eucrim ISSUE / ÉDITION / AUSGABE 1–2 / 2009 THE EUROPEAN CRIMINAL LAW ASSOCIATIONS‘ FORUM SUCCESSOR TO AGON Focus: The Development of European Criminal Procedure Law Dossier particulier: Le développement du droit de la procédure pénale européen Schwerpunktthema: Die Entwicklung des europäischen Strafprozessrechts Rules on the Application of ne bis in idem in the EU Dr. Katalin Ligeti Mutual Recognition of Judicial Decisions in Criminal Matters with Regard to Probation Measures and Alternative Sanctions Hanna Kuczyńska Vers la mort annoncée du juge d’instruction en France Elisabeth Schneider The Constitution says yes [but …] to the Lisbon Treaty Dr. Marianne Wade 1–2 / 2009 ISSUE / ÉDITION / AUSGABE Contents News* Articles European Union Cooperation The Development of European 14 Customs Cooperation Criminal Procedure Law Foundations 15 Judicial Cooperation 2 Community Powers in Criminal 17 European Arrest Warrant Matters – Data Retention 19 European Supervision Order 37 Rules on the Application of ne bis in idem 3 Community Powers in Criminal 19 Criminal Records in the EU Matters – Data Bases 20 E-Justice Dr. Katalin Ligeti 3 Schengen 23 Law Enforcement Cooperation 4 Legislation 43 Mutual Recognition of Judicial Decisions in Criminal Matters with Regard to Probation Institutions Council of Europe Measures and Alternative Sanctions 5 OLAF Hanna Kuczyńska 5 Europol Foundations 6 Eurojust 25 60th Anniversary of Council 49 Vers la mort annoncée du juge d’instruction of Europe en France Specific Areas of Crime/ 26 Relations between the Council Elisabeth Schneider Substantive Criminal Law of Europe and the European Union 7 Counterfeiting & Piracy 27 European Court of Human Rights 57 The Constitution says yes [but …] 7 Organised Crime 29 Human Rights and Legal Affairs to the Lisbon Treaty 8 Environmental Crime Dr. Marianne Wade 8 Illegal Employment Specific Areas of Crime 30 Corruption Procedural Criminal Law 31 Money Laundering Imprint 9 Procedural Safeguards 33 Cybercrime 10 Data Protection 11 Ne bis in idem Procedural Criminal Law 13 Victim Protection 14 Freezing of Assets Legislation * 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. Editorial Dear Readers, I am delighted to contribute the editorial to this new issue of of this youth, such a decision was not eucrim, which covers different aspects of European criminal taken when the European Arrest War- procedural law and judicial cooperation within the European rant was issued. The Polish Supreme Union. Cooperation in criminal matters among the Member Court held that, despite the lack of any States tackles various questions of a different nature, spanning instigated criminal proceedings, the legal, political, theoretical, and practical issues. In contrary to warrant could be executed, provided the practice in civil matters, cooperation in criminal matters that the surrender of the accused is for proves to be more difficult, mainly due to the “traditional” the purpose of conducting criminal approach linked with the sovereignty of each State in respect non-juvenile proceedings. of its criminal legislation. However, ideas that have been adopted and put into practice in the European Communities The second case in 2009 was even and European Union over the past few decades force us to look more difficult, in particular due to dif- at the issue of sovereignty in criminal law in a new way. ferent approaches adopted by different EU Member States. It concerned the Prof. Lech K. Paprzycki Although unintended, the free movement of persons and goods procedure of returning a sentenced in the European Community unfortunately also allows crimi- offender to the executing Member State for the purpose of nals to move more easily and freely across the borders of the serving the sentence passed in the issuing Member State, as European Union Member States and to set up or move their set forth in Article 5.3 of the Framework Decision on the Eu- criminal enterprises wherever and whenever it proves most ef- ropean Arrest Warrant. The Supreme Court held that Article fective. Efforts must be undertaken on the part of each Mem- 607s § 4 of the Polish Code of Criminal Procedure excludes ber State, not only individually but also collectively, in order exequatur procedures, as set forth in the 1983 Council of to effectively safeguard the underlying policies of the EU and Europe Convention on the transfer of sentenced persons and fight cross-border crime. in Polish legislation. The process of achieving these aims can be divided into three The decisions in these two cases exemplify how Poland gave levels: European legislation, national legislation, and practi- the idea of mutual recognition of judicial decisions in criminal cal cooperation. The first two levels assume political good matters its widest possible meaning. The fundamental pillars will. The third one rests on good faith and mutual trust among of both decisions are based on the belief and trust that Polish or the Member States. Each level is as important as the other, any other EU Member State’s cases abroad will be treated with although the efficacy of enacted laws will always be measured the same broad approach to the idea of mutual recognition. in practice. For this reason, despite its legislative origins, the level and standard of cooperation among EU Member States in On balance, the philosophy of the traditional approach to sover- criminal matters will always rest with judges, prosecutors, the eignty in criminal law must be reviewed in order to effectively police, and other law enforcement officers. fight the increasing number of EU-wide crimes. Maintaining and developing the EU as an area of freedom, security and In this context, the implications of the EU approach to the in- justice depends on good faith among the Member States. The terpretation of national legislation can never be underestimat- phrase “area of freedom, security and justice” means nothing ed. I would like to draw your attention to two cases relating if not supplemented with “mutual trust”. This applies equally to the European Arrest Warrant that were heard by the Polish to all aspects of judicial cooperation in criminal matters. Supreme Court. The first case in 2006 concerned a Polish na- tional sought by Belgian authorities under a charge of murder. He was still a juvenile according to Belgian law and, although Professor Lech K. Paprzycki the Belgian legislation on juveniles allowed a category of ju- President of the Supreme Court of the Republic of Poland, veniles to be tried as adults under the criminal law, in respect Criminal Law Chamber eucrim 1–2 / 2009 | 1 News Actualités / Kurzmeldungen reaching interference may be justified on economic grounds. In its findings, the Court first of all noted that the action brought by Ireland relates solely to the choice of legal basis and not to any possible infringement of fundamental rights arising from inter- European Union ference with the exercise of the right to Reported by Sabrina Staats* and Thomas Wahl** privacy contained in Directive 2006/24/ EC. As a result, requests from the Euro- pean Parliament and NGOs to the Court other provision of the EC Treaty would to clear up violations of human rights by Foundations have been capable of providing an ap- the data retention Directive were thwart- propriate legal basis for the Directive ed (cf. eucrim 1-2/2008, pp. 2-3). Community Powers in Criminal since the predominant objective of the Regarding the Irish arguments on Matters – Data Retention Directive is to facilitate the investi- the legal basis, the Court found that the gation, detection, and prosecution of evidence submitted to the Court showed ECJ: Data Retention Directive Complies crime, including terrorism. The provi- that the national measures regarding With EC Law sions of Directive 2006/24/EC would data retention differed substantially, On 10 February 2009, the ECJ decided not address defects in the internal mar- particularly in respect of the nature of on the Irish action seeking the annul- ket. Therefore, the only legal basis, on the data retained and the periods of data ment of Directive 2006/24/EC on the re- which the measures contained in Direc- retention. Also, the Court found that the tention of data generated or processed in tive 2006/24/EC could validly be based, obligations relating to data retention connection with the provision of public- would be Title VI of the EU Treaty, in have significant economic implications ly available electronic communications particular Arts. 30 TEU, 31(1) TEU and for service providers in so far as they services or that of public communica- 34(2)(b) TEU. The obligations designed may involve substantial investment and tions networks. to ensure that data are available for the operating costs. Thus, the differences Ireland claimed that the Court should investigation, detection, and prosecution between the national rules adopted on annul Directive 2006/24/EC on the of criminal offences would fall within data retention were liable to have a di- grounds that it was not adopted on an an area that may only be the subject of rect impact on the functioning of the appropriate legal basis. a measure based on Title VI of the EU internal market. In the Court’s opinion, In this long-awaited decision