary. Senate and criticism by the CoE Ven- events: It, inter alia, “notes with concern that the ice Commission (opinion of 16 January 19 November 2019: The CJEU rules reports and statements by the Commis- 2020). The amendments
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