European Legal Area in Europe Which perspectives ?

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Editor : Fondation Robert Schuman


The European space for Justice and Security has until now developed in a pragmatic manner. Today it has to be consolidated through consensual consideration based on common foundations. The Union's enlargement and the development of organised crime makes this necessary.

In "What perspectives for the common penal area in Europe?", Jean-François Krieg and Dominique Barella have examined the initiatives that have already be taken in terms of European justice and what remains to be done.

The authors believe that since each country in the Union has its own code of penal procedure several dangers emerge: legal criminal evasion, incoherence in criminal policies, a rift in equality between European citizens, and the development of large scale trans-border crime. It is therefore necessary to harmonise enquiry procedures and to set up European judicial structures. Fighting trans-border crime is a long term project even though two bodies, Europol and Eurojust, already exist they only operate as a support for national authorities and in a disparate manner for the time being.

Europol was launched against international crime at the start of 2002. Eurojust aims to improve co-operation between national authorities for the most serious crimes. Thei role have been made easier by the creation of a "European judicial network". In parallel to the close work of these two organisms the accomplishment of the Union's objectives requires an improvement in the rules governing judicial co-operation, the freezing of resources and the establishment of joint teams of enquiry.

There has been one significant step forward - undoubtedly due to the development in the international context - that aims to create a European arrest warrant and to adapt the law surrounding extradition. It shows the desire for new efficiency in the fight against trans-border crime.

Simultaneously and following the Special European Council in Tampere on Justice and Internal Affairs (1999) the European Union has deemed that the principle of mutual recognition of decisions should become the cornerstone of judicial co-operation.

In addition to this the Commission also suggested during the inter-government conference in Nice 2001 the remedying of the division in the European penal area by the creation of a European Prosecutor.

The authors think it necessary to aim for a true harmonisation of the law since although inter-government co-operation exists its has also demonstrated its limits. Europe is progressively working towards a model European penal procedure, conciliating Human Rights and State Law ; it still however has to move forwards on fundamental rights. Some believe this should not be a source of great difficulty: defence rights, the principle whereby no one may be prosecuted twice for the same crime and the principle of the presumption of innocence.

However the principle of the procedure's contradictory nature has encountered a difficult start because of the diversity in rules and particularities in each State. A consensus is still a distant goal on some fundamental points such as the guarantee of intervention by a judge, the placing of a witness in police custody and the procedure of trial by jury.

Finally, Jean-François Kriegk and Dominique Barella dedicate the finally part of their work to demonstrating the European Union's will to fight against organised crime. Some subjects have enabled the efficient collaboration in some sectors: this is so in the fight against drugs, money laundering, terrorism, counterfeiting the Euro, cyber-crime, illegal immigration and trafficking in human beings.

This should lead to a minimal harmonisation of criminal law and the establishment of a partially integrated system of repression. Even though this movement is encountering some resistance, the rapprochement on a certain number of accusations, such as applicable sanctions, comprises an inevitable starting point.

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