An analysis of the future of mutual recognition in criminal matters in the European Union
Following the invitation to tender published in summer 2007 the study Analysis of the future of mutual recognition in criminal matters in the European Union was awarded by the European Commission to the Institute for European Studies of the Université Libre de Bruxelles. Work on the study, supported in particular by the academic network ECLAN (European Criminal Law Academic Network), which is coordinated by the Institute, commenced at the end of December 2007.
Already mentioned by the Commission in its Communication on the implementation of the Hague Programme in June 20061 , the purpose of the study is to provide a comprehensive analysis of the horizontal problems encountered in the implementation of the principle of mutual recognition in criminal matters. This analysis of the current difficulties was carried out at three different levels: negotiation of legislative texts within the Council of the EU, transposition of the instrument in national law and, finally, practical implementation by the competent judicial and administrative authorities.
The lines of analysis explored, and the recommendations proposed in order to address the problems and difficulties which have emerged, are presented to the Commission as a tool to help it prepare the new programme which will succeed the Hague Programme in 2009 in order to strengthen the EU’s Area of Freedom, Security and Justice.
Conduct of the study
Carried out over a total of eleven months, the study covers the 27 Member States. Two complementary analytical approaches were followed.
On the one hand, a State-by-State approach: this was carried out by correspondents of the ECLAN network who drafted a national report relating to the State in question (see Annex 5), following in-depth research and interviews with experts and practitioners conducted on the basis of an identical questionnaire. That questionnaire, drafted by the coordination team on the basis of the model contained in the study’s terms of reference, includes questions pertaining to the three levels of analysis, namely negotiation, transposition and practical implementation (see Annex 6).
A web site containing the most important documents was also created and made available to the correspondents .
All 27 national reports are published in the annex to the final report (see Volume II).
On the other hand, a horizontal analysis, i.e. an analysis cutting across the Member State analysis to identify common themes, was also undertaken by the coordination team based in Brussels. That team consisted of Gisèle Vernimmen-Van Tiggelen, the coordinator, and Laura Surano, the researcher.
By analysing academic publications and relevant documents of the EU institutions (minutes of meetings, evaluation reports, communications, etc.) and of other bodies (CoE, FATF, etc.), the coordination team identified a number of questions and horizontal problems.
Those issues were examined in greater depth in interviews with more than 170 experts and practitioners, including civil servants of Ministries of Justice responsible for the negotiation and transposition of mutual recognition instruments, judges, defence lawyers, liaison magistrates, academics and others (see Annexes 3 and 4)2 . The interviews took place in Brussels and in various capital cities. The Member States visited were selected in the light of specific features identified in the initial analysis. In particular, visits were made to The Hague (including Eurojust and the EJN), Amsterdam, Paris, Prague, Rome, Dublin, London, Luxembourg (ECJ), Madrid, Berlin, Warsaw, Copenhagen, Budapest and Stockholm. In certain cases it was possible to attend (public or non-public) hearings concerning the EAW (in particular in Paris, Rome, Dublin, London and Madrid).
Two informal meetings with MEPs were held in Brussels in June and September 2008, organised by the secretariat of the LIBE Committee.
Finally, a key role was played by the select committee of experts established by the coordination team. That committee, made up of a small number of experts with roots in different legal systems and having different professional backgrounds, met twice in Brussels, in May and September 2008 (see Annex 2). On the basis of working documents specially devised for the purpose, those meetings discussed in greater depth the difficulties encountered in the implementation and application of the mutual recognition principle. The meetings also focused on possible solutions to those problems and their work fed into preparation of the interim and final reports.
Throughout the study there was fruitful collaboration with the European Commission, in particular through the Steering Committee.
The interim report, submitted to the Commission at the beginning of June 2008, was presented and discussed at the first plenary meeting of experts, which took place in Brussels in July 2008 under the auspices of the criminal law sub-group of the recently constituted ‘Justice Forum’3 . That meeting, devoted entirely to the discussion of the horizontal themes and the preliminary conclusions of the interim report, brought together a large number of experts, practitioners and MS representatives.
The Commission organised a second plenary meeting of experts, to which all the national rapporteurs who participated in the report were invited, along with MS representatives, in October 2008. The draft final report and the national reports were presented for discussion on that occasion.
1 COM(2006) 331 of 28.06.2006, p.8, point 2.5 : “A study will be presented in 2007 covering the horizontal problems that are encountered in the negotiation and application of mutual recognition principle, and of the gaps in the present system of cooperation in criminal matters that can be addressed by new instruments”.
2 For reasons of confidentiality the persons interviewed are not explicitly mentioned in the footnotes of the final report. The source of information is indicated by referring to missions or meetings in the Member States.
3 Commission Communication on the creation of a Forum for discussing EU justice policies and practice (COM(2008) 38 of 04.02.2008).
Short title: JLS/2007/JPEN/221 (call for tender)
Project coordinator: ULB (ECLAN)
Financial support: European Commission
Contact person: Prof. Anne Weyembergh, Dr. Gisèle Vernimmen, Laura Surano
Starting date: 01-02-08
(Expected) end date: 31-01-09
ECLAN involvement: Yes