Legal Studies in International, European and Comparative Criminal Law

Volume 5

Editor-in-Chief Stefano Ruggeri Department of Law, University of Messina, Messina, Italy

Editorial Board Members Chiara Amalfitano University of Milan, Milan, Italy Lorena Bachmaier Winter Faculty of Law, Complutense University of Madrid, Madrid, Spain Martin Böse Faculty of Law, University of Bonn, Bonn, Germany Lorenzo Mateo Bujosa Vadell Faculty of Law, University of Salamanca, Salamanca, Spain Eduardo Demetrio Crespo University of Castile-La Mancha, Toledo, Spain Giuseppe Di Chiara Law School, University of Palermo, Palermo, Italy Alberto Di Martino Sant’Anna School of Advanced Studies, Pisa, Italy Sabine Gleß University of Basel, Basel, Switzerland Krisztina Karsai Department of Criminal Law, University of Szeged, Szeged, Hungary Vincenzo Militello Dipto Sci Giuridiche, della Società, University of Palermo, Palermo, Italy Oreste Pollicino Comparative Public Law, Bocconi University, Milan, Italy Serena Quattrocolo Department of Law, University of Piemonte Orientale, Alessandria, Italy Tommaso Rafaraci Department of Law, University of Catania, Catania, Italy Arndt Sinn Faculty of Law, University of Osnabrück, Osnabrück, Germany Francesco Viganò Bocconi University, Milan, Italy Richard Vogler Sussex Law School, University of Sussex, Brighton, UK

The main purpose of this book series is to provide sound analyses of major developments in national, EU and international law and case law, as well as insights into court practice and legislative proposals in the areas concerned. The analyses address a broad readership, such as lawyers and practitioners, while also providing guidance for courts. In terms of scope, the series encompasses four main areas, the first of which concerns international criminal law and especially international case law in relevant criminal law subjects. The second addresses international human rights law with a particular focus on the impact of international jurisprudences on national criminal law and criminal justice systems, as well as their interrelations. In turn the third area focuses on European criminal law and case law. Here, particular weight will be attached to studies on European criminal law conducted from a comparative perspective. The fourth and final area presents surveys of comparative criminal law inside and outside Europe. By combining these various aspects, the series especially highlights research aimed at proposing new legal solutions, while focusing on the new challenges of a European area based on high standards of human rights protection. As a rule, book proposals are subject to peer review, which is carried out by two members of the editorial board in anonymous form.

More information about this series at http://www.springer.com/series/15393 Martin Böse • Maria Bröcker • Anne Schneider Editors

Judicial Protection in Transnational Criminal Proceedings Editors Martin Böse Maria Bröcker Department of Law Department of Law University of Bonn University of Bonn Bonn, Germany Bonn, Germany

Anne Schneider Department of Law University of Mannheim Mannheim, Germany

ISSN 2524-8049 ISSN 2524-8057 (electronic) Legal Studies in International, European and Comparative Criminal Law ISBN 978-3-030-55795-9 ISBN 978-3-030-55796-6 (eBook) https://doi.org/10.1007/978-3-030-55796-6

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2021, corrected publication 2021 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.

Cover illustration: © Maria Isabel Ruggeri

This Springer imprint is published by the registered company Springer Nature Switzerland AG. The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland Preface

This book presents the results of a research project on judicial protection in trans- national criminal proceedings that has been funded by the Deutsche Forschungsgemeinschaft (DFG, German Research Foundation) – project number: BO 2499/4-1. Based upon a comparative analysis of the national criminal justice systems of eight European countries, the study seeks to identify shortcomings in judicial protection and outlines a comprehensive framework for judicial protection in trans- national criminal proceedings that would ensure the right to judicial review without hampering the effective functioning of international cooperation in criminal matters. The book examines a broad range of potential approaches in the context of selected national criminal justice systems and offers a comparative analysis of EU Member States and non-Member States alike. The book particularly focuses on the differ- ences between cooperation within the EU on the one hand and cooperation with third states on the other and on the consequences of this distinction for the scope of judicial review. We owe a great debt of acknowledgement to a number of people who have participated in this project and, thereby, have contributed to its final results. We are particularly grateful to Nick Ertural and Yannick Scholz (Bonn) for their excellent support throughout the entire drafting process and to Juliane Müller and Laura Prosen (Mannheim), who were in charge of the English proofreading and made various helpful suggestions. Furthermore, we would like to thank the national rapporteurs for their contributions to this volume, which laid the foundation of the study’s final results. Finally, we owe thanks to the German Research Foundation for its financial support.

Bonn, Germany Martin Böse Bonn, Germany Maria Bröcker Mannheim, Germany Anne Schneider

v Contents

1 Introduction ...... 1 Martin Böse, Maria Bröcker, and Anne Schneider 2 Country Report “Austria” ...... 19 Nina Marlene Schallmoser 3 Country Report “France” ...... 49 Juliette Lelieur 4 Country Report “Germany” ...... 93 Martin Böse and Maria Bröcker 5 Country Report “Italy” ...... 149 Tommaso Rafaraci 6 Country Report “the Netherlands” ...... 187 Michiel Luchtman 7 Country Report “Norway” ...... 229 Synnøve Ugelvik, Hedda Larsen Borgan, and Andreas Dalaker 8 Country Report “Portugal” ...... 271 Miguel João Costa and Pedro Caeiro 9 Country Report “Switzerland” ...... 321 Frank Meyer 10 Comparative Analysis ...... 359 Martin Böse, Maria Bröcker, and Anne Schneider 11 Judicial Protection in International and EU Law ...... 395 Martin Böse

vii viii Contents

12 Recommendations ...... 437 Martin Böse, Maria Bröcker, and Anne Schneider Correction to: Country Report “Norway” ...... C1 Synnøve Ugelvik, Hedda Larsen Borgan, and Andreas Dalaker