مقاله انگلیسی رایگان در مورد مجازات و حقوق در شهروندی اتحادیه اروپا – وایلی 2018

Over the last few years, the debate on rights and duties in European Union (EU) citizenship has been fiercely revamped.1 The eruption of the economic crisis has brought about a manifold and widespread attitude of closure and wariness on the part of Member of States towards non‐nationals. Scholars have identified continuity of such evolution in a wider trend of un‐freedomisation that started especially as a reaction to September 11.2 In this context, thorny questions have arisen as to what to make of foreigners—and in particular Union citizens— that have committed a crime in the Member State where they are based. Union law has seen crime and criminal convictions slowly emerging as a criterion to allocate (or deny) rights and distinguish between the good and the bad citizen. A number of cases have been brought to the attention of the EU Court of Justice (‘CJEU’ or ‘the Court’). In these decisions, the Court regarded wrongdoings as a signifier of the offender’s disregard for societal values and lack of integration. Such an approach explicitly looks at integration as a requirement for granting citizenship rights; integration which is, in turn, denied per se by criminal behaviour. Thereby, crime has become a sufficient reason on its own to deny citizenship rights (mainly right to residence and protection against expulsion). Scholars have referred to such a strongly value‐based argumentative patter as a normative turn in the Union discourse.3 Along similar lines, Stephen Coutts has traced back the Court’s decisions to a retributive stance, and in particular to Anthony Duff’s communitarian approach to criminal law.4 The CJEU’s application of the latter approach to cases of Union citizenship would be directed towards the establishment of a community of values within the EU. The CJEU would be using criminal law and public security to strengthen ‘the substance of Union citizenship by complementing the rights of the Directive with correlative obligations’. 5 This paper challenges that vision and argues that the Luxembourg judges point in the opposite direction. It is submitted that the Court resorts to citizenship to strengthen the legitimacy of (in particular, EU) criminal law. It does so by outlining a model of probationary citizenship, built upon presumptive mechanisms and the use of an abstract category such as ‘crime’ and ‘the criminal’. With the protection of the law‐abiding citizen from the dangerous individual in mind—embodied by a broad interpretation of public security—the Court allocates or restricts rights on the basis of an individual’s criminal record. Therefore, the article analyses the Court’s case‐law beyond the logic of rights restriction or obligation imposed. It offers a different perspective on the existing debate, by revealing a paradigmatic shift in the Court’s approach. To do so, the rulings are not merely understood and assessed as cases on the limits of citizenship rights. Rather, the approach of this research brings to the fore the deeper understanding of the role for criminal law and the criminal embraced by the CJEU.