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What is the role of mutual recognition in the field of criminal law cooperation among EU Member States, and what

is the relationship between mutual recognitionand legal harmonization? By Rosen Dimov Introduction Established as an international body of post-war reconciliation and economic cooperation in the area of coal and steel, the European Union as the core of European integration (thereby, merging the communities) has gone through a wide range of transformations. Be it institutional restructurings or shifts in the functional competences, grounded on a growing legal basis, sometimes the changes have the outstanding character of revolutions, in other cases they bear gradualist maturing or even are trapped in inertia manifested as reform-tiredness or the related. However, a milestone development along with other achievements or shortcomings, is the outstanding integrational area in criminal matters. Under the uniform scholar understanding of the historical boost to that cooperation field dating to the 1990s, the establishment of common foundations of criminal law across the EU members has not led to a codified European penal law, but rather to the enactment and enforcement of shared minimum rules in both procedural and substantial matters. The so-called apprroximation (harmonisation in crminal law) is the contingent, inseparable process to be explored hereafter along with the legal phenomenon in EU law entitled mutual recognition. The evolutionary path to present date is examined in this paper, which also outlines emergent defects and assets. Finally, a hint is given whether the latest advancement denotes future unification or vice versa diverging standards and loose cooperation in criminal law. The living history of EU criminal law The origins of the principle of mutual recognition can be traced back to decades ago. Some (Bapuly, 2009, p 5) regard it as a mode of governance, intristic of the sui generis nature of nowadays so-called European Union. It is rooted in the Community method, which has been a driving force in integration in the internal market until the 80s of the previous century. In the authentic modus operandi it included the routine of applying the rule of the home country in another member country. In principle the domestic institutions of the host state agree to accept the norms of the other, which is the case with, for example, the recognition of foreign-produced goods (ie adherence to the production standards). Similarly, in criminal law matters today, the decisions of foreign judicial bodies in the legal system of a member state are accepted and put into effect by the authories of another member state. It is no longer the Community understanding of the identical sides of territorial and national sovereignty, but reflects a less intervening approach to the domestic jurisdiction. The exact birthdate of this remarkable evolution referred to as creeping criminalisation (Daly, 2007, p 375) is arguable. Some (Glaser, Motz and Zimmerman, 2010) point out the Trevi Group of 1975, coordinating the fight against terrorism, as the thriving start of clcoser cooperation in criminal affairs. Others (Keijzer, 2006) assign it to the mutual recognition in civil law embodied in the Brussels Convention of 1968 and in criminal terms embedded in the European Convention on the International Validity of Criminal Judgements (the Hague, 1970), followed by the Convention on the transfer of Sentenced Persons of 1983. This wide range of influences from the

European legal traditions (mostly at the beginning pertaining to the Council of Europe purely intergovernmental toolbox) has led to Communitarisation in criminal law terms. Over the 1990s the establishment of common criminal standards has reached new important directions (Herlin-Kernell, 2008, p 2). It firmly and manifestly appeared in the EU legal landscape within the framework of the three pillars, being positioned as the third one namely, justice and home affairs, under the Treaty of Maastricht (in effect since 1993). The next round of treatisation in the development of the European Union, the Amsterdam Treaty, set forth clear objectives of the EU in the fields of justice and home affairs opening the space for an area of freedom, security and peace. Thereby, the limited accountability (exercised by the European Parliament as the voice of European citizenry) and control (pressured by the Court of Justice) in this third pillar has led to increasing criticism with regards to the democratic legitimacy of justice and home affairs. In response, member states of the EU did their utmost in preserving their traditional competences in this realm. Yet, two years after the enforcement of the Amsterdam Treaty the following related envisaged measures in the Vienna Action Plan (1998) were in practice 45. (a)(b)(c)(d)(e).. f) initiate a process with a view to facilitating mutual recognition of decisions and enforcement of judgments in criminal matters; trafficking law, corruption, computer fraud, offences committed by terrorists, offences. Those along with the cross-border crime combatting goals in the Naples II Convention (on mutual assistance with regards to prevention, investigation and prosecution of illegal traffic of drugs, weapons, cultural goods but rather on the side of customs administrations of member states) of 1998 have served as inspiration for the elaboration of the ambitious landmark measures of the Tampere Programme (2000-2004) named after the Tampere Council of 1999. The Tampere Council did not manage to make steps in approximation in criminal matters instead, a core principle became the mutual recognition. Defined as a genuine paradigm shift of judicial cooperation (Peers, 2004, p 919), it contrasted the previous practice by allowing the binding effect of law in one member state in the legal system within the domain of the territorial jurisdiction of another member states. In other words, this means that domestic legal norms are integrated in the EU system. Along with that, the existent diplomatic aspects of mutual recognition were removed to make it an entirely judicial cooperation. Thereby, political actors at all levels were divested of their powers, which alternatively were granted to the national judges or rather, an emergent transnational network of judges (Sievers, 2008, p 7). The topic-relevant key conclusions of the Tampere Council (33 to 37 in numerical order) include the recognition of judgements as well as other decisions of the national judicial authorities. It also insisted on the simplification of the internationally established instruments (1995 and 1996 EU Conventions on extradition) in order to make the transfer of convicted people faster and easier an intention which later on led to the launch of the European Arrest Warrant, to be examined hereafter. Another dimension was the admissability of evidence before courts in the pre-trial stage as well as the facilitated seizure of movable assets. Minimum common standards in procedural rights and the intention to put forward a European Enforcement order. In order to estimate progress on the measures invented, the Tampere Council insisted that the European Commission would propose an appropriate Scoreboard mechanism that indeed came into force in March 2000. In the gradual, precarious development of European cooperation in criminal matters

was the Community instrument appearing as a successor of the Tampere Programme for Europeanisation of criminal justice the so-called Hague Programme (in force in the period 2004-2009). This strategic document went further by in related areas suchc as approaching organised crime and keeping privacy in the security sector. With regards to the central line criminal justice, the EU strives to build a common European judicial culture, where training and networking will be key features. Judicial infrastructure at the appopriate degree is to be established, inclusive of minimum proceedural rights, fairness and respect during litigation, especially for the defence party. Not only should mutual trust be nourished among member states, but there should also be legal measures to prevent the conflict of laws. Concrete problematic feelds outlined where additional joint work in terms of approximation is necessary are procedural elements such as ne bis in idem (or dual criminality), handling evidence or judgements in absentia (or when the accused party is not standing physically before the court). Within the complex institutional framework (to be studied later in this piece of writing) Eurojust is said to take the lead in the increased cooperation in criminal matters. Most lately and most concretely has come to the horizon the Stockholm Programme (2010-2014). Major new steps include sections 2.3.1 on racism and xenophobia, 2.3.4 on victims of crime, including terrorism, 2.4 on right of the individual in criminal proceedings, 3.1.1 on the implementation of the principle of mutual recognition in criminal law, 3.2 on strengthening mutual trust, 3.2.6 on detention, 3.3.1 on developing a core of common minimum rules in the field of criminal law, 3.5.2 on the Union's international presence, 4.4 on protection against serious and organised crime, as well as section 4.5 on terrorism. EU Cooperation in criminal matters now and in future Having paved the path to understanding the historical phases in the process of emerging approximation and mutual recognition in criminal matters, one must finish with the latest achievement the quasi-constitutionalisaton of this cooperation by inclusion of provisions in the underlying Lisbon Treaty, before the cornestone segments of EU criminal law are brought to light in this paper. Of high significance to mention is chapter 4 of the Treaty on the Functioning of the Union, which elaborates on the topic. Striking the core of the examined question mutual recognition and approximation, article 82 thereof directly deals with the solution in terms of legislative measures to be taken by the European Parliament and the Council. A non-exhaustive list of specific priorities are phenomenons of cross-border nature such as the mutual admissibility of evidentiary material, the proceedural rights of the accused and the rights of the victims of the crime. Article 83 thereof insists on adopting common definitions on cross-border crimes of EU importance such as terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption,counterfeiting of means of payment, computer crime and organised crime. Emphasis is put on the crimes regarding financial interests of the EU as well as the role of Eurojust, Europol and the European Prosecutor's Office. While there might be measures easily adopted by the ordinary legislative proceedure applied in the area of justice cooperation, in the events some Member States disagree, enhanced cooperation may be initiated abiding by the provisions of articles 326 to 334 of the Treaty on the Functioning of the Union. Among the aforesaid, some need further examination. For instance, the use of the enhanced cooperation is considered to keep Europe at multiple speeds. Traditional

nation states which use the concept of sovereignty in their political discourse are afraid of using their domestic powers in the realm of criminal law, too (Aus, 2007, p 18). Therefore, the introduction of an emergency break of enhanced cooperation also in criminal matters is aimed to keep the direction to supranationality in criminal matters as well as to tame the protectionist states through a proper catalogue of safeguard measures for the individuals at EU level (Herlin-Karnell, 2008, p 7). Those fears are much rooted to a legal phenomenon inherent and functional in a non-continental tradition, especially in the USA extraterritoriality of jurisdiction. In terms of criminal cooperation in the EU, it tackles with mutual recognition (and enforcement) of judicial decisions in case only that through harmonisation minimal standards have been settled (Glaser, Motz, Zimmermann, 2010, p. 7). Such aporoximation may be successful under the conditions to be set in all 27 member states jointly especially mutual trust, legal compatibility and institutional support structures (Sievers, 2008, p 9). With regards to harmonisation of rules related to the European Prosecutor's Office the controversial issues in the ongoing debate concern mainly the narrowed extent of the powers of this Office (only financial matters) and whether this Office should undergo more personification (Herlin-Karnell, 2010, p 28). The the European Prosecutor's Office is not, however, the only the European Prosecutor's Office extraneous body which member states are disturbed by. The complex institutional setting in the narrowing cooperation of criminal manners contains also, by brief overview, Europol, Eurojust, Eurodac, the European Criminal Records System, the European Judicial Network (JN), Joint Investigative Teams (JIT) to name a few among many. At the same time, those are blamed to be inefficient or lacking coordination among themselves, with competing or colliding competences. While the EJN aims to improve transnational justice by in-depth joint work of domestic judges and the JITS undergo cross-border investigation in gross criminal cases, the justiceability of the collected evidence and the high running costs are openly tabled by the European Parliament, scrutinizing the European dimension of this cooperation (Davoli, 2010). An actor with an increasing power in the domain is the European Court of Justice, which albeit the entrance into force of the Lisbon Treaty in 2009, is still not fully competent. Due to the transitional measures annexed by a Protocol to the Treaty, the Court will in the course of 5 years become fully operational in ensuring the validity of EU instruments in criminal justice. Until then, there will be a set of regimes applied in combination with regards to the individual European citizens, the most favourable to them shall be chosen and exercised (Herlin-Karnell, 2010, p 30). Among the salient accomplishments in the deepening cooperation in criminal matters the following instruments can be enumerated: European Arrest Warrant - simplifying the classical extradiction by limiting the grounds on refusal, putting judicial authorities in charge instead of political figures, timeliness of execution, etc. European Evidence Warrant recognition and collection of evidence, joint investigative efforts, obtainment of objects, documents and data from member states, refusal conditions, etc. Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union endorsing spontaneous exchange of information, with regards to restitution of stolen objects, temporary transfer of a person held, controlled deliveries, covert investigations, the deployment of joint investigation teams, interception of telecommunications, protection of personal data, etc. Framework Directive on Freezing Orders fostering mutual recognition of pre-trial

orders, with regards to a non-exhaustive list of crimes decisions to be executed without verification of dual criminality, the execution procedure and finally the conditions for (non-)recognition and (non-)execution. Framework Directive on Confiscation Orders - conditions for (non-)recognition and (non-)execution, the seizure of criminal assets, amount thresholds, remedies, abolition of the double crminality in some cases, etc. Framework Decision on the Victims of Crime compensation and support measures, with regards to the trial legal advice, information on the developments, protection, etc.

An important impetus to the EU cooperation in criminal matters, which also increases harmonisation, is the jurisprudence. While throughout the years the constitutional courts of Germany, Poland, Belgium, the Czech Republic have contested the legality of some of the abovementioned instruments (and expectedly courts of sovereign states will continue so with respect to instruments to come), the court in Luxembourg has made progresss in fortifying the foundations laid thus far. For example, the preliminary ruling upon request of the Belgian Arbitrage Court in the case Advocaaten voor de Wereld VZW, affirmed the European Arrest Warrant adding on important aspects of surrender. The preliminary ruling requested by the Milan Tribunal in Italy o the case Dell Orto is another illusutrative reassertion of the standing of victims in criminal proceedings. The intensifying cooperation in criminal matters paralleled by increased approximation in the realm among EU member states has an exterior nuance. Offices like Frontex, Eurojust, Europol have entered into agreements to share work and databases with similar non-EU bodies. A vivid example is the controversial first US-EU Passanger Name Record (PNR) agreement (2004) that was invalidated by the European Court of Justice and poured over with criticism by the European Data Protection Supervisor. Some (Archick, 2010, p 13) consider this external cooperation of the EU as highly influenced by the US models, especially after the tight partnership between the EU and the USA after 9 September 2001 in the fight against terrorism. A glimpse into the EUR-Lex database collection of legal documents gives more exemplary items. Similar cooperation agreements have been concluded to date by Europol with Switzerland, Canada, Monaco, Croatia, US, Norway, Columbia, Iceland, A PNR Agreement with Australia, A Mutual Legal Assistance Agreement with Japan, partial application of the Pruem Treaty by the Norway, Iceland, etc. However, those touch upon the borderline of traditional foreign common and security policy rather than external cooperation in criminal matters (Groenhuijsen, Pemberton, 2009, p 16). Instead of conclusion While this paper has managed to point out some of the advantageous steps of the European Union solely or in conjunction of international bodies with regards to cooperation in criminal matters, it has also been critical on the imperfections and possible threats. Yet, without being a clairvoyant, I cannot precisely predict the future of mutual recognition and legal approximation. I would rather say that a direction is taken and the path to follow was foreseen in the philosophical mind of Rousseau in his breath-taking work Discourse on Inequality (1754) just put the EU member states and their international partners in the picture of the stag hunt in the reword below. Every hunter in the stag hunt must remain faithful to his post. But if a rabbit happened to pass within the reach of one of them, we cannot doubt that he would have gone off

in pursuit of it without any scruple.

SOURCES USED IN ORDER OF REFERENCE Bapuly, B, 2009, The European Arrest Warrant under Constitutional Attack, International Criminal Law Journal, retrieved from f/Bapuly.pdf Daly, K, 2007, Creeping Criminalisation and the Class Action Boom, in the yearly Bloomberg European Business Law Journal of 2007 Glaser. S, Motz, A. , Zimmermann, F. Mutual Recognition and its Implications for Gathering of Evidence in European Criminal Proceedings, retrieved from %25204.pdf Herlin-Kernell, E, 2008, The Lisbon Treaty and the Area of Criminal Law and Justice, in European Policy Analysis, issue 3, 2008, by SIEPS Vienna Action Plan, retrieved from EUR-LEX Naples II Convention, retrieved from EUR-LEX Amsterdam, Lisbon Treaties, retrieved from EUR-LEX Tampere, Hague and Stockholm Programmes, retrieved from EUR-LEX Peers, J, 2004, Mutual Recognition and criminal law in the European Union: Has the Council got it wrong?, Common Market Law Review 41 Sievers J, 2007, Managing diversity: The European Arrest Warrant and the potential of mutual recognition as a mode of governance in EU Justice and Home Affairs, retrieved from Herlin-Kernell, E, 2010, The Lisbon Treaty - a Critical analysis of its impact on eU Criminal Law, in 2010, edition 2 of the Eurcrim Magazine, by the European Criminal Law Associations Forum Aus, J. 2007, Crime and Punishment in the EU, ARENA Review 2007 Davoli, A., 2010, Judicial Cooperation in Criminal Matters, retrieved from language=EN&ftuId=FTU_4.12.6.html&id=73 Cases Advocaaten voor de Wereld VZW, Dell Orto, retrieved from EUR-LEX Archick, K, 2010, EU-US Cooperation against Terrorism, retrieved from

Groenhuijsen, Pemberton, 2009, Te EU Framework Decision for Victims of Crime: Does Hard Law Make a Diference?, European Journal of Crime, Criminal Law and Criminal Justice 17 (2009)