RICERCA ITALIANA     

Research program

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

University Co-ordinator

Università degli Studi di FERRARA - SCIENZE GIURIDICHE - ()

Research Unit Leader

Alessandro Bernardi

Description

The present acknowledgment of a EU competence in criminal matters, together with the broadening of the legal fields concerned with this competence, put at stake the issues related to the principle of legality of criminal law sources. As a matter of fact, these issues do not only regard the “historical dimension” of the principle of legality, but also its “ahistorical dimension”.
As it is well known the “historical dimension” of this principle (that in our political-cultural context expresses itself by means of the corollary of nullum crimen sine lege) concerns the definition of the “best” organ for the criminal law making process. This problem has a historical nature because its solution depends on variables that can vary according to the legal-political context, which can make it preferable one or the other among the organs in principles endowed with the legislative power (the king, the dictator, the “Wisemen”, the government, the democratic representative organ, the populace).
On the contrary, the “ahistorical dimension” of the legality (which is specifically under scrutiny in the present research) it is related to the accessibility of the criminal provision (in other word the possibility for the addressees to have access to the source and to understand its significance), to its preciseness (in other word the clarity and transparency of the forbidden conduct and of the sanction) and to its reasonable interpretation (in other word, the predictability of the judicial decision based on the norm). The ahistorical nature of the problem depends on the fact that the issues of accessibility and preciseness of the criminal provision, and of the rationality of its interpretation and application are not significantly influenced by specific political circumstances, as they are strictly tightened to the punitive mechanism; therefore they have universal and unconditional nature, and they hardly differ in substantial way under the different legal systems.
As for the construction of a EU criminal system, the issues concerning the corollaries of accessibility and preciseness and predictable interpretation of the legal provisions are as much problematic as the issues concerning the corollary of nullum crimen sine lege. Since the EU legal system is formed by sources of law rather different than the national ones, and since they are in relations of convergence, reciprocal integration, but also incompatibility, it is evident that such relations can display negative effects both on the accessibility and on the preciseness of the legal rules, and on the predictability of their judicial application.
This scenario suggest to divide the program of research in two phases, corresponding to each year of the research plan.
A) during the first year it will be examined the weight of the corollaries of the ahistorical dimension of legality as the are developed both in the national and in the European legal system.
B) during the second year the scrutiny will focus on the law making process for the criminal provision of European origin with the aim to evaluate its coherence with the accessibility, preciseness and predictable application of the criminal rule. In addition, the effects of the proposed amendment of the Treaties will be analysed.

A) It is not possible to examine in details the features of the ahistorical dimension of the legality under the Italian system. It shall be enough to say that the literature has focused mainly on the principles of non retroactivity and of clarity and preciseness of the criminal provision. During the first year of research special attention will be devoted to these corollaries of the legality and to their effects on the criminal rules with European origins.
On the other hand, the issue of the ahistorical dimension of the legality under the EU system is very much complicated, as the unwritten fundamental principles of EU law include not only the fundamental principles laid in the Constitutions of the member States, but also the corollaries of legality provided under art. 7 ECHR as they are interpreted by the Court of Strasbourg. In particular, the latter Court has developed a remarkable doctrine concerning not only the preciseness of criminal law, but also the accessibility of it and the predictability of judicial decisions. Therefore, during the first year of research the case-law of both the ECHR and the ECJ will be under scrutiny.
What is more, the principle of legality under EU law derives from the principles laid in the Constitutions of the member States, as they are interpreted by the ECJ. During the first year of research, consequently, it will be necessary to examine whether the principle of legality and its corollaries are derived from national Constitution according to the principle of maximum standard, to the principle of most frequently adopted standard, to the principle of better law, or to the principle of common minimum standard.

B) As for the relationship between the current European criminal law making process and the principles of accessibility, preciseness and predictable application of the criminal rule, the research during the second year will separate the different mechanisms of interaction between national and European sources.
With reference to the mechanism under the firs pillar, special consideration will be devoted to the technique of the reference to another statute, according to which the illicit conduct is defined with a reference to a European act, while the national act only lays down the sanction.
The different types of reference will be analysed under the perspective of their connection with the corollaries of the principle of legality.
For example the “complete” and “rigid” reference (in other words, the reference provided for by a national criminal provision which lays down a sanction for a violation of a rule contained in a specific EC act already in force) brings about the need to introduce new criminal provision any time the EC discipline has been amended, therefore entailing the proliferation of criminal offences: in such a situation it is difficult to find out which is the rule applicable to the concrete behaviour.
On the contrary, a “flexible” reference makes it possible to provide with a sanction all the EC acts already in force and the EC acts forthcoming: but also this kind of reference collides with some aspect of legality, since the flexibility is in contrast with the preciseness and clarity of the rule.
With reference to the mechanism under the firs pillar, it will be underlined that EU acts are rather generic and vague, as they need to be compatible with different national systems, that still vary quite significantly one from the other. The research during the second year will focus on the illicit conduct described under the several framework decisions adopted insofar, and their consistency with the principle of preciseness.
Special consideration will be dedicated to the paradigmatic example of the European arrest warrant: the framework decision 13 June 2002 has introduced a list of conduct in relation to which the surrender of the wanted person shall not be subject to the principle of double incrimination. With reference to this list of behaviour the Italian literature has pointed out several doubts of coherency with the principle of clarity and preciseness of criminal law; in its turn, the Italian Legislature has implemented the framework decision in very different way than other member States. The research will focus on this crucial issues and on the solution put forward by the case law.
What is more, the setbacks of the “Pupino” doctrine (according to which the national law shall be interpreted in line also with the provision laid down in the framework decisions) on the corollaries of legality will be also underscored.
In the final part of the research, the consequences of the adoption of the new Treaty will be considered: in particular, the foreseen abolition of the “pillar system” it is likely to eliminate the current disputes concerning what kind of instrument to adopt (directive or framework decision) for the protection of certain interests and good. These disputes are nowadays bringing about further uncertainty in the EU criminal law system. Therefore, the implementation of a new system of law sources would probably improve the level of respect of the corollaries of the principle of legality and, in the end, the general quality of criminal legislation of European origins.