RICERCA ITALIANA     

Development of criminal law in the aereas of European interest in the perspective of the new reform proposals of the Treaties

Università degli Studi di Verona

Abstract

1. The Project of the Treaty modyfying the Treaty on the European Union and the Treaty establishing the European Community was published in October 5, 2007 with the annexed Protocols (CIG 1/1/07 REV 1), in accordance with the mandate of the Council of European Union of Bruxelles of June 26, 2007.
Accordingly, on one hand the ambitious project of “Constitutional Treaty”, approved in Rome on October 29, 2004, has been abandoned, owing to the failure to ratify on the part of a number of Member States, while on the other hand the process of the reformation of the European Union is drawing to a close, substancially acquiring its most outstanding innovations.
Among these innovations a non minor role have the ones concerning penal law in relation to the law of the European Union, to which is esplicitely aknowledged a “shared competence” with the ones of the Member States in order to combat serious and transnational crime in a number of sectors and to ensure an “effective application” of the policies of the Union in those areas that have already undergone harmonisation measures (environment, combating frauds, sectors of the Economics Law: see artt. 69 E and 69 F of the Treaty on the Fonctioning of the Union, into which has been turned the Treaty establishing the European Community, corresponding to artt. III-270 and III-271 of the abandoned Constitutional Treaty, concernign both substantive penal law and penal procedural law).
2. The reasearch moves from the scientific starting point formed by the investigations carried out during the previous inter-university research on the subject “Penal law and the treaty establishing a Constitution for Europe” (a project admitted to co-financing on PRIN funds 2005 - Prot. 2005129944), taking note of the different institutional scene that is taking shape and investigating new and separate profiles in order to update and furtherly develop the acquired data.
The structure and organization of the research units has thus remained basically the same, integrating the different and experienced competences in the field of substantive and procedural law in an interdisciplinary approach, with the contribution of new young researchers to the team.
3. The first task is an analysis of the evolution of the penal system as to the specific sectors due to enter the “European shared competence”, enlarging the perspective to an approach framing the analysis “of special part” into an articulated and comprehensive perspective “of general part”.
The sharing of competences with the European Union, in fact, strengthens the need of respecting all the assumptions and limitations of the penalization choices, starting from the respect of the “quality” of criminal provisions, because the principle of legality is irreducible to the mere parliamentarian competence (riserva di legge) (Unit of Ferrara), up to the sorting out of the juridical goods deserving and needing penal protection, according to an articulated evaluation of proportionality and subsidiarity taking into account the shared competence between European and domestic sources (Unit of Catania), examining the formulation techniques of the incriminating cases in particular sectors of economics and for the protection of common security (Unit of Modena and Reggio Emilia), as well as the trends towards an anticipation of the punishability and the extension of the forms of liability for participation acts emerging in the combat of serious crimes such as terrorism, organized crime, computer crime (Unit of Verona), up to the procedural profiles of the “circulation” of data and of the evidence in the Eurpean juridical area (Unit of Como - Insubria).
4. The ultimate task of the research is the analysis of how the new competences of the European Union may influence the national and European law “system”, where strong and justified needs for social defense must be balanced by the respect of fundamental principles and rights explicitely mentioned in the Nice European Charter (that will acquire the value of Treaty), as well as in the European Convention on Human Rights to which the European Union has given in its adhesion.
At the light of the results achieved it will be possible to outline, at least as far as single sectors are concerned, criteria of penalization and patterns of offences and sanctionatory typologies, apt and legitimate in the light of the above mentioned principles.
5. The results of the research will be presented and discussed in seminars and meetings, and especially in an international conference to be held at the end of the research period, with the participation of all units involved in the research together with Italian and foreign scholars and representatives of European institutions competent in the field. Essays, contributions, interventions and proceedings will be published. <<<

Principal Investigator

Lorenzo Picotti Università degli Studi di VERONA

Research Objectives

The research aims at three final tasks.
a) Firstly, to outline the influence, in the sectors under the competence of the European Union, of the Europeanization and harmonisation processes that have developed up to now, mainly through to the instruments of the “Third Pillar”, especially the Framework Decisions involving many fields of substantive penal law (terrorism, organized crime, computer crime, trafficking in human beings etc.) and of penal procedural law (European warrant, acquisition of documentary evidence, confiscation). A strong impulse, however, has been given also by the case law and especially by the European Court of Justice, that has recently overcome the dichotomy existing between the first and the third pillars on “communitarian” matters – such as environment – admitting in such cases the competence to provide for effective obligations to punish the violation of rules which should be effective implemented (sentence September 13, 2005 C 176/03). In many fields, especially of Economics penal law (discipline of financial markets, corporate law, copyright, e commerce etc.) or concerning the protection of collective security (i.e. in working places), the harmonisation has also been partially achieved through directives that regulate the extra-penal discipline, to which the penal sanctions provided by the single Member States are accessory.
b) Secondly, to investigate into details the new penal and procedural competences provided by the project of a “Treaty modifying the Treaty on the European Union and the Treaty establishing the European Community” published in October 5, 2007 with annexed Protocols (CIG 1/1/07 REV 1), in order to evaluate their impact on the present situation. It seems particularly important to establish the assumptions and the limits in the enforcement of such competences acknowledged by the European Union, in order to overcome the contradictions and the gaps that now exist on the level of an effective prescriptive harmonisation (we must think of the need for adopting the so-called double-text mechanism, i.e. a directive for the extra-penal discipline and a framework decision for the penal discipline) and to plan an effective judicial and police cooperation, at present hampered by the differences in even substantive regulations and in procedure regulations, especially in the matter of the search, acquisition and evaluation of information and evidence.
c) Thirdly, we must take into account the risks for the fundamental rights and guaranties of persons, particularly if a centralization of the choices in criminal politics at a European level should lead to favour the strengthening of the needs of social protection. As to such risks, it will be necessary to decide how much influential could be the observance of the Charter of Fundamental Rights, that must be given the value of a Treaty, and the agreement to the European Convention on Human Rights (new Art. 6 of the Treaty on the Union) and, at a level of judicial as well as political control, the respect for the European principles of proportionality and subsidiarity, that seem to be strengthened in penal matters. We will have to ascertain whether through the interventions of national Parliaments (starting from the upward phase of the legislative process and the control power explicitly conferred to the Court of Justice in the matter) a correct balance between the two exigencies may be achieved, in compliance with the constitutional traditions and guaranties of the Member States.
Moreover, we will be able to formulate, at least as far as single sectors are concerned, criteria of punishment as well as models of offences and typologies of sanctions, apt and legitimate on the basis of the principles exposed.
The results of the research will be presented and discussed in seminars and meetings, and particularly at an international conference to be held at the end of the research period; all Research Units, as well as Italian and foreigner scholars and representatives of European institutions operating in the field, will participate in those activities; the resulting studies, contributions, interventions and proceedings will be published. <<<

First Results

The results expected by the research may be divided into in-progress or functional results and final results.
The former will be formed by a reasoned survey of the normative, case law, bibliographic and empiric data concerning the various sectors of penal law an or procedural law investigated, related to the juridical-penal instruments of the European Union and, if appropriate, to international instruments.
As to the final results, they will emerge through the collation, synthesis and evaluation of the collected materials, that for each Unit will have to underline the homogeneous and heterogeneous aspects among the various legal systems not only at a legislative level but also in regard to criminal action procedure and to issues with theoretical and doctrinal importance.
Specific areas in which harmonisation and transnational cooperation have already been or are close to being achieved and those from which these goals appear more distant will so emerge.
The result will also enlight the risk profiles for the rights and guaranties of persons stemming from the growing competences and the centralisation of the choices in the field of criminal policy at a European level, that lead to privilege the needs of public security instead of the needs of freedom and respect for the private life of individuals. As to such risks, we will point out the practical remedies offered as a guarantee of the fundamental rights, both at a political level and at the level of judiciary control.
The respect for the principles of proportionality and subsidiarity, that have an outstanding importance in penal matters, will have to be checked at the light of the possible interventions of national Parliaments since the ascending phase of the legislative process, besides through the control of the Court of Justice and, if appropriate, of the jurisdictions of the Member States in the matter.
The research might lead to the formulation, at least as far as single sectors are concerned, of punishment criteria and models of offences and typologies of sanctions apt and legitimate in the light of the above mentioned principles.
Another target is the publication of the theoretical and systematic synthesis elaborated by the participating Research Units and the organization of an international conference at the end of the research period with the participation of Italian and foreign scholars and members of European institutions and competent bodies, for the presentation and discussion of the results achieved.
The importance of such results for the progress of knowledge in the sector consists firstly in the innovative character of the theme, that further develops and enlarges the results already achieved by the previous project on Penal law and the Treaty establishing a Constitution for Europe” (admitted to co-financing on PRIN funds 2005 – Prot. 2005129944), updating it in the light of the recent reform project of the European Treaties, still obviously lacking essays or other scientific contributions.
One peculiar area of interest for the expected results comes from the integrated approach between substantive penal law and procedural penal law, as well as from some aspect of the special part (on single sectors of penal law most involved in the Europeanization process) and crucial points of the general part affected by the very recent evolution of the penal system (the choice at a European level of the juridical goods to be protected, techniques of formulation of penal law-cases in the interaction among different sources, anticipation of the punishability and
extension of the forms of participation in areas of serious and trans-national crime).
As to the potential enforcing, the results of the research will be valuable not only in view of further investigations on these matters, that are particularly innovative compared with the present penal system, but also from the point of view of case law applications, that will be allowed to draw from them models of incrimination and punishment criteria to use in future reform interventions in the matters considered. <<<

Timescale

24 months

National and international background

1. On 18 and 19 October 2007 the leaders of State and Government of the European Union have approved – with a few proposals of emendation included in specific delarations – the “Project of a Treaty modifying the Treaty on the European Union and the Treaty establishing the European Union”, the articulate text of which was published on October 5, 2007 with the annexed Protocols (CIG 1/1/07 REV 1), in conformity with the mandate of the Council of the European Union of Bruxelles of June 27, 2007. Hence, on one side the project of a “costitutional” Treaty (approved in Rome on October 9, 2004) was abandoned owing to the non-ratification on the part of some member States, on the other side the complex process of reform of the European Union is drafting to a close, substantially acquiring the most outstanding innovations outlined by the above mentioned “costitutional” Treaty. Still subject to the ratification process, the new “Reform treaty” yet stands on more consistent political perspectives, the need for it in the face of the new tasks awaiting the European Union, in the present world situation, and particularly after the enlargement to 27 Member States, being fully acknowledged. Thus, a fast final approval is to be foreseen, with important consequences on the structure of penal law-European Union law relations.
2. The research will develop starting from the important scientific basis of the studies carried out and the results achieved in the course of the previous inter-university project carried out by the same Research units on the subject “Penal law and the Treaty establishing a Constitution for Europe” (co-financed by PRIN funds 2005 – Prot. 2005129944), taking into account later developments and interventions, in order to update it and achieve further results.
3. The analysis of the relationship between normative competences of the European Union (or Community) on one side and penal law of the Member States 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 States 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).
4. 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), which requires a common fight 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 base on unanimous agreements among States (Sicurella).
So, if current Treaties have not attributed to the European Community an express competence in penal matters, in conformity with the suggestions of a consistent part of the doctrine (Tiedemann, Bacigalupo, Picotti) and of the European Commission itself, shared by the European Parliament, yet some fields (such as the protection of the environment and the fight against frauds damaging communitarian finances) have already recognized in which it might be inferable from the current dispositions (see Art. 280 and Artt. 174-176 of the EC Treaty). The EC Court of Justice has confirmed the validity of such interpretation stating, in the recent sentence of September 13, 2005, C 176/03, the illegitimacy of a framework decision providing penal dispositions in a field of communitarian competence (such as environment), this competence including also the power to order penal sanctions for the violation of the precepts whose effective enforcement must be granted. The so-called double text mechanism (framework decision for penal measures, directive for extra-penal regulamentation) is thus being overcome in the fields being part of the First Pillar, such as for example – besides the above mentioned ones – the protection of copyright, for the penal protection of which the Commission has presented a proposal of directive, approved by the Parliament, including the definition of the violations to be punished and of the typologies and measures of the penal sanctions to be enforced.
In force of co-decision procedures involving in fact, besides the Commission and the Counsel as executive powers, also the European Parliament, democratically elected by the people of the Union, also the second of the two major objections up to now opposed to such acknowledgement (that is, besides the lack of a safe juridical basis in the Treaties, the so-called democracy deficit of European institutions with a competence in the normative production, which would violate the principle of legality and of reserve of parliamentary law in penal matters) seems to be surmountable (Grasso, Picotti, Bernardi).
5. So, such evolution in the acknowledgment of direct yet implicit communitarian competences on penal matters joins the process of ongoing “Europeanization” 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, for the need of interpretation and application of national law (also penal) in a direction consonant with communitarian and European law (finally, on the need of extending the principle having regard also to the European Union law, and particularly to a framework decision, even if not yet in force in the Member State, see the well known sentence of the EC Court of Justice, June 16, 2005 on case Pupino)
This complex process is hence consistent with the normative harmonisation pursued inside the Third Pillar, largely overcoming the mere judicial and police cooperation, as is emerging by the more and more numerous instruments concerning wide sectors of crime (such as organized crime, the trafficking in human beings, the exploitment of women and children, environmental crime, computer crime and so on) 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 acquisition or documentary evidence etc.: see Bargis - Nosengo, Ruggieri) that facilitated the development of common procedures in investigations and the exchanges of information and assistance between investigators and authorities in the various European countries and institutions (particularly Eurojust, Europol, Olaf, liaison judges etc.)
6. Particularly meaningful is, in such a perspective, the fact that after the interruption of the ratifying process of the ambitious “Establishing Treaty of a Constitution for Europe” approved in Rome on October 29, 2004, on October 18 and 19, 2007 the State and Government leaders have approved – – with a few proposals of emendation included in specific declarations –the “Project of a Treaty modifying the Treaty on the European Union and the Treaty establishing the European Union”, whose articulate text was published on October 5, 2007 with the annexed Protocols (CIG 1/1/07 REV 1), in conformity with the mandate of the Council of the European Union of Bruxelles of June 27, 2007.
On one side, the project of a “constitutional” Treaty has been definitively abandoned; on the other side, the complex process of reform of the European Union is drafting to a close; it acquires in the substance (if not in the form and terminology) the most outstanding innovations shaped by the above mentioned “constitutional” Treaty, among which stand the ones concerning penal law and its relations with the European union law.
7. The modifications introduced by the project of reform of the Treaties seem able to overcome the above mentioned limits and uncertainties, as the division into pillars has been explicitly abandoned (“The Union substitutes and succeeds to the European Community”: new art. art. 1, par. 3, of the Treaty on the Union) and there is instead an explicit attribution of “shared competences” to the Union in the penal matter, including the ones having a legislative character (art. 4, par. 2, letter j of the institutive Treaty on the Functioning of the Union, as is to be renamed the Treaty establishing the European Community), aiming at creating that unique “area of freedom, security and justice” that is one of the fundamental tasks of the Union (new art. 3, par. 2, Treaty on the Union, referring to the “new” Title IV of the Treaty on the Functioning of the Union, artt. artt. 61 ff., substituting and overcoming the current Title VI of the Treaty on the Union, the so-called Third Pillar, hence cancelled). Such norms establish a set of “shared competences” of the European Union in the penal field, corresponding to the ones already included in chapter IV of Title III of the third part of the project of a European Constitution, devoted to an “area of freedom, security and justice” (Artt. III-257 / III-277), in which Section 4 was specifically (yet perhaps reductively) dedicated – as was chapter IV of Title IV of the project of the reformed Treaty – to “judicial cooperation in penal matters” (Grasso, Sicurella, Bernardi, Picotti). It still remains the special provision attributing penal competence to the European Union (Art. III-415 of the project of European Constitution) concerning frauds against the Community’s financial interests, as it it been enlarged and given a new formulation by the current Art. 280 of the EC 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, in the same way as the Constitutional Treaty, the project of reform of the Treaties mentions it in Art. 3, par. 2.
Yet, 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 (even if the current definitions of rules and directives are in use, and have not been substituted by European laws and framework laws) prevailing upon domestic law according to the canons of communitarian law in a strict sense.
Moreover, even if now the European Charter of Fundamental Rights signed in Nice in 2000 is not included, it will become a treaty in order to safeguard important rights and grants concerning penal and precedural matters, such as, in particular, the principles of legality and of proportionality of offences and punishment (art. 49), the presumption of innocence and the rights of the defence (Art. 48), the prohibition of bis in idem (Art. 50).
8. For the original carrying out of the research the most outstanding actual aspect is the fact that in Art. 69 F of the Draft of Treaty on the Functioning of the European Union (corresponding to Art. III-271 of the abandoned Constitutional Treaty) explicitly points out areas of “particularly serious crime having a transnational character” such as “terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit firearms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime”; in order to combat these crimes expressly attributes a legislative competence is expressly attributed; in these sectors, in fact, “directives may establish minimum rules with regard to the definition of 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 at an European level (art. 69 F, par. 2, corresponding to Art. III-271, par. 2 of the Constitutional Treaty).
9. In the same way, on the level of trial law Art. 69 E (corresponding to Art. III-270 of the Constitutional Treaty) provides that a directive 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 (§ 2).
What emerges is an articulated frame of a nascent “penal law of the European Union” completed (Art. 69 corresponding to Art. III-274 of the Const. Treaty) by the prevision of the possible 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 regulation to be established with special procedure by the Council unanimously– or, lacking this, when there is the possibility of reinforcing cooperation among at least nine Member States - 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 approximation, 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. <<<