Ne Bis In Idem: Towards a Transnational Constitutional Principle in the EU?

John A.E. Vervaele 

University of Utrecht - Faculty of Law
September 26, 2013

Utrecht Law Review, Vol. 9, No. 4, p. 211-229, 2013 
Abstract:      

Citizens and companies globalize: they are increasingly making use of their rights to free movement, to free settlement, to offer services and goods, to realize financial transactions, etc. Enforcement systems, including the criminal justice system, have to follow suit. They are obliged to go abroad to gather evidence, for the detention and extradition or surrender of suspects, to confiscate assets, to deal with conflicts of jurisdiction and the choice of allocating a criminal investigation and adjudication. Globalizing criminal justice systems increases the risk of double prosecution and/or double punishment. Do (legal) persons have the (fundamental) right not to be prosecuted or punished twice for the same facts in a globalizing and integrating world? Are they protected against these forms of double jeopardy in settings of transnational criminal justice, such as for instance in the EU area of freedom, security and justice? Does the ne bis in idem principle have a transnational reach? If so, what does this mean and what are the obstacles and exceptions thereto? In posing these questions, this article asks whether a (legal) person can derive a right to transnational protection in the area of freedom, security and justice from the different sources of ne bis in idem obligations in domestic law, in public international law (human rights law and mutual legal assistance) and in EU law. By analyzing these sources and the case law thereon, I come to the conclusion that (legal) persons are unprotected against transnational double jeopardy, with the exception of the transnational ne bis in idem in the EU area of freedom, security and justice. However, even in the case of the latter exceptions, derogations, reservations and draw back interpretations based on national sovereignty undermine the rationale and scope of a real transnational ne bis in idem principle in a common space of transnational criminal justice.

Number of Pages in PDF File: 19

Keywords: ne bis in idem, double jeopardy, criminal law, mutual legal assistance, Schengen, European Charter of Fundamental Rights, European Convention on Human Rights

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2334871

Proportionality and Democratic Constitutionalism

Stephen Gardbaum 

University of California, Los Angeles (UCLA) - School of Law
October 1, 2013

Proportionality and the Rule of Law: Rights, Justification, Reasoning, Grant Huscroft, Bradley Miller, Grégoire Webber, eds., Cambridge University Press, 2014 
UCLA School of Law Research Paper 13-32 
Abstract:      

As scholarship on proportionality has taken a welcome normative turn in the last few years, some of its proponents have portrayed it as an essential part of a broader “culture of justification.” Within this culture, as a condition of its legitimacy, all government action – and not only the basic structure of society – must be justifiable in terms of public reason to the individuals burdened by it. Proportionality analysis provides the analytical framework for this required exercise in justification. This account of proportionality emphasizes its strength as supplying the necessary “second pillar” of constitutional legitimacy; democracy is not enough. By contrast, critics of proportionality have emphasized its weakness rather than strength as a constraint on government action, particularly in the rights context. By placing constitutional rights on a par with governmental interests, engaging in “rights inflation,” and reducing rights analysis to the purely quantitative, critics claim that proportionality rejects the special normative force of constitutional rights. For them, protecting rights only against disproportionate infringements is not enough.

In this chapter, I propose an alternative normative perspective to the influential culture of justification from which to understand and evaluate proportionality. From this perspective, proportionality should primarily be understood as enhancing, not constraining, democracy. Rather than the constitutionalist legitimacy of democracy, proportionality is centrally about the democratic legitimacy of a constitutionalized rights regime and an appropriate balance between judicial and legislative powers. It is part of a conception of constitutional rights and of a rights regime that seeks to accommodate and temper enduring and legitimate democratic concerns. This conception is typically institutionalized through the textual vehicle of the limitations clause, which grants to legislatures significant power and leeway in the resolution of rights issues. Accordingly, this alternative normative perspective can be thought of as promoting a “culture of democracy.”

In claiming that proportionality can and should be viewed through the lens of democratic constitutionalism, I am not arguing that it is the only or best rights regime from this perspective. What I am suggesting is that a system of proportionality-based constitutional rights can be made less vulnerable to certain democratic critiques than alternative systems of strong-form judicial review, and that this should be taken into account in the normative debates about the merits of proportionality and institutional forms of constitutionalism more generally. If, as I argue, proportionality can properly be viewed as one version of democratic constitutionalism, the final section of the chapter broadens the picture by outlining the other major versions and offering some preliminary and tentative thoughts on their comparison and respective merits.

Number of Pages in PDF File: 32

Keywords: proportionality, balancing, human rights, constitutional rights, democratic constitutionalism, judicial review, comparative constitutional law

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2334434

The Accession of the EU to the ECHR and its Effects: Nada v Switzerland, the Clash of Legal Orders and the Constitutionalization of the ECtHR

Federico Fabbrini 

Tilburg University - Department of Public Law, Jurisprudence & Legal History

Joris Larik 

KU Leuven - Leuven Centre for Global Governance Studies
September 18, 2013

Abstract:      

After years of negotiation, in April 2013 the European Union (EU) and the member states of the Council of Europe reached consensus on a draft Agreement on the Accession of the EU to the ECHR. This event represents a milestone development for the protection of fundamental rights in the EU. But what are the effects of accession on the ECHR and its court – the European Court of Human Rights (ECtHR)? This paper argues that the accession of the EU to the ECHR will represent a formidable boost for the constitutionalization of the ECtHR. By interpreting constitutionalization here as a process of increasing autonomy vis-à-vis international law, the paper explains how the Accession Agreement creates strong institutional pressures for the ECtHR to raise its standards of protection up to the level set by the Court of Justice of the EU (CJEU), or beyond. This race to the top in human rights protection, however, may come at the price of decreased abidance to international law, including the supremacy of the Charter of the United Nations (UN). To exemplify this argument, the paper considers the recent ECtHR Grand Chamber judgment in Nada v. Switzerland concerning the legality of counter-terrorism regime established by the UN Security Council. In its ruling the ECtHR found that Switzerland had violated the ECHR in implementing the UN counter-terrorism sanctions and, albeit without calling into question the action of the UN itself, strongly reaffirmed the primacy of the protection of human rights under the ECHR system. Through a critical discussion of the decision, the paper emphasizes how the ECtHR was squeezed between the willingness to avoid a direct clash with the UN and yet the unwillingness to lose the pace set by the CJEU in its celebrated Kadi decision. We conclude from this that Nada can only be rationalized in light of the looming accession of the EU to the ECHR and the ensuing pull towards the constitutionalization of the ECtHR.

Number of Pages in PDF File: 116

Keywords: Human rights, UN Security Council, autonomy from international law, multilevel governance, European Convention on Human Rights, EU accession to ECHR, Draft accession agreement, Judicial dialogue, constitutionalization, Nada, Kadi

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2334905

The Judicial Role in New Democracies: A Strategic Account of Comparative Citation

Johanna Kalb 

Loyola University New Orleans College of Law
February 26, 2013

38 Yale Journal of International Law 423 (2013)
Loyola University New Orleans College of Law Research Paper No. 2013-15 
Abstract:      

The United States Supreme Court has come under fire in recent years for its occasional references to foreign and international law. Critics suggest that the practice is undemocratic, displacing democratically developed norms with those of the international community. This Article challenges this critique via reference to the comparative citation practice of successful judiciaries in new democracies around the world. When institutional failures and international pressures threaten the democratic accountability of elected institutions, as they do in most countries in political transition, jurists may strategically use foreign and international law as a tool of "diagonal accountability" to mediate between domestic and international actors in ways that build the legitimacy of national political institutions and create space for democratic deliberations to occur. Thus, contrary to the dominant critique, this Article suggests that when democratic legitimacy is challenged, comparative citation can be part of the solution, rather than part of the problem. And though this phenomenon is most pronounced in new or fragile democracies, this Article contends that the comparative citation may also help courts in established democracies to mediate the domestic pressures created by globalization.

Number of Pages in PDF File: 44

Keywords: U.S. Supreme Court, democracy, courts, judges, foreign law, international law, comparative citation

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2331642

The Judgment in Akerberg – A Paradigm of Circular Reasoning

Martin Angelov 

University of Groningen - Faculty of Law
June 14, 2013

Abstract:      

Concerns over the material scope of the Charter of Fundamental Rights of the European Union (CFR) have been consistently growing since its solemn proclamation in 2000. Fears of the increased jurisdictional scope of the Court of Justice of the European Union placed Article 51(1) CFR at the center of academic attention, particularly after the official incorporation of the Charter as a binding source of primary law in 2009 . Despite the wide attention paid to the issue in the legal and academic circles, clarifications from the Court on the meaning of “implementing Union law” have been rather limited until the Akerberg judgment of February 2013. There, the Court extended the scope of the arguably strict wording of Article 51(1) and held that “implementing Union law” shall be read, as the official Explanations to the Charter provide, “within the scope of Union law” . In an attempt to put this landmark ruling into perspective, this article, first, briefly discusses the academic debates prior to and after the proclamation of the Charter, and second, analyzes a preceding decision in N.S. where the Court provided an implicit guidance on the proper interpretation of the scope ratione materiae of the Charter.

In investigating the Court’s reasoning related to the scope of Article 51(1) CFR in Akerberg, this article finally examines whether the CJEU attempts to reclaim the jurisdictional contours it used to possess prior to the incorporation of the Charter, when the Court enjoyed a wide discretion evident in its practice of running a comparative survey of rights protected by, inter alia, the constitutional traditions of Member States. Notwithstanding the clarification that the Court provided as to the proper way of interpretation of Article 51(1) CFR, this article respectfully submits and presents that the judgment lacked proper logical links between apparently conflicting arguments and is essentially based on circular reasoning. This article’s strong criticism of the Court’s approach in Akerberg is based on three major points: (i) the overt use of strong words instead of arguments and logical links; (ii) the problematic use of the indistinct fundamental rights-based case law as a justification for deviating from the language of the Charter which was itself created to make those very same fundamental rights more visible; (iii) the evidently circular logic applied in justifying the link between widened scope of Article 51(1) CFR, the case law on fundamental rights and the explanations.

Number of Pages in PDF File: 15

Keywords: Akerberg, Human rights,Charter of fundamental rights, European Union, Explanations, European law

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2323857

Coda: Kafka, Kadi, Kant

Robert Schutze 

Durham University - Durham Law School
September 11, 2013

Abstract:      

While Yusuf only knocked at the judicial gates of the European Court of Justice, another case managed to get passed the door of Europe’s highest court. This second judicial review case was – not without sublime irony – called Kadi; and it is that case that has become the modern point of reference for the relationship between international and European law. Presumed to be a Taliban terrorist, the plaintiff’s financial assets had also been frozen as a result of European legislation reproducing a United Nations Security Council Resolution. Kadi (“K”) tried to challenge the “arrest”, but the General Court rejected – on the same day and with the same reasons as in Yusuf – the request for judicial review; yet “K” appealed to the European Court of Justice by insisting that his (European) rights of due process (among other things) had been violated. When the European Court delivered its judgment, Kadi I instantly became a constitutional cause célèbre, which has caused barrels of academic ink to be spilt. How has the Court decided Kadi II; and what are the broader philosophical questions involved in this story? This Coda explores the milestones of this Kafkaesque saga, in which “K” ultimately walked free after a decade of judicial battles.

Number of Pages in PDF File: 10

Keywords: Kadi, European Law, International Law, Human Rights, United Nations, Terrorism

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2324574

International Law in Constitutional Interpretation: A Theoretical Perspective

Brent Michael 

University of New South Wales (UNSW)
2012

23 Public Law Review 197-215, 2012 
Abstract:      

Domestic courts have greater access than ever before to a wealth of international legal materials in a world with a plethora of international laws and courts. In this context, the question of what role international law should play in Australian constitutional interpretation is an important issue. This article explores the dilemma from a theoretical perspective, drawing on a distinction between the reliance on international law as a source of ideas, on the one hand, and reliance on international law purely because of its status as international law, on the other. It is argued that international law can be used legitimately as a source of ideas, and may have a limited role as a moral yardstick for considering public values where the Constitution requires examination of community standards. In all other situations, the author argues, the role of international law in constitutional interpretation should be carefully confined.

Number of Pages in PDF File: 19

Keywords: constitutional interpretation, international law

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2324429