Pub Date : 2024-07-19DOI: 10.1177/20322844241265238
Silvia Rodríguez-López
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.
{"title":"The non-punishment of human trafficking victims in Europe: A comparative perspective","authors":"Silvia Rodríguez-López","doi":"10.1177/20322844241265238","DOIUrl":"https://doi.org/10.1177/20322844241265238","url":null,"abstract":"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.","PeriodicalId":508076,"journal":{"name":"New Journal of European Criminal Law","volume":"113 43","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-07-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141821199","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-06-06DOI: 10.1177/20322844241258649
Athina Sachoulidou
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.
{"title":"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","authors":"Athina Sachoulidou","doi":"10.1177/20322844241258649","DOIUrl":"https://doi.org/10.1177/20322844241258649","url":null,"abstract":"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.","PeriodicalId":508076,"journal":{"name":"New Journal of European Criminal Law","volume":"1 3","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-06-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141378772","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-06-06DOI: 10.1177/20322844241250201
Ger Coffey
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.
{"title":"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","authors":"Ger Coffey","doi":"10.1177/20322844241250201","DOIUrl":"https://doi.org/10.1177/20322844241250201","url":null,"abstract":"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.","PeriodicalId":508076,"journal":{"name":"New Journal of European Criminal Law","volume":"8 10","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-06-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141380255","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-04-09DOI: 10.1177/20322844241247482
Karolina Kiejnich-Kruk
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.
{"title":"Quo vadis Europa—balancing between efficiency and guarantees in criminal proceedings using the example of EU production and preservation orders","authors":"Karolina Kiejnich-Kruk","doi":"10.1177/20322844241247482","DOIUrl":"https://doi.org/10.1177/20322844241247482","url":null,"abstract":"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.","PeriodicalId":508076,"journal":{"name":"New Journal of European Criminal Law","volume":"137 36","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-04-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140725524","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-01-22DOI: 10.1177/20322844241228675
Gianmarco Bondi
In line with its case-law, in the KL case the Court of Justice of the European Union further reduced the scope of the principle of double criminality in the European Arrest Warrant. This paper serves to critique this decision by taking into consideration the various competing issues at stake and resulting human rights repercussions. Furthermore, it examines the contents and consequences of the CJEU’s interpretation of the said principle, with particular emphasis on the concept of legal interest. Finally, by referring to the judgement in question and the one in the E.D.L. case, this essay advances a different reading of the proportionality of offences and penalties in surrender proceedings.
{"title":"Double criminality and the European Arrest Warrant: current trends and future developments in light of the KL case","authors":"Gianmarco Bondi","doi":"10.1177/20322844241228675","DOIUrl":"https://doi.org/10.1177/20322844241228675","url":null,"abstract":"In line with its case-law, in the KL case the Court of Justice of the European Union further reduced the scope of the principle of double criminality in the European Arrest Warrant. This paper serves to critique this decision by taking into consideration the various competing issues at stake and resulting human rights repercussions. Furthermore, it examines the contents and consequences of the CJEU’s interpretation of the said principle, with particular emphasis on the concept of legal interest. Finally, by referring to the judgement in question and the one in the E.D.L. case, this essay advances a different reading of the proportionality of offences and penalties in surrender proceedings.","PeriodicalId":508076,"journal":{"name":"New Journal of European Criminal Law","volume":"8 9","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-01-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139607224","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-01-21DOI: 10.1177/20322844241228676
Georgios Bouchagiar
Risk Assessment Technologies (‘RAT’) are currently used by criminal courts to evaluate defendants: their risk to reoffend. Despite critique on opacity, complexity, non-contestability or discriminative impact, some courts have favoured RAT-considerations, in light of alleged accuracy, effectiveness and efficiency. This contribution assesses whether and the degree to which RAT can comply with evidence-related rules and fundamental human rights. After detecting key legal challenges in the United States (US), it makes recommendations for the proper regulation and consideration of RAT. It then moves on to the European regime with a view to assessing whether and how it can better tackle RAT-implementations in the criminal justice system.
风险评估技术（"RAT"）目前被刑事法院用来评估被告：他们重新犯罪的风险。尽管存在不透明、复杂性、不可抗辩性或歧视性影响等方面的批评，但一些法院仍因所谓的准确性、有效性和效率而青睐风险评估技术。本文将评估 RAT 是否以及在多大程度上符合证据相关规则和基本人权。在发现美国面临的主要法律挑战后，本文提出了适当规范和考虑 RAT 的建议。然后，文章将转向欧洲制度，以评估其是否以及如何更好地处理刑事司法系统中实施的限制性商业惯例。
{"title":"Is Europe prepared for Risk Assessment Technologies in criminal justice? Lessons from the US experience","authors":"Georgios Bouchagiar","doi":"10.1177/20322844241228676","DOIUrl":"https://doi.org/10.1177/20322844241228676","url":null,"abstract":"Risk Assessment Technologies (‘RAT’) are currently used by criminal courts to evaluate defendants: their risk to reoffend. Despite critique on opacity, complexity, non-contestability or discriminative impact, some courts have favoured RAT-considerations, in light of alleged accuracy, effectiveness and efficiency. This contribution assesses whether and the degree to which RAT can comply with evidence-related rules and fundamental human rights. After detecting key legal challenges in the United States (US), it makes recommendations for the proper regulation and consideration of RAT. It then moves on to the European regime with a view to assessing whether and how it can better tackle RAT-implementations in the criminal justice system.","PeriodicalId":508076,"journal":{"name":"New Journal of European Criminal Law","volume":"15 23","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-01-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139609682","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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