RICERCA ITALIANA     

Criminal Law and Treaty establishing a Constitution for Europe

Università degli Studi di Verona

Abstract

1. The Treaty which institutes a Constitution for Europe, signed in Rome on 29 October 2004 and the effectiveness of which is due on 1 November 2006 after the ratification on the part of the 25 Member States, includes important innovations concerning penal law and its relationships with the European Union law; these innovations have not yet been analysed by the doctrine, and thus they represent an original and important research field.
2. Penal law has been traditionally considered alien to the competences of the European Community as it was not expressly mentioned in the Treaties and it was considered as a particular object of State monopoly. Yet, thanks to the progressive penetration of communitarian law into national juridical systems (owing to the expansive force of extra-penal rules and disciplines of communitarian competence in single areas and of many innovative interventions of the European Community Court of Justice), in the course of time a relevant phenomenon of "europeanisation" of national penal systems, and of penal science itself, has taken place.
3. Penal law has later entered the institutive Treaty of European Union of Maastricht (1992) as a mean for the achievement of its objectives, but it was included in the so called Third Pillar (that is outside communitarian rules in the strict sense of the word) and entrusted to juridical instruments characteristic of the inter-government method, requiring a transposition into the Member States and lacking in legally binding effectiveness. Despite such limits, an increasing closing up of national penal law in the subjects mentioned in Articles 29 and 31 TUE and a strengthening in the judiciary and police cooperation has taken place.
4. The constitutional Treaty overcomes the classification into Pillars and re-formulates the sources of European law in terms consonant with those peculiar to European law (the new "European laws" and "European framework laws" basically correspond to the regulations and directive), while the penal competences of the Union, collected in Chapter IV of Title III of Part III, concerning the "area of freedom, security and justice", a basic objective of the Union as a pendant to common market (Article I-3), are expressly recognized.
5. The various operative units will analyse such situation starting from the selected interrelated areas: organized crime and terrorism (Catania unit); economic crime including counterfeiting (Modena - Reggio Emilia); computer crime (Verona), while the Ferrara unit will examine the subject of the principle of legality in penal matters in connection with the new European competences and the Insubria-Como unit will examine the profili processuali concerning the possibility of the creation of a European Public Prosecutor and the circulation of evidence.
6. The research will be divided into two phases. The first phase has the aim of verifying the influence in such areas of the above mentioned processes of "europeanisation" and harmonisation, with a distinction between intervention of First and Third Pillars. The second phase will analyse the new European penal competences and the possible effects upon the contradictions and gaps which have been individuated, the risks for the rights and guarantees of individuals and the safeguard of national penal traditions, the importance of the European principle of subsudiarity, reinforced in penal matters.
7. The results of the researches will be presented and discussed in an international meeting to be held at the end of the project; all operative units will take part in the meeting as well as Italian and foreign scholars and members of European institutions and competent bodies. The proceedings of the meeting will be collected and published. <<<

Principal Investigator

Lorenzo PICOTTI Università degli Studi di VERONA

Research Objectives

The objective of the research program, to be achieved trough the coordinated activity of five operative units, is the analysis of the influence of the new European Constitution on penal law and on penal processual law in the different areas examined by each unit. The Treaty instituting a Constitution for Europe, signed in Rome on 29 October 2004, which will become effective (after the completion of the ongoing confirmation procedures on the part of the 25 member Nations) on 1 November 2006, is in fact an evident turning point in the relationships between penal law and communitarian law or, in a larger sense, European law, as for the first time a penal competence of the European Union is expressly recognised; the European Union will be able and will have to act, with its own juridical sources (the future "European laws" and "European framework laws", in substitution of both rules and directives of communitarian law - in the strict sense of the word - and the conventions and framework decision of the so called Third Pilaster) in areas explicitally mentioned in the Constitutional Treaty itself.
In the two years of the researches, each operative unit will hence carry on the analysis of the most outstanding: economic criminality (Modena and Reggio Emilia unit), organised criminality (Catania unit), cyber crime (Verona unit), European Public Prosecutor and circulation of prove (Insubria Varese-Como unit); general aspects of the principle of legality in penal matters (Ferrara unit), so that the most relevant themes emerging by the new asset of sources and competences as outlined by the constitutional Treaty as far as penal law is concerned.
In other words, the task is that of a survey of the influence, both direct and indirect, that communitarian laws and European laws presently have in such areas, and to verify what will be the novelties and the changes provoked by the penal competences attributed to the European Union by the new constitutional Treaty.
The practical aim of the research is the development of an organic complex of studies to be converged in one or more scientific publications collecting the results of the investigations, promoting (also through meetings, seminars and a final international congress) the knowledge and the discussion among scholars and experts in the matter, as well as among young researchers and operators (particularly magistrates and lawyers, and members of European and national institutions).
A middle-term objective with the aim of verifying the data collected and the problems analysed by each unit will be the organization, in the second year of the research project, of a meeting to which all units will take part.
The contents of the publications − or of the conclusive publication − will have to include a selection of the offences and of the most relevant problems according to the above mentioned guide lines, with reference to each area: economic crimes, including frauds and corruption; crimes of organized criminality, including terrorism and crimes against environment goods; computer and cyber crimes, including the ones against copyright and privacy; procedural aspects concerning the creation of an European Public Prosecutor and the circulation of evidences; general subjects concerning the principle of legality in criminal matters in relation to the evolution of European juridical sources and to the democratic legitimation of the related proceedings of normative production. <<<

Timescale

24 months

National and international background

1. The analysis of the relationship between normative competences of the European Union (or Community) on one side and penal law of the member nations on the other, has shown in the last decades a rapid evolution (Bernardi, Satzger, Bacigalupo). The initial exclusion of any competence of the European Union in the penal matter, stated since the 70s (as it was considered a field both inseparably connected with the idea of state sovereignty and a peculiar expression of national culture, so that the States would never have renounced to it: Riz, Grasso) has in time been overcome by the acknowledgement of the (indirect) influence of communitarian law in many fields of penal law, particularly as far as it concerns the formulation of extra-penal precepts, punished by (national) penal sanctions, as well as the integration of "normative elements" of single (national) penal offences, or on the contrary for the effects of the exclusion of punishability or of justification to be recognized to European principles and disciplines which are the sources of rights and faculties incompatible with certain incriminations provided by national law (Bernardi, Picotti).
More in general, in the light of the jurisprudence of the European Community Court of Justice ( Decision of 21.9.1989, C 68/88) and of the national jurisdiction that in the course of time have assimilated it, it must now be considered as an unquestionable fact that the principle of primacy of communitarian law over national law is fully valid also with reference to penal law, and that it must be used by member Nations as an instrument for the achievement of the targets of the European Union respecting the basic guarantees of the citizens (Riondato, Patrono, Grasso) and of the principle of subsidiarity (Picotti, Donini).

2. Moreover, after the institution of the European Union, and particularly after the Maastricht (1992) and Amsterdam (1997) Treaties, penal law has become the possible object of instruments of European law in order to achieve the target of one "area of freedom, security and justice" (art. 2 UE Treaty), fighting against "particularly serious crimes" which often have a cross-border dimension (Militello, Salazar, Parisi - Rinoldi). The sources considered, however, are not the binding ones of communitarian law in the strict sense of the word (the so called First Pillar: regulations, directives), but the ones of the so called Third Pillar (such as conventions, framework decisions – previously: common actions – common positions) aiming at "police and judicial cooperation in criminal matters" (art. 29 f. EU Treaty), according to the inter-governative method (Sicurella).
So, current Treaties have not attributed to the European Community an express competence in penal matters, even if a consistent part of the doctrine (Tiedemann, Bacigalupo, Picotti) and the European Commission itself, supported by the European Parliament, have already recognized some fields (such as the protection of the environment and the fight against frauds damaging communitarian finances) in which it might be inferable from the current dispositions (particularly art. 280 and 174-176 of the European Community Treaty). In the light of the most recent modifications to the Treaties, particularly as far as the co-decision procedures involving the Commission and the Counsel as executive powers and the European Parliament, democratically elected by the people of the Union, the two major objections up to now opposed to such acknowledgement (that is the lack of a safe juridical basis in the Treaties and the so called democracy deficit of European institutions with a competence in the normative production, in opposition to the principle of legality and of reserve of parliamentary law in penal matters) seem to be surmountable (Grasso, Picotti, Bernardi).

3. Thus, we have good reasons for speaking of an ongoing "europeanisation" of penal law of the member States (Bernardi, Voegel, Satzger), caused by the increasing influence of communitarian law on the actions of national jurists and judges, not only because of the express creation of transposition and immediate effectiveness bindings, but for the need of interpretation and application of national law (also penal) in a direction consonant with communitarian and European law (Manacorda).
Moreover, on the level of judiciary and police cooperation, the more and more numerous instruments of harmonisation, and particularly common actions, conventions and now framework decisions, involving large areas of crimes (such as organized criminality, counterfeiting, money laundering, offences against the environment, and many other fields of economic crimes, including computer ones, the various illicit trafficking etc.) and now also important trial rules and institutes (from judiciary assistance, to the European arrest warrant, to the seizure and confiscation of earnings from crime, up to the proposal concerning the acquisition of documentary evidence etc.) have facilitate the development of common praxis in investigations and of exchanges of information and assistance between investigators and authorities in the various European countries and institutions, such as Eurojust, Europol, Olaf, liaison judges etc.
Hence, the basis for a further development of a core of "common European penal law" have now been acquired, on a doctrinal and theoretic as well as on a normative and juridical level, the starting point being single areas of criminality, the combat against which assumes a peculiar importance in view of the building up of one European area of freedom, security and justice, in agreement with the unification of the market and the overcoming of internal borders (Picotti, Grasso, Bernardi).

4. Particularly meaningful is, in such perspective, the project Corpus juris for the penal protection of the EU financial interests drawn up by a group of scholars of various European counties, on account of the Commission in 1996, and revised and re-formulated in 2000 (Huber, Jescheck, Tiedemann, Grasso, Bacigalupo) following to a large comparative study on the feasibility of the project in the different regulations of the EU (Delmas Marty – Vervaele). This proposal, including also the institution of an European Public Prosecutor (Bargis-Nosengo, Orlandi, Ruggieri) with competence on the whole of the Union territory as far as investigations and the promotion of penal actions in front of competent national jurisdictions in connection with a limited range of offences against communitarian interests (frauds, corruption, money laundering, criminal association with the aim of committing such crimes, and other offences connected with public offices such as abuses, embezzlement, violation of secrecy) has later been largely reversed in the "Green Book" presented by the European Commission in December 2001, offered to public discussion with the contribution of scholars, operators and experts, and completed in March 2003 by a synthesis report in which emerged the possibility of its actual feasibility, even taking into account the difficulties due to the lack of a safe juridical basis and to the impossibility of instituting a new European accusation body without modifying the Treaties (such as the one proposed in 2000 by the Commission and rejected at Nice by the European Council).

5. The new European Union Constitution seems to be able to overcome these limits, as it states a complex whole of European competences in penal matters, mainly collected in Chapter IV of Title III of Part Three, devoted to the "area of freedom, security and justice" (Articles III-257/III-277), where Section 4 is specifically (and perhaps diminishingly) dedicated to "judiciary cooperation in penal matters" (Grasso, Sicurella, Bernardi, Picotti). Moreover, a special provision attributing penal competence to the European Union is Article III-415 concerning the fight against frauds against European financial interests, which re-formulates and enlarges the significance of current Article 280 of the European Community Treaty (Picotti).
As a matter of fact, the objective of creating an "area of freedom, security and justice" in the whole of European territory, in order to offer the citizens a match to the unified market, is among the first and qualifying ones of the Union, up to the point that the constitutional Treaty mentions it in the Article I-3, stressing later its importance and pointing out at the basic means for its feasibility in Article I-42 (approximate laws and regulations of the Member States, mutual confidence through of mutual recognition of judicial and extrajudicial decisions, operational cooperation) as tasks not only of the Union but also of the member States, and mentioning existing specific bodies such as Eurojust and Europol.
The most relevant institutional innovation is the overcoming of the present division of European competences and juridical instruments into pillars (Grasso, Picotti) to one framework of sources (particularly European laws and framework laws) having primacy over the national laws (Article I-6) according to the canons of communitarian law in the strict sense of the word. Moreover, having been includes in the Part II of the constitutional Treaty the Charter of Fundamental Rights of the Union, signed in Nice in 2000, important rights and guarantees concerning penal and process matters assume the characteristics of constitutional principles; in particular, the principles of legality and of the proportionality of offences and punishments (Article II-109), the presumption of innocence and the rights of the defence (Article II-108), the prohibition of bis in idem (Article II-110).

6. But the most outstanding actual aspect, which represents the true scientific starting basis for the original carrying out of the research, is the fact that Article III-271 expressly individuates "areas of particularly serious crime with a cross-border dimension" such as "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"; in order to combat these crimes Article III-271, § 1, expressly attributes legislative competence to the European Union in penal matters: in this area, in fact, "European framework laws may establish minimum rules with regard to the definition of criminal offences and sanctions". Moreover, a further field of penal competence of the European Union, having an even more general character and potentially largely extensible, is attributed when penal law "proves essential to ensure the effective implementation of a Union policy", provided it concerns "an area which has been subject to harmonisation measures" (Article III-271, § 2).

7. In the same way, on the level of trial law Article III-270 provides that a law or a framework law may establish measures for the acknowledgement of judiciary decisions all over the Union, prevent and solve jurisdictional conflicts, facilitate judiciary cooperation, and above all "establish minimum rules" on the mutual admissibility of evidence among the Member States, personal rights and particularly of the victim in penal processes, as well as "other specific elements" of penal procedure (Article III-270, § 2).
What emerges is an articulated frame of a rising "penal law of the European Union" completed (Article III-274) by the prevision of the possibility of the institution of a European Public Prosecutor, with competence not only in carrying out investigations, but also in exercising any penal action in the whole of the Union's territory, bringing to trial in front of the jurisdictions of the territorially competent States persons indicted of "crimes damaging the financial interests of the Union" (such as frauds, corruption, money laundering, other economical crimes or crimes committed by public officers) through a "European law" to be established unanimously by the Council, which may also "extend the attributions of the European Public Prosecutor's office to the combat against serious crime presenting a cross-border dimension" (§ 4).
The result would be a true European penal and process "system", similar to the one of a federal State, in which European law (not a mere framework law of harmonisation or aproximation, which would later be in need of practical putting into effect on the part of national laws) would directly foresee offences and process discipline, providing a juridical basis for the action of an accusation body of the Union.

8. As a consequence, researches may be carried out in a large and unexplored field that, starting from the present condition of complex relationships between communitarian and European law on one side, and penal law of the Member States on the other, such as it is at present in the single areas included in the research project – selected in the range of those which in the new Constitution will have an express attribution of competence to the European Union – will be able to develop the most important doctrinal and practical problems in view of the deep oncoming evolution. <<<