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Preadvies voor de Nederlandse Juristen-Vereniging 2022 'De Repressieve samenleving'

In Kadi II heeft het Hof van Justitie vastgehouden aan zijn lijn dat een verordening die uitvoering geeft aan een VN-resolutie geen immuniteit van jurisdictie geniet. De plaatsing van een persoon op een sanctielijst wordt daarom volledig getoetst aan de grondrechten die behoren tot de algemene beginselen van Unierecht. In zijn arrest van 18 juli 2013 heeft het Hof van Justitie richtlijnen voor die toetsing geformuleerd. De toekomstige discussie zal zich vooral toespitsen op de vraag hoe specifiek de uiteenzetting van redenen moet zijn die aan de plaatsing op een sanctielijst ten grondslag ligt en op de vraag hoe met informatie moet worden omgegaan die voor de betrokken persoon of entiteit geheim wordt gehouden.

This contribution examines the effect of the uniform standards of human rights in international conventions on criminal process in different countries and identifies factors inherent in national systems that influence the scope of international standards and the way in which they are implemented in a national context. Three overreaching issues influence the reception of international fundamental rights and freedoms in criminal process: constitutional arrangements, legal tradition and culture, and practical circumstances. There is no such thing as the uniform implementation of convention standards; even in Europe where the European Convention on Human Rights and Fundamental Freedoms and the case law of the European Court play a significant role, there is still much diversity in the actual implementation of international norms due to the influence of legal traditions which form a counterforce to the weight of convention obligations. An even greater counterforce is at work in practical circumstances that can undermine international norms, most especially global issues of security, crime control and combating terrorism. Although convention norms are still in place, there is a very real risk that they are circumvented or at least diluted in order to increase effective crime control.

The European Union (EU) has set the objective to develop an Area of Freedom, Security and Justice, in which on the one hand freedom of movement is promoted and on the other hand a high level of security is ensured. The EU is therefore adopting measures to enhance international cooperation in criminal matters among the police and judicial authorities of its Member States. The adopted instruments concerning evidentiary matters, such as the gathering, freezing and/or confiscation of information and materials in another EU Member State, seem to serve the main purpose of assisting the authorities in investigating and prosecuting (cross-border) crime. This raises the question to what extent the defence is also given the possibility to gather – or to have gathered – information and materials in another EU Member State with the aim of preparing and presenting its case at trial and, in particular, whether the current (EU) legal framework on cross-border evidence gathering meets the requirements of the principle of equality of arms. This thesis addresses this question by, first of all, discussing the concept of equality of arms, as enshrined in both Article 6 ECHR and Article 47 CFR. It explains to what extent this principle is applicable to cross-border or transnational criminal proceedings and whether it has an autonomous meaning within the EU. In addition, it discusses which requirements can be deduced from the principle in relation to the possibilities of the defence to gather evidence in another EU Member State to prepare and presents its case. Subsequently, the focus is on the development of the European legislation – from both the Council of Europe and the EU – regulating the procedure of cross-border evidence gathering over the last decades. The aim is to explain the position of the defence in this development and to what extent the European legislation gives opportunities to the defence to request the assistance of foreign authorities in obtaining specific information and materials in another EU Member State. In order to understand how the European legislation is applied in practice by the EU Member States, this thesis includes a comparative study of three national jurisdictions: the Netherlands, England and Wales, and Italy. These three jurisdictions each represent a different criminal justice system, either more inquisitorial or adversarial in nature. The comparative study describes how a chosen jurisdiction interprets the principle of equality of arms. Furthermore, it examines to what extent the national jurisdiction allows the defence to carry out independent investigations abroad and how it gives the defence the opportunity to trigger the mechanism of international cooperation and to participate in the requested investigation. Finally, this thesis also includes an analysis of the criminal justice system of the International Criminal Court. In this system evidence gathering depends most of the time on State cooperation and both the Prosecutor and the defence are allowed to conduct independent investigations and seek the assistance of States. It is therefore used as a source of inspiration for potential changes of the EU legislation on cross-border evidence gathering.

The book assesses the adoption of counterterrorism measures in the Netherlands and the United States, which facilitate criminal investigations with a preventive focus (anticipative criminal investigations), from the perspective of rule of law principles. Anticipative criminal investigation has emerged in the legal systems of the Netherlands and the United States as a consequence of counterterrorism approaches where the objective of realizing terrorism prevention is combined with the objective to eventually prosecute and punish terrorists. Through the attribution of a preventive function to criminal investigation the role of the criminal justice system in providing security has been repositioned. This book addresses this new preventive function of criminal justice and identified the rule of law principles limiting the role of criminal investigation in terrorism prevention. The possibilities and limits of criminal investigation in general and of cooperation and the division of responsibilities between law enforcement and intelligence have been addressed in a manner transcending differences between national legal systems

The book assesses the adoption of counterterrorism measures in the Netherlands and the United States, which facilitate criminal investigations with a preventive focus (anticipative criminal investigations), from the perspective of rule of law principles. Anticipative criminal investigation has emerged in the legal systems of the Netherlands and the United States as a consequence of counterterrorism approaches where the objective of realizing terrorism prevention is combined with the objective to eventually prosecute and punish terrorists. Through the attribution of a preventive function to criminal investigation the role of the criminal justice system in providing security has been repositioned. This book addresses this new preventive function of criminal justice and identified the rule of law principles limiting the role of criminal investigation in terrorism prevention. The possibilities and limits of criminal investigation in general and of cooperation and the division of responsibilities between law enforcement and intelligence have been addressed in a manner transcending differences between national legal systems