The Constitutionalisation and Evolution
of Penal Law and Control Policy in the
European Integration
Lecture reader for the series of lectures
Part IV
The 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
MINISTRY OF FINANCE
Counsellor, docent, Dr Tuomas Pöysti
4-7.11.2003
1
Treaty of Amsterdam and the politics of
European criminal law
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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 borderfree world and Europe. EU can provide security and for
the governments compensate the loss of governance and
control
 ultima ratio of criminal law
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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
MINISTRY OF FINANCE
Counsellor, docent, Dr Tuomas Pöysti
4-7.11.2003
2
Recent trends and achievements
in the field of substantive criminal law
and procedure
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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
MINISTRY OF FINANCE
Counsellor, docent, Dr Tuomas Pöysti
4-7.11.2003
3
The Role of the EU in Penal law
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Formation of the criminal policy is to an increasing
extent a matter of the Union
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the Union is the policy level and the national law is to
implement
Application of the EU originated penal law by the
national judges
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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
MINISTRY OF FINANCE
Counsellor, docent, Dr Tuomas Pöysti
4-7.11.2003
4
The first and third pillar approach
compared
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Co-operation in the field of criminal justice
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polity; for political symbolism
lack of coherent drafting and legislative policy
lack of adequate knowledge base
First pillar
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de facto criminal law via administrative law
blurring of the boundaries of the bodies of law; unclarity
better knowledge base and drafting procedure
established institutional rules and liabilities
MINISTRY OF FINANCE
Counsellor, docent, Dr Tuomas Pöysti
4-7.11.2003
5
The draft Constitution for Europe
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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 lawmaking
Simplification and reduction the number of different
decision-making procedures and legal instruments.
MINISTRY OF FINANCE
Counsellor, docent, Dr Tuomas Pöysti
4-7.11.2003
6
Draft Constitution for Europe and
Criminal law and procedure
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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
MINISTRY OF FINANCE
Counsellor, docent, Dr Tuomas Pöysti
4-7.11.2003
7
Section IV of part III of the Draft Treaty
on Constitution
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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
MINISTRY OF FINANCE
Counsellor, docent, Dr Tuomas Pöysti
4-7.11.2003
8
Section IV continued
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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
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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
MINISTRY OF FINANCE
Counsellor, docent, Dr Tuomas Pöysti
4-7.11.2003
9
Art. III-172 on the harmonisation
of criminal law
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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
MINISTRY OF FINANCE
Counsellor, docent, Dr Tuomas Pöysti
4-7.11.2003
10
Art. III-172 continued
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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’’.
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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
MINISTRY OF FINANCE
Counsellor, docent, Dr Tuomas Pöysti
4-7.11.2003
11
Art III-173 and 174
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Eurojust could be given powers to initiate and coordinate prosecutions to be conducted by the
Member States prosecutors in a European law (loi
européenne)
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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
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Significant resistance among the Member States,
will be dropped from the Constitutional Treaty
MINISTRY OF FINANCE
Counsellor, docent, Dr Tuomas Pöysti
4-7.11.2003
12
Section V of the part III: police cooperation
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Constitutionally recognised and strenghthened role
for the Europol
Measures of operational co-operation shall
adopted by the Council unanimously
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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
MINISTRY OF FINANCE
Counsellor, docent, Dr Tuomas Pöysti
4-7.11.2003
13
Summarising remarks of the
Constitutionalisation and Evolution
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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.
MINISTRY OF FINANCE
Counsellor, docent, Dr Tuomas Pöysti
4-7.11.2003
14
Optimal legal communications and
the system-building in penal law
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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
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Efficiency of human rights and remedies
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human dignity and inviolability
rights and freedoms of the individual
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
MINISTRY OF FINANCE
Counsellor, docent, Dr Tuomas Pöysti
4-7.11.2003
15
The Legislator and the judge encounters
the EU penal law
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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
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effet utile of European law
Lawyer and legal science and education: a European and
International Criminal lawyer needed
MINISTRY OF FINANCE
Counsellor, docent, Dr Tuomas Pöysti
4-7.11.2003
16