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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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- Editorial: A Trialogue on regulating data-driven criminal procedure
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Authors: Maša Galič, Lonneke Stevens, Bert-Jaap Koops
Abstract: New Journal of European Criminal Law, Ahead of Print.
This editorial introduces a special issue on the challenges of regulating data-driven criminal investigations, in light of the interplay – or rather, the lack thereof – between criminal procedure law and data protection law. The aim is to bring together scholars from both fields, to facilitate mutual understanding and to present ideas on better aligning these bodies of law to form a comprehensive normative framework. In data-driven investigations, police typically assemble large data sets to build an information position, followed by automated analysis to detect patterns and find evidence of potential crimes. The shift from traditional targeted, “case-seeks-evidence” investigations to data-driven untargeted, “evidence-seeks-case” investigations challenges the current normative framework. Discussing this challenge and the insights offered by the six contributions to this special issue, the authors identify multiple problems: people in criminal law lack knowledge of and therefore undervalue data protection law; data subject rights do not function well in the criminal procedure context; there may be an increasing emphasis on instrumentality in criminal law, at the cost of legal protection; criminal law strongly focuses on legal protection of suspects, particularly during trial, and does not cope well with investigations that never end up in court, nor with the protection of innocent citizens whose data are now also pervasively processed as by-catch in criminal investigations; and the law has relatively strong norms on data collection, but not on data analysis. The way forward lies in evolving towards a system that does not only protect suspects and victims but that systematically incorporates the rights of innocent thirds; developing an integrated and conclusive system of data processing rules in law enforcement, including data analysis and on-going reuse of data; and establishing a system of supervision that is adequately equipped to deal with the new reality of data-driven criminal procedure.
Citation: New Journal of European Criminal Law
PubDate: 2023-11-21T09:03:07Z
DOI: 10.1177/20322844231213484
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- Regulating driving automation in the European Union – criminal liability
on the road ahead'-
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Authors: Sabine Gless, Katalin Ligeti
Abstract: New Journal of European Criminal Law, Ahead of Print.
Technological developments enable modern cars to drive autonomously. The EU has embraced this phenomenon in the hope that such technology can ameliorate mobility and environmental problems and has therefore engaged in tailoring technical solutions to driving automation in Europe. But driving automation, like other uses of AI, raises novel legal issues, including in criminal law – for instance when such vehicles malfunction and cause serious harm. By only pushing for a technological standard for self-driving cars, are EU lawmakers missing necessary regulatory aspects' In this article, we argue that criminal law ought to be reflected in EU strategy and offer a proposal to fill the current gap, suggesting an approach to allocate criminal liability when humans put AI systems in the driver’s seat.
Citation: New Journal of European Criminal Law
PubDate: 2023-11-20T10:31:43Z
DOI: 10.1177/20322844231213336
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- The dangerous increasing support of Europol in national criminal
investigations: An additional layer of complexity-
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Authors: Sarah Tas
Abstract: New Journal of European Criminal Law, Ahead of Print.
Vice President for Promoting our European Way of Life Margaritis Schinas, stated at the time of the adoption of Europol’s amendment that “Europol is a true example of where EU action helps protect us all. Today’s agreement will give Europol the right tools and safeguard to support police forces in analysing big data to investigate crime and in developing pioneering methods to tackle cybercrime.” While some characterized the changes as an achievement for the adaptability and operational role of Europol, others argued that it undermines fundamental rights and weakens data protection. This paper analyses the amendments made to the Regulation and explores Europol’s increasing role of in national investigations and the associated dangers of it. The paper starts with a historical analysis of Europol’s legal framework and role in national criminal investigations, before diving into the core of the Regulation. After 2022, Europol supports Member States’ investigations in many ways. First, through the continuous retention of large and complex datasets, which was strongly criticized by NGOs and the EDPS. Second, through the transformation of Europol into the information hub and broker for the exchanges of data with private parties. Third, more indirectly, through Europol’s support of research and innovation projects, for national authorities to use and explore new technologies in their work. However, these amendments are not without dangers. The Regulation of 2022 pushes the boundaries of Europol’s competences further, by circumventing existing limits and questioning the legality of the operations. The stronger role of Europol lacks sufficient safeguards and efficient oversight. This is highly problematic considering the impact Europol may have on national investigations, and as a result on the situation of individuals.
Citation: New Journal of European Criminal Law
PubDate: 2023-11-10T08:41:38Z
DOI: 10.1177/20322844231214482
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- The principle of purpose limitation in data-driven policing: A guiding
light or an empty shell'-
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Authors: Ruben Te Molder, Masha Fedorova, Marieke Dubelaar, Sjarai Lestrade
Abstract: New Journal of European Criminal Law, Ahead of Print.
Current technological developments fuel the need and opportunities for data-driven policing that criminal enforcement authorities are eager to employ. Data-driven policing implies a combined use of data collected through various methods and for various purposes and begs the question on the limits to be set for the re-use of data for criminal investigation and intelligence purposes. The purpose limitation principle as enshrined in the Law Enforcement Directive (LED) provides those limits. Looking at data-driven policing through the lens of the principle of purpose limitation, particularly two problems are visible. First, there is an inherent tension between data-driven policing and the principle of purpose limitation. In essence, one of the goals of purpose limitation is limiting the aggregation and re-use of personal data, whereas this aggregation and re-use of personal data is one of the main reasons for criminal law enforcement authorities to use data-driven policing methods. Second, the meaning of the principle of purpose limitation and the conditions for its application in criminal investigations are not clearly defined and the precise implications for national implementation of this principle are ambiguous. The paper aims to contribute to the debate on how the principle of purpose limitation can be implemented in national jurisdictions in a way that balances its important safeguarding function and the needs of law enforcement authorities. This is done by examining the meaning and rationale of the principle of purpose limitation within the legal framework of the LED as well as what guidance can be drawn from human rights case law from the ECtHR and the CJEU, as it is widely acknowledged the rationale of purpose limitation is rooted in the need to protect the individuals’ rights to privacy and to prevent abuse of power by the authorities.
Citation: New Journal of European Criminal Law
PubDate: 2023-11-10T01:32:45Z
DOI: 10.1177/20322844231212749
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- To have or have not: Limiting the data available for subsequent use by the
police-
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Authors: Inger Marie Sunde
Abstract: New Journal of European Criminal Law, Ahead of Print.
In search of evidence in criminal investigation police often collect data in bulk, and the question addressed concerns whether the bulk data as a whole or only in part may be deemed available for subsequent use. The article suggests that only data exposed to the police in the digital forensic analysis performed as part of the investigation, should be deemed available for subsequent use. Such data are termed digital assessed information and are contrasted to data whose content is not known to the police. The latter should be deleted or made inaccessible for further use once the original case is finalised. The position is anchored in the criminal procedural principles of purpose limitation and purpose orientation, recognised in case-law related to Article 8 European Convention of Human Rights (ECHR), further validated in considerations of fairness and coherence with the rules for use of excess information in intercepted communications.
Citation: New Journal of European Criminal Law
PubDate: 2023-11-09T10:07:45Z
DOI: 10.1177/20322844231214486
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- Regulating police use of facial recognition technology in the Netherlands:
The complex interplay between criminal procedural law and data protection
law-
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Authors: Maša Galič, Lonneke Stevens
Abstract: New Journal of European Criminal Law, Ahead of Print.
In this contribution, we provide insight into the complex interplay between criminal procedure law and data protection law when it comes to regulating police use of facial recognition technology. By analysing the Dutch ‘Police Deployment Framework for Facial Recognition Technology’, we show that data protection law and criminal procedure do not interact with each other to a sufficient degree in relation to facial recognition technology. We identify several barriers standing in the way of their cooperation, resulting in notable gaps in the system of checks and balances: (1) a different underlying mindset (maximum versus minimum use of data); (2) a different assessment of the required legal basis (proportionality versus strict necessity); and (3) an ineffective web of supervision. We suggest several ideas for filling these gaps and bridging the disconnection: following the approach in existing Dutch law used for the processing of ANPR and DNA data, encoding the less ‘muddy’ rules of data protection law into digital technology itself, and further research on the feasibility of effective supervision by the Dutch Data Protection Authority. Our contribution shows that in order to properly regulate facial recognition technology, scholars need to look beyond the edges of their own fields of law.
Citation: New Journal of European Criminal Law
PubDate: 2023-11-09T10:07:22Z
DOI: 10.1177/20322844231212834
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- The LED’s right of access to one’s data: Loopholes on proper access,
legality review and data protection authority Accountability-
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Authors: Diana Dimitrova, Paul De Hert
Abstract: New Journal of European Criminal Law, Ahead of Print.
Directive 2016/680 (the Law Enforcement Directive (LED)) provides two procedures for the exercise of the rights of access to one’s data: a direct one under Article 14 LED (directly addressed to the law enforcement authority) and an ‘indirect’ one under Article 17 (3) LED, i.e., via the intermediary of the data protection authority (DPA). In the present paper we will argue that the latter procedure should be the exception and the Article 14 LED procedure should be seen as the default. We will analyse the weaknesses of the Article 17 (3) LED provision and then criticize its, in our opinion, flawed implementation into the national laws of Belgium, France and Germany. We will demonstrate that Article 17 (3) LED, as read in light of Article 15 LED on the restrictions to the right of access, might be interpreted incorrectly to allow for the ‘indirect’ access procedure to be evoked abusively. We will argue that it lacks the explicit language to guarantee the decision-making powers of DPAs when deciding what information to communicate to the concerned data subjects when answering their request. We will demonstrate how the examined Member State laws further restrict the powers of their DPAs, which endangers the effectiveness of the ‘indirect’ access procedure because they do not guarantee the accountability, transparency, and proper legality check by the DPAs which are called on to exercise the right of access indirectly.
Citation: New Journal of European Criminal Law
PubDate: 2023-11-07T04:00:46Z
DOI: 10.1177/20322844231214484
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- Digital criminal investigations in Italy. The intersection between data
protection and cybersecurity-
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Authors: Roberto Flor, Beatrice Panattoni
Abstract: New Journal of European Criminal Law, Ahead of Print.
The scope of digital criminal investigations is rapidly expanding, as they have become indispensable in prosecuting not only cybercrime but all kinds of crimes involving digital evidence. Digital investigations often involve a high degree of intrusiveness, granting law enforcement authorities large-scale access to personal data, programs, and systems. As a result, it is essential to critically assess the legitimacy of digital investigations to prevent potential abuses. When balancing the social need for crime control with the protection of citizens’ rights and interests, we find, on one side of the scale, the public interest of countering and preventing serious crime in a digital world. But which parameters must be incorporated on the other side of the scale' While most attention is given to privacy and data protection in European law to regulate the collection and processing of personal data by law enforcement in criminal proceedings, we propose that another increasingly vital interest needs to be factored in as well: the protection of cybersecurity.
Citation: New Journal of European Criminal Law
PubDate: 2023-11-01T06:53:13Z
DOI: 10.1177/20322844231212836
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- The future of data driven investigations in light of the Sky ECC operation
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Authors: Jan-Jaap Oerlemans, Sofie Royer
Abstract: New Journal of European Criminal Law, Ahead of Print.
The Sky elliptic-curve cryptography (Sky ECC) operation is a prime example of a data driven investigation. The collection of approximately 1 billion messages from 70,000 phones paved the way for hundreds of criminal investigations, resulting in numerous convictions in the Netherlands and Belgium alone. This article addresses how the Sky ECC operation interferes with the right to privacy and the right to a fair trial. We examine whether or not, and on what terms, there is a future for data driven criminal investigations. Our main research question is therefore how data driven criminal investigations can be (better) regulated in order to be in line with case law of the European Court of Human Rights. To answer the research question, the main characteristics and legal criteria for data driven investigation are identified. These criteria derived from the right to privacy and the right to a fair trial. Finally, we examine the impact of a violation of these criteria for the use of evidence in criminal proceedings. The research uncovers a disconnection between data protection regulations and criminal procedural law. It highlights that practitioners concentrate primarily on the collection phase, governed by criminal procedural law, whereas the most urgent questions relate to the respect of data protection law and the right to a fair trial. This finding suggests an ongoing discourse relating to the transparency of data driven criminal operations like Sky ECC and the need to address concerns regarding the reliability of evidence.
Citation: New Journal of European Criminal Law
PubDate: 2023-10-30T04:56:06Z
DOI: 10.1177/20322844231212661
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- Editorial NJECL September 2023
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Abstract: New Journal of European Criminal Law, Ahead of Print.
Citation: New Journal of European Criminal Law
PubDate: 2023-08-28T06:05:24Z
DOI: 10.1177/20322844231198975
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- To which prosecution service' Analyzing the way the Union Resolves
Conflicts of Criminal Jurisdiction-
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Authors: Andrew Zuidema
Abstract: New Journal of European Criminal Law, Ahead of Print.
Conflict of jurisdiction is an issue that is not a new problem, but is one that is becoming more prevalent in recent times. This is especially true in the European Union with its four freedoms. One way the Union has tackled conflicts of jurisdiction is through Framework Decision 2009/948/JHA. This measure is designed to handle positive conflicts of jurisdiction, in particular attempting to prevent ne bis in idem violations. Recently the Union established the European Public Prosecutor’s Office, a new measure designed to not only resolve positive conflicts of jurisdiction, but negative ones as well. This article will highlight that the EPPO is not only a prosecution service but also a way to resolve conflicts of jurisdiction. It will do this by conducting a comparative analysis between the two measures by reviewing their respective function, communication, and determination of jurisdiction. Function examines what each measure is capable of doing. Communication examines the way authorities communicate and share information. Determination of Jurisdiction examines the criteria that is used by the mechanism to resolve the conflict. Using these methods will enhance our understanding of the measures the Union has to resolve conflicts of jurisdiction while also highlighting the role that EPPO will play in the years to come.
Citation: New Journal of European Criminal Law
PubDate: 2023-08-01T07:56:28Z
DOI: 10.1177/20322844231191373
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- The influence of the European Public Prosecutor’s Office on French
criminal law-
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Authors: Maria Slimani
Abstract: New Journal of European Criminal Law, Ahead of Print.
The Regulation of 12 October 2017 establishing the EPPO was adopted by 22 Member States and entered into force on 1 June 2021. Being a considerable step towards a more integrated European Union, this new Community body sends a strong message as regards the sovereignty of the Member States. Indeed, it has imposed a transfer of power from the states to the EU, even though the European Delegated Prosecutors are the same magistrates than the national prosecutors who were already exercising their functions under national law. Moreover, as there is no criminal court at the EU level, offenders are prosecuted in front of the Member States’ courts. It is precisely because prosecutions are carried out at national level that the creation of EPPO has directly imposed changes in national criminal law. Therefore, more than a year after its establishment, it is interesting to look at the changes in French criminal law imposed by the creation of the EPPO. Beyond the changes brought about by the law, this article also looks at the challenges involved in the creation of this body, in that it identifies difficulties which urgently need to be reflected upon before considering any extension of the EPPO. Indeed, a reflection is necessary on the protection of the rights of the defense in the procedures carried out by this body as well as on the role of the judge considering the disappearance of the investigating judges and especially the problematic relating to the French prosecutor' status.
Citation: New Journal of European Criminal Law
PubDate: 2023-05-31T02:41:14Z
DOI: 10.1177/20322844231179866
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- Defending victims of cross-border fraud in the EU – A Portuguese view,
including the use of preventive “freezing” of bank accounts under
anti-money laundering legislation-
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Authors: Vânia Costa Ramos, Diogo Pereira Coelho
Abstract: New Journal of European Criminal Law, Ahead of Print.
The Article looks into recovering assets for victims of frauds using the financial system to launder proceeds, against the backdrop of two case-examples and the lessons learned by the authors from their practice as lawyers in Portugal. It sets out relevant EU instruments (Section I) and then turns into the main difficulties and obstacles in practice (Section II). Finally, it addresses the use of preventive suspension of banking operations (“SOB”) under AML laws at the service of the interests of the victims of cross-border fraud. It argues albeit these have not been built or designed bearing victims' interests in mind they are essential to the recovery of the proceeds and their return to fraud victims. The authors propose to reflect on improving such mechanisms, namely by guaranteeing that it is possible to make consecutive blockings that follow the trail of the proceeds of the fraud through the various jurisdictions involved; and also on the pertinence of giving an explicit place to the victim in the legal framework that regulates the mechanisms for the prevention of money laundering, namely by facilitating the access of the victims to reporting channels that allow for a quick activation of such mechanisms (Section III). The piece concludes stating that although multiple mechanisms are available to ensure the protection of victims' financial interests in this context, the articulation and definition of the strategy is highly complex, making the intervention of a lawyer essential. In any event, if there is no swift intervention and freezing of the proceeds at the outset of the detection of fraud, it is as a rule impossible to recover victims' assets. It is ironic that in practice such freezing is at best made possible by AML laws that were not designed having victims' interests at the forefront.
Citation: New Journal of European Criminal Law
PubDate: 2023-05-21T12:45:59Z
DOI: 10.1177/20322844231173913
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- Towards a rights-based approach: victims of violent crime, state-funded
compensation and the European Union-
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Authors: Liam O’Driscoll
Abstract: New Journal of European Criminal Law, Ahead of Print.
This article examines the legal provision of state compensation for victims of violent crime in the European Union (EU). In examining the provisions of Directive 2004/80/EC relating to compensation to crime victims, this article analyses the historical development of EU competencies in the fields of criminal justice and victims’ rights. Additionally, the legislative history of Directive 2004/80/EC is considered, as is the interpretation given to the provisions of this Directive by the Court of Justice of the EU. It is demonstrated that the scope of protection, offered to victims of violent crime through Directive 2004/80/EC, has been limited and uncertain as a result of this complicated legislative history and inconsistent CJEU interpretation. Furthermore, this article examines developments in the context of EU action in the field of state-funded compensation in light of the adoption of both the Lisbon Treaty in 2009 and the Victims’ Rights Directive in 2012. With the recent development of a genuine rights-based approach to victim support in EU law and policy, this article highlights priorities for legal reform at the EU level in the context of state-funded compensation.
Citation: New Journal of European Criminal Law
PubDate: 2023-04-24T07:45:48Z
DOI: 10.1177/20322844231171497
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- An interpretative analysis of the European ne bis in idem principle
through the lens of ECHR, CFR and CISA Provisions: Are three streams
flowing in the same channel'-
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Authors: Ger Coffey
Abstract: New Journal of European Criminal Law, Ahead of Print.
The ne bis in idem principle (procedural defence) proscribes multiple criminal proceedings and punishments for the same criminal offence/conduct, which is predicated on a final verdict of acquittal or conviction by a court of competent jurisdiction. Incorporated as a fundamental human right through Article 4 of Protocol No. 7 annexed to the ECHR and fundamental right safeguarded through Article 50 CFR, the principle is conjoined with the right to free movement of persons through Article 54 CISA. An evaluation of the characteristics, substance, rationale, scope, and limitations associated with the autonomous procedural defence reveals corresponding purposes. CJEU and ECtHR jurisprudence have delineated the scope and limitations of the procedural defence and the two European courts have reciprocally influenced their respective case law. Definitive and practical judicial guidelines on the application of the principle facilitate consistency of approach by diverse national legal systems consistent with the principle of legality. The article provides an interpretative analysis of the procedural defence and associated jurisprudence of the two European courts that aim to ensure consistency of approach by national legal systems notwithstanding the applicability of the margin of appreciation and the principle of subsidiarity. The article concludes with an evaluation of the narrow same criminal offence criterion (idem crimen) commensurate with broader proscribed conduct (idem factum) criterion that is pivotal to the application of the procedural defence and evidently the most litigated aspect of the ne bis in idem principle. The main issue causing tensions between the different streams of case law seems to be the question of the combination of distinct types of proceedings (administrative and criminal), and there is a reciprocal influence of the ECHR and CJEU on this issue.
Citation: New Journal of European Criminal Law
PubDate: 2023-03-22T04:09:22Z
DOI: 10.1177/20322844231160246
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- On the lawfulness of the EncroChat and Sky ECC-operations
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Authors: Georgios Sagittae
Abstract: New Journal of European Criminal Law, Ahead of Print.
Over the last years, cryptodatacommunications have become an important piece of evidence in criminal procedures all across the European continent. Especially due to the EncroChat- and Sky-operations, prosecution authorities were able to arrest and charge a large number of suspected criminals that probably would have remained unnoticed without the data acquired. As a result, the legality of the use of EncroChat- and Sky-data is increasingly being disputed in multiple courtrooms in various European countries. This article will therefore dive into European case law relevant in this respect and will on that basis discuss the lawfulness of both operations.
Citation: New Journal of European Criminal Law
PubDate: 2023-03-15T02:56:30Z
DOI: 10.1177/20322844231159576
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- Principle of proportionality as a threat to criminal-law-related
fundamental rights-
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Authors: Emil Śliwiński
Abstract: New Journal of European Criminal Law, Ahead of Print.
The article argues that the principle of proportionality—a legal tool widely used for balancing competing rights—can be perceived as a threat to criminal-law-related fundamental rights, i.e. mainly the nullum crimen sine lege and ne bis in idem principles. A case study is carried out, of A and B v Norway, Tsonyo Tsonev v Bulgaria (no 4) and Saquetti Iglesias v Spain ECtHR judgments, as well as P16-2021-001 ECtHR advisory opinion and Menci CJEU ruling, heavily relying on the rule-principle distinction (as presented by Ronald Dworkin and Robert Alexy). The conclusion stemming from the study can be described as follows: in some instances ‘inserting’ proportionality into the content of fundamental rights might be inappropriate, i.e. dogmatically flawed and detrimental to the effective protection of these rights.
Citation: New Journal of European Criminal Law
PubDate: 2023-02-11T04:30:33Z
DOI: 10.1177/20322844231158323
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