Cje. Lecture EU Criminal Law Introduction and Brief History. EU Criminal Law

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1 EU Criminal Law Cje Lecture EU Criminal Law Introduction and Brief History Wojciech Jasiński, Ph.D. Department of Criminal Procedure Faculty of Law, Administration and Economics University of Wrocław

2 Lecture topics: 1) Introduction 2) History of the EU Criminal Law 3) Legal basis and forms of cooperation in criminal matters 4) Harmonisation of substantive criminal law 5) Procedural rights

3 Textbooks: 1) Valsamis Mitsilegas EU Criminal Law 2) Valsamis Mitsilegas EU Law in Criminal Practice 3) Samuli Miettinen Criminal Law and Policy in the European Union

4 Exam: Written examination (3-5 questions concerning issues listed on lecture topics slide) Active participation in lecture will be taken under consideration (final grade raised 0,5)

5 1. Criminal law as a key aspect of state souvereignity 2. The influence of public international law on national criminal law 3. The emergence of international criminal law

6 International criminal law International criminal law - body of laws, norms, and rules governing international crimes and their repression, as well as rules addressing conflict and cooperation between national criminal-law systems.

7 International criminal law The term international criminal law refers variously to at least three distinct areas: 1) cooperation between different national legal systems through extradition and other forms of mutual legal assistance 2) the prohibition and punishment of certain behaviour by several countries acting collectively or by the international community as a whole 3) the operation of autonomous international legal systems, including courts and other mechanisms of enforcement, that exist alongside national criminal law (W. Schabas in: Encyclopeadia Britannica)

8 1) Cooperation between different national legal systems through mutual legal assistance Examples Council of Europe Conventions European Convention on Extradition 1957 European Convention on Mutual Assistance in Criminal Matters 1959 European Convention on the Suppression of Terrorism 1977 Additional Protocol to the European Convention on Information on Foreign Law 1978 Bilateral and Multilateral extradition treaties

9 2) The prohibition and punishment of certain behaviour by several countries acting collectively or by the international community as a whole Examples UN Conventions International Convention Against the Taking of Hostages 1979 United Nations Convention against Corruption 2003 United Nations Convention against Transnational Organized Crime 2000 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 Rome Statute of the International Criminal Court

10 2) The prohibition and punishment of certain behaviour by several countries acting collectively or by the international community as a whole Examples Council of Europe Conventions Criminal Law Convention on Corruption 1999 Convention on Cybercrime 2001 Additional Protocol to the Convention on Cybercrime, concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems 2003 Council of Europe Convention on preventing and combating violence against women and domestic Violence 2011

11 2) The prohibition and punishment of certain behaviour by several countries acting collectively or by the international community as a whole Examples Council of Europe Conventions Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse 2007 Council of Europe Convention on Action against Trafficking in Human Beings 2005 Council of Europe Convention on the Prevention of Terrorism 2005

12 2) The prohibition and punishment of certain behaviour by several countries acting collectively or by the international community as a whole - Treaties concern not only criminalisation of certain behaviour but also penalties and sentencing European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms concerning the Abolition of the Death Penalty Protocol No. 13 to the Convention for the Protection of Human Rights and Fundamental Freedoms, concerning the abolition of the death penalty in all circumstances

13 3) Autonomous international legal systems, including courts and other mechanisms of enforcement, that exist alongside national criminal law Rome Statute of the International Criminal Court 1998 Secutiry Council Resolutions (1993, 1994): International Criminal Tribunal for the Former Yugoslavia International Criminal Tribunal for Rwanda Other internationalised criminal courts (East Timor, Sierra Leone)

14 EU Criminal Law 1. Is there a need for something more than national criminal law? 2. What is international criminal law? How to define criminal acts, penalties in international context?

15 ECHR Case-law The concept of a criminal charge has an autonomous meaning, independent of the categorisations employed by the national legal systems of the member States.

16 person concerned risks incurring. ECHR Case-law The starting-point for the assessment of the applicability of the criminal aspect of Article 6 of the Convention is based on the criteria outlined in Engel and Others v. the Netherlands, 82-83: (1) classification in domestic law; (2) nature of the offence; (3) severity of the penalty that the

17 6. Isolated actions or coordinated criminal EU Criminal Law 3. International or supranational? 4. Transfer of competences? 5. Precedence over sources of national criminal law? policy? 7. Unification or harmonisation? 8. Treaties or international organisation legislation?

18 1. Before Maastricht Treaty - No competences for the Communities to harmonise national criminal laws or legislate in the area of criminal law - Lack of political will to undertake cooperation in the area of criminal law

19 1. Before Maastricht Treaty Indirect influence of EU law: - stemming from its precendence over national law (in case of conflict with national criminal law provisions) - principle of assimilation

20 1. Before Maastricht Treaty Principle of assimilation Art. 5 EEC Treaty 1957 Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community s tasks. They shall abstain from any measure which could jeopardise the attainment of the objections of this Treaty

21 1. Before Maastricht Treaty Principle of assimilation EEC states must assimilate infringments of EEC law to infringments of domestic law (not necessarily criminal santions but that can be the case)

22 1. Before Maastricht Treaty Principle of assimilation Case C-68/88 Greek Maize case It should be observed that where Community legislation does not specifically provide any penalty for an infringement or refers for that purpose to national laws, regulations and administrative provisions, Article 5 of the Treaty requires the Member States to take all measures necessary to guarantee the application and effectiveness of Community law.

23 1. Before Maastricht Treaty Principle of assimilation Case C-68/88 Greek Maize case For that purpose, whilst the choice of penalties remains within their discretion, they must ensure in particular that infringements of Community law are penalised under conditions, both procedural and substantive, which are analogous to those applicable to infringements of national law of a similar nature and importance and which, in any event, make the penalty effective, proportionate and dissuasive

24 1. Before Maastricht Treaty Indirect influence of EU law: - Santions for violations of EEC law (obligation of the states to establish such sanctions) - not expressly called criminal

25 1. Before Maastricht Treaty Case C-50/76 Amsterdam Bulb case ALTHOUGH ARTICLE 5 OF THE EEC TREATY PLACES MEMBER STATES UNDER A DUTY TO TAKE ALL APPROPRIATE MEASURES, WHETHER GENERAL OR PARTICULAR, TO ENSURE FULFILMENT OF THE OBLIGATIONS RESULTING FROM ACTION TAKEN BY THE INSTITUTIONS OF THE COMMUNITY, IT ALLOWS THE VARIOUS MEMBER STATES TO CHOOSE THE MEASURES WHICH THEY CONSIDER APPROPRIATE, INCLUDING SANCTIONS WHICH MAY EVEN BE CRIMINAL IN NATURE.

26 1. Before Maastricht Treaty Case C-50/76 Amsterdam Bulb case THE ANSWER TO BE GIVEN TO THE NATIONAL COURT MUST THEREFORE BE THAT IN THE ABSENCE OF ANY PROVISION IN THE COMMUNITY RULES PROVIDING FOR SPECIFIC SANCTIONS TO BE IMPOSED ON INDIVIDUALS FOR A FAILURE TO OBSERVE THOSE RULES, THE MEMBER STATES ARE COMPETENT TO ADOPT SUCH SANCTIONS AS APPEAR TO THEM TO BE APPROPRIATE.

27 1. Before Maastricht Treaty Black market integration in the area of criminal law (security) exchange of information rather than - done outside institutions - intergovernmental cooperation, legislative initiatives

28 1. Before Maastricht Treaty TREVI (terrorisme, radicalisme, extremisme et violence internationale) intergovernmental forum (ministries of justice and the interior) outside the EC Created during the European Council Summit in Rome, 1 2 December Meeting each six month Forum for cooperation concerning terrorism, organised crime

29 1. Before Maastricht Treaty Conventions binding EC member states AGREEMENT between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders (Schengen agreement ) Schengen Convention 1990 (Title III Police and Security)

30 Convention between the Member States of the European Communities on Double Jeopardy - 25 May 1987 Agreement on the application between the Member States of the European Comunities of the Council of Europe Convention on the Transfer of Sentenced Persons - 25 May 1987 Agreement between the Member States of the European Comunities on the Tranfer of Proceedings in Criminal Matters - 6 November 1990 Convention between the Member States of the European Comunities on the enforcement of foreign criminal sentences - 13 November Before Maastricht Treaty Conventions between EC member states

31 Convention between the Member States of the European Communities on Double Jeopardy - 25 May 1987 Agreement on the application between the Member States of the European Comunities of the Council of Europe Convention on the Transfer of Sentenced Persons - 25 May 1987 Agreement between the Member States of the European Comunities on the Tranfer of Proceedings in Criminal Matters - 6 November 1990 Convention between the Member States of the European Comunities on the enforcement of foreign criminal sentences - 13 November Before Maastricht Treaty Conventions between EC member states

32 2. Turning point - Maastricht Treaty Article B The Union shall set itself the following objectives: - to develop close cooperation on justice and home affairs TITLE VI PROVISIONS ON COOPERATION IN THE FIELDS OF JUSTICE AND HOME AFFAIRS (so-called III Pillar)

33 2. Turning point - Maastricht Treaty - Broad scope of possible cooperation - Weak instruments to implement that cooperation (or to force cooperation) - Intergovernmental not supranational character of cooperation

34 2. Turning point - Maastricht Treaty Joint positions and joint actions not a very effective measure to build EU Criminal Law (debates over legally binding effect) Conventions long process of ratification Convention on the Protection of the European Communities' Financial Interests 1995 (entered into force 2002) Convention on the Establishment of European Police Office 1995 (entered into force 1998)

35 3. Turning point - Amsterdam Treaty 1) Area of Freedom, Security and Justice replaced Justice and Home Affairs 2) New legal instruments : framework decisions and decisions, common positions 3) Increase of the role of Commission and European Parliament (initiative of the Commission and consultation with the Parliament) 4) Increase of the role of Court of Justice

36 4. Post - Amsterdam Treaty period Tampere European Council summit 1999 Conclusions concerning Area of Freedom, Security and Justice (the Tampere Milestones)

37 4. Post - Amsterdam Treaty period Further policy documents: The Hague Programme: strenghtening freedom, security and justice in the EU 2004 The Stockholm Programme An open and secure Europe serving and protecting the citizens Legal instruments : Framework decisions

38 4. Post - Amsterdam Treaty period Criminal law competences of EC? - General power to approximate laws (Article 95, 308 Treaty EC) for the purpose of functioning of common market - Article 175 Treaty EC in the scope of enviromental protection

39 Criminal law competences of EC? - Case C-176/03 - judgment of 13 Sept. 2005, Commission v. Council, (Framework Decision on the protection of the environment through criminal law) - Case C- 440/05 - judgment of 23 Oct. 2007, Commission v. Council, case (Framework Decision on ship-source pollution)

40 - Case C-176/03 As a general rule, neither criminal law nor the rules of criminal procedure fall within the Community s competence (see, to that effect, Case 203/80 Casati [1981] ECR 2595, paragraph 27, and Case C-226/97 Lemmens [1998] ECR I-3711, paragraph 19). However, the last-mentioned finding does not prevent the Community legislature, when the application of effective, proportionate and dissuasive criminal penalties by the competent national authorities is an essential measure for combating serious environmental offences, from taking measures which relate to the criminal law of the Member States which it considers necessary in order to ensure that the rules which it lays down on environmental protection are fully effective.

41 - Case C-176/03 It should also be added that in this instance, although Articles 1 to 7 of the framework decision determine that certain conduct which is particularly detrimental to the environment is to be criminal, they leave to the Member States the choice of the criminal penalties to apply, although, in accordance with Article 5(1) of the decision, the penalties must be effective, proportionate and dissuasive.

42 - Case C-176/03 In those circumstances, the entire framework decision, being indivisible, infringes Article 47 EU as it encroaches on the powers which Article 175 EC confers on the Community. In the light of all the foregoing, the framework decision must be annulled.

43 - Case C-440/05 Although it is true that, as a general rule, neither criminal law nor the rules of criminal procedure fall within the Community s competence, the fact remains that when the application of effective, proportionate and dissuasive criminal penalties by the competent national authorities is an essential measure for combating serious environmental offences, the Community legislature may require the Member States to introduce such penalties in order to ensure that the rules which it lays down in that field are fully effective (see, to that effect, Case C-176/03 Commission v Council, paragraph 48).

44 - Case C-440/05 By contrast, and contrary to the submission of the Commission, the determination of the type and level of the criminal penalties to be applied does not fall within the Community s sphere of competence. In the light of the foregoing, it must be concluded that Framework Decision 2005/667, in encroaching on the competence which Article 80(2) EC attributes to the Community, infringes Article 47 EU and, being indivisible, must be annulled in its entirety.

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