EU Criminal Justice: The Challenge of Due Process Rights within a Framework of Mutual Recognition

16 Pages Posted: 31 Jan 2012

See all articles by Jacqueline Hodgson

Jacqueline Hodgson

University of Warwick - School of Law

Date Written: January 30, 2012

Abstract

This paper sets an introductory framework to the 2010 conference in the series ‘The Future of the Adversarial System’, held at the University of North Carolina. In exploring a comparison between EU criminal justice and the American federal system, it considers different models of legal authority that operate across jurisdictional boundaries in some way (decisions of the European Court of Human Rights, EU legislation, US Supreme Court decisions) and the difficulty in ensuring compliance and enforcement by those on the ground required to put these into effect. Within Europe, the challenge is in applying legislative instruments and court decisions across the variety of legal procedures that exist, in a form of ‘one size fits all’ model. In the US, states may lack the resources and the political will to implement the consequences of a Supreme Court decision, particularly where it places new obligations on the prosecution. Where, to put it bluntly, those lower down in the legal food chain do not buy into the values enshrined by superior courts or legislatures, states will try to restrict the application of these legal norms by denying their systemic implications, or by distinguishing their own legal procedure from those addressed. When operating across states, countries or criminal procedures, the enforcement of positive rights (as against prohibitions) poses perhaps the greatest challenge.

Suggested Citation

Hodgson, Jacqueline S., EU Criminal Justice: The Challenge of Due Process Rights within a Framework of Mutual Recognition (January 30, 2012). North Carolina Journal of International Law and Commercial Regulation, Vol. XXXVII, 2011, Warwick School of Law Research Paper No. 2012/02, Available at SSRN: https://ssrn.com/abstract=1995523

Jacqueline S. Hodgson (Contact Author)

University of Warwick - School of Law ( email )

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