The Law of the Lisbon Treaty
Our emerging European Our emerging European Criminal Process ?Criminal Process ?
Professor Dermot P.J. WalshProfessor Dermot P.J. Walsh
School of LawSchool of Law
University of LimerickUniversity of Limerick
The way we wereThe way we were
Notion of a European criminal Notion of a European criminal process implausibleprocess implausible
Irish criminal law and justice are an Irish criminal law and justice are an expression of our sovereignty and expression of our sovereignty and part of what we arepart of what we are
Change in the basic architecture of Change in the basic architecture of criminal law and justice comes slowlycriminal law and justice comes slowly
Euro ChangesEuro Changes
Changes unprecedented in speed Changes unprecedented in speed and scope since the demise of the and scope since the demise of the Brehon law systemBrehon law system
Currently happening under our nosesCurrently happening under our noses
The Lisbon Treaty will give it a The Lisbon Treaty will give it a significant boostsignificant boost
The criminal processThe criminal process
PolicePolice
ProsecutionProsecution
CourtsCourts
SanctionsSanctions
Substantive criminal lawSubstantive criminal law
EuropolEuropol
European Drugs UnitEuropean Drugs Unit
Europol Convention 1995; ProtocolsEuropol Convention 1995; Protocols
Initial remit narrow but soon expandedInitial remit narrow but soon expanded
An advisory and support body for national An advisory and support body for national forcesforces
EuropolEuropol
Treaty of Amsterdam 1999 Treaty of Amsterdam 1999 introduces a more operational roleintroduces a more operational role
Competence and powers set to be Competence and powers set to be enhanced further by an EU Decision enhanced further by an EU Decision in 2010in 2010
Europol and LisbonEuropol and Lisbon
A more open-ended remitA more open-ended remit
Europol officers on the ground with gardaiEuropol officers on the ground with gardai
EU operational powers for Europol officers EU operational powers for Europol officers and gardaiand gardai
A European police force operating A European police force operating alongside, and even directing, gardaialongside, and even directing, gardai
Other police developmentsOther police developments
SchengenSchengen
Cross border surveillanceCross border surveillance
Hot pursuit across bordersHot pursuit across borders
Joint investigation teamsJoint investigation teams
EurojustEurojust
Initially set up on an informal basisInitially set up on an informal basis
Prosecutor, police officer or judgeProsecutor, police officer or judge
Status and powers determined by Status and powers determined by national lawnational law
Broad remitBroad remit
EurojustEurojust
Advisory role to national authorities Advisory role to national authorities in prosecutions/investigationsin prosecutions/investigations
Competent to request prosecutionsCompetent to request prosecutions
Proposed EU Decision will Proposed EU Decision will significantly enhance powers and significantly enhance powers and functionsfunctions
Eurojust and LisbonEurojust and Lisbon
Power to initiate criminal Power to initiate criminal investigations and, arguably, investigations and, arguably, prosecutionsprosecutions
Establishment of a European Public Establishment of a European Public Prosecutor from EurojustProsecutor from Eurojust
European Public ProsecutorEuropean Public Prosecutor
Power to investigate, prosecute and bring Power to investigate, prosecute and bring to judgmentto judgment
Functions of prosecutor in national courtsFunctions of prosecutor in national courts
Investigative roleInvestigative role
Remit limited but expandable Remit limited but expandable
A European Criminal CourtA European Criminal Court
Mutual recognition of judicial decisionsMutual recognition of judicial decisions
EvidenceEvidence
Pre-trial orders and post-conviction Pre-trial orders and post-conviction penalties penalties
An Irish court as a Euro courtAn Irish court as a Euro court
Lisbon and the Irish Euro CourtLisbon and the Irish Euro Court
EPP prosecutionsEPP prosecutions
EU rules of evidence and procedureEU rules of evidence and procedure
EU rules on judicial reviewEU rules on judicial review
A prosecution by the EPP using EU rules of A prosecution by the EPP using EU rules of procedure and EU rules of evidence procedure and EU rules of evidence
SanctionsSanctions
Free movement of penaltiesFree movement of penalties
Transfer of prisonersTransfer of prisoners
Enforcement of financial penalties Enforcement of financial penalties and the confiscation of criminal and the confiscation of criminal assetsassets
SanctionsSanctions
Mutual recognition of Mutual recognition of disqualifications etcdisqualifications etc
Mutual recognition of alternative Mutual recognition of alternative sanctions, suspended sentences and sanctions, suspended sentences and probationprobation
Free movement of criminal recordsFree movement of criminal records
EU substantive criminal lawEU substantive criminal law
EC criminal law related to single EC criminal law related to single European marketEuropean market
Treaty of Amsterdam gives EU Treaty of Amsterdam gives EU competence to legislate for common competence to legislate for common criminal offences and penaltiescriminal offences and penalties
Substantive Criminal Law Substantive Criminal Law Trafficking in personsTrafficking in persons Child pornography and prostitutionChild pornography and prostitution Confiscation of criminal assetsConfiscation of criminal assets Counterfeiting non-cash instrumentsCounterfeiting non-cash instruments Facilitation of irregular entry or residence Facilitation of irregular entry or residence Drug traffickingDrug trafficking TerrorismTerrorism Protecting the EU’s financial interestsProtecting the EU’s financial interests CorruptionCorruption Attacks on information systemsAttacks on information systems Intellectual property rightsIntellectual property rights Organised crime Organised crime
Lisbon and substantive criminal lawLisbon and substantive criminal law
Confirms and strengthens EU Confirms and strengthens EU competencecompetence
EU definitions and sanctions for EU definitions and sanctions for serious crimes with a cross-border serious crimes with a cross-border dimensiondimension
EU criminal laws to implement EU EU criminal laws to implement EU policiespolicies
What emerges from all of this ?What emerges from all of this ?
Architecture of traditional Irish Architecture of traditional Irish criminal process undergoing a period criminal process undergoing a period of rapid and fundamental changeof rapid and fundamental change
Changes reflect the emergence of a Changes reflect the emergence of a distinct EU criminal processdistinct EU criminal process
Lisbon takes these changes to a Lisbon takes these changes to a higher levelhigher level
A opt out will not change the A opt out will not change the underlying realityunderlying reality
Why is it happening ?Why is it happening ?
Free movement of criminals must be Free movement of criminals must be countered by the free movement of countered by the free movement of criminal justicecriminal justice
Distribution of EU € billions must be Distribution of EU € billions must be protected by EU mechanisms for protected by EU mechanisms for combating fraudcombating fraud
Achtung!Achtung!
A community’s sense of identity and A community’s sense of identity and familiarity with its criminal law must familiarity with its criminal law must be preservedbe preserved
Must ensure that effective remedies Must ensure that effective remedies are available to correct mistakes and are available to correct mistakes and abuses in the Euro process abuses in the Euro process
Achtung!Achtung!
Fundamental values of transparency, Fundamental values of transparency, accountability, democracy, human accountability, democracy, human rights and the rule of law must be rights and the rule of law must be protectedprotected
There are positives on some of these There are positives on some of these fronts in the Lisbon Treatyfronts in the Lisbon Treaty