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The aim of this thesis is to analyse the EU approach to the question of the legitimacy of criminal law. In particular, it enquires into what theoretical justifications does the EU legal order acknowledges as legitimating the resort to harmonized criminal law as a regulatory instrument. Moreover, it enquires if the selected approach is consistent with the identity the EU has set for itself, as a ‘fundamental rights sensitive’ kind of supranational organization, as established at Article 2 TEU, which includes the respect of fundamental rights as one of EU founding values. This research aims at complementing the existing literature theorising on harmonisation of substantive criminal law as a strategy for integration, which has to date primarily focused on the extent of the EU competences, and on the relation between harmonisation and other strategies of integration, such as mutual recognition. The aspect of the impact of the exercise of these EU competences on individuals and of what are the envisaged justifications for that has been to date underexplored. This thesis aims at filling this gap. In doing so it aims at contributing to the systemic understanding of EU criminal law testing its developments against a EU constitutional law benchmark. In terms of methodology, the thesis relies on a criminal legal theory framework, which distinguishes between a normative, value-based approach to the justifications for criminal law, and an instrumental, mainly enforcement-based approach. It tailors these concepts to the supranational level, by combining criminalisation theory concepts with theories on harmonisation. In terms of sources, when enquiring the EU approach to the criminal law, the thesis looks at EU primary law (principles of subsidiarity and proportionality, and EU competences to harmonise substantive criminal law); EU policy documents (multi-annual programs and ad hoc EU criminalisation policy documents) and EU secondary law (especially the Racism and Xenophobia Framework Decision on Racism and Xenophobia and on the 2014 Market Abuse Directive).In terms of structure, the thesis devotes the first two chapters to the delineation of the theoretical framework, discussing criminal legal theories on the subject of of the legitimacy of criminal law, and theories on harmonisation of criminal norms. This part is aimed at identifying the analytical tools through which EU primary law, EU secondary law and EU policy documents are analysed in the following 5 chapters. A final chapter draws the relevant conclusions as to the consistency of the EU approach to the legitimacy of criminal law with the EU constitutional law framework. The findings of the thesis illustrate how the EU has not been consistent in its approach to the legitimacy of EU criminal law and it identifies a number of micro-ruptures between the approach in different historical phases; but also between different layers (EU primary and secondary law as well as policy documents) during the same period; and between different policy areas (e.g. EU criminal law was used to protect the security of EU citizens, and when to secure the achievement of EU policies). The thesis nonetheless identifies a macro-synchrony, which sees an historical progressive acknowledgement of a normative approach in a previously pre-existing instrumental context. This progress was positively evaluated as it contributed to increase the coherence of EU criminal law with EU constitutional law benchmarks. / Doctorat en Sciences juridiques / info:eu-repo/semantics/nonPublished

The aim of the thesis is to answer the following question: What is the aim and the purpose of the migration-related detention? The question is further specified in four sub-questions provided in the introduction. Given that the essence of the detention is the deprivation of personal liberty as one of the fundamental human rights, the practice of detaining migrants in the Czech Republic seems to be in conflict with the personal liberty guarantees stipulated by the constitutional laws of the country, the Charter of Fundamental Rights of the European Union and several international human rights treaties. Resolutions of this conflict requires that such conditions are identified, under which the restriction of personal liberty is permissible. The list of conditions is provided in the thesis, including a legitimate purpose of the restriction of the fundamental right. Any restrictive practice must be capable of achieving this purpose and must not be misused for a purpose other than this. Subsequently, the thesis identifies aims of the different types of migrated-related detention, provided by the Czech laws - the Police Act, Aliens Act and the Asylum Act. The immediate aim pursued by detaining an alien is often to prevent him from obstructing a particular legal proceeding or action. The thesis also deals with the...

京都大学 / 新制・課程博士 / 博士(法学) / 甲第24366号 / 法博第289号 / 新制||法||178(附属図書館) / 京都大学大学院法学研究科法政理論専攻 / (主査)教授 濵本 正太郎, 教授 酒井 啓亘, 教授 鈴木 基史 / 学位規則第4条第1項該当 / Doctor of Laws / Kyoto University / DFAM

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