OG 1 - Legality, criminal law and European influx
General questions:
What European sources have influence on national criminal law?
- There is no general European criminal law.
- TFEU
o Art 82 TFEU – legal ground for judicial cooperation in criminal cases
o Art 83 TFEU – harmonization of substantial criminal law with directives
- ECHR: contains provisions which influence national criminal law (direct effect, applicable in the courts of
Belgium):
o Article 5 : right to liberty and exceptions (the right to liberty is included in legal certainty)
o Article 6: the right of a fair trail
o Article 7: nulla poena sine lege ( an element of the legality principle). Legality is a part of the legal
certainty principle
o Article 4 of protocol nr.7: a person can be trailed and convicted only once for the same criminal offence
(ne bis in idem)
o Article 8: the right of private life can also be included in the concept of legal certainty
- Framework decisions
- Directives
What is the difference between FD and Directives?
- Framework decisions: of the Court, existed before Lisbon (2009). The treaty of Lisbon has changed the type
of instruments from framework decisions to directives. FD are not made anymore but they still exist and are still
applicable. FD had to be :
o Implemented in national law
o Interpreted by national courts in line with the FD
o Limits:
NO interpretation contra legem with their own national law first limit
– ECJ Pupino: national court needs to interpret national law in line with FD
NO interpretation contra persona (meaning worsening the position of a person)
o FD are not directly applicable!
- Directives can have direct effect (in certain conditions) if it contains:
o Clear and sufficient provisions
o Specific rules that grant rights for civilians
o Transposition period is over (Van Duin case)
Then implementation is no longer required.
What is the impact of the treaty of Lisbon on criminal law?
Before Lissbon there were 3 pillars (internal market, common foreign security and policy & justice). Each pillar had its
source of law. FD and conventions were sources of the 3rd pillar. Since 2009 there are no pillars anymore. There’s no
more distinction between area’s within EU law, no more subdivision in EU law. All the sources of EU law are the same.
Also FD are no longer being made.
What is the area of Freedom Security and Justice?
AFSJ was created to ensure the free movement of persons and to offer a high level of protection to citizens. It covers
policy areas that range from the management of the European Union’s external borders to judicial cooperation in civil
and criminal matters and police cooperation. It also includes asylum and immigration policies and the fight against crime
(terrorism, organised crime, cybercrime, sexual exploitation of children, trafficking in human beings, illegal drugs, etc.).
,What are the European Union law sources?
Primary law: The main sources are TEU and TFEU, and also the Charter. The charter had already been signed (2000),
but since the Lisbon treaty it is binding, so now it is relevant. (before it was only symbolical.)
Secondary law: directives, regulations. (main sources in secondary law)
Before Lisbon the ECJ could not evaluate whether MS had proper implemented the FD enough in the 3 rd pillar. The ECJ
did not have competence. Now the Commission can start infringement proceedings against MS who don’t comply with
obligations to implement EU law.
Extra topic:
The Schengen agreement (1985): abolition of borders and free movement of persons.
= Convention about the application and Implementation of the Schengen Agreement. CISA (1990) This is for citizens
not for police officers. It is binding in the EU.
What is the role of the Charter of fundamental rights of the European Union?
The Charter confirms the human rights position of the EU, and is not intended to further amend, nor to extend the
competences of the EU. The charter is applicable when the MS act within the scope of application of EU law
(implementation, enforcement or interpretation of EU law at national level) and thereby confirms the rights of individuals
in the EU (based on the ECHR), the case law of the CJEU and other relevant principles.
Relevant articles for this lesson are:
- Art. 47 : effective remedy and fair trail
- Art. 48: presumption of innocence ( in dubio pro reo)
- Art. 49: the principle of legality and proportionality of criminal offences and penalties
- Art. 50: the ne bis in idem principle
What is the principle of legality in criminal law + how is it affected by EU law and case-law?
The principle of legality in criminal law can be summarized in one sentence: nullum crimen sine lege. The latter means
that nobody can be criminally convicted for doing or not doing something when this action or omission is not legally
acknowledged as a crime. The traditional elements of legality are:
- Non retroactivity (sine proevia lege)
- Written law (sine lege scripta)
- Preciseness (sine lege stricta)
- Democratic element (sine lege parlamentaria)
Foreseeability is an essential element of the principle of legality. A person needs to know what legal consequences are
linked to an action or an omission before the latter has taken place.
European law affect the national sources of criminal law (both procedural and substantial) and therefore the national
legislators have to change national criminal law to be in harmony with EU law. The latter has an effect on the legality
principle of MS because of the fact that the scope of this principle is different in some MS.
But due to the few areas of substantial criminal law which are harmonized by the EU, differences remain real and this
can lead to problems (EAW).
Also parts of legal certainty are found in the constitutional traditions of MS, the ECHR, EU instruments, such as the CFR
and other relevant documents, in addition to the case law of ECtHR and CJEU.
The CJEU in Advocaten voor de wereld has determined that even though art.2(2) of FD concerning the EAW does not
define the offences and the penalties on a clear way, this is not a violation of the principle of legality because FD hasn’t
got as objective to harmonize substantial criminal law and therefore that the legalization must define clearly the offences
which are listed in the article and penalties which they attract.
, What is the difference between substantive and procedural legality?
HC1
What is legal certainty?
From the national perspective: implies that a state has legislation and a legal system that protects the individual
against arbitrary measures from the state itself. (the impossibility of being prosecuted or sentenced without evidence,
equal treatment regardless of origin or social status, etc.) Next this principle also entails the efficient and predicable
application of legal rules and the legal force of judgments and judicial decisions (res judicata).
Legal certainty can be divided into formal and substantive forms:
- Formal legal certainty (predictability): the traditional legal certainty which entails that punishment, prosecution
and sentencing of criminals should be predicable and applied uniformly and in a systematic order (also the
principle of non-retroactivity)
- Substantive legal certainty (acceptability): includes that the judicial practice is ethically and morally good.
ECHR: Certain rights granted by the ECtHR are examples of legal certainty:
- Ar 5 : right to liberty and exceptions (the right to liberty is included in legal certainty)
- Art 6: the right of a fair trail
- Art 7: nulla poena sine lege. Legality is a part of the legal certainty principle
- Art 8: the right of private life can also be included in the concept of legal certainty
- Art 4 of protocol nr.7: offence (ne bis in idem)
EU law and EU criminal law: Usually associated with the protection of legitimate expectations, connected with the
enforcement and effectiveness of EU law. It constitutes a general principle of EU law.
In EU criminal law legal certainty is usually connected to the legality principle (they are intrinsically linked), thus used by
the CJEU as covering procedural rights in European cooperation situations (ne bis in idem), the prohibition of contra
legem interpretation, conform interpretation of EU law or the legality principle.
Legal certainty within the AFSJ consists of the principle of legality, the right to a fair trial, the ne bis in idem principle, and
judicial control of transnational law enforcement and criminal prosecution.
In relation to the AFSJ, legal certainty can be considered encompassing more than the legal force of judicial decisions
and consisting of more aspects than res judicata (= a matter already judged)
Legal security on EU level is the same as the national level but includes many sources and that’s why it is more difficult
and vague.
Exercise 1
Read and comment the decision of the Belgian Constitutional Court. What profile of the principle of legality is discussed?
The legality principle, stated in art. 12 & 14 of the Belgian Constitution, art. 7 ECHR states that the offences and the
penalties must be defined on a clear way so that a person can know which acts or omissions will make him criminally
liable and under which circumstances.
However, the nullum crimen, nulla poena sine lege principle does not mean that the law could not give at least some
discretion to the courts, as account had to be taken of the general nature of laws, the diversity and variability of the
circumstances and the subject areas to which they applied and new developments in the type of conduct they were
designed to punish.
The ruling is about the definition of terroristic offence. An organization said that the definition in Belgian law (art 137 SW)
was not clear enough. The constitutional court refers if this provision is in compliance with the constitution art 12 and 14,
that are articles about legality.
Art 137 SW is under title I ter, so we know it’s an addition. It is introduced by law in 2003.
