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 CATANIA - SEMINARIO GIURIDICO - ()

Research Unit Leader

Giovanni Grasso

Description

The conclusions reached by the ECJ in the judgement Commission v. Council (Case C-176/03, 13 September 2005) clearly show the will to override the traditional bounds of the EC legitimate legislative intervention in criminal matters. As a consequence of the above mentioned declaration of legitimacy of EC rules providing for obligations in criminal matters – the Court’s reasoning expressly refers to the EC legislative intervention in environmental matters, but it can be surely extended to other fundamental fields of EC legislation – the ECJ asserts the EC legislator’s competence to make important choices concerning the criminal policy. In particular it allows the EC legislator to single out the conducts which require a criminal sanction and, moreover, the juridical interests which need a penal protection. In fact this competence represents an essential element of the proper criminal competence that is up to today recognized as an exclusive Member States competence.
Nevertheless, the ECJ judgement does not indicate the limits – and the conditions – of a legitimate use of the recognized legislative competence to provide for obligations of criminalization by the EC institutions.
However, if one considers the competence recognized to the Community by the Court as an, even partial, competence selective of the sectors of criminal protection - as we consider it - the theoretical perspective used to find the legal bases of this competence must be the same one necessary to individuate the legitimate criteria founding a possible strictly criminal competence of the supra-national organization. This analysis, although unavoidably influenced by the national theoretical approaches, – approaches representing, however, an useful mean to critically evaluate the respect of the general protection’s requirements – needs a specific conceptual approach, or, at least, a new reading of the national scientific and theoretical instruments – functional in some way to the specific peculiarities and needs of protection of the European system.
In particular, the specification of the limits and conditions for the application and the use of this legislative competence by the European legislator requires a previous selection of definite juridical interests, already existing before the creation of the rules, socially accepted and, for these reasons, particularly needy of protection at supra-national level. Indeed, considering that the supra-national system is not a State, the legitimacy of the EC intervention in criminal matters cannot be based on a possible ethic negative evaluation of the conduct. Its final goal, on the contrary, must be found in the protection of juridical interests.
The application of the criminal sanctions determines an important sacrifice of the personal liberty. For this reason the above mentioned function of the EC legislative competence in criminal matters, i.e. the protection of the juridical interests, imposes a selection of the demands of protection based on the worthiness of the interests involved which were agreed upon in the civil society and the necessity of a criminal sanction.
The theories concerning the worthiness and the necessity of criminal sanction’s judgements are able to direct – even if some adjustments are imposed by the specificity of the EC system – the analysis of the conditions which can reveal the need of a supra-national criminal law. However, the transposition at a supra-national level of the theory related to the worthiness’s judgement imposes the previous consideration of a further aspect. The selection of the juridical interests which could be relevant in the perspective of a future criminal legislative competence on EC level, that is to say the definition of the object of a potential supra-national criminal law, requires a preliminary choice – among the numerous interests involved in the EC action – of the supra-national juridical interests. Taking into account the present situation of the European system, these juridical interests represent the unique means that can justify, existing the necessary requisites, the possible recognition of a EU criminal legislative competence and the consequential choices of criminalization. In presence of an evaluation concerning the offensiveness at supra-national level - that logically excludes further considerations at national level which could oppose it – the legitimacy has to be anchored to the properly supra-national nature of the above mentioned juridical interests. Consequently the worthiness of criminal sanction is a necessary condition, but not the only one, in order to legitimate the EC criminal intervention.
When both the social importance of a given interest and the social harmfulness of certain attacks against it - which consequently seem worthy of the criminal sanction – are ascertained, the necessary subsidiary character of the criminal intervention imposes a further control, extraneous (rectius external) to the theory of the juridical interests, but pertaining to the more political-criminal dimension of the justification of the criminal intervention in merely utilitarian terms of rationality and effectiveness in comparison with the general-preventive function of the criminal sanction. The evaluation of the necessity of criminal sanction presents some different aspects at supra-national level in comparison with that carried out at national level, because the former requires in fact more levels of evaluation. This exclusive evaluation required by the principle of criminal extrema ratio – necessarily common to the possible criminal dimension of the supra-national juridical system – in the context of the costs and benefits’ relation of the criminal repressive intervention in comparison with alternative means of protection, could not exhaust the evaluating steps necessary to declare the legitimacy of a direct criminal intervention at supra-national level, in particular in the framework of a distribution of competences between Member States and EU inspired to the EC principle of subsidiarity. Moreover this latter control has to be combined with another evaluation concerning the necessity of the supra-national intervention to the best outcome of the goals of protection.
More precisely, in the perspective of a criminal concurring EU competence – as it seems unavoidable considering not only the clear difficulty of conceiving merely supra-national juridical interests (instead of supra-national juridical interests related to national ones), but even the intrinsically shared nature of the EU competencies, directed to the framework and harmonization of the national ones – the evaluation of a direct, normative supra-national intervention in criminal matters with respect to the principle of criminal extrema ratio could not be carried out without a preliminary verification on the respect of the EC principle of subsidiarity concerning a supranational intervention of protection. In other words this control should ascertain the “more effectiveness” of this intervention rather than a national criminal response – whose effectiveness would be ab origine vitiated by a difference of treatment existing among the Member States in the territory of European Union. If the supra-national intervention of protection seems to be necessary – considering in particular the properly supra-national nature of the juridical interests – the EC legislator could (and should) evaluate the needs relevant according to the principle of criminal extrema ratio and decide on the necessity of the criminal protection, only if the effectiveness of the criminal choice is proved (or, at least, according to the more reduced praxis existing at national level, the non-sufficiency of different means of protection). Indeed this conclusion shows that the principle of EC subsidiarity does not constitute a real and absolute obstruction to the creation of a supra-national criminal law, but it represents a criterion of evaluation of the legitimacy of a further and specific EU intervention in criminal matters – making it in this context as a “(neutral) rule of exercise of competences”. Traditionally the above mentioned principle was conceived, according to the model of the Member States constitutional traditions, as a limit to the extension of the supra-national competencies, indeed it represents a principle fit a contrario to justify the EU intervention in fields once exclusively reserved to the national competence.
Starting from the above mentioned considerations the research of our Unit will be directed to point out the normative fields where legitimate needs of criminal protection do exist and, consequently, where it seems at the same time correct providing for EC obligation of criminalization. Nevertheless, first of all, a preliminary control to determine that those normative fields are relevant to merely supra-national juridical interests will be necessary.
A further analysis will aim at noticing the possible presence of obstacles – even of constitutional nature – to the effective application of those obligations in the Member States legal systems. In particular this control will concern the Italian legal system where recent cases-law showed the absence of specific conceptual and legal instruments fit to override the possible impasse due to the Italian non-execution caused by the adoption of a criminal legislation considered “inadequate” to the needs of protection of the EC juridical interests. Nevertheless as this legislation provides for a “more favourable” discipline in comparison with the previous normative, it is not “conquerable”, neither after a judgement of the Italian Constitutional Court (notwithstanding the presence of a specific constitutional duty to respect the EC obligation, according to article 117 of the Italian Constitution).
The research will focus on environment, sector emblematic of the complicated relations between national law and community law. For the most part, Italian environmental law has been enacted as implementation of community rules. Within this sector community law has therefore a deep influence on national law, both on administrative regulation – which has to enforce the choices of environmental policy expressed in the directives and in the other acts of the Union – and on criminal law. The European Union progressively developed the consciousness of being criminal law an indispensable instrument to efficiently protect the environment. Such a development culminated in the decision of 13 September 2005 through which the Court of Justice declared the legitimacy of community precepts providing direct obligations in criminal matters as regards environmental protection.
The research will therefore verify the correctness of the qualification of environment as a supranational juridical interest: this is a condition for the legitimacy of a community intervention imposing obligations of criminalization.
The research will then analyse the contents of the directive proposal COM(2007)51 of 9 February 2007 on the protection of the environment through criminal law, in order to verify the conformity of the community protection options to the principle of community subsidiarity as well as to the principles of necessity and worthiness of criminal sanction.
It will be subsequently examined the question - much debated by the Italian criminal law scholars due to the environmental crimes’ structuring techniques currently used - of the identification of the juridical interest protected by criminal environmental law (environment-administrative functions of management of the environment); it will also be tried to better define the characteristics and elements of environment as a juridical interest.
After analysing the environmental criminal legislation in force, the research will examine the law draft adopted by the Government on 24 April 2007, which aims to introduce felonies against the environment in the criminal code. It will be verified the conformity of such intervention to the choices of criminal policy expressed in the directive proposal COM(2005)51, therefore checking the adequacy of the national criminal tools on environmental matters (rules already in force as well as rules in course of adoption) to the obligations of criminalization arising from the directive proposal.
The research will also deal with illegal immigration, another sector where, because of the importance of the involved interests, the question of introduction of EC obligations of criminalization may arise. The protection of public order, on one side, and of freedom of movement, on the other, needs an intervention of the supra-national organization, more efficient than the national repressive answers.
The analysis will start from the instruments adopted by the European Union that, during its special meeting in Tampere on 15 and 16 October 1999 , expressed its determination to tackle illegal immigration at source, for example by targeting those who engage in trafficking of human beings and in the economic exploitation of migrants. It also called on the Member States to concentrate their efforts on detecting and dismantling criminal networks while protecting the rights of victims.
In particular, the research will focus on the Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence, and the Council Framework Decision 2002/629/JHA of 19 July 2002 on combating trafficking in human beings.
It will then examine if and how the Italian legislator received the indications of the European Union in order to strengthen the tools for the repression of the above mentioned crimes, considering the legislation in force and the most recent normative proposals.
The analysis will be conducted from law 228/03, that reformed articles 600 and 601 of the criminal code referred to reduction in slavery and trafficking, to the reform of art. 12 T.U. of 1998 - in course at the Italian Parliament - which represents a good starting point for sharpening and strengthening of the protection in the sense requested by the European legislator.
It will be also considered the recent law draft for the adoption of new and more effective measures to contrast the phenomenon of exploitation of illegally immigrated workers, which provides the introduction of an art. 603 bis in the criminal code and a review of the criminal sanctions for the exploitation of illegally immigrated workers.
The research will also focus on the analysis of the questions related to an efficient international cooperation in the context of the organized criminality, both on the investigative level and on the judiciary one, considering the recent Council framework decisions 2005/212 and 2006/783 JHA. The latter provides for the mutual recognition principle in confiscation matter, which represents a fundamental mean for an effective application of confiscation regulation. Nevertheless, verifying the different State Members legal systems, sometimes the confiscation model does not provide for the guarantees indicated in the 212/2005 framework decision, and required for the mutual recognition by the 783/2006 decision.
The research will therefore verify the headway and the resistance, namely on one hand the EC obligations of protection, on the other the numerous resistances to their implementation, regarding those normative fields strictly related to the protection of the juridical interests considered properly relevant to the European Community.