Crime and the Constitution: A Brief Chronology of Choices and Circumventions

• Published in: Maastricht journal of European and comparative law Vol. 11; no. 2; pp. 143 - 158
• Main Author: den Boer, Monica
• Format: Journal Article
• Language: English
• Published: London, England SAGE Publications 01.06.2004
• Subjects: Comparative analysis; Comparative law; Constitution; Crime; Europe; European Union; Law
• ISSN: 1023-263X; 2399-5548
• DOI: 10.1177/1023263X0401100203

The article looks into the consequences of the European Convention and the (draft) EU Constitutional Treaty for the field of Justice and Home Affairs Cooperation, in particular police and judicial co-operation in criminal matters. Despite high ambitions expressed during the Convention deliberations, the draft is proof of the lack of vision about the long-term objectives of the Area of Freedom, Security and Justice. Although the intergovernmental ‘Third Pillar’ will be abolished, various exceptions remain in this field related to the right of initiative, voting mechanisms, and decision-making procedures. These covert remnants of the Third Pillar may contribute to the diffuse and fragmented implementation of EU law in the domestic criminal justice systems of the EU Member States. On the whole however, the Constitutional Treaty is to be welcomed because of the amelioration of judicial and democratic control on policing and judicial activities. Notwithstanding these positive changes, democratically elected representatives and judicial authorities will have to remain alert to the integration of the legal instruments into an emerging judicial area, where authorities such as Eurojust and OLAF are insufficiently equipped with the control and supervision of semi-operational activities performed by Europol and joint investigation teams.