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