2002 European Legal Education

Ari-Matti Nuutila:  European Criminal Law and Legal Education. In Sybille Fritsch-Oppermann & Bernd Oppermann (Hrsg.): Die Ausbildung künftiger Juristen und Juristinnen und die europäische Rechtsharmonisierung. Loccum 2002, s. 57–66.


 

EUROPEAN CRIMINAL LAW AND LEGAL EDUCATION

Professor Ari-Matti Nuutila, University of Turku, Finland

 

                                                           

1.    The Development of “European” Criminal Law


Introduction. – Criminal law has traditionally been seen as the last instance (or fortress) of national sovereignty. Even today the EC Treaty basis for a large scale harmonization and integration of criminal law is an unsettled question. However, in recent years the European Union has introduced many developments relating to criminal law, which are important both from a theoretical as well as from a practical point of view.

The obvious reason is the free movement of people, goods and capital, which inevitably cause criminals and criminality to become more international. Crimes more frequently have international effects and criminals move from one Member State to another in increasing numbers.

Furthermore, Europe is confronted by a type of criminality which develops not only in the European Union, but is directed against the European Union and involves various types of transgressions which must be punished by means of clear and precise European law. This is especially the case with the “state-like” institutions of the European Union (the budget, the European civil service, autonomous bodies and institutions, as well as a set of specific legal rules). The situation may become even less tolerable with the launching of the Euro, marking a new stage in the process of European integration.

This development can be described as a movement from national criminal law and national criminal procedure to European criminal law and European criminal procedure in the following way (see the FIGURE on the last page).

National criminal law and national legal procedure. – At the beginning of European integration the emphasis was on broadening the scope of the application of national laws to crimes committed abroad as well as simplified mutual assistance in criminal matters. From a criminal law point of view, this option is rather clear and unproblematic. The national criminal and procedural laws are applied to all cases dealt in the national courts, irrespectively of where the crime has been committed. If there is enough trust in foreign legal systems, mutual assistance in different areas, e.g., in police investigation, in the pre-trial phase, in court proceedings, and in the transfer of prisoners and other enforcement of punishments should not be a major problem.

For a long time this had been the Nordic strategy of integration. Before expanding the integration of the criminal laws, the procedural obstacles to mutual cooperation were diminished as much as possible. Within the European Union, there is still a lot to be done in this respect.

This strategy has not been sufficient for the European Commission. Especially in the field of EU subsidy frauds and EU tax frauds, some national legal systems seem to have been clearly too ineffective in the 1980s. The national control mechanisms were inadequate. In some countries the financial interests of the European Communities were not protected by the criminal justice system at all. In the beginning the principle of assimilation was applied. Member States shall take the same measures to counter fraud affecting the financial interests of the Community as they take to counter fraud affecting their own financial interests. The principle, taken up by the European Court of Justice in 1989, has not had as much of an impact as previously expected.

European criminal law and national legal procedure. – The expansion of integration has taken place as a result of cooperation. Several conventions have been agreed upon and implemented in national legislation. In practise this meant that in national criminal procedure the applied criminal law was still – formally speaking – national, although originally it was European Communities legislation. The most important conventions (until now) are mentioned in the figure.

Cooperation has many virtues, but it has proved to be surprisingly inefficient and impractical in the European Union. While many of the conventions have been ratified by many Member States (and Applicant States), most of them have not come into force, as they have not been ratified by all Member States. Furthermore, the conventions usually regulate a rather limited number of legal problems. For example, the PIF Convention is limited to common definitions of tax and subsidy frauds, to the procedural system, and to centralization of procedure, whereas the transfer of proceedings from one Member State to another has been hardly developed.

National criminal law and European legal procedure. – Integration has progressed further. In the Protocols of the PIF Convention, the Money Laundering Convention and the Corruption Convention, the interpretation of Community Law was granted to the European Court of Justice. This means that at the moment the domestic legal machinery is in charge of police investigation, the prosecution, the court proceedings, and the enforcement of the punishment, the national authorities have an obligation to ask for a preliminary ruling from Luxembourg in difficult cases.

As a matter of principle, this is an extremely important step in the development of European criminal law. For the first time, not only legislative powers are delegated to the EU, but also the application of norms is partly the responsibility of the European Court of Justice. This development is at the moment proceeding rapidly as the European Court of Justice has been granted new powers in the area of criminal law.

European criminal law and European legal procedure. – The fourth step is easy to predict. If the inclusion of European law provisions in national legislation is too complex and inefficient, the alternative is the creation of a legal basis for criminal law and criminal procedure within the Union itself. The Corpus Juris project has as its goal this “ultimate” integration. The Corpus Juris will deal only with tax and subsidy fraud crimes, corruption, money laundering and the abuse of office, but in those areas it represents genuine supranational criminal legislation. For the purposes of investigation, prosecution, trial and the enforcement of sentences, the territory of the Member States of the Union would constitute a single legal area. The European Public Prosecutor (EPP) would be independent as regards both national authorities and Community institutions.

The Corpus Juris project raises the inevitable question as to how this kind of supranational criminal legislation can be enacted on the basis of present EU Treaty. At least at the moment (in October 2000) Article 280 of the EC Treaty does not seem to be sufficient for this purpose. Furthermore, the principle of legality in the national Constitutions and in the ECHR may indicate extra difficulties. Whatever the difficulties may be, the European Union level will be without a doubt the level at which the issues of European criminal law arise more frequently in the future.

Of course the discipline of “European Criminal Law” is broader than suggested here. Here I have discussed only the European Communities, and have left aside the significance of the European Convention of Human Rights, the decisions of the European Court of Human Rights as related to criminal procedure, and the role of the Council of Europe in the field of criminal policy and criminal law. Also, the role of the United Nations is left outside this presentation, although, for example, the International Criminal Court (ICC) will be one of the key issues of international criminal law in the near future.

 

2.    Should We Instruct “Domestic” and “European” Criminal Law to the Students – or the Criminal Law as “lex lata” and “lex ferenda”?


Lack of experiences. – Legal education in European criminal law confronts serious difficulties. A short view of the home pages of the Universities indicate that only a minority of the Faculties of Law have any European criminal law in their curricula. Also, those few courses found on the home pages seem to vary considerably in methods and contents. Some concentrate more on European Union legislation, some more on the national criminal law aspect. In many courses the emphasis is on European legislative procedures; in others the application of international instruments in domestic courts is the main object.

The following features of European criminal law should be kept in mind when developing legal education in European criminal law. The European criminal law is...

...(1) changing rapidly. – The figure shows how fast European criminal law is developing at the moment. Some procedures have developed slowly, some have proceeded faster than anyone expected five years ago. The University course of studies should consist at least of the following approaches.

First, a description of the law as it stands (lex lata) is of course essential. Second, the instruction should, however, also focus on a description of the short-term perspectives (lex ferenda) in view of European integration. This part of the instruction should describe the efforts of the Member States to make their legislation compatible with the acquis communautaire. Third, the long-term perspectives (lex desiderata) of European criminal legislation should also be taken into account.

The instruction of the lex lata and the lex ferenda should include all relevant sources of the law, e.g. constitutional provisions, statutes, bye-laws, “subordinate” norms or “soft law”, court decisions at both the national and European level, etc. It should neither be restricted to a “European Law” dimension nor to a “domestic” approach. In fact, we should not even discuss separately anymore European law and domestic criminal law. We should focus our attention on criminal law in force in the Member States of the European Union.

...(2) inefficient and complex. – The conventions are relatively inefficient legal instruments. Especially the transfer of proceedings and the enforcement of foreign criminal convictions has been little developed by reason of the limited number of ratifications of existing conventions and of lacking legislation permitting this type of cooperation.

In this way, “horizontal” cooperation between Member States is also extremely complex, both in terms of statutory texts and their legal basis. Some criminal law experts talk of a “legislative disaster” of conventions in the field of criminal law. Several conventions exist on the same subject or are drawn up by the same partners acting in different regional capacities (Council of Europe, Schengen countries, the Nordic Council, and the Benelux Countries).

As a result, the solution to norm conflicts should be given special emphasis in instruction. For example, in the field of extradition law the situation is now extremely difficult, even for the experts. A deep understanding of the argumentation structures and priorities of legal sources is clearly more important than a detailed knowledge of international instruments, which will be further developed in a few years anyway.

...(3) interdisciplinary. – The instruction should integrate different subjects, such as criminal law, criminal procedure, criminology and criminal policy, thus giving the students the prerequisites for an interdisciplinary approach. Furthermore, knowledge of international law and European law is necessary, as well as knowledge of comparative law.

This aspect has been promoted in the Nordic countries for a long time, when compared with the Continental tradition. Small legal cultures have always depended on each other not only in legislation, but also in legal research and legal instruction. Obviously this implies very heavy demands for the expertise of the instructors.

...(4) “problem-based”. – European criminal law has not been developed as a systematic area of law. The changes take place in a rather unsystematic way, governed by the current problems of internationalization as well as current political trends.

In practice the instruction should focus not only on general principles and structures, but also on problem-based instruction, i.e., “case seminars”, “moot court” instruction, discussion groups, and other types of the so-called “Socratic” method, where “law in books” only form a basis for how “law in action” operates.

...(5) in need of a comprehensive student text book. – At the moment there is no comprehensive textbook on European criminal law in English. This is clearly a problem in instructing European criminal law, as the course material must be based on a few scholarly articles, conventions, treaties and other legal instruments.

...(6) common to all Member States. – Finally, I want to emphasize the role of cooperation of the European Universities. The prevalent EU trends towards harmonization and unification of laws in European criminal policy require more cooperation and coordination from European universities in developing their curricula and criminal studies in general.

I have achieved the best teaching results from instruction methods which raise and discuss topics of criminal policy in multinational groups. The results could be used for unifying and harmonizing European curricula and teaching materials, allowing simultaneously the comparison of methods. I will give an example of a European module in the following section.


3.    One Example: Summer Academy in European and International Criminal Law


The experiment. – The first teaching experience in European Criminal Law was the ELPIS Workshop “International Criminal law and Human Rights” organized in Turku (Finland) from 19th to 30th July 1999. ELPIS (European Legal Practice Integrated Studies) is an international university network with partners in 24 Law Faculties situated in nearly all Member States of the European Community, Scandinavia and Switzerland. They are working together on a project of developing and realizing common courses of studies with a special European dimension.

The goal of the Workshop was to develop new teaching methods in law. Two of the instructors were from Vienna (Prof. Frank Höpfel and Assistant Professor Jo Dedeyne-Amann) and one instructor from Brussels (Researcher Peter Van der Auweraert). I was the fourth instructor and also was responsible for the Workshop to ELPIS.

The instruction consisted of case studies by the students on the basis of lectures and handouts, as well as debates on topics selected by the instructors and, as the closing event, two simulated trials prepared and presented by the students. The workshop was successful. Last summer a similar kind of a workshop was organized in Lisbon on private law issues. We will continue with a Summer Academy on European and International Criminal Law in Vienna in summer 2002.

The students. – We were fortunate to have a motivated group of approximately 25 students from all over Europe, with good prior knowledge of international criminal law and human rights and more than adequate English language skills. They seemed to react very positively, and certainly very actively, to the methods used. In discussions with the students it became evident that in many of their home faculties they had never had interactive teaching at all. Some students, who did have experiences of a similar kind of instruction at home, thought the combination of different instruction approaches in the workshop to be very valuable and rewarding.

As the students came from all over Europe, they also learned a lot from each other, especially about their respective legal systems and the different approaches to legal thinking and legal argumentation in their respective countries.  Moreover, both their oral and English language skills improved considerably as a result of the workshop. The casework in small groups and the preparation of the simulated trials also tested their ability for teamwork and legal research. They used the library and the Internet intensively. In addition to the teaching, the students were offered an extensive professional programme. The group visited, for example, the central prison of Turku, and, by request of the students, the prison mental hospital.

The instructors. – The group of instructors also represented different legal systems. Each one had his or her own particular approach to the subject matter, which meant that working together opened up new perspectives for every one of us. In practise, the instructors operated in pairs which was felt to be the ideal formula.

Obviously, interactive teaching methods are more demanding on the instructors, both in terms of preparation and in actual teaching, than traditional lecturing. The teacher must also be prepared to change and adapt the content of his instruction during the course, depending on the skills and knowledge of the students. On the other hand, this kind of instruction also proved to be more rewarding for us. We all have used the experience gained during the workshop in our subsequent teaching.

The workshop also gave us an impetus to think further about our approach to legal education. Especially in the fields of international and European law – where there are constant conflicts of law – it is extremely important that the students gain a better understanding of how to develop legal argumentation, in addition to obtaining knowledge of the law in their home countries.

 

"Acquis" and Other Instruments of the European Union in Criminal Law

 

 

Criminal Procedure

National

European



















Criminal

Law

 








National

 

- European Convention on Human Rights (1950) and its Protocols

- Draft Charter of Fundamental Rights of the European Union (28 September 2000)

- Extradition (1995-1996)

- Mutual Assistance in Criminal Matters (1959 and 29 May 2000)

- Transfer of Proceedings in Criminal Matters? (1972)

- Transfer of Sentenced Persons? (1983)

- Recognition of Final Decisions in Criminal Matters? (2001?)




 


- Preliminary Rulings by the European Court of Justice of, e.g., the PIF Convention and the Corruption Convention

- Europol?







European

 

- Money Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (1990)

- Protection of the European Communities= Financial Interests (the PIF Convention) (1995)

- Corruption (1997)

- Trafficking in Human Beings and Sexual Exploitation of Children (1997)

- Europol (1995)

- Customs and Police Information (1997)

- Protection of Witnesses? (1995)

 

- European Public Prosecutor (EPP) according to Corpus Juris 2000 (see Art. 280 (ex. 209a) and the proposed Art. 280a of the EC Treaty)


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