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Professor Raimo Lahti, 
LL.D., M.Soc.Sc. 
University of Helsinki, 
Faculty of Law 
FINLAND

 

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”[1].    

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[2] , “Economic criminal law in the European Union”[3] , “A Programme for European Criminal Justice”[4] and “A Manifesto on European Criminal Policy”[5]. 

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.[6] 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[7]. 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.[8]  

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.[9]

 

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.[10]

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.    

 Essential similarities are discernible in the goals, values and principles governing the Nordic penal codes and the criminal justice systems in these countries, although they are far away from identical. At the same time as the Nordic countries have been social welfare states, their crime control policies and the systems of criminal sanctions are characterized by the emphasis on such values as liberalism, rationalism and humaneness. The Nordic countries have also been active in promoting the efforts to elaborate internationally accepted standards for criminal policy and criminal justice and to implement them. Human rights aspects and humanitarian considerations are of special importance in this connection.

 Nevertheless, it should be noted that in recent times the Nordic cooperation has lost much of its traditional significance, when Finland, Denmark and Sweden have concentrated more on the activities within the EU.  The importance of the police and judicial cooperation in criminal matters has also increased within the EU. See now Title V, Article 67, in the Consolidated Version of the Treaty on the Functioning of the EU (2008): “The Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States” (para 1); “the Union shall endeavour to ensure a high level of security … through measures for coordination and cooperation between police and judicial authorities and other competent authorities, as well as through the mutual recognition of judgments in criminal matters and, if necessary, through the approximation of criminal laws” (para 3).

 

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:[11]

(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.).

 The penal thinking which was adopted in the travaux préparatoires of the total reform of criminal law is characterized by the demand for a more rational criminal justice system, i.e. for efficient, just and humane criminal justice. The existence of the criminal justice system is justified on utilitarian grounds. The structure and operation of the penal system cannot, however, be determined solely on the basis of its utility. The criteria of justice and humaneness must also be applied. The penal system must be both rational as to its goals (utility) and rational as to its values (justice, humaneness).[12] This kind of penal thinking has had clear effects on the reasoning about the punitive level of the penal system, the types and contents of the criminal sanctions and the sentencing.  To quote the Government Bill 66/1988:

 “Criminological research has demonstrated that the general preventive effect of punishment can not be connected, in a one-sided manner, to the length of the prison sentences. Entry into prison already has a considerable deterrent effect. Similarly, we have abandoned the view that the rehabilitative effect of prison would require a certain minimum period in prison. On the contrary, we know that sentences of imprisonment always hamper the possibilities of readjustment to a normal social life. In addition, the enforcement of prison sentences is expensive for society.” (Detailed reasons, ch. 1.2.1.1.)

 As to the punitive level of the penal system, the assessment of the harmfulness and blameworthiness of the acts to be criminalized  was also intended to lead to an reassessment of the penal scales and of the seriousness of the various types of offences. For instance, the typical harm caused by property offences – their “penal value” – should be regarded as lesser than that of the violent crimes, and such modern crimes as economic and business offences, work safety offences and the impairment of the environment should be regulated in the criminal code and their seriousness should be comparable to that of the property offences.

 As to the types and contents of criminal sanctions, alternatives to imprisonment should be developed and the use of prison sentences should also otherwise be decreased.  The length of prison sentences imposed in Finland and the other Nordic countries is even traditionally quite short from an international perspective: the average can be given in months, not in years. Since the mid-1970s, the relative number of offenders sentenced to unconditional imprisonment was on the decrease for nearly 25 years, until 1999. During this period, the average size of the prison population decreased from over 100 per 100 000 population to 65 – i.e., to the level of the other Nordic countries. At the same time the development of registered criminality signed a similar trend in all of Nordic countires so that a dramatic cut in the prisoner rate in Finland did not result in a proportionate increase in the incidence of crime compared with other Nordic countries where the prisoner rate stayed quite stable.[13] In 2000–2005, the size was again increased, to 90 in 2005 – but in the most recent years the level seems to be normalized to 65–70 per 100 000 population. According to the Finnish scholar Tapio Lappi-Seppälä, penal severity is closely associated with the extent of welfare provision, differences in income-equality, trust and political and legal cultures. So the Scandinavian penal model has its roots in consensual and corporatist political culture, high level of social trust and political legitimacy, as well as a strong welfare state. These different factors have both indirect and direct influences on the contents of penal policy.[14]

        

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). 

 Those aspects were not, however, fully overlooked even earlier.  Most of the relevant human rights treaties had been ratified in Finland in due course (e.g. International Covenant on Civil and Political Rights, CCPR) and, when ratified, they have also been incorporated into the domestic legal order. Nevertheless, courts or administrative authorities referred very seldom to human rights treaties or constitutional rights until the late 1980s; a tradition to invoke constitutional rights in courts was lacking. Human rights treaties and constitutional rights were regarded as binding primarily upon the legislator. First references to the human and constitutional rights were made in the practice of the Supreme Administrative Court and the Parliamentary Ombudsman.

 Theoretical discussion was important in creating a sound basis  for the changed understanding about the role of human and constitutional rights and, accordingly, for the change of legal thinking and practice. Emphasis on general doctrines and principles was typical for Finnish legal literature in the 1980s and early 1990s. There were often cited two authors, Ronald Dworkin and Robert Alexy,[15] whose distinction between rules and principles as two categories of legal norms was frequently analyzed and utilized in legal theory. Concepts and theories of human rights law were developed; an influential theoretical conceptions is based on the distinction between the rule effect, the principle effect and the standard effect of human rights norms and it is also based on the differentiation how the human rights provisions operate in concrete decisions.[16] The political decisions of the Finnish government in the late 1980s to apply for the membership of the Council of Europe (and join the ECHR) and to begin the revision of the constitution law affected also the theoretical discussion about the status of human and constitutional rights. Basic human values, principles and fundamental rights were increasingly seen, not only as requirements of justice, humaneness or other dimensions of morality but also as having judicial relevance.

 The Finnish legal system has traditionally reflected a model of democratic Rechtsstaat where democracy and fundamental rights are regarded as complementary principles in a strong sense: there is neither judicial review nor a constitutional court for reviewing the constitutionality of laws, but the conformity of a bill to the constitution is reviewed only during the legislative process.[17] Therefore, the ratification of the ECHR and the reform of constitutional rights in the 1990s were remarkable when implying the direct applicability of the individuals' fundamental rights in courts.  

 At the same time as Finland ratified ECHR, it also accepted the jurisdiction of the Strasbourg Court and recognized the right of individual petition. Before that an in-depth study on the compliance of Finnish legislation  with the ECHR and Strasbourg case-law was conducted. Several acts of parliament were amended, for example with respect to pre-trial investigation and aliens' rights.[18] 

 The ECHR and other important human rights treaties have been incorporated through an act of parliament in blanco. Because of the predominance of the incorporation method, Finland can be said to represent dualism in form but monism in practice when implementing international law into the domestic legal order.  This implementation method affects the application of human rights treaties. The Parliamentary Constitutional Law Committee has confirmed following principles: the hierarchal status of the domestic incorporation act of a treaty determines the formal rank of the treaty provisions in domestic law (i.e., their rank is normally that of an act of Parliament); incorporated treaty provisions are in force in domestic law according to their contents in international law; and the courts and authorities should resort to "human-rights-friendly" interpretations of cases having domestic status, in order to avoid conflicts between domestic law and human rights law.[19]

 Before the Finnish ratification of the ECHR there were no references to international human rights conventions in the case-law of the Finnish Supreme Court, although the Parliamentary Ombudsman had applied international human rights law in his decision-making in the years leading up to ratification. The first cases were the Supreme Court expressed its willingness to apply international human rights norms where decided in 1990 and dealt with the extradition of persons accused of hijacking an aeroplane in the former Soviet Union. In all of these four cases, the Supreme Court informed the Ministry of Justice that, in its opinion, there were no legal obstacles to extradition in the concrete cases, meanwhile stating that a rule of non-refoulement, directly binding on Finnish authorities, could be drawn from, i.a., Article 3 of the ECHR and Article 7 of the CCPR.[20]

 Since these extradition cases, the Supreme Court has mostly applied human rights norms in issues concerning criminal procedure, i.e. Article 6 of the ECHR and Article 14 of the CCPR. These treaty provisions have been applied directly in order to fill certain gaps in the Finnish legislation on criminal procedure, although in most cases references to them have been made when interpreting domestic provisions. Justice Lauri Lehtimaja has recently analyzed the influence of the ECHR on Finnish law and court decisions. While the Supreme Court annually publishes 100–200 judgments in its yearbook, in these judgments so far, express reference has been made to the ECHR in a total of 111 cases (2008). Because of the substance of the ECHR has been integrated into domestic legislation, there is nowadays only seldom a need for a direct application of the ECHR. “The ECHR is used as a kind of litmus paper testing whether the interpretations of the domestic law are also in harmony with international human rights obligations.” A more general effect of the ECHR covers a change in judicial thinking: the reasoning in court judgments has become more open and transparent.[21]

 New provisions on the fundamental rights in the Finnish Constitution[22]   are much more detailed than the earlier ones, for instance concerning not only individual rights but also social rights, have been essentially inspired by the international human rights treaties.  Several of the enacted constitutional provisions make reference both to basic and to human rights, thus giving semi-constitutional status to human rights treaties.[23] The travaux préparatoires of this reform is emphasize the point that the constitutional provisions are also directly applicable in the administration of law by judges and authorities and so their binding effect is not restricted to law-making only. In addition to the "human-rights-friendly" interpretation of the law, a similar "basic-rights-friendly" interpretation is recommended, although the prohibition of courts to examine the constitutionality of acts of Parliament was maintained. 

 

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).[24] 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.

 The preparatory work for the recodification of the Finnish Penal Code of 1889 started already in the 1970's, before the emergence of human and basic rights thinking.  Nevertheless, two basic legal principles have governed Finnish criminal law reform: the legality principle and the principle of culpability (“Schuldprinzip”).  

 The legality principle in criminal law can be divided into four sub-principles: the rule that only the law can define a crime and prescribe a penalty (“nullum crimen sine lege scripta”), the rule that criminal law must not be applied by analogy to the accused's detriment, the prohibition of retrospective application of the criminal law to the accused's disadvantage (“nullum crimen sine lege praevia”), and the rule that a criminal offence must be clearly defined in the law (“nullum crimen sine lege certa”). This kind of classification of the main contents of the legality principle is generally accepted, i.a. in the case-law of the Article 7 (1) of the ECHR (see, e.g., Case of C.R. v. the United Kingdom; 22 Nov. 1995). 

 The legality principle has been included in the revised basic rights (Section 8, Constitution of Finland), and it is equivalent to the corresponding Article 7 (1) of the ECHR and Article 15 (1) of the CCPR:

"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."

 The regulation in the Constitution has strengthened the significance of the legality principle as the leading principle in criminal law, which has institutional support both in human rights and constitutional law. As can be seen from the citation, this provision is intended to be applied more strictly than the corresponding provisions in the ECHR and CCPR, insofar as the definition of a crime and the prescription of a penalty must be based on an Act of Parliament.

 One way to strengthen the legality principle is the effort to reduce and specify the use of the so-called blanket (reference) provision technique. A new challenge was created by Finland's membership in EU, because so-called integration by reference, for the purpose of incorporating the European Community norms, was extensively used in the member states of the EU.[25]

 When enforcing EC/EU-Directives into national legal orders the member states have certain discretion in choosing the legal remedies, e.g. whether to resort to criminalization or administrative sanctions and at what punitive level the sanctions should be. This discretion may, however, be very limited, for instance when enforcing the Directive on money laundering; the enlarged criminal-law competence of the EU in the Treaty of Lisbon will make that discretion even more limited[26]  The member states must ensure that money laundering as defined in the Directive shall be forbidden; the Finnish Penal Code was amended in order to fulfil the obligation arisen from this directive and also from other international treaties. On the other hand, the principle of EU-law friendly interpretation of national legislation does not apply to the detriment of the accused; see for example the Cases C-74/95 and C-129/95, where a reference to the legality principle and the constitutional traditions and ECHR, on which it is based, was in this respect made. 

 The new constitutional provision on the legality principle, taking account of its travaux préparatoires and the tradition to transform the international treaties requiring the penalizing of certain acts, leads also to the conclusion that the Finnish courts are not allowed to sentence for an act which constitutes a criminal offence under international law only.[27]

 The legality principle is not the only basic right  which is relevant for the Finnish criminal law and its reform. Many of the basic principles which were behind the reform work can after the constitutional reform be classified as fundamental rights. For instance, the moral and political arguments of justice and humanity, which have played an important role in Finnish criminal policy and criminal law theory, have now a strong institutional support as legal principles, too, when being firmly attached to human rights and constitutional law. Accordingly, the principle of culpability and, accordingly, the prohibition of strict liability can from a legal point of view be based on the explicit human rights norms and constitutional provisions which guarantee the inviolability of human dignity.

 As for the principles of criminalization, various human and basic rights must be taken into account. In the argumentation  constitutional (and human rights) aspects may collide so that  certain aspect support the enlargement of criminalizations and certain aspect restrict their scope or the methods for using criminal law; there is often a tension between contrary arguments.  When dealing with some of the recent Government Bills concerning criminal law the Parliamentary Constitutional Law Committee deliberated generally upon the question: There must be a considerable social need and also from the basic rights point of view acceptable reasons for a criminalization that it restricts fundamental freedoms in an acceptable way; the pros of criminalization must also be in proportion to the extent how much fundamental freedoms are restricted.

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.[28] 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.[29]

 

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.[30]  The international criminal tribunals have a similar role in furthering respect for fair trial rights.[31] 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[32], as defined in the provisions of the Rome Statute [33]. For example, Finland has transformed those provisions into Penal Code provisions[34], 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.[35]  The Hungarian scholar Norbert Kis demonstrated this difficulty by his analysis on the principle of culpability.[36] 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.[37] 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.[38]

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.[39] 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.[40]  

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. 

 

 

 

 

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