Relationship of the EU Framework Decision to the ECHR: Towards the fundamental principles of criminal procedure*
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Relationship of the EU Framework Decision to the ECHR: Towards the fundamental principles of criminal procedure* Boštjan M. Zupančič** · Johan Callewaert***
Published online: 1 June 2007 © ERA 2007
Abstract This article discusses the desirability of EU action to complement the protection offered by the European Convention on Human Rights to suspects in criminal proceedings. Implementation of the mutual recognition principle should not tip the balance too far in favour of law enforcement and prosecution interests. The authors argue that increased efficiency in the protection of basic procedural rights is also urgently needed as a pre-condition for further mutual recognition of criminal judgments. The article also theorises on the harmonisation of criminal procedure in the light of considerations relating to the ‘equality of arms’. Such equality is not naturally present in the criminal process, particularly during police questioning and investigations. Decisions about how far to restrict state power in criminal investigations will depend on the attitude to authority in a particular country.
Prof. Dr. Boštjan M. Zupančič European Court of Human Rights Allée des droits de l’homme, F-67075 Strasbourg, France e-mail: [email protected] Dr. Johan Callewaert European Court of Human Rights Allée des droits de l’homme, F-67075 Strasbourg, France e-mail: [email protected] This paper is based on a presentation given by Boštjan M. Zupančič at the International Symposium on Procedural Guarantees in Criminal Proceedings: Common Standards in the EU, held in the framework of the German EU Presidency in Berlin, 20–22 February 2007. *
Boštjan M. Zupančič, dipl.jur.(Lab.), LL.M., S.J.D. (Harv.), Professor of Law (U.S. and Slovenia), former Vice-Chairman of the U.N. Committee against Torture, former Judge of the Constitutional Court of Slovenia, since 1998 Judge of the European Court of Human Rights in Strasbourg – President of the Third Section. The lecture style of the paper has been maintained. *** Johan Callewaert, Dr. iur.; Deputy Grand Chamber Registrar, European Court of Human Rights, Strasbourg; Lecturer at the German University of Administrative Sciences, Speyer. **
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Boštjan M. Zupančič · Johan Callewaert
Keywords Human Rights · Criminal Procedure · European Convention · Equality of Arms 1. Introduction This paper is composed of two parts. The first part, Section 2, is concerned with the currently topical and politically relevant relationship of the EU Framework Decision on certain procedural rights in criminal proceedings (FD) to the European Convention on Human Rights; The second part, Section 3, addresses what might be called the central dialectic of criminal process. It is hoped that by engaging in this critical analysis, some deeper appreciation will be obtained of the issues underlying current political debates regarding minimum standards in criminal proceedings. We also hope that some guiding principles for future harmonisation debates might emerge from our discussion. 2. Relationsh
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