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New Journal of European Criminal Law
Number of Followers: 5  Subscription journalISSN (Print) 2032-2844 - ISSN (Online) 2399-293X Published by Sage Publications  [1176 journals]
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- Harnessing AI for law enforcement: Solutions and boundaries from the
forthcoming AI Act-
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Authors: Athina Sachoulidou
Pages: 117 - 125
Abstract: New Journal of European Criminal Law, Volume 15, Issue 2, Page 117-125, June 2024.
Citation: New Journal of European Criminal Law
PubDate: 2024-06-19T03:54:35Z
DOI: 10.1177/20322844241260114
Issue No: Vol. 15, No. 2 (2024)
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- Enforcement of international sanctions as the third pillar of the
anti-money laundering framework. An unannounced effect of the AML reform
and the Sanctions Directive-
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Authors: Stanisław Tosza
Abstract: New Journal of European Criminal Law, Ahead of Print.
The recently adopted Sanctions Directive harmonises definitions and penalties for violations of restrictive measures with the aim of ensuring that criminal law can be used to enforce international sanctions in the European Union. It has also made violations of restrictive measures a predicate offence of money laundering. In parallel, the anti-money laundering (AML) framework is undergoing a significant reform, which includes the adoption of the first AML Regulation (previous legal acts being directives) containing AML duties of obliged entities as well as the establishment of an EU AML Authority. Also, for the first time, due diligence obligations as regards international sanctions will be included among these duties. The combined reading of the Sanctions Directive and the AML Regulation indicates that those duties will be even greater, which will have an outstanding impact on obliged entities, in particular of the financial sector. In fact, the extent of those obligations would justify calling enforcement of sanctions the third pillar of the AML framework. Yet, this aspect – and its consequences – remained fully under the radar of the legislative process. The objective of this article is, first, to examine the role of the AML framework in the enforcement of international sanctions, especially after the Sanctions Directive and the AML Regulation start to be applied and, second, to analyse the impact of including enforcement of international sanctions in the AML framework, on the entities subject to its duties and other actors affected by this framework.
Citation: New Journal of European Criminal Law
PubDate: 2024-08-08T10:11:47Z
DOI: 10.1177/20322844241274166
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- Biological and chemical weapons legislation in the EU: A need for
harmonization'-
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Authors: Barry de Vries
Abstract: New Journal of European Criminal Law, Ahead of Print.
Biological and chemical weapons are a realistic threat for the EU, which requires concerted effort to combat. The EU has sought to be active in this field by incorporating EU-wide export controls and having EU sanctions against individuals suspected of proliferation activities. However, in many regards the national measures of the member states of the EU are still quite divergent when it concerns chemical and biological weapons, especially regarding criminalization. This raises the question of whether continued convergence in this field is necessary. This submission will look at this by discussing the current activities of the EU in this field and contrasting this with the existing legislation in the 27 member states, with a focus on the criminal prohibitions. It will show the gaps that exist within the EU regulation as well as in the national legislation addressing biological and chemical weapons. Art. 83(1) TFEU allows for the harmonization of national criminal legislation in certain circumstances. While chemical and biological weapons cannot fully be captured under any of the existing areas of crime included in Art. 83(1) TFUE, these can be expanded. The existing gaps in the national penal provisions in combination with the EU-wide effects of any potential use or proliferation of chemical and biological agents warrants the expansion of the areas of crime and harmonisation of national criminal law on the basis of Art. 83 TFEU.
Citation: New Journal of European Criminal Law
PubDate: 2024-08-02T08:30:14Z
DOI: 10.1177/20322844241274165
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- The non-punishment of human trafficking victims in Europe: A comparative
perspective-
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Authors: Silvia Rodriguez-Lopez
Abstract: New Journal of European Criminal Law, Ahead of Print.
Human trafficking victims can be subjected, not only to sexual and labour exploitation, but also to the exploitation of criminal activities such as theft or drug production. Besides, due to the nature of trafficking, victims may also face sanctions for their irregular migration status or for the offences committed in an attempt to free themselves. In view of this phenomenon, the Council of Europe Convention on Action against Trafficking in Human Beings, as well as Directive 2011/36/EU, compel member States to take the necessary measures to ensure the non-punishment of trafficked people for their involvement in criminal activities that they have been forced to commit as a consequence of trafficking. Since the approval of these provisions, many countries have adopted diverse policies to fulfil this international duty and prevent human trafficking victims from receiving sanctions. Using a comparative perspective, this paper aims to illustrate and critically evaluate the main challenges regarding the implementation of this clause in Europe. The results underline the persistent need to improve policies focussed on the protection of victims, putting aside punitive logics.
Citation: New Journal of European Criminal Law
PubDate: 2024-07-19T01:15:22Z
DOI: 10.1177/20322844241265238
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- Scrutinising the China’s rules on trial in absentia through the lens of
the extradition law requirements of the European Union and the United
States-
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Authors: Yanhong Yin
Abstract: New Journal of European Criminal Law, Ahead of Print.
China revised its Criminal Procedure Law in 2018 and legislated on the system of “trial in absentia” for the first time in criminal matters. An important aim of the enactment of this Law is to facilitate the extradition of corrupt Chinese officials who fled abroad. European countries and the US are the main destinations to which China’s extradition requests are issued. This article evaluates China’s system of trial in absentia using as benchmarks the rules on trial in absentia in the US’s extradition system and in the European Union’s extradition system. This research finds that China’s legislation on trial in absentia system needs more clarification regarding individual rights protection in order to satisfy the US’s and European extradition standards. At the same time, the overall development of China’s criminal justice system which affects China’s general international image also concerns the particular function of trial in absentia procedure in China’s extradition cooperation with the US and the European countries.
Citation: New Journal of European Criminal Law
PubDate: 2024-06-21T10:54:53Z
DOI: 10.1177/20322844241265348
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- New challenges and issues for climate protection in European Criminal Law
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Authors: Tomohiro Nakane
Abstract: New Journal of European Criminal Law, Ahead of Print.
Climate protection through criminal law is the subject of growing international discussion. The Commission’s 2021 proposal on environmental criminal law and the Council of Europe’s 2023 draft Convention on environmental criminal law contain provisions on climate protection. In addition, new EU Regulations and Directives related to climate protection have been proposed and adopted in recent years. Although the role of environmental criminal law has been limited in the past, the role of environmental criminal law in European criminal law has been receiving increased attention in recent years in response to climate change and the discussion on the introduction of the crime of ecocide into the Rome Statute. This article identifies how the Commission’s proposal and the draft Convention will contribute to climate protection. It then identifies issues with these provisions and areas for future improvement for climate protection.
Citation: New Journal of European Criminal Law
PubDate: 2024-06-20T09:15:09Z
DOI: 10.1177/20322844241261156
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- Exceptions to the Ne Bis in Idem Principle in the Context of Articles 54
and 55(1)(b) CISA and Compatibility of Declarations Not to be Bound by
that Principle with Articles 50 and 52(1) CFREU-
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Authors: Ger Coffey
Abstract: New Journal of European Criminal Law, Ahead of Print.
The judgment in Criminal proceedings against MR (Generalstaatsanwaltschaft Bamberg) Case C–365/21 was delivered on 23 March 2023 wherein the Court of Justice of the European Union (CJEU) examined the complex interrelated issues concerning Article 54 CISA interstate application of the ne bis in idem principle (in the context of free movement of persons), Article 55(1)(b) CISA exceptions to the application of that principle, Article 50 CFREU interstate application of the principle (in the context of a fundamental right), and Article 52(1) CFREU limitations to the application of that principle subject to the principle of proportionality. The CJEU examined the compatibility of declarations not to be bound by the application of Article 54 CISA commensurate with Article 55(1)(b) CISA in the context of a criminal organisation and financial crime, offences against national security or other equally essential interests, and the compatibility of such declarations with Article 50 and Article 52(1) CFREU. The CJEU ruled that Article 55(1)(b) CISA exception to the principle was compatible with Article 50 CFREU. This is the first CJEU judgment on exceptions to Article 54 CISA and compatibility of declarations not to be bound by that principle with Article 50 CFREU. This article examines the significance and implications of the judgment within the area of freedom, security and justice.
Citation: New Journal of European Criminal Law
PubDate: 2024-06-06T10:58:35Z
DOI: 10.1177/20322844241250201
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- Cross-border access to electronic evidence in criminal matters: The new EU
legislation and the consolidation of a paradigm shift in the area of
‘judicial’ cooperation-
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Authors: Athina Sachoulidou
Abstract: New Journal of European Criminal Law, Ahead of Print.
As the ‘cyber’ element infiltrates a significant part of criminal activity, the significance of accessing electronic evidence has risen to a critical level. The storage of this evidence outside the investigating jurisdiction prompted law enforcement authorities to actively explore avenues for collaboration with private service providers on a voluntary basis. This has resulted in the establishment of an informal channel of cooperation, running parallel to those established through mutual legal assistance and the principle of mutual recognition. The EU legislator has recently formalised this type of cooperation by adopting the Regulation (EU) 2023/1543 on European Production Orders and European Preservation Orders for electronic evidence, along with the Directive (EU) 2023/1544. This article provides a comprehensive overview of the key provisions of this Regulation and reflects critically on the paradigm shift the latter seems to expand with respect to the privatisation of law enforcement tasks.
Citation: New Journal of European Criminal Law
PubDate: 2024-06-06T01:20:38Z
DOI: 10.1177/20322844241258649
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- The interplay between environmental crime and corporate sustainability due
diligence-
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Authors: Beatriz Albuquerque
Abstract: New Journal of European Criminal Law, Ahead of Print.
Environmental crimes are a growing concern of today’s society, as are human rights violations committed by corporations. The European Union has defined both topics as legislative priorities and put forward two legislative instruments to better regulate these issues. On a first glance, there is no connection between these topics. However, this paper suggests that there is such a connection, and that the excellent timing of the proposals, which are being discussed at the same time, should be seized. This paper thus argues that the proposal for an Environmental Crime Directive should encompass a human rights approach by criminalizing the violation of serious due diligence obligations of the Corporate Sustainability Due Diligence Directive. Through a detailed analysis of the legislative drafting procedure leading to the proposal for an Environmental Crime Directive, this paper will assess whether such human rights approach is possible and whether it should be followed.
Citation: New Journal of European Criminal Law
PubDate: 2024-05-31T04:34:50Z
DOI: 10.1177/20322844241253182
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- Transgender behind bars. The transgender pains of imprisonment in the
light of the emerging and advancement of human rights protection for
transgender prisoners within the Council of Europe context-
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Authors: Pauline Jacobs
Abstract: New Journal of European Criminal Law, Ahead of Print.
Prison systems are traditionally binary systems, as prisoners are either placed in a male or a female prison facility. In the literature, transgender prisoners are identified as a vulnerable group, due to the heightened risk of human rights violations such as violence, abuse, sexual exploitation, stigma and discrimination. Maycock, building upon the theory on the ‘pains of imprisonment’ by Sykes, has identified specific pains of imprisonment to consider the particular deprivations or frustrations that transgender people experience within prison settings. In this article, the central question is whether the human rights framework as developed within the Council of Europe has put forward human rights norms for the placement and treatment of transgender prisoners to deal with these specific pains of imprisonment and to provide protection to transgender prisoners against additional suffering in prison. To ensure safe and humane prison conditions for the vulnerable group of transgender prisoners adequate human rights protection is of the utmost importance. Combining the criminological theory of the transgender pains of imprisonment with the human rights based approach this article makes a novel contribution to the study of transgender people in custody within the Council of Europe context. This approach will shed light on this often overlooked group of vulnerable persons in European prisons. The findings are not only based on theory, but also illuminate current practices in the Council of Europe Member States, as Maycock’s theory of the transgender pains of imprisonment is based on interviews with 13 transgender people in custody in the Scottish penal context and the country reports by the CPT provide evidence of penal policies and practices on the placement and treatment of transgender prisoners in 10 different Council of Europe Member States.
Citation: New Journal of European Criminal Law
PubDate: 2024-04-27T05:13:56Z
DOI: 10.1177/20322844241250222
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- Quo vadis Europa—balancing between efficiency and guarantees in criminal
proceedings using the example of EU production and preservation orders-
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Authors: Karolina Kiejnich-Kruk
Abstract: New Journal of European Criminal Law, Ahead of Print.
European Union (EU) legislative actions in the area of criminal proceedings focus on the improvement of the safeguards and procedural guarantees of suspects and the accused (e.g., Roadmap directives) as well as on enhancing the efficiency of criminal proceedings with the aim of effective prosecution and crime prevention. The newest examples of the latter are EU Production and Preservation Orders in criminal matters (EPOs). The Author analyses the relation between the EU safeguards and the fundamental rights of the suspects and the accused and the EPO regulation. The Author shows incoherences that occur in this field, especially regarding the right to an effective remedy and the right to information, proposing amendments in these fields.
Citation: New Journal of European Criminal Law
PubDate: 2024-04-09T10:31:29Z
DOI: 10.1177/20322844241247482
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- Regulation (EU) 2018/1805: Mutual recognition of freezing and confiscation
orders between efficiency and safeguards. “Proceedings in criminal
matters” and non-conviction based confiscation-
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Authors: Anna Maria Maugeri
Abstract: New Journal of European Criminal Law, Ahead of Print.
December 2020 saw the entry into force of Regulation 1805/2018, the adoption of which is a doubly important event: first, because it confirms the principle of mutual recognition in this sensitive area, following Framework Decision 2006/783/JHA; second, because it establishes mutual recognition by means of a directly applicable legislative measure, a Regulation, adopted in accordance with the ordinary legislative procedure pursuant to Art. 82 (1) TFEU. In order to understand the scope of the Regulation – what types of domestic confiscation are covered – it is important to interpret the EU autonomous concept of “proceedings in criminal matters” (art. 1), “notwithstanding the case law of the European Court of Human Rights” (recital 13). To increase enforcement, it will be crucial to improve harmonisation through the new proposed Directive (May2022).
Citation: New Journal of European Criminal Law
PubDate: 2024-03-27T08:02:13Z
DOI: 10.1177/20322844241239781
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- Independence of the European Public Prosecutor’s Office in the context
of the appointment procedures-
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Authors: Balázs Márton
Abstract: New Journal of European Criminal Law, Ahead of Print.
The personal independence of the European Chief Prosecutor and European Prosecutors is a prerequisite of the independence of the European Public Prosecutor's Office. Based on the experience of the first selection procedures and a combined examination of EU law, areas of vulnerability can be identified which could jeopardise their independence. The definition, measurement and doctrinal positioning of prosecutorial independence, such as its separation from autonomy and accountability, is not a simple task in case of a supranational prosecutorial body. However, there are international expert bodies that have drawn attention to the central importance of guarantees in selection procedures and transparency in ensuring prosecutorial independence, which also underpins public confidence in the process. Although there are institutional safeguards in the selection procedures for the European Chief Prosecutor and the European Prosecutors, the shortcomings of the legislation have been exposed by the shortcomings in the selection procedures. There is insufficient transparency in the selection of the members of the selection panel and in its functioning. In addition, the legislation does not categorically exclude the possibility that political considerations without a legal basis may be introduced into the selection process. The EU regulation governing the functioning of the European Public Prosecutor's Office and the operating rules of the selection panel should also be amended to ensure full transparency of the criteria used to select the members of the selection panel and the assessment of the selection panel during selection and ranking of the prosecutors. In addition, the relevant EU regulation should be amended to make the decision-making process in the Council of the European Union more transparent and to stipulate that the Council of the European Union and the European Parliament may base their selection decisions only on the criteria set out in the applicable legislation and the opinion of the selection panel.
Citation: New Journal of European Criminal Law
PubDate: 2024-01-30T11:58:25Z
DOI: 10.1177/20322844241228721
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