European Criminal Law and the Dangerous Citizen
| Date | 01 December 2018 |
| DOI | 10.1177/1023263X18821276 |
| Published date | 01 December 2018 |
| Subject Matter | Articles |
Article
European Criminal Law and
the Dangerous Citizen
Valsamis Mitsilegas*
Abstract
This article will examine the impact of the Europeanization of punishment, and of criminal justice in
general, on the focus of criminal law on dangerousness and on dangerous citizens, rather than on
harm and facts. It argues that the EU criminal law is part of a growing global trend pushing towards
preventive criminal justice, namely the exercise of state power in order to prevent future acts that
are deemed to constitute security threats, which at EU level is problematic in terms of fundamental
rights and citizenship rights. The article argues EU criminal law is contributing to three main shifts:
a shift from an investigation of acts that have taken place due to an emphasis on suspicion, a shift
from targeted action to generalized surveillance, or, underpinning both, a temporal shift from the
past to the future. It develops this argument looking at administrative terrorist sanctions, crim-
inalization of terrorist acts, mass surveillance and expulsion of convicted criminals.
Keywords
EU criminal law, punishment, dangerousness, citizenship, surveillance
1. Introduction
The past two decades have witnessed a remarkable acceleration of European integration in security
and criminal matters. Partly prompted by global ev ents such as the 9/11 attacks, which have
contributed to the emergence of the European Union as a global security actor, and partly prompted
by internal developments including the constitutionalization of EU criminal law with the entry into
force of the Treaty of Lisbon, the EU acquis on security has proliferated dramatically and security
has emerged at the heart of the EU policy priorities, from the Area of Freedom, Security and Justice
to the so-called Security Union. The aim of this co ntribution is to cast light on a significant
development that has been increasingly underpinning European integration in the field of security
* Queen Mary University of London
Corresponding author:
Valsamis Mitsilegas, Queen Mary University of London, Mile End Road, London E1 4NS.
E-mail: v.mitsilegas@qmul.ac.uk
Maastricht Journal of European and
Comparative Law
2018, Vol. 25(6) 733–751
ªThe Author(s) 2019
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1023263X18821276
maastrichtjournal.sagepub.com
MJ
MJ
and criminal matters yet remains relatively under-researched: the shift from legislative interven-
tions limiting citizens’ rights on the basis of the assessment of the commission of specific acts, to a
system where increasingly the focus is to identify and classify citizens as dangerous, notwithstand-
ing the existence of any wrongdoing.
The article will examine the emergence of the ‘dangerous citizen’ within EU criminal law, and
EU law more broadly, by focussing on two levels of EU action in the field of security.
First, the article will examine the development of EU criminal law within the broader context of
the global securitization process in the fight against terrorism and beyond. It will also examine the
development of EU criminal law in response to global or transatlantic developments, by focussing
on the shift towards preventive justice. The term ‘preventive justice’ has been used in the context
of domestic criminal law to highlight the extension of the scope of criminal law to gradually
remove the link between criminalization and prosecution on the one hand and the commission of
concrete acts on the other.
1
I have applied the term to EU law more broadly, and will use it for the
purposes of this contribution, to encompass the exercise of state power in order to prevent future
acts that are deemed to constitute security threats. There are three main shifts in the preventive
justice paradigm in this context: a shift from an investigation of acts that have taken place to an
emphasis on suspicion; a shift from targeted action to generalized surveillance; and, underpinning
both, a temporal shift from the past to the future.
2
Preventive justice is thus forward- rather than
backward-looking; it aims to prevent potential threats rather than punishing past acts; and in this
manner it introduces a system of justice based on the creation of suspect individuals using on-going
risk assessment.
3
From this perspective, the article will analyse the impact of the emergence of the
preventive justice model on creating categories of dangerous individuals, by focussing on three
levels of EU action: the imposition of terrorist sanctions on the basis of lists; the extension of the
criminalization of terrorism to cover the acts of so-called ‘foreign fighters’; and the shift to pre-
emptive, generalized surveillance of all citizens.
Second, the analysis will then turn to focus on the emergence of the dangerous citizen in internal
EU law prompted by the constitutionali zation of security objectives in the Lis bon Treaty. In
particular, the analysis will cast light on the use of EU criminal law to create dangerous citizens
and thus limit well-established EU citizenship rights including protection from expulsion.
The aim of the article is to thus provide a taxonomy of the emergence of dangerousness as a
concept that underpins EU criminal law and at the same time poses profound challenges for the
protection of fundamental and citizenship rights as we know them.
The article will show that while this phenomenon is very visible at the stage of punishment (see
the discussion on the terrorist sanctions in the next section and the discussion on the expulsion
following commission of criminal offences in the fourth section), it is also part of a broader trend
that interests the whole criminal justice process, from the very start of the investigative phase (see
the discussion on surveillance in the third section).
1. A. Ashworth and L. Zedner, Preventive Justice (Oxford University Press, 2014).
2. V. Mitsilegas. ‘The Security Union as a Paradigm of Preventive Justice: Challenges for Citizenship, Fundamental Rights
and the Rule of Law’, in V. Mitsilegas and S. Carrera (eds.), Constitutionalising the Security Union. Effectiveness, Rule
of Law and Rights in Countering Terrorism and Crime (Centre for European Policy Studies, 2017), p. 2–18; and V.
Mitsilegas, ‘‘‘SecurityLaw’’ and Preventive Justice in the Legal Architecture of the European Union’, in U. Sieber et al.
(eds.), Alternative Systems of Crime Control. National Transnational and International Dimensions (Duncker and
Humblot, 2018), forthcoming.
734 Maastricht Journal of European and Comparative Law 25(6)
To continue reading
Request your trial