this article discusses the desirability of EU action to complement the protection offered by the European convention on Human Rights to suspects in criminal proceedings. implementation of the mutual recognition principle should not tip the balance too far in favour of law enforcement and prosecution interests. the authors argue that increased efficiency in the protection of basic procedural rights is also urgently needed as a pre-condition for further mutual recognition of criminal judgments. the article also theorises on the harmonisation of criminal procedure in the light of considerations relating to the 'equality of arms'. Such equality is not naturally present in the criminal process, particularly during police questioning and investigations. Decisions about how far to restrict state power in criminal investigations will depend on the attitude to authority in a particular country.
Article 6(2) TEU provides that the EU shall accede to the European Convention on Human Rights. However, the EU accession project has been significantly delayed by Opinion 2/13 of the ECJ. At the same time, there appears to be some harmony in the case law of the two European Courts, which could lead to the status quo being considered as a valid alternative to EU accession. It might therefore be tempting to remove Article 6(2) altogether from the TEU at the next revision of the Treaties. This paper argues that Article 6(2) should stay in the TEU, because a closer look reveals that the current status quo is not satisfactory: it does not allow an adequate representation of the EU in the procedure before the European Court of Human Rights, nor is it capable of ensuring in the long-term comprehensive and stable consistency between EU law and the Convention. Moreover, removing Article 6(2) TEU would undermine the very idea of a collective understanding and enforcement of fundamental rights. This could initiate a process leading to the current European architecture of fundamental rights protection being unravelled altogether. Hence, there is no return from Article 6(2) TEU. Neither is there from actually implementing it.
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