The European Union Agency for Law Enforcement Cooperation (Europol) is competent to support action by the EU Member States’ law enforcement authorities and strengthen their cooperation in the fight against cross-border crime. Europol is not a ‘European FBI’ as it does not have executive powers. Nevertheless, its contribution to the activities of national police authorities is increasingly appreciated by practitioners, especially since the Agency is in an ideal position to process and exchange enormous amounts of personal data that are relevant for criminal investigations. This chapter examines Europol’s history, structure, competence and powers, as well as its relations with partners and the rules on its accountability. It also focuses on the crucial role that Europol plays in shaping EU criminal justice thanks to its Serious and Organised Crime Threat Assessments, which set in motion a process at the European level by which the EU periodically identifies its priorities for the fight against serious international crime (the Policy Cycle-EMPACT). This chapter also analyses the forthcoming revision of Europol’s legal framework, which aims to ensure that the Agency can efficiently perform its tasks in an ever-changing security landscape.

INTRODUCTION

As judicial authorities face increasingly complex criminal legislation and evermounting workloads, to such an extent that the judicial apparatus risks losing its capacity to properly fulfil its function and maintain credibility, legislators and prosecutors are looking to various possibilities to filter out less exigent cases, to accelerate criminal proceedings or to launch new tools to make good on and prevent future wrongdoing without engaging the power of the criminal law at all.

One way of dealing with the overload of case files consists in resorting to forms of “negotiated” – as opposed to traditional, imposed – justice, such as outof- court settlements, penal orders, guilty pleas and deferred prosecution agreements. Such alternative routes first and foremost enable prosecutors and judges to handle certain cases more quickly and without having to comply with all of the burdensome trappings of a full criminal trial, in theory assuaging fears of loading criminal justice systems beyond breaking point. Yet the minimization, sidelining (or complete excision) of the full trial stage which is typical of negotiated justice mechanisms raises serious questions around the quality of justice being – swiftly – delivered, the openness of criminal justice in general, and the communicative function of sanctioning systems.

In this chapter, we explore these tensions through the prism of the evolving roles of the prosecutor and the judge in the context of negotiated justice in Europe.

We begin by reflecting, in Part II, on the main causes of overprosecution, before discussing its ramifications for the very viability of European criminal justice systems – such as the highly problematic overuse of pre-trial detention. The term “overprosecution” will be used interchangeably with “overuse of prosecution” to mean the (quantitatively) excessive resort to prosecution rather than any (qualitative) misuse or abuse of prosecutorial power.

Part 2 closes by situating the turn to negotiated justice mechanisms amongst a broader set of developments aiming principally to streamline criminal justice via strengthened prosecutorial power and a gradual shift toward more horizontal, transactional forms of dispute resolution.

Introduction

The legal framework of maintaining criminal records and access to the entries contained in these records, including cooperation with foreign authorities, has been recently modified by the Hungarian legislature. The prevailing legislation treats separately the types and contents of the criminal records on the one hand (first unit), and the use of them for the purpose of international cooperation in criminal matters on the other hand (second unit).

Accordingly, the first unit of the current regulatory framework is laid down in Act No. 85 of 1999 on the Criminal Record (Criminal Record Act or CRA). The CRA sets out the rules on criminal registers, including the types of register, the content and the accessibility of entries, the duty to provide data, as well as the surveillance body and data protection principles. The CRA is supplemented by a number of ministerial decrees, which regulate the technical aspects of the registers. For example Decree No. 6 of 2000 of the Minister of the Interior on the issue of extracts, Joint Decree No. 7 of 2000 of the Minister of the Interior and the Minister of Justice on the body in charge of keeping and maintaining criminal registers and the rules governing access to data contained therein and, lastly, Decree No. 8 of 2000 of the Minister of the Interior on photographs and DNA profiles.