Mutual Recognition in Criminal Matters and the Principle of Proportionality: Effective Proportionality or Proportionate Effectiveness?
| Author | Dan Helenius |
| Published date | 01 September 2014 |
| Date | 01 September 2014 |
| DOI | http://doi.org/10.1177/203228441400500306 |
| Subject Matter | Article |
New Journal of Eu ropean Crimina l Law, Vol. 5, Issue 3, 2014 349
MUTUAL RECOGNITION IN CRIMINAL
MATTERS AND THE PRINCIPLE OF
PROPORTIONALITY
E ective Proportionality or
Proportionate E ectiveness?
D H*
ABSTRACT
e principle of proportionality constitutes a general principle of EU law. However, its
application with regard to judicial cooperation in criminal matters between the EU
Member States has remained somewhat unclear, especially a er the introduction of the
principle of mutual recognition. is article rst of all analyses the content and structure
of sai d p ri nc ip le , a s i t c an a rg ua bl y b e g ive n d i erent understandings. Secondly, it discusse s
the relevance ascribed to the pr inciple in both EU and State legislation and practice.
Keywords: EAW; e ectiveness; judicial cooperation; mutual recognition;
proportionality
1. GENERALLY ON THE PRINCIPLE OF
PROPORTIONALITY
e principle of proportionality const itutes a basic principle of all forms of exercise of
State authority. e concept of proportionality is frequently referred to also in the
context of EU law. One can nd references to the principle of proportionality in t he case
law of the European Court of Justice (ECJ),1 in the Treaty on European Union (TEU;
* LL.D., Post-doctora l researcher in Cri minal and Procedu ral Law at the Universit y of Helsinki.
1 Cf. the request for a prelimin ary ruling i n case C-396/11, Radu, where the Romanian Cur te de Apel
Constanţa asked whether “the interference on the part of the State executing a European arrest
warrant w ith the rights and gu arantees laid down in A rticle5(1) of the [ECHR] and in Article 6 of
the [Ch ar te r], r ead in con jun ct ion wi th A rt ic les 48 and 52 t he reo f, w it h re fer enc e a ls o to Ar tic le s5(3)
Dan Helenius
350 Intersentia
Article5(1) and 5(4)), in the Charter of Fund amental Rights of the EU (Art icle49(3) and
52(1)) and in numerous conventions, framework decisions and direct ives.2
While the pri nciple of proportionality has been discuss ed to some extent in regard
to s ub sta nt ive EU c ri mi na l la w,3 the notion of proport ionality in the context of judicia l
cooperation in criminal matters seems truly to have arisen only in recent years as a
consequence of the introduction of the system of mutual recognition. is is especially
due to the experiences wit h the European Arrest Warrant (EAW).4
In transnational procedures, the encroachment upon individual rights is o en
more severe tha n in purely national ones . is is a consequence of, inter alia, that t he
individuals i nvolved are faced with measures taken by foreign authorit ies on the basis
of legislation that is usual ly unfamilia r to them, that they do not speak and unders tand
the same language, and that it is usually harder for them to keep contact with their
relatives and other people near to them when faced with proceedings in a foreign
State. If we accept that the principle of proportionality in some way governs judicia l
coop erat ion in c rim inal matte rs, it i s als o imp orta nt to di scus s what we act ual ly mea n
by “proportionate” co operation.
When discussi ng the principle of proportionality in regard to judici al cooperation
in criminal matters within the EU, one can generally take either a vertical or a
horizontal perspective. From a vertical perspective, the principle of proportionality
acts as a constitutional limit to the Union’s competence and regulates the relation
between the EU and its Member St ates. is proportionalit y demand can be found in
Articles5(1)5 and 5(4)6 TEU. In a constitutional sense, t he principle of proportionality
requires a balancing between con icting interests in order to obtain an appropriate
and (4) and Articles 6(2) and (3) of the [ECHR], [must] satisfy the requ irements of necessity in a
democratic socie ty and of proportionalit y in relation to the objective ac tually pursued ”. However,
the ECJ did not speci cal ly address the concept of proport ionality in its rul ing. Cf. the opinion of
AG Sharpston in the sa me case, especial ly paras. 60‒62 a nd 103.
2 See e.g. Article 7(a) of Council Framework De cision (2008/978/JHA) of 18December 2 008 on the
European ev idence warrant (EEW) for the pur pose of obtaining objects , documents and data for
use in proceedings in criminal matters.
3 See e.g. Petter Asp, EG:s sanktionsrätt (Uppsala, Iustus förlag 1998) 92-111, Sakari Melander,
Kriminalisointiteoria, (Helsi nki, Suomalainen Lak imiesyhdistys 200 8) 466-468 , Petter Asp, ’Two
Notions of Proportion ality’ in Ki mmo Nuotio (ed.), Festschri in Honour of Ra imo Lahti (Helsinki,
Publications of t he Faculty of Law – Universit y of Helsinki 2007) 2 07‒219 and Ester Herlin-Karnell,
e constitutional dimension of European criminal law (Ox ford et a l. , Ha rt Pub lis hi ng 2 012) 1 10‒14 5.
4 André Klip, European Criminal Law (Cambridge et al., Intersentia 2012) 389–390. Extensively on
the question of di sproportionate EAWs, see the research paper Critical Assessment of the Existing
European Arrest Warrant Fram ework Decision (Bruss els, European Union 2014) 32‒38, written for
the European Pa rliament by
Anne Weyembergh, Inés A rmada and Chloé Brière (avai lable at www.europa rl.europa.eu/Reg Data/
etudes/etudes/join/2013/510979/IPOL-JOIN_ET(2013)510979(ANN01)_EN.pdf).
5 “ e limits of Union competences are governed by the principle of conferral. e use of Union
competences is governe d by the principles of subsidia rity and proportion ality.”
6 “Under the principle of proportiona lity, the content and form of Union act ion shall not exceed w hat
is necessar y to achieve the object ives of the Treaties.”
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