Eucrim 3/2015

eucrim 2015 / 3 THE EUROPEAN CRIMINAL LAW ASSOCIATIONS‘ FORUM Focus: European Criminal Law and Human Rights Dossier particulier: Droit pénal européen et droits de l’homme Schwerpunktthema: Europäisches Strafrecht und Menschenrechte Guest Editorial Guido Raimondi Judicial Concepts of Trust in Europe’s Multi-Level Security Governance Prof. Dr. Valsamis Mitsilegas ECHR and the CJEU: Competing, Overlapping, or Supplementary Competences? Alexandros-Ioannis Kargopoulos Protection of Fundamental Rights and Criminal Law Valeria Scalia The Court of Justice of the EU and Criminal Policy Prof. Nicoletta Parisi and Prof. Dino Rinoldi Le Principe de Légalité aux Termes de l’Article 7 de la CEDH Andrea Tamietti Council of Europe Convention Against Trafficking of Human Organs Oscar Alarcón Jiménez The Additional Protocol to the Council of Europe Convention on the Prevention of Terrorism Kristian Bartholin 2015 / 3 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 Council of Europe European Criminal Law and Human Rights Foundations Foundations 90 Judicial Concepts of Trust in Europe’s 79 Schengen 86 Commissioner Publishes Comment Multi-Level Security Governance 79 Enlargement of the EU on Situation of Irregular Migrants Prof. Dr. Valsamis Mitsilegas 79 Commission 87 Election of the ECtHR New Presi- dent and Two New Vice-Presidents 96 ECHR and the CJEU. Competing, Over- Institutions lapping, or Supplementary Competences? 80 European Court of Justice Specific Areas of Crime Alexandros-Ioannis Kargopoulos (CJEU) 87 Corruption 81 OLAF 88 Money Laundering 100 Protection of Fundamental Rights 81 Europol and Criminal Law 82 Eurojust Valeria Scalia 83 Frontex 111 Principles of the European Criminal Policy Specific Areas of Crime / Nicoletta Parisi, and Prof. Dino Rinoldi Substantive Criminal Law 83 Protection of Financial Interests 116 Le Principe de Légalité aux Termes 84 Money Laundering de l’Article 7 de la Convention Européenne 84 Organised Crime des Droits de l’Homme 85 Cybercrime Andrea Tamietti Procedural Criminal Law 119 Council of Europe Convention Against 85 Data Protection Trafficking of Human Organs Oscar Alarcón Jiménez Cooperation 86 Police Cooperation 124 The Additional Protocol to the Council of Europe Convention on the Prevention of Terrorism Kristian Bartholin Imprint * News contain internet links referring to more detailed information. These links can be easily accessed either by clicking on the respective ID-number of the desired link in the online-journal or – for print version readers – by accessing our webpage www.mpicc.de/eucrim/search.php and then entering the ID-number of the link in the search form. Guest Editorial Dear Readers, The main concern of the European Court of Human Rights Union’s competence. Let us not for- is of course to succeed in its mission to protect fundamental get that the Luxembourg Court, in rights in Europe. Criminal law, substantive or procedural, is a its fundamental Pupino judgment, domain where the need to protect society, whether at the level had already – prior to Lisbon – also of the individual state or that of the organisation of European laid down a duty of consistent inter- integration – at the quasi-federal level of the Union – must pretation in relation to “third pillar” necessarily be confronted and associated with the need to pro- measures. tect fundamental rights. What then is the responsibility Such is the imperative arising from the irreversible choices of the European Court of Human made by European States in acceding to the European Con- Rights, the Strasbourg Court, vis- vention on Human Rights – and for 28 of them, to the Euro- à-vis the criminal law competence pean Union. Being a party to the Convention presupposes that of the Union? For the time being, the contracting state puts pluralistic democracy into practice, acts emanating from the Union’s upholding the rule of law and respecting human rights. The institutions and organs fall outside Union too is built upon values of democracy and human rights the Court’s examination. Any appli- Guido Raimondi protection; its action must now also be compliant, under the cation against the Union would be supervision of the Court of Justice, with the requirements of declared incompatible ratione personae with the Convention, the European Charter of Fundamental Rights. the Union not being a party to that instrument. Criminal law is thus a particularly important area of interven- In relation to measures adopted by the Union’s institutions and tion for the European Court of Human Rights, which has de- organs, however, the Court has developed a body of case law, veloped a wealth of case law. This holds particularly true for established mainly in 2005 with the Bosphorus v. Ireland case, Article 7 of the Convention, on the rule that criminal matters of which the key points had already been heralded in its M. v. must be strictly defined by law, and for Article 4 of Protocol Germany decision of 1990. No. 7, on the ne bis in idem principle. As regards procedural aspects, under Article 6 of the Convention, it has developed According to that case law, while it is true that the assignment key principles concerning questions such as fair proceedings, of a contracting state’s competence to an international organi- the importance of an independent tribunal and impartial judg- sation such as the EU does not release the Court from its duty es, the right to be presumed innocent, and various restrictions to supervise Convention observance − in so far as the Union on defence rights covered by paragraph 3 of Article 6. has its own judicial organ, the Court of Justice of the European Union, which protects human rights in a manner that is equiva- The European Union’s action in criminal matters has devel- lent to the protection provided by our Court −, the latter need oped considerably over the past few years, and it is now for not intervene unless it finds such protection to be manifestly the Union to decide, among other things, on the choices of deficient in a given case. criminal policy underlying the criminalisation of relevant con- duct when it comes to protecting the interests of the Union. The Strasbourg Court therefore has a duty to continue pro- This gives rise to concerns in the context of the never-ending tecting fundamental rights in accordance with its mission. The reflection on the Union’s “democratic deficit.” One cannot but doctrine of equivalent protection was significantly clarified pay tribute to the sensitivity of the Court of Justice, which im- by the 2012 judgment in Michaud v. France, which ruled out mediately assumed its responsibilities in this area, even before the application of the Bosphorus presumption that the Lux- the entry into force of the Lisbon Treaty in 2009 and the full embourg Court had not had the opportunity to examine the incorporation of what used to be called the “third pillar” of the relevant question. eucrim 3 / 2015 | 77 NEWS – EuropEAN UNION Since the Lisbon Treaty entered into force in December 2009, For my part, I remain convinced that the two European courts there have been great expectations as to the possibility of the should continue to act in the spirit of the 2011 declaration European Union’s accession to the European Convention on made by their two Presidents at that time, Presidents Costa Human Rights – a development which, apart from its sym- and Skouris, and thus persevere in developing harmonious bolic value, would eliminate any risk of conflicting case law case law, avoiding any conflict, and listening to each other. between the two European courts. It goes without saying that the need for the case law of the two Now, after opinion 2/13 of the Luxembourg Court, that has Courts to be harmonious is of particular importance when it become a more distant prospect. What can be done about this? comes to an area that is as sensitive for human rights as that Can any solutions be found to break the deadlock? I believe of criminal law. that the answer to this question rests with the negotiators, or even with the political leaders, rather than with the judicial Guido Raimondi, bodies. President of the European Court of Human Rights News Actualités / Kurzmeldungen sistency, regarding, e.g., trade and in- vestment and counter-terrorism; A more effective EU human rights and democracy support policy, includ- ing ensuring the effective use and the best interplay of EU policies, tools, and financing instruments. The Action Plan covers the period European Union* 2015 to 2019 and will be the subject of Reported by Dr. Els De Busser (EDB) and Cornelia Riehle (CR) a mid-term review in 2017. The review will coincide with the mid-term review of the external financing instruments in order to ensure greater coherence. such as national human rights institu- In conjunction with the Strategic Foundations tions, law enforcement agencies, and Framework on Human Rights and De- anti-corruption bodies; mocracy, on 8 September 2015, the EP Human Rights in the EU: Resolution Addressing human rights challenges also adopted a resolution on the situation and Action Plan such as non-discrimination, freedom of of fundamental rights in the EU (2013- On 20 July 2015, the Council presented expression online and offline, and de- 2014). Among the points made under the Action Plan on Human Rights and veloping capacity and knowledge on the the title of freedom and security, the EP Democracy for 2015-2019.

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