Recent Developments in Legal Assistance in Criminal Matters
Citable Link (URL):https://doi.org/10.3249/1868-1581-2-3-rackow-birr
First published (peer reviewed)
Goettingen Journal of International Law 2010; 2(3) p.1087-1128
The field of legal assistance in criminal matters is deeply influenced by, and intertwined with, international law. However, legal assistance in criminal matters, which accordingly has been traditionally ruled by conventional tools of mutual legal assistance, is beginning to change: Heretofore, legal assistance in criminal matters has been rendered in compliance with basic principles which reflect the international law parity of the interacting States while being open to modifications by way of bilateral or multilateral treaties between individual States. Now, far-reaching changes seem to be well underway: The European Union is gaining ground as a global player, aiming to implement an “Area of Freedom, Security and Justice”. In order to reach this ambitious goal, a most important trend in criminal policy from a European perspective is to extend the principle of mutual recognition, which originally stems from the common market, to the area of criminal law. Taking an international perspective it is a remarkable evolution to see the European Union as an (arguably) idiosyncratic entity to commit its individual members to the fulfillment of obligations towards other non-Member States which the Member States themselves have not chosen. While both new approaches may be deemed more easily applicable beyond the realms of criminal law matters, namely in a commercial context, they indeed appear to be big steps in the sensitive area of criminal law which has traditionally been the sole responsibility of the sovereign State itself. Therefore the ongoing developments are bound to have international law repercussions. The following essay deals with these new developments in the field of legal assistance in criminal matters from a combined international and European perspective. We will be focusing specifically on the principle of mutual recognition since its implementation provides a litmus test for the state of procedural rights in the area of legal assistance in criminal law as well as its application within a reference-system previously governed by international law ultimately will modify international law. After describing foundational principles of legal assistance in criminal matters the ground will be prepared for further considerations by having a look at exemplary present application difficulties of mutual recognition, delve into the perspective of a rather radical simplification of transnational evidence gathering by application of the principle of mutual recognition. To give a complete picture we will examine the Intercontinental dynamics of legal assistance which has been put into effect under the rule of the European Union.