Max Planck Institute for Foreign and International Criminal Law

The European Union is taking major steps towards the creation of a uniform "European area of criminal justice." An array of measures is based on the principle of mutual recognition of criminal decisions, which was introduced as a guideline in 1999 and led to a perceived revolution of international mutual legal assistance in criminal matters between the EU Member States. According to this principle, the requested State loses its protective functions with respect to the accused and becomes a mere enforcement agency because it can rely on the regularity of the decision of the requesting State. It is doubtful, however, whether these new instruments really led to a revolutionary change of the former system following their integration into the national legal systems.

The study focuses primarily on the various EU instruments to date that are based on the principle of mutual recognition. Employing a "salami tactic," the EU is currently attempting to separate the "Council of Europe system" – regarded as awkward – into the three classic areas of mutual legal assistance. This process is taking place by means of Framework Decisions, whose requirements must be implemented by the EU Member States. In the case of extradition, this occurred by means of the European arrest warrant; in the case of assistance in the execution of foreign judgments by means, for example, of the mutual recognition of financial penalties; and in the case of other forms of legal assistance by means of the European evidence warrant. All of these instruments contribute to the reduction of traditional impediments to mutual legal assistance – by doing away with the verification of double criminality for certain more or less vaguely defined offenses, for example, or by significantly expediting procedure. The new provisos, however, led to implementation, application, and acceptance problems. Taking Germany as an example, this was illustrated clearly by the judgment of the Federal Constitutional Court on the first European Arrest Warrant Act (Europäischen HaftbefehlsG). In the academic sphere, the new principle has been the subject of frequent, fundamental criticism.

Up until now, however, the question of what exactly underlies the principle of mutual recognition of criminal decisions has scarcely been researched. Hence, the goal of this project, on the one hand, is to distill the precise differences between current and previous law and to pinpoint the limits of the principle in the legal systems of the Member States. On the other hand, an assessment of the system needs to be undertaken in order to determine the areas in which the principle might be justified as a new model of cooperation and the areas where changes or improvements are in fact necessary.

This study is based on a normative analysis. In a first phase, the classic principles of mutual legal assistance are examined and compared with the changes brought about by the new EU instruments. The characteristics of the individual areas of mutual legal assistance are considered and the changes systematically documented. In a second phase, the German legislation and case law (following the initial experiences with the European arrest warrant) are analyzed and the problems that arise in practice described. Because of its strong constitutional system and its high regard for the rule of law, the German legal system lends itself especially well to this study. In a third phase, the new system of mutual legal assistance is assessed and reform proposals made.

Initial results of the research show that the criticism levied was, to some extent, unjustifiable. The abolition of double criminality is not detrimental to individual protection because Germany already had a broad understanding of the principle. Rather, the abbreviated deadlines and increased formalism are much more threatening to a fair defense. Transparence and effectiveness suffer further under the inconsistencies in the Law of International Assistance in Criminal Matters (Internationales Rechtshilfegesetz). Hence, the conclusion of the project consists of a legislative proposal that places mutual legal assistance interactions among EU States on a new systematic basis and closes up any loopholes that still exist.

This project is a doctoral dissertation supervised by Prof. Dr. Werner Beulke of the University of Passau.