Books by Adriano Martufi
This book represents the main output of the research project titled “Prison overcrowding and alte... more This book represents the main output of the research project titled “Prison overcrowding and alternatives to detention”, funded by the European Commission and completed in the spring of 2016. The resarch started from the acknowledgment that both European and national legal sources increasingly associate the use of non-custodial sanctions and measures with the “pragmatic” objective of reducing the prison population. The present publication, therefore, openly places emphasis on the relationship between the expansion of some alternatives to detention and objective of reducing the incarceration rates. The book begins with a first section dedicated to the ‘supranational sources’ regarding alternatives to detention. It does so by highlighting the prioritarian deflationary function that alternatives to imprisonment have come to perform under European law. The book also features a second section made up of national reports. The latter have all the same structure. They start off by providing an overview of the prison population in the fifteen years between 2000 and 2015. Then follows a presentation of the alternative sanctions or measures in force in the national legal system, broken down according to the procedural stage in which they can be applied. The book ends with a chapter dedicated to “cross-cutting” conclusions drawn on the basis of the overall results of the research and in particular the conclusions of the national reports.
Articles and chapters by Adriano Martufi
Pre-trial detention has yet to be harmonised under EU law, although evidence points to an overuse... more Pre-trial detention has yet to be harmonised under EU law, although evidence points to an overuse that may affect mutual trust. Other instruments however exist that might impact on the way national authorities use pre-trial detention. In this work, we seek to detect fragments of harmonisation within the existing legal framework. The paper thus looks at the EU area of criminal justice to highlight intersections between pre-trial detention and existing instruments, such as the 'procedural rights' Directives and the European Arrest Warrant. Our findings show that the symbiosis of pre-trial detention and some procedures created by EU instruments (e.g. surrender proceedings) raise a plethora of questions regarding the legal standards of pre-trial detention. Several juncture points exist where current instruments could or should influence the manner in which pre-trial detention is regulated under national law. Despite these intersections, we conclude that the lack of an EU regulatory framework remains problematic.
During this early phase of the emergency, detention conditions were mainly managed by the Gdp via... more During this early phase of the emergency, detention conditions were mainly managed by the Gdp via the so-called Coronavirus instructions. These rules were communicated to prison staff across the country but not officially published 6 .
Se il motto per cui «non c'è il due senza il tre» fosse davvero attendibile, dopo l'edizione 2020... more Se il motto per cui «non c'è il due senza il tre» fosse davvero attendibile, dopo l'edizione 2020 di Amicus curiae anche l'appuntamento del 2021 avrebbe il destino ossia il temagià segnato. Quanto discusso nel webinar dello scorso 25 settembre ("Il fine e la fine della pena. Sull'ergastolo ostativo alla liberazione condizionale"), costituisce infatti una sorta di "Atto II", collocandosi in ideale e perfetta continuità con l'appuntamento dell'anno precedente.
The Covid-19 pandemic: the urgency to rethink the use of pre-trial detention, Laure Baudrihaye-Gé... more The Covid-19 pandemic: the urgency to rethink the use of pre-trial detention, Laure Baudrihaye-Gérard
This article takes stock of the recent case-law of the Court of Justice of the EU concerning pris... more This article takes stock of the recent case-law of the Court of Justice of the EU concerning prison conditions. This jurisprudence, inaugurated with the landmark case Aranyosi, deserves closer attention in that it shows that the CJEU has finally developed a ‘penological’ sensibility. The article posits that the emergence of concerns regarding prison conditions transforms the way in which surrender proceedings operate. It argues that executing judicial authorities are now called on to play a more active role, having to factor in the risk of inhuman treatments in the issuing state. The criteria devised by the Court to assess such risk are analysed in detail, as they constitute an attempt to strike a balance between the protection of fundamental rights and the principle of mutual trust. The article also claims that the individualised assessment of risks by an executing authority needs to rely on detailed empirical information regarding prisons in the issuing state. This makes the procedure more complex as it calls for the involvement of non-judicial actors (e.g. the Ministry of Justice) to provide such information. Finally, the article explores how competing interests (such as the fight against impunity) interact with the overarching task of protecting the rights of prisoners.
In the ground-breaking decision Aranyosi and Căldăraru, the Court of Justice of the European Unio... more In the ground-breaking decision Aranyosi and Căldăraru, the Court of Justice of the European Union (CJEU) recognised that in exceptional circumstances the risk of a possible breach of the right not to suffer inhuman or degrading treatments may qualify as a ground to suspend a European arrest warrant (EAW) and, ultimately, bring the surrender procedure to an end. In this judgement (and in the subsequent decision in LM, dealing with the right to a fair trial) the Court has devised a two-tier test to assess the real risk of a violation of fundamental rights after surrender. Yet the Court has left significant discretion to executing authorities in conducting their assessment of risk, thus raising questions as to how the two-tier test would be implemented at a national level. The main objective of this paper is to examine the practice of the executing authority for the Netherlands (the District Court of Amsterdam) concerning decisions on EAWs that may entail a real risk for fundamental rights. To do so, we analyse the judicial reasoning of decisions issued between June 2016 and June 2020 which implement the test designed by the CJEU in Aranyosi and LM. The results of this analysis indicate that the Court of Amsterdam has gradually shifted the emphasis from mutual trust to fundamental rights. However, the Dutch court resists automaticity and scrutinises the relevance of any information attentively. This attitude indicates a readiness to engage in a dialogue with the issuing authorities together with resistance to indulge in ‘blind trust’.
Other related subjects Constitutional law; Criminal law Reviewed by: Adriano Martufi *E.L. Rev. 2... more Other related subjects Constitutional law; Criminal law Reviewed by: Adriano Martufi *E.L. Rev. 282 With the Lisbon Treaty, the EU has finally been endowed with a competence to legislate in the fields of substantive and procedural criminal law. The questions raised by this major constitutional shift are manifold and remain subject to a lively debate among scholars. The new monograph by Leandro Mancano masterfully addresses some of those issues, inviting the reader to a journey into an immensely complex legal landscape. The book is published by the series "Studies in EU criminal law", recently launched by Hart Publishing/Bloomsbury with the support of the European Criminal Law Academic Network (ECLAN), and represents a new key addition to the ever-growing literature in this field. The range of issues covered by the study is in itself remarkable. While maintaining its central focus on the field of criminal justice, the author expands on it to encompass an analysis of EU immigration and asylum law. A common feature in the analysis of these apparently distinct areas of EU policy lies in their profound impact on the right to liberty. This foundational individual right constitutes the starting point in Mancano's endeavour to seize the most relevant developments in those areas. What is more, it originally provides an angle to apprehend the challenges posed by the newly established EU competence to legislate in criminal matters, while illustrating its tendency to spill over to and/or influence other areas of EU law. From a methodological point of view, the monograph presents itself as a "legislative and judicial" analysis. Yet, the author conducts an accurate review of various other EU sources, including policy documents, soft law and preparatory works: a range of non-binding sources allowing to shed light on the entangled socio-political dynamics underlying EU secondary law in the field of criminal justice and migration. Perhaps more significantly, Mancano's book taps into a recent-but flourishing-line of scholarship on European criminal law, one that seeks to describe the current integration of criminal justice in Europe from the perspective of individuals. This approach goes beyond a mere institutional overview and casts a critical eye over the way in which individual rights are affected and/or enhanced by the process of EU integration.
In this article, we take issue with ECHR standards on pre-trial detention. These standards are co... more In this article, we take issue with ECHR standards on pre-trial detention. These standards are considered panacea for the reported overuse of pre-trial detention in Europe as they prioritise the legitimate purposes of detention as safeguards to ensure the principle of ultima ratio. Yet this purposes are heterogeneous as pre-trial detention protects the pending proceedings but also averts risks pertinent to criminal policy. In our analysis we discuss the shortcomings of the ECHR standards to fully protect from abusive detention. Moreover, we reveal internal inconsistencies with the presumption of innocence. One major example is the use of pre-trial detention to prevent re-offending, which blurs the boundaries between custody on remand and preventive detention. Additionally, we delve deeper into the obligation to use milder measures as part of the ECHR standards, which remains superficial and vague. Conclusively, we encourage the reflection and re-examination of the ECHR standards for pre-trial detention, instead of focusing merely on their better enforcement.
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Books by Adriano Martufi
Articles and chapters by Adriano Martufi