Project 3: Transnational Criminal Law Process: A Justice (Fairness) Approach

In view of the increasing globalization of crime, an increase in ‘inter- nation' co-operation in criminal matters is an important aspect of contemporary criminal justice systems. This, in turn requires a common approach towards harmonisation or/and unification of criminal law, both substantive and procedural. On principle, within one legal system the entire procedural law is closely related to the substantive law in order to ensure a consistency. Thus, the above mentioned common approach should tend to the creation of a system of law in Europe natured by a certain degree of internal consistency, as well. Taking into account that contemporary criminal justice systems try to satisfy the demands of ‘justice', in its broad sense, the aim of this project is to investigate the concept of justice through the perspective of the transnational criminal law process, and more specifically through a gradual movement towards integrated European criminal justice.

Here, the adjective ‘transnational' is used in order to underline the special nature of applied legal terms as transcending national frontiers, which may now be visible at any of the three levels: the national level, the inter-national level, or the supra-national level. Since the recent developments of two distinct branches of supranational criminal law: international criminal law and European criminal law, one may also relatively speak about international criminal proceedings ( before the ad hoc international criminal tribunals or ICC) in contrast to transnational (European) criminal proceedings.

By inquiring into the concept of justice as a matter of legal theory, this project will illustrate the complexity and fragility of the criminal justice system, especially with reference to ‘procedural justice'. For instance, George P. Fletcher speaking about "Justice versus Legality" quite clearly illustrates the complexity of both legal theories. "Justice"- he says, "has the appeal of knowing what is right and securing it immediately. Justice offers instant gratification. The rule of law requires time, patience, and procedures of high ritual. Justice stands to the rule as fast food hamburgers compare with an eight-course meal". Fletcher is also arguing that "the claims of justice come and go". Further to "criminal justice" - he maintains that it must be understood in two distinct senses: in descriptive sense as the practice of the courts and in the ideal sense. He makes distinctions between substantive and procedural justice. Substantive rules determine guilt in principle, whereas procedural rules, guilt in fact. Accordingly, he is completely right saying that "perfect procedural justice is impossible. It would imply the total avoidance of mistakes and this is a dangerous illusion. Courts will always make mistakes, even if the rules of procedure are designed as well as possible to seek the truth as well as to protect the dignity and the rights of the accused. Procedural justice is always imperfect, always subject to improvement". Even though, the avoidance of mistakes might be seen as an utopia or a pure illusion, the idea of procedural justice should attract lawyers to their contributing on the approach towards a ‘just result'. May be in this regard one should also re-consider the generally applied rule of ubi ius, ibi remedium by its replacing on the opposite position: ubi remedium, ibi ius, in a widely understood context of safeguarding individual rights through the available procedures. Thus, a prevailing position of remedium (available procedures) might be discussed in the creation of legal (judicial) process aiming at "just result" in Europe without internal borders.

The issue of criminal justice gives rise then to the crucial question posed in this research study on enhancing respect for fundamental rights in a perspective of ‘internationalisation' (Europeanisation) of contemporary criminal justice systems. More precisely speaking, as the European criminal law (both substantive and procedural) is indeed moving towards a more harmonised, or even unified legal order, so the crucial question is how to enhance respect for fundamental rights (basic rights) in an ‘integrated European system of criminal justice'. In other words, fundamental rights should be protected, especially in the emerging area of "supranational legal integration in criminal matters", throughout the European Union. Also, this approach may involve the question of ‘justice for victims'.

Whilst it is obvious that respect for fundamental rights as derived from international norms (especially, from the ECHR system) is a guiding principle, which should be observed by all the European States, there is still scope for further strengthening the legal rights of the individual. The emergent EU criminal law should protect the general interests and significant values of the community as a whole. But, on the other hand, it also has to ensure respect for fundamental rights of individuals, as the citizens of Europe, protecting them from injury arising from the exercise of State power in the EU context. Furthermore, it should facilitate the reparation of harm done to victims of such rights violations. However, there may be serious doubts as to the implementation of this paradigm in the framework of a supranational organisation, such as the EU, having its own autonomous sui generis legal order. This situation will be changed by the enhancing of the judicial protection of fundamental rights, through the Lisbon Treaty, when the EU joins the ECHR system. In this way, individuals as citizens of Europe will have direct access to the ECrtHR, which may be the competent Court to decide their individual complaints against the EU institutions. This seems to be an important issue, in the event of any EU legal act violating the fundamental rights of an individual.

A further key question is whether fundamental rights in the context of transnational (European) criminal proceedings are protected in a ‘fair' manner, especially in the light of an integrative approach towards criminal law and procedure. Transnational criminal proceedings here mean legal process in "cross-border situations", within the common legal area in criminal matters of the European Union. This issue is analyzed as an aspect of emerging European criminal justice, as an integrated legal system at the regional EU level. For a long time, criminal justice was considered to be purely a national matter, namely an expression of the sovereign power of State. However, since 1990s there has been a gradual movement towards integrated European criminal justice (institutional and normative). Accordingly, there have been noticeable tendencies towards more integrated criminal law (both substantive and procedural), particularly through its gradual communitarisation.

As a result, many European criminal proceedings have a very specific ‘trans-boundary dimension'. This is no longer limited to the traditional forms of inter-state co-operation. Because the actions may be just taken, with the help of members of competent judicial authorities of different States on the territory of Europe, without internal borders, introducing special measures of legal assistance in criminal matters and the principle of mutual recognition. Moreover the latter is based upon the need for mutual trust between national criminal justice systems. Such proceedings may be based on the rules and principles deriving from the European criminal procedure and international co-operation of States (bilateral and multilateral).

Ergo, there may be doubts about the "justice process" or "just result", and also which State should be held responsible for fundamental rights violations. This gives rise to the question of "just result", which will be examined with a view to the minimum procedural safeguards of the suspects (defendants) and to the rights of victims. This issue seems now to be of a primary importance, because the functions of a current criminal law have been just created in such a way, so that to ensure the protection of interests for each subject, taking its relevant place in the ‘triad': community-defendant-victim.

Therefore, this theoretical discourse regarding transnational (European) criminal proceedings focuses its attention on the rule of fairness which seems to be closely connected, not only with the notion of ‘justice' itself, but also with the three traditional functions of current criminal law : the protective, the guarantee ( ‘defence rights') and the restorative. In turn, a notion of justice per se may be linked with citizens' sense of justice in a country, society or even a particular community. Thus, a core issue may also be the role for ‘justice' to ensure ‘due process' (‘fair trial') in transnational (European) criminal proceedings, in its current meaning. Specifically, under the norms of international human rights law everyone deserves due process in compliance with the established standards. Also, this approach as it was earlier outlined involves a question about ‘justice for victims'. In fact, we may be confronted with the different legal remedies and potential conflicts of norms under the States' jurisdiction as well as with different senses of justice. In this respect, Ch. Brants is absolutely right saying that "A common approach to ‘fair trial' and ‘due process' exists, but at the level of principle only: fairness in criminal proceedings is a concept that is determined in practice by legal culture. When translated into concrete rights, there are per definition differences, as there are differences in the relationship between such rights, because national legal cultures and legal systems differ".

In relation to the respect for human rights in criminal justice systems, one may notice that it was just Cesare Beccaria, who in his famous, short essay on "Dei Delitti e Delle Pene" directly called for such guiding principles at all the stages of "the justice process" as ‘equality' before the law and the ‘presumption of innocence'. It seems that what Beccaria proposed then, and so ably argued for 1764 has been in great part achieved today, in our contemporary criminal justice systems. In addition, the leading philosopher I. Kant has already recognized the importance of victims and their interests in criminal process. Accordingly, he argued that "[c]learly, justice requires attention to the victim as well as to the defendant". The current restorative justice model prescribes that central place is taking by relationship: defendant - victim, whereas State should play here rather a role of arbiter, and not a party of the existing conflict. Consequently, this is just the defendant who has done harm to his victim, and not a State itself. So, a victim indeed is standing in the centre of justice interests, having legal guarantees. In general, the retributive justice theory prescribes that offenders ought to be punished under the law (‘local sense of justice') in proportion to their guilt and the injury inflicted on their victims. This traditional theory of "retributive punishment" is based on a supposed moral link between wrong-doing and justice (rules of equity and just deserts). Still, one may however, argue for better use of typical restorative justice measures, like setting disputes through mediation (victim-offender mediation) or conciliatory proceedings (victim-offender reconciliation) in order to strengthen the role of victim in the criminal process. In fact, since the late years of twentieth century, there has been undertaken an approach towards a restorative justice model. Actually, the traditional two party retributive systems: defendant-State might be slowly replaced by three party restorative schemes: defendant-victim-State.

After all case law shows that the contemporary criminal justice systems, tending towards the ius perfecta require more attention, both to the procedural safeguards of the suspects (defendants) and to the rights of victims, for a certain balance. The right to a fair trial and victims' interests are becoming, thus, the most crucial aspects of the transnational (and international) criminal justice. Actually, at the EU level the Pupino case (Maria Pupino, Case - 105/03) confirms the fruitful "judicial dialogue" between the E.C.J. and the national criminal courts. Such a "judicial dialogue" allows the interpretation of measures adopted under the 3rd pillar more uniformly and effectively within the "genuine" legal area of the EU.

It is also important to underline that the Charter of Fundamental Rights of the European Union (2000) may become an essential legal basis in strengthening individual rights in criminal proceedings throughout the EU. Its Chapter VI ‘Justice' (art.47) declares expressis verbis that "Everyone whose rights and freedoms guaranteed by the law of Union are violated has the right to effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone should have the possibility of being advised, defended and represented. Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice".

Concluding, this is also worth mentioning opinion of Bernd Schünemann which is arguing that "[c]riminal law separates the citizens from the criminal, the free person from a creature living as if kept in a cage. Criminal procedure law is rightly called the seismograph of a state's constitution. It has been part of the common foundation off all cultured states on the European continent since the age of enlightenment that only the legislator is allowed to draw this boundary - and in democracy (whose cradle, Greece, we have chosen, not coincidentally, as our genius loci) the parliament is this legislator". Indeed, in the integrated Europe the power and the sovereignty of States are surrendering to the limitation or quoting the words of Inger-Johanne Sand "[s]overeignty has dissolved into multiple paths of procedures and combinations of institutions". On the other hand, some new legal ‘supranational' regulations should be acceptable, not only in the fight against transnational crime, but also for ensuring a right to ‘fair trial'. Nevertheless, still a disputable question may remain about possible legal remedies which would allow for a ‘fair balance' in the transnational criminal proceedings to strengthen fundamental rights of individuals, in accordance with the rule of law. The influence of law from supranational level (EC Law) in the spheres of cooperation in criminal matters has become a really confusing element not only for the national enforcement agencies, but also for the balance of rights as such.

More broadly speaking, this project is designed to discuss, whether a ‘new dimension' of criminal justice, recalling for the ideals endorsed by 18th and 19th century Enlightenment thinkers, including equality before law, have been reflected in the approach towards supranational criminal law through ‘internationalisation' (Europeanization), especially of criminal procedure and, if so, to what extent. Such an approach raises then the question of what place there is for justice in this landscape. In other words, in the distinct process of increasing ‘supranational legal integration in criminal matters' throughout the European Union, one can not ignore the fundamental rights of individuals and principal rules governing the ‘Rechtsstaat'.

This research study may serve as one starting point for further discussion regarding the future of criminal procedure and its relation to criminal law, in creating a genuine European area of justice as it was proclaimed in the Presidency Conclusions, Tampere European Council (1999). And, then further enshrined in the Hague Programme (2004) and the Stockholm Programme (2009, The Stockholm Programme - An open and secure Europe serving and protecting the citizens). After all the current legal practice demonstrates that only States which have evolved more or less similar normative principles - as expressed in criminal law - and have comparable criminal procedures are actually prepared to work in closer co-operation, sharing their common human values and legal traditions. What is more, States which are dedicated to the rule of law will take the fundamental rights of individuals seriously and they will expect the same attitude from other State actors. We must also realize, as Ch. Brants truly noticed "that in a new European legal space that promises freedom, security and justice for all, common and effective crime control has a Siamese twin in common and effective due process".