This article examines how subsidiarity can limit the exercise of EU procedural criminal law competence. It argues for a narrow understanding of subsidiarity, suggesting that EU procedural criminal law legislation can only be directed at problems which are of a cross-border nature. By analysing a specific piece of EU legislation, the new Victims Directive, it is shown how the subsidiarity principle can be enforced. The article sustains that the Victims Directive can be criticised on subsidiarity grounds as the directive fails to adequately account for the link between victim rights and the application of the principle of mutual recognition, since the directive fails to explain properly the need to regulate local victim rights. The article also draws some broader reflections on the justifications for EU harmonization. It is argued that EU initiatives in procedural criminal law have not primarily been driven by the need to facilitate mutual recognition and free movement but rather motivated by a general concern to deliver a common European sense of justice. Whilst this approach from the EU legislator can be justified from a moral perspective, it flies in the face of the idea that decisions should be taken as closely as possible in respect of citizens. ; Subsidiarity and EU criminal law
"The work analyses law enforcement cooperation mechanisms within the socio-legal framework of global normmaking. The strategies addressed range from legal frameworks facilitating cooperation to formal and informal police networks and cooperation practices. The study also takes into account crime-specific engagement, for example campaigns focusing on drug crimes, terrorism, financial crime, kidnappings and other offences. It explores challenges in policing practice and human rights protection in each region that could be countered by existing strategies in another. As regions usually develop more advanced cooperation mechanisms than exist at a global scale, strategies found in the former could help find solutions for the latter. To map existing strategies and assess their impact on both human rights and policing practice this study relies on an assessment of the primary and secondary literature sources in each region as well as interviews with practitioners ranging from senior police officers to prosecutors, government officials, customs and military staff"--
According to the Criminal Law, the protection of the natural human environment implies specific incriminations, i.e., environmental crimes that are punishable to preserve and create a healthy environment for the human species in line with the economic and technical development. Environmental problems created by society's progress (civilization) have political, economic, scientific, and legal, i.e., international legal dimensions. Today, a common topic is an ecological crisis caused by pollution and contamination of Earth, i.e., the disturbance of the balance and rhythm of the biosphere. Using the natural resources of our planet in a way that destroys it and prevents its regeneration requires special Criminal Law sanctions that will protect the natural environment and preclude our planet from becoming unsuitable for life. Therefore, we can increasingly use the term ecocide, i.e., utilizing natural resources without considering the necessity of developing a strategy for the use, harmonization, and preservation of a healthy human environment. This is a dualistic approach that links the protection of nature as an independent asset to protect the human quality of life as an individual and social issue. The paper will analyze the effectiveness of environmental protection from the Criminal Law aspect and point out the need for a more significant application of Administrative Law measures, especially the preventative ones, as a more effective tool for environmental protection.
What is accepted as a near-truism, people will parrot that appointed counsel is for criminal matters but not civil ones. But the language in the Sixth Amendment does not explicitly draw the line between who does and does not get an appointed counsel. If there is a right of counsel to prevent wrongful incarceration for those charged with felonies, it is difficult to parse out criminal trials from all other forums that result in the same, if not greater, risk of innocent people wrongfully convicted and confined. How is it possible to provide appointed counsel for criminal felony trials, and not criminal appeals, misdemeanors, parole and probation hearings, or habeas petitions? This question is particularly pressing given that we know that, in furtherance of the mass incarceration policy, misdemeanors and violations of parole and probation were the front door and back door to ensure most people got caught up in and stayed in the criminal justice system. Moreover, habeas petitions are the best means to present evidence of actual innocence underlying any and all conviction. If courts continue to condition the right to appointed counsel on only the threat of mandatory incarceration, why are the most effective tools to prevent incarceration—either through the entry point of misdemeanor or the offered exit of parole— excluded from this right? In Gideon, the gravamen of the right to counsel is not predicated in criminal trials but is a remedy to level the playing field for all of us who are facing the well-oiled machine of the federal government. This asymmetry is not abstract. For any person who is in immigration court, that person is facing off against a professional government attorney, trained in an exceedingly complex area of law that the said trained government attorneys are experts in. For many, the person is representing themselves, and often, did not even begin with English as their first language. Although scholars have been calling for legal representation for lawful permanent residents (their home is here), asylum seekers (death is different), immigrants with criminal convictions (Padilla v. Kentucky practically created the "Fifth and a half Amendment" right for non-citizens in criminal court), detained immigrants (it is fundamentally unfair for someone to present their defense while locked up), or uniquely vulnerable immigrants (children or the mentally disabled), it becomes pretty clear that the divides between these groups pale in the common theme that there is no fair fight—for anyone in immigration court. Immigration court is set up to the full and complete advantage of one party—the same party that is the prosecutor, judge, and executioner. What this article seeks then ask is, if Gideon can be intellectually expanded to provide for a right to counsel in immigration courts does that right end there? On the one hand, the analogy between incarceration and deportation is apt. The simple answer is no. It is a mistake to condition the right of counsel only on the severity on the outcome of a process. For starters, those who experience the specific adverse outcome arising from civil law are not particularly assuaged by someone else who may be worse off. For instance, for someone who loses custody of their child or loses income from a disability check, the result is life altering to them. But more import, the safeguard must be available to offset an unfair process, regardless of whatever the outcome is, so that the process does not lose its legitimacy. Whenever there is a courtroom, with procedures and rules created by the government, applying laws passed by the government, and populated by professional lawyers hired to advance the interests of the government, there is simply no fair fight without a lawyer representing the private David on the other side. Indeed, the lawyer might be the metaphorical slingshot, for which there is no chance of success without one. Stated more clearly, the right to appointed counsel should not be available just for criminal trials. The more intellectually honest and constitutionally-sound dividing line between which forums receive appointed attorneys from those who do not is between public law and private law. Every court proceeding that involves the state or federal government—misdemeanors, habeas, immigration, family law, public housing, disability, public education—must expand their understanding of Gideon and provide appointed counsel to face off against the government. This remedy is the only means to both offset the baked-in asymmetry and ensure reliable outcomes is the appointment of counsel.
RESUMEN: La agresión terrorista ha supuesto, a nivel nacional y internacional, el problema de la creación de un sistema penal de reacción a tal fenómeno. Sin embargo, la necesidad de una contestación urgente ha tenido como consecuencia una incertidumbre general que lleva en sí misma el riesgo de la negación del Estado de derecho para adoptar la lógica del derecho penal del enemigo. Este escrito -a través el análisis de la teoría de Gunther Jakobs, teórico del derecho penal del enemigo- describe las repercusiones, parafraseando a Ferrajoli, de una falta de "asimetría entre Estados de derecho y violencia extra legal". ABSTRACT: The fear of terrorism has created, at national and international level, a criminal law system to react to this phenomenon. The need for a rapid answer to the problem has led to legal uncertainty that carries with it the risk of the negation of the legal state to adopt the logic of the enemy's criminal law. This writing, through the analysis of the theory by Gunther Jakobs, theorist of the enemy's criminal law, describes which are the negative repercussions of a lack of "asymmetry between legal state and extra legal violence" mentioning Luigi Ferrajoli. PALABRAS CLAVE: ciudadano,enemigo,pena,derecho penal,Estado de derecho. KEYWORDS: Citizen, enemy, punishment, criminal law, legal state.
This article examines the preparation of the much-debated War Criminals Decree (WCD) of 4 May 1945 by the Norwegian exile government in London and the courts' later use of the law as the legal foundation for the reckoning with German war criminals. More specifically, we show how two central clauses in the Norwegian Constitution of 1814 were challenged by this decree, which combined national and international law in a hitherto unknown manner, and its use: The principle of legality (§ 96) and the prohibition of retroactivity (§ 97). Our article, based on unpublished documents from the Justice Department's (JD) archives, argues that the government's view 1942–1945 changed from defending these clauses to undermining them, by lowering the judicial bar for the passing of death sentences. It is, however, also argued that the courts, even if they did not challenge the WCD legally, nevertheless through their conscientious treatment of war crimes cases 1945–1949 drastically reduced the law's intended harshening effect on sentences and thus also the significance of its controversial constitutional aspects.
This book is the result of an academic project, funded by the Hercules Programme of the European Commission to study legislation dealing with crimes against the Financial Interest of the EU awarded to the Department of European and Comparative Law within the Faculty of Laws of the University of Malta. The study deals with the notion of criminal law at the European Union level as well as the relationship between the EU legal order and the national legal order. The focus of the study is on the development of EU criminal legislation aimed at protecting the financial interests of the EU, with a focus on cybercrime, fraud and public spending. It starts with the current legal basis in the TFEU, followed by the development of EU legislation in the area as well as the legislation of relevant bodies, such as EPO, OLAF and EUROPOL.0The study tackles how this legislation is being received by the national legal orders, whereby eleven EU Member States are selected based on size, geography and legal systems. These Member States are France, Ireland, Croatia, Estonia, Germany, Italy, Malta, Spain, Latvia, Greece and Poland. A comparative study is made between those sections of EU criminal law dealing with the financial interests of the EU in these Member States to analyse the current legislation and propose future developments. The study, which is led by the editors based at the University of Malta, studies the subject from a European perspective. Besides the European perspective, the study focus on national case-studies, followed by a comparative analysis
