GALILEU · e‑ISSN 2184‑1845 · Volume XXIV · Issue Fascículo 1‑2 · 1st January Janeiro – 31st December Dezembro 2023 · pp. 11‑15 11

Introduction

STEFANO RUGGERI1

steruggeri@unime.it

GALILEU–REVISTA DE DIREITO E ECONOMIA · e‑ISSN 2184‑1845

Volume XXIV · 1st January Janeiro–31ST December Dezembro 2023 · pp.11‑15

DOI: https://doi.org/10.26619/2184‑1845.XXIV.1/2.1

Submitted on April 1st, 2023 · Accepted on july 31st, 2023

Submetido em 1 de Abril, 2023 · Aceite a 31 de julho, 2023

TABLE OF CONTENTS Premise, Procedural fairness in transnational criminal justice:

the challenges of a long-overlooked topic, The structure and contents of this dossier: a

multilevel approach

1. Premise

In the ﬁeld of criminal justice, fair trial safeguards have long played enormous relevance

in the case-law of international and constitutional courts, which have not established

new standards of traditional individual rights but have also strongly contributed to the

acknowledgment of new rights and guarantees by means of a systematic understanding

of international or constitutional charters. The increase of transjudicial dialogue between

judicial bodies in the last decades has certainly favoured the search for solution models

and methodological approaches which could overcome the differences of cases and legal

experiences, with the ultimate goal of achieving ever higher standards of human rights

protection and more sustainable trade-offs among conﬂicting interests.

Yet procedural fairness today ﬁnds itself confronted with unprecedented challenges,

and there is little doubt that one of the most relevant factors determining such radical

changes is the increasing transnationaliation of criminal investigation and judicial

procedures. This outcome is due to a number of complex and different causes. Among

them, we should ﬁrstly include the in-depth transformations occurred several forms of

criminality, which have not only led to traditional offences gaining transborder features,

but furthermore have given rise to the emergence of new and extremely aggressive criminal

1 Ordinario di diritto processuale penale. Professor of European and Transnational Criminal Justice. Dipartimento

di Giurisprudenza “S. Pugliatti”. Università di Messina. Piazza Pugliatti 1. 98100 Messina.

Introduction

STEFANO RUGGERI

GALILEU · e‑ISSN 2184‑1845 · Volume XXIV · Issue Fascículo 1‑2 · 1st January Janeiro – 31st December Dezembro 2023 · pp. 11‑15

phenomena of a transnational nature, and mostly organised offenders acting across

territorial borders, and more and more even without borders. The evolution of science and

technology has in turn also contributed to such changes, and brought about even more

radical transformations, by way of putting at the disposal of criminal organisations an

enormous set of recourses that often enable them to elude investigation and prosecution,

thus frustrating the aims of an effective criminal-law action. But we should not overlook

another important factor from a legal perspective, i.e. that the progressive erosion of the

traditional boundaries between national and transnational criminal justice is also coupled

with the softening of the traditional division lines existing between formally criminal

matters and matters which, despite belonging to other legal areas, are characterised by

levels of sanctions that inevitably interact with criminal justice.

Against such complex scenarios, the ongoing process of transnationalisation of fair

trial safeguards provides a privileged viewpoint to understand the developments that

have taken (and are constantly taking) place in the ways criminal justice complies with its

goals – and therefore justiﬁes its functions and its very existence – in the current societies,

characterised by increasing degrees of multiculturalism, digital transformations and

new rhythms of human (and thus also criminal) action.

2. Procedural fairness in transnational criminal justice: the challenges of

a long-overlooked topic

This study deals with the transnational changes of procedural fairness by using

an interdisciplinary method which is mainly based upon a case-law approach. The

intervention of international and constitutional case-law in the ﬁeld of transnational

criminal justice, with a view to rethinking fair trial guarantees from a transnational

perspective, is a much less old but equally signiﬁcant phenomenon. Until the ‘90s, there

were only a few rulings in Strasbourg case-law that speciﬁcally treated fair trial rights

in the context of criminal proceedings entailing international cooperation, or anyway

having a transnational dimension, and remarkably, it was only in relatively recent times

that legal studies were carried out on the role of international and constitutional case-law

to this difﬁcult ﬁeld.

Nevertheless, it would probably be oversimplifying to acknowledge the somehow scant

jurisprudence on this topic. Further relevant factors need to be taken into consideration,

starting with the traditional way of conceiving the international procedures of judicial

cooperation in criminal matters. An in-depth analysis of international human rights

case-law, indeed, reveals that even in relatively recent times at least some transborder

Introduction

STEFANO RUGGERI

GALILEU · e‑ISSN 2184‑1845 · Volume XXIV · Issue Fascículo 1‑2 · 1st January Janeiro – 31st December Dezembro 2023 · pp. 11‑15

procedures were still seen in terms of mechanisms of administrative assistance, which

led to accepting a certain margin of ﬂexibility in dealing with fair trial principles.

Another relevant aspect deserves examination to understand this delay, that is, the

way international courts have long acknowledged (and today still largely acknowledge)

most fundamental safeguards in the light of a systematic and global view of criminal

proceedings. The jurisprudence of European Court of human rights, in particular,

provides a number of examples of this approach, which has led it to tolerate restrictions

on fundamental rights as long as national authorities have adopted adequate tools and

guarantees to avid a violation of the Convention. This approach, which opened up the door

to ﬂexible forms compensation for breaches of international charters at subsequent stages

of the proceedings, conﬁrmed the widespread conviction that international human rights

charters – as far as their relevant provisions in the ﬁeld of criminal justice were at stake

– maintained a scope largely limited to individual jurisdictions.

While international case-law still defends this view in relation to some key

safeguards (e.g., ne bis in idem in the ﬁeld of ECHR law), it is however apparent that an

overall understanding of procedural fairness does not ﬁt situations with a transnational

dimension. This conclusion has a very simple reason, which is that, as a general rule,

individual countries can be deemed liable for those procedural activities that take place

within their own jurisdiction, but in cross-border cases, these activities only cover a

limited part of a broader procedure with a transnational nature.

Moreover, the transnationalisation of crime justice is today a reality of such

importance that requires departing from a reductive understanding of a fair trial from a

cross-border (and sometimes even global) perspective. Doubtless, transnational criminal

justice endangers a proper protection of fair trial rights, since the individuals involved

in cross-border criminal proceedings often undergo additional risks and difﬁculties

to those existing in domestic procedures. In the light of this, there is a need for strong

efforts by all the competent authorities to ensure full compliance with international and

constitutional law standards of protection. An essential condition of a truly fair criminal

justice – as a unique legal experience in all social and constitutional orders based on the

rule of law – is indeed the satisfaction of the fundamental principle of equal treatment.

It might be argued that not only almost all fair trial rights and main safeguards (e.g., the

right to an independent and impartial judge or tribunal) but a number of core principles

in some jurisdictions (e.g., the principle of mandatory prosecution) are strictly linked to

this core requirement, which entails the need to redeﬁne the scope of the fundamental

safeguards of fair trial in the light of the increasingly transnational and global changes of

the procedures dealing with ius terribile.

Introduction

STEFANO RUGGERI

GALILEU · e‑ISSN 2184‑1845 · Volume XXIV · Issue Fascículo 1‑2 · 1st January Janeiro – 31st December Dezembro 2023 · pp. 11‑15

Constitutional and international courts have shown increasing ﬂexibility in adapting

their jurisprudence to these new challenges. But in Europe we should also mention the

contribution that the supranational case-law of the European Court of Justice has made to

such important developments in various areas concerning relevant fair trial safeguards

(right to legal assistance, right to interpretation, etc.) and principles (transnational ne bis

in idem). A view of transnational criminal proceedings in terms of complex procedures,

founded on a suitable division of labours and functions among the competent authorities

of different countries, provides a sound theoretical basis to avoid the risk of lowering the

thresholds of, or even producing gaps in, the protection of fair trial rights.

3. The structure and contents of this dossier: a multilevel approach

Within this general conceptual framework, the present dossier starts with the

examination of one of the most controversial problems in transnational criminal justice,

concerning the independence of the judiciary in criminal trials from the viewpoint of EU

law. The study conducted by Giulia Colavecchio, following the evolution of the case-law of

the ECJ, culminates in the analysis of the transnational dimension of this key principle

in the context of international surrender procedures by means of EAWs. Our study then

focuses on the perspective of fair trial rights of the accused. Within this area, Lorena

Bachmaier Winter analyses a right of the utmost relevance in every fair criminal justice

system, i.e. the right to lawyer-client conﬁdentiality, viewed in its multiple applications

from the perspective of ECtHR case-law and in relation to the challenges set by EU cross-

border criminal procedures.

There is little doubt that the existence of a fully conﬁdential relationship between

lawyer and client is an essential precondition for the effective exercise of the right to

a defence in its multiple applications, starting with the right to confrontation and the

right to be heard fairly, which gain particular relevance in transnational cases. Following

a multilevel approach, Antonella Falcone and Claudio Orlando deal with the evolution of

transnational investigation and evidence-gathering procedures from the viewpoint of

the transformations undergone by the right to confrontation in cross-border situations.

This contribution examines the developments occurred in MLA instruments mainly in

the light of ECtHR jurisprudence, but analysis is also extended to the potentials of new

technological means with a view to ensuring remote attendance and a proper collection

of testimonial evidence in transborder criminal proceedings particularly in the EU area.

Certainly, digital technology can help strike more proper trade-offs among conﬂicting

interests than in the past, especially between the defendant’s right to confrontation and

Introduction

STEFANO RUGGERI

GALILEU · e‑ISSN 2184‑1845 · Volume XXIV · Issue Fascículo 1‑2 · 1st January Janeiro – 31st December Dezembro 2023 · pp. 11‑15

the protection of victims and witnesses, though new challenges. Finally, the study of

Viviana Di Nuzzo and Elisea Malino – by way of cutting across international law, EU law, and

ECtHR case-law – focuses on the role of victims in transborder criminal investigations,

court proceedings, as well as in the challenging area of restorative justice.

The challenges concerned with fair trial safeguards in the ﬁeld of transnational

criminal justice, moreover, go beyond the sole area of criminal inquiries and court

proceedings, covering also the complex sphere of crime control and prevention. This topic

has been examined by Antonio Balsamo & Alessia Fusco, whose contribution deals with the

sensitive issue of patrimonial preventive measures, and the need to apply standards of

procedural fairness with a view to ensuring a fair preventive procedure and facilitating

cross-border cooperation.