lecture reader for the series of lectures part iv

4-7.11.2003Counsellor, docent, Dr Tuomas Pöysti 1MINISTRY OF FINANCE

The Constitutionalisation and Evolution of Penal Law and Control Policy in the European Integration

Lecture reader for the series of lectures

Part IVThe Project of the European Area of Freedom,

Security and Justice in a wider constitutional context and the Draft Treaty on the Constitution

by Counsellor, docent, Dr Tuomas Pöysti


Treaty of Amsterdam and the politics of European criminal law

The European Union as an area of Freedom, Security and Justice

Targets of the Integration legitimacy of the Union: Citizens are concerned

about their security in the globalising and increasingly border-free world and Europe. EU can provide security and for the governments compensate the loss of governance and control

ultima ratio of criminal law threatening effect - dissuasive sanctions rational control of social problems symbolic value of criminal law. Criminal law

resembles power and morality. For different reasons different stances to European integration want to associate new criminal law to Europe

Towards the Area of European Criminal Law & Justice


Recent trends and achievements in the field of substantive criminal law and procedure Accelerated implementation of the programme as

agreed in the Tampere European Council Conclusions Mutual assistance convention European arrest warrant Framework decision on terrorism Other new framework decisions on:

corruption in the private sector – compare the UN convention

environmental crime Problems:

bad quality of initial law-drafting too political nature of the legislative programming:

instruments are adopted to show willingness to tackle issues, not necessarily on the basis of practical social needs. Competition between the different Council presidencies worsens the situation


The Role of the EU in Penal law Formation of the criminal policy is to an

increasing extent a matter of the Union the Union is the policy level and the national law

is to implement Application of the EU originated penal law by

the national judges the national courts still apply the Member States

substantive penal law. On mutual assistance some direct references to the Convention / framework decisions will / may be necessary

some difficult issues of convergence within the criminal law system or criminal procedure. The sanction levels required by the framework decisions may differ from the logic of the domestic penal law


The first and third pillar approach compared Co-operation in the field of criminal justice

polity; for political symbolism lack of coherent drafting and legislative

policy lack of adequate knowledge base

First pillar de facto criminal law via administrative law blurring of the boundaries of the bodies of

law; un-clarity better knowledge base and drafting

procedure established institutional rules and liabilities


The draft Constitution for Europe Merger of the pillars and the single legal personality

of the European Union. Establishment and maintenance of the European

Area of Freedom, Security and Justice would gain an even strengthened status among the objectives of the Union and among the core projects of European integration. Area of Freedom, Security and Justice would also be defined as an area of shared competencies between the Union and the Member States

The co-operation in criminal matters and the approximation of laws in substantive criminal law and criminal procedure would be part of the general European Union law and law-making

Simplification and reduction the number of different decision-making procedures and legal instruments.


Draft Constitution for Europe and Criminal law and procedure article III-158: The Union shall constitute an area of

freedom, security and justice with respect for fundamental rights, taking into account the different legal traditions and systems of the Member States. legal pluralism within a unitary metasystem and

polity article III-159: a particular role for the European

Council in the setting of the strategic guidelines for the legislative and operational planning Sovereignty issue and inter-governmentalism

article III-161: particular evaluation mechanism for the follow-up of the implementation of the concept of mutual recognition and Union policy


Section IV of part III of the Draft Treaty on Constitution

Art. III-171: judicial co-operation in criminal matters shall be based on the mutual recognition Idea: European-wide effect of judicial and law-enforcement

action without supranational competencies. Inter-governmentalist point of departure but quest for efficiency calls for far-reaching co-operation

In order to facilitate mutual recognition minimum rules on the admissibility of evidence between Member States, rights of the individual in the criminal procedure and the rights of victims of crime by European framework law Framework law (loi-cadre) will replace current directives as

legislative instrument. Framework laws would adopted, unless particularly specified, in legislative procedure in which there is a proposal from the Commission, Readings of the Council and the Parliament and adoption by the Council by qualified majority vote and the final say (veto) in the Parliament. In section IV and V of part legislative proposal may be presented also a group of Member States representing at leas one fourth of the Member States


Section IV continued

The Council could define in a European decision, adopted unanimously, also other areas to be covered by the minimum rules

The minimum rules do not prevent a Member State to enact higher level of protection Idea of the minimum rules is to provide for

the minimum guarantees of rule of law, not necessarily the efficiency and expediencey of law enforcement and judicial co-operation


Art. III-172 on the harmonisation of criminal law

Para 1: list of cross-border serious crime in which European framework laws may establish minimum rules concerning the definition of criminal offences and sanctions fairly well-defined and limited in the spirit of the

principle of conferral of powers which is among the fundamental constitutional principles of the Union law

double criteria: cross-border, serious crime enumerated in the list.

list may be amended by an unanimous decision of the Council after the consent of the European Parliament

draft list: terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime


Art. III-172 continued Para 2:’’If the approximation of criminal

legislation proves essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures, European framework laws may establish minimum rules with regard to the definition of criminal offences and sanctions in the area concerned’’.

would open the possibility for widening the positive effect of the European law to special provisions of criminal law. Would lead to increased fragmentation and differentiation in the system of penal law


Art III-173 and 174

Eurojust could be given powers to initiate and co-ordinate prosecutions to be conducted by the Member States prosecutors in a European law (loi européenne) European law would replace the current

regulations as binding and directly applicable legislative instrument

A European Public Prosecutor Office could be established from the Eurojust. Requires an unanimous European law of the Council and the consent of the European parliament Significant resistance among the Member

States, will be dropped from the Constitutional Treaty


Section V of the part III: police co-operation

Constitutionally recognised and strenghthened role for the Europol

Measures of operational co-operation shall adopted by the Council unanimously sovereignty doctrine maintained

Joint investigative teams of Europol and Member States authorities

Europol operations shall be carried out in liason with and in agreement with the Member States in whose territory the operation takes place


Summarising remarks of the Constitutionalisation and Evolution The draft constitutional treaty represents a direct

continuity for the gradual development which already has taken place

The radical change would be the supra-national legislative powers of the Union and qualified majority voting concerning criminal procedure and substantive criminal law in limited but fairly wide areas

Many mechanisms put in place to maintain inter-governmental features of the European Area of Freedom, Security and Justice in criminal matters

Differentiation and pluralism of criminal justice system is the picture of the future

Theoretically the model of multi-layered governance is followed. There is a particular and fairly occasional mixture of universalist and particularist elements in the Constitutional system

The strengthened role of the European Commission will lead to better law-making and to a more rational policy-making provided that the Commission invests enough attention and human resources to the field. Attainment of that requires changes in the Commission and in its culture.


Optimal legal communications and the system-building in penal law

How the law and regulatory policy should be formulated and which professional stance the criminal law specialists should take

General criteria rule of law -principles

human dignity and inviolability rights and freedoms of the individual

Efficiency of human rights and remedies protection of individual rights in international networks

The following activities / agents of legal system have particular roles; Law-drafting & law-making (legislator and government

law-drafters) Judge Legal Science & Legal education


The Legislator and the judge encounters the EU penal law Law-drafting and the Europeanisation of Penal Justice

Optimal introduction of the European elements into national legal order

The general doctrines meet the European meta-principles and special demands

Legislator is the main addressee of the EU law Judge

The role of ECJ in the interpretation of law Application of sanction norms in the directives /

framework laws; not against the individual Regulations/European laws directly applicable;

principle of the legal efficiency of Community law Procedure

effet utile of European law Lawyer and legal science and education: a European and

International Criminal lawyer needed

lecture reader for the series of lectures part iv

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