EUROPEAN CRIMINAL LAW, Dispense di Diritto Penale

Scarica EUROPEAN CRIMINAL LAW e più Dispense in PDF di Diritto Penale solo su Docsity! Week 1 There is not yet a European Criminal Code = there are no criminal rules uniformly applicable in all MSs. But: 1) provisions that impose sanctions applicable in all Member States, according to the competences of EU in criminal matters. After the Lisbon Treaty, there’s the “Constitutionalisation” of EU Criminal Law, since the system comprises structures, processes, principles and values of a “Constitution”; 2) national criminal law provisions influenced by EU law; •if domestic criminal law is in conflict with the EU provisions, EU law takes precedence; •EU provisions can also influence the interpretation of domestic rules (ex. domestic rule introduced to implement a directive). • one may thus refer to «Europeanised national criminal law». 3) institutions and instruments necessary to ensure criminal prosecution throughout Europe  the procedural element of EU criminal law  judicial and police cooperation; 4) the principles and values of the European Convention on Human Rights (as interpreted by the European Court of Human Rights) which influence both domestic criminal law and criminal procedure. ADDED VALUE = In the field of fraud affecting financial interests, the enactment of a criminal provision coming from the European Union may present an «added value» at least from two points of view: 1) in order to avoid that the perpetrators of serious offences can take advantage from the differences among the States, committing the crime in the Nation with the less severe sanctions (so called phenomenon of «forum shopping»); 2) in order to ensure the certainty of the rules, both as a general right of all citizens and as a way to promote investments. After Lisbon, European Criminal Law becomes a part of the Area of Freedom, Security and Justice (AFSJ). Art. 67 TFEU « 1. The Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States…». - At the same time, under the Lisbon Treaty, Criminal Law becomes also a European matter (although respecting national identities), while national security remains a domestic issue. Art. 82 TFEU 1. Judicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions and shall include the approximation of the laws and regulations of the Member States in the areas referred to in paragraph 2 and in Article 83. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, 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 Member States; (c) support the training of the judiciary and judicial staff; (d) facilitate cooperation between judicial or equivalent authorities of the Member States in relation to proceedings in criminal matters and the enforcement of decisions. 2. To the extent necessary to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension, the European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules. Such rules shall take into account the differences between the legal traditions and systems of the Member States. Art. 83 TFEU 1. The European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis. These areas of crime are the following: terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime. 2. If the approximation of criminal laws and regulations of the Member States proves essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonization measures, directives may establish minimum rules with regard to the definition of criminal offences and sanctions in the area concerned. Such directives shall be adopted by the same ordinary or special legislative procedure as was followed for the adoption of the harmonization measures in question, without prejudice to Article 76. Art. 84 TFEU The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may establish measures to promote and support the action of Member States in the field of crime prevention, excluding any harmonization of the laws and regulations of the Member States. Art. 85 TFEU 1. Eurojust's mission shall be to support and strengthen coordination and cooperation between national investigating and prosecuting authorities in relation to serious crime affecting two or accordance with a special legislative procedure, it shall alsoact unanimously on a proposal from the Commission and after obtaining the consent ofthe European Parliament. • Before the drafting of the Treaty of Lisbon, the prevailing opinion was that the specificcharacteristics of criminal law required a restrictive interpretation. Criminal law could not be based on existing competences! • Since the Treaty of Lisbon entered into force in 2009, the dispute was settled. Art. 325 TFEU “4. The European Parliament and the Council, acting in accordance with the ordinarylegislative procedure, after consulting the Court of Auditors, shall adopt the necessarymeasures in the fields of the prevention of and fight against fraud affecting the financialinterests of the Union with a view to affording effective and equivalent protection in the Member States and in all the Union's institutions, bodies, offices and agencies. ” Art. 325 TFEU refers to all “necessary measures” including the enactment of directlyapplicable regulations, it does not contain any reservation According to Art. 86 TFEU, in order to combat crimes affecting the EU financial interests,the Council, by means of regulations, may establish a European Public Prosecutor’sOffice (EPPO): regulations as “necessary measures”? Criminal law protection is not only pursued within MSs, but also at a EU level. After Lisbon, the EU is given competence to adopt criminal law provisions. Given the existing competences to adopt supranational criminal law, it is important tocomply with the principles of subsidiarity and proportionality (Art. 5 TEU). •principleof subsidiarity: since enacting criminal law is closely connected to MSs’sovereignty. The EU may take action when the objectives cannot be sufficiently achievedby the MSs, but can rather be better achieved at Union level. •principle of proportionality: a criminal law sanction can only be the ultima ratio, i. e. theUnionactionshallnotexceedwhatisnecessaryto achieve the objectives of theTreaties. Specific competences to enact criminal are limited to certain areas and basedon the reformed primary law. A general “annex competence”, which would enable the EU to enact criminal law in orderto ensure that its rules are fully effective, is to be rejected. This would impinge on national sovereignty! FUTURE PROJECT CONCERNING EU CRIMINALLAWEven before the Treaty of Lisbon came into force, there were detailed proposals for asupranational European criminal law. 1) Corpus Juris of Criminal Provisions for the Protection of the Financial Interests of theEuropean Communities (Corpus Juris 2000) Upon the initiative of the EP, a group of MSs experts developed the Corpus Juris ofCriminalProvisionsfortheProtectionoftheFinancialInterestsoftheEuropeanCommunities (Corpus Juris 2000). - substantive and procedural criminal law provisions- 39 articles. - 8 criminal offences to protect the EU budget. The Corpus Juris sets principal penalties and additional penalties. Principal:finesandcustodialsentenceupto5years;additional:publicationofconviction,exclusionofthec onvictednaturalpersonororganizationfromfuturesubsidies granted by EU. further legal consequences= confiscation of the means used to commit the offence, ofits fruits and profits. 2) Europa-Delikte •private project (headed by Prof. Klaus Tiedemann) •might constitute the basis of a future European economic criminal law. The work encompasses offences such as: -manipulation of stock prices -insider trading -collusion restraining competition in tendering procedures -environmental offences 3) Commission Green Paper on Criminal-Law Protection of the Financial Interests of theCommunity and the Establishment of a European Prosecutor The Green Paper suggested •The establishment of a European Prosecutor •measures for improving the effect of cross-border criminal prosecution •unitary substantive criminal offences in the MSs (to be based on the ideas developed inthe Corpus Juris) CRIMINALLAW UNDER INFLUENCE OF EULAW •The EU competence to establish supranational criminal law is limited to well-defined fields as fraud affecting the EU financial and customs. •Outside these fields, the EU cannot enact new supranational criminal law applicable inall MSs to supplement/replace existing domestic criminal law. However, domestic criminal law can be influenced by European Law (Europeanization of national substantive criminal law). One could expect a limited influence of EU law due to MSs sovereignty and the fact that the competence for adopting criminal law remains, in most fields, at the MSs level àCriminal law as a «reservation of national law». The idea of a reservation contrasts with the share of competences between the EU and the MSs, focusing on the achievement of the Treaties’ goals. The TFEU enables EU institutions - under certain conditions – to adopt the appropriate measures in order to achieve these goals. - legislative acts adopted by the Union to reach certain objectives may influence all fields of national legal orders in the process of achieving the goal. This way of distributing competences can be described as a dynamic competence structure. Therefore, domestic criminal law can generally be influenced by European Law and be “Europeanized”. PECULIARITIES OF CRIMINAL LAW •criminal law is extremely sensitive for MSs as closely linked to national sovereignty àrooted in the social and ethical values of a society. Criminal law prohibitions carry with them a social and ethical judgment of unworthinesson the penalized conduct. When MSs criminal law and criminal policies are based on peculiar national conditions,issues may arise from the implications of Europeanization. Europeanization may contrast with the social ethical values of a community and EU lawmay become inacceptable to people. The criminal law area must be treated with special care because it is closely connectedto MSs socio-political and cultural peculiarities. Week 3 MSs must comply with general requirements derived from primary law and special requirements derived from secondary law. Principles of primary law were developed by ECJ cases and still apply after the Treaty of Lisbon. EU primary law sets : - an UPPER LIMIT for national criminal law = domestic criminal law must not violate European law. - a LOWER LIMIT for the establishment of national criminal law = EU law may require MSs to maintain a certain level of criminalization. Generally, national legislators can decide whether certain conducts deserve to be punished or not; however: Discretion limited by the MS’s duty of loyalty (art. 4 TEU) national criminal law in contrast with EU law must not be enacted nor maintained. MSs often criminalize conducts closely connected to the exercise of fundamental freedoms. (Greek woman without the German driving licence). The ECJ distinguishes between LEGITIMATE exercise of the right of control accepted by EU law and ILLEGITIMATE intrusions in the fundamental freedoms by applying the principles of proportionality and non-discrimination. A disproportionate or discriminating sanction violates fundamental freedoms. The situation is similar when national criminal law provisions are established in areas closely linked to EU fundamental rights. (ex. Art 34/35 on restriction on quantitative of import and export). TYPES OF SANCTIONS •The type of sanction can also violate EU law if it constraints fundamental rights without justification •Imprisonment of a citizen from another MS would always constitute a restriction as it prevents the person from moving freely within the EU, choosing a place of establishment, providing services across the common market, etc. •If this link with fundamental rights was enough to bring the case within the scope of EU law, every criminal provision threatening imprisonment would fall within EU law’s scrutiny •restrictions of fundamental rights that are necessary and common side effects of criminal penalties do not fall within the scope of the TFEU PRIMARY NORM = laid down the criminal action SECONDARY NORM = penalties MINIMUM REQUIREMENTS FOR CRIMINAL LAW SET BY EU LAW = It may require MSs to maintain a minimum level of criminalization. This problem could be avoided if the EU followed criminal law standards, such as those developed by the European Criminal Policy Initiative in their «Manifesto on European Criminal Policy» •Published in December •Elaborated by 14 university professors from 10 Member States •contains principles and guidelines for the development of a reasonable criminal policy at the EU level •The approximation of domestic law by means of directives adopted in accordance with the ordinary legislative procedure is only allowed in areas of particularly serious crimes with a cross border dimension. • The EU has competence for approximating substantive criminal law only if necessary. This requirement is not found in art. 83 TFEU, but in art. 67(3) TFEU. • This requirement is linked to the principle of subsidiarity which demands that combating the respective crime would not be possible with the same effectiveness at the national level. ANNEX COMPETENCE = The approximation of domestic criminal law must be essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonization measures. This EU competence is also known as “annex competence”. The annex competence may be exercised in every area that has been subject to harmonization measures by the EU. But the article does not contain any requirement concerning the extent of the pre-existing approximation. Approximation must have be «essential» to ensure the effective implementation of a EU policy. Minimum harmonization means that the transposing acts must ensure a minimum level of criminalization within MSs.  MSs can go beyond by criminalising further conducts or establishing harsher penalties Minimum harmonization first concerns the elements of criminal offences. In addition to the definition of the essential terms (for example, terrorist organization), a description of the conduct that in any case must be criminalized is outlined. Week 4 - The «Emergency Brake» (art. 83,(3) TFEU) The «emergency brake» in art. 83 (par. 3) TFEU is capable of preventing an excessive use of the competences. According to art. 83(3) TFEU, a MS has the right to veto any draft directive affecting fundamental aspects of its criminal justice system - This «typical political compromise» provides an exception to the usual majority principle - the ordinary legislative procedure is suspended - However, the other MSs may choose to establish enhanced cooperation pursuant to art. 83(3) TFEU and enact the draft directive among themselves. the specific purpose of the provision is to safeguard the national identities of the MSs and to protect their criminal justice systems. MARGIN OF APPRECIATION MSs enjoy a margin of appreciation in their definition of «fundamental aspects», yet the ECJ remains competent to rule on whether or not the «emergency brake» has been abused Other approximation competences A)Competence provision The EU competence for the approximation of criminal law does not derives only from art. 83 TFEU, but also from those provisions found in the TFEU which allow the EU to adopt supranational criminal law A CONCEPT FOR ERUOPEAN CRIMINAL POLICY •The influence on criminal policy was further strengthened by the coming into force of the Treaty of Lisbon: it established for the first time – although only exceptionally (fraud and customs) – the competence to enact supranational criminal offences; there is the need of basic principles of criminal policy to serve as guidelines for the European legislator.  in 2011 the Commission published a Communication to the EP with the title “Towards an EU Criminal Policy” fundamentally acknowledging the Union’s task to respect principles and specific guidelines as to the use of criminal law in European instruments. Principle for a EU Criminal Policy •The criminal policy guidelines elaborated by the «European Criminal Policy Initiative» in the Manifesto (December 2009) propose the following fundamental principles of EU Law as minimum requirements to be observed in the harmonization of national criminal law: - The requirement of a legitimate purpose; this principle is an element of the EU principle of proportionality; The ultima ratio principle; The principle of subsidiarity: according to art. 5(3)TEU the EU legislator can take action only if the goal pursued cannot be sufficiently achieved by measures taken at national level, and can be better achieved at the EU level. - The principle of guilt (mens rea): it prohibits the imposition of penalties without individual guilt and requires that penalties must correspond to the guilt of the offender. - The principle of legality: •criminal offences must be defined clearly and unambiguously  the individual has to foresee which conducts are criminally liable; •criminal law must not be applied retroactively  with the exception of a retroactive effect in favor of the offender. - The principle of democracy requires a high level of democratic legitimacy, as criminal law is one of the most invasive State measures: the EP involvement in the legislative process must be strengthened; the extension of the ordinary legislative procedure by the Treaty of Lisbon constitutes a first step into the right direction. Week 6 References to European Law in Domestic Criminal Law Provisions •The most visible sign of the Europeanization of criminal law is where domestic criminal law itself expressly stipulates the violation of a requirement or prohibition of EU law as a criminal offence; where the EU does not possess the competence to enact (supranational) criminal law, violations of EU law can only be punished on the basis of national law. •If the EU rule is encompassed in a directive, national legislators have to transpose it into the domestic law in order for it to become legally binding on individual citizens. A directive defining a criminal offence will never be directly applicable; directives can only have direct effect if they favor an individual, not if they go against him/her. •If, instead, the EU rule is encompassed in a regulation (binding and directly applicable in all MSs), the procedure is more complicated.  A possible solution would be to enact a domestic law restating (i. e. copying) the same things said in the regulation and then punish any violation of this prohibition with a domestic criminal law.  Legislators therefore use blanket criminal laws which refer to a EU regulation = They ground (through reference) the domestic criminal law on the European norm. EFFECT OF BLANKET CRIMINAL LAWS •The reference has the effect that a repetition (in the MS legal system) of the wording of the referenced provision (the provision found in the regulation) is not necessary •From a formal perspective, the referenced provision is incorporated into the referencing provision and thereby made part of it: the EU requirement or prohibition in the regulation (referenced provision) is applicable due to the domestic referring provision; the referenced provision becomes part of the domestic criminal law norm. the interpretation of the referenced provision must be conducted in accordance with EU law standards. If the referenced provision were to be interpreted differently, the reference would have failed to capture the provision it aimed at. •If the referenced provision found in EU law in substance remains EU law, the respective standards for interpretation apply; 2 consequences: a) the regulation is authentic in each of the official languages of the EU; b) the interpretation must be conducted with reference to European interpretation standard; •Since the “blanket law” which includes the incorporated EU referenced provision remains a provision of domestic law at least in a formal perspective, it has to meet the national constitutional requirements;  in particular, the principle of definiteness (lex certa) found in the European constitutions (ex. : art. 25, par. 2, Italian Constitution) has to be observed. •The principle of definiteness requires legal texts to be phrased clearly and precisely so that citizens are able to understand what they have to do in order to avoid criminal liability (= in order to protect their personal freedom); •it imposes the duty on the legislature to elaborate the requirements of a criminal offence. •Since the referenced provision remains one of EU law, and thus is subject to the European standards of interpretation, the task of determining the applicable law becomes more complex for the judge and those subject to the criminal law. •Although the criminal law judge is in principle bound by law to consider EU legislation in all official languages, in practice this is an almost impossible task. •Furthermore, the reference does not remain within a single legal system but points to another, autonomous legal order. - the determination of the applicable law is not seriously hampered if the “blanket criminal law” refers to a particular version of a particular provision (static reference) - But blanket law provisions commonly refer to a regulation “as amended from time to time” (dynamic reference) The principle of lex mitior (in the succession of criminal laws) •Principle of lex mitior: the most lenient criminal law is to be applied if the criminal law changes after the criminal act but before the Court’s ruling on the case. In the case of references to EU law, the defence can benefit from late amendments to the criminal law. •In the case of a static reference, the national legislator has to adjust the blanket criminal law to changes in EU legislation in time, to ensure that the criminal law refers to the new European provisions at the time their amendment enters into force; •In the case of dynamic references (if they can be considered constitutional at all) a state of impunity cannot occur due to a neglect of the national legislator because the content of the criminal law adapts automatically to amendments of the referenced provision. THE INFLUENCE OF EU ON THE INTERPRETATION AND APPLICATION OF DOMESTIC SUBSTANTIVE CRIMINAL LAW  domestic criminal law is subject to “Europeanizing” influence. •A judge needs to apply all directly effective provisions of EU law because they either directly grant rights or impose obligations within the legal orders of MS.  This concerns regulations but also those directives which are directly effective pursuant to ECJ case law According to the ECJ case law, directives are directly effective if : •they are clear, precise, and free from ambiguity; •the time limit for implementation has expired; •the direct effect is beneficial for the individual concerned. EU law also influences the application of national law – regardless of its direct effect – when the interpretation of domestic law is concerned Neutralising effect on Domestic Law •The supremacy of EU law over domestic law means that national criminal laws are neutralized if they are incompatible with the applicable law of the EU. •The term “neutralization” implies that a law describing a criminal offence may not be applied to a particular case. •The neutralizing provision of EU law does not result in the justification of the criminal conduct but merely concerns the applicability of the relevant criminal provision. Provisions of EU law only have a neutralizing effect on domestic national criminal laws if there is an actual conflict between both provisions. This is the case if the domestic criminal law contravenes a directly effective provision of the law of the EU. •A domestic criminal law provision which violates another EU law provision– such as a not directly effective provision of EU law – must be applied by domestic courts; •If the elements of a crime violate EU law, conduct which is prohibited by domestic law becomes legal through directly applicable EU law provisions;  in these cases, the individual is confronted with two incompatible commands; •the conflict is resolved in favor of EU law  the criminal provision in question may not be applied in the particular case – it is “neutralized”. •Since EU law also sets limits with regard to legal consequences of criminal behavior, it may conflict with the legal consequences of domestic criminal law as well. 1) Such a conflict may arise where the imposed sanction exceeds the maximum limit under EU law. •Within the scope of fundamental rights , this maximum limit is defined by the rule of non- discrimination and the principle of proportionality; 2) Also the nature of the penalty may violate directly applicable EU law; see e. g. the case of the Italian citizen expelled for life from Greece due to a drug offence; the domestic criminal law provision is neutralized. WEEK 7 EUROPEAN CONVENTION ON HUMAN RIGHTS •The European Convention on Human Rights (ECHR) and the case law of the European Court of Human Rights (ECtHR) have had a profound impact on the domestic criminal law of the Contracting Parties. •The interpretation of the “Charter of Fundamental Rights of the European Union” (CFR, also “Carta di Nizza”; see below), which has become legally binding with the entry into force of the Lisbon Treaty, is based on the interpretation of the Convention. COUNCIL OF EUROPE •The relevant organization for the ECHR is the Council of Europe. •The Council of Europe is a separate body from the EU and must not be confused with the European Council and with the Council of the European Union. •The Council of Europe was in fact founded as an international organization in Strasbourg on May 5th, 1949 and it became the largest association of States in Europe. It includes 47 Countries of Europe (only Kosovo and Belarus are missing so far), 28 of which are Members of the European Union. •The Council of Europe is the continent’s leading human rights organization. It was set up to promote democracy and protect human rights and the rule of law in Europe. •The Convention established the European Court of Human Rights (ECtHR) which oversees the implementation of the Convention in the Member States. •Individuals can bring complaints of human rights violations to the Strasbourg Court once all possibilities of appeal have been exhausted in the Member State concerned. Institutions - Committee of Ministers: it is the Council’s decision-making body. It consists of the Ministers of Foreign Affairs from all Contracting Parties or their Permanent Representatives. They meet to examine conventions, discuss relevant organizational matters and monitor whether the judgments of the European Court of Human Rights have been enforced. The Committee must decide unanimously for so called «recommendations» to the Member States, which thus carry at least political binding force (see Artt. 15 and following of the Statute of the Council of Europe) - Parliamentary Assembly: comprises 318 members, who are elected or named by the national Parliaments. The largest States (Russia, France, Italy, UK and Germany) may send 18 members, and the smallest ones only two. The Assembly elects the Secretary General, the Human Rights Commissioner and the judges to the European Court of Human Rights. It provides a democratic forum for debate and monitors elections; its committees play an important role in examining current issues. The Parliamentary Assembly acts in a purely advisory capacity (see Artt. 22-35 of the Statute of the Council of Europe) - The Secretariat is not an organ of the Council of Europe. It supports the Committee of Ministers and the Parliamentary Assembly in their work and is headed by the Secretary-General. The Secretary General is elected by the Parliamentary Assembly for a five-year term at the head of the Organization. - The Congress of the Council of Europe should be mentioned as another consulting organ focusing on the interests of local and regional authorities in Europe. THE ROLE OF THE COUNCIL OF EUROPE IN EU CRIMINAL LAW •The improvement of transnational cooperation in the field of criminal prosecution has always been one of the top priorities of the Council of Europe (see Satzger, p. 145). The European Committee on Crime Problems (CDPC), founded in 1957 by the Committee of Ministers, has since been responsible for all works that relate to criminal law. It is responsible for overseeing and coordinating the Council of Europe’s activities in the field of crime prevention and crime control. ECHR The ECHR was signed in Rome on November 4th, 1950 and came into effect on September 3rd, 1953 after ratification by all of the ten founding Contracting Parties. The ECHR is a multilateral treaty distinct from the Statute of the Council of Europe. However, these two treaties are connected: in the past, the ECHR could only be ratified by Contracting Parties to the Council of Europe and a prospective Contractive Party could not accede to the Council of Europe without signing the ECHR. Consequently, all 47 members of the Council of Europe are also parties to the ECHR. ARTICLE 53 ECHR Safeguard for existing human rights “Nothing in this Convention shall be construed as limiting or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any High Contracting Party or under any other agreement to which it is a party”. As a result of the Convention’s directly binding effect, the Contracting Parties are obliged to grant the Convention rights and freedoms to all persons within their jurisdictions (art. 1 ECHR). - In Italy, the judge which is called to interpret the domestic law provisions, must do so in accordance with the supranational parameters. The Italian Constitutional Court, with two important decisions (the so called “twin decisions” n. 348 and 349 of 2007) stated that the ECHR has a sub-constitutional role in the Italian system. This means that when the Italian judge is not able to interpret a domestic provision in accordance with the provisions of the ECHR, he must raise the question of constitutional legitimacy of the domestic provision in relation to the parameter found in art. 117, par. 1, of the Constitution (i. e. compliance of the legislative power with the international obligations). - In Austria, the ECHR enjoys the same rank as the Constitution. - In Spain and France the Convention ranks below the Constitution but above ordinary statutory law. Art. 6, par. 3, TUE states that «Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union's law». The Italian Constitutional Court believes that this change in rank of the provisions of the ECHR does not determine an automatic disapplication of the domestic law which contrasts with a provision of the ECHR. The Lisbon Treaty amended the EU Treaty assigning the required competence for accession in art. 6, par. 2, TEU: ”The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union's competences as defined in the Treaties”; ARTICLE 59 ECHR Signature and ratification 1. This Convention shall be open to the signature of the members of the Council of Europe. It shall be ratified. Ratifications shall be deposited with the Secretary General of the Council of Europe. 2. The European Union may accede to this Convention. The ECHR, as an international treaty, would be incorporated into EU law and rank below the TEU and the TFEU (and also the EU Charter of Fundamental Rights - CFR) but above ordinary secondary legislation within the EU legal framework. THE CHARTER OF FUNDAMENTAL RIGHTS (CFR) The Charter of Fundamental Rights of the EU (“Carta di Nizza”) brings together in a single document the fundamental rights protected in the EU. The Charter contains rights and freedoms under six titles: Dignity, Freedoms, Equality, Solidarity, Citizens' Rights and Justice. It is the first formal EU document to combine and declare all the values and fundamental rights (economic and social as well as civil and political) to which EU citizens should be entitled. Since the Lisbon Treaty has entered into force, the ECHR and the case law of the ECtHR have become indirectly binding for the EU through the Charter of Fundamental Rights because of the reference in the Charter’s preamble. •The European Court of Justice (ECJ) considered especially the ECHR a common denominator for fundamental rights because it is legally binding on all EU Member States. EU organs are therefore indirectly bound by the ECHR Domestic authorities are, like EU organs, bound by the fundamental rights of European law when implementing EU law. Since the fundamental rights have partly been extracted from the ECHR, domestic authorities are bound by the ECHR through the fundamental rights of Union law as individuals to the domestic law. ex. According to German law, a person who commits an act in self- defense does not act unlawfully. So, from the angle of German domestic law, the killing of a person can be justified for defending properties if it is necessary. However, even though ECHR does not directly govern legal relations between individuals, it still may indirectly limit the right to exercise self-defense. This would be the case if art. 2. 2 (a) was interpreted as imposing a duty on the Contracting Party to restrict the right of self-defense of persons. But it is doubtful whether the article requires it or not. It also remains unclear whether "intentionally" in art. 2. 1 ECHR refers to direct intent to kill or whether it also covers "dolus eventualis", which is typical for cases of self-defense. ART. 3 ECHR Prohibition of torture «No one shall be subjected to torture or to inhuman or degrading treatment or punishment» every torture can only be an inhuman and degrading treatment and every inhuman « treatment can also be a degrading treatment (Greece Case - October 1969, ECHR) » « The mistreatment "must attain a minimum level of severity if it is to fall within the scope of art. 3. The assessment of this minimum level is, in the nature of things, r elative; it depends on all circumstances of the case, such as the duration of the tr eatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim, etc». (Ireland vs UK, 1978) In addition to the severity of the treatment, there is a purposive element to torture as « recognized in the United Nations Convention against Torture, which in Article 1 defines torture in terms of the intentional infliction of severe pain or suffering with the aim, inter alia, of obtaining information, inflicting punishment or intimidating . (Cestaro vs Italy, » 2015) In addition one must adjunt the gratuity of treatment, not accomplished in reaction to something. Inhuman treatment: a physical and mental suffering of a particular intensity caused to the victim; the emphasis is on the humiliation of the victim. Degr ading treatment: if the mistreatment is such as to provoke in the victim feelings of f ear and anguish aimed at humiliating him/her; without any physical pain, there is the violation of the respect due to a human being and the violation of human dignity. Torture differs from inhuman or degrading treatment in two ways: torture requires a more severe infringement, since it causes serious and cruel suffering (objectiv e requirement); in torture the suffering must be inflicted in order to serve a certain purpose (subjective r equirement). Can a threat of torture violate art. 3 ECHR? CASE GAFGEN V. GERMANY Mr . Gafgen was suspected of kidnapping a Frankfurt banker's son. The Police Chief instructed the interrogating officer to threaten Mr. Gafgen with inflicting severe physical pain if he would continue to conceal where the kid was. Mr. Gafgen confessed as a consequence of the threat and the boy was found dead (he was killed before the arrest). Mr. Gafgen was convicted of murder and senteced to life imprisonment, but he applied to ECtHR claiming a violation of art. 3 and 6. 1 ECHR. The ECtHR (the Chamber) in 20008 undelined that: any illtreatment is absolutely prohibited under art. 3 and no regard is to be given to the conduct of the person concerned or to public emergencies threatening the life of the nation or of an individual; Mr. Gafgen could not claim the status of a victim, because Germany had already adequately compensated the violation, since a fine was imposed on the two police officers. HOWEVER The Grand Chamber of ECtHR in 2010 reversed the judgment of the Chamber stating that the fines imposed were not an adequate response to the breach of art. 3 ECHR.   WEEK 9 ART. 6 ECHR Right to a fair trial «1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. 2. Everyone charged with a criminal offense shall be presumed innocent until proved guilty according to law. 3. Everyone charged with a criminal offense has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defense; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court» The ECtHR has interpreted this provision broadly; in fact, in the case of DELCOURT V. BELGIUM (1970), the Court stated that in a democratic society, the right to a fair administration of justice holds such an important place that a restrictive interpretation of art. 6. 1 ECHR would not correspond to the aim of that provision. The first paragraph of art. 6 applies both to civil and criminal proceedings, but the second and third paragraphs only apply to criminal proceedings ("everyone charged with a criminal offense"). Paragraphs 1 and 3 apply to all kinds of criminal proceedings. Art. 6 contains a fundamental right. It provides for a set of minimum standards, which ensure that criminal proceedings conform to the principle of the "rule of law". Art. 6. 1 - besides establishing basic requirements for criminal proceedings and guaranteeing access to courts - stipulates the right to a fair trial, which is specified in art. 6. 3. Art. 6. 3 directly affects the application of domestic law. Whether art. 6. 1 and 6. 3 apply to a certain proceeding is determined exclusively by an autonomous interpretation of the Convention, without regard to domestic law. Oral proceedings - as well as the pronouncement of the judgment - have to be open to the public. Art. 6. 1 lists certain legitimate grounds for excluding the press and the public: moral, public order, national security, protection of the private life of the parties and interests of justice. However these reasons can never justify the exclusion of the public from the pronouncement of the judgment. Most applications to the ECtHR regard the length of the proceeding. Art. 6. 1 requires the Court to decide within a reasonable time. Whether the length of the proceeding is reasonable depends on all the circumstances of the case. Four criteria are crucial: 1. Relevance for the applicant: especially cases that may lead to a custodial sentence are of high relevance for the applicant and deserve fast proceedings. 2. Complexity of the case: a difficult case may require longer proceedings. 3. Conduct of the parties: a proceeding can be prolonged if the applicant has worked towards its delay. 4. Conduct of the authorities: failure to act by the authorities may render the length of the proceeding unreasonably long. CASE UHL VS. GERMANY (20005) In 1991, a German citizen was informed of on-going investigation against him concerning tax evasion, fraud and breach of trust. He was suspended and his salary was reduced. Four years later, in 1995, he was convicted to a custodial sentence. Appeal and revision proceedings required other five year. In 2000, mr U filed a constitutional complaint to the German Federal Constitution Court claiming the excessive length of the proceeding. The German Court rejected his complaint because he had not verified his claim adequately. In this case, the length of the proceeding (9 years) brought to the violation of art. 6 ECHR. The case did not involve any particular legal or factual difficulty and it was of high relevance for the applicant because he had been suspended and he had not obstructed the proceeding in any relevant way. The ECtHR has ruled that the Contracting Parties must set up their judicial systems in a way that the proceedings are conducted in accordance with the ECHR. In Germany, the Federal Court of Justice has assumed that an excessive length of the proceedings can be compensated with determining the sentence. However, according to the ECtHR, an individual loses his status as victim only if the domestic Court: - explicitly acknowledges such a violation; - provides for appropriate redress. This could be a mitigation of the punishment when the trial is too long, but this approach fails in two cases: 1. cases in which the penalty is determined absolutely by statutory law; 2. cases in which the minimum penalty is appropriate without consideration to the length of the proceedings and any additional mitigation is legally impossible. Since the Courts are bound by law in these cases, a different solution must be found: excessively long proceedings are remedied not by reducing the penalty, but by pronouncing the judgment that a certain part of the sentence shall be regarded as having already been enforced. ART. 5. 3 ECHR 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 of « this article shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial . » E ven this article stipulates the right to a reasonable length of the proceeding. While a person is detained, art. 5 and 6 ECHR both apply. FAIR TRIAL The scope of the right to a fair trial can be determined by an overall analysis of the rights derived from art. 6 ECHR in the case law of the ECtHR. The ECtHR adopts a systematic approach: a violation of a procedural right does not automatically result in a violation of the fair trial principle; an overall examination of the case is necessary in order to determine whether the pr oceeding as a whole has to be considered unfair. The fair trial principle is linked to three guarantees: 1. Equality of arms 2. Right to a fair hearing (in Court) including all relevant WEEK 10 THE BIRTH OF EUROPEAN CRIMINAL LAW In the first years of the European Communities, all efforts aimed at the creation of a single market and at granting free movement of goods and persons; at this stage there was an increasing harmonization of private law, while criminal law was still perceived as a national matter. The possibility of a protection under Criminal Law of the financial interests of the EC became a subject of discussion starting from the 70's. THE ASSIMILATION PRINCIPLE According to this principle, the protection of the financial interests of the EC shall be a competence of the MS, on the assumption of the substantial assimilation between national and European interests. In the case Commission vs. Greece (Greek maize case), the ECJ stated that MS must ensure that infringements of Community law are penalized under conditions - both procedural and substantive - which are analogous to those applicable to infringements of national law of a similar nature and importance. The assimilation principle was formally recognized thanks to the Treaty of Maastricht. MAASTRICH TREATY ON THE EUROPEAN UNION (TEU) In 1992 the Treaty of European Union is signed in Maastrich. The name "European Union" officially replaced "European Community". Until the Treaty of Maastrich there was no specific provision concerning Criminal Law protection of the financial interests of the Community. However the growing diffusion of the phenomenon finally led the MS to provide a legal basis for the action against Community fraud: art. 209 TEU states that "MS shall take the same measures to counter fraud affecting the financial interests of the Community as they take to counter fraud affecting their own financial interests". This provision refers to the assimilation principle. The Maastrich Treaty also created the so called three pillar structure of the EU: 1. First Pillar - the Community pillar, which corresponded to the three Communities: the European Community, the European Atomic Energy Community (Euratom) and the European Coal and Steel Community (ECSC). 2. Second Pillar - Common foreign and security policy 3. Third Pillar - Police and judicial cooperation in criminal matters. In the Treaty of Maastricht the fight against fraud was positioned also in the framework of the third pillar. THE ADDED VALUE OF A CRIMINAL PROVISION COMING FROM THE EU. In the field of fraud affecting financial interests, the enactment of a criminal provision coming from the EU may represent an "added value" from two point of view: 1. in order to avoid that the perpetrators of serious offences can take advantage from the differences among States, committing the crime in a Nation with less severe sanctions; 2. in order to ensure the certainty of the rules. CONVENTION ON THE PROTECTION OF THE EUROPEAN COMMUNITIES' FINANCIAL INTERESTS. The EU aims at combatting fraud by taking appropriate criminal-law measures, such as criminalization of fraud, criminal penalties, criminal liability of heads of businesses etc. In 1995 the Convention on the protection of the European Communities' financial interests - also known as PFI Convention - was adopted under Title VI of the TEU. Its protocols were aimed at creating a common legal basis for the criminal-law protection of the European Communities' financial interests. Under the Convention, fraud affecting both expenditure (uscite) and revenue (entrate) must be punishable by effective, proportionate and dissuasive criminal penalties in every EU country. The merits of the PFI Convention are: - it provided for a common definition of fraud affecting the EC's financial interests; - it laid down the foundations for the minimum rules of the European Criminal law. The limit of the PFI Convention is that each MS is free to choose the kind and the seriousness of the sanctions of the fraud. Therefore, the scope of equality of the penalties is far to be reached. The First Protocol to the Convention gave a first definition of passive and active corruption. The Second Protocol on the Convention was directed at the liability of legal persons, confiscation, money laundering and the cooperation between MS and the Commisson for the purpose of protecting the European Communities' financial interests and protecting personal data related to them. CONVENTION ON THE FIGHTS AGAINST CORRUPTION INVOLVING OFFICIALS OF THE EUROPEAN COMMUNITIES OR OFFICIALS OF MS OF THE EUROPEAN UNION (1997). In 1997, with the Convention on the fight against corruption involving officials of the European Communities or officials of MS of the EU, the area of criminal liability is extended to every act of corruption which involves officials of the EU or officials of MS. While the First Protocol to the PFI Convention was directed in particular at acts of corruption involving national or Community officials that damaged or were likely to damage the European Communities' financial interests, the Convention of 1997 was more directed to acts of corruption involving officials of the European Communities or officials of the MS in general, even those that do not directly effect the Communities' financial interests. TREATY OF LISBON Was signed in 2007 and entered into force on December 1st 2009; it erased the division into pillars of the European Union. As a consequence, the typical legal acts of the EU have become regulations and directives. Art. 83 TFEU regards criminal law and, specifically, the EU's indirect competences with reference to criminal law. Art. 83. 2 TFEU contains a general clause which gives the EU competences for the minimum harmonization of criminal law through directives. Directives are less effective than regulations, but they are more flexible. The approximation of domestic criminal law is - however - essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonization measures. This EU competence is also knows as "annex competence". The directives shall be adopted using the same ordinary or special legislative procedure as the one used for the adoption of the harmonization measures in the non-criminal matters. ex. VAT can be considered as an area subject to harmonization measures; it is possible to adopt criminal provisions under art. 83. 2 TFEU in order to fight Tax Fraud in the field of VAT? Yes, since the artt. 110-113 TFEU provides for measures in terms of non-discrimination and harmonization for "indirect taxes" like VAT. According to art. 325 TFEU, the EP and the Council, acting in accordance with the ordinary legislative procedure, after consulting the Court of Auditors, shall adopt the necessary measures in the field of the prevention of and fight against fraud affecting the financial interests of the Union. Now, art. 325 TFEU refers to "all necessary measures" which may include the enactment of directly applicable regulations. The provision clarifies that criminal law protection is not only pursued within MS but also at a European level. Therefore, the EU shall be given competence to adopt criminal law provisions. COUNCIL OF EUROPE The Council of Europe is a separate body from the EU. It was in fact founded as an international organization in Strasbourg in 1949 and it became the largest association of States in Europe. It includes 47 countries of Europe, 28 of which are members of the EU. The Council of Europe is the continent's leading human rights organization. It was set up to promote democracy and protect human rights and the rule of law in Europe. According to art. 1 of its Statute, "the aim of the Council of Europe is to achieve a greater unity between its members for the purpose of safeguarding and realizing the ideals and principles which are their common heritage and facilitating their economic and social progress". The guarantee of minimum rules against corruption is one of the priorities of the criminal policy of the Council. CRIMINAL LAW CONVENTION ON CORRUPTION The Council of Europe's Criminal Law Convention on Corruption and Additional Protocols was signed in 1999 and entered into force in 2002. It aims at the coordinated criminalization of a large number of corrupt practices. It also provides for complementary criminal law measures and for improved international cooperation in the prosecution of corruption offenses. UNITED NATIONS CONVENTION AGAINST CORRUPTION (MERIDA) The United Nations is an international organization founded in 1945 after the Second World War by 51 countries committed to maintain international peace and security and to promote social progress, better living standards and human rights. Since 1975 the UN began to worry also about matters of corruption. The most significant product of the commitment of the UN to the harmonization of the strategies against corruption is the UN Convention against Corruption, which covers five main areas: 1. preventive measures 2. criminalization and law enforcement 3. international cooperation 4. asset recovery 5. technical assistance and information exchange 6. It includes both mandatory and non-mandatory provisions. The Merida Convention describes corruption in the private sector as - in the course of economic, financial or commercial activities: a. the promise, offering or giving, directly or indirectly, of an undue advantage to any person who directs or works for a private sector entity, for himself or for another, in order that he or she, in breach of his or her duties, act or refrain from acting; b. the solicitation or acceptance, directly or indirectly, of an undue advantage to any person who directs or works for a private sector entity, for the person himself or for another, in order that he or she, in breach of his or her duties, act or refrain from acting.