INTRODUCTION

Having discussed the harmonization of the substantive criminal law in both the US and the EU, there is another important element of the criminal process which has been an issue for both. Beyond the definitions of crimes themselves, both Unions are concerned with the fundamental rights of individuals charged with a crime. We have already reviewed some federalizing aspects of one such right – the protection against double jeopardy. However, there are a panoply of recognized criminal defense rights in Europe and the United States. In both of these Unions, these rights are protected both at and above the state level. Obviously, the United States government has federal authority to protect the rights of its citizens, even when those rights are threatened by the constituent states. The similar development of criminal rights protection in Europe emphasizes the federal nature of the EU as well.

In modern legal thinking, at least in the western world, the concept of “due process” has become ubiquitous as a requirement for state action. All European constitutions include some sort of due process clause, and the Fifth Amendment to the United States Constitution, from the core Bill of Rights, states that “[n]o person shall be … deprived of life, liberty, or property without due process of law.” In particular, the criminal trial, particularly because of the ultima ratio nature of criminal law, exemplifies the full extent of due process. Over time, “due process” across countries has solidified into a specific set of guarantees, whether spelled out in domestic legal texts, interpreted as a necessary corollary of general justice or other specific guarantees, or imposed by superior legal orders.

The European Union has experienced a standardization of due process rights, as found in the European Convention on Human Rights, as well as in the case law of the European Court of Justice and later the Charter of Fundamental Rights of the European Union. Similarly, in the 20th century, the United States experienced an expansion of the scope of its constitutional due process rights, once applicable only to the federal government, to the individual states. These parallel developments in European and American human rights law are yet another example of growing European federalism, particularly in criminal law.