Integrated criminal procedure

Based on my previous research on EU criminal law and constitutional EU law, I am currently carrying out the project 'An integrated criminal procedure - a threat to national sovereignty?', which includes a critical examination of EU Procedural Criminal policy under the Lisbon Treaty. Instead of merely analysing the constitutional framework that has been the key focus of my previous research on substantive criminal law, this project also analyses how EU law is implemented at national level. Unlike EU substantive criminal law, EU criminal procedure appears to be a rather underexplored area. The significant relevance of criminal procedure in the legal system from a rule of law perspective requires a careful investigation of the above-mentioned issues. Although there are individual specialised contributions in this area, there is currently no comprehensive study of EU criminal procedure since the Lisbon Treaty.

The project is characterised firstly by the constitutional approach. The transfer of powers from the Member States to the EU to legislate on measures to harmonise Member States' rights protection and the transfer of operational criminal powers to an EU authority could jeopardise respect for the state as a sovereign entity. This development challenges Member State - driven criminal justice cooperation as the leading philosophy and instead indicates a quest for a more 'integrated' criminal justice system. The second important aspect of the project relates to the consequences for national criminal law. The problem for national criminal justice systems is that- in addition to the rights prescribed in national procedural laws- there is an additional layer of EU rights that applies either in addition to or overrides the 'national' rights. The 'Europeanisation' of and the creation of new procedural rights in national legal systems through EU directives poses a potential threat to the inherent system of criminal law. The project consists of two parts. The first part of the project aims to identify the limitations of the Union's competences in the field of criminal procedure through a critical examination of Articles 82, 85, 86 and 88 TFEU. In particular, it shall be analysed whether the legal interpretation of the competences is consistent with general normative principles for how competences should be distributed between central entities and its constituent members within a federal jurisdiction. The second part of the project analyses the national constitutional and criminal law issues that arise with the more extensive supranational cooperation in the field of criminal procedure. This includes an examination of how the implementation of EU legal acts has affected the protection of rights that follow from national procedural law schemes and how the activities of the EU authorities have affected the activities of the national criminal investigation authorities. In two preliminary studies in the field, ‘EU Procedural Criminal Law after Lisbon’ (Brill, 2019) and ‘Trust in the Law? Mutual Recognition as a Justification to Domestic Criminal Procedure '(Volume 16 of the 2020 European Constitutional Law Review), I have mapped and critically analysed the legal and political problems that the Union's new criminal procedure powers entail and which require further investigation in the planned project.

Publications:

J Öberg, ‘Trust in the Law? Mutual Recognition as a Justification to Domestic Criminal Procedure’ 16 (2020) European Constitutional Law Review 33

J Öberg, ‘EU Procedural Criminal Law after Lisbon’ in J Altena, S Miettinen, J Ouwerkerk and J Öberg (red) The Future of EU Criminal Justice- Policy and Practice: Legal and Criminological Perspectives (Brill Publishers, 2019), 225-254

J Öberg ‘Subsidiarity and EU Procedural Criminal Law’ 5 (2015) European Criminal Law Review 19