RICERCA ITALIANA     

Research program

Criminal Law and Treaty establishing a Constitution for Europe

University Co-ordinator

Università degli Studi di CATANIA - SEMINARIO GIURIDICO - CATANIA(CT)

Research Unit Leader

Giovanni GRASSO

Description

The fight against organised crime has reached a growing importance among the various initiatives of the European Union in the field of judicial cooperation in criminal matters. This evolution not only it mirrors the important transformations of the European construction in the field of judicial cooperation in criminal matters but it also allows to develop a wider analysis about the putting into place of a real European criminal policy, covering a set of initiatives which should be strategically orientated and well founded on precise values.
This kind of analysis has been faced only partially in the occasion of the preparation of the Constitutional Treaty, that establishes a fundamental (but also problematic) harmonising competence of the EU in criminal matters, covering a large number of different fields.
The mention at the normative highest level – that is to say in the treaty – of the fight against organised crime, as one of the most important fields of EU intervention in the framework of the third pillar of the Amsterdam and Nice Treaty (and now also reproduced in the constitutional treaty), represents the culmination of a legislative and executive course which, moving from the debates launched at the beginning of the Seventy’s, has been particularly developed in the last twenty years and especially after the Single European Act and finally integrated in the general project of the implementation of the area of freedom, security and justice established at Amsterdam (and elevated as a “policy” of the EU in the constitutional treaty).
After been mentioned, in the second half of the Seventy’s already, in various acts adopted in the framework of the European Political Cooperation, and been also at the centre of various initiatives of police cooperation realised without a formal engagement of Community Institutions, fight against organised crime in the European space became a constant since the Ninety’s, and it finally achieved at the role of a pendant of the free movement of persons in the Amsterdam Treaty. So it moved from an accidental competence – due to the deficit sécuritaire and the connection with offences to EU interests or interests concerned by EU policies (as financial interests or environment) – to a real strategy of the Union, asking for the definition of a precise legislative and institutional framework for the development of a European criminal policy in this field.
Anyway, the harmonising competence of EU could not reach the point of a common binding criminal provision concerning organised crime, as a real supranational offence. Without an existing supranational interest of the European public order, whose damage would be at the basis of a supranational offence covering the fact of being member of a criminal organisation, EU intervention should always be of an harmonising nature (eventually aiming also to an integration of Member States systems), where a common definition of “organised crime” would be formulated as a non binding “model offence”, whose implementation by Member States would be not only essential for the effective functioning of cooperation instruments but also for the implementation of the area of freedom, security and justice.
Having these considerations in mind, provisions in the constitutional treaty do not seem to provide for clear indications. The text of art. III-271, §1, which mentions organised crime as a form of “particularly serious criminality which presents a trans-national dimension” as integrated in a wider category of offences, shows that the perspective has been overcome to consider organised crime as the key-sector for the definition of a European criminal policy (a risky perspective because of the derogative character of guaranties normally attached to measures adopted to fight against this phenomenon), providing for a harmonising intervention of the EU more rationally founded on the general features of some forms of criminality that because of these features represent an obstacle for the implementation of the fundamental objectives of the process of European integration. Nevertheless, provisions in the treaty are not sufficiently clear about the indication of a precise legal basis for the definition of a European criminal policy articulated according to the real nature (supra-national or not) of the interests concerned by the harmonising intervention of EU.
After an overview of all EU legislative and institutional initiatives specifically devoted to the fight to organised crime, aiming to find any guide-line of the criminal policy followed by the EU so far, the research activity of University of Catania Unit will cover not only the question of establishing a common definition of a criminal organisation and the analysis of the first and third pillar instruments adopted in some fields strictly related to organised crime, as money-laundry, corruption and confiscation (we can remember the draft framework decision on the application of the principle of mutual recognition to confiscation orders) taking into consideration also the more specific case of the terrorist criminal organisation –, but it would also cover the relationship of the fight against organised crime with the protection of interests which are now considered as supra-national (financial interests and environment).
For example, about the fight against the terrorism, in a first time the research activity will analyse the instruments adopted by the EU in the first and in the third pillar of the community construction,on the basis of both the Maastricht version and the Amsterdam version. Furthermore, in this same phase of the work, it will be demonstrated that the EU has assumed in this matter a really different position, as regards the other international institutions, settling definitely the question about the juridic definition of the terrorism crime and, in particular, giving up the assimilation of that crime to the political offences. In a second time the research activity will analyse, as regards both these aspects, the scenarios opened by the European Constitutional Treaty.
Furthermore, nowadays organized crime has a deep and wide interest related to crimes against the environment. In a Europe without borders the illegal management of wastes, the trade of protected species etc. became a new, productive business for criminal organizations. In consideration of the fact that all the offences to the legal gods affected by environmental crimes – the environment itself, the health and security of the citizens, the economy - don’t have national borders, in the European Union has grown the idea that the fight against the environmental criminality requires cooperation among member States and harmonization of national legislation.
Several acts of the Union are inspired by the idea that environmental criminality is a priority for the Union, and that the fight against environmental crime needs a harmonization concerning crimes and penalties. Many rules or proposals of rules were enacted in the last few years. Among all, a Directive proposal of 13.3.2001 on the protection of the environment trough criminal law and the Framework decision of 27.1.2003 on the protection of the environment trough criminal law.A big debate raised on the question of the correct legal basis for this intervention. As the problem involves either the protection of the environment and the judicial cooperation in criminal matters, it is not clear if the legal basis has to be found in the first or in the third pillar. The Commission asked the Court of Justice to declare the invalidity of the framework decision for lack of legal basis. The question is at the moment under the judgement of the Court of Justice.
The objective of the research is to analyse, in light of the new rules of the Constitutional Treaty, the problem of the correct legal basis and of the content of a regulatory intervention concerning environmental crime which could be at the same time respectful of the new institutional mechanism and efficient in the fight against environmental criminality.
The final objective of the research will be the organization of an international seminar and the publication of the relations of the seminar.