Judicial protection in transnational criminal proceedings

• Applicant: Professor Dr. Martin Böse
• Subject Area: Criminal Law
• Term: from 2017 to 2021
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 389499413

In contrast to domestic criminal proceedings, cross-border proceedings within the framework of international cooperation in criminal matters do not only form part of criminal justice systems of states, but do also affect their of foreign relations. The transnational dimension of mutual legal assistance hereby significantly affects judicial protection of the individual. For example, judicial decisions of the requesting state (e.g. an arrest warrant) are not subject to judicial review in the requested state, but only in the requesting state. However, the access to legal remedies is often hampered by physical distance, language problems and unfamiliarity with a foreign criminal justice system. Where access to domestic courts is granted, recent case-law has created uncertainty regarding the standard of review and the applicable law (constitutional law, EU law). In the EU, these problems have been aggravated by the principle of mutual recognition and the new instruments of cooperation in criminal matters (e.g. the European Arrest Warrant). On the other hand, EU law also provides for prototypes of transnational legal remedies (e.g. in the Schengen Information System). In Germany, judicial protection in transnational criminal proceedings is lacking a coherent legal framework in the Act on International Cooperation in Criminal Matters (AICCM). For instance, there is no rule on whether a discretionary decision to extradite a person to a non-member state of the EU is subject to judicial review.The research project aims at developing a comprehensive framework for judicial protection in transnational criminal proceedings which ensures the right to judicial review without hampering the effective functioning of international cooperation in criminal matters. To that end, extending the scope of judicial review in the requested state might be an option (see supra, with regard to judicial control of arrest warrants). On the other hand, transnational judicial protection in the European Union could be enhanced by developing a closer coordination and interconnection of court proceedings in the requesting and the requested state, e.g. by the option to lodge a remedy against a decision of the requesting state (e.g. an arrest warrant) with a court of the requested state. The spectrum of potential approaches shall be examined in the context of selected national criminal justice systems. The comparative analysis shall comprise EU member states as well as non-member states.Special attention shall be paid to the differences between cooperation within the European Union on the one hand and cooperation with third states on the other, and the consequences of this distinction for the scope of judicial review. The findings of the project shall result in a reform proposal on judicial protection under the German AICCM.

• DFG Programme: Research Grants