Human Rights in European Criminal Law
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Stefano Ruggeri Editor Human Rights in European Criminal Law New Developments in European Legislation and Case Law after the Lisbon Treaty
Editor Stefano Ruggeri Department of Law University of Messina Messina Italy ISBN 978-3-319-12041-6 DOI 10.1007/978-3-319-12042-3 ISBN 978-3-319-12042-3 (ebook) Library of Congress Control Number: 2014958750 Springer Cham Heidelberg New York Dordrecht London Springer International Publishing Switzerland 2015 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. Exempted from this legal reservation are brief excerpts in connection with reviews or scholarly analysis or material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. Duplication of this publication or parts thereof is permitted only under the provisions of the Copyright Law of the Publisher s location, in its current version, and permission for use must always be obtained from Springer. Permissions for use may be obtained through RightsLink at the Copyright Clearance Center. Violations are liable to prosecution under the respective Copyright Law. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. While the advice and information in this book are believed to be true and accurate at the date of publication, neither the authors nor the editors nor the publisher can accept any legal responsibility for any errors or omissions that may be made. The publisher makes no warranty, express or implied, with respect to the material contained herein. Printed on acid-free paper Springer is part of Springer Science+Business Media (www.springer.com)
Acknowledgements This book contains the results of a conference organised in 2013 by my chair of Italian and European criminal procedure at the University of Messina on the main developments occurred over the last years in European criminal law from human rights perspective. This initiative was financially supported by the same University of Messina and the Assemblea Regionale Siciliana (ARS), for which I am truly grateful. A special thank goes, again, to Springer Verlag and in particular to Dr. Brigitte Reschke for her interest in publishing our academic works. I am very grateful to all my distinguished colleagues who have written for this book. Moreover, this work constitutes the second step of a wider project (after Transnational Evidence and Multicultural Inquiries in Europe. Developments in EU Legislation and New Challenges for Human Rights-Oriented Criminal Investigations in Cross-border Cases, also published by Springer Verlag), aimed at promoting both young scholars and students of our University to research activities. This is a very demanding task, which certainly requires many efforts and time by all people involved, but I must admit that watching the results of this work, with all its imperfections, fills me with satisfaction and joy. Finally, as always, I wish to conclude thanking my family, my wife Norma and my two little daughters, Anna Lucia and Maria Isabel, for accompanying me in all the steps of my research path. Thank you all very much! 10 July 2014 Tindari, Italy Stefano Ruggeri v
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Abbreviations AFSJ Area of Freedom, Security and Justice CCP Code of Criminal Procedure CISA Convention Implementing the Schengen Agreement CNAV French National Council for Assistance to Victims DAL Directive on the right of Access to a Lawyer D. l. Decree-Law D. lgs. Legislative Decree EAW European Arrest Warrant ECHR European Convention on Human Rights ECJ Court of Justice of the European Union ECMACM European Convention on Mutual Legal Assistance in Criminal Matters ECtHR European Court of Human Rights EEW European Evidence Warrant EIO European Investigation Order EPPO European Public Prosecutor Office EU European Union EUCMACM Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union EU FRCh Charter of Fundamental Rights of the European Union GIP Italian Judge in Charge of Preliminary Investigations IACMACM Inter-American Convention on Mutual Assistance in Criminal Matters ICCPR International Covenant on Civil and Political Rights INAVEM French National Institute for Assistance to Victims and Mediation JHA Justice and Home Affairs MLA Mutual Legal Assistance MR Mutual Recognition OFPE Execution in the EU of Orders Freezing Property or Evidence OJEU Official Journal of the European Union vii
viii OCTA PD SAP ECMACM TEU TFEU UN MTMACM UN CTOC Abbreviations Organized Crime Threat Assessment Proposal for a Directive Second Additional Protocol to European Convention on Mutual Legal Assistance in Criminal Matters Treaty on European Union Treaty on the Functioning of the European Union United Nations Model Treaty on Mutual Assistance in Criminal Matters United Nations Convention against Transnational Organized Crime
Contents The Development of Individual Rights Protection in European Criminal Law After the Lisbon Treaty... 1 Bernd Hecker Part I Developments in European and Domestic Case Law in Criminal Matters Dialogue Between European and National Courts, in the Pursuit of the Strongest Protection of Fundamental Rights (with Specific Regard to Criminal and Procedural Law)... 9 Antonio Ruggeri The Principle of Nullum Crimen Sine Lege in the Construction of European Criminal Law... 31 Giuseppe Toscano The Nulla Poena Sine Culpa Principle in European Courts Case Law... 47 Giuseppina Panebianco Part II Defence and Language Rights in Criminal Procedures The Right to Information in EU Legislation... 81 Serena Quattrocolo Lost in Translation: Language Rights for Defendants in European Criminal Proceedings... 95 Richard Vogler The EU Directive on the Right to Access to a Lawyer: A Critical Assessment... 111 Lorena Bachmaier Winter ix
x Contents Part III Mutual Recognition and Fundamental Rights: The Protection of the Right to Freedom and the Collection of Overseas Evidence Human Rights Violations and Mutual Trust: Recent Case Law on the European Arrest Warrant... 135 Martin Böse Transnational Prosecutions, Methods of Obtaining Overseas Evidence, Human Rights Protection in Europe... 147 Stefano Ruggeri Part IV Transnational Organised Crime and the Protection of Victims Rights in Criminal Proceedings Transnational Organized Crime and European Union: Aspects and Problems... 201 Vincenzo Militello New Perspectives for the Protection of the Victims in the EU... 215 Tommaso Rafaraci Part V Developments in European Criminal Procedure Law and Their Influence on Domestic Legal Systems: The Italian Perspective The Influence of the Directive 2012/13/EU on the Italian System of Protection of the Right to Information in Criminal Procedures... 229 Giuseppina Laura Candito New Perspectives for the Protection of Personal Data in Criminal Proceedings in the European Union and Repercussions on the Italian Legal System... 261 Federica Crupi The Effects of the Directive 2013/48/EU on the Italian System of Precautionary Measures: Defence Rights in Remand Hearings... 279 Simona Arasi The Impact of Directive 2012/29/EU on the Italian System for Protecting Victims of Crime in Criminal Proceedings... 307 Giuseppe Alvaro and Alessandro D Andrea