Η αρχή της αμοιβαίας αναγνώρισης δικαστικών αποφάσων: το παράδειγμα του ευρωπαϊκού εντάλματος σύλληψης
Τσόλκα, Όλγα Β.
Ποινικό δίκαιο -- Ελλάδα Criminal law -- Greece
Πάντειο Πανεπιστήμιο Κοινωνικών και Πολιτικών Επιστημών
The subject of this paper is: “The principle of mutual recognition: The example of the European Arrest Warrant”. The paper deals with the introduction of the principle of mutual recognition in the third pillar of the European Union, and its implementation in the project of the European Arrest Warrant.The recognition of judicial decisions previously existed in Greek law before the introduction of the principal of mutual recognition in the third pillar of the European Union, in two cases: the European Convention for the Transfer of Convicts, and article 11 of the Greek Penal Code. The principle of mutual recognition is an evolution of the classical recognition of judicial decisions, which greatly differs from it, in its current form. A complete definition for it cannot be given, as the exact parameters of its application vary, depending on the scope of each case of implementation. It is based not so much on mutual trust -a goal yet to be achieved- but on a volition of trust. Although mutual recognition was first seen as an alternative to approximation, these two should be used equally, as mutual recognition cannot have optimal results without approximation. It should be stressed that, the most important change introduced by the principle of mutual recognition, is that it has brought about a change in the Member States’ perception of territoriality.As far as the implementation of the principle of mutual recognition in the European Arrest Warrant is concerned, it should first be noted that the European Arrest Warrant has substituted the traditional procedures of extradition between Member States, and has brought about considerable changes.The issuing of the framework-decision for the European Arrest Warrant was hastened by the terrorist attack against the United States of America on September 11th 2001. Nevertheless, its scope is not limited to terrorist acts, but covers all crimes, provided that the time frame for their punishment meets the standards set by the framework-decision.Despite the fact that there has been great concern about the abolition of the standard of double criminality for a list of thirty-two offences, and its repercussions on the fundamental rights of the person against whom the European Arrest Warrant has been issued, a breach of rights was not confirmed in this paper. More specifically, no breach of the legality principle (“nullum crimen nulla poena sine lege”) can be caused by the framework-decision and the laws of the Member States implementing it, as the principle in question does not apply to procedural law. However, it has to be noted that the list of offences for which the principle of double criminality is abolished,seems to be too vague, and therefore makes it difficult to draw a definitive conclusion as to whether certain crimes fall within it or not. To alleviate this problem, but also, in order to ensure that no breach of constitutional rights arises from the implementation of the European Arrest Warrant, the best solution would be to apply the “public order” condition, i.e. to set the respect of a hard core of fundamental rights as a “sine qua non” condition of the execution of the European Arrest Warrant.The framework-decision also includes grounds for non-execution, both mandatory and optional. Some of these grounds are relative to the principle of “ne bis in idem”. This principle protects the person who is the subject of the European Arrest Warrant against multiple prosecutions and trials, and consequently, contrary to the usual function of mutual recognition, which is the coercive application of a judicial decision, it prevents Member States from exercising their coercive power against the same person more than once.Last but not least, there are grounds for non-execution relative to the person who is the subject of the European Arrest Warrant being a national of the State of surrender. Concerns that the surrender of Greeks is against the Greek Constitution, were not confirmed in this paper.
Διπλωματική εργασία - Πάντειο Πανεπιστήμιο. Γενικό Τμήμα Δικαίου, ΠΜΣ "Δίκαιο και Ευρωπαϊκή Ενοποίηση", κατεύθυνση Ποινικό Δίκαιο και Θεωρία του Δικαίου, 2008