New Journal of European Criminal Law
- Sage Publications, Inc.
- Publication date:
- No. 13-4, December 2022
- No. 13-3, September 2022
- No. 13-2, June 2022
- No. 13-1, March 2022
- No. 12-4, December 2021
- No. 12-3, September 2021
- No. 12-2, June 2021
- No. 12-1, March 2021
- No. 11-4, December 2020
- No. 11-3, September 2020
- No. 11-2, June 2020
- No. 11-1, March 2020
- No. 10-4, December 2019
- No. 10-3, September 2019
- No. 10-2, June 2019
- No. 10-1, March 2019
- No. 9-4, December 2018
- No. 9-3, September 2018
- No. 9-2, June 2018
- No. 9-1, March 2018
- Defending victims of cross-border fraud in the EU – A Portuguese view, including the use of preventive “freezing” of bank accounts under anti-money laundering legislation
The Article looks into recovering assets for victims of frauds using the financial system to launder proceeds, against the backdrop of two case-examples and the lessons learned by the authors from their practice as lawyers in Portugal. It sets out relevant EU instruments (Section I) and then turns into the main difficulties and obstacles in practice (Section II). Finally, it addresses the use of preventive suspension of banking operations (“SOB”) under AML laws at the service of the interests of the victims of cross-border fraud. It argues albeit these have not been built or designed bearing victims' interests in mind they are essential to the recovery of the proceeds and their return to fraud victims. The authors propose to reflect on improving such mechanisms, namely by guaranteeing that it is possible to make consecutive blockings that follow the trail of the proceeds of the fraud through the various jurisdictions involved; and also on the pertinence of giving an explicit place to the victim in the legal framework that regulates the mechanisms for the prevention of money laundering, namely by facilitating the access of the victims to reporting channels that allow for a quick activation of such mechanisms (Section III). The piece concludes stating that although multiple mechanisms are available to ensure the protection of victims' financial interests in this context, the articulation and definition of the strategy is highly complex, making the intervention of a lawyer essential. In any event, if there is no swift intervention and freezing of the proceeds at the outset of the detection of fraud, it is as a rule impossible to recover victims' assets. It is ironic that in practice such freezing is at best made possible by AML laws that were not designed having victims' interests at the forefront.
- Towards a rights-based approach: victims of violent crime, state-funded compensation and the European Union
This article examines the legal provision of state compensation for victims of violent crime in the European Union (EU). In examining the provisions of Directive 2004/80/EC relating to compensation to crime victims, this article analyses the historical development of EU competencies in the fields of criminal justice and victims’ rights. Additionally, the legislative history of Directive 2004/80/EC is considered, as is the interpretation given to the provisions of this Directive by the Court of Justice of the EU. It is demonstrated that the scope of protection, offered to victims of violent crime through Directive 2004/80/EC, has been limited and uncertain as a result of this complicated legislative history and inconsistent CJEU interpretation. Furthermore, this article examines developments in the context of EU action in the field of state-funded compensation in light of the adoption of both the Lisbon Treaty in 2009 and the Victims’ Rights Directive in 2012. With the recent development of a genuine rights-based approach to victim support in EU law and policy, this article highlights priorities for legal reform at the EU level in the context of state-funded compensation.
- An interpretative analysis of the European ne bis in idem principle through the lens of ECHR, CFR and CISA provisions: Are three streams flowing in the same channel?
The ne bis in idem principle (procedural defence) proscribes multiple criminal proceedings and punishments for the same criminal offence/conduct, which is predicated on a final verdict of acquittal or conviction by a court of competent jurisdiction. Incorporated as a fundamental human right through Article 4 of Protocol No. 7 annexed to the ECHR and fundamental right safeguarded through Article 50 CFR, the principle is conjoined with the right to free movement of persons through Article 54 CISA. An evaluation of the characteristics, substance, rationale, scope, and limitations associated with the autonomous procedural defence reveals corresponding purposes. CJEU and ECtHR jurisprudence have delineated the scope and limitations of the procedural defence and the two European courts have reciprocally influenced their respective case law. Definitive and practical judicial guidelines on the application of the principle facilitate consistency of approach by diverse national legal systems consistent with the principle of legality. The article provides an interpretative analysis of the procedural defence and associated jurisprudence of the two European courts that aim to ensure consistency of approach by national legal systems notwithstanding the applicability of the margin of appreciation and the principle of subsidiarity. The article concludes with an evaluation of the narrow same criminal offence criterion (idem crimen) commensurate with broader proscribed conduct (idem factum) criterion that is pivotal to the application of the procedural defence and evidently the most litigated aspect of the ne bis in idem principle. The main issue causing tensions between the different streams of case law seems to be the question of the combination of distinct types of proceedings (administrative and criminal), and there is a reciprocal influence of the ECHR and CJEU on this issue.
- Principle of proportionality as a threat to criminal-law-related fundamental rights
- On the lawfulness of the EncroChat and Sky ECC-operations
Over the last years, cryptodatacommunications have become an important piece of evidence in criminal procedures all across the European continent. Especially due to the EncroChat- and Sky-operations, prosecution authorities were able to arrest and charge a large number of suspected criminals that probably would have remained unnoticed without the data acquired. As a result, the legality of the use of EncroChat- and Sky-data is increasingly being disputed in multiple courtrooms in various European countries. This article will therefore dive into European case law relevant in this respect and will on that basis discuss the lawfulness of both operations.
- The criminalisation of travel as a global paradigm of preventive (In)justice: Lessons from the EU response to ‘foreign terrorist fighters’
This article aims to evaluate critically the evolution of the preventive paradigm of security law by focusing on the criminalisation and surveillance of mobility which has been labelled as ‘terrorist travel.’ The article will highlight the impact of the political imperative of tackling the phenomenon of ‘foreign terrorist fighters’ on the emergence of a global preventive paradigm of criminalisation of travel. The article will focus on the establishment of a preventive paradigm of criminalisation of travel in EU law, and its interactions with the global governance of counter-terrorism as renewed by the fight against ‘foreign terrorist fighters.’ The first part of the article will focus on the emergence of a multi-level paradigm of criminalisation of ‘terrorist travel’, while the second part will focus on the surveillance of travel through the collection, transfer and analysis of passenger name record (PNR) data. The article will cast light on the role of the political rhetoric on the fight against ‘foreign terrorist fighters’ in the evolution of this paradigm and highlight the challenges that this multi-faceted system of criminalisation and surveillance of travel pose for fundamental rights and the rule of law. A key challenge in this context is the extent to which the European Union is able to uphold its internal fundamental rights and rule of law safeguards in the evolution of a global paradigm of criminalisation of travel.
- (Covert) Surveillance of Foreign Terrorism Fighters via the Schengen Information System (SIS): Towards Maximum Operationalisation of Alerts and an Enhanced Role for Europol
This article aims to critically evaluate how the legal framework of the Schengen Information System (SIS) and its practical implementation have evolved to address concerns regarding the phenomenon of foreign terrorist fighters (FTFs) and which operational and fundamental rights challenges this evolution poses. In that regard, emphasis is placed on two examples: first, the article examines the maximised operationalisation of alerts on discreet checks under Article 36 of the SIS Regulation on police and judicial cooperation in criminal matters. Then, focus is placed on the forthcoming iregistration of alerts on third-country nationals in the interest of the Union based on Regulation 2022/1190. These alerts will be registered in the SIS with the increased involvement of Europol following information received by third countries or international organisations.
- ‘Strengthening cooperation with external partners: Looking for a common response to the phenomenon of foreign terrorist fighters’
Addressing the challenge of foreign terrorist fighters (FTFs) and their affiliates who travelled to Syria and Iraq to join Da'esh and other terrorist groups has been a priority for the EU and the EU Counter-Terrorism Coordinator since 2013, both within the EU and internationally. This article sets out comprehensive EU cooperation with international partners on foreign terrorist fighters: It covers EU action related to the camps and prisons in North East Syria where FTFs and family members are held, accountability of FTFs and affiliates, cooperation on FTFs with the EU’s neighbourhood: Turkey, Western Balkans and Middle East and North Africa regions, multilateral engagement with the United Nations and other fora as well as addressing Islamist extremist ideology which is contributing to the radicalization process. From a practitioner's perspective, the article provides the EU policy framework and its evolution, as well as examples of capacity building and other initiatives.
- The role of Europol and Eurojust in countering the threat of FTFs: An evolving mandate
Foreign Terrorist Fighters (FTFs) can pose a major security threat to EU Member States as after they return to the EU, they may engage in terrorism-related activities. In order to curb this threat, the EU and the Member States have adopted a multidisciplinary strategy. This article discusses the role that Europol and Eurojust play in supporting Member States in their efforts to combat FTFs effectively, including in their relations with third partners. Their role is particularly necessary in the field of the so-called ‘criminal justice response’, which is one of the core pillars of the holistic approach to address FTFs and consists of investigating and prosecuting crimes allegedly committed by FTFs abroad, including terrorism-related crimes and core international crimes. Aside from the respective role that each agency can play in the fight against FTFs, Europol and Eurojust cooperate closely with each other to scale up the chances of a successful response. Although, both agencies have considerably helped Member States tackle the FTF phenomenon, there are still some challenges which lie in their interagency cooperation when it comes to the collection and use of evidence, and in the lack of cooperation agreements with some significant in the field third partners. Finally, the recent revision of both agencies’ mandate is expected to further enhance the Europol and Eurojust’s capacity in supporting Member States’ efforts to combat FTFs; nevertheless, it raises some concerns as regards the fundamental rights of individuals concerned.
- Effective and Legitimate?: Learning from the Lessons of 10 Years of Practice with the European Arrest Warrant
The article examines the European Arrest Warrant (EAW) and the issues which have emerged in its first 10 years of practice. After a first section explaining the choice for the principle of mutual recognition as expression of effectiveness and subsidiarity in judicial cooperation in criminal matters,...
- The European Arrest Warrant — A Victim of its Own Success?
This article critically analyses the recent efforts of the European Union to deal with the problem of disproportionate European Arrest Warrants....
- How are the member states progressing on transposition of Directive 2013/48/EU on the right of access to a lawyer?
The deadline for transposition of the Directive 2013/48/EU was 27 November 2016. The author of this article sent out a questionnaire to the ministries of justice of the member states, with the aim of determining how the transposition of the Directive is evolving. Of the 25 member states that are...
- Fundamental rights and punishment: Is there an EU perspective?
Taking fundamental rights into account means a limitation of repression, as an instance of the principle of proportionality or principle of necessity, of criminal intervention. The need to design European Union (EU) criminal law in compliance with the principle of proportionality is especially...
- Ecba Statement on Turkey: Coup Aftermath
- Brexit and Brexit plus
- Solutions to the accumulation of different penal responsibilities for the same act and their assessment from the perspective of the ne bis in idem principle
The autonomous meaning of criminal responsibility introduced in the jurisprudence of the European Court of Human Rights, and adopted by the European Court of Justice (ECJ), has influenced the need for providing proper guarantees in relation to the assignment of legal responsibility for acts...
- Book Review: Individual Criminal Liability for the International Crime of Aggression
- The Russian Anti-Corruption Campaign: Public Relations, Politics or Substantive Change?
- Framework Decision 2008/909/JHA on the transfer of prisoners in the EU: Advances and challenges in light of the Italian experience
The article addresses the implementation of Framework Decision 2008/909/JHA on the transfer of prisoners in the European Union (EU) and discusses its advances and shortcomings from a twofold perspective: the general features and objectives underpinning the Framework Decision and how these...