EU protection of the substantive criminal law principles of guilt and ne bis in idem under the Charter of Fundamental Rights
| Author | Piet Hein van Kempen,Joeri Bemelmans |
| Published date | 01 June 2018 |
| DOI | 10.1177/2032284418778146 |
| Date | 01 June 2018 |
| Subject Matter | Articles |
Article
EU protection of the substantive
criminal law principles of guilt
and ne bis in idem under the
Charter of Fundamental
Rights: Underdevelopment and
overdevelopment in an incomplete
criminal justice framework
Piet Hein van Kempen
Radboud University, Faculty of Law, The Netherlands
Joeri Bemelmans
Radboud University, Faculty of Law, The Netherlands
Abstract
European Union (EU) law is increasingly influencing the substantive criminal law of the member
states. In this area of law – in which criminal liability and subsequent punishment are at stake –
protection of fundamental rights is indispensable, as a result of which means the Charter has great
potential relevance. This article examines the protection of fundamental rights by Union law in the
field of substantive criminal law since the Charter has become binding and compares it to the
protection offered by the European Court of Human Rights (ECtHR). The article focuses on two
fundamental rights that rule substantive criminal law: the principle of guilt and the ne bis in idem
principle. It holds that EU law still does not provide a full foundation to both principles of criminal
substantive law. Given the particular nature of EU law, the practice of the institutions in substantive
criminal law, and the current case law of the European Court of Justice and the ECtHR, we argue
that the current level of protection in these parts of the criminal law is insufficiently convincing.
Progress needs to be made in the recognition and appreciation of the principle of guilt, while the ne
bis in idem principle might be overextended.
Keywords
Substantive criminal law, Charter of Fundamental Rights, principle of guilt, ne bis in idem principle
Corresponding author:
Joeri Bemelmans, Radboud University, Faculty of Law, Montessorilaan 10, 6525 HR Nijmegen, The Netherlands.
E-mail: jh.bemelmans@jur.ru.nl
New Journal of European Criminal Law
2018, Vol. 9(2) 247–264
ªThe Author(s) 2018
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DOI: 10.1177/2032284418778146
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Introduction
While most professional participants in criminal court proceedings may not always be aware of it
in their daily practice, criminal law has long stopped being a strictly national legal matter. Initially,
the Council of Europe and more recently, in particular, the European Union (EU) have influenced
this area of law, which used to be shaped and coloured by national culture and politics only. The
entry into force of the EU Treaty of Lisbon (hereinafter the Treaty) on 1 December 2009 provided
another huge boost to the efforts to arrive at a common area of freedom, security and justice. With
the Treaty, the communitarization of fighting crime in the Union took further shape, while it
simultaneously gave the Charter of Fundamental Rights of the EU (hereinafter the Charter) binding
force.
With the Treaty’s abolition of intergovernmental checks in favour of supranational powers in
the area of criminal law, the influence of the EU on substantive criminal law, criminal procedure
law and the practice of criminal justice increases. Particularly in this context, the scrupulous and
adequate protection of fundamental rights continues to be an important perspective for the criminal
justice system. Much attention in this regard is given to criminal procedure, but substantive
criminal law and the meaning and scope of criminal liability also have a significant influence
on the possibilities of the authorities to limit the freedom of individuals in a society as well as to
protect that freedom against others.
Against this background, it is remarkable that little has been published on the meaning of the
Charter for substantive crimi nal law and its essential principles. This article aims to m ake a
contribution towards filling that gap, by raising the question to what extent the protection of
fundamental rights of the EU Charter since the Lisbon Treaty came into force has proved to
adequately acknowledge and protect the interests at stake. To illustrate the importance of the
Charter specifically for substantive criminal law, we will offer two case studies. After giving a
brief general overview of the extent to which substantial criminal law is present in EU law, and
showing how some of the features of EU fundamental rights law complicate the protection of
substantive criminal law rights and principles, as well as providing some general observations on
its protection of substantive criminal law rights, we will argue that the potential added value of EU
law in relation to the case law of the European Court of Human Rights (ECtHR) varies quite a lot
between different aspects of criminal law, and not always for good reason. We illustrate this point
in depth by discussing two cases in particular: the principle of guilt and the ne bis in idem or double
jeopardy principle. At the end of each discussion, critical reflections will be offered. The final
paragraph offers a brief conclusion.
European criminal law before and after the Lisbon Treaty
Over the past 40 years, the EU has rapidly become an increasingly important source of criminal
law.
1
With each step in the European process of integration, the influence of the EU on the criminal
1. Much has already been written about that development. As for books, see, for example, V. Mitsilegas, EU Criminal Law
(Oxford, UK: Hart Publishing, 2009), pp. 5–57; S. J. Peers, EU Justice and Home Affairs Law (Oxford, UK: Oxford
University Press, 2011), pp. 655–808; A. H. Klip, European Criminal law. An Integrative Approach (Cambridge, UK:
Intersentia, 2012); P. Asp, The Substantive Criminal Law Competence of the EU, Stockholm: Jure 2012, pp. 24–39; S.
Miettinen, Criminal Law and Policy in the European Union (London, UK: Routledge, 2013), pp. 7–44; S. Summers, C.
Schwarzenegger, G. Ege, and F. Young, The Emergence of EU Criminal Law (Oxford, UK: Hart Publishing, 2014), pp.
5–45.
248 New Journal of European Criminal Law 9(2)
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