Principles Of Criminal Law PDF

09.10.2024 Principles of Criminal Law Principle of Legality and European Criminal Law Wednesday 2nd October 2024 4 p.m. Niklas Lauer, University of Trier...

09.10.2024 Principles of Criminal Law Principle of Legality and European Criminal Law Wednesday 2nd October 2024 4 p.m. Niklas Lauer, University of Trier [email protected] 1 Course Content Principle of Legality General Idea Historical Background Art. 7 ECHR European Criminal Law Terminology and Introduction Supranational European criminal law Influence of EU-Law on national law Law enforcement through EU-Institutions ECHR 2 1  09.10.2024 Course Content Principle of Legality General Idea Historical Background Art. 7 ECHR European Criminal Law Terminology and Introduction Supranational European criminal law Influence of EU-Law on national law Law enforcement through EU-Institutions ECHR 3 Principle of Legality 4 2  09.10.2024 Principle of Legality A is a German citizen and on visit in Rome, Italy. After a long day with lots of sightseeing he decides to order a cappuccino in the afternoon. After doing so at a Café, he is arrested by a carabinieri, who tells him that ordering a cappuccino in the afternoon is an offence under Italian law. Later he is therefore convicted by an Italian court. 5 Principle of Legality – General Idea Rule of Law Judicial safety of citizens Predictability of criminal offences and punishment Separation of power 6 3  09.10.2024 Principle of Legality – General Idea Art. 22 Rome Statute of the International Criminal Court 1. A person shall not be criminally responsible under this Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court. 2. The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted. 3. This article shall not affect the characterization of any conduct as criminal under international law independently of this Statute. 7 Principle of Legality – General Idea Art. 15 International Covenant on Civil and Political Rights 1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby. 2. Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations. 8 4  09.10.2024 Principle of Legality – General Idea Art. 7 European Convention on Human Rights 1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. 2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations. 9 Principle of Legality – Historical Background Cesare Beaccaria, Dei delitti e delle pene (1764) Several proposals for rational principles in criminal law Le Baron de Montesquieu, De L’Esprit des Loix (1748) Separation of power 10 5  09.10.2024 Principle of Legality – Historical Background Art. 8 Déclaration des Droits de l’Homme et du Citoyen (1789) ‘The law should establish only penalties that are strictly and evidently necessary, and no one can be punished but under a law established and promulgated before the offense and legally applied,’ Paul Johann Anselm Ritter von Feuerbach, Lehrbuch des gemeinen in Deutschland gültigen peinlichen Rechts (1801) Nulla poena, nullum crimen sine lege 11 Principle of Legality – Art. 7 ECHR Art. 7 European Convention on Human Rights 1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. 2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations. 12 6  09.10.2024 Principle of Legality – Art. 7 ECHR Nature of ECHR Treaty by sovereign states in international law Institution: Council of Europe Implemented: 1949 Currently 46 member states, not only EU members  Binds them only 13 Principle of Legality – Art. 7 I ECHR General Basics ‘No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.’ Nullum crimen sine lege Nulla poena sine lege  Art. 7 I ECHR  Art. 7 II ECHR 14 7  09.10.2024 Principle of Legality – Art. 7 I ECHR General Basics Nullum crimen, nulla poena sine lege scripta praevia certa stricta Only written Principle of Maximum Prohibition law non- certainty of analogy retroactivity 15 Principle of Legality – Art. 7 I ECHR General Basics Note: Art. 15 ECHR 1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law. 2. No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision. 16 8  09.10.2024 Nullum crimen sine lege ‘Criminal Offence’ Autonomous convention meaning Engel v. The Netherlands: ‘If the contracting States were able at their discretion to classify an offence as disciplinary instead of criminal, or to prosecute the author of a “mixed” offence on the disciplinary rather than on the criminal plane, the operation of the fundamental clauses of Articles 6 and 7 would be subordinated to their sovereign will.’  Engel-Criteria to define ‘criminal offence’ 17 Nullum crimen sine lege ‘Criminal Offence’ Engel-Criteria National classification of the offence Nature of the offence itself Degree of severity of the penalty to which the offender is liable 18 9  09.10.2024 Nullum crimen sine lege ‘Criminal Offence’ Prosecution as ‘offence’? Prosecution that does not lead to a conviction, or has not yet done so, cannot raise an issue under Article 7 Does not apply to judicial decisions in civil law In September 1979 the Antwerp Commercial Court adjudicated the applicant (A) bankrupt under the Belgian commercial code. A raised an objection and established that he had lost the quality of trader prior to the adjudication. ECtHR: No application of Art. 7 ECHR 19 Nullum crimen sine lege Requirement of legal basis Individual must be protected against arbitrariness by a judge Principle constrains the judge never to rely on usage or custom in the creation of a criminal charge Judge as ‚bouche de la loi‘ Difference between common law and civil law systems Civil law: written legal basis Common law: judges are entitled to continue to apply criminal charges as they did in the past But: No freedom to create new criminal charges (stare decisis) Nevertheless: Greater freedom for judges with respect to interpretation of the charges 20 10  09.10.2024 Principle of Legality Background Rule of Law Judicial safety of citizens Separation of power Art. 7 ECHR Nature of ECHR ECtHR 21 Principle of Legality – Art. 7 I ECHR General Basics ‘No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.’ Nullum crimen sine lege Nulla poena sine lege  Art. 7 I ECHR  Art. 7 II ECHR 22 11  09.10.2024 Principle of Legality – Art. 7 I ECHR General Basics Nullum crimen, nulla poena sine lege scripta praevia certa stricta Only written Principle of Maximum Prohibition law non- certainty of analogy retroactivity 23 Nullum crimen sine lege ‘Criminal Offence’ Meaning of ‘Criminal Offence’  Disciplinary Offence Engel-Criteria Prosecution (-) Civil Law Verdict (-) Engel-Criteria National classification of the offence Nature of the offence itself Degree of severity of the penalty to which the offender is liable 24 12  09.10.2024 Nullum crimen sine lege Requirement of legal basis Individual must be protected against arbitrariness by a judge Principle constrains the judge never to rely on usage or custom in the creation of a criminal charge Judge as ‚bouche de la loi‘ Difference between common law and civil law systems Civil law: written legal basis Common law: judges are entitled to continue to apply criminal charges as they did in the past But: No freedom to create new criminal charges (stare decisis) Nevertheless: Greater freedom for judges with respect to interpretation of the charges 25 Nullum crimen sine lege Requirement of legal basis – ‘law’ ‚law‘: autonomous meaning under ECHR Legislation Judge-made law Primary law Delegated law (Kafkaris v. Greece) 26 13  09.10.2024 Nullum crimen sine lege Requirement of legal basis – ‘law’ Case No. 1 Streletz, Kessler and Krenz v. Germany The three applicants (Streletz (S), Kessler (K) and Krenz (Kr)) occupied senior positions in the government and party apparatus of the German Democratic Republic (GDR or East Germany) that was responsible for orders to border guards to arrest or, if necessary, ‘annihilate’ border violators and to protect the border ‘at all costs’. During this time a large number of individuals were killed by GDR border guards by shooting or by mines as they tried to cross the border to West Germany at the time of the Berlin Wall. After the downfall of the GDR S, K and Kr had been convicted by a German court of offences of incitement to commit intentional homicide and sentenced to five to seven years imprisonment under the law of the GDR that applied in the GDR, when they committed their offences and which the courts of the unified Germany continued to apply. S, K and Kr argued that GDR ‘state practice’ – by way of the orders to border guards referred to above for which they shared responsibility – had superseded that law and justified their acts. 27 Nullum crimen sine lege Requirement of legal basis – ‘law’ Violation of Art. 7 I ECHR? ECtHR: ‘law’ does not include ‘state pratice’ that is inconsistent with a state’s written or judge- made law and its international human rights obligations Also GDR was formally committed to respecting human rights 28 14  09.10.2024 Nullum crimen sine lege Requirement of legal basis – ‘law’ Qualitative requirements of ‘law’ Accessibility Foreseeability individual must be able to know from the wording of the relevant provision and, if need be, with the court’s interpretation of it, what acts and omissions will make him criminally liable and what penalty will be imposed Criminal law must not be extensively construed to the accused’s detriment But: there will always be a need for elucidation of doubtful point and for adaptation to changed circumstances. Progressive development of the criminal law through judicial- lawmaking is a well-entrenched and necessary part of legal tradition (C.R. v. United Kingdom) 29 Nullum crimen sine lege Requirement of legal basis – ‘law’ Case No. 2 C.R. v. United Kingdom The applicant (A) was found guilty of attempting to rape his wife when he attempted to have sexual intercourse with her without her consent after she had left the matrimonial home. A relied during his trial on the long established common law exception to rape whereby a husband could not be found guilty of raping his wife. 30 15  09.10.2024 Nullum crimen sine lege Requirement of legal basis – ‘law’ Foreseeability  Evolution: it was possible to foresee the criminal charge thanks to the change of social attitude and social culture  Subjective: it was possible to foresee the criminal charge thanks to the peculiar abilities of the applicant  Objective: it was possible to foresee the criminal charge thanks to the clarity of the relevant legal basis (law and case law) 31 Nullum crimen sine lege Lex certa Citizen knows what sort of conduct will render him liable to criminal prosecution But: legislator has tendency to be concerned with many problems in order to improve the well-being of his fellow citizens and is consequently confronted with some very complex questions: Vague wording in criminal laws allows judge more freedom to act On the other side: requirement of specific wording, which create risk of creating loopholes 32 16  09.10.2024 Nullum crimen sine lege Lex stricta Condition is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the national courts’ interpretation of it, what acts and omissions will make him liable.  prohibition of analogy 33 Nullum crimen sine lege Non-retroactivity of offences Behaviour must constitute an offence at the moment when it was committed Exception: the new law is more favourable to the defendant ‘under national or international law’ If transposition of international law into national law is required and this transposition has not yet been made, the offence will not be punishable 34 17  09.10.2024 Nulla poena sine lege ‘Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.’ Autonomous meaning of ‘penalty’ 35 Nulla poena sine lege Case No. 3 Welsh v. United Kingdom In 1986 the applicant (A) was arrested and later convicted of criminal offences involving drug trafficking. He was given a twenty-two-year prison sentence and a confiscation order was made under the Drug Trafficking Offences Act 1986, which came into force in 1987. The order was for the payment of £ 59,000 in default of which he would receive a further two- year prison sentence. 36 18  09.10.2024 Nulla poena sine lege 37 Nulla poena sine lege Violation of Art. 7 I 2 ECHR? Heavier penalty imposed than the one that was applicable at the time the criminal offence was committed? Penalty? Autonomous meaning, independent of the characterization under domestic law Measure does not necessarily need to be imposed following conviction for a criminal offence Other factors: Nature and purpose of the measure in question Characterisation under national law Procedures involved in the making, implementation of the measure Severity 38 19  09.10.2024 Nulla poena sine lege UK’s argument: reparative, but not punitive order ECtHR: aims of reparation are consistent with a punitive purpose and may be seen as constituent elements of the very notion of punishment Heavier penalty? (+) Violation of Art. 7 I 2 ECHR (+) 39 Nulla poena sine lege Case No. 4 Adamson v. United Kingdom The applicant (A) was convicted of criminal offences involving sexual abuse. After the conviction the Sex Offenders Act entered into force and required any person convicted after its implementation or any person already serving a sentence of imprisonment for such an offence at the date of commencement to register with the police and keep them informed of any change of name or address after his release from prison. Any failure to register constituted a criminal offence. 40 20  09.10.2024 Nulla poena sine lege Violation of Art. 7 I 2 ECHR? Heavier penalty imposed than the one that was applicable at the time the criminal offence was committed? Penalty?  ECtHR: purpose of the act was not to punish sex offenders, but to contribute towards a lower rate of re-offending. Furthermore: obligation to register was imposed with no additional procedure Although failure to register constituted a criminal offence, punishable by imprisonment, independent proceedings would have to be brought against a defaulter in which his degree of culpability in defaulting would be taken into account in sentencing 41 Principle of Legality – Art. 7 I ECHR Autonomous meaning of ‚law‘ ECtHR: ‘law’ does not include ‘state pratice’ that is inconsistent with a state’s written or judge-made law and its international human rights obligations Interpretation of law may change, but: forseeability required (see C.R. v. United Kingdom) Lex certa: the individual can know from wording of relevant provision and, if need be, with assistance of national courts’ interpretation, what acts and omissions will make him liable. 42 21  09.10.2024 Principle of Legality – Art. 7 I ECHR Autonomous meaning of ‚penalty‘ independent of the characterization under domestic law Measure does not necessarily need to be imposed following conviction for a criminal offence Potentially relevant factors (see Welsh v. United Kingdom) Nature and purpose of the measure in question Characterisation under national law Procedures involved in the making, implementation of the measure Severity 43 Nulla poena sine lege Case No. 5 Del Rio Prada v. Spain The applicant (A) was born in 1958. In eight separate sets of criminal proceedings, A was sentenced for being a member of a terrorist organization, for illegal possession of weapons, for possession of explosives as well as for fatal attack and murder. In all, the terms of imprisonment amounted to over 3,000 years. The Audiencia Nacional fixed the maximum term to be served by A in respect of all her prison sentences combined at thirty years. During the imprisonment, A applied for remission of sentence for work done in detention, implying a substantial reductions of the term to be served up to a third of the total sentence. However, the Audiencia Nacional rejected that proposal, based on a new precedent (known as the Parot doctrine set by the Supreme Court in its judgment of 28th February 2006). According to this new approach, sentence adjustments (beneficios) and remissions were no longer to be applied to the accumulative maximum term of imprisonment of thirty years, but instead to the absolute total term of sentence. 44 22  09.10.2024 Nulla poena sine lege Violation of Art. 7 I 2 ECHR?  Retroactive imposition of an additional penalty that could not merely be described as a measure relating to the execution of the sentence?  ECtHR: While A was serving her prison sentence, the applicant had every reason to believe that the penalty imposed was the thirty-year maximum term, from which any remissions of sentence for work done in detention would be deducted  At the time when A committed the offences, the relevant Spanish law, including case-law, was formulated with sufficient precision to enable the applicant to discern, to a degree that was reasonable, the scope of the penalty imposed on her, regarding the maximum term of thirty years. 45 Nulla poena sine lege Violation of Art. 7 I 2 ECHR?  The application of the Parrot doctrine was no reasonably forseeable  Violation of Art. 7 I 2 ECHR in the forms of a retroactive application of criminal law 46 23  09.10.2024 Art. 7 II ECHR Article 7 ‘shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.’ Phrase ‘general principles of law recognised by civilised nations’ is taken word for word from Art. 38 of the Statute of the International Court of Justice, in which it identifies a third formal source of public international law 47 Art. 7 II ECHR Purpose: to provide that if there is no treaty binding upon the parties to a dispute and if no rule of customary international law based upon state practice applies, recourse may be had to ‘general principles of recognised by civilised nations’, i.e. by the states members of the international community, to fill the gap in internation law rules. Interesting: Art. 7 ECHR refers to ‘nations’ generally: it is not limited to the legal systems of the contracting parties to the Convention, to which the Strasbourg authorities primarily refer when looking for standards in the context of other articles which make no reference to national law. 48 24  09.10.2024 Art. 7 II ECHR  Historical background: intention is, to make clear that Art. 7 does not affect laws which, under the very exceptional circumstances at the end of the second world war, were passed to punish war crimes, treason and collaboration with the enemy, and has been held to apply to laws punishing crimes against humanity committed then also. 49 European Criminal Law 50 25  09.10.2024 European Criminal Law Introduction and Terminology 51 Terminology and Introduction European criminal law in strict sense  European Criminal Law Act (-) European criminal law in wider sense European criminal law that influences national criminal law (+) ECHR 52 26  09.10.2024 Terminology and Introduction EU Institutions Member States European Council Council of the EU European European General Court (Art. 15 TEU) (Art. 16 TEU) Parliament Commission European Court (Art. 14 TEU) (Art. 17 TEU) of Justice (Art. 19 TEU) 53 Terminology and Introduction EU Law Primary Law Treaties Treaty on the European Union (TEU) Treaty on the Functioning of the European Union (TFEU) Charter of Fundamental Rights of the European Union (CFR) Binds EU-Institutions Binds member states while executing EU-Law 54 27  09.10.2024 Terminology and Introduction EU Law Secondary Law Regulation: becomes immediately enforceable as law in all member states Directives: require member states to achieve a particular result without dictating the means of achieving that result Decision: binding in its entirety. A decision which specifies those to whom it is addressed is only binding on them Recommendations 55 Terminology and Introduction EU Law Relationship between national law and EU-Law Parallelism of national law and EU-Law Primary of EU-Law ECJ: EU-Law has priority over any contravening national law, including constitution of a member state itself 56 28  09.10.2024 European Criminal Law Supranational European Criminal Law 57 Supranational European Criminal Law Autonomous interpretation  Criteria: o Repressive instead of preventive purpose o Possibility of imprisonment o Socio-ethical judgment of unvalue o Registration o Prohibition of reformatio in peius in appeal proceedings o Principle of Legality and Principle of Liability 58 29  09.10.2024 Supranational European Criminal Law EU Criminal Law in wider sense  Financial sanctions by EU-Institutions o e.g.: Art. 23 I Regulation No. 1/2003, Art. 145 II Regulation No. 1268/2012  Loss of rights o e.g.: Art. 64 IV lit. d Regulation No. 1306/2013 (exclusion from the right to participate in or benefit from the aid scheme or support measure or other measure concerned) 59 Supranational European Criminal Law EU Criminal Law in strict sense  In general: no european criminal code  Art. 30 Statute of the Court as EU-Law offense? o No direct application  Not concrete enough  Requires measures by legislative of member states  Discretion of member states 60 30  09.10.2024 Supranational European Criminal Law EU-Competences concerning judicial cooperation in criminal matters  Art. 82 TFEU o Law concerning criminal procedure  Cross-border cooperation (Extradition, judicial assistance)  Harmonisation of member states’ procedural law  Art. 83 TFEU o Minimums of criminalization of severe, cross-border crime  Art. 85, 86 TFEU o Eurojust, European Public Prosecutor’s Office 61 Supranational European Criminal Law EU-Competences concerning judicial cooperation in criminal matters  Art. 87 TFEU o Cooperation of member states’ police (especially exchange of information)  Art. 88 TFEU o Europol  Art. 89 TFEU o Cross border investigations 62 31  09.10.2024 European Criminal Law Influence of EU-Law on national law 63 Influence of EU-Law on national law Influence by primary law  Minimum of criminalisation  Minimum of individual freedom  Especially: ‘four freedoms’ (Art. 26 ff. TFEU) o Of goods o Of capital o To establish and provide services o Of labour  Loyalty towards EU-Law: Art. 4 III TEU o Violation of EU-Law: member states must provide effective, proportionate and deterrent sanctions 64 32  09.10.2024 Influence of EU-Law on national law Influence by primary law Case No. 6 Dassonville A imports Scottish whisky from France to Belgium. The whisky has been legally imported into France. However, Belgian law requires a certificate of origin from the British customs authorities for importation. A is therefore charged in Belgium for violating the import regulations. 65 Influence of EU-Law on national law Influence by primary law  Violation of import restrictions (+)  But: Violation of Art. 34 AEUV? 66 33  09.10.2024 Influence of EU-Law on national law Influence by primary law  Violation of import restrictions (+)  But: Violation of Art. 34 AEUV? o Freedom of goods/measures having equivalent effect o Requirement of certificate of origin is likely to restrict inner European trade o No justification o Therefore: specific Belgian law not applicable 67 Influence of EU-Law on national law Influence by secondary law  Art. 83 I TFEU: combating cross border crime o EU as area of freedom, security and justice  Art. 3 II TEU: Prevention and Combatting of Crime as Objective of the EU  Art. 67 III AEUV: Realising objective by harmonizing criminal law o Minimum standards concerning cross border and severe crime (Art. 83 I 1 TEU) 68 34  09.10.2024 Influence of EU-Law on national law Influence by secondary law o Important areas of harmonisation  Directive 2017/1371/EU: Protecting financial interests of the EU  Bribery in private sector (Abl.EU 2003 No. L 192/54)  Money Laundering (Directive 2018/843/EU)  Terrorism (Directive 2017/541/EU)  Sexual abuse of children (Directive 2011/93/EU) 69 Influence of EU-Law on national law Influence by secondary law  Art. 83 II TFEU: competences for specific policy areas o General clause for any policy area in which the EU has already adopted (non-criminal) harmonization measures 70 35  09.10.2024 Influence of EU-Law on national law Interpretation in conformity with EU-Law  Loyalty (Art. 4 III EUV)  To prevent collision of national law with EU-Law 71 European Union Criminal Law  European Criminal Law in strict sense vs. European Criminal Law in wider sense 72 36  09.10.2024 European Union Criminal Law Relationship between national law and EU-Law Parallelism of national law and EU-Law Primary of EU-Law ECJ: EU-Law has priority over any contravening national law, including constitution of a member state itself 73 European Union Criminal Law ‚Principle of Conferral‘ (Art. 4 I TEU) 74 37  09.10.2024 Art. 83 TFEU 75 e.g.: Art. 2 Framework Decision 2003/568 76 38  09.10.2024 In Comparison: Art. 445-1 Code penal (F) 77 In Comparison: § 299 I No. 2 StGB (D) 78 39  09.10.2024 European Criminal Law Law enforcement through EU-Institutions 79 Law enforcement through EU- Institutions Art. 67 TFEU Cooperation between police Art. 67 I TFEU: Area of Freedom, Security and judicial authorities and Law Art. 67 III TFEU: The Union shall endeavour to ensure a high level of security through measures to prevent and combat crime, Mutual recognition of (…) and cooperation between police and Judgements judicial authorities and other competent authorities, as well as through the mutual recognition of judgments in criminal matters and, if necessary, through the Harmonizing criminal approximation of criminal laws. procedure rules 80 40  09.10.2024 Law enforcement through EU- Institutions Exchange of information Cooperation between police and judicial authorities Harmonisation of national Mutual recognition of criminal procedure law judgment 81 Law enforcement through EU- Institutions Exchange of information Cooperation between police and judicial authorities Harmonisation of national Mutual recognition of criminal procedure law judgment 82 41  09.10.2024 Exchange of Information Art. 92 ff. Schengen Convention II: Schengen Information System (SIS) 1990: adopted as international treaty Treaty of Lisbon: implementation in EU-Law Further regulation on exchange of information: Treaty of Prüm (concerning DNA and fingerprints) (2007) Criminal records register (2008) 83 Schengen Information System (SIS) Information about following groups of persons: Wanted for arrest and subsequent expulsion Nationals of a non-Schengen state who are to be denied entry Minors, or individuals at risk of disappearance, or mentally ill patients, with the aim of ensuring their protection Wanted as defendants or witnesses in a court proceeding, or whose presence is required for the announcement of the judgment Individuals who need to be monitored or controlled due to reasonable suspicion that they might commit future offenses 84 42  09.10.2024 Schengen Information System (SIS) Name, surname, Is this person armed? possible alias names Possible objective and Is this person violent? permanent physical characteristics Date and place of birth, Action to be taken Gender, Nationality Reason for this entry 85 Law enforcement through EU- Institutions Exchange of information Cooperation between police and judicial authorities Harmonisation of national Mutual recognition of criminal procedure law judgment 86 43  09.10.2024 Mutual recognition of judgments Mutual Recognition of Judgments Mutual Trust Acceptance of Legal Differences 87 Mutual recognition of judgments Limitations of the principle of mutual recognition Limits of mutual trust and national characteristics Respecting national identities (Art. 4 II TEU) Ordre public? ECJ: No national ordre public due to efficency reasons but european ordre public (e.g.: european fundamental rights) 88 44  09.10.2024 Mutual recognition of judgments - European Arrest Warrant (EAW) Scope of the EAW (Art. 2 2002/584/JHA)  for acts punishable by law of issuing Member State by custodial sentence or detention order for maximum period of at least 12 months  or, where a sentence has been passed or a detention order has been made, for sentences of at least four months 89 Mutual recognition of judgments - European Arrest Warrant (EAW) Case No. 7 EJC, 5.4.2016 – C-404/15, C-659/15 The Higher Regional Court (OLG) of Bremen had to rule on a European Arrest Warrant issued by a Hungarian investigating judge against the Hungarian citizen Pál Aranyosi, who was accused of burglaries in Hungary and was located in Bremen. The OLG Bremen expressed doubts regarding the human rights compliance of the transfer of the accused to the Hungarian judicial authorities. The European Court of Human Rights (ECtHR) had convicted Hungary for the overcrowding of its prisons (Article 3 ECHR). Furthermore, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment had already determined that prison conditions in Hungary did not meet the minimum human rights standards. The OLG Bremen referred the question to the European Court of Justice (ECJ) as to whether the execution of a European Arrest Warrant would be inadmissible if, due to the prison conditions in the issuing Member State, it would lead to a violation of Article 4 of the Charter of Fundamental Rights of the European Union (CFR). 90 45  09.10.2024 Mutual recognition of judgments - European Arrest Warrant (EAW) Case No. 7 EJC, 5.4.2016 – C-404/15, C-659/15 The Higher Regional Court (OLG) of Bremen had to rule on a European Arrest Warrant issued by a Hungarian investigating judge against the Hungarian citizen Pál Aranyosi, who was accused of burglaries in Hungary and was located in Bremen. The OLG Bremen expressed doubts regarding the human rights compliance of the transfer of the accused to the Hungarian judicial authorities. The European Court of Human Rights (ECtHR) had convicted Hungary for the overcrowding of its prisons (Article 3 ECHR). Furthermore, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment had already determined that prison conditions in Hungary did not meet the minimum human rights standards. The OLG Bremen referred the question to the European Court of Justice (ECJ) as to whether the execution of a European Arrest Warrant would be inadmissible if, due to the prison conditions in the issuing Member State, it would lead to a violation of Article 4 of the Charter of Fundamental Rights of the European Union (CFR). 91 Mutual recognition of judgments - European Arrest Warrant (EAW) ‘The principle of mutual recognition on which the European arrest warrant system is based is itself founded on the mutual confidence between the Member States that their national legal systems are capable of providing equivalent and effective protection of the fundamental rights recognised at EU level, particularly in the Charter.’ However: limitations to the principal of mutual recognition and mutual trust between Member States are possible under exceptional circumstances Member States are obliged to assess existence of a real risk of inhuman or degrading treatment of prisoners in issuing Member State if there are indications of such a risk. Execution of such an arrest warrant must not lead to inhuman or degrading treatment of person concerned. 92 46  09.10.2024 Mutual recognition of judgments - European Arrest Warrant (EAW) Issuing Member State is required to provide information to executing authority If, on basis of this information, there is a real risk of inhuman or degrading treatment, execution of EAW must be postponed, not abandoned. 93 Mutual recognition of judgments - Further EU-Regulation Mutual recognition of pre-trial supervision measures Legal assistance regarding evidence Directive 2014/41/EU regarding the European Investigation Order in criminal matters "Whether" the measure is to be taken: governed by the law of the issuing state ("order," not "request"). "How" the measure is to be executed: generally according to the law of the executing state. Grounds for refusal, Article 11, particularly ne bis in idem (double jeopardy), violation of the Charter of Fundamental Rights (CFR). Requirement of dual criminality, but with a "positive list" in Annex D. Mutual assistance in the enforcement of sanction decisions 94 47  09.10.2024 Mutual recognition of judgments - Ne bis in idem Art. 4 ECHR Protocol Nr. 7 No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State. Art. 50 CFR No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law. Art. 54 Schengen Agreement A person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party. 95 Law enforcement through EU- Institutions Exchange of information Cooperation between police and judicial authorities Harmonisation of national Mutual recognition of criminal procedure law judgment 96 48  09.10.2024 Harmonisation of criminal procedure law Art. 82 II TFEU 97 European Criminal Law European Convention on Human Rights 98 49  09.10.2024 ECHR Influences national legal systems ECHR Influences interpretation European ordre public of CFR 99 ECHR and EU 100 50  09.10.2024 ECHR and EU Possibility and Obligation of Accession (Art. 6 II TEU) Currently not at member of Council of Europe  EU can not be sued before ECtHR, judgments of the General Court and the ECJ are not reviewable by the ECHR But: Art. 6 I TEU: EU recognizes the rights, freedoms and principles set out in the ECHR, ‘which shall have the same legal value as the Treaties’ ECHR as primary EU-Law Art. 6 III TEU: ECHR Provisions as general principle of EU Law Art. 52 III CFR: ‘Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.’ 101 ECHR Principles Case No. 8 ECtHR, No. 22978/05 A kidnapped a child in order to extort ransom from the family and killed the child. A was arrested. The police officers assumed that the child was still alive. Therefore, Policeman P threatened A with the use of physical force and described various injury scenarios that he would carry out if A did not reveal the location of the child. A then disclosed the location of the body. P is later convicted for the threats (a warning with a suspended sentence under § 59 StGB). 102 51  09.10.2024 ECHR Principles 103 ECHR Principles Conviction of Germany Loss of victim status (Art. 34 ECHR)? Recognition of violation of Art. 3 ECHR by conviction (acknowledgement of Germany by convicting P) Reparation through conviction of P? ECtHR: In this case, P’s mild sentence (a warning with a suspended sentence under § 59 StGB) might be considered insufficient to meet the standards of effective redress for an Article 3 violation. 104 52  09.10.2024 ECHR – Fundamental Rights relevant for criminal law Art. 2 ECHR: right to life (including abolition of capital punishment) Art. 3 ECHR: freedom from torture and ill-treatment Art. 5 ECHR: liberty and security (ending excessive pretrial detention) Art. 6 ECHR: fair trial Art. 7 ECHR: Principle of Legality Art. 8 ECHR: Right to privacy Art. 18 ECHR: Limitation on use of restrictions on rights Art. 2 I 7th Protocol: Right to appeal Art. 4 I 7th Protocol: ne bis in idem Art. 1 1st Protocol: Right of property Art. 1 6th Protocol; Art. 1 13th Protocol: abolition of capital punishment 105 Art. 6 ECHR – Principle of fair trial (1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic Fair trial society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. (2) Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to Presumption of law. innocence (3) Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; Minimum (c) to defend himself in person or through legal assistance of his own choosing or, if he has not standards sufficient means to pay for legal assistance, to be given it free when the interests of justice so for criminal require; (d) to examine or have examined witnesses against him and to obtain the attendance and procedure examination of witnesses on his behalf under the same conditions as witnesses against him; (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court. 106 53  09.10.2024 Art. 6 ECHR – Principle of fair trial ‘criminal charge’  autonomous interpretation (Engel criteria) Art. 6 I ECHR – Requirements for judicial proceedings Access to court and judge Independent court Impartial court Court established by law Public hearing Within a reasonable time 107 Art. 6 I, III ECHR – Right to be informed equally Right to be informed equally Equal rights of information and to make a statement Adequate time and facilities for the preparation of his defence 108 54  09.10.2024 Art. 6 III ECHR – nemo tenetur Right to remain silent without negative consequences Right to proper legal instruction Freedom from coercion (and possibly deception) Criteria Nature and severity of coercion for the purpose of obtaining evidence Weight of public interest in prosecuting the crime (→ actual wrongdoing → indicator: expected punishment) Appropriate procedural safeguards (legal basis and legal protection) Use of the obtained evidence 109 Art. 6 ECHR Case No. 9 J was arrested on suspicion of drug trafficking. During the arrest, police officers observed him swallowing a plastic bag. The administration of emetics was ordered. J refused, so he had to be restrained by two police officers, and a doctor introduced the emetics via a nasogastric tube. J vomited, revealing a bag containing a small amount of cocaine, which was used as evidence. Is Article 6 of the European Convention on Human Rights (ECHR) violated? 110 55  09.10.2024 Art. 6 ECHR Case No. 9 J was arrested on suspicion of drug trafficking. During the arrest, police officers observed him swallowing a plastic bag. The administration of emetics was ordered. J refused, so he had to be restrained by two police officers, and a doctor introduced the emetics via a nasogastric tube. J vomited, revealing a bag containing a small amount of cocaine, which was used as evidence. Is Article 6 of the European Convention on Human Rights (ECHR) violated? 111 Art. 6 I, III ECHR – nemo tenetur Nemo tenetur mainly applies to right to remain silent. does not extend to evidence that accused cannot avoid providing, such as samples of breath, blood, urine, or body tissue, which are present independently of accused's will. Fair Trial In cases of torture: The principle is always applicable In cases of other violations of Article 3 ECHR: The circumstances of the individual case must be considered. Public interest in case involving street dealer who sold only a small amount of drugs and was sentenced to six months probation, the public interest in prosecuting such a case did not outweigh the need to exclude evidence obtained through coercive means. 112 56  09.10.2024 Principles of Criminal Law Principle of Legality and European Criminal Law Thank you for your attention! Niklas Lauer, University of Trier [email protected] 113 57