De-criminalisation in light of fundamental rights: a role for EU law?

• In Event: The Future of EU Criminal Policy

Abstract

The EU’s powers in the field of criminal law and policy tend to be framed in a manner that obliges Member States to criminalise certain behaviour; Article 83 TFEU allows for establishing minimum rules concerning the definition of criminal offences and sanctions. The question what role the EU could and should have regarding de-criminalisation of certain behaviours is not often asked in a systematic fashion. Yet the use of criminal law may come into conflict with fundamental rights, including the right to freedom of expression and the right to privacy, thus involving EU foundational values and Charter rights. This paper will explore whether the EU’s criminal justice powers currently provide enough room for encouraging or even obliging states to de-criminalise behaviours that should not be covered by criminal law in light of fundamental rights. A recent example where this discussion was raised is regarding the Commission’s proposal for a new Facilitation Directive. While the Preamble makes it clear that the provisions on human smuggling are, in principle, not meant to criminalise humanitarian assistance, no exemption is provided in the operative text; after all, the Commission interprets Article 83 TFEU so as not to include the power to oblige states not to criminalise certain behaviours. This raises critical questions, though: several Member States have increasingly resorted to criminalisation to target NGO’s providing assistance to migrants in need, in ways that directly affect the human rights of migrants. Beyond the field of migration, problematic tendencies towards criminalisation in Member States can also be seen in fields such as protests and in the sphere of LGBTQI+ rights. The infringement proceedings before the Court of Justice regarding Hungary’s law prohibiting LGBTQI+ references in content for minors exemplifies the importance of more systematically analysing the EU’s powers of de-criminalisation, in light of protecting fundamental rights.

Author

• Marloes van Noorloos, Leiden University