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The mutual recognition of criminal judgments in the EU: will the free movement of prosecutions create barriers to genuine criminal justice?

01 June 2000

Justice and Home Affairs (JHA) officials are currently considering how to implement the principle of EU-wide "mutual recognition" of criminal court orders and rulings. This will ultimately oblige member states to act on each other's pre-trial orders - including arrest warrants, witness summons and evidence seizure - and final judgments. The work forms part of a package of forthcoming EU measures aimed at simplifying and expediting international judicial cooperation. Discussions to date have raised questions as to whether the need to facilitate cross-border prosecutions will be matched by compensatory measures for the defence.

The mutual recognition principle

Frustrated by slow and often ineffective provisions for judicial cooperation, the 1997 Amsterdam treaty paved the way for deeper integration - now termed the creation of a "European legal space". Mutual recognition, applicable to both civil and criminal judgments, is seen as its cornerstone, binding judiciary and process across the EU. UK officials describe the principle as:

decisions taken in one member state should be accepted as valid in any other member state and put into effect on a reciprocal basis.

This approach is seen as the least contentious of three possibilities for renewed integration in criminal law matters. "Harmonisation" involves imposing common, substantive criminal laws, a task many suggest is impossible due to the wide disparity in legal systems. "Approximation" requires agreement on identical or similar definitions of certain criminal offences and procedural rules. The UK - one of the countries pressing hardest for mutual recognition - suggests that the approach is based on:

tolerance of diversity on the basis of mutual confidence and trust in each others' legal systems, as opposed to insistence of uniformity for its own sake.

Where applied, the principle will remove the "dual [or double] criminality" rule where member states can insist that before acting on a request for assistance from another country (through current "mutual legal assistance" or extradition agreements) the matter must also constitute an offence by their own definitions of criminality.

A UK discussion paper drawn up for the EU's K.4 committee in March 1999 formed a basis for the formal political agreement on mutual recognition that was reached last October at the special JHA summit in Tampere (background). The document proposed that:

Judicial decisions which could in principle be brought within the scope of mutual recognition include arrest warrants, summonses to witnesses and defendants, warrants for search and seizure, orders for the production of evidence (such as bank records) and orders for provisional freezing of assets or evidence, eg electronic evidence, especially where speed is critical to preventing the dissipation or destruction of the assets or evidence.

Achieving mutual recognition

Full mutual recognition of judicial decisions is a distant if not inconceivable prospect. The principle is already established in a number of international agreements and mechanisms (examples include the recent convention on community-wide enforcement of driving bans, agreements on the seizure of assets in international fraud and corruption cases, and a resolution on the mutual enforcement of stadium bans given to football hooligans). The 1968 Brussels Convention provides for the enforcement of judgments in civil or commercial matters in another (contracting) state. To widen the scope for mutual recognition in criminal matters, the EU will initially develop arrangements for certain judicial decisions or judgments to be endorsed by the judicial authority in a requested member state, with a presumption in favour of endorsement and limited grounds for refusal. At the same time some of the existing agreements and conventions providing for mutual recognition will be re-evaluated. In the longer term, the EU will aim to progressively make certain decisions or judgments<