Balancing security and freedom in the Area of Freedom, Security and Justice

The 2016 Annual European Criminal Law Academic Network (ECLAN) Conference was entitled “The Needed Balances of EU Criminal Law: Past, Present and Future”. One of the discussed topics was how to establish the right balance between measures that provide security and those that protect freedom. The point was strongly made that EU law to date has focused too much on establishing an Area of Security by adopting mutual recognition instruments and minimum harmonization measures which contribute to the protection of individuals against cross-border criminality. An example is the widening definition of offences linked to terrorist activities. After the 9/11 attacks, Framework Decision 2002/475/JHA was adopted whose provisions include the definition of terrorist offences and offences linked to terrorist activities. In 2008, Framework Decision 2008/919/JHA broadened the scope of offences linked to terrorist activities by criminalizing recruitment and training for terrorism. In 2015, as a response to the continuing and growing threat of terrorism, the Commission introduced a far-reaching proposal for a Directive on combating terrorism. Title III of this Directive on offences related to terrorist activities includes ‘travelling abroad for terrorism’, which is a new offence.

The balance or imbalance between security and freedom is also an issue in the specific context of surrender proceedings. Framework Decision 2002/584/JHA has replaced the complicated and time-consuming system of extradition proceedings which is based on the European Convention on Extradition of 13 December 1957 with an effective and relatively less complicated system of surrender proceedings. Its goal is to prevent criminals from escaping justice by crossing borders after committing an offence. In other words, it aims to protect individuals against cross-border criminality and to prevent any abuse of the right to freedom of movement. This means that Framework Decision 2002/584/JHA is a measure which primarily contributes to establishing an Area of Security.

Even though Framework Decision 2002/584/JHA is primarily a security measure, the freedom dimension has not been completely ignored. Those who are subjected to a European Arrest Warrant (EAW) enjoy certain procedural safeguards, such as the right of interpretation and translation, access to a lawyer, etc., all of which have been  adopted in the light of the Roadmap for strengthening procedural safeguards. Furthermore, similar to other mutual recognition instruments in the criminal justice area, Framework Decision 2002/584/JHA contains limited possibilities to refuse the execution of an EAW.

However, in my opinion, the effort to establish a right balance between freedom and security in the specific context of surrender proceedings should not be limited to providing adequate procedural safeguards and refusal grounds. In addition, attention should be paid to the question whether certain problems which EU citizens may encounter in the transnational Area of Freedom, Security and Justice (AFSJ) can be classified as arbitrary interferences with their legal position. One of these issues is the matter of surrendering a person to a member state whose jurisdiction he could not have foreseen at the time the crime was committed. Unforeseeable prosecutions may take place when a member state exercises extraterritorial jurisdiction to prosecute a person who is suspected of having committed a crime against one of its citizens or when the act in question was not (yet) criminalized by the law of the state in which it occurred. Surrendering an individual to a state whose jurisdiction he could not foresee and whose language and legal system he might not be familiar with, deeply interferes with an individual’s personal life and freedom. However, whether this situation can be classified as an arbitrary interference with an individual’s legal position has not (yet) been determined by the EU legislator or the Court of Justice of the European Union.

A potential explanation for this is that it is difficult to place the matter of unforeseeable prosecutions under one of the fundamental rights or principles in the EU Charter of Fundamental Rights (CFR). It seems, however, to have a link with the substantive legality principle, but this principle was developed in the context of the individual state and not in the context of a transnational criminal justice area. In other words, this principle was established to protect individuals against arbitrary interferences with their rights by the government of an individual state and not to protect them against arbitrary interferences which are the result of transnational cooperation. Furthermore, neither the European Court on Human Rights nor the Court of Justice of the European Union has (yet) determined whether or not a state’s criminal jurisdiction falls under the scope of the substantive legality principle and should, therefore, be foreseeable.

Even though, we cannot (yet) say that unforeseeable prosecutions are so-called legality issues, the fact remains that the decision to surrender an individual to a state whose criminal jurisdiction he could not foresee can deeply interfere with an individual’s daily life. Consequently, research should be conducted into the question whether unforeseeable prosecutions, as well as other potential problems which individuals may encounter in the AFSJ, give rise to a risk of arbitrariness. In case of a positive answer, the interesting follow-up question is whether the concept of EU citizenship could offer guidance in providing the right protection against these arbitrary interferences and in that light to establishing a proper balance between freedom and security.