True EU citizenship as a precursor to genuine criminal justice in Europe: an analysis of EU citizenship as it relates to
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TRUE EU CITIZENSHIP AS A PRECURSOR TO GENUINE CRIMINAL JUSTICE IN EUROPE: AN ANALYSIS OF EU CITIZENSHIP AS IT RELATES TO A SUSTAINABLE AREA OF FREEDOM, SECURITY AND JUSTICE
ABSTRACT. This paper traces developments - both legal and political in nature relating to EU citizenship and compares the status quo to what individuals might expect from citizenship particularly within the context of criminal proceedings. Drawing upon debates in political science, it highlights the divergence between EU citizenship and what would normally be associated with any idea of citizenship. Exploring the parameters of European criminal justice and its revolutionary direction of travel, this essay highlights how strongly exposed EU citizens are to enhanced coercive state power within criminal proceedings because of this status. Consequently it advances an argument that reasonable expectations of citizenship are set up to be disappointed in the current context. This is particularly true as the CJEU scales back the protections associated with EU citizenship in the face of political pressure. It argues that the loss of legitimacy the EU may suffer as a result affects not only its relationship to citizens. As the European institutions take action against democratically elected governments viewed as in breach of fundamental EU values, its potential as a policy-laundering governance level in the criminal justice arena is identified as an enormous legitimacy problem. Analysing developments relevant to citizenship from a criminal justice perspective, this paper demonstrates that reform is urgently required. Leaving EU citizenship in its current form - shaped by Executive powers - is argued to expose the EU to legitimacy arguments it cannot win, as well as individual citizens to injustice in criminal proceedings. * Marianne L. Wade Birmingham Law School, University of Birmingham, Birmingham, UK. Email: [email protected]. Reader in Criminal Justice at Birmingham Law School. I am grateful to my colleagues in the Global Law Group, Criminal Law and Evidence Reading Group and the Institute of European Law for their comments during conceptual discussion of this paper, as well as to Anthony Arnull for comments on an early draft. Special thanks are due also to Karen McAuliffe. Bence Leb and particularly Emma Marchant provided research assistance at various stages, for which I thank them. I am furthermore grateful to the KORSE at the University of Freiburg and Prof. Ralf Posher in particular; it was during the Fellowship they kindly provided me with in 2015 (with Brexit not yet a dreaded reality) that my work on this article began. I owe Dr Thomas Wahl thanks for highlighting that opportunity to me.
MARIANNE L. WADE
I INTRODUCTION Citizenship is a concept born of revolution. In the modern era, it is a defining feature of modern liberal democracies and shapes central expectations of those living within them, of a balance struck between executive power and the liberty of individual citizens. These are constellations perhaps not immediately associated with
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