دانلود رایگان مقاله انگلیسی مجازات و حقوق در شهروندی اتحادیه اروپا: افراد یا مجرمین؟ - وایلی 2018

Abstract

While European Union (EU) citizenship has traditionally been key to limiting criminalisation at national level, over recent years crime has become a criterion to distinguish between the good and the bad citizen, and to allocate rights according to that distinction. This approach has been upheld by the EU Court of Justice (CJEU) in its case‐law, where crimes show the offender's disregard for the societal values of the host Member States, and deny his/her integration therein. This article argues that citizenship serves to legitimate criminal law. The Court outlines two—counterposing—types of human being: the law‐abiding citizen and the criminal. The article shows the legal unsoundness of the Court's approach. It does so by analysing and locating the case‐law over a crime–citizenship spectrum, marked at its opposing ends by Duff's communitarian approach to criminal law, on the one hand, and Jakobs' criminal law of the enemy, on the other.

4 | CONCLUDING REMARKS

EU citizenship law has been built on the right, for Member States' nationals, to move and reside freely across the Union. These freedoms—and other, associated substantive rights—are balanced, in primary and secondary law, by limits and conditions. While the reach and nature of these limits and conditions have not always been crystal clear, a trend has emerged over recent years where criminal conduct is key to both these concepts.

Starting with the Tsakouridis judgment, the Court seems to have drawn a line between a prior approach to crime and citizenship rights, more favourable to the person concerned, to a subsequent, restrictive and (apparently) value‐based one. To analyse and locate the CJEU's approach, the article has used a crime–citizenship spectrum, at the ends of which Duff's and Jakobs' accounts of punishment—hereby understood in its broader sense—have been placed. On the one hand, Duff's approach advocates for a criminal law built upon an inclusive understanding of community and citizenship and includes reformation of the wrongdoer in the purposes of punishment. On the other, Jakobs' theory distinguishes between the citizen and the enemy: while the former is still in a dialogue with the community and ‘deserves’ the application of ordinary criminal law, the latter is a threatening individual (a person no longer recognised by the legal order) requiring pure incapacitation.