Wednesday, November 14, 2018
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Editorial

​The attitude of the representatives of the Member States

The European Union Court of the Justice's contributions in a line of European integration and first doubts, if not rejections, of national jurisdictional bodies has to necessarily influence a political negotiation process that, although at a steady pace, continues to move forwards. Hence my interest in also taking the pulse of the negotiating spirit of the governments in an area in which, although the forms of community cooperation are being assimilated, the fundamental role is still played by governments, to the detriment of both the European Parliament and the National parliaments.


Tribunal Europeo Derechos Humanos


In relation to the delivery of Spanish nationals to German authorities, the National Audience Agreement seems to radically exclude it. This conclusion should be analyzed in light of the 5th legal basis of the Constitutional Court ruling 87/2000:


"Thus, the surrender of a national to a State requesting their extradition may have constitutional relevance even if the Spanish Constitution does not establish an absolute prohibition such as that contained in the constitutional texts of other countries, since Article 13.3 only prohibits extradition for political crimes, nor does said prohibition derive directly from the content of the constitutional rights subject to protection... on the contrary, before extradition requests covered legally by the European Convention on Extradition, which empowers States for the surrender of nationals, cannot be understood, in principle, that the delivery in the specific case is arbitrary, because, on one hand, as we have just stated, the existence of the Treaty constitutes at least an indication of the minimum constitutional and juridical-penal homogeneity necessary to clear the possible distrust of inequality that prosecution under the laws of another State can arouse.


THE PROTAGONISM OF BUREAUCRATIC STRUCTURES


And, on the other hand, it cannot be forgotten that the extradition of nationals in the scope of the countries that signed the Rome and Italy Conventions, cannot raise general suspicions of infringement of the State's duties of guarantee and protection of constitutional rights of its the general public, given that these are countries that have acquired a specific commitment to respect human rights and that have voluntarily submitted to the jurisdiction of the European Court of Human Rights, the ultimate guarantor of the fundamental rights of all with independence of the different legal cultures of the signatory countries of said Convention. In this context, the affirmation of the Order of the Plenary of the National High Court (legal basis 3) has to be inserted that the Italian legislation guarantees a trial with all the guarantees within the framework of the European Convention of Human Rights, since with it an implicit referral to public resources minimum status in the matter of fundamental rights is being carried out, and, in any case, to the fact that the European Court of Human Rights is, ultimately, also the guarantor of the fundamental rights of Spaniards".


Without forgetting either the validity between Germany and Spain of the Convention of Extradition between member states of the EU of 1996 and the Spanish declaration on the admission of delivery of nationals, conditional on the return to Spain to serve a sentence, but without the obligation to reciprocity.


In general terms, we can say that the times in which strong pressure, particularly as a result of the attacks of September 11th, 2001, all the weight is applied at the highest political levels are over. Now, in addition to less political tension, we cannot ignore that it is the national bureaucratic structures that have received it and are fully aware of the direction of the European Judicial Area and leave their mark on the legislative texts that are approved. This is far removed from the enthusiasm with which, for example, then British Minister of Home Affairs, Jack Straw, launched the reform of the British extradition law to prevent their successors from being involved in a matter of duration and the political implications such as the request for Pinochet's extradition to Spain. If we add to this the constitutional uncertainties and add the shared conscience of having to support the rule of unanimity for a few more years -unless someone remedies it, for example, making use of the so-called catwalk clause of Article 42 TEU that allows transfer certain powers of police cooperation and criminal justice to community scope- the present moment of waiting or impasse is not surprising.


I will refer to three of the signs that can give us an idea of the times which we live in. In the first place, what I would call the resurrection of the old ghosts of judicial cooperation. I will cite two examples of elements apparently overcome with the new forms of cooperation that some are now trying to claim, frightened - seemingly- by the effects of the bold bet of mutual recognition. On one hand, the role of the central governmental authorities in a European Area that seeks to prioritize the judicialization of the decision and direct contact between the authorities. 


After a few Framework Decisions that have gone in the correct direction, some are now trying that the Ministries of Justice could have a deciding role that, at least on the tenor of the European norm, they had already lost.


Secondly, the recovery of the concept of "national security" as a reason or motive for denial of cooperation between states belonging to the Union.


CONCERN ABOUT LEGAL TECHNIQUE


A second indicator may be the reaction to the Pupino ruling. The effect is, perhaps, still not pronounced, but manifests itself in a certain concern for the legal technique to be used in the future: the doubt between generic or concrete regulation, on principles or on precise provisions. Bear in mind that it will then apply to the judicial authorities and that the principle of consistent interpretation proclaimed by the Court of Justice in that judgment may saturate, if the European standard is very general or of principles, the development initially foreseen by the national legislator.


As a third gauge, the reaction to the sentence of ecological crime, with the transfer of a non-negligible dose of the penal competence of the member states to the European Community.


In this case, the main concerns are of a different nature. On one hand, there is concern about a reaction from the Commission and the European Parliament that leads to an inflation of the European criminal response. This is to say, the fear that, if Community power becomes recognized, disproportionate reaffirmation of legal rights, including in the Commission's proposals or claiming by the European Parliament in co-decision, that compliance with the obligations imposed is guaranteed by criminal sanctions, in contradiction with the principle of minimum criminal intervention that is commonly accepted in the constitutional traditions of the member states.


On the other hand, the evidence of a Council of Ministers of the Union that is legally a single institution, but acts in different groupings, depending on the material powers exercised, raises another second order of reflections, linked to the search for a procedure that allows the coherence of the Union's criminal policy to be ensured. In other words, what is to be avoided is the lack of proportionality of the European criminal response that results in the imposition of criminal sanctions for minor offenses or in which other types of sanctions are more effective in reality -beyond the mere political effect or public manifestation of the action of the European Institutions-. Here it should be understood that the procedure established will encounter some bureaucratic resistance, but all should be at the level required by the relevance of a decision that ultimately affects the personal freedom of the European citizen in many cases.


I conclude this evaluation of the state of the European Judicial Area in criminal matters. There are reasons to continue maintaining Europeanist optimism but we should not ignore a reality that is not exempt from difficulties. These were referred to in a conference given at the beginning of this journey by the then French Minister of Justice Elizabeth Guigou, when she affirmed that the European political Union will exist to the extent that this Judicial Area is a reality, "an area so consubstantial to the sovereignty of States at the same time as the daily life of European citizans." Now, I end this discourse by invoking another of the most universal passages in our literature: "To do this, we will have the heart, in the sense in which this word is used in El Cid, that is, will we have the political courage in this area to get over prejudices and conflicts?"


Fragment of "Is the European judicial area at a crossroads?" Publications of the Ibero-american Portal of Criminal Sciences. Institute of European and International Criminal Law. University of Castilla-La Mancha http://www.cienciaspenales.net/files/2016/10/4irurzun-es.pdf

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