*** MARIANNE DONY (editors): La dimension externe de l'espace de liberté, de sécurité et de justice au lendemain de Lisbonne et de Stockholm: un bilan à mi-parcours. Editions de l'Université de Bruxelles (26 av. Paul Héger, B-1000 Brussels. Tel: (32-2) 6503799 - fax: 6503794 - Email: editions@ulb.ac.be - Internet: http://www.editions-universite-bruxelles.be/ ). "Etudes européennes" series. 2012, 284 pp. €30. ISBN 978-2-8004-1533-8.
The Lisbon Treaty entered into force on 1 December 2009 and the Stockholm Programme was adopted a few days later by the European Council. This changed the whole situation regarding the Freedom, Security and Justice Area. Although the latter outlined the main priorities that the European Union would set itself in this field for the 2009-2014 period, the new treaty put an end to the era of the “pillars”. Heads of state and government had been quite content to subject this domain that originally stemmed from the most absolute form of intergovernmental cooperation to the decision-making (legal and litigation) of common law. In such politically sensitive subjects, it should come as no surprise that hell is, once again, paved with good intentions. This is in fact what this book reveals and whose authors seek to assess the goals of the Union in the sphere of external policy and the Freedom Security and Justice Area. A conference was organised on the subject in Brussels as part of a much broader research project, which brought together the Free University of Brussels and the universities of Bologna and Rennes.
In the first part of the book, the scientists providing this analysis look at how the Freedom, Security and Justice Area took its place in the European Union's external agreements in the context of civil legal cooperation, asylum and immigration and finally, legal and police co-operation in criminal proceedings. The second part of the book looks at the often neglected actors in this area, such as Eurojust, Frontex and the European Asylum Support Office. Finally, in the third part of the book, the authors tackle the differentiation resulting from the specific statutes granted to Denmark, Ireland and the United Kingdom but also the fact that the first examples of enhanced cooperation were developed in this political niche and that member states attempted to protect their substantial level of jurisdiction in this area. The book tackles a lot of subjects, as pointed out by Marianne Dony, the president of the Brussels University Institute of European Studies and which reveals itself through, “a variable geometry, that is already difficult to manage internally and which has just begun to further increase the complexity of the Union's external action in this domain and make at the same time the quest for coherency between the Union and its member states as indispensable as it is difficult”.
This analysis by Professor Dony runs through all the different contributions, particularly in the conclusions drawn by her counterpart from Rennes, Catherine Flaesch-Mougin. For example, she underlines the fact that the authors have illustrated the “double complexity” of the external dimension in the Freedom, Security and Justice Area, in relation to the Union's other areas of external action. No one should really be surprised, the “traditional question of competencies” is not there for nothing, which means that for the most part, the fight against terrorism remains in the hands of member states. The Union's participation in multilateral organisations and conventions is also in question. Its status in this connection has been acknowledged but, “even after Lisbon, there is a lack of synchronicity between its competencies and its involvement”. Therefore, although the EU27 has adopted several directives to tackle money-laundering, the Union still does not have the simple status of observer at the Financial Action Group set up by the G-7 in… 1989. The same goes for the High Commission for Refugees, to which it actually makes quite a substantial financial contribution. Differentiation, however, is a major problem, with different statuses for London and Dublin, without even mentioning Denmark, which, in this area, is almost “a third country”. There are many other unusual cases that have, “particularly upsetting consequences for external relations and which create a strong feeling of legal insecurity with regard to third countries”, notwithstanding the efforts made by the Union to find out whether the country in question is acting on behalf of the EU27 or not. The scoreboard may become even less clear given, “particular procedural practices that are difficult to understand”, the informal instruments that our quite likely to escape any jurisdictional control and finally, by too systematic use of soft law. In this regard, the accusation made by Professor Catherine Flaesch-Mougin is overwhelming, “this limp law, presented as the facilitator for tackling sensitive issues with certain partners and/or as of a forerunner of hard(er) law is creating a high level of legal insecurity and for the Union of law, misgivings from a democratic point of view, with regard to the guarantees offered to parties seeking justice”. There will certainly be a number of ministers who will regret the lack of straight talking among the scientists responsible for producing this book …
Michel Theys
*** JEROEN BLOMSMA: Mens rea and defences in European criminal law. Intersentia (31 Groenstraat, B-2640 Mortsel. Tel: (32-3) 6801550 - fax: 6587121 -Email: mail@intersentia.be - Internet: http://www.intersentia.com ). « School of Human Rights Research Series » series, No. 54. 2012, 621 pp. €105, £100, $147. ISBN 978-1-78068-104-7.
This imposing book stems from a PhD thesis at the Faculty of Law at the University of Maastricht. It begins, however, more in the style of a detective story, “If John refused to kill the police commissioner, the drug syndicate would kill his family. He therefore felt he had no choice but to assassinate the man. John heads over to a press conference, where the police commissioner is presenting his department's latest successful operation against the drug syndicate. However, just as he is about to shoot, a police officer spots John, jumps in front of the commissioner and is killed instead”.
In so far as an imaginative novelist can maintain the suspense of his public, given the far from pleasant substance of his subject, Jeroen Blomsma succeeds with the same dexterity in his task as he does when tackling such an eminently serious subject. On the basis of the botched attempt by a killer, he succeeds in bringing a number of astute responses that are scientifically backed up on key questions that, unfortunately, can happen in real life, “Did he commit murder? Does it matter that he killed the police officer and not the planned target? Can it be said that he intended to kill the commissioner, if all he wanted was to save his family? After all, should he be punished for favouring the lives of his wife and child over that of one person?” Another question could also be added, that of establishing whether the police had the right to torture a member of the cartel in order to clarify matters. All these questions have their place in the criminal law of member states, founded on basic principles “that demand that the subjective elements of a crime, like intention situations where the defendant should not be liable, even though he formally committed an offence”. On these lines, the author explains that John could have been acquitted after having pleaded “invincible coercion”. Although European criminal law leaves an increasingly bigger imprint every year, the Union is sharing far more responsibilities at this level with member states and does not definitively impose what conduct they should adopt, particularly with regard to what penalties should be applied in cases of fraud. Such basic principles are cruelly lacking at this level. Subsequently, a cacophony develops in the application of European legislation, which, according to the author, leads to results at a national level that diverge when it comes to criminal legal responsibility, which also subsequently becomes an increasingly difficult area to manage. Jeroen Blomsma seeks to identify and analyse all these problems, as well as propose some general principles in criminal law, which could prove useful at a European level. These principles will obviously be eagerly examined by certain legal practitioners.
(MT)
*** THOMAS CASSUTO (Editors): Une Europe, deux lois pénales. Bruylant (De Boeck Services, 39 rue des Minimes, B-1000 Brussels. Tel: (32-10) 482511 - fax: 482693 - Email: commande@deboeckservices.com - Internet: http://www.bruylant.be ). « Macro droit * Micro droit » series. 2013, 235 pp. €45. ISBN 978-2-8027-3782-7.
In the context of “unbridled globalisation”, what can European judges do to punish serious misdemeanours in the knowledge that magistrates have to deal with diverging criminal law stemming from “the world of mercantile usage”, to Common Law and laws dear to the heart of legal specialists trained under “Romano-Germanic law”? Two conferences were dedicated to this theme, the results of which have been taken into account in this publication and whose contributors seek to examine the prospects for harmonising these two kinds of law in the European context. The Entretiens de Saintes of 1999, 2000 and 2002 are also examined, which saw French public and professional legal and economic experts meticulously scrutinise French criminal law.
(PBo)
*** PIET HEIN VAN KEMPEN (Editor): Pre-trial detention / Détention avant jugement. Human rights, criminal procedural law and penitentiary law, comparative law / Droits de l'homme, droit de la procédure pénale et droit pénitentiaire, droit comparé. Intersentia (see address attached). "International Penal and Penitentiary Foundation / Fondation internationale pénale et pénitentiaire" series, No. 44. 2012, 819 pp. €145, £138, $203. ISBN 978-1-78068-068-2.
Reliable statistics indicate that almost two and a half million human beings are held in detention every day before they are tried. This is equal to a total annual number of almost… 10 million people in the world. As pointed out by Professor Piet Hein van Kempen in his introductory contribution to this book, this phenomenon is constantly increasing and creating a problem with regard to universal standards on human rights, particularly the right to freedom, the presumption of innocence, the right to humane treatment and the prohibition of torture and ill-treatment. These apparently “fundamental rules” are subject to violations, “in practically all countries in the world”, indeed, in every country of the world, as suggested by the book's editor. In his introduction published both in English and French, this Chair of criminal and procedural law at the University of Radboud in Nijmegen, explains that prevention comes at a high cost to both society and the families of prisoners, although no criminal justice system capable of preventing and tackling crime is able to function correctly if it is totally in an impasse on the question of detaining suspects. The International Penal and Penitentiary Foundation, of which Professor van Kempen is the president, deemed that this problem raised enough questions and significant difficulties for him to organise a colloquy on the issue in South Africa, three years ago. This book provides an exhaustive account of the work undertaken and all written contributions are in English and French. Following a comprehensive comparative and introductory analysis by Professor van Kempen, the book is divided into two parts. In the first part, different authors explore themes such as the way in which the European Committee for the Prevention of Torture and Inhumane and Degrading Treatment is tackling the issue of detention without trial in Europe. This kind of attention is examined from the point of view of the Inspector of Prisons, its application to women in Poland, electronic tagging as an alternative and the impact of the European Arrest Warrant on prevention. The third part focuses on 21 Reports on this issue in Germany, England and Wales, Belgium, Denmark, Spain, France, Greece, Ireland, Italy, the Netherlands, Poland and Portugal, as long as other countries such as South Africa, Argentina, China, US, Japan, New Zealand, Norway, Taiwan and Turkey. The book provides a useful reference tool.
(MT)
*** PAULINE JACOT: Force-Feeding of Prisoners and Detainees on Hunger Strike. Right to Self-Determination versus Right to Intervention. Intersentia (see address attached). 2012, 362 pp. €85. ISBN 978-1-78068-095-8.
What is the legitimacy of the use of force-feeding prisoners and detainees on hunger strike? What are the physical consequences of a hunger strike and how much time does it take before irreversible physical repercussions occur? When a prisoner goes on hunger strike, does his forced feeding contradict his personal autonomy and right to self-determination and informed consent? How do the European Court of Human Rights and other international organisations assess the legitimacy of the use of force-feeding? The author, Pauline Jacot, seeks to provide answers to these questions and clarify the concepts of legislation relating to this issue. In this thesis she focuses on specific cases in Germany, England and Wales and the Netherlands.
(PBo)
*** SABINE BRAUN, JUDITH L. TAYLOR (Editor): Videoconference and Remote Interpreting in Criminal Proceedings. Intersentia (see address attached). 2012, 328 pp. €85, £81, $119. ISBN 978-1-78068-097-2.
In these times of free movement of people and migration, the directive that strengthened laws on the interpreting and translation of penal procedures in 2010 was devised to ensure greater respect of the criteria set out in the European Convention on Human Rights and the minimum standards included on this issue. At the same time, the economic crisis has continued to exert increasing pressure on the public services and no legal practitioners have been able to escape from this fact. Suddenly, the use of video conferencing has become a “must”. This publication stems from a symposium and includes contributions from specialists, scientists and practitioners who seek to examine the different dimensions of this development, as well as the questions that it creates, such as issues pertaining to the protection of quality legal proceedings, for example.
(PBo)