CEPS blog post on the benefits of the EU from a criminal law perspective

The benefits of the EU from a criminal law perspective

by Petra Bárd

Let’s turn the table and ask “what if”: what if the EU or the Schengen system ceased to exist, the latter was long-term suspended, or a Member State seceded? What would be the consequences from a criminal justice perspective?

These are no longer hypothetical scenarios, mind games or exam questions for students studying EU law or international relations anymore – these are concerns that have by now become part of our everyday lives. A proposal to suspend Schengen for two years was discussed on 4 December 2015 by EU interior ministers; as to secession, you may recall the Euro-sceptic talks given by leading European politicians referring to “life outside the European Union”. The only benefit this populist rhetoric might have is that it offers a chance to re-examine foundational questions and axiomatic statements – such as the assumed positive balance of European integration. This assumption seems to evaporate due to the many crises of the past, especially the past year. People’s concerns and fears – whether created or innate – shall not be underestimated: they are very real and therefore may question or even destroy the social consensus that used to serve as the foundation of the creation of an ever closer Union. So let us address the question from a criminal justice perspective: what are the benefits of European integration or the Schengen area, or what would be the losses respectively if they got dissolved?

Wrong approach: Quantification

The wrong approach to answer the questions is quantifying the benefits of EU integration. This approach is based on the presumption that one could express the pros and cons of integration by figures, or by listing and quantifying the advantages and disadvantages and then draw a balance. In the fields of security and criminal justice such mathematics make little sense. One can of course quantify the number of crimes, that of perpetrators, or criminal cases solved. It is debatable however what methodologically sound consequences could be drawn from these numbers. Unfortunately the world, and also the disciplines of criminal law and criminology, are more complex than we wish them to be. Rising figures may be explained by multiple factors including the growing tendency of criminality; the strengthening of criminal policy, the lowering of the age of criminal culpability. The cause of decreasing figures might lie in decriminalisation of certain types of human behaviour, or their classification as petty or non-recordable offences instead of crimes. The same can be said for the number of perpetrators registered: the cause of decreasing numbers may be lesser crimes; or the willingness of parties to turn to restorative justice methods, VOM, or other forms of out-of-court dispute settlement; an emphasis on the principle of opportunity instead of the principle of legality; but even the defect or failure of investigation might be the reason behind decreasing numbers. And vice versa. Without going into the details, let me just state that an attempt to explain the success of criminal cooperation through figures would be an easy target for any criminologist.

Beside the above methodological problem, one shall look into the triggers of an EU criminal justice system in order to understand how not to measure potential advantages or losses.

a. EU criminal law as we know it came into being by way of necessity. A foundational benefit of EU integration is enshrined in one of the four freedoms, the free movement of persons. Opening of the borders however created a certain security risk to be tackled, and this is what called into being a large segment of EU criminal justice. Accordingly Article 3 Section (2), TEU understands free movement and “external border controls, asylum, immigration and the prevention and combating of crime” as two sides of the same coin.

From a security perspective, there were no detriments for a Member State leaving the European Union. Border crossing would be burdensome in all possible ways, a great loss for the citizens of the country seceding, but such a move would most probably not effect the rate of criminality detrimentally in the given ex-member country. Judicial and police cooperation would also be detrimentally effected, but that would be counterbalanced by borders equally closed for law-abiding citizens and criminals.

b. Second, a number of supranational subjects came into being, which – without the EU – would not have been there. These include the Union’s budget, its financial interest or the European public space, which shall ideally be transparent and operate without corruption. These are all protected through EU laws of criminal nature.

However important this body of EU law is, „no EU, no cry.” Should the European Union collapse, its supranational subjects would also cease, so there was no need to protect them.

c. Third, there is a joint EU-wide fight against serious, not EU-specific cross-border criminality. As opposed to the previous group, the crimes involved here would be there even if the EU did not exist.

However, the EU facilitates minimum harmonisation of the definitional elements and sanctions of crimes, for the criminalisation of which there is a broader European consensus anyway, irrespective of EU membership. It is highly unlikely that the nation states would stop prosecuting the trafficking in human beings, terrorism or slavery in the absence of corresponding EU laws.

Right approach: the heritage of enlightenment and the rule of law

European criminal justice is value filled. It is a criminal justice system based on the ideals of enlightenment. It can be traced back to Beccaria’s work of 1764 “On Crimes and Punishments”, which legitimises the state’s punitive and coercive powers and defines its limits at the same time. The state is the legitimate holder of criminal powers, and at the same time it is obliged to exercise these powers, but only within certain boundaries overseen by control mechanisms that scrutinise the legality of criminal law measures through the lenses of liberty and equality. Too little exercise of state powers leads to anarchy, while too much results in arbitrariness and tyranny. In order to prevent crimes, “make the laws understandable and simple. (…) Make the people fear them, but only them. The fear from law is advantageous, but fateful and the seed-bed of crimes is the man’s fear from another man”. Beccaria’s well-known quote is nothing but a manifesto for the rule of law in the arena of criminal justice, and indeed, criminal laws drafted in the spirit of enlightenment will not only define crimes, sanctions, and procedure, but will serve as the Magna Carta of suspects and convicts.

A humanist criminal justice is not only in line with human rights, but is also efficient and less costly than a system following the punitive logics of criminal law. Still, states tend to depart from the humanist heritage across the globe, since in the area of criminal justice a populist politics can flourish. Even if inefficient, it can be communicated easily, because it builds on existing prejudices and punitive emotions, or it can create new ones, on the basis of which people demand even more severe sanctions. The punitive response to crime is a stereotypical automatic reaction to criminality: according to Eurobarometer surveys (see here, here, and here), 84-85 % of European citizens want to see tougher sanctions. Indeed in postmodernism we see an extension of criminal law from the top (by blurring the line between the fight against crime and the war on terror), and from the bottom (by criminalising nuisances or uncivilised forms of behavior). There is a clear tendency towards more offensive or exclusive criminal policy abandoning the defensive, or inclusive model. Due to the logics of maximum security, these rules are getting increasingly intense and intrusive in time, space and personal scope. How far the boundaries of a system based on the rule of law can be pushed by the novel techniques of risk management, crime prevention and persecution, especially the fight against the gravest mischiefs, such as terrorism, is a particularly serious concern. Differences between US and European penal severity or tolerance can be explained by many factors, but most importantly by Europe’s heavy insistence on the teachings of disciplines of a constitutional nature making the heritage of enlightenment survive, and control mechanisms to make these values enforceable.

Applying the theory to the case at hand

European values influence both national and EU criminal policies. As a general rule, internal mechanisms are built into domestic systems to enforce European values; should a state however disrespect these due to individual mistakes or systemic problems, national law will be overwritten by international law and deficiencies in application of the law will be remedied to some extent by international apex courts. Accordingly, international and EU norms and enforcement mechanisms can be seen as external tools of militant democracy putting halt to a national criminal policy running amok.

European values enshrined among others in the EU’s Charter of Fundamental Rights and several directives on procedural guarantees also put a halt to European Union decision-makers' wishes to rely disproportionately on a security paradigm trumping all other concurring considerations.

Reinforcing the rights of individuals in their vertical relationship with the state or a state-like entity like the EU is a value per se, but there is another layer to it. The pragmatic advantage of enforcing the heritage of enlightenment is that it makes instruments adopted in the Area of Freedom, Security and Justice survive. Member States are requested to have trust in each others’ legal systems, judiciaries, and criminal judgments. Even if there are discrepancies between the legal systems, they are to presume that all Member States are states based on the rule of law with human rights including procedural guarantees enforcement mechanisms. Member States however refuse to engage in a blind trust and take the journey into the unknown. As long as fundamental rights are not enforced in a uniform manner throughout the Union, and as long as member countries cannot take judicial independence in another state for granted, mutual trust and mutual recognition based instruments will be jeopardized. Member States leave short-cuts in their legislation not to enforce EU law and at the same time they interpret EU law in a restrictive way. This could potentially have fatal consequences for the EU legal system, as Member States may invoke the protection of basic human rights in order to permit exemptions from the principle of primacy of EU law.

The establishment of a uniform EU mechanism to enforce the rule of law and fundamental rights might be the answer to this problem. The end of the transitional period of Protocol 36 and of the limitations introduced on the enforcement powers of the Commission and of the Court of Justice of the European Union, as well as the current debate about upholding the rule of law in the constitutive parts of the Union, are all contributing to the creation of trust. Since the Lisbon Treaty’s entry into force several important EU laws were passed on procedural guarantees on issues covered in the Justice chapter of the Charter of Fundamental Rights.

But EU decision-makers could go further than that. Take the example of a Member State found in violation of the European Convention on Human Rights due to its widespread overcrowding of prisons. (The case is not entirely hypothetical, see Varga and Others v Hungary.) Is a Member State free to – or is it obliged in such circumstances to deny –surrender of suspects to be held in pre-trial detention or convicts to serve their prison sentences? Alternatively, can it make surrender conditional upon an assurance that minimum detention conditions are met in the issuing state? (Questions soon to be answered by the CJEU in Aranyosi.) Echoing a previous ECtHR judgement, the CJEU accepted that the presumption of EU Member States’ compliance with fundamental rights may be rebuttable. But on what grounds? Does a requested state have to wait until a prisoner exhausts all domestic remedies, turns to the Strasbourg court, which ultimately renders a decision? Or will it be accountable to make an assessment on a case-by-case basis, thereby overwriting the principle of mutual trust? Or somewhere in between, does it have to register a certain level of rights infringement in order to engage in an assessment into the merits? Does it have to wait until it may rely on international documents, e.g. until the Council of Europe's anti-torture Committee visits the issuing country and publishes a negative report?

Instead of being at the mercy of external bodies, the EU could develop its own control mechanism. Such a mechanism would have an additional benefit: beside a rule of law and fundamental rights scrutiny it may take the specificities of the EU legal system into consideration – something that external bodies are insensitive to. A mechanism responsive to the claim of the autonomy of EU law may draw a balance between competing interests. In such an international-arbeitsteiligen Strafverfahren the responsibilities would be divided vertically between the EU and its constitutent parts; and horizontally, between the Member States respectively. As Professors Bigo, Carrera and Guild suggested, “a permanent EU assessment board should be established in order to carry out a constant monitoring of the quality of Member States’ criminal justice systems and verify whether they fulfil international and European standards on the rule of law.” In this framework a systematic alerting tool may be developed to indicate instances where mutual trust must not be presumed.

“More Europe” in the context of criminal justice would neither mean more punishments and harsher sanctions, nor a blind trust in Member States’ legal systems. Quite to the contrary, it may tame punitive criminal policy and enforce procedural guarantees in the Member States, and as a positive externality, it would make the acquis of the Area of Freedom, Security and Justice survive. “More Europe” means more respect for the traditions of enlightenment and Europe’s humanist heritage, and a mechanism enforcing rationality impregnating the European criminal justice system.

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