Tilburg University Quid Pro Quo? A comparative law perspective on the mutual recognition of judicial decisions in criminal matters Ouwerkerk, J.W. Publication date: 2011 Document Version Publisher's PDF, also known as Version of record Link to publication in Tilburg University Research Portal Citation for published version (APA): Ouwerkerk, J. W. (2011). Quid Pro Quo? A comparative law perspective on the mutual recognition of judicial decisions in criminal matters. Intersentia. 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A COMPARATIVE LAW PERSPECTIVE ON THE MUTUAL RECOGNITION OF JUDICIAL DECISIONS IN CRIMINAL MATTERS Jannemieke Ouwerkerk Cambridge – Antwerp – Portland Distribution for the UK: Distribution for the USA and Canada: Hart Publishing Ltd. International Specialized Book Services 16C Worcester Place 920 NE 58th Ave. Suite 300 Oxford OX1 2JW Portland, OR 97213 UK USA Tel.: +44 1865 51 75 30 Tel.: +1 800 944 6190 (toll free) Email: [email protected] Tel.: +1 503 287 3093 Email: [email protected] Distribution for Austria: Distribution for other countries: Neuer Wissenschaftlicher Verlag Intersentia Publishers Argentinierstraße 42/6 Groenstraat 31 1040 Wien 2640 Mortsel Austria Belgium Tel.: +43 1 535 61 03 24 Tel.: +32 3 680 15 50 Email: [email protected] Email: [email protected] Quid Pro Quo? A comparative law perspective on the mutual recognition of judicial decisions in criminal matters Jannemieke Ouwerkerk © 2011 Intersentia Cambridge – Antwerp – Portland www.intersentia.com Cover design: Pjotr Design Studio Editing and typesetting: Steve Lambley Information Design, The Hague ISBN 978-94-000-0176-3 D/2011/7849/18 NUR 824 No part of this book may be reproduced in any form, by print, photoprint, microfilm or any other means, without written permission from the publisher. Quid Pro Quo? A comparative law perspective on the mutual recognition of judicial decisions in criminal matters Proefschrift ter verkrijging van de graad van doctor aan de Universiteit van Tilburg, op gezag van de rector magnificus, prof. dr. Ph. Eijlander, in het openbaar te verdedigen ten overstaan van een door het college voor promoties aangewezen commissie in de aula van de Universiteit op vrijdag 4 maart 2011 om 14.15 uur door Janne Willemina Ouwerkerk geboren op 1 juni 1981 te Zeist Promotor: Prof. dr. M.S. Groenhuijsen Copromotor: Dr. J.B.H.M. Simmelink Promotiecommissie: Prof. dr. M. Claes Prof. dr. C.J.C.F. Fijnaut Prof. dr. S. Gless Prof. dr. M. Killias Prof. dr. A.H. Klip Acknowledgements This book is the result of doctoral research performed at the Department of Criminal Law of Tilburg Law School. I must say that the Department turned out to be a very inspiring and pleasant environment in which to do scientific research. It proved to be well worth the daily one-hour return rail journey from Utrecht to the campus of Tilburg University. This research could not have been conducted without the support of several other people. Most gratitude by far must be extended to two persons. I owe many thanks to Marc Groenhuijsen. It has been a great honour to work under the coaching of such an outstanding academic. You have read all my drafts from beginning to end and I am so grateful for your useful comments time and time again. I also look back with pleasure on our substantive talks on this research, but also on other issues of criminal law and societal developments. Many thanks must also be extended to Joep Simmelink for his unremitting support and kindness. The distance between our working places in the last two years did not affect your interest in me and my work. Marc and Joep, the two of you have given me much freedom to make my own choices and to develop my own style of doing research and writing. It has been a great experience to work under the supervision of such a golden team. Special thanks go to Cyrille Fijnaut for his willingness to involve me in several kinds of projects (conferences, book editing) and to introduce me to so many people. Also, his love of books combined with his generosity resulted in a significant growth of my personal book collection. I have appreciated it all so much. Your dedication and contribution to the disciplines of criminal law and criminology can only be regarded with deep respect. Let me also mention James Jacobs and Daniel Richman who were willing to meet me during my stay in the USA, and who provided me with useful information and advice. The same gratitude must go to Sabine Gless and Martin Killias who welcomed me in Switzerland and who also spent time and energy reading and commenting on my manuscript. The warm welcome from the four of you, and the enthusiastic reaction to my research topic were very encouraging for me to continue studying the huge amount of information I had to wade through. In addition, I Intersentia v Quid Pro Quo? am very grateful to André Klip and Monica Claes who took the time to read and comment upon my manuscript. Furthermore, I must mention Theo de Roos, one of the nicest and most accessible professors I have ever met. Though not directly involved in my research project, we cooperated on a regular basis with regard to topics of international and European criminal law. In 2006, Theo presented me to the Meijers Committee (the Standing Committee of Experts on International Immigration, Refugee and Criminal Law), of which I am now a member. Being involved in this unique group of people has deepened my interest and passion for the field of criminal law and the position of vulnerable groups of people therein. Indirectly, that has surely contributed to my personal development as a critical researcher. Finally, I have been lucky to be able to benefit from the fabulous collections of the Max-Planck-Institut für ausländisches und internationales Strafrecht (Freiburg i.Br., Germany), the Law Libraries of Basle University and the University of Zürich (both Switzerland), and the Law Libraries of New York University School of Law and Columbia Law School (both New York, NY, USA). Thanks to all those who facilitated my stay at these places. Utrecht, December 2010. vi Intersentia sUMMARY of contents Acknowledgements. v List of Abbreviations. xix INTRODUCTION 1. What is this book about?. 1 2. Reasons to research . 3 3. Central question. .5 4. The structure of this book. .6 5. Research methods. .10 PART I. DEFINING MUTUAL RECOGNITION IN THE EUROPEAN UNION: BETWEEN COMMUNITY LAW AND UNION LAW Chapter 1. The Principle of Mutual Recognition in European Community Law. 17 1. Introduction . .17 2. Mutual recognition in the internal market. 19 3. Mutual recognition of judicial decisions in civil and commercial matters. .33 4. Concluding remarks. .43 Chapter 2. The Principle of Mutual Recognition in European Union Law. 45 1. Introduction . .45 2. Mutual recognition in the Third Pillar: from Tampere to Lisbon. 46 3. The analogy between mutual recognition in different fields of competence .54 4. Defining mutual recognition in the context of criminal law. 65 5. Implementing mutual recognition in criminal matters: the need for a specific approach . .69 6. Concluding remarks. .77 Intersentia vii Quid Pro Quo? TRANSITIONAL PART. THE IMPLEMENTATION PROCESS OF THE PRINCIPLE OF MUTUAL RECOGNITION IN UNION LAW: THE IDENTIFICATION OF OBSTACLES AND BOTTLENECKS Chapter 3. Implementing Mutual Recognition: Obstacles and Bottlenecks . 81 1. Introduction . .81 2. Implementing the principle of mutual recognition: an overview of legal instruments. 82 3. The scope of mutual recognition in the light of the parameters . 91 4. Obstacles and bottlenecks in implementing mutual recognition . 111 5. Concluding remarks. 126 PART II. RECOGNITION OF JUDICIAL DECISIONS IN CRIMINAL MATTERS IN THE FEDERATIONS OF SWITZERLAND AND THE UNITED STATES OF AMERICA: LESSONS FOR THE EUROPEAN UNION Chapter 4. Recognition of Judicial Decisions in Criminal Matters: the Case of Switzerland. 129 1. Introduction . 129 2. The federation of Switzerland. 130 3. The Swiss criminal justice system. .136 4. Mutual recognition of judicial decisions in criminal matters?. .144 5. Assessing the EU parameters. 157 6. Concluding remarks. 172 Chapter 5. Recognition of Judicial Decisions in Criminal Matters: the Case of America. .175 1. Introduction . 175 2. The United States of America. 176 3. The American criminal justice system. .182 4. Mutual recognition of judicial decisions in criminal matters?. .191 5. Assessing the EU parameters. 222 6. Concluding remarks. 238 Chapter 6. Analysis: The European Union, Switzerland and the United States of America Compared. .241 1. Introduction . 241 2. The obstacles and bottlenecks in implementing mutual recognition: the European Union, Swiss and American approaches side by side . 242 3. The fundamental similarities and differences explained and assessed. 250 4. Lessons for the future of mutual recognition in the European Union . 266 5. Concluding remarks. 285 viii Intersentia Summary of Contents Epilogue. .287 Summary. 291 Bibliography. 301 Table of Cases . 315 Intersentia ix Table of contents Acknowledgements. v List of Abbreviations.