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On The Evolution Of Cooperation Systems In Criminal Matters In EU

Posted on:2009-02-24Degree:DoctorType:Dissertation
Country:ChinaCandidate:H MaFull Text:PDF
GTID:1116360242487885Subject:Legal history
Abstract/Summary:PDF Full Text Request
Since the foundation of EU (EC), member states have cooperated in criminal matters in this area for more than 50 years. During this period, transnational crimes and international crimes have been severely threatening the common interests of EU and its member states, especially after the disappearance of the internal borders, the criminals, once they enter the EU, can benefit from the EU-wide policy of"free movement of persons". This phenomenon makes the combating of crimes more difficult.As for the member states, their criminal laws differentiate from each other due to culture, territory and history diversities, so that the criminal law systems of the sovereign states can not effectively react to those severe transnational and international crimes. Thus, only by progressively intensifying the cooperation systems in criminal matters, shall EU and its member states deal with the issue. This dissertation puts the emphasis on analyzing the development of the cooperation systems, together with the integration process of EU in order to find out the most satisfying solution of an effective cooperation.There are five chapters in this article. Chapter one introduces the general development of cooperation in criminal matters in more than 50 years. Chapter two to chapter four respectively analyses the evolvement of there main forms of cooperation system in criminal matters, including extradition, mutual assistance in criminal matters and transfer of criminal proceedings. Based on those analyses, chapter five concludes two main coordination systems from the gradual practice of those three forms. They are"the mutual recognition of decisions in criminal matters"and"the approximation of criminal law"in EU. The last part of the dissertation combines the EU integration process and the development of cooperation systems in criminal matters, and tries to disclose the nature of the whole system.Chapter one divides the whole cooperation process into three periods. In period one (from late 1950s to late 1970s), the member states of EEC cooperated in criminal matters mainly under the framework of Council of Europe by implementing the relative conventions. In period two (from late 1970s to early 1990s), the Schengen system, EEC, and the Council of Europe respectively adopted conventions and agreements to guide the member states'cooperation in criminal matters. In period three (from early 1990s to these days), the Treaty of Maastricht and the Treaty of Amsterdam have built the legal basis for the member states to cooperate in criminal matter in EU. With the further integration of EU, the Lisbon Treaty which brings the cooperation totally to the supranational level will provide the member states with more developed systems in an area of"Freedom, Security and Justice".Chapter two to chapter four successively shows the evolvement of extradition, of mutual assistance in criminal matters and of transfer of criminal proceedings. The conventions and treaties concerned are: the convention of extradition, of mutual assistance in criminal matters and of transfer of criminal proceedings adopted in the framework of Council of Europe, the Schengen Convention, the convention and treaties concerned in the framework of EU, the framework decisions, proposal of framework decisions on EAW and EEW etc, several Green Papers of EU in its"third pillar", and some important judgments made by the European Court of Justice.Chapter five mainly construing the two most important coordination systems applied by the cooperation in criminal matters in EU, namely the mutual recognition of decisions in criminal matters and the approximation of criminal law, which are the results drawing from the analysis of the previous three chapters. Mutual recognition of decisions in criminal matters is called the"corner stone"of an EU area of"Freedom, Security and Justice", whose application may avoid the unpractical unification of the member states'legal systems. By admitting and implementing the executing orders from the issuing states, it can"harmonize"the cooperation system naturally. According to EU treaties, the approximation of criminal law includes the constituent element of crimes and the penalties. Through setting up common minimum standards, the approximation of criminal law may erase the huge difference of legal systems between the member states that would block the cooperation systems in criminal matters. The dissertation recognized that the effective application of mutual recognition of decisions in criminal matters must depend on some comparability or similarity of criminal law systems of the member states which can be reached by the approximation of criminal law, either by legislation or by judicial interpretation in EU.After making a comparative study of the history of EU integration and the history of cooperation in criminal matters, the dissertation shows a growing tendency of EU influence on the member states'cooperation activities, while such influence must be built on the balance of interests of EU and the member states'. The first balance appeared after the adoption of the Treaty of Maastricht in 1992, between the EU's bringing the cooperation system into its"third pillar"and the unanimity voting of member states in the European Committee. The second balance is about the adoption of the Treaty of Amsterdam in 1997, between the legislation and implementation of framework decision and the"democratic deficit"concerned. The third balance is reached when the Lisbon Treaty was signed in 2007, between the EU wholly absorbing the"third pillar"affairs into the supranational structure and the"emergency braking"measure that can be used by the member states. Finally the dissertation pointed out that it is the balancing situation made between the EU and its member states that guarantee the possibility of EU's growing influence on the cooperation systems in criminal matters.
Keywords/Search Tags:European Union (European Community), cooperation systems in criminal matters, EU integration, coordinating mechanism
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