RICERCA ITALIANA     

Research program

The protection of fundamental rights in the national and supranational legal systems, in the perspective of a "European" Constitution

University Co-ordinator

Università degli Studi di MILANO - Diritto pubblico - MILANO(MI)

Research Unit Leader

Maria Elisa D'AMICO

Description

One of the most important issue of the "Treaty establishing a Constitution for Europe" is certainly the evolution of the criminal jurisdiction of the European Union.
Firstly this evolution has firstly gone through the introduction in the European Constitution of the principle that the penalties must be lawful ("nullum crimen, nulla poena sine lege" principle), already established in the European Charter of Foundamental Rights. This choice seems to be the last step for the recognition of the existence of a proper European criminal law, founded on the "nullum crimen, nulla poena sine lege" principle.
Secondly, the evolution of the European Community criminal jurisdiction have been determined by the decision of changing the three pillars UE structure. This precise choice concerns also the so-called "area of liberty, security and justice", where the intergovernment method and the community method were very interwoven.
Thirdly, the specific rules about this "area of liberty, security and justice" directly concern the criminal law, even if some changes in the definitive text have left some doubts about the whole weight of this constitutional innovation.
This research aims to analyse - exploiting the constitutional methods - the principles of the relationship between criminal law and European criminal law, with special regard to the rules of criminal law recently introduced in the European Constitution.
This research will clarify if the division between criminal law and European criminal law could be affected in the future by these new rules about the "area of liberty, security and justice". The European Constitution indeed will allow the approximation of the laws and regulations of the Member States in some particular areas (art. III-270). Moreover it will allow to "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" (art. III-271).
Moreover, this research aims to study the real meaning of the "nullum crimen, nulla poena sine lege" principle in the community jurisprudence. In some recent judgements indeed the Court of Justice interprets the European law even where the States member establish their own penalty sanctions; it believes in having the faculty to evaluate the consistency of these penalty sanctions with respect the Community law objectives; finally it seems also to admit that the retroactive application of a more lenient later law is an exception to the "nullum crimen, nulla poena sine lege" principle and this exception is justified only if the later more lenient law is compatible with community law.
A development of these issues will be certainly given by the final decision concerning the compatibility between the European law and the national regulations which modified the criminal rules on "false accounting" in favour of guilty person (joined cases C-387/02, C-391/01, C-403/02): actually, in this case, the Court of Justice is called to interpret the "nullum crimen sine lege" principle as regards the "favor rei" principle.
Concerning the method of the research, it will firstly collect normative materials and judgments of both European Courts and Constitutional Courts judgements. Afterwards all these normative materials and judgements will be examined and compared to the traditional legal doctrines in order to evaluate the real meaning of the "nullum crimen, nulla poena sine lege" principle that Member States Constitutions have got as a limit of the European Union criminal competence. Finally, it will be analysed the specific role played so far by the national and community judges in the determination of the relationship between criminal law and European community law.