J.A.E. Vervaele

The anti-terrorist legislation in the US : inter arma silent leges?

The greatest danger posed by terrorism to our democracy and to our constitutional republic may be our executive branch’s overreaction to terrorism and its use of terrorism to erode the constitutionally mandated checks and balances and sharing of powers in foreign affairs, war powers and combating international crime. (Blakesley, 1992)

Enforcing the Market Abuse Regime: Towards an Integrated Model of Criminal and Administrative Law Enforcement in the European Union?

The European Union has long been an important driver for the integration of financial markets in Europe. The goal of this article is to map how the current and future legal infrastructure in respect of the investigation, prosecution and punishment of market abuse rules supports the central assumption of the EU legislature that, in order to offer a comprehensive package in the fight against market abuse, a level playing field throughout the EU is necessary. Although good progress has been made with the proposals for a new regulation and directive on market abuse, it is our opinion that these proposals still do not sufficiently take account of the fact that highly integrated financial markets also need highly integrated law enforcement structures and powers, regardless of the organizational statute of the national authorities involved (criminal or administrative).

Implementation of EU Enforcement Provisions: Between European Control and National Practice

For effective enforcement of its law the EU is to a large extent dependent on the enforcement efforts of the member states. The member states are responsible for the correct and timely application of EU treaties and secondary EU legislation. This dependence is an important reason for the European legislator and European courts to increasingly guide national enforcement. Interesting questions result from this guidance. What exactly is the relationship between EU legislation in the area of law enforcement and national policy and legislation in this respect? How is that legislation implemented, and can patterns be recognized in this? What problems are the national legislator and the national enforcement practice and organisation faced with in this respect? These questions have been dealt with in respect to the Netherlands in a research project carried out in 2006 and 2007 by researchers of Leiden University and Utrecht University. The project was commissioned by the Dutch Justice Ministry’s Research and Documentation Centre. This article presents the main results of this research into the implementation of EU enforcement provisions in the Netherlands.

The European Public Prosecutor's Office (EPPO): Introductory Remarks

These introductory remarks deal with the reasons why the EPPO is perceived by some as a controversial body. These reasons are mirrored with the problem identification and the causes thereof. The size of EU fraud and related corruption and money laundering, both at the income and expenditure side, is quite significant. There is also a strong enforcement deficit in the Member States, especially in the case of complex transnational VAT and customs fraud cases. Three fields of action are potentially of interest for the EPPO: VAT, customs and smuggling, and fraud and corruption within the EU institutions. This leads to the analysis of what the potential added value of the EPPO could be, both from a technical fraud perspective as from a political legitimacy perspective. Finally, the introduction deals with the ongoing negotiations on the EPPO proposal, taking into account the mandate and rationale of Article 86 TFEU in the framework of the Area of Freedom, Security and Justice.

La entrega extraordinaria y la desaparición forzada a la luz del derecho penal y el derecho internacional de los derechos humanos

Tras los atentados del once de septiembre, el gobierno de los Estados Unidos de America emprendio una lucha contra el terrorismo prevalido de sus propios metodos; por ello, con la colaboracion de diversas naciones, sobre todo europeas, llevo a cabo un programa de entregas extraordinarias de sospechosos a quienes, en secreto y sin orden judicial alguna, se privo de la libertad, desaparecio, torturo y recluyo en carceles e instalaciones destinadas a tales efectos, como la base de Guantanamo. En el articulo se examinan estos hechos a la luz del derecho internacional de los derechos humanos.

Redefinición de los objetivos, la naturaleza e instrumentos del sistema de justicia penal bajo el paradigma de la seguridad

Redefinicion de los objetivos, la naturaleza e instrumentos del sistema de justicia penal bajo el paradigma de la seguridad

Surveillance and Criminal Investigation: Blurring of Thresholds and Boundaries in the Criminal Justice System?

Surveillance is increasingly used as in investigative technique, both as a tool of judicial investigation to gather evidence as a tool in a pre-active setting, before the preparation of an offence, to gather information about risks, threats and dangerousness of personal behaviour and thinking. The net widening and function creep of investigative surveillance imply conceptual changes which are strongly related to the information society and to transformations in the criminal justice system under the security paradigm. Classic thresholds and procedural guarantees in the criminal justice system have become obsolete. The human rights dimension of these surveillance measures are mostly dealt with under the protection of privacy. However, given the potential intrusive impact of surveillance and the coercive character of some surveillance techniques, also in the pre-emptive setting, it is logical to build in guarantees against disproportionate infringements of privacy, human dignity and the presumption of innocence. The latter could then be related not to the commission of offences, but also to the definition of dangerousness.