The Fight Against Impunity in EU Law

Luisa Marin, Stefano Montaldo, Luisa Marin, Stefano Montaldo

• Publisher: Hart Publishing
• Year: 2020
• Print ISBN:
  9781509945610
• Edition: 1
• eBook ISBN:
  9781509926886
• Topic: Law
• Subtopic: International Law
• Index: Law

The fight against impunity is an increasingly central concept in EU law-making and adjudication. What is the meaning and the scope of impunity as a legal concept in the EU legal order? How does the fight against impunity influence policy and adjudication?
This timely first piece of comprehensive research aims to to address these largely unexplored questions, which involve structural institutional and substantive dilemmas underpinning the most recent developments of the European integration process. In recent years, the fight against impunity has become a pressing concern for the European institutions. It has shaped several EU policies and has led to a recurring argument in the case law of the Court of Justice.
The book sheds light on this elusive notion, providing a much needed conceptual appraisal. The first section examines the scope of the notion of impunity, and its role in the EU decision-making process and in the development of EU competences. Subsequent sections discuss the implications of impunity - and of the fight against it - in a variety of complementary domains, namely the allocation of criminal jurisdiction, mutual recognition instruments, the rise of new surveillance technologies and the external dimension of the Area of Freedom, Security and Justice.
This book is an original and timely contribution to scholarship, which is of interest to academics, researchers and policy-makers alike.

1

Introduction: Is There a Fight against Impunity in the EU Legal System?

LUISA MARIN AND STEFANO MONTALDO

Impunity is a deep-rooted and recurring concern for criminal law, which questions the actual capacity of a penal system to avoid a crime going unpunished and to more generally secure sound and effective administration of justice. This concept embodies a legitimate objective in the public interest and usually triggers institutional and normative reactions aimed at making sure that justice is done. At the same time, leaning on the fine thread between exercise of public coercive powers and protection of fundamental rights, impunity also involves the sphere of victims and (alleged) perpetrators of crimes, because it is closely connected to the search for justice in individual cases and to the inherent limits of substantive and procedural criminal law stemming from constitutional principles.

Even though the concept at issue recalls the basic idea of escaping punishment, its ultimate meaning is elusive and encompasses an expanding scale of implications. At first sight, impunity entails fleeing formal justice, namely the actual delivery of a judicial decision imposing a punishment. Yet, the issuing of a sentence does not preclude de facto impunity, in those cases where, on various grounds, enforcement is blocked because of procedural hurdles or the sentenced person having absconded. From a wider perspective, the concept under consideration also involves a twofold procedural dimension, where an alleged perpetrator escapes trial or in case – at an earlier stage – the investigation phase does not lead to the actual identification of a suspect of a crime. Impunity brings about even more pressing concerns in a cross-border scenario. As early as 1906, Henry Donnedieu de Vabres pointed out that ‘la rapidité des voies de communication, la multiplicité des relations entre les peuples, offrent aux delinquents des chances d’impunité qu’ils ne possédaient pas autrefois’.¹

The process of European integration is not immune from impunity concerns, from at least a threefold perspective. In a first decentralised dimension, the enforcement of EU law could be hampered by the diversity of the enforcement systems of the Member States. To limit the dangers of this feature of the EU legal system, the Union can rely on the principle of sincere cooperation to impose on the Member States the duty to sanction – also by means of criminal law – violations of EU law hampering the full effectiveness of its common policies. Following the Amsterdam Bulb and Greek Maize line of case law,² the national authorities are then expected to assimilate situations stemming from EU law to purely domestic ones and to take all necessary measures to protect related interests in light of the principles of equivalence, effectiveness and proportionality, under the scrutiny of the Commission and of the Court of Justice. Secondly, a risk of impunity also lies in the cross-border dimension: that is why a vast array of instruments of horizontal judicial cooperation in criminal matters have been enacted by the EU legislature to facilitate law enforcement in a transnational scenario. Lastly, impunity also constitutes an intrinsic and autonomous supranational concern of the EU itself, which has led the Union to take action to protect its own interests, such as in the case of the establishment of the European Public Prosecutor’s Office and of the related legislation aimed at protecting the EU’s financial interests.

These dimensions reflect the nature of the EU, but also its complexity, first and foremost represented to a large extent by its reliance on Member States’ enforcement systems. Actually, at the EU level, the challenge of impunity reveals the dark side of the domestic authorities’ (in)ability to effectively react to crimes having cross-border implications and to behaviours affecting the Union as such or more broadly EU-driven interests underpinning common policies.

Crucially, ignoring technological development and the ensuing availability of refined means to commit crimes and escape law enforcement, across the decades, the European integration process has further amplified EU-wide impunity concerns on two main grounds.

First of all, the establishment of the internal market, with the abolition of controls at the ‘internal borders’, has provided increased opportunities both for committing crimes with cross-border implications and for fleeing justice.³ The recurring idea of a boost to the ‘free movement of crimes and offenders’ as an inevitable side effect of the internal market actually lies at the core of the Member States’ decision to start to cooperate in the area of Justice and Home Affairs, back in the 1970s and 1980s, and to develop an increasingly structured EU criminal policy.

This can be labelled the ‘internal market driver’. Later on, after 9/11, integration was boosted by counterterrorism; more recently, the intertwinement of migration control with security has represented a powerful incentive for coercive surveillance measures which aim to realise a pre-emptive control on migration, stretching the boundaries of impunity and prevention beyond their outer limits.

Overall, the efforts of the EU in confronting impunity must be ascribed to its evolution from a multi-level regulatory polity into a core state powers entity. Though (still) majoritarian narratives frame the EU as a multi-level regulatory polity,⁴ or even as a regulatory state,⁵ that is firmly focused on regulating markets, emerging interpretations capture the increasing role of the EU in exercising ‘core state powers’ in several domains,⁶ alongside Member States; it is argued here that European integration in the context of the administration of criminal justice can be ascribed to this broader phenomenon, which deserves further research and examination.⁷ Next to cooperation in the domain of criminal justice, the emergence of a fully fledged criminal law policy, albeit one with limitations,⁸ is an expression of integration in the maintenance of internal security (understood as crime control and administration of justice); to conclude, criminal policy and cooperation in the administration of criminal justice can be framed as the co-exercising of core state powers by the EU and its Member States.

Well before the process of European integration became concerned with the exercise of core state powers, such as internal security and the administration of justice, and when the main focus of integration was economic, the Court of Justice used its powers and discretion to shape and create a new legal order. The dynamic and evolutionary process of becoming a multi-level regulatory polity has been made possible thanks to European principles such as unity, effectiveness and coherence of EU law. In several of the phases of European integration, the fight against impunity has begun to emerge.

In the context of the European integration process, the fight against impunity has acquired new and specific relevance, which reflects the context in which it has developed. The significance of impunity also differs from its conception in the national and international legal orders. In the EU, the fight against impunity is heavily dependent on the concepts of area (of freedom, security and justice), of European legal space and of Member States’ territories. Indeed, the contrast to impunity ‘the European way’ has been taking shape for decades in the context of European economic integration, which is a dynamic and evolutive process of integration between states, and therefore does not start from nor will lead to a single and uniform legal order.

This process towards the creation of an ‘ever closer union’ involves the establishment of a single area of freedom, security and justice, in addition to a single market.⁹ The fight against impunity in the European legal order is therefore strongly linked with the very nature of the ‘area’, and also an expression of the core features of the EU.¹⁰

First of all, the EU has a territory which is an expression of the territories of the Member States. However, the EU does not have the power to determine its territory, but can only control its extension, through new membership, and its contraction, according to Article 50 TEU.

Most importantly, the EU is not a single space, where territory and legal space overlap: the Schengen area, which does not coincide with the area of freedom, security and justice, is a case in point. Moreover, the whole area of freedom, security and justice rests on a pluralistic and fragmented mosaic of national legal orders, which also postulates national enforcement systems, institutions and powers.¹¹

If the EU as a legal space coexists with a multitude of territories where different rules apply, what is the function of the fight against impunity within the scope of EU law? What can bind the whole legal system together?

The Court of Justice has been a leading actor in providing answers to these questions; in doing so, it has relied on legal principles such as effet utile, effectiveness and unity of EU law. It has also, recently, referred to the constitutional principles common to the Member States, which have been used as sources of reference for the definition of the general principles of EU law, which also include fundamental rights, so crucial in the development of a European constitutional identity. Throughout the process, it has stressed the importance of the uniform interpretation of autonomous concepts of EU law,¹² so that ‘united in diversity’ does not end up undermining a process of integration through law.

It is precisely within this framework that we have to locate the fight against impunity in EU law, which can be framed as a public interest and European concern for the area of freedom, security and justice, but also more generally for the EU.

However, the nature of the fight against impunity in EU law is not clearly defined. Notwithstanding its role in fostering the development of key Union policies, this concept has been notably under-explored so far, especially from an EU law perspective. Hence, the necessity for this book, which has been compiled with a view to paving the way for a more fine-grained appraisal of the notion at issue and of its implications for the EU legal order.

The framework questions this book contributes to the discussion are:

Which is the morphology of the fight against impunity in the context of the EU legal order? How does the fight against impunity manifest itself?

The book is structured in four parts.

The first part provides a conceptual appraisal of the concept of impunity in the European legal order. Valsamis Mitsilegas’s opening chapter addresses impunity as a driver of the European integration process and provides a taxonomy of the concept under consideration, linked to the achievement of internal and external objectives of the Union. As to the internal dimension, the analysis focuses on the protection of the interests – especially the financial ones – of the European Union, and on the establishment of an area of freedom, security and justice without internal frontiers where national legal orders can interact through judicial cooperation mechanisms. The external perspective considers international judicial cooperation of the EU and its Member States with third countries, through the lens of the recent case law on extradition and EU citizenship. The analysis then shifts from the international to the global, by discussing the use of data in the digital world.

Jannemieke Ouwerkerk discusses whether the impunity rationale often placed at the basis for EU choices of criminalisation actually fits the purpose of justifying criminalisation in the EU context. The author starts her analysis by asking if the paradoxical relation between fundamental rights and criminal law can be applied to EU criminal law. Criminal law is at the same time both a protection (shield) for and a threat (sword) to fundamental rights. Can impunity constitute a relevant factor in the exercise of criminalisation powers and, if so, how? The chapter further explores the impunity rationale as a driver for criminalisation, especially discussing the context where it applies, which is about legislating on matters of criminal law. It furthermore advances a number of proposals for a fundamental rights-based impunity rationale in EU criminal law, which are especially interesting because they could contribute to the development of a body of European criminal law, which could respect subsidiarity as well.

Ouwerkerk’s chapter is complemented by the one by Wouter van Ballegooij, which addresses the role played by concerns about the fight against impunity in the preparation and evaluation of EU criminal policy, from a better regulation perspective. The author contends that the Commission has developed a sophisticated set of better regulation guidelines, which provide guidance on whether a given problem should be tackled at the EU level dependent upon a sequence of preliminary logical steps. Yet the main driver for EU action in criminal law is the seriousness of the offence, and a tighter focus on whose impunity should be prioritised could better reflect the actual need for the adoption of a set of common rules.

The second part of the book is devoted to a traditional component of the impunity discourse, namely the allocation of criminal jurisdiction in a geographic area characterised by advanced political and legal cooperation. In this respect, Martin Böse provides an in-depth analysis of the formal clauses on jurisdiction incorporated into EU secondary legislation on substantive criminal law. The chapter classifies relevant provisions depending on the criteria for claiming jurisdiction that they incorporate, namely vicarious and universal jurisdiction, extraterritorial jurisdiction based on the existence of a genuine link and autonomous jurisdictional clauses. The author critically discusses the extraterritorial implications of the outlined clauses, with respect to offences committed within and outside the Union.

This chapter is complemented by Athina Giannakoula’s analysis of the soft mechanisms governing (potential) clashes of jurisdiction between the Member States. Specific attention is paid to Framework Decision 2009/948/JHA on prevention and settlement of conflicts of jurisdiction, although this act is described as contributing far from effectively to solving the problem it addresses. The author then turns to the role of Eurojust and to the potential displayed by its guidelines, which she analyses critically in view of the relevant practice and of the possible future normative improvements.

Another distinctive – albeit indirect – element of the coordination of criminal jurisdictions across the EU is the principle of ne bis in idem enshrined in Article 50 of the Charter of Fundamental Rights of the Union. Building on the assumption that the present level of protection of the principle at issue by European courts is sufficiently strong, Bas van Bockel addresses the delicate relationship between the right not to be tried or punished twice and the interest of the enforcement of material justice. The author contends that the scope of this principle could be nuanced to avoid impunity, in relation to the enforcement requirement included in Article 54 of the Convention Implementing the Schengen Agreement, in some cases of parallel application of criminal and administrative law, and in the event of new and previously undiscovered evidence.

The subsequent chapter deals with the establishment of the European Public Prosecutor’s Office (EPPO). The EPPO Regulation represents one of the most illustrative examples of the EU’s striving to protect its financial interest, as the rationale underpinning it is precisely to tackle the perpetrators of crimes affecting these interests more effectively, especially where the national authorities are unable to ensure an appropriate level of deterrence. Costanza Di Francesco Maesa presents the distinctive features of EPPO’s institutional setting and tasks, in particular in relation to the internal organisation of the Office, the identification of the applicable law and the (possible) conflict of competences with national judicial authorities of the non-participating Member States. The critical analysis of these aspects leads the author to consider that the establishment of EPPO marks an important step towards a more effective prosecution system, but also that the current normative framework leaves some problems unresolved and might result in institutional conflicts and procedural blocks.

The third part of the collection focuses on a central element of the impunity narrative in the Union, namely operation of the principle of mutual recognition as a cornerstone of judicial cooperation mechanisms in criminal matters. The numerous and diversified instruments implementing this principle in relation to a varied set of judicial decisions touch upon different aspects of (the risk of) impunity, ranging from the conduct of effective investigations through the European Investigation Order to the possibility to ask for the surrender of a person for purposes of prosecution or execution of a custodial sentence within the framework of the s...

Table of contents

• Cover
• Title Page
• Acknowledgements
• Table of Contents
• List of Contributors
• 1. Introduction: Is There a Fight against Impunity in the EU Legal System?
• PART A: IMPUNITY IN EU LAW: A CONCEPTUAL APPRAISAL
• PART B: THE FIGHT AGAINST IMPUNITY AND THE ALLOCATION OF CRIMINAL JURISDICTION IN THE EU
• PART C: THE FIGHT AGAINST IMPUNITY AND THE EU INSTRUMENTS IMPLEMENTING THE PRINCIPLE OF MUTUAL RECOGNITION IN CRIMINAL MATTERS
• PART D: IMPUNITY AND NEW SURVEILLANCE TECHNOLOGIES UNDER EU LAW
• PART E: THE FIGHT AGAINST IMPUNITY AND THE EXTERNAL DIMENSION OF THE AFSJ
• Index
• Copyright Page