Funciones de costes y relación entre corto y largo plazo

After this overview of European Criminal Law and Procedure, I would like to give the analysis a more ample starting point. Chapter 2 offers an overview of theoretical frameworks for judicial cooperation between states and tries to analyse how EU cooperation is positioned within this structure. Traditionally, legal assistance evolved in a horizontal structure in which two nation states cooperate as equal sovereigns without the interference of third parties. The decisions of one state are accorded a certain effect in the other state based on a request procedure. The system of mutual recognition is, in essence, still such a horizontal cooperation system. Horizontal systems can range from very loose political procedures to deeply integrated juridified mechanisms, such as the model of direct effect within some federal states. A vertical model, on the other hand is one where specific procedural measures are based on the (executive or legislative) decisions of a supranational entity. As there is no strict division, cooperation on a European level always operates in a mixed system. The current dynamic of criminal law integration has, however, led to a very hybrid system in which strong vertical institutions are limited to fulfilling functions that are, in substance, horizontal. The European institutions are there to resolve the tension between cooperation and harmonisation, and between trust and uncertainty. Because cooperation requires some degree of harmonisation, a lack of harmonisation is, paradoxically, compensated for by strong vertical bodies.

Chapter 3 is a study of the most important paradigm in the area of judicial cooperation, namely the principle of mutual recognition. It starts with a brief account of the history of mutual recognition in classical judicial cooperation and explores the reasons why the new regime of mutual recognition is not presented as linked to mutual recognition in legal assistance, but as a spillover of the internal market

principle of mutual recognition. Mutual recognition is generally presented as a necessary reaction to the abolishment of internal borders by enabling judicial decisions to profit by free movement, while at the same time conserving national legal systems and respecting national sovereignty in a sensitive area. After exploring the validity and the limits of this analogy, the chapter will demonstrate that the new principle of mutual recognition was not introduced into judicial cooperation because of the novel legal content of the principle, but because of the integrative dynamic of this policy concept that was expected to benefit an otherwise stagnating area of law. That mutual recognition is not free of its traditional implications will be shown by tendencies of Member States to link mutuality to the classical principle of reciprocity. A short look at the terms “extradition” and “surrender” will show how a new vocabulary can trigger legal developments.

The fourth chapter will turn to the concept of mutual trust as the underlying rationale of mutual recognition. The notion of trust is used for various ends in the debate on European Criminal Procedure, but ideas as to its meaning are varied and often unclear. I will start by outlining both legal and sociological concepts of trust and cooperation. I will then explain how the ECJ tends to develop mutual trust into a true legal principle by looking at its case law in both civil, criminal and asylum matters. A particular focus will be on the relation of trust and harmonisation, since trust is essentially a mechanism to deal with diversity. The chapter concludes with a critique of current notions of trust and tries to give a prospect of what a well-founded concept of trust can and what it cannot achieve.

Chapter five illustrates some of these general issues with the example of the framework decision on the European Evidence Warrant and the proposed directive on the European Investigation Order for the area of transnational evidence-gathering. The area of evidence-gathering is particularly helpful in understanding problems with the principle of mutual recognition, as evidence is by its nature inextricably linked with a particular legal order and is only collected with regard to a trial. Friction that occurs when combining different legal orders will be demonstrated. It will be shown that many of the problems attributed to mutual recognition are in fact based on the lack of a uniform allocation of jurisdiction and of a coherent policy for transnational

fundamental rights.

Chapter 6 addresses the issue of jurisdiction in greater detail. After discussing the nature of jurisdictional rules it gives an overview of the bases for attributing jurisdiction. The analysis will show that positive conflicts of jurisdiction do not just emerge through the assumption of extraterritorial jurisdiction, but increasingly also through a differing understanding of territorial links. The focus will then shift to the wavering EU approach to jurisdiction in existing legislation. I will demonstrate how the lack of a coherent approach to jurisdiction is another symptom of the reluctance to assume collective authorship in areas that are, in any case, already subject to EU law. The advantages of consciously shaping and directing a new area are sacrificed to a hesitant and experimental approach that leaves individuals faced with arbitrary results. I will then discuss possible solutions for a more coherent and rights-based development of jurisdictional rules.

The purpose of chapter 7 is to focus on the individual and provide a framework for procedural rights in the context of multi-layered judicial cooperation. Current debate on fundamental rights in the area of freedom, security and justice is too much centred on a general balance of freedom and security. The chapter argues for a concept of fundamental rights that is specifically adapted to judicial cooperation and that is transnational in its perspective. An analysis of existing legal sources for fundamental rights in judicial cooperation will show that these rights all have their basis in national laws, a fact that is also reflected in the case law of the ECtHR and the ECJ. Since the national perspective suffers from a blind spot when the actions of another sovereign are concerned, these rights cannot adequately address situations that are essentially transnational. The involvement of the EU offers the chance to overcome this limitation as it introduces a new level of responsibility and accountability. The chapter explores in what cases existing rights must be interpreted transnationally by giving them a functionally equivalent meaning and how new transnational rights can be created.