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The Law of the Lisbon Treaty

The Law of the Lisbon Treaty. Our emerging European Criminal Process ?. Professor Dermot P.J. Walsh School of Law University of Limerick. The way we were. Notion of a European criminal process implausible

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The Law of the Lisbon Treaty

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  1. The Law of the Lisbon Treaty

  2. Our emerging European Criminal Process ? Professor Dermot P.J. Walsh School of Law University of Limerick

  3. The way we were • Notion of a European criminal process implausible • Irish criminal law and justice are an expression of our sovereignty and part of what we are • Change in the basic architecture of criminal law and justice comes slowly

  4. Changes unprecedented in speed and scope since the demise of the Brehon law system Currently happening under our noses The Lisbon Treaty will give it a significant boost Euro Changes

  5. The criminal process • Police • Prosecution • Courts • Sanctions • Substantive criminal law

  6. Europol • European Drugs Unit • Europol Convention 1995; Protocols • Initial remit narrow but soon expanded • An advisory and support body for national forces

  7. Europol • Treaty of Amsterdam 1999 introduces a more operational role • Competence and powers set to be enhanced further by an EU Decision in 2010

  8. Europol and Lisbon • A more open-ended remit • Europol officers on the ground with gardai • EU operational powers for Europol officers and gardai • A European police force operating alongside, and even directing, gardai

  9. Other police developments • Schengen • Cross border surveillance • Hot pursuit across borders • Joint investigation teams

  10. Eurojust • Initially set up on an informal basis • Prosecutor, police officer or judge • Status and powers determined by national law • Broad remit

  11. Eurojust • Advisory role to national authorities in prosecutions/investigations • Competent to request prosecutions • Proposed EU Decision will significantly enhance powers and functions

  12. Eurojust and Lisbon • Power to initiate criminal investigations and, arguably, prosecutions • Establishment of a European Public Prosecutor from Eurojust

  13. European Public Prosecutor • Power to investigate, prosecute and bring to judgment • Functions of prosecutor in national courts • Investigative role • Remit limited but expandable

  14. A European Criminal Court • Mutual recognition of judicial decisions • Evidence • Pre-trial orders and post-conviction penalties • An Irish court as a Euro court

  15. Lisbon and the Irish Euro Court • EPP prosecutions • EU rules of evidence and procedure • EU rules on judicial review • A prosecution by the EPP using EU rules of procedure and EU rules of evidence

  16. Sanctions • Free movement of penalties • Transfer of prisoners • Enforcement of financial penalties and the confiscation of criminal assets

  17. Sanctions • Mutual recognition of disqualifications etc • Mutual recognition of alternative sanctions, suspended sentences and probation • Free movement of criminal records

  18. EU substantive criminal law • EC criminal law related to single European market • Treaty of Amsterdam gives EU competence to legislate for common criminal offences and penalties

  19. Substantive Criminal Law • Trafficking in persons • Child pornography and prostitution • Confiscation of criminal assets • Counterfeiting non-cash instruments • Facilitation of irregular entry or residence • Drug trafficking • Terrorism • Protecting the EU’s financial interests • Corruption • Attacks on information systems • Intellectual property rights • Organised crime

  20. Lisbon and substantive criminal law • Confirms and strengthens EU competence • EU definitions and sanctions for serious crimes with a cross-border dimension • EU criminal laws to implement EU policies

  21. What emerges from all of this ? • Architecture of traditional Irish criminal process undergoing a period of rapid and fundamental change • Changes reflect the emergence of a distinct EU criminal process • Lisbon takes these changes to a higher level • A opt out will not change the underlying reality

  22. Why is it happening ? • Free movement of criminals must be countered by the free movement of criminal justice • Distribution of EU € billions must be protected by EU mechanisms for combating fraud

  23. Achtung! • A community’s sense of identity and familiarity with its criminal law must be preserved • Must ensure that effective remedies are available to correct mistakes and abuses in the Euro process

  24. Achtung! • Fundamental values of transparency, accountability, democracy, human rights and the rule of law must be protected • There are positives on some of these fronts in the Lisbon Treaty

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