Unity of Intent Effect on Sentencing: An EU Dimension to ne bis in idem and Proportionality?

Nele Audenaert

doi:10.5771/2193-5505-2018-1-39

Contents
- Chapter Expand | CollapseAuthorsPage
- 1–2 Titelei/Inhaltsverzeichnis 1–2
- 3–4 Editorial 1/2018 3–4
- 5–142 Articles 5–142
  - 5–38 (In)Effectiveness of Criminal Sanctions as Regards Irregular Immigrants Costanza Di Francesco Maesa Costanza Di Francesco Maesa 5–38
  - 39–61 Unity of Intent Effect on Sentencing: An EU Dimension to ne bis in idem and Proportionality? Nele Audenaert Nele Audenaert 39–61
  - 62–82 Electronic Evidence in Criminal Matters: How About E-Evidence Instruments 2.0? Sofie Depauw Sofie Depauw 62–82
  - 83–115 Towards the EU Harmonization of Access to Cross-Border E-Evidence: Challenges for Fundamental Rights & Consistency Nathalie A. Smuha Nathalie A. Smuha 83–115
  - 116–142 Anonymous Witness Evidence before the European Court of Human Rights: Is It Still Possible to Speak of “Fair Trial”? Simone Lonati Simone Lonati 116–142
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EuCLR European Criminal Law Review , page 39 - 61

Unity of Intent Effect on Sentencing: An EU Dimension to ne bis in idem and Proportionality?

Autoren

Nele Audenaert

DOI
- doi.org/10.5771/2193-5505-2018-1-39
- ISSN: 2191-7442
- ISSN online: 2193-5505
Abstract

The European Union aims to develop a well-balanced, mature European criminal law, where free movement of persons as well as free movementof judgments is being pursued in order to install a European Area of Freedom, Security and Justice, and to obtain an effective cooperation in criminal matters to tackle cross-border crime. This goal can only be achieved when the Member States of the European Union have trust in each other’s legal systems (‘mutual trust’). One of the aspects of this mutual trust is reflected in the so-called mutual recognition principle, according to which the equivalence of foreign and national convictions when sentencing is being aspired by the Member States. This recognition of foreign final criminal judgments by a national criminal court can be, at least theoretically, both in advantage and disadvantage of a defendant (I). However, a closer look on the Belgian legal practice, by way of example, shows that it apparently is not necessary for Member States to trust each other in all situations thinkable, for example when several (cross-border) offences are committed with a premeditated intent (II). The question arises whether this distrust, even if it is legally allowed to completely undermine the freedom of movement and the mutual recognition principle, does not violate some of the fundamental human rights and freedoms of a defendant as provided for in several European legal instruments (III).
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