Holding to Account a Possible European Public Prosecutor Supranational Governance and Accountability Across Diverse Legal Traditions

The Lisbon Treaty provides a legal basis for the Member States of the European Union (EU) to establish a European Public Prosecutor (EPP) with competence to prosecute, in the courts of the Member States, crimes against the financial interests of the Union. Article 86 of the Treaty on the Functioning of the European Union, provides that the Member States may unanimously, or through flexible cooperation where nine Member States agree, establish such a European-level prosecution body, with the possibility for its powers to be extended by unanimity to include serious crime having a cross border dimension or affecting more than one Member State. Within the legal traditions of the Member States, means of holding prosecution authorities to account vary considerably. Probably the strongest form of accountability exists in the civil law tradition of Member States that permit appeals to judicial bodies for decisions not to prosecute, which contrasts with the traditional common law reluctance to even give reasons for not prosecuting. Similarly, the ways in which prosecution authorities interact or overlap with police functions, and thus with general mechanisms of police and/or bureaucratic accountability, differ. Some of the particular features of EU cooperation suggest additional accountability issues, notably, questions concerning competence spill-over and problems of remoteness. This paper seeks to address how to conceptualise governance and accountability of a possible EPP outside of the context of a trial (the latter entailing a type of open legal accountability that can be studied in its own right) and including the question of the definition of competences.     

The Cocoon of Power: Democratic Implications of Interinstitutional Agreements

Abstract:  This article assesses Interinstitutional Agreements (IIAs) in terms of democratic theory. It starts from the premise that democratic rules as developed in the national context may be used as a yardstick for supranational governance as well. Thus, parliamentarisation of the Union is defined as an increase in democracy, although relating problems such as weak European party systems, low turnouts, and remoteness are not to be neglected. The article evaluates several case studies on IIAs in this vein and asks whether they strengthen the European Parliament or not, and why. It arrives at conclusions that allow for differentiation: empowerment of the European Parliament occurs in particular when authorisation to conclude an IIA stems from the Treaty or from the power that the European Parliament has in crucial fields such as the budget and is willing to use for this purpose. Success is, however, not guaranteed in every case, and is sometimes more symbolic than real. However, a democratic critique must also stress negative consequences of IIAs in terms of responsivity, accountability, and transparency.     

European democracy,parliamentary decline and the ‘democratic deficit’ of the European Union

This article examines two different, yet interrelated, phenomena: parliamentary decline in western Europe and the ‘democratic deficit’ of the European Union (EU). It argues that the latter has helped to consolidate, and in certain areas, facilitate, the former. This is illustrated by two sets of empirical studies, covering first the European Community (and in particular the Common Agricultural Policy and Economic and Monetary Union) and then the Common Foreign and Security Policy, and co‐operation in Justice and Home Affairs. The main conclusion to be drawn is that a simple reordering of some policies within and across different pillars will not remedy the current democratic shortfalls of the EU which stem as much from the inadequacy of existing parliamentary structures to hold EU decision makers to account, as from the absence of a European demos. The combined effects of the above are particularly crucial for the democratic viability of the emerging European polity which, as with any other political system in the modern democratic era, needs to strike a balance between efficiency and accountability.     

Transparency and accountability of central banks in their role of financial stability supervisor in OECD countries

We aim to get a better understanding of the accountability of central banks in their role of financial stability supervisors, distinguishing between three crucial elements: (1) the legal basis for the financial stability task, (2) providing of information on financial stability, and (3) the formal relationship between the accountable and the accountee. We conclude that in most OECD countries the law does not provide a clear objective for financial stability supervisors. Many central banks nowadays publish a stand-alone financial stability report. In most countries there are hardly any accountability measures in place regarding the objective of financial stability. JEL classification G28     

Privacy,surveillance, and the proportionality principle: The need for a method of assessing privacy implications of technologies used for surveillance

Developments in technology have created the possibility for law enforcement authorities to use for surveillance purposes devices that are in the hands or private premises of individuals (e.g. smart phones, GPS devices, smart meters, etc.). The extent to which these devices interfere with an individual's private sphere might differ. In the European Union, surveillance measures are considered lawful if they have been issued in conformity with the legal rules and the proportionality principle. Taking a fundamental rights approach, this paper focuses on the information needed for adopting proportionate decisions when authorizing the use for surveillance of devices that are not built for surveillance purposes. Since existing methods of privacy assessment of technologies do not offer the required information, this paper suggests the need for a new method of assessing privacy implications of technologies and devices which combines an assessment of privacy aspects with the different dimensions of surveillance.     

The Role of Investigative Committees in the Presidential Impeachment Processes in Brazil and Colombia

One of the most important political debates today regards how to design institutions to ensure the accountability of public officials. The impeachment process is one mechanism of accountability check available to legislatures. It is, however, susceptible to misuse. What determines how the impeachment process functions? In this paper, I argue that control of information by congressional investigation committees is a crucial factor in deciding the outcome of the impeachment process. I show how the difference in information control by the investigative committees in Brazil and Colombia contributed to the removal of a president in one country and a president's acquittal in the other.     

An information network of officials? Dissecting the role and nature of the network of parliamentary representatives in the European Parliament

Enhancing the role of national parliaments in the European Union’s decision-making process has for some time been a popular way in which policy-makers have sought to address legitimacy problems in the European Union, the Early Warning Mechanism being only one example. In response to these developments, an increasing number of scholars have addressed the question of how parliaments make use of these powers in practice. An important dimension of the process – the role of parliamentary officials in parliamentary scrutiny and control – has so far been neglected in the literature. Against this background, this article examines the role of the representatives of national parliaments in the European Parliament with the aim of understanding the role and the nature of this ‘bureaucratic network’. While falling short of an epistemic community, these officials play an important role in enabling parliamentary scrutiny through the dissemination of information.     

Democratising online content moderation: A constitutional framework

Freedom of expression is one of the cornerstones on which democracy is based. This non-exhaustive statement firmly clashes with the troubling evolution of the algorithmic society where artificial intelligence technologies govern the flow of information online according to opaque technical standards established by social media platforms. These actors are usually neither accountable nor responsible for contents uploaded or generated by the users. Nevertheless, online content moderation affects users’ fundamental rights and democratic values, especially since online platforms autonomously set standards for content removal on a global scale. Despite their crucial role in governing the flow of information online, social media platforms are not required to ensure transparency and explanation of their decision-making processes. Within this framework, this work aims to show how the liberal paradigm of protection of the right to free speech is no longer enough to protect democratic values in the digital environment, since the flow of information is actively organised by business interests, driven by profit-maximisation rather than democracy, transparency or accountability. The role of free speech is still paramount. However, the challenges raised by the algorithmic society leads to focus on enhancing the positive dimension of this fundamental right by introducing new users’ rights and transparency and accountability obligations for social media to inject democratic values in the digital environment.     

Changing Patterns of Culture and its Organisation of the Police in a Society of Transition - Case Study: Hungary

The authors examine what happens to the police when a country is in transition towards a more democratic organisation. They use Hungary as the main example, but also provide information about other Eastern European countries. First they elaborate on the case of continuity - discontinuity. Transition is not a result of one moment, it is more appropriate to talk about the erosion of previous values and patterns having taken place for years or even decades instead of their sudden change. There is, however, an indisputable influence of politics on the police. In the course of the change of regime, not only the police but also all the institutions that previously served (in varying degrees) the institutionalised control of criminality, came to a crisis point and their existence and functions became questionable. The authors deal with the vacuum of legitimacy, and possible answers, such as auditing of the police, democratisation and several ways to establish accountability. Finally, a model of the democratic organisation of the police (demilitarised, decentralised and de-concentrated) is sketched.     

Accountability in Governance: The Challenge of Implementing the Aarhus Convention in Eastern Europe and Central Asia

The signing of the 1998 UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention) radically extended international law on transparency and accountability in environmental governance. For the countries of Eastern Europe, Caucasus and Central Asia (EECCA) that have now ratified, the Convention could prompt profound democratic changes. This article, based on the authors' experiences, analyses changing cultures of governance in EECCA countries. The first so-called pillar of access to information sets in place rights that directly contradict the fundamental secrecy of the former Soviet Union countries. Some officials' reluctance to share environmental information may also be linked to the economic duress of the current transition period, where information may be an official's only asset. The second pillar of public participation also poses difficulties for officials for whom the highest praise is to be considered a professional. In their belief that no one knows better than they do, they are reluctant to spend time and resources to make decision-making transparent and to involve the public. The third pillar of access to justice breaks new ground for post-socialist countries still developing their judicial systems. Though several highly sophisticated NGOs have been successful in using courts, it remains difficult for an ordinary EECCA citizen to bring an environment-related legal action. Changing these attitudes and practices will be a long and troublesome process. The Aarhus Convention will not be truly implemented until openness, transparency and accountability in environmental decision-making become everyday habits.     

渤海特别法执行权模式探析

执行权模式是立法规定行政权力及其责任的方式,它影响着行政机关的权力行使积极性和问责程度。与传统授权法模式相比,权力责任法模式更有助于实现积极行政,从而更适合于环境法。以授权法为主的执行权模式难以起到良好督促效果是导致渤海治理相关立法执行不力的根源之一,未来的渤海特别法必须建立权力责任法模式,在管理体制和具体制度上作出相应安排。     

Powers and Accountability of Private Police

Substantial growth in private policing has been documented in countries throughout the world, and the division of responsibilities for policing between public and private authorities has become increasingly blurred and contested during the last three decades. Because private policing is so frequently assessed on the basis of criteria established with respect to the public police, substantial myths have developed about the powers and accountability of private police; specifically, it is commonly asserted that private police have no significant power(s), and are essentially not accountable, in comparison with the public police. The author argues that such assertions misrepresent the very substantial coercive power of private police as well as the variety of mechanisms through which they may be held accountable, and also commonly exaggerate the effective accountability of the public police. The author concludes that a greater appreciation of the actual power and accountability of private police will provide an improved basis for the development of sound public policy with respect to both private and public policing, and with respect to appropriate relationships between private and public policing organisations.     

The Embedded Acquis Communautaire: Transmission Belt and Prism of New Governance

The European Union offers crucial insights into the gradual shift from a Weberian form of modern 'government' towards the institutionalisation of post-Weberian 'governance'. The article argues that the emerging 'polity of polities' context, not only threatens the constitutional basis of democratic rule but also raises the questions of what exactly the new institutions of governance beyond the nation-state are, and what they imply for the functioning (rules of the game) and legitimacy (democratic processes) of the political order. In an effort to elaborate on these questions, the article develops two themes. First, it raises critical questions about the conceptual boundedness of 'governance' in the discussion of constitutional and policy studies within the field of European integration. Secondly, it advances a methodological access point for the study of the institutionalisation of governance in the Euro-polity. It suggests situating the legal concept of acquis communautaire at the boundary of legal studies and politics. The concept is then applied to a case study of citizenship policy in the EU to demonstrate how the acquis communautaire–more precisely, the 'embedded acquis communautaire'–facilitates methodological access to the study of the institutionalisation of governance beyond the state and despite states.     

Legitimacy and Internet in the Judiciary: A Lesson From the Italian Courts' Websites Experience

Judiciaries in democratic countries have been facing problemsof low legitimacy due to increasing judicial activism. Traditionalforms of accountability have shown to be inadequate to the presentsituation. The purpose of this article is to examine whethereasy access to information on judicial systems, courts’activities and cases available through the Internet can increaselegitimacy. Although websites can be a tool to enhance accountability,transparency, legality and representativeness of the judiciary,the results of this article show that this is not always thecase. The authors hypothesize that enhancements occur when certaincombinations of four core elements (organization of the webservice provision, access to information, content, and users)take place. Based on an examination of all websites of threejudicial systems, we seek to provide an initial outlook on theuse of websites in facilitating legitimacy, and a contributionto knowledge in the field of courts and ICT.     

Challenging Executive Dominance in European Democracy

Executive dominance in the contemporary EU is part of a wider migration of executive power towards types of decision making that eschew electoral accountability and popular democratic control. This democratic gap is fed by far‐going secrecy arrangements and practices exercised in a concerted fashion by the various executive actors at different levels of governance and resulting in the blacking out of crucial information and documents – even for parliaments. Beyond a deconstruction exercise on the nature and location of EU executive power and secretive working practices, this article focuses on the challenges facing parliaments in particular. It seeks to reconstruct a more pro‐active and networked role of parliaments – both national and European – as countervailing power. In this vision parliaments must assert themselves in a manner that is true to their role in the political system and that is not dictated by government at any level.     

Reconstituting social order and social control: Police accountability in Canada

Despite the important role which the police play in the reproduction of social order, there is a lacuna in critical criminological literature on the policing of democratic societies. As a consequence, the mistaken impression is fostered that policing in Canada is not problematic. This paper challenges this view, documenting the extent of police malpractice and raising the question of the need for police accountability. Within this context the authors discuss three forms which police accountability has historically taken: judicial inquiry, community police monitoring groups, and consultative liaison panels. One problem which the authors note is the way in which all three models depend upon the police for information about the nature of crime and policing, making them susceptible to dominant discourses about policing. Thus they continue by discussing the left realist model as potentially a fourth model. This form of police accountability emerged in Britain during the 1980s and is characterized by the production of an alternative discourse on crime and police practices based on locally conducted and controlled victimization surveys. The extent to which this practice of police accountability might be relevant to the Canadian context remains yet to be explored. The authors note in closing, however, that this is an empirical and not a theoretical question, meaning that Canadian criminologists must become more practical and less academic in their discourses of social control. “A riot is at bottom the language of the unheard” (Revd. Martin Luther King, 1967)     

Justificatory Liberalism and Same‐Sex Marriage

Supporters of Justificatory Liberalism (JL)—such as John Rawls and Gerard Gaus—typically maintain that the state may not coerce its citizens on matters of constitutional essentials unless it can provide public justification that the coerced citizens would be irrational in rejecting. The state, in other words, may not coerce citizens whose rejection of the coercion is based on their reasonable comprehensive doctrines (i.e., worldviews). Proponents of the legal recognition of same‐sex marriage (SSM) usually offer some version of JL as the most fundmental reason why laws that recognize marriage only if it is a union between one man and one woman are unjust. In this article I argue that the application of JL in support of legal recognition of SSM does not succeed because the issue under scrutiny—the nature of marriage—is deeply embedded in, and in most cases integral to, many (if not most) citizens’ reasonable comprehensive doctrines. Thus, I argue that because of the effects and consequences of the legal recognition of SSM, it results (or will result) in a violation of JL against dissenting citizens.     

The General Provisions of the Charter of Fundamental Rights of the European Union

The Charter of Fundamental Rights of the European Union provides the Union with a 'more evident' (as the European Council of Cologne asked for) framework of protection of the individuals before the public authorities within the European context, after more than thirty years (since the Stauder Case ) of full confidence in the leading role played by the jurisprudence of the Court of Justice of the European Communities. This new normative catalogue of fundamental rights (included the so called 'aspirational fundamental rights') implies one more instrument of protection which has to find its own place with regard to the protection afforded by the national Constitutions and the international agreements on human rights, particularly the European Convention on Human Rights, which are already a privileged source of inspiration for Court of Justice of the European Communities. It is the main objective of the General Provisions of the Charter to clarify which is that place and the relationship with those other levels of protection as managed by their supreme interpreters (i.e., the Constitutional—or Supreme—Courts of the Member States of the Union and the European Court of Human Rights).     

Legislatures of Small States: A Comparative Study

This article, drawing upon a quantitative survey of over 80 parliamentarians, as well as website surveys combined with qualitative interviews, explores the degree of usage of Information and Communication Technologies (ICTs) by Swedish parliamentarians. It also begins to consider any implications for party organisations and parliamentary authorities. The authors suggest that, by 2005, Swedish MPs were becoming ‘electronic parliamentarians’ and that this, combined with the growing usage of political blogs, places increasing demands upon party organisations and the Riksdag to consider the broader management and accountability issues of greater ICT usage by individual MPs. The authors argue that there is a pressing requirement for further research on these organisational and institutional dimensions by scholars of legislative studies, particularly, given the developments in ICT-advanced political systems, like Sweden.     

State services for children: an exploration of who benefits, who governs

In recent years, equity, choice, and efficiency issues in the provision of education have received much attention and analysis. Yet, in the area of other state services for children (health, protective services, day care, etc.), there has been scant concern for equity, efficiency, or choice, despite the fact that out-of-school influences can be crucial in determining in-school performance. This paper reports on work in progress that reaches the following initial conclusions: 1. In the field of children's social services, data compilation is approximately 20 years behind the state of the art for education. Basic data on services provided is not collected for submission to state or federal authorities in any standard format on a recurring basis. 2. From the limited data available, the access of children to quantity and quality in social service programs varies enormously within states. The variations are much larger than those discovered in the public financing of education even before the recent school finance reform movement (1968-1978). 3. Federal allocations to states for social service programs comprise a substantial proportion of state Title XX budgets. For several reasons, the degree of accountability for these funds is less than that for federal education grants. 4. In all three states Title XX state allocations to localities are purported to be based on need. Closer examination of the formulas, and interviews with policy makers, revealed that Title XX allocations are determined primarily by political criteria.