On 30 August 2018, a study, commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the LIBE Committee, examining to what extent differences between national procedural criminal laws hinder the negotiations and the operation of cross-border cooperation instruments, was published. It is based on a comparative analysis of a representative sample of nine Member States. It identifies several forms of “hindrances” to cross-border cooperation, ranging from mere delays to the suspension and the non-execution of assistance requests, alongside the striking underuse of some of the existing instruments. There is no simple or single answer to these challenges. Therefore, several non-legislative and legislative recommendations are put forward for the short- and long-term horizon.

Reconciling differences between national criminal procedures is not always an easy task.

The study identified 9 domains where existing differences among national legislations affect the negotiations and/or cross-border cooperation. These include investigative measures, admissibility of evidence, the principle of equality of arms in transnational investigations, pre-trial detention regimes and alternatives to detention, national procedures to assess detention conditions and surrender following the Aranyosi and Caldararu judgment, compensation regimes for unjustified detention in transnational cases, the right to be present at a trial and conditions for surrender, compensation of victims of crime, as well as protection measures for victims.

As a result from differences in criminal procedural laws, several impacts could be identified.

Adopting new instruments of cooperation proved a challenge. The negotiations of the EIO and the EPPO were complex and lasted several years. Widely divergent criminal procedures, alongside asymmetrical levels of ambition and lack of political willingness to move forward with new instruments, translated into lengthy negotiations and the watering down of initially relatively high ambitions. In practice, differences in criminal procedures impaired the functioning of cooperation instruments. The release of the Aranyosi and Caldararu judgment and its impact on the European Arrest Warrant – leading to a near paralysis of surrender procedures in some countries – focused a great deal of attention. Other instruments deserve close consideration as well. Worthy cooperation mechanisms, such as those adopted in the realm of protection measures for victims, have barely been relied on by the Member States, despite their significant potential to increase the standing of victims across the Union. Meanwhile, delays and ill-execution of requests occurred as a result of incompatibilities between legal and procedural rules, absence of mutual knowledge, as well as the lack of effective and speedy communication and information-exchanges between competent authorities.

Faced with these challenges, solutions were devised by EU lawmakers. Alongside approximation endeavours, of which the adoption of a body of directives on defendants’ and victims’ rights is a prime illustration, a complementary strategy was formulated. Rather than tackling differences head on, the EU undertook to circumvent them. In some circumstances, the contours of judicial cooperation were stretched to their paroxysm so as to include an array of actors alongside judicial bodies, ranging from administrative and civil authorities, to service providers. Flexibility manifested particularly in the terrain of transnational investigations, where both administrative and criminal law actors, alongside public and private actors, play a decisive role. Regarding the protection of victims, the nature – civil, administrative and criminal – of both a uthorities and protection orders seems to be of little relevance. Where flexibility was deemed unsuitable, deference to national law was preferred.

However, these approaches have proved unsatisfying.

The flexibility retained by the EU legislator creates confusion among the MSs, sometimes resulting in delays in cross-border cooperation, or limited knowledge of existing mechanisms. Reliance on national law has not proven entirely satisfying. The obligation to cope with a variety of national laws, procedures and requirements causes delays and incompatibilities. The current regime moreover generates tensions with fundamental rights. Individuals are faced with widely divergent protection regimes, depending on which MSs participate in transnational cooperation. Variable geometry undermines the principle of legal certainty, a yet crucial requirement in transnational proceedings, where several MSs are involved, and determining the jurisdiction competent to address a claim may prove challenging. In this respect, the framework developed in the directives on defendants’ and victims’ rights is incomplete: administrative and civil proceedings fall outside their scope of application, the wording of some provisions is sufficiently broad to leave a wide margin of discretion to the national legislator, Ireland and the UK have opted-out from several measures, and only surrender procedures have been explicitly dealt with by the EU directives. This leaves any observer with the feeling that the EU’s criminal justice area operates on a system of fundamental rights protection à géométrie variable.

Whereas on paper, there is a general consensus that, in an area of criminal justice where a variety of systems co-exist, mutual understanding and recognition of differences is the rule, in practice MSs pursued dissimilar approaches. Some pushed the boundaries of mutual trust to the extreme, to what could be termed “blind trust”, and differences were accommodated to the widest extent possible, a posture driven by the assumption that all Member States comply with similarly high levels of fundamental rights protection, as well as the imperative of more efficient judicial cooperation. Others accommodated differences between national systems, provided that these are not such as to encroach upon the core content of a fundamental right enshrined under national law. But reality bites back, and clashes occurred between Member States with high levels of protection, and those perceived as located at a lower end of the spectrum. Although these “clashes” occurred on a relatively parsimonious basis, they suggest that mutual trust is not based on the mere presumption that Member States share the same level of commitment to a common set of values. Trust, in the EU’s area of criminal justice, must indeed be “earned” through effective compliance with fundamental rights standards.

The full report and the important recommendations can be found here.

Source: European Parliament Think Tank