European Integration or Democracy Disintegration in Measures concerning Police and Judicial Cooperation?

Date01 September 2013
Published date01 September 2013
DOI10.1177/203228441300400308
Subject MatterArticle
290 Interse ntia
EUROPEAN INTEGRATION OR DEMOCRACY
DISINTEGRATION IN MEASURES
CONCERNING POLICE AND JUDICIAL
COOPERATION?
M V*
ABSTRACT
In recent cases on the European Arrest Warrant, the Court of Justice of the European
Union has made decision s which are incompatible with the requirements of national
Constitutions on the protection of f undamental rights such as the right to f reedom from
imprisonment. National Con stitutions are acts of national Parliaments which oen
require the completion of a very dicult proce dure in order to be amended. Unfortun ately,
the Court of Justice has not ta ken these procedures into consideration when it has r uled
that, in order to enhance mutual tr ust between national judicial authorities, the
European Arrest Warrant can be issued even at the sa crice of freedoms of individuals
protected by national Constituti ons. Similar judgements are incompatible w ith decisions
made by Constitutional Courts such as the Italian Constitutional Court which states
that the Union’s supremacy and the application of the European Arrest Warrant cannot
encroach upon the fundame ntal principles of Constitutions.
Elected bodies such as the European Parliament and national Parliaments shoul d
decide whether fundamental principles protec ted by national Constitution s should be
set aside. e entr y into force of the Lisbon Treaty could have made the dierence as it
increased the respective powers of national Parliaments and the European Parliament
in the EU decision making procedure. Unfor tunately, these changes have not led to more
democracy in the criminal area. e result is that the Court of Justice case-law on the
European Arrest Warrant is incompatible with the judgme nts of national Constitutional
Courts. is art icle will show how incompatibility between the dierent cour ts and lack
of democracy in the criminal area could lead to the failure of police and judicial
cooperation between Member States . In order to avoid this failure, it is imperative that
measures in the criminal a rea are adopted by the democratic institutions: the European
* Senior Lect urer in Law, University of Wolverhampton (UK).
European Integ ration or Democracy Di sintegration in Measu res
Concerning Pol ice and Judicial Cooper ation?
New Journal of Eur opean Crimina l Law, Vol.4, Issue 3, 2013 291
Parliament and national Parliaments in cooperation with each other. Indeed, these
institutions alone, not unelected bodies such as the Court of Justice, should evaluate
whether national Constitution s should be set aside in order to ght against criminal
organisations.
Keywords: c onstitutions; cross-border crime; democracy; EU; human r ights
1. INTRODUCTION
e EU criminal a rea has been developed during t he last decades by the Court of
justice’s case-law and not through a democratic process which should have been
undertaken by the democratic institutions which are national parliaments and the
European Parliament (EP). It is essential to give t hese institutions more power in the
decision making procedure concerning the criminal area, because this area i mpacts
on democratic principles protected by national Constitutions, especia lly the right of
freedom from unfair detention.1 In many Member States people have fought to
conquer this right and th is is the reason why they a lone should decide whether the
right of freedom could be sacri ced in order to enhance mutual judicial cooperation
between the law enforcement authorities of EU Member States. Cohesion and
solidarity cou ld be established by developing a sense of belonging of EU citizen s to the
EU. In a Member State such as Italy, principles of the Constitution and in pa rticular
the fundamenta l right to freedom, could be modied by a very complex procedure
which requires the Parl iament’s consent and a referendum where people should decide
whether this fundamental principle of the Constitution should be amended.2
Unfortunately, recent case-law of the Court of Justice on t he European Arrest Warrant
(EAW) shows that fundamental principles of the Constitutions could be set aside
automatically where, according to t he Court of justice’s judgments, this is necessary
in order to strengthen mutual judicial cooperation. ese rulings are of concern for
democracy because it is ev ident that national Constitutions are bei ng set aside without
the consent of democratic bodies. In ad dition, the EP, the only elected EU institution,
is playing a very marginal role in shaping legislative measures on police and judicia l
cooperation and this fac t is aggravating the democratic decit in cr iminal matters.
is article w ill analyse the recent C ourt of Justice case-law, and will t hen compare
these ruli ngs with the Italian Constitut ional Court’s case law on Union supremacy in
criminal m atters. e article wil l subsequently explore whether there could be possible
conicts between t he Court of Justice’s rulings and national Constitutional Courts
1 See for example Ar ticle 13 of the Itali an Constitut ion which ful ly protects and g uarante es “the
inviolable rig ht to personal lib erty”. On ww w.governo.it/Governo/Cost ituzione/1_tit olo1.html,
accessed on 19July 2013.
2 is procedure is f ully describe d in section 5.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT