Raimo Lahti, Towards internationalization and europeanization of criminal policy and criminal justice – challenges to comparative research
Professor Raimo Lahti,
University of Helsinki,
Faculty of Law
TOWARDS INTERNATIONALIZATION AND EUROPEANIZATION OF CRIMINAL POLICY AND CRIMINAL JUSTICE – CHALLENGES TO COMPARATIVE RESEARCH
1. Harmonization of criminal laws and the need of comparative law
Since the 1990s, we can see a strong development of international criminal law and an increase of the importance of the United Nation’s (UN) activities in global criminal policy taking place at the same time as the regional strengthening of similar tendencies, in particular on the European level. In our region, the most powerful organizations are the Council of Europe and the European Union (EU). Their legal instruments have reflected and generated common principles based on the values of democracy, human rights and the rule of law.
The intensified internationalization and Europeanization of criminal law have changed the role of comparative law and criminal sciences in general. There is much more need for comparison of legal orders due to the emergence of European criminal law and international criminal law and due to the interaction between European and global legal regulations and the national legal orders. This kind of interaction between international law and domestic law has been strongly emphasized by the French scholar Mireille Delmas-Marty, who repudiates “any binary vision that opposes the national to the supranational and the relative to the universal”.
Scientific cooperation should be, when possible, multinational. The significance of bilateral arrangements is diminishing, although they also may have a positive role in furthering common research projects and personal contacts. Strengthening of the activities of scientific organisations (like Association International de Droit Pénal) and of various networks of scholars is advisable in order to produce ambitious scientific comparative works, such as the “Corpus Juris” proposal and its implementation , “Economic criminal law in the European Union” , “A Programme for European Criminal Justice” and “A Manifesto on European Criminal Policy”.
The importance of the studies on comparative criminology and criminal justice should not be forgotten either. For instance, empirical studies should increasingly be planned in research groups so that they can be repeated in various countries in order to strengthen their verification value and applicability in decision-making. We need more evidence-based criminological research to be utilized in criminal-policy planning and as a foundation for rational criminal policy. This is particularly true in relation to the decision-making and actors within the EU, where criminal policy has not so far been made on the basis of coherent conceptions and by utilizing relevant criminological research.
In his recent monograph on “European Criminal Law” the Dutch scholar André Klip includes to its subject “a multi-layered patchwork of legislation and case law in which both national and European courts, European and national legislatures, and other authorities and bodies play a role”. The European criminal justice system is in transition, and much of its future is dependent on the influence of the Treaty of Lisbon. Klip foresees the codification of the general part of criminal law within European Union law as one element in building a European criminal justice system, but on the other hand emphasizes the recognition of fundamental aspects of the national criminal system in the emergency-brake procedure of the Lisbon Treaty.
The German scholar Ulrich Sieber has analyzed the trend to harmonize criminal law as one result of worldwide globalization and he explains it by four significant forces: the increasing development and international recognition of common legal positions for the protection of human rights and for the political and economic aims; the growth in international security interests; the growing influence of actors other than nation states; and the increasing international cooperation based on new institutions with new instruments of legal approximation.
2. The experience of Finland and other Nordic countries to be utilized in comparison?
The Nordic countries form a sub-regional area in Europe and the developments there seem to presage more general trends in Europe towards harmonization of criminal laws. Therefore, a view of the experience may be illustrative also in assessing the effects of increased internationalization and Europeanization of criminal policy and criminal justice.
Since the 1960s, the Nordic countries have had a close cooperation in the legal area for several reason. The common legal traditions and crucial similarities in cultural, economic and social development make it understandable that a strong mutual confidence prevails between the Nordic countries, and that confidence furthers efficient cooperation. The Nordic cooperation in legal matters is based on a variety of sources: of multilateral (European) conventions, of the treaties between the Nordic countries, of uniform legislation and of established practice among the public officials in these countries.
The legal culture and legal thinking in the Nordic countries reveal some specific features. Although these countries belong to the so-called civil (statutory) law tradition, the approaches in legislative reforms and legal doctrines are often less strict in the 'system-building' (in constructing theories and concepts) and are more pragmatically oriented than typically in the continental civil law countries. This is also true in relation to the general system for analysing criminal acts (“Straftatlehre”), although Finland is in this respect nearer to German penal thinking than the other Nordic countries. The models offered by common law countries and the theories developed by scholars coming from these countries are now taken more seriously into consideration than in earlier times. This is true, in particular, when reforming criminal procedure. The influence of the case-law of the European Convention on Human Rights and Fundamental Freedoms (ECHR, originally from 1950) on the principles of criminal procedure is remarkable.
3. On the Finnish criminal policy from the 1960s
to the 2010s
The following tendencies can be identified in the Finnish criminal policy since the 1960s:
(i) criticism of the so-called treatment ideology (the 1960s);
(ii) emphasis on cost-benefit thinking (the beginning of the 1970s);
(iii) so-called neo-classicism in criminal law thinking (the end of the 1970s and the beginning of the 1980s);
(iv) pragmatic reform work for a new Criminal Code – a total reform of criminal law – by utilizing modified ideas of the above-mentioned tendencies (since the 1980s until the beginning of the 2000s);
(v) influence of the human and basic rights thinking on criminal law and procedural law since the 1990s);
(vi) effects of the internationalization and Europeanization of criminal law since the end of the 1990s.).
4. The influence of human and basic rights on the Finnish legal culture and on the principles of criminal procedure
Human rights or constitutional aspects of criminal law or criminal procedure did not normally got serious attention until the 1990s in Finland. A remarkable change in legal thinking and practice in this respect was connected with two major legislative reforms: firstly, Finland ratified the ECHR in 1990, and, secondly, new provisions on fundamental (basic) rights were incorporated into the Finnish Constitution in 1995 (in a formally revised form in the new Constitution of 1999).
5. Finnish criminal law reform and constitutional and human rights
The ideological change with greater emphasis on constitutional and human rights has had effects on the total criminal law reform in Finland (1970–2003). The rise of these rights in legal thinking and practice has had an influence, not only on the Finnish criminal law but also on its theoretical basis.
"No one shall be found guilty of a criminal offence or be sentenced to a punishment on the basis of a deed, which has not been determined punishable by an Act at the time of its commission. The penalty imposed for an offence shall not be more severe that provided by an Act at the time of commission of the offence."
As for the criminal sanctions, explicit human rights norms and constitutional provisions forbid death sentences, torture and other degrading or inhumane treatment in a very absolute way. In Finnish Penal Code there is also a special provision forbidding torture. In traditional penal theory, the debaters rely primarily on the utilitarian arguments of social defence and/or the arguments of justice and humaneness.
Also in recent Finnish academic literature on the general doctrines of criminal law much attention has been paid to the role of constitutional rights (and human rights) for legal theory in general and criminal law theory in particular.
6. Summary: challenges of internationalization and Europeanization and internationalization of criminal policy and criminal justice
The increased internationalization and Europeanization of criminal policy and criminal justice are challenging for legal scientists, legislators and practitioners. The administration of criminal justice, which so far has been an essential element of state sovereignty, has partially moved, and is still moving, beyond the direct control of nation-states. The ECHR and its case-law have an important role in creating the European model of criminal procedure. The international criminal tribunals have a similar role in furthering respect for fair trial rights. Domestic courts are in key positions in strengthening human rights according to these standards. In particular, the International Criminal Court (ICC), whose competence relies on the principle of complementarity, needs a jurisdictional shift from the ICC to domestic courts when dealing with the serious violations against humanitarian law, as defined in the provisions of the Rome Statute . For example, Finland has transformed those provisions into Penal Code provisions, and one case (accused for participation in genocide in Rwanda) is pending in Finland.
One of the challenging questions to comparative criminal scientists is: To what extent can we speak about common legal positions in respect of the general part of criminal law, i.e. common legal principles and concepts? The general principles and concepts of criminal law have been developed since the 19th century primarily by the doctrines and practices of national criminal law and national criminal justice systems. Such concepts and principles have been mainly developed within two legal cultures, either under civil law or common law tradition, and have therefore largely differentiated. It is certainly a cumbersome way to a common general part of European criminal law or harmonized general parts of national criminal laws. The Hungarian scholar Norbert Kis demonstrated this difficulty by his analysis on the principle of culpability. Although there is a common ground for the doctrines of intent in the Nordic countries, a unified “Dolus nordicus” is missing even in this sub-region of Europe where the countries have common legal traditions. An outstanding comparative research project of the Max Planck Institute for Foreign and International Criminal law for creating a universal meta structure for criminal law (“universale Metastruktur des Strafrechts”) is an ambitious endeavour to develop international criminal law doctrines.
The diversification of certain areas of criminal law – typically Europeanized economic criminal law and internationalized humanitarian law – is reflected in the pluralism of general legal doctrines. Therefore, there is a need for developing a more dynamic conceptual and system thinking in order to control many parallel legal regulations and the diversity of the regulated phenomena. For instance, there are cogent criminal-policy reasons for certain differentiation of traditional concepts and principles of criminal law in order to take into account the nature of macro-criminality and so-called organisational crimes. Nevertheless, there are limits to this differentiation, because the utilitarian (effectiveness) aims must be balanced with the considerations of fundamental rights and freedoms of the accused persons.
In Scandinavian criticism against the unification of European criminal policy, the main arguments have concentrated on the concern that the basic values of the "Nordic model" would then be endangered. In the Scandinavian thinking, for example, the role of crime prevention is particularly emphasized; specific criteria of rationality in criminal policy such as legitimacy and humaneness are applied; and the level of repression in criminal sanctions in relatively low. Especially the EU-criteria of dissuasiveness is criticized for its strong connotation with deterrence (negative general prevention) and high level of punitiveness and repression.
It is true that the demand for more effective sanctioning and penal provisions is evident as to transnational organized or financial crimes, when the financial interests of the whole EU are in danger or when there are particularly strong common interests of the member states to combat serious trans-border crime. Nevertheless, there is among scholars a fear about net-widening effects; this trend towards increased repression may affect the whole criminal justice system.
According to critics, the principles of subsidiarity and proportionality should be strongly emphasized in criminal policy. The demand for the legitimacy is particularly strong as to criminal justice systems; so cultural and national traditions should be taken seriously into account. At a regional, European level such legitimacy is difficult to achieve. In order to increase acceptability of and confidence in European institutions (primarily in the EU), there should be general awareness of common European values (as now captured by the concept of the area of freedom, security and justice). Deficiencies in the decision-making processes and their transparency should also be removed (the idea of citizens' Europe and the sufficient and equal freedom of action of member states should be combined). And finally, the commitment to the observance of human rights and fundamental freedoms ought to be strengthened.
 M. Delmas-Marty, Comparative Criminal Law as a Necessary Tool for the Application of International Criminal Law, in: A. Cassese (ed.), The Oxford Companion to International Criminal Justice. Oxford University Press, 2009, pp. 97–103.
 See M. Delmas-Marty et al., Corpus Juris. Economica, 1997; M. Delmas-Marty & J. A. E. Vervaele (eds.), The Implementation of the Corpus Juris in the Member States, Vols I–IV, Intersentia, Antwerpen 2000–2001.
 See K. Tiedemann (Hrsg.), Wirtschaftsstrafrecht in der Europäischen Union. Carl Heymanns Verlag, Köln 2002.
 See B. Schünemann (Hrsg./ed.), Ein Gesamtkonzept für die europäische Strafrechtspflege. Carl Heymanns Verlag, Köln 2006.
 Cf. generally T. Newburn & R. Sparks (eds.), Criminal Justice and Political Cultures. Willan Publishing, 2004; K. Aromaa & T. Viljanen (eds.), International Key Issues in Crime Prevention and Criminal Justice. European Institute for Crime Prevention and Control, affiliated with the United Nations (HEUNI), Publication Series No. 50, 2006.
 See the Consolidated Versions of the Treaty on European Union and the Treaty on the Functioning of the European Union (2008/C 115/01).
 A. Klip, European Criminal Law. Intersentia, Antwerp 2009, especially pp. 1, 425, 432.
 U. Sieber, The Forces Behind the Harmonization of Criminal Law, in: M. Delmas-Marty et al. (éd.), Les chemins de l’harmonisation pénale. Paris 2008, pp. 385–417, 387.
 See generally R. Lahti, Towards a rational and Humane Criminal Policy – Trends in Scandinavian Penal Thinking. Journal of Scandinavian Studies in Criminology and Crime Prevention, Vol. 1, 2000, pp. 141–155.
 See in more detail R. Lahti, Recodifying the Finnish Criminal Code of 1889: Towards a More Efficient, Just and Humane Criminal Policy. Israel Law Review, Vol. 27, 1993, pp. 100–117.
 See generally I. Anttila, Ad ius criminale humanius. Essays in Criminology, Criminal Justice and Criminal Policy. Finnish Lawyers’ Association, Helsinki 2001.
 See esp. P. Törnudd, Fifteen Years of Decreasing Prisoner Rates in Finland. National Research Institute of Legal Policy (NRILP), 1993; T. Lappi-Seppälä, Regulating the Prison Population. NRILP, 1998.
 T. Lappi-Seppälä, Penal Policy and Prisoner Rates in Scandinavia, in: Festschrift in Honour of Raimo Lahti, Forum Iuris, Helsinki 2007, pp. 265–306. Cf. M. Cavadino & J. Dignan, Penal Policy and Political Economy. Criminology and Criminal Justice, Vol. 6, 2006, pp. 435–456; D. Nelken, Comparative Criminal Justice: Beyond Ethnocentrism and Relativism. European Journal of Criminology, Vol. 6, 2009, pp. 291–312.
 See R. Dworkin, Taking Rights Seriously. Duckworth, 1977/1987 and R. Alexy, Theorie der Grundrechte. Baden-Baden, 1985.
 See esp. M. Scheinin, Human Rights in Finnish Law. Summary of a doctoral thesis, Jyväskylä 1991.
 See e.g. A. Jyränki, Taking Democracy Seriously. The problem of the control of the constitutionality of legislation. In: M. Sakslin (ed.), The Finnish Constitution in Transitio., Helsinki 1991, pp. 6–30.
 See M. Pellonpää, The Implementation of the European Convention on Human Rights in Finland. In: A. Rosas (ed.), International Human Rights Norms in Domestic Law. Helsinki 1990, pp. 44–67.
 See in more detail M. Scheinin, Incorporation and Implementation of Human Rights in Finland. In: M. Scheinin (ed.), International Human Rights Norms in the Nordic and Baltic Countries. Martinus Nijhoff Publishers, The Hague 1996, pp. 257–294.
 See L. Hannikainen, How to Interpret, and What to Do to, the Treaty on Aircraft Seizures with the Soviet Union. In: Finnish Yearbook of International Law, Vol. II (1991), pp. 538–558.
 L. Lehtimaja, The View of the Finnish Supreme Court on the European Convention on Human Rights. Paper presented in a seminar on the ECHR, 6 June 2008; accessible from the website of the Supreme Court: www.kko.fi/44943.htm.
 An English translation is accessible from the website of the Ministery of Justice: www.finlex.fi/fi/laki/kaannokset/1999/en19990731.pdf.
 So Scheinin, in: International Human Rights Norms in the Nordic and Baltic Countries, op.cit., p. 276.
 The revised Finnish Penal Code is electronically accessible as unofficial translation into English from the website of the Ministry of Justice: www.finlex.fi/fi/laki/kaannokset/1889/en/18890039.pdf.
 See e.g. M. Delmas-Marty, The European Union and Penal Law. European Law Journal, Vol. 4, 1998, pp. 87–115 (100).
 Cf. Decision 53/1993 (X.13) of the Hungarian Constitutional Court, where individual responsibility for war crimes and crimes against humanity was established irrespective of their punishability under domestic law, but was based on the general congency of the revelevant international law.
 See Chapter 11, Section 9a (990/2009) in the Penal Code.
 See esp. the doctoral theses of A.-M. Nuutila, Rikosoikeudellinen huolimattomuus, Helsinki 1996 (German summary: Fahrlässigkeit als Verhlatensform und als Schuldform), of K. Nuotio, Teko, vaara, seuraus, Helsinki 1998 (German summary: Handlung, Gefahr, Erfolg), and of S. Melander, Kriminalisointiteoria, Helsinki 2008 (English abstract: A theory of criminalization – Legal constraints to criminal legislation).
 See esp. K. Bárd, The Role of the ECHR in Shaping the European Model of the Criminal Process. In: K. Aromaa & T. Viljanen (eds.), International Key Issues in Crime Prevention and Criminal Justice, op.cit. pp. 34–52.
 See esp. W. Schomburg, The Role of International Criminal Tribunals in Promoting Respect for Fair Trial Rights. Northwestern Journal of International Human Rights, Vol. 8, 2009, pp. 1–29.
 See M. S. Ellis, International Justice and the Rule of Law: Strengthening the ICC through Domestic Prosecutions. Hague Journal on the Rule of Law, Vol. 1, 2009, pp. 79–86.
 See UN Doc A/Conf. 183/9, 17 July 1998.
 See Chapter 11 of the Penal Code, Amendment of 212/2008.
 See especially K. Ambos, Is the Development of a Common Substantive Criminal Law for Europe Possible? Maastricht Journal of European and Comparative Law, Vol. 12, 2005, pp. 173–191.
 N. Kis, The Principle of Culpability in European Criminal Law Systems, in: Towards More Harmonised Criminal Law in the European Union. Hungarian Academy of Sciences, Budapest 2004, pp. 107–117.
 See J. Matikkala, Nordic Intent, in: Festschrift in Honour of Raimo Lahti, op.cit., pp. 221–234.
 See the publications of the projects so far: U. Sieber & K. Cornils (Hrsg.), Nationales Strafrecht in rechtsvergleichender Darstellung. Allgemeiner Teil 1–3. Duncker & Humblot, Berlin 2008–2009. See also the G. P. Fletcher, The Grammar of Criminal Law, American, Comparative, and International, Vol. I. Oxford University Press, 2007.
 In more detail, see R. Lahti, Towards Harmonization of the General Principles of International Criminal Law, in: International Criminal Law: Quo Vadis? Association Internationale de Droit Pénal, érès, 2004, pp. 345–351.
 Cf. generally S. Melander, The Differentiated Structure of Contemporary Criminal Law, in: Festschrift in Honour of Raimo Lahti, op.cit., pp. 189–206.