Criminal Justice in Europe: A Comparative Study

By Phil Fennell; Christopher Harding et al. | Go to book overview
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Union. The approach is intergovernmental, not supranational. This is obviously explained by the fact that justice and home affairs are very sensitive areas in which any grant of powers to supranational bodies is viewed with apprehension.

Finally, Europol, along with the other forms of intergovernmental co- operation envisaged by the Union Treaty, inevitably gives rise to the question of harmonization in the field of criminal justice. To what extent do these new forms of co-operation generate a need for harmonization of substantive criminal law or rules of criminal procedure? That also is an issue of vital importance to the future of criminal justice in Europe.


There is little doubt that Europeanization is making headway now in the field of criminal justice and the provisions of the Union Treaty referred to above are at least an indication of the forces which are likely to shape future developments. In looking to the future it may be useful to comment on two possible lines of development: more intensive co-operation, and harmonization.

It is not unrealistic to foresee further developments in inter-state co- operation at the European level and the logical end of this process would include: an obligation of assistance, with little scope for discretion, and the disappearance of traditional exceptions, such as those based on military and fiscal considerations; the possibility of states extraditing their own nationals; the evolution of extradition into something like the rendition procedure used within the United States; comparable developments in the field of mutual assistance; and, as mutual trust and understanding grow, transfer of proceedings and the execution of sentences may become the rule rather than the exception. All of this would also imply a considerable simplification of procedure.

Attractive as this vision of the future may be in some respects, some critical comments are in order. The first set of comments concerns the individual person who is, as yet, merely the object of co-operation. To the extent national authorities increasingly co-operate in the interest of criminal justice, there is an increasing need to protect individual interests at an international level. This need takes two forms. First, increased international co-operation between authorities tends to disturb the fragile balance between prosecution and defence in a criminal case. In this respect the accused will have to acquire his own rights to co-operation, to the extent necessary for his defence (for instance, the right to compel the attendance of witnesses from abroad). The logical end here would be a situation in which national borders are no longer obstacles for the defence in a criminal


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Criminal Justice in Europe: A Comparative Study
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