‘Rechtsstaat’ and European criminal law – From the end of sovereignty
| DOI | 10.1177/2032284420973088 |
| Published date | 01 March 2021 |
| Date | 01 March 2021 |
| Author | Stefan Braum |
| Subject Matter | Articles |
Article
‘Rechtsstaat’ and European
criminal law – From the end
of sovereignty
Stefan Braum
University of Luxembourg, Luxembourg
Abstract
Whoever punishes is sovereign.
Those who punish fairly – or legitimately – are sovereign.
At least that is how it was yesterday. But is it still the case today?
Sovereignty is not what it used to be. Neither are punishments. What is the result? We do not
know.
I will try to explain the change of sovereignty in criminal law through the draft Regulation on the
collection of electronic evidence. I am going to discuss three axes to set the framework for a
critique.
- What we know
- What changes
- What we can hope for or fear.
Keywords
Rule of law, sovereignty, judicial control, European criminal law, digitisation
It was our last conversation. It was shaped by politics: we discussed the strengthening of rights
across Europe, the impact of migration and the inability of the EU to find a fair and humane
solution to the refugee problem. We talked about the erosion of the rule of law, not only among the
usual suspects but everywhere in Europe and beyond, and we talked about the geopolitical pres-
sures on freedom and fundamental rights. And yes of course, Brexit.
Scott Crosby was a fighter for the rule of law, one who cared about the weak and vulnerable. As
a lawyer who had been committed to human rights in recent years, he was aware of the fragility of
the rule of law in the face of the force which political power can unfold in the criminal justice
system. He felt that the United Kingdom’s withdrawal from the European Union, and above all the
Corresponding author:
Stefan Braum, Faculty of Law Economics and Finance, University of Luxembourg, Rue Alphonse weicker 4, Luxembourg
City, 1511 Luxembourg.
E-mail: stefan.braum@uni.lu
New Journal of European Criminal Law
ªThe Author(s) 2020
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DOI: 10.1177/2032284420973088
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2021, Vol. 12(1) 14 –22
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