Corpus Juris, The Presumption of Innocence and the Eurosceptic

Author:Gina Conheady
Position:Senior Sophister Law and French, Trinity College Dublin
Pages:163-183
CORPUS
JURIS,
THE
PRESUMPTION
OF
INNOCENCE
AND
THE
EUROSCEPTIC
GINA
CONHEADY*
May
2004
will
see
the
accession
to
the
European
Union
of
ten
new
Member
States.'
With
the
expansion
of
free
borders
which
enlargement
entails,
the
necessity
to
devise
a
common
strategy
to
combat
transnational
organised
crime grows
ever more
apparent.
Common
measures
already
adopted
in
the
fight against
transnational
crime seem
to
suggest
that
European policy-makers
favour
the
inquisitorial approach
in
combating
this
problem.
This
has
given
rise
to
much
apprehension
in
the
two
common
law
systems
in
the
European
Union,
particularly
in
relation
to
the
future
of
such
fundamental
rights
as the
presumption
of
innocence
and
the
right
to
trial
by
jury,
which
many
believe
are
insufficiently protected
by
the
inquisitorial
system.
2
These
critics
have
been widely
dubbed
as
Eurosceptics
by
those who
favour
a
harmonised
criminal
law.
It
is
the
purpose
of
this article
to
assess
whether
or
not
the
presumption
of
innocence
is
likely
to
be
sufficiently
protected
in
the event
of
the
adoption
of
a
pan-European criminal
law
based
on
the
inquisitorial
model.
Thus,
the
first
part
of
the
article
will
trace
the
developments
so
far
in
the
European
criminal
sphere,
focusing
particularly
on
the
controversial
Corpus
Juris
proposals,
which
set
out
provisions
for an
inquisitorial-type
European
criminal
code.
In the
second
part
of
the article,
I
will
focus upon
one
of
the
civil
law
jurisdictions,
that
of
France,
from
which
Corpus
Juris
derives
much
of
its
inspiration.
This
example
will allow
an
assessment
of
the
extent
to
which
the
presumption
of
innocence
is
protected under
the
*
Senior
Sophister
Law
and
French,
Trinity College Dublin.
Namely
Cyprus,
Czech Republic,
Estonia, Hungary, Latvia,
Lithuania,
Malta,
Poland,
the
Slovak Republic
and
Slovenia.
2 Misconceptions
as
to
the
nature
of
such
protections
in
civil law
systems
abound.
See
for
example,
a
member
of
the
UK firm Russell,
Jones &
Walker,
writing
in
the
City
Law
section
of
the
Times,
81
h
April 2003
said:
"In
a
number
of
Member
States, the
criminal
presumption
is
one
of
guilt until
proven innocent."
3
See
Hansard
Debates,
9
December 2002.
Second reading
for
the
European
Arrest
Warrant,
Torquil Dick-Erikson: "Various
speakers
make
adverse
comments
on
the fairness
of
some
Continental
EU
systems, but
these were
sufficiently
generic
to
allow
the
Government
to
dismiss
them as
"Eurosceptic
prejudice"."
C
2004
Gina
Conheady
and
Dublin
University
Law
Society
Trinity
College
Law
Review
inquisitorial
system.
Finally I
will
examine whether
or
not
the
so-called
common
law
Eurosceptics
have
in
fact
reason
to
be
afraid.
Tracing
the
Development
of
EU
Criminal
Law
The
European
Union,
with
its
foundations
in the
creation
of
a
common
market
and
its
development
towards
a
common
"area
of
freedom,
security
and
justice",
provides
the
perfect
breeding
ground
for transnational
crime.
European policy-makers
have
thus
recognised
the
need
for the
development
of
a
common
body
of
criminal
law
to
deal
with
such
transnational
crime,
especially
in
the
matter
of
budgetary
fraud. As early
as
1975,
the
Trrvi
Group
was
set
up
to
examine terrorism
and
internal
security
matters
in
the
European Economic Community.
In
1986,
the
Single
European Act
was
annexed with
a
Political
Declaration, confirming
the
intention
of
all
Member
States
to
co-operate
in
combating terrorism
and
internal
security matters.
4
Thus
the
first
steps towards co-operation
in
criminal
law
matters were
made.
It
was
not,
however,
enough
to
tackle
adequately
the
difficult
and
increasingly
prevalent
problem
of
cross-border
crime.
While
co-operation
at
this
level
showed
the
commitment
of
Member
States,
it
lacked
coherence
and
meaningful
co-ordination.
There was
also
no
way
for
the European
Parliament
and
national
parliaments
to
monitor
the
measures
taken. There
was
a
clear
need
for
a
competent
body
at
a
European
level
which
would
oversee
and
encourage co-operation
in the
area.
5
The
first
organisation
set
up
with
such
an
objective
was
UCLAF
(Unite
de
la
Lutte
Anti-Fraude)
or
the
European
Anti-Fraud
Office.
6
Set
up
as
a
Task
Force
in
1988 to
provide
technical
and
operational
assistance
to
national
authorities
responsible
for transnational
investigations
into
fraud,
it
was
re-constituted
in
1999
as
OLAF
(Office
pour
la
Lutte
Anti-Fraude)
with
a
larger
staff
and
more extensive
powers.
OLAF has
played
a
4
Specifically,
it
dealt
with
entry,
movement
and
residence
of
nationals
of
third
countries
and
combating terrorism,
crime,
trafficking
in
drugs
and
the
illicit
trade
in
works
of
art
and
antique.
See,
the Europa website
at
(visited
8
February
2004).
5
The
Europa
website,
loc.cit.:
This
form
of
co-operation has
disadvantages:
Work
is
not
coordinated
and leads
to
duplication.
European
Parliament
and
national parliaments
cannot
monitor
measures.
The
groups
needed
to
be
integrated
into an
overall
structure
within
the legal
framework
of
the
EU.
6
See
Peers,
EU
Justice
and
Home
Affairs
Law
(Pearson
Education
Ltd. 2000)
at
204.
[Vol.
7

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