Shooting from the Hip: Proposed Minimum Rights in Criminal Proceedings throughout the EU

• DOI: http://doi.org/10.1111/j.1468-0386.2006.00324.x
• Author: Robin Lööf
• Published date: 01 May 2006
• Date: 01 May 2006

Shooting from the Hip: Proposed

Minimum Rights in Criminal

Proceedings throughout the EU

Robin Lööf *

Abstract: EU action in the f‌ield of procedural rights in criminal proceedings was expected.

The effects on procedural rights of the EU-propelled increase of repressive, cross-border

eff‌iciency with the application of the principle of m utual recognition could not fail to be

noticed, and doctrinal opinion has been outspokenly critical of the current predominance

of the ‘security’-element over the other two in the ‘area of freedom, security and justice’.

Unfortunately, the proposed Framework Decision on certain procedural rights in criminal

proceedings throughout the EU is a double failure: f‌irst, the Commission’s methodologi-

cal choices betray a cavalier attitude to the limits of EU competence in this area. Second,

it is also a substantive failure in that the rights selected as being ‘so fundamental that they

should be given priority at this stage’ do little to solve the problems actually besetting the

application of the principle of mutual recognition in criminal matters.

I Introduction

The extent to which human rights are respected and protected within the context of its criminal pro-

ceedings is an important measure of a society’s civilisation.1

The above statement is little over 20 years old, but the sentiment that it represents dates

back centuries. From the earliest sparkle of the Enlightenment, the idea that a society’s

state of advancement can be measured by the rationality and humanity of its sub-

stantive and procedural criminal laws has been a mainstay of Western civilisation.2But

even if not read in this thick, evaluative sense, but rather in a thin, descriptive sense,

European Law Journal, Vol.12, No. 3, May 2006, pp. 421–430.

© 2006 The Author

Journal compilation © 2006 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

*Doctoral candidate at the European University Institute, Florence, Italy.

1John A. Andrews (ed.), Human Rights in Criminal Procedure—A Comparative Study (Martinus Nijhoff

Publishers, 1982), p. 8.

2See generally: Montesquieu, De l’Esprit des Lois (Éditions Gallimard, 1995); C. Beccaria, Dei Delitti

e delle Pene (Felice Le Monnier, 1965); J. Bentham, An Introduction to the Principles of Morals and

Legislation (Clarendon Press, 1996) and Of Laws in General (University of London The Athlone

Press,1970); R. Pound, The Development of Constitutional Guarantees of Liberty (Greenwood Press, 1975);

M. Zander,The State of Justice (Sweet & Maxwell,2000); B. Emmerson and A. Ashworth, Human Rights

and Criminal Justice (Sweet & Maxwell, 2001).