Appunti Criminal Law CEILS, Appunti di Diritto Penale

Scarica Appunti Criminal Law CEILS e più Appunti in PDF di Diritto Penale solo su Docsity! CRIMINAL LAW THEORIES OF PUNISHMENT There is a fundamental distinction between:  absolute theories (looking backward) = offenders are punished because they committed a crime (quia peccatum est) - also known as tot crimina, tot poena (an eye for an eye);  relative theories (looking forward) = punishment has the specific goal of punishing the offender to prevent future crimes (ne peccetur). There are three fundamental theories developed during the Enlightenment:  retribution (absolute theory);  general prevention, deterrence (relative theory);  special prevention, rehabilitation (relative theory). Rehabilitation is the only purpose of punishment according to art 27(3), It Const. In the last years the new theory of restorative justice is developing, which is based on a different (horizontal) perspective. It is a dialogical justice, where the offender and the victim are posed at the same level. They choose their own path to restore the harm caused by the offender (ex. money, letter of excuses, …). On the contrary, from a traditional perspective, the judge has a vertical point of view (victim above and offender below). The recent Italian Cartabia reform of justice aims to regulate restorative justice at every stage of the penal proceeding. Historically, we have three forms of retribution:  divine = the person who commits a crime violates a superior law offending God, who, therefore, delegates men to apply his justice on Earth - the offender has to repent and promise he will comply with the law in the future;  moral (based on Kantian doctrine) = criminal law is conceived as a part of the so-called categorical imperative, which means that punishment has an end in itself - it is a complete unconditional imperative, which means no goal at all - developed from the principle of the fundamental value of the human being - punishment finds its justification only in the principle of justice - the harm caused by the offender finds its equivalent in the harm imposed on him (ex. whoever commits a murder should die), in order to compensate good with good and evil with evil - this idea is still present among those who carry on the so-called phenomenon of criminal populism;  legal (based on Hegelian dialectic approach) = punishment was studied under the utilitarian doctrine and it was identified as a tool to restore the law violated by the crime - it is a kind of syllogism: if crime is conceived as the negation of law, punishment is considered the negation of the crime and thus the means to restore social peace. Punishment must be proportionate (the punishment must be appropriate to the seriousness of the crime), certain (the citizens should be able to know in advance the consequences of their behaviour in order to guide their conducts), expression of the principle of personal liability (which states the prohibition of responsibility for others' actions - art. 27(2), It Const), necessary (there shouldn't be any other sanctions other than criminal capable of achieving the same result - idea of extrema ratio of criminal law: we use criminal law only when it is the only solution) and effective (the punishment must be sure). A subsection of the theory of re-education is the flexibility of penalty = how to execute the penalty depends on the progression in the rehabilitation treatment made by the offender during the execution of the sentence in prison - ex. the Italian criminal system provides for alternative measures (ex. home detention, day release, …). During XIX cent. our legislators tried to find a balance between retributivist approach and preventive approach (rehabilitation v. deterrence). They enacted some mechanism that permitted not to carry out sentences. In Italy there is the suspended sentence, which can be applied if the convicted is not considered socially dangerous and if the sentence has been given within two years of imprisonment. It is a period of suspension of 5 years if the convicted committed a crime and of 2 years if he committed an infringement. In Italy the retributivist theory has been supported by the classical school, represented by Carrara and based on the concept of social peace. Punishment is a means of social stabilization. This theory is based on the idea of the social contract developed by JJ Rousseau, for which every citizen gives up a part of their freedom giving punitive power in the hands of the state. 50 years before, Beccaria had written in his On crimes and punishments (1764) that punishment should be public, speedy, necessary, the minimum possible in the given circumstances, proportionate to the crime and determined by the law. Carrara asserted that punishment should be exemplary (public, deterrent for all citizens), certain, fast and imposed in a way that does not corrupt the offender (strict interpretation of special prevention - connected to the so-called criminogenic effect). In XVIII cent. Carrara classified punishments into four classes:  capital punishments;  coercive punishments, which deprive or limit freedom and are divided in: o positive [ex. corporal punishments - also divided in erasable (ex. wiping) and permanent (ex. mutilation)]; o negative (ex. exile and detention) = they are repairable and scalable;  dishonourable punishments (ex. public blame, interdiction from public offices, legal interdiction);  pecuniary punishments - classified into: o pecuniary punishments in the strict sense (fines); o pecuniary punishments broadly speaking (confiscations, which are now considered as security measures by the Italian criminal code - Carrara disliked them because he thought they violated the principle of personal liability). According to the Italian criminal code, security measures can be applied by judges in case of:  mental illness/insanity, when the offender is considered incapable of thinking and willing and socially dangerous, meaning that there is high risk for the offender to reoffend - there will be no penalty at all, but only the measure;  offender totally capable of thinking and willing (therefore imputable), but considered socially dangerous - the measure will be added to the sentence;  children under the age of 14, through the so-called absolute presumption of incapacity (of thinking and willing) - it means that it is impossible to provide evidence of the contrary. Based on our general theory of the crime, which is a tripartite system, in order to be considered a crime, a behaviour must be:  typical (it complies with all the elements provided for by the law in describing the actus reus - ex. A shoots B and kills him, the fact complies perfectly with the murder provision of the criminal code);  unlawful (there is no cause of justification, ex. self-defence); and  culpable. In the case of non-imputable offenders, there is no proper crime, because of lack of culpability. There are two main criticisms of retribution in general: 1. difference between crime and sanction = the idea to compensate a crime through a sanction seems impossible because the categories of crime and sanction look too different (ex. both for the crime of robbery and for the one of murder the sanction is deprivation of liberty); 2. compensation does not imply that a subject is held back from committing new crimes, since the individual has free will. Lombroso was one of the leading figures of the positive school. Lombroso based his theory on the so-called biological determinismus. He analysed the dead bodies of the most dangerous offenders and he gave us an identikit of the criminal type. Nowadays his approach is followed by neuroscience: the study based on the synaptic movements to predict behaviours. A different approach is taken by Garofalo in his criminology textbook published in 1885. His approach is psychological. In Garofalo's opinion persons are led to commit a crime by psychological factors. Ferri can be considered the leading figure of the positive school. He gave value to all the aspects underlined by his predecessors enhancing the social and economic environment. Therefore, in his theory there are three different factors that lead a criminal to commit a crime. Ferri's thought is on the one hand pretty close and inspired by Von Liszt; on the other hand he anticipated principles that have nowadays a fundamental importance. He theorized the law of the so-called criminal saturation according to which the committing of a crime is determined by the conditions of the social environment. This implies that criminal sanction is not sufficient to prevent the crime from being committed. So, the criminal system has a limited preventing effect. Ferri also developed a second important doctrine: the theory of the criminal substitutes. According to this theory criminal sanctions are only one of the tools of criminal prevention. Therefore, they should be combined with social reforms with the aim of modifying the external environment (with regard to civil law many reforms were deemed necessary, ex. a law permitting divorce which would have reduced domestic violence, a provision of unworthiness to inherit would have reduced attempted homicides and homicides). He himself later admitted that although this idea was correct, it was also impossible to be carried out, being very expensive and demanding a lot of time. Ferri then proposed a classification of penalties. His approach was very different from that of Carrara and pretty close to that of Von Liszt. The classification is based on the type of the offender. In particular he described:  mad offenders (the sanction should be criminal asylum);  known incorrigible offenders (the sanction should be perpetual deportation or life imprisonment - Garofalo proposed death penalty - for repetitive offenders the suggested solution was based on the idea of neutralization as absolute form of negative special prevention);  impetus offenders: offenders acting on impulse or passion (the sanction is useless since there are no possibilities to improve the social context - he proposed a compensation for the victim and a removal of the offender for a limited period of time);  occasional offenders (prevention has to prevail over repression, therefore there is the predominance of the positive special prevention, so re-education - in relation to these offenders he proposed surrogate penalties pretty close to the alternative measures, above all when crimes were to be sanctioned with short prison sentences - it is exactly in this historical moment that the famous struggle against short prison sentences arose). Art. 27, It Const: 1. Criminal responsibility is personal. 2. The defendant sis not considered guilty until the final judgement is passed (presumption of innocence). 3. Punishment cannot consist in inhuman treatment and must aim at the rehabilitation of the convicted person. 4. The death penalty is not admitted [abolished in 1899, reintroduced in 1926/1930]. The provision refers to all penalties, not only deprivation of liberty. The order of the article has a logical sense. No programme of resocialization is possible if the punishment does not conform to humanitarian standards. We can affirm that dignity consists of a set of fundamental rights (right to health, right to work …). The possibilities of a re-educational path also depend on other factors, such as economic resources. The legal framework offers:  a first level of protection = before the administrative judge, to ask for annulment every time there is an illegitimate act of the penitentiary system;  a second level of protection = assured by the surveillant judge and the guarantor of the rights of inmates, during the enforcement of the penalties;  a third level of protection = deriving from the application of the ECHR by the ECtHR, which in 2010 interpreted art. 3 of the convention as also referring to the condition of detention in prison. In the affirmation of the existence of prisoners' rights the Italian constitutional court played an important role. Indeed it has underlined several times that the inmate shall be recognized as holder of a set of fundamental rights. The exercise of these rights shall not be taken away from the judiciary. 1975) Penitentiary Law - the provisions of art. 27(3) were fully implemented with regard not only to the re- educational perspective, but also and primarily to the humanitarian dimension which must characterize the punishment. Art. 1, pl = (1) The penitentiary treatment must conform to the ideal of humanity and must ensure the respect of the dignity of the person. (2) The treatment tends to social reintegration and is implemented according to a criterion of individualization. Fundamental guidelines of the penitentiary treatment are humanity, dignity, order and discipline. Also very important are rules n. 49, 53 and 72 of the European penitentiary rules and art. 3, ECHR. The penitentiary law marked the transaction from the idea that the inmate has to be considered a passive subject of the penitentiary administration to the perspective in which the offender is considered a person with his own rights. Art. 1 par. 3 was recently reformed in 2018, adding that every person deprived of freedom shall be guaranteed fundamental rights and that any form of physical or moral violence is forbidden. Also par. 4 was added, clarifying that order and discipline are to be maintained while respecting fundamental rights. Classification of crimes and penalties in Italy Criminal offences are divided into:  crimes;  contraventions/misdemeanours/infringements. The distinction, from a formal point of view, is based on the types of sentences (deprivation of liberty for crimes is called imprisonment while deprivation of liberty of contraventions is called arrest - the content of these sanctions is the same, the difference is just related to the length of duration of each penalty and to the place where those are going to be performed). From a substantive point of view, the distinction is based on the seriousness of the offence (the general rules of art.s 23 and following of the Italian criminal code provide different frames, a minimum and a maximum, for imprisonment and for arrest). The Italian criminal code distinguishes different categories of punishment:  principle punishments;  ancillary/accessory punishments;  alternative measures;  security measures. Art. 17, It cc provides for common life imprisonment, which is a custodial sentence of an indefinite duration, at least on the paper, and today it represents the most severe sentence - it includes:  possibility to be considered for the conditional release after serving 26 years of imprisonment;  day release after 20 years;  special leave/temporary release (no more of 15 days per time for a maximum of 45 days per year) after 10 years;  early release, which consists of a penalty discount of 45 days each semester if the offender actively participates to the re-educational path and does not have any disciplinary report (it applies to all custodial sentenced in prison: this implies that a lifer can be considered for conditional release after 21 years and for day release after 15 years). Early release not only reduces the sentence to be served, but it also makes faster the access to alternative measures, that normally provide a minimum of residual penalty as a precondition to be applied (ex. to be assigned to the probation service, the penalty, even residual, must not exceed 4 years). The surveillant court is the one in charge of granting alternative measures. The Italian criminal law system also provides for a perpetual life imprisonment (art. 4 bis, pl). It is provided for specific offenses (ex. mafia association, terrorism, subversion of the constitutional order). The mechanism of absolute presumption provided for by art. 4 bis, according to which the offender must be considered socially dangerous if he refuses to collaborate with the justice (no possibility of alternative measures), was declared unconstitutional by the Italian constitutional court, as it was inconsistent with art. 27(3). Applying this mechanism would mean evaluating the seriousness of the crimes without looking at the development of the offender during the execution of the sentence. Art. 17, It cc also provides as principle penalty deprivation of liberty. Imprisonment can be imposed by the judge within a range from 15 days to 24 years (art. 23, It cc), except from express exceptions. Pecuniary penalties are called fines for crimes and amends for contraventions. In the Italian system the pecuniary sentence is largely ineffective. According to the principle of conversion of the pecuniary sentence, if the offender cannot pay or does not want to, it was possible to convert the fine directly into a custodial sentence in prison. In 1989 the Italian constitutional court declared such provision unconstitutional. Nowadays the conversion is still possible, but firstly into unpaid work or controlled freedom (pretty close to the probation service); only if there is a violation of the requirements of these two last measures, the fine be converted finally into a custodial sentence. Art. 19, It cc provides for a list of ancillary penalties (ex. legal interdiction), which are assigned together with principle penalties, depending on the type of crime and on the amount of the principle penalty fixed by the judge. Alternative measures are all provided by the penitentiary law. The common precondition is a negative prognosis of social dangerousness, meaning that there isn't any risk of reoffending. Another precondition for granting an alternative measure is the critical review, conceived as the path that should lead the offender to understand the wrongdoing, the harm caused to the victim and the values violated with the illegal conduct. Apart from the allocation to the probation service, other forms of alternative measures are:  home detention (pursuant to art. 47 ter, pl - only if a suitable domicile is available);  day/work release (it allows the offender to spend 10 hours a day outside the prison - the offender must have already served at least half of the sentence). PRESENTATIONS Beccaria's On crimes and punishments Beccaria's masterpiece was written between 1763 and 1764, while the author was an active member of the Academy of Fisticuffs. It was published on the journal of the academy: Il caffè. This book can be considered a crown jewel of the Italian Enlightenment, a concise treatise and the most classic text of modern penalty. In such text Beccaria did an impassioned critique of punishment practices of XVII and XVIII centuries (which he considered excessive, brutal, arbitrary and unequal). The book is considered as the manifesto for legal reform centred on Enlightenment values (rationality, proportionality, legality, lenience and rule of law) and the foundational text in criminal law theory. THE ELEMENTS OF A CRIME Art. 25, It Const = No one shall be punished except on the basis of a law already in force before the offence was committed. A crime consists of:  actus reus = act + harmful result + causation - it is either a positive action or an omission;  unlawfulness;  mens rea = psychological link to the crime - pre-requirement set forth by the constitution. On the basis of actus reus, offences can be divided in:  offences which are punishable because a certain event has occurred, regardless of the manner in which they have been perpetrated; offences the gravity of which lies in the manner they have been committed. Anyone can commit a common crime (ex. murder), while in proper crimes the offender must have some characteristics explicitly provided for by the law (ex. in bribery the offender must be a politician). There is a fundamental distinction between:  result in a naturalistic sense = modification of the reality caused by the conduct of the offender (ex. death in murder);  result in a juridical sense = there are crimes which cause a damage to the legal interest protected by the provision and crimes which cause only the endangering of the legal interest - this grounds the distinction between: o harm crimes = the conduct compromises the integrity or the existence of the legal interest (ex. murder); o danger crimes = the legislator anticipates the protection criminalizing facts that could affect the integrity or existence of the legal interest (ex. poisoning public water). Another important distinction is the one between:  mere conduct crimes = no naturalistic result nor causal link (ex. crimes of pure omission);  result crimes = the provision criminalizes a certain event and the prosecutor has to prove the causation between conduct and result - also divided in crimes with a general conduct (ex. murder) and crimes with a specific conduct (ex. fraud). Generally speaking, the law punishes the conduct itself, regardless of its hypothetical consequences. Exceptions to the unlawfulness criterion are:  necessitas non habet legem = when you commit a crime in order to save a life;  vim vi repellere licet = harm as result of immediate reaction, to protect oneself (if the response is proportionate);  volenti et consentienti non fit iniuria = consent to the harm. There are two different interpretations of culpability:  normative interpretation = someone has to be considered culpable if he/she is blameworthy of not following the behaviour provided for by the law;  descriptive interpretation = state of consciousness / acting with a particular end in mind. The requirements of mens rea are:  competence to stand trial = the offenders have to be capable of free determining their actions;  guilty mind: o intent (dolo) = deliberate pursuit of a certain result - it could be either due to impetus or due to purpose/forethought; or o negligence = when one has not complied with a cautionary rule which is aimed at foreseeing and avoiding damage. Recklessness is at the border between intent and negligence. A reckless behaviour could be, for ex., off- track skying causing avalanche that kills some people (need to analyse the subjective element that supports the action). Some scholars argue that there exists a quadripartite structure of a crime, instead of this tripartite system, including ability to punish as component of a crime (ex. incest is punished under Italian law with an imprisonment of five years, although only if it arises public scandal). LEGAL DIVERSITY, JUDICIAL INTERACTION AND THE METHODS OF COMPARATIVE CRIMINAL LAW There is a certain tension between the pursuit of common (minimum) standards on the one hand and the respect of the different legal systems and traditions of states on the other. The inextricable link between sovereign state, national culture and criminal justice makes it an area politically sensitive to governance at the supranational level. Whether harmonization is achievable and whether it is desirable are essential questions on the harmonization v. diversity dilemma. If harmonization is both achievable and desirable, how it may be pursued while also respecting diversity could be the next question. Legal systems are classified into bigger legal families according to their general characteristics and legal histories. The underlying idea that laws of different states, regions, nations, peoples or cultures can be categorized and generalized into neatly organized theoretical constructs is widespread within the academic study of law. Legal pluralism makes the grouping of national legal systems into major families questionable, since there are various taxonomies in existence. Criminal justice systems can be accusatorial (or adversarial - mostly in common law countries) or inquisitorial (mostly in civil law countries). There are significant differences between these systems, which, however, must not be overestimated. There is a tendency towards harmonization of the two systems, mainly pushed by human rights law. The dichotomy between accusatorial and inquisitorial criminal justice is a useful analytical tool, but not without limitations or dangers (ex. oversimplifying matters, exaggerating differences, …). Models are not static; mutual influence and top-down inputs from international and supranational law may lead to transformations and convergences. THE GENERAL PART OF CRIMINAL LAW IN COMMON LAW SYSTEMS Within the common law there is a different view of the principle of legality: there are more non-written sources, jurisprudence is a legal source and the rule of binding precedent applies. Courts enjoy wide discretion both in procedural matters and in general principles matters and sentencing. While the jury decides whether the offender is guilty or not, the judge is in charge of deciding the type and amount of the sentence. At the current state of affairs civil law and common law have inherently different approaches, but in the last years there has been a progressive rapprochement: growing number of matters ruled by statutory laws, model penal code enacted in USA, draft criminal code adopted in UK, similar outcomes in practice. Three main trends can be identified with regard to criminal law within common law systems:  very little theorisation - case by case approach;  concern about some fundamental principles (ex. culpability, harm principle);  lack of consistency and uniformity in jurisprudence (a call for the elaboration of general principles). Common law systems are usually founded on a bipartite structure of the crime:  actus reus = prohibited behaviour + consequences + causation;  mens rea = mental element in relation to the conduct (in the form of intention, knowledge or recklessness). Defences include both substantive and procedural elements which may exclude liability. There are special cases in which there is:  lack of conduct = there is fault, but no engagement in criminal conducts;  lack of fault = strict liability offences. The conditions that have to be fulfilled in order to come to the conclusion that a person is criminal responsible are:  act and causation [with exclusion of situations in which acts are caused by automatism (movements of the body which were not voluntary) - automatism is different from insanity because the latter is considered to be a defence and would lead to imposition of security measures rather than to no criminal consequences at all - in case of automatism the burden of proof lies on the prosecutor, while in case of insanity the burden of proof lies on the defendant];  absence of permissions, such as self-defence, necessity or consent;  capacity (moral autonomy), mens rea (subjective - guilty mind) and fault (objective - gross negligence or lack of due care and attention) requirements;  excusatory defences (ex. intoxication, duress, reasonable mistake). OVERCROWDING AND ECtHR Although there is no specific provision about punishment in the ECHR, the principle of prohibition of inhuman and degrading treatment has been applied by the ECtHR since Kudla v. Poland (2000). In the context of deprivation of liberty, the court has stated that to fall under art. 3, the suffering and humiliation involved must in any event go beyond that inevitable element of suffering and humiliation connected with detention. The state has a positive duty to ensure that a person is detained in conditions which are compatible with respect to his human dignity. 2009) Sulejmanovic v. Italy Mr. Sulejmanovic claimed that between 2002 and 2003 he had shared a cell of very limited space with other 5 people. The ECtHR ruled that when the individual's living space fell below 3 square meters, an absolute presumption of violation of art. 3, ECHR would arise. Shortly after this ruling, in January 2010 the Italian government has declared a state of emergency with regard to the prison system. A prison plan was developed to deal with the issue of overcrowding; it provided both for the building of new penitentiary structures and for the enlargement of the existing ones. However, the situation did not improve: in 2011 Italy presented an overcrowding percentage of 148. 2013) Torreggiani v. Italy The judgement concerns 7 applicants. Mr. Torreggiani and the others were serving their sentences in Busto Arsizio and Piacenza. Each of them was living in a 3 square meters of personal living space. This judgement has had a great impact because the court applied the so-called pilot judgement procedure under art. 46, ECHR, meaning that the case did not affect only the applicants, but all the prisoners who were suffering the very same situation due to the overcrowding situation. In particular the court stated that the issue at stake in Torreggiani highlighted the existence of the overcrowding problem of Italian prisons. March 2016) appeal to the court of cassation dismissed due to the absolute character of the presumption of social dangerousness in case of lack of cooperation with justice and the freedom of the legislator to determine the conditions for prison leave in cases that involved particularly dangerous crimes. December 2016) appeal to the ECtHR, claiming violation of art. 3, ECHR since his life sentence was irreducible and afforded him no prospect of release on license and art. 8 due to the incompatibility of the prison regime with the aim of prisoners' rehabilitation and social reintegration. The court acknowledged that the prisoners were offered a choice as to whether to cooperate with judicial authorities under domestic rules. The question that arose, however, was whether Mr. Viola chose freely not to cooperate and whether the lack of cooperation could be equated with the prisoner’s dangerousness to society. The court held that the lack of cooperation was not always the result of a free and deliberate choice, nor did it necessarily reflect ongoing links with the mafia-type organisation. Besides, there might be other indicators that could determine the progress done by the offender in his process of rehabilitation. Therefore, the court held that it would be incompatible with human dignity to deprive persons of their freedom without striving towards their rehabilitation and providing them with the chance to regain that freedom at some future date and that art. 3 had been violated, though not offering the applicant the prospect of imminent release. THE PRINCIPLE OF LEGALITY Art. 1, It cc = No one may be punished for an act not expressly provided as a criminal offence by the law, nor with penalties not provided for by the law. Within civil law countries the principle of legality is made of other subprinciples:  principle of non-retroactivity = criminal law cannot provide criminal offences or penalties ex post facto - enshrined in art. 2(1), It cc, which states that no one may be punished for an act which did not constitute an offence at the time it was committed - the scope of application of this principle includes criminal provisions in detriment of the accused (it has no effect on procedural law);  prohibition of analogy = criminal law must be only applied to those cases that are provided for by the law - the same rationale cannot be applied to similar cases not expressly foreseen by criminal provisions;  principle of certainty = the law must be precise, in order to enable the individuals to know in advance what is the exact meaning of the criminal offences and the possible consequences of their behaviours;  statutory reservation = prohibition against unwritten or judge-made criminal provisions - not present in all criminal legal systems (it is lacking in the common law) - enshrined in art. 25(2), It Const, which claims that no punishment may be inflicted except by virtue of a law in force at the time the offence was committed and art. 1, It cc, which affirms that no one may be punished for an act not expressly provided as a criminal offence by the law, nor with penalties not provided for by the law - the main goal of the principle of statutory reservation is safeguarding the rights of the minorities (through parliamentary sovereignty) - statutory reservation can be absolute [only primary sources of law (ordinary laws) can define criminal offences] or relative (also secondary sources of law are allowed to issue criminal law - ex. regulations by the executive). Italy adopts the absolute approach, though secondary sources still play a technical contribution - art. 7, ECHR acknowledges both written and unwritten law as a possible legitimate legal basis for criminal offences and penalties. Succession of statutes is regulated by:  art. 2(2), It cc [abolitio criminis] = no one may be punished for an act which does not constitute an offence according to a subsequent statute; and if the sentence has been imposed, the execution and the penal consequences thereof shall cease;  art. 2(4), It cc [retroactivity of more lenient criminal law] = if the statute in force at the time an offence was committed and a subsequent statute are different, that statute shall be applied whose provisions are more favourable to the accused, unless a final judgement has been issued. Special provisions are provided for by:  art. 2(5), It cc = previous provisions shall not be applied to exceptional and temporary statutes;  art. 2(6), It cc = previous provisions shall be applied in case of relinquishment, absence of ratification of or non-converted Law Decree. In 1985 the Italian constitutional court declared art. 2(6) to be inconsistent with art. 77, It Const. The court stated that the article shall apply only to offences committed before the entry into force of the Decree. The main theoretical foundations of the principle of legality are:  the guarantee of individual liberties against state arbitrariness;  the need for fairness in criminal law;  democracy and separation of powers;  the purposes of criminal law (in particular general prevention). The main philosophical foundations of the principle of legality are:  the social contract doctrine;  Cesare Beccaria and the Enlightenment;  Von Feuerbach's general prevention. PRINCIPLES OF JURISDICTION Criminal law is traditionally based on national discipline. Every attempt to harmonise takes a lot of effort. This is so because of different reasons:  states' sovereignty;  cultural values/national identity (especially with regard to criminalization);  history (specific legislation, ex. holocaust denial in Germany). Globalization has increased the rise of:  transnational crimes = crimes which affect several countries (due to free movement of people) [the idea of eurocrime is that every EU state is required to implement a directive and to set up in their criminal codes a crime which refers to one established by the EU];  international crimes (stricto sensu) = war crimes, crimes against humanity, genocide, aggression (international liability). When a crime is committed, sometimes it is not clear which country will have to take on the prosecution. It might happen that two or more states claim jurisdiction over one case (conflict of jurisdiction) or that no state does (impunity). Ex. a German citizen commits murder against a Belgian citizen in Italy:  risk of double jeopardy (ne bis in idem = no person shall be punished more than once for the same act);  risk of forum shopping (or even impunity). States need to coordinate to avoid such risks. The general criterion is the existence of a meaningful (or genuine) link between the case and the state. Each state decides on the scope of application of its national law. However, several principles of jurisdiction are recognized by international law:  territorial principle = a state is entitled to claim criminal jurisdiction over crimes that occurred within its national territory, since domestic criminal law must be applicable to any person present in the country (territorial sovereignty - principle of non-intervention - investigation is easier) - the locus commissi delicti principle involves where the conduct happened, where the result of the offence occurred, the principle of ubiquity and preparatory acts - cybercrimes (ex. identity theft) create problems on this issue, mainly solved by using the location of the result - the national territory is the one recognized to international law rules;  nationality principle = every offender is subject to his/her national legal order, due to the duty of allegiance and the solidarity among states - it is used in case of extradition (aut dedere aut iudiciare) - the nationals are the citizens of a state, those with permanent resident in the state and the naturalized citizens - restrictions are: o lex loci (double criminality) = the act must be punishable according to the law in force in the state where the crime was committed; o lex mitior = the penalty imposed by a domestic court must not exceed the penalty provided for by the law of the state where the crime was committed;  protective principles = they grant jurisdiction over all offences that violate or endanger domestic legal interests of a state (regardless of any other factor), since it is the responsibility of a state to protect its own legal interests and those of its citizens - sub-principles are: o protective principle stricto sensu = self-defence of the state and its institutions at stake - the genuine link required by international law is evident (typical offences are those related to the security of the state, the administration of justice, …); o passive personality principle = the law of the state of which the person affected by the crime is a national is applied due to the responsibility of any state to protect its citizens - restrictions are:  double criminality;  gravity = seriousness of the crime or list of specific offences (ex. terrorism);  universality principle = every state is entitled to exercise jurisdiction over certain offences without regard to the location of the offence, the nationality or domicile of the perpetrator or the victim - lack of a genuine link - the rationale is that common security interests of all states are concerned or the legal interest infringed/endangered is of a global character (ex. crimes against humanity, genocide, war crimes, …);  representation principle = it entitles states that have no genuine link to the case to exercise criminal jurisdiction on behalf of another state that is incapable of prosecuting it (ex. suspect seized in a state that cannot be extradite to the state that would be competent under other criteria) - the rationale is the solidarity among states and the need to avoid impunity - restriction is the lex mitior. No measures so far has been taken within the EU to prevent conflicts of jurisdiction. However, art. 82, TFEU encourages the European Parliament and the Council to adopt measures to avoid conflicts of jurisdiction and certain acts of the EU contain provisions that do aim to solve such conflicts. The general rule, according to art. 54, CISA, is that a person whose trial has been finally disposed of in one contracting party may not be prosecuted in another contracting party for the same acts provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforce under the laws of the sentencing contracting party (preference for the territorial principle). THE ORIGINS OF INTERNATIONAL CRIMINAL LAW International law deals with rights and responsibility of states, while criminal law entails prohibitions addressed to individuals punished by states. International criminal law is a hybrid of the two. International crimes can be:  mala in se;  crimes that affect values protected by the international community and that threaten the peace, security and well-being of the world. Sources of ICL are:  the finding of a balance between peace and justice;  collective aspects;  weak justice institutions;  weak legal frameworks. Mens rea is present in ICL through art. 30, ICC statute, which provides a general rule for international core crimes. According to such article, unless otherwise provided, liability is intended for crimes committed with intent (with regard to the conduct and its consequences) and knowledge (with regard to the consequences and the circumstances of the conduct). Recklessness (dolus eventualis) seems to be rejected, even though it has been recognized by the ICC in some cases. Exceptions to the intent and knowledge rule are, for ex., command responsibility (having negligence standard) and genocide (requiring specific intent). GENOCIDE The term was used for the first time by Raphael Lemkin in 1944, putting together the two words genos (race) and caedere (to kill). Genocide involves destruction (in a holistic sense: of political and social institutions, culture, language, …). Groups are attacked for being, not for doing something. Genocide was codified pretty late, due to the fact that it is mainly committed and/or tolerated by states. The first attempt to prosecute genocide was in 1919, with the Treaty of Versailles, which set up the Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties. Its mandate was to investigate the violations of international law committed by Germany in Serbia. The new crime (against the laws of humanity) was proposed by the Greek members of the commission in order to punish also the massacres of the Armenians committed by the Ottoman empire (1915). 1923) the Treaty of Lausanne granted amnesty for crimes committed between 1914 and 1922. In Nuremberg holocaust was punished under crimes against humanity. The term genocide was used during the pleading by the prosecutor, but not in the judgement. The Nuremberg Trial shed light on genocidal policies and this contributed to the drafting of the Geneva Conventions. The sources containing the definition the crime of genocide are:  UN GA Resolution 96(I) 1946 = broader in scope (also other groups were encompassed - physical, biological and cultural genocide recognized - aimed at formalizing universal jurisdiction);  1948 Convention on the Prevention and Punishment of the Crime of Genocide;  ICTY and ICTR statutes;  ICC statute;  ICJ statements: o 2006) the prohibition of genocide is a norm of jus cogens; o 2007) the prohibition of genocide possess the existing requirements of customary international law. The 1948 Genocide Convention aims at:  obliging states to criminalize and punish genocide;  providing judicial cooperation for the suppression of the crime;  providing protection in times of both war and peace. Art. 2, Genocide Convention defines genocide as any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:  killing members of the group;  causing serious bodily or mental harm to members of the group;  deliberately inflicting on the group conditions of life calculated to bring about is physical destruction in whole or in part;  imposing measures intended to prevent births within the group;  forcibly transferring children of the group to another group. The crime is directed at specific groups recognized under international law: national, ethnic, racial, religious. The groups which are not protected are political opponents or state assigned social classes. The official reason for not protecting them was that protected groups shall have a certain degree of stability; another reason could be to leave unpunished crimes such as those committed in the Soviet Union. In 1998 the ICTR released a judgement (Akayesu) in which objective elements to identify protected groups were established:  the group must be constituted in a permanent fashion;  membership must be determined by birth. Subjective elements are self-perception and identification by others. In 2007 the ICJ defined destruction as meant in the physical sense and not only in the destruction of the identity of the group (Bosnia v. Serbia). In 2001 the ICTY declared that the action must target a substantial part of the group (in number, but also with regard to how essential that part was for the survival of the group-quantitative or qualitative). According to the ICC, one action would be sufficient if capable of destroying a group. Ethnic cleansing is the rendering an area ethnically homogenous by using force or intimidation to remove persons of given groups from the area (ICJ, 2007). In 1997 the German Constitutional Court had declared that systematic expulsion can be a method of destruction and therefore an indication of an intention to destroy. With regard to mens rea, the acts listed in art. 2 of the Convention must be committed with intent to destroy, in whole or in part, the groups. It is a specific intent, which is very difficult to prove (and therefore criticized as not responding to the aim of the convention). In the Armenian case Turkey's argument for the denial is, indeed, the lack of intent. According to art. 6, Genocide Convention, persons charged with genocide shall be tried by a competent tribunal of the state in the territory of which the act was committed or by such international penal tribunal as may have jurisdiction with respect to those contracting parties which shall have accepted its jurisdiction (territorial + international jurisdiction). For the crime of genocide there is a dual responsibility:  individual criminal liability, including: o commission of genocide; o conspiracy; o direct and public incitement; o attempt; o complicity;  state responsibility = states are in charge of: o preventing; o punishing; o refraining from engaging in genocide. The obligations of states are not very specific. Most states focus on legislation criminalizing and punishing genocide; not many measures are taken in prevention of genocide. Eichmann (1961) Otto Adolf Eichmann was the head of the section "Jewish Affairs and Emigration" of the Gestapo. In Nuremberg he was singled out as the main responsible for the final solution of the Jewish question. He escaped the capture and migrated to Argentina. In 1960 he got abducted by Israel secret services and tried in front of the Jerusalem District Court in 1961. In 1950 in Israel a law was passed, which recognized jurisdiction under universal principle, protective principle (stricto sensu) and passive personality principles. The indictments were: crimes against the Jewish people, crimes against humanity, war crimes and membership in a criminal organisation. The defence contested the jurisdiction of the court (based on the principles of retroactivity and sovereignty); it tried to enforce the immunity of state officials and the fact that he was following superior orders. All defences got rejected and Eichmann was convicted for all four indictments to death penalty. This case is seen as a consolidation of the legacy of Nuremberg. It was the first conviction by a national tribunal of a foreign official acting in this capacity. CRIMES AGAINST HUMANITY Both crimes against humanity and genocide are very serious offences against human dignity, often part of a larger context and often carried out by or with the complicity/toleration of state officials. However, while in genocide specific groups are targeted, in crimes against humanity the civilian population is targeted. The actus reus may sometimes be very similar. The mens rea is different (special intent for genocide). The principles that brought to the creation of the concept of crime against humanity are namely the humanitarian principles governing armed conflicts. The term was used for the first time in 1915 to refer to the Armenian mass killing and it was codified for the first time in the Nuremberg charter (art. 6 - first time in which the conduct of a state against its own citizens became a matter of international law). Art. 6(c), Nuremberg charter defines crime against humanity as the murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal. Art. 7, ICC statute defines crimes against humanity as a list of acts (murder, extermination, enslavement, …) committed as a part of a widespread or systematic attack directed against any civilian population with knowledge of the attack. No nexus to either other crimes or an (international) armed conflict is required. This article also enlarges the categories of punishable conducts (such as apartheid, enforced disappearance of persons, gender crimes). The protected interests that lie at the basis of the criminalization of crimes against humanity are:  the laws of humanity;  international peace and security;  state or organizational policy (right of the individuals to be protected from abuse of state power). With regard to the actus reus, sometimes the conduct itself is enough; other times the consequence is required as element of causation; finally, contextual elements of the crime (ex. the fact that the crime is part of a widespread or systematic attack directed against civilian population) distinguish international from domestic crimes. The list of conducts of art. 7, ICC statute can be divided into:  murder-type crimes (most of which are also criminalized in domestic systems); and In Croatia the right party won the election and proclaimed the State of the Croatian. Croatian Serbs started a rebellion and seceded from Croatia. The Serbian bloc wanted to rebuild Yugoslavia under Serbian dominance. Bosnia-Herzegovina wanted a new Yugoslavia with a new federal constitution. Slovenia and Croatia would only accept a confederation of states and declared their independence in 1991. The federal army intervened, leading to the ten-day war, which ended with the Brioni Agreement (sponsored by the European Community): independence was suspended in order to enable negotiations. 1991) Peace Conference on Yugoslavia at the Hague (under the mediation of the EC) - it failed due to mixed attitudes within the EC on the legitimacy of secession/independence vs. re-establishment of Yugoslavia. 1992-3) EC (followed by the US) recognized the independence of Slovenia, Croatia, Bosnia-Herzegovina and Macedonia. 1992) Serbia and Montenegro proclaimed the Federal Republic of Yugoslavia as a continuation of the old republic - not recognized by the UN (in 2000 the state of “Serbia and Montenegro” was recognized by the UN and in 2006 Montenegro declared its independence from Serbia). Bosnian conflict Bosnian Serbs opposed the independence of Bosnia-Herzegovina. They declared their independence and founded the Republika Srpska. Bosnian Croats also declared their independence and founded the Croatian Republic of Herzeg-Bosnia. Srebrenica had become a refuge for Bosnian Muslims who left their home. It was considered a safe area, so that the UN Commander was sent to the city. 1993) Vance-Owen Plan = the UN proposed the division of the country in 10 ethnic provinces, with a neutral capital (Sarajevo) - rejected by the Serbs. 1994) attack in Sarajevo market - NATO sent the Bosnian Serbs an ultimatum to withdraw their weapons from Sarajevo - they refused and attacked a hospital in a UN safe area - NATO responded with an airstrike of a Serb command post. (1995) - Serbs surrounded and took hostage 150 UN and EU personnel - Serb forces entered the safe are of Srebrenica, which capitulated. Srebrenica's genocide = Bosnian Serbs and other forces executed 7.000 to 8.000 Bosnian Muslim prisoners from Srebrenica in one week in July 1995. The UN intensified the local peace keeping forces. However, the Serbs conquered another UN safe area (Zepa) and attacked Sarajevo. NATO, supported by the UN, started attacking Bosnian Serb military targets. After two weeks Bosnian Serbs leaders agreed to comply with the UN/NATO conditions and the air campaign stopped. 1995) Dayton Agreement = proposal of a Federation of Bosnia and Herzegovina (Bosniak-Croats Federation + Republika Srpska) - implementation accompanied by strong international supervision. Conflict in Kosovo 1998-9) Albanian majority in Kosovo seeking for independence. It took until 2008 for Kosovo to declare itself as an independent nation. The International Criminal Tribunal for the former Yugoslavia could be established because there was high presence of international observes in the region, who gathered evidence showing violations of international humanitarian law and fundamental human rights. The legal bases of the ICTY were two UN SC resolutions (808 and 827 of 1993), which were adopted under art. 39, chapter VII, UN Charter. The reasons for the use of UN SC resolutions were many, mainly the immediacy, the jurisdiction over the territory of the former Yugoslavia irrespective of the consent, the duty on all the states to cooperate with the ICTY and the mandatory powers of the SC. The aims of the ICTY were:  deterring from the commission of further crimes (conflict still ongoing);  contributing to restore peace and reconciliation;  bringing responsibles to justice. The Tribunal was established in 1993 in the Hague. It closed in 2017. The Tribunal had 16 permanent judges, all of different nationalities, elected by the UN GA. They had a 4 years mandate with possibility of re-election. There were also 27 judges ad item (3 years mandate). The president was elected by the permanent judges for a 2 years term. The Tribunal was made of 3 trial chambers. Each chamber was composed of 3 permanent judges + maximum 9 ad item judges. There was also an appeal chamber composed of 5 permanent judges. The prosecutor was appointed by the UN SC for a 4 years. The jurisdiction of the court included crimes committed by natural persons in the territory of the former Yugoslavia after January 1st 1991. The crimes that could be prosecuted were:  grave breaches of the Geneva Conventions;  any serious violation of the law and customs of war;  genocide;  crimes against humanity committed during an armed conflict. The ICTY and national courts had concurrent jurisdictions, but the ICTY had primacy over national courts. Both of them could initiate proceedings, but if the ICTY wanted, it could ask for the proceedings to be handled by itself. A person could also be re-tried if the national proceeding was:  for an ordinary crimes;  not impartial or independent;  designed to shield the accused from international criminal responsibility;  not diligently prosecuted. The ICTY contributed to establish or develop some definitions of international humanitarian law and international criminal law, including:  features of armed conflict;  theory of joint criminal enterprise (JCE) = individual liability for committing the crime as part of a plurality of co-perpetrators who act pursuant to a common purpose;  cumulative convictions = multiple convictions for the same conduct are permitted only when: o the conduct relates to crimes under distinctive provisions of the ICTY statute; o each crime contains a materially distinct element which requires proof of a fact that the elements of the other crimes do not require;  definitions of the elements of crimes (ex. destruction, persecution);  sexual violence (and enslavement) recognized as a crime against humanity. THE RWANDAN GENOCIDE The polarization between Hutu and Tutsi is believed to have been increased by Belgian colonialism. Tensions got increased by a civil war (1990-4), which culminated with the shooting down of President Habyarimana's plane by unknown attackers on April 6th 1994. During the same night the genocide started and it lasted 100 days. The genocide was often committed by civilians. Almost one million victims got involved. Reactions of the population were mixed. The international community failed to take action. The post-genocide challenges were:  rebuilding of the state;  rule of law;  reconciliation, through three levels of transitional justice: 1. international prosecutions (ICTR); 2. national prosecutions; 3. local mechanisms. The ICTR was established the UN SC Res. 955/1994. It was very similar to the ICTY, but its seat was in Arusha (Tanzania). Initially, due to the lack of a functioning judiciary, the ICTR had monopoly over most of the cases. The jurisdiction involved crimes committed in 1994 in Rwanda and neighbouring states. Such crimes could be genocide, crimes against humanity (linked with discrimination) and war crimes. Between 2012 and 2013 the UN has established an International Residual Mechanism for Criminal Tribunals as a successor of the ICTY and the ICTR. It is in charge of securing and bringing trial remaining fugitives and of protecting and supporting victims and witnesses. Furthermore, it provides assistance to national jurisdictions and supervises the enforcement of sentences of the ad hoc tribunals. Finally, it preserves the archives of the two tribunals and it carries out appeals and reviews. After the end of the civil war a new regime was established: the Rwandan Government of National Unity, which was let free to organize the transitional justice agenda. The organic law 08/1996 gave jurisdiction to Rwandan courts for genocide, crimes against humanity and offences committed in connection with these crimes between 1990 and 1994. Offenders were divided in four categories: 1. death penalty (ex. planners, organizers, instigators, supervisors and leaders of genocide or crimes against humanity); 2. life imprisonment (perpetrators, conspirators or accomplices of intentional homicide or of serious assault against the person causing death); 3. prison sentence (persons guilty of other serious assaults); 4. civil redress (persons who committed offenses against property). The problems linked to domestic trials were their length and costs, but also prison overcrowding. The local level of transitional justice was activated in order to facilitate the participation of the community and to cope with the high number of cases. The main instruments were the so-called Gacaca courts. We can distinguish between a pilot phase (2002-5) and a phase of official functioning of the courts (2006-12). 1 million perpetrators were tried. The Gacaca courts were pre-colonial justice mechanisms whose aims were restoring peace and achieving just decisions. The use of these mechanisms was restricted to civil disputes by the Belgian colonizers. Restorative justice was defined in Marshall (1999) as a process whereby parties with a stake in a specific offence collectively resolve how to deal with the aftermath of the offence and its implication for the future. The main models of restorative justice are the victim-offender mediation, the conferencing (both victim and offender supported by other members of the society) and the peace-making circles (rounds of people fostering the participation of members of the whole community affected by the conflict). Traditional informal mechanisms of dispute resolution exist in several regions (North Africa, Middle East, South East Asia). Informal mechanisms have several benefits:  they often reflect social norms and values shared by the community;  perceived legitimacy of and trust in the authority resulting in higher compliance with decisions;  perceived fairness of the procedure;  availability (geographical proximity);  lower costs; The assessment of gravity is based on generic assessment, scale of crimes, nature of crimes, manner of commission and impact of the crime. The Prosecutor builds a case through:  collection of material;  investigation;  formation of a case. INTERNATIONAL RESPONSES TO THE ONGOING RUSSIA-UKRAINE CONFLICT Economic sanctions have been imposed by UN, EU, individual states and multinational companies. The ICJ ordered to immediately suspend the military operations. The Council of Europe suspended Russia from its rights of representation. Later Russia retreated from the Council. Ad interim measures were imposed by the ECtHR: indication to Russia to refrain from military attacks against civilians. The ICC intervened under art. 12(3), Rome statute (ad hoc declaration accepting the exercise of jurisdiction by the court with respect to a specific crime by Ukraine - already used in 2014 and 2015). Already in 2014 preliminary examinations had been initiated by the ICC prosecutor. In 2020 such examinations were closed with a reasonable basis to believe that a broad range of conduct constituting war crimes and crimes against humanity within the jurisdiction of the court had been committed in the context of the situation in Ukraine. In 2022 the new ICC prosecutor announced to have decided to proceed with opening an investigation on the Ukraine situation. States parties were asked to submit a referral on the topic, in order to skip the seek for authorisation from the pre-trial chamber. AGGRESSION The crime of aggression is basically an application of the prohibition of the use of force set forth by art. 2(4), UN Charter. The crime takes its origin back to art. 6(a), London Charter, according to which crimes against peace include the panning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances or participation in a common plan or conspiracy for the accomplishment of any of the foregoing. The crime was added to the ICC statute through art. 8bis within the framework of the Kampala Conference of 2010. The act of aggression does not need to be declared by the UN SC as such in order to start investigations. Only those states parties that have ratified the resolution adopted in Kampala can be subject to the jurisdiction of the ICC. Confirmation by the Assembly of States Parties and ratification of at least 30 states has been necessary; therefore, only those acts of aggression committed after July 17 th 2018 can be prosecuted by the court. The crime of aggression is a so-called leadership crime: only leaders can be prosecuted, not the subordinates. The attack must have a certain scale and intensity (flagrant breaches of international law are required) and must pursue particularly aggressive goals). Some doubts have been expressed by scholars on the intervention of the ICC in Ukraine, including:  legitimacy (the declarations by Ukraine of 2014 and 2015 were not renewed nor was the ICC statute ratified since the declarations);  enforcement (doubts on the issuing of arrest warrants, no possibility to have trials in absentia, conflicting obligations of states);  timing (long procedures of the ICC). ELEMENTS OF INTERNATIONAL CRIMINAL RESPONSIBILITY There are three main types of perpetrators of international crimes:  leaders = they have decision making power;  agents = in charge of planning/organization;  executors = those who execute the crime. Participation takes different forms, including:  direct or indirect perpetration or co-perpetration;  order, solicitation or induction (instigation/incitement);  aiding, abetting or otherwise assisting;  contribution of any other form (ex. conspiracy). There exist three theories of co-perpetration:  joint criminal enterprise (objective prerequisites: several individuals, common plan or purpose and contribution within the framework of the plan) = divided in three sub-forms: 0. several individuals acting with a common purpose/criminal intent - each of them contributes with his/her conduct to a common plan; 1. several individuals running an organized system (ex. concentration camps) - no need to prove the specific intent for the crimes committed, but it suffices that the participant acted with knowledge of the system and with the intent to further it; 2. if a member of the group commits a crime that was not part of the common plan, responsibility is extended to the other members - only for crimes or consequences that could be reasonably foreseeable (criticized because it is based on the idea of guilt by association);  control theory = used to punish perpetrators who control or mastermind certain crimes - it excludes responsibility for non-essential contributions to the crime;  command responsibility theory = the fact that crime was committed by subordinates does not relieve the superior of criminal responsibility if the commander knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior neither failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators (mainly used in Nuremberg). According to art. 31(1), ICC statute, the main grounds for excluding criminal responsibility (defences) in ICL are:  mental incapacity = non-transient mental disease or defect, affecting the capacity to appreciate the unlawfulness or the nature of one's conduct (cognitive) and/or the capacity to control one's conduct (volitional);  self-defence (from an imminent and unlawful use of force - in a reasonable and proportionate way);  threat of imminent death or of continuing or imminent serious bodily harm against the defendant or another person emanating from: o a person (duress); o other circumstances beyond that person’s control (state of necessity). Art. 32, ICC statute also provides for mistakes of fact or of law as possible defences as long as they negate the mental element (ex. a soldier employs bullets, which expand or flatten in the human body, without knowing the nature of the ammunitions / a soldier employs bullets which he doesn't are prohibited). (Freely followed) superior orders were not regarded as defences in Nuremberg, but they were used as means of possible mitigation of punishment by the ICTY and the ICTR. Art. 33, ICC statute provides for the duty to disobey (manifestly) unlawful orders (namely those to commit genocide and crimes against humanity). According to art. 27, ICC statute, no immunity (for heads of government/state or other officials) is available with regard to international crimes. THE EVOLUTION OF EU CRIMINAL LAW For long MSs refused to grant competences to the European Community in the area of criminal law, due to concerns over sovereignty and democratic deficit (Commission and Council are not elected). Instead, they favoured cooperation in criminal matters. 1992) the Treaty of Maastricht established the EU and created the pillar structure (European Communities + common foreign and security policy + cooperation in justice and home affairs), which opened the way for the Union to have competences in the field of criminal law. The cooperation in justice and home affairs included international law instruments (conventions and, later on, framework decisions), unanimity and veto power; it had no direct effect. 1997) the Treaty of Amsterdam tried to "communitarize" the third pillar, but it was not successful; it only succeeded to change the name of third pillar to area of freedom, security and justice, whose aim is to secure free movement while combating illegal activities. This area covers:  the management of EU external borders;  judicial cooperation in civil matters;  asylum and immigration policies;  judicial cooperation in criminal matters;  police cooperation and the fight against crime. Accountability needed to be achieved by strengthening the role of the European Parliament and extending the jurisdiction of the ECJ in criminal law. 2009) the Treaty of Lisbon abolished the pillar structure, extended directives and regulations to the third pillar, extended the competence of the ECJ to third pillar, set forth the accession of the EU to the ECHR and incorporated the European Charter of FRs. Art. 67, TFEU = (1) The Union shall constitute an area of freedom, security and justice with respect for FRs and the different legal systems and traditions of the MSs. (3) The Union shall endeavour to ensure a high level of security through measures to prevent and combat crime, racism and xenophobia and through measures for coordination and cooperation between police and judicial authorities and other competent authorities, as well as through the mutual recognition of judgments in criminal matters and, if necessary, through the approximation of criminal laws. The basic criminal law provisions within the EU are art.s 82 and 83, TFEU. Art. 82(1), TFEU = The European Parliament and the Council shall adopt measures to: a. lay down rules and procedures for ensuring recognition throughout the Union of all forms of judgments and judicial decisions; b. prevent and settle conflicts of jurisdiction between MSs; c. support the training of the judiciary and judicial staff;