European and International Justice, Home Affairs and Security
Policy
1. Introduction to European JHA integration
1.1. JHA-policy areas
- Asylum, migration, border-crossing …
- (judicial cooperation in civil matters)
o We are not seeing this, in this class
- Criminal law/policy
o Substantive criminal law (formeel)
§ = what constitutes crime, and what are the oCenses and what are the
sanctions of these oCenses
o Criminal procedural law (materieel)
§ = what are the rules of play, of crime fighting and investigating crime
§ What are the diCerent parties
§ What techniques and methods are allowed, what about the admissibility of
evidence…
à We have both on at a domestic level, but international levels may impact
substantive criminal law and procedural criminal law. It remains to be seen ofc
whether or does international levels will set foot on ambiance areas because it’s
quite sensitive if you think about it
§ If you allow an international level to impact your national criminal law, it’s
quite a step because it’s very sensitive. It connects closely with your own
culture as a democracy or jurisdiction in general
§ It is also explanatory for the fact that the EU level will only be granted certain
powers in those two areas quite late in time
o International co-operation in criminal matters
§ Judicial co-operation
§ Police and customs (law enforcement) co-operation Classification used by the Eu
à We may have our own criminal law in principle and criminal procedures, but
crime is obviously not limited to national territories. Crime may be international
because some groups operate on an international scale. Some is local, but they
invest the money in other countries (by example purchasing a villa in Croatia) and
to confiscate the villa you need to go for the money and be able to corporate with
Croatia assets
- ‘Security’
o Not a separate dimension
§ Migration border crossing asylum, criminal policies they are both linked to
security for citizens and societies
o Broader (breeder) notion
§ Many more actors are contributing today to the building of security that
includes the military defence and intelligence services…just to name two
§ We go beyond EIJHAS and we will try to also include other domains that are
contribute to the goal of building a secure society
1
,1.2. Principal JHA cooperation levels
Levels (wat hij gaat behandelen, maar zullen niet alles van A-Z zien. Soms gewoon om te duiden
waarom er andere zaken nodig waren gezien deze organisaties niet (altijd) werkte)
- Council of Europe (hereafter: CoE) (limited unless for EIJHAS course)
- European Union (EU)
- Schengen (including Prüm)
- Benelux, NATO, OSCE, G7/G20, OECD, UN (EIJHAS course only)
- handbook: origin and historical development, institutional structure and functioning,
policy, (selective bibliography)
Transversal European JHA integration overview
- During 5 joint classes
- Transversal, i.e. cross-level character
o Rationale: institutional and policy dynamics are interwoven
o Not (entirely) following handbook/paragraph order
1.3. Council of Europe (de bondt gaat hier verder op in)
1.3.1. Development & mandate
- 1949
o There comes a gathering after a call by Winston Churchill that we needed sort of a
United states of Europe to overcome the issues we had in the second world war
- 1950 ECHR | ECtHR
o The gathering immediately led to its first convention, the European Convention
Human Rights and fundamental freedoms
o Its convention number one of the Council of Europe
- Today: 46 countries
o Russian Federation: 28 February 1996 - 15 March 2022
§ We had 47, but Russia needed to step down and has been a member from
1996 until 2022
§ The CoE critical looks at several societal dimensions which matter in allowing
a state to be a member of the council of Europe. If you discontinue to stick
with certain fundamental rights, you aren’t eligible as a member
o CoE counts 46 countries and the EU counts 27, so roughly twenty more. That is
because the CoE and the EU are two totally diCerent organisations!!!
o In the EU you have important bodies like
§ the Council of the European Union (not the same as the CoE)
§ and the European Council which is the gathering of heads in state and
government of the EU
à Both are very di=erent form the CoE!
- Intergovernmental cooperation
o Intergovernmental ó supranational
§ Supranational = the nation states have decided to give away certain powers
to a level above them. Legislative power
o This has never happened at the council of Europe and will never happen because
it’s a level where states decided too corporate
2
, § Find and built common ground and common instruments with no
supernational power for the CoE
§ Which is a flaw clearly because it makes the club quite weak, as an
organisation. It means that the organisation itself cannot and may not to sort
of take any decision on behalf of one of the Member States
• (a supernational organisation would have be able to!)
- Legal instruments
o Conventions, resolutions, recommendation
§ Resolutions and recommendations are in principle not binding
§ Conventions may become binding, not as form the moment they are
concluded
• Are being negotiated and after they have been fully negotiated, they are
being signed meaning there is a text
• Nothing has happened, until states take things further and are going to
seek authorization of the parliaments or authorization in their
population at large power through a referendum
• If there is a positive outcome of a referendum, or by the parliament by
which they approve they may move to the stage of ratification
o Conventions: seemingly strong, still weaknesses
§ The organisation has a lot of conventions that need to be ratified, and the
organisation is incapable to control that.
• Example: 1957 European Convention on Extradition was signed by
Belgium. And it took Belgium forty years to move to the state of
ratification
§ Hard law if ratified by the states and it’s the choice of the states if you either
do it or not, it’s not because you are a member of the CoE that you must ratify
a convention that you have negotiated.
§ You may think that if they are irrelevant because they’re non-binding, but we
see that in certain area’s you would see that states are not more compliant
with binding instruments than with not-binding instruments
• Example: European prison rules
• All the soft work is extremely helpful to raise the standard of prison
conditions
- Broad mandate, including penal matters
- Judicial co-operation in criminal matters (mother conventions)
o The mother conventions on which all the rest builds
o All the EU members Member States obviously are part of the Council of Europe
(CoE), and in the beginning all they had to work with was the mother convention
- Judicial co-operation in criminal matters & criminal policy (including aspects of
substantive criminal law and criminal procedural law) regarding specific topics and/or
particular oCences
o Sometimes the CoE’s work, especially trough the legal instruments, may impact
aspects of substantive and procedural criminal law
3
, o For the council of Europe is also immediately capable to set foot on the area if
substantive or procedural criminal law
§ You can conclude a convention that impacts the substantives of criminal law,
and if the state wishes to be bound, then there will be an impact, right? It
doesn’t mean that there is supranational power for the CoE to enact
legislation, but there is a possibility for the states to intergovernmentally sit
together an conclude an instrument that will then impact their criminal law
whenever they want to be bound by the instrument.
§ Example: Istanbul convention to fight violence against women, and obviously
when you ratify that convention it will oblige you to criminalise certain
behaviour like rape.
1.3.2. Judicial cooperation
Di=erent Mother conventions in criminal matters à niet vanbuiten leren, zijn gewoon een
voorbeeld en ook vrij belangrijk gezien het wel de motherconventions zijn. Korte beschrijving van
wat ze zijn verder niet te ver op ingaan.
- 1957 European Convention on Extradition | 3 Protocols
- 1959 European Convention on Mutual Assistance in Criminal Matters | 2 Protocols
o Rember the term
o About search abroad, about seizure of a gun in house in Budapest or intersection of
telecommunication that you were having in a taxi while driving over a border
- 1964 European Convention on Supervision of Conditionally Sentenced/Released
OCenders
o The CoE wanted to make it possible for people who would be conditionally released
to be allowed free movement. Typically, when you are conditional released, you
need to remain under supervision of a probation oCicer for instance. This treaty
allowed you to move from Belgium to France and that convention could be a vehicle
to transfer oversight from a Belgium oCicer to a France privacy oCicer in the region
where you would like to establish your life.
- 1970 European Convention on the International Validity of Criminal Judgements
o Fines, confiscations, deprivation of liberty, monitory sanctions
§ This convention allows to transfer these across borders
§ In the example of the villa of Croatia this convention could be used
- 1972 European Convention on Transfer of Proceedings
o Very poorly ratified, failed a bit
o Transfer the prosecution possibility to another state that has no connection with
your oCense nor with you which is very far reaching
- 1983 Convention on the Transfer of Sentenced Persons | Protocol
- 1990 Laundering Convention | Protocol
- 2001 Cybercrime Convention | Protocol
1.3.3. Crime & criminal policy
- Judicial co-operation in criminal matters /criminal policy with regard to specific topics
and/or particular oCences (sometimes part of the JHA acquis)
4
Policy
1. Introduction to European JHA integration
1.1. JHA-policy areas
- Asylum, migration, border-crossing …
- (judicial cooperation in civil matters)
o We are not seeing this, in this class
- Criminal law/policy
o Substantive criminal law (formeel)
§ = what constitutes crime, and what are the oCenses and what are the
sanctions of these oCenses
o Criminal procedural law (materieel)
§ = what are the rules of play, of crime fighting and investigating crime
§ What are the diCerent parties
§ What techniques and methods are allowed, what about the admissibility of
evidence…
à We have both on at a domestic level, but international levels may impact
substantive criminal law and procedural criminal law. It remains to be seen ofc
whether or does international levels will set foot on ambiance areas because it’s
quite sensitive if you think about it
§ If you allow an international level to impact your national criminal law, it’s
quite a step because it’s very sensitive. It connects closely with your own
culture as a democracy or jurisdiction in general
§ It is also explanatory for the fact that the EU level will only be granted certain
powers in those two areas quite late in time
o International co-operation in criminal matters
§ Judicial co-operation
§ Police and customs (law enforcement) co-operation Classification used by the Eu
à We may have our own criminal law in principle and criminal procedures, but
crime is obviously not limited to national territories. Crime may be international
because some groups operate on an international scale. Some is local, but they
invest the money in other countries (by example purchasing a villa in Croatia) and
to confiscate the villa you need to go for the money and be able to corporate with
Croatia assets
- ‘Security’
o Not a separate dimension
§ Migration border crossing asylum, criminal policies they are both linked to
security for citizens and societies
o Broader (breeder) notion
§ Many more actors are contributing today to the building of security that
includes the military defence and intelligence services…just to name two
§ We go beyond EIJHAS and we will try to also include other domains that are
contribute to the goal of building a secure society
1
,1.2. Principal JHA cooperation levels
Levels (wat hij gaat behandelen, maar zullen niet alles van A-Z zien. Soms gewoon om te duiden
waarom er andere zaken nodig waren gezien deze organisaties niet (altijd) werkte)
- Council of Europe (hereafter: CoE) (limited unless for EIJHAS course)
- European Union (EU)
- Schengen (including Prüm)
- Benelux, NATO, OSCE, G7/G20, OECD, UN (EIJHAS course only)
- handbook: origin and historical development, institutional structure and functioning,
policy, (selective bibliography)
Transversal European JHA integration overview
- During 5 joint classes
- Transversal, i.e. cross-level character
o Rationale: institutional and policy dynamics are interwoven
o Not (entirely) following handbook/paragraph order
1.3. Council of Europe (de bondt gaat hier verder op in)
1.3.1. Development & mandate
- 1949
o There comes a gathering after a call by Winston Churchill that we needed sort of a
United states of Europe to overcome the issues we had in the second world war
- 1950 ECHR | ECtHR
o The gathering immediately led to its first convention, the European Convention
Human Rights and fundamental freedoms
o Its convention number one of the Council of Europe
- Today: 46 countries
o Russian Federation: 28 February 1996 - 15 March 2022
§ We had 47, but Russia needed to step down and has been a member from
1996 until 2022
§ The CoE critical looks at several societal dimensions which matter in allowing
a state to be a member of the council of Europe. If you discontinue to stick
with certain fundamental rights, you aren’t eligible as a member
o CoE counts 46 countries and the EU counts 27, so roughly twenty more. That is
because the CoE and the EU are two totally diCerent organisations!!!
o In the EU you have important bodies like
§ the Council of the European Union (not the same as the CoE)
§ and the European Council which is the gathering of heads in state and
government of the EU
à Both are very di=erent form the CoE!
- Intergovernmental cooperation
o Intergovernmental ó supranational
§ Supranational = the nation states have decided to give away certain powers
to a level above them. Legislative power
o This has never happened at the council of Europe and will never happen because
it’s a level where states decided too corporate
2
, § Find and built common ground and common instruments with no
supernational power for the CoE
§ Which is a flaw clearly because it makes the club quite weak, as an
organisation. It means that the organisation itself cannot and may not to sort
of take any decision on behalf of one of the Member States
• (a supernational organisation would have be able to!)
- Legal instruments
o Conventions, resolutions, recommendation
§ Resolutions and recommendations are in principle not binding
§ Conventions may become binding, not as form the moment they are
concluded
• Are being negotiated and after they have been fully negotiated, they are
being signed meaning there is a text
• Nothing has happened, until states take things further and are going to
seek authorization of the parliaments or authorization in their
population at large power through a referendum
• If there is a positive outcome of a referendum, or by the parliament by
which they approve they may move to the stage of ratification
o Conventions: seemingly strong, still weaknesses
§ The organisation has a lot of conventions that need to be ratified, and the
organisation is incapable to control that.
• Example: 1957 European Convention on Extradition was signed by
Belgium. And it took Belgium forty years to move to the state of
ratification
§ Hard law if ratified by the states and it’s the choice of the states if you either
do it or not, it’s not because you are a member of the CoE that you must ratify
a convention that you have negotiated.
§ You may think that if they are irrelevant because they’re non-binding, but we
see that in certain area’s you would see that states are not more compliant
with binding instruments than with not-binding instruments
• Example: European prison rules
• All the soft work is extremely helpful to raise the standard of prison
conditions
- Broad mandate, including penal matters
- Judicial co-operation in criminal matters (mother conventions)
o The mother conventions on which all the rest builds
o All the EU members Member States obviously are part of the Council of Europe
(CoE), and in the beginning all they had to work with was the mother convention
- Judicial co-operation in criminal matters & criminal policy (including aspects of
substantive criminal law and criminal procedural law) regarding specific topics and/or
particular oCences
o Sometimes the CoE’s work, especially trough the legal instruments, may impact
aspects of substantive and procedural criminal law
3
, o For the council of Europe is also immediately capable to set foot on the area if
substantive or procedural criminal law
§ You can conclude a convention that impacts the substantives of criminal law,
and if the state wishes to be bound, then there will be an impact, right? It
doesn’t mean that there is supranational power for the CoE to enact
legislation, but there is a possibility for the states to intergovernmentally sit
together an conclude an instrument that will then impact their criminal law
whenever they want to be bound by the instrument.
§ Example: Istanbul convention to fight violence against women, and obviously
when you ratify that convention it will oblige you to criminalise certain
behaviour like rape.
1.3.2. Judicial cooperation
Di=erent Mother conventions in criminal matters à niet vanbuiten leren, zijn gewoon een
voorbeeld en ook vrij belangrijk gezien het wel de motherconventions zijn. Korte beschrijving van
wat ze zijn verder niet te ver op ingaan.
- 1957 European Convention on Extradition | 3 Protocols
- 1959 European Convention on Mutual Assistance in Criminal Matters | 2 Protocols
o Rember the term
o About search abroad, about seizure of a gun in house in Budapest or intersection of
telecommunication that you were having in a taxi while driving over a border
- 1964 European Convention on Supervision of Conditionally Sentenced/Released
OCenders
o The CoE wanted to make it possible for people who would be conditionally released
to be allowed free movement. Typically, when you are conditional released, you
need to remain under supervision of a probation oCicer for instance. This treaty
allowed you to move from Belgium to France and that convention could be a vehicle
to transfer oversight from a Belgium oCicer to a France privacy oCicer in the region
where you would like to establish your life.
- 1970 European Convention on the International Validity of Criminal Judgements
o Fines, confiscations, deprivation of liberty, monitory sanctions
§ This convention allows to transfer these across borders
§ In the example of the villa of Croatia this convention could be used
- 1972 European Convention on Transfer of Proceedings
o Very poorly ratified, failed a bit
o Transfer the prosecution possibility to another state that has no connection with
your oCense nor with you which is very far reaching
- 1983 Convention on the Transfer of Sentenced Persons | Protocol
- 1990 Laundering Convention | Protocol
- 2001 Cybercrime Convention | Protocol
1.3.3. Crime & criminal policy
- Judicial co-operation in criminal matters /criminal policy with regard to specific topics
and/or particular oCences (sometimes part of the JHA acquis)
4
