Principle of Nullum Crimen Sine Lege in the Construction of European Criminal Law

© Springer International Publishing Switzerland 2015
Stefano Ruggeri (ed.)Human Rights in European Criminal Law10.1007/978-3-319-12042-3_3

The Principle of Nullum Crimen Sine Lege in the Construction of European Criminal Law

Giuseppe Toscano 

Department of Law, University of Messina, Piazza Pugliatti No. 1, Messina, Italy



Giuseppe Toscano


This paper investigates the role played by the rule of law in the construction of an EU criminal law. The analysis, also from a historical perspective, of the rule of law shows how it is tremendously flexible and adaptable to the changing socioinstitutional contexts in which it is considered. It is necessary to assess whether the process of Europeanization can be considered a “risk factor” for its stability or whether, on the contrary, it requires only simple adaptations that do not detract from its essence.

Accessory competenceCivil rightsDemocracyDirect competenceDirectivesEuropeanizationFramework decisionsPrinciple of assimilationRule of lawTreaty of Lisbon

1 Introduction

The concept of Europeanization, in a generic sense, indicates the slow, gradual and problematic attempt at bringing closer together the national cultures of the old continent, now called upon to mutually cooperate to provide adequate answers to the problems posed by modern society. Legal professionals now unavoidably have to deal with this need, and are called upon to rewrite the very hierarchy of sources, taking into account these new institutional systems.1 Unlike scholars in disciplines for some time accustomed to dealing with supranational sources, we find a more prudent attitude in criminal law scholars, who tend to be more statist and self-referential.2

Having laid these general premises, this paper aims to analyze the phenomenon of the Europeanization of criminal law from the perspective of the rule of law, the first and irreplaceable source of legitimacy of the entire criminal system. The genesis of the rule of law, as is well known, responds to needs above all of a political nature. It in fact started out as a guarantee of civil liberties and as a connecting element between the law of the sovereign and the rights of the subject.3 The analysis of the rule of law thus requires assessments also of a nonlegal nature, necessary for a comprehensive examination of the topic.4

This paper will therefore have to take account of this dual aspect: historical-cultural and technical-legal, hence the need for a separate discussion of the two types of problems, in order to fully assess the critical issues regarding legality in the current historical context and to engage in an evaluation of the process of Europeanization in a de lege ferenda perspective.5

The path followed in this paper first examines the rule of law from a historical perspective, to better understand its content and values. Having identified the key aspects and verified the real content of the principle of nullum crimen sine lege, we will try to establish the possible role of the rule of law in the new European institutional framework outlined by the Lisbon Treaty. The route is extremely circuitous, and the investigative method chosen does nothing to help simplify matters. However, an examination of the historical-dogmatic aspects of the problem is absolutely unavoidable.

2 The Form and Substance of the Rule of Law: A Brief Historical Overview

As mentioned in the introduction, the first necessary step in this survey is to retrace, albeit briefly, the main stages of the history of the rule of law, to see how it has adapted over time to the socioinstitutional changes affecting Europe.

Although the formula nullum crimen, nulla poena sine lege goes back to the second-century ad politician and jurist Ulpian, it was only in the second half of the eighteenth century that the rule of law became clearly defined and conceptually independent.6 This was especially true after the fall of the Ancien Régime, when it became a symbol of the Enlightenment (which saw the law as a guarantee of rationality) and liberal culture (which aimed to build a punitive system free from the arbitrariness and the abuse of power).7

From the early stages of this new vision of things, there thus emerged a conception of the rule of law that made it the cornerstone of a new sociopolitical system based on new distinctive traits that marked a sharp break with the past.

In this process, the principle of nullum crimen sine lege played a primary and indispensable role, since the law is an expression of sovereignty illuminated by the light of reason, the instrument able to distinguish between the lawful and the prohibited and to attribute to each offense the corresponding punishment.8

In the liberal era, the rule of law therefore expressed a purely formal characterization of the concept: in accordance with the principle of favor libertatis of the citizens, the express legislative provision was the sole point of reference for verifying criminal conduct.

Corollaries of the principle being considered here are the principle of the reserve of law, under which the monopoly of criminalization rests only with state legislative power; the principle of nonretroactivity, whereby the criminal law is valid only for the future and may not apply to acts prior to its entry into force; that of its mandatory nature, whereby general abstract legislative propositions in criminal matters must fulfill the requirements of clarity, precision and comprehensiveness; and finally, the prohibition of analogy, which prevents the court from subsuming within the scope of a given provision a case not provided for on the basis of an alleged relationship of similarity with that expressly being considered.

Behind this apparent clarity and solidity, the formal rule of law conceals elements of fragility that emerged subsequently in the first half of the last century, when dictatorial regimes dramatically violated precisely those individual rights that the rule of law seemed to guarantee.

There thus gradually emerged the need to ensure the rule of law through new contents that went beyond rigid formalism.

The crisis of legality in the formal sense therefore gave rise to a question reminiscent of that expressed in Juvenal’s Satires: quis custodiet ipsos custodes?

This need was felt by all the Constitutional Charters after the Second World War, which would enrich the rule of law with new contents, necessary to give it renewed strength. The rule of law thus found an ally in “constitutionalised” civil and political liberties that, in an approach based on mutual trust, became in turn the guardians of legality.9

The close link between the rule of law and fundamental rights presupposes in the first place a new relationship between civil rights and democracy, which will become the two key concepts of the issue in question.10

In this perspective, substantial legality in fact indicates primarily a mode of production of democratic and dialectic law, such as to ensure, through parliamentary debate and discussion, the consensus of all the political and social groups present in Parliament. It is only from Parliament, as the representative body of society as a whole, that we can expect a nonabusive exercise of regulatory authority in criminal matters. Consequently, criminal law could never be arbitrary, since it is always created in the interests of society and respectful of individual liberties.

However, the substantial dimension of the rule of law is manifested through various contents, of which that relating to the democratic method of producing law is only one aspect.

In addition to the democratic method of producing the criminal law and the criteria of compulsoriness, uniformity, precision and certainty with which criminal rules must be made, we must remember that in their formulation account should be taken of the distinctive elements of the offense, such as the materiality of the action, the seriousness of the offense, the possibility of attributing guilt and procedural safeguards in the assessment of criminal liability.

In assessing whether the new forms of prosecution from supranational sources are compatible with the rule of law, these are the variables that will be taken into account. They will thus allow us to determine whether the process of Europeanization can be said to be compatible with the basic principles of criminal law.

3 The Rule of Law in the European Context

3.1 General Attempts at Harmonization: The Technique of Assimilation and Framework Decisions

The reconstruction of the history of the rule of law makes it clear why the national states, traditionally reluctant and cautious about implementing forms of horizontal cooperation, have proved to be even more reluctant to accept a vertical transfer of competence in criminal matters to supranational entities. The “mercantile” connotation of the European Economic Community, as set out in the Treaty of 1957, and the traditional willingness on the part of States to maintain a monopoly on criminal law had meant that the Treaty itself contained no rule conferring criminal competence to the Community. In particular, the institutional architecture of the EC and the procedures for the approval of regulatory acts did not meet the standards of democracy that the principle of the reserve of law in criminal matters presupposes.11

Therefore, in light of the already existing principle of attribution, under which the EC could only legislate on matters for which it had been assigned competence by the Member States, both direct and indirect criminal jurisdictions were excluded.

Over time, this system proved to be wholly inadequate, to the point that it was almost counterproductive, especially considering the specific needs of the process of European development. The increasingly close integration between the Member States in fact meant that it was no longer possible to put off more active coordination between national criminal systems.12

More specifically, the development of an internal market characterized by the free movement of people, goods and capital ended up offering new opportunities for organized crime, especially following the agreement of Shenghen (1985), which required the adoption of “compensatory measures” designed to break down all the boundaries between the judicial authorities and police of the various States.

Beyond formal forecasts, the overlap between the state system and supranational legal systems in the same legal space had in any case made interaction between the sources of Community law and domestic regulations inevitable. The absence of direct or indirect competence in criminal matters on the part of the European Community soon clashed with the fundamental need to ensure the effectiveness of the rules of Community origin through a system of penalties.13

A leading player in this reunification between Community and national sources in criminal matters was, in the first place, the Court of Justice, which repeatedly held that, even in the absence of an independent punitive power in the hands of the European Community, the Member States, according to the principle of loyal cooperation, were still obliged to harmonize their national rules and to take all appropriate measures to ensure compliance with Community legislation.14

The so-called principle of assimilation—whereby violations of Community law should be punished in the Member States with penalties similar to those applicable to infringements of national law of a similar nature and gravity—was stated for the first time in the late 1980s, in the historic judgment on the “Greek corn” case.15 The assimilation model, as a tool for transposing Community law into domestic law, made it possible to equalize, in terms of safeguards, the legal interests protected at the national and Community levels.16

Having established that the European Community, albeit lacking direct legitimacy to enact criminal laws, could however oblige Member States to provide criminal law protection for the Community’s interests, the compatibility of this model with the rule of law remained doubtful. It is important to remember that this principle is relevant not only for the constitution but also for the community, seeing that it belongs to the constitutional traditions of the Member States, as well as being found in international law.17

It is in fact obvious that such forms of interaction between EU and national legislators significantly reduce the discretionary contribution of the latter in the definition of criminal offenses, in establishing both unlawful conduct and penalties.18

Such a mechanism, given the democratic deficit characterizing Community institutions, appeared problematic with respect to the rule of law, especially regarding the use that was made of it. Without carrying out preliminary work of identifying individual national instances in the field of legislation under consideration, Community provisions often contained only a general reference to the domestic laws in force in that specific sector. The various legal systems of the Member States in fact display different characteristics in terms of structure and articulation of legislation, and it is therefore impossible to refer to specific national incriminating standards or to particular legal instruments or categories. The standard of reference will therefore inevitably display a degree of generality.

It should be noted, however, that in the meantime the changing legal and political context, together with the aforementioned need for greater coordination between national criminal systems, resulted in the approach found in the Treaty of Maastricht (1992), which instituted the European Union, creating the so-called three-pillar structure.

More specifically, in the framework of the third pillar of the EU, there was an assignment of specific skills also in the field of cooperation in criminal matters, which did not imply the assignment to the European institutions of regulatory powers identical to those of the Community scope (first pillar), i.e., exercisable by means of regulations and directives. The third pillar in fact represented a hybrid, an intermediate solution between the “Community” method typical of the first pillar and the “intergovernmental” method typical of international conventions.

The differences between the sources of the two pillars can be seen by analyzing the characteristics of the most significant source adoptable in the framework of the third pillar, namely framework decisions.19

The harmonizing effect of framework decisions on national criminal systems is based on the mechanism of compulsory incrimination. These sources require Member States to envisage criminal penalties for certain types of behavior described in the European source, which often also lays down some instructions on the type of penalty (e.g., penalties restricting personal liberty) and on the severity of the penalty itself. It is therefore a form of indirect criminal jurisdiction, through the imposition of an obligation to bring charges, which however is not supported by EU-imposed penalties in the event of nonimplementation, meaning that its actuation displays disturbing margins of uncertainty.20

Despite the less binding nature of framework decisions compared to instruments of the first pillar, their adoption has however brought the criminal legislation of the states significantly closer in many areas.21

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