91372 - International Criminal Procedure

Learning outcomes

At the end of the course unit, students: - possess an in-depth knowledge about the international legal instruments concerning the punishment of offenses and the judicial cooperation in criminal matters; - know the cooperation mechanisms involving international and national jurisdictions, also from a comparative perspective; - are capable to choose the criminal justice cooperation mechanisms which are best suited to punish offenses having an international nature and are also in a condition to envisage the impact of those mechanisms on national legal orders, as well as on suspects/accused persons and victims of crimes.

Course contents

Learning outcomes

Common outcomes

At the end of the course students will learn: The foundational principles of international criminal law and justice; The historical evolution of international criminal justice and their current mechanisms.

Specific outcomes (Criminal Procedure)

Students are expected to acquire the skills to identify the problematic issues of criminal proceedings from a political and juridical point of view, taking into account the different contexts and the different mechanisms in which they take place.

 

Course contents

The objective of the course is to provide the student, through a comparative and international perspective of criminal proceedings, with knowledge on:

• the criminal justice system and its changes introduced through the processes of internationalisation and Europeanisation, highlighting the importance of the comparative approach;
• the basic principles characterising adversarial and inquisitorial systems;
• the basic principles of international criminal justice, with a special focus on the proceedings before the International Criminal Court.

During the course the theoretical framework will be analysed in the light of judicial decisions of national Constitutional Courts, the Inter-American Court of Human Rights and the International Criminal Court.

Part I:

Criminal Justice: The distinction between the common law adversarial system and the civil law inquisitorial (or mixed) system

Fundamental principles:

• Introduction to the fundamental principles of criminal trial
• Adversarial, Accusatorial and Inquisitorial (or mixed) systems
  • The role of the prosecutor
    • Mandatory prosecution v. opportunity principle
    • The relationship between police and prosecution service
    • Plea bargaining in common law and in civil law systems
  • Oral evidence v. written evidence
    • Exclusionary rules v. rules of prudent assessment
  • Jury verdicts v. reasoned judgments and the duty to state reasons
  • The appeal stage (revisio prioris istantiaev. trial de novo)

Part II:

International Criminal Justice:

• From ad hocTribunals to the ICC
• The experience of mixed tribunals
• Admission of written statements in place of oral testimony
• Investigation and prosecution
• Habeas Corpus
• Appeal

Part III:

Leading case law analysis:

• International Criminal Tribunal for the Former Yugoslavia
• International Criminal Court

Readings/Bibliography

The compulsory syllabus and the reading list for both attending will be published online on VIRTUALE (virtuale.unibo.it).

Materials of the cases discussed during the course will be also uploaded online on VIRTUALE (virtuale.unibo.it) website, along with potential additional readings that will be identified during classes.

Each week, students shall prepare for the discussion that will be held in class, reading in advance 1 or 2 short papers, that will be uploaded on VIRTUALE (virtuale.unibo.it). The specific lists of readings, distributed according the weekly programs, may be found in the Syllabus (uploaded on VIRTUALE (virtuale.unibo.it).

Bibliography

Adversarial/Inquisitorial Models & General Principles

Mirjan R. Damaska, The Competing Visions of Fairness: The Basic Choice for International Criminal Tribunals, 36 N.C. J. Int'l L. & Com. Reg. 365 (2010)

Richard Lippke, Fundamental Values of Criminal Procedure, in D. K. Brown, J.I. Turner, and B Weisser (eds), The Oxford Handbook of Criminal Process, April 2019

Richard Vogler, Due Process, in M. Rosenfeld and A. Sajó (eds), The Oxford Handbook of Comparative Constitutional Law, May 2012

Prosecutor

Sara Beale, Prosecutorial Discretion in Three Systems: Balancing Conflicting Goals and Providing Mechanism for Control, in M. Caianiello, J. Hodgson (eds.), Discretionary Criminal Justice in a Comparative Context, Carolina Academic Press, 2015, p. 27-58

Michele Caianiello, Increasing Discretionary Prosecutor’s Powers: The Pivotal Role of the Italian Prosecutor in the Pretrial Investigation Phase, OXFORD HANDBOOKS ONLINE, Oxford Un. Press, 2016, p. 1-27

William W. Burke-White, Implementing a Policy og Positive Complementarity in the Rome System of Justice, in Criminal Law Forum(2008) 19:59–85

Defence Rights

Charles D. Weisselberg, Exporting and Importing Miranda, 97 Boston University Law Review, 2017, p. 1-59

Plea Bargaining

Jenia I. Turner, Plea Bargaining and Disclosure in Germany and the United States: Comparative Lessons, 57 William & Mary Law Review 2016, p. 1-49

Evidence

Mirjan R. Damaska, Of Hearsay and Its Analogues, 76 Minn. L. Rev. 425, 1992

Michele Caianiello, Law of Evidence at the International Criminal Court: Blending Accusatorial and Inquisitorial Models, in 36 N.C.J. Int'l L. & Com. Reg. 287, 2011, pp. 287-318

Appeal

Stephen C. Thaman, Appeal and Cassation IN Continental Eurpoean Criminal Justice Systems: Guarantees of Factual Accuracy, or Vehicles for Administrative Control?, inThe Oxford Handbook of Criminal Process, New York, Oxford University Press, 2019, p. 937-960.

Kent Roach, Exceptional Procedures to Correct Miscarriages of Justice in Common Law Systems, in The Oxford Handbook of Criminal Process, New York, Oxford University Press, 2019, p. 961-990

International Criminal Tribunals

Michele Caianiello -Giulio Illuminati, From the International Criminal Tribunal for the Former Yugoslavia to the International Criminal Court, in North Carolina Journal of International Law and Commercial Regulation (N.C. J. Int’L L. & Com. Reg.) 2001,vol. 26, p. 410 s.

Teaching methods

The course will consist of lectures. Additional seminars and activities to further analyse some topics and foster students’ involvement could be organised. Students’ active involvement is encouraged as crucial for learning and will be evaluated in the final assessment of the course.

During lectures, the syllabus will be systematically explained, together with the examination of the reading material and the case law relevant to each topic.

The teaching will be carried out using the comparative approach and the analysis of the domestic and international case law in order to provide practical examples of the main issues related to the critical issues on the functioning of criminal proceedings. This methodology allows the students to recognize different judicial model with a critical and systematic perspective, and understand the importance of the legal, historical and political contexts in which they operate.

Professionals and academics with extensive experience in international criminal justice will be invited to teach individual seminars or classes. Documentaries and movies may be employed to illustrate some of the most crucial aspects of the matters treated during the course.

This approach will facilitate the understanding of some peculiarities of the current dimensions of the criminal justice system, marked by multiple interactions and actors at both the national and international levels.

The main purpose of the course is to provide students with suitable tools for the interpretation and application of of the main normative provisions of different models of criminal justice, the ability to conduct effective legal research and to solve cases that involving fundamental issues of international and comparative criminal justice.

Class attendance is mandatory and will be taken at each class.

Assessment methods

Students are required to attend lessons, and to examine and actively discuss the cases that will be submitted by the teacher. Active students’ participation is encouraged and may be taken into account in the final assessment.

FOR LEGS STUDENTS AND ERASMUS STUDENTS WITH 12 CREDITS (enrolled for both the criminal procedure AND the criminal law module):

THERE IS A SINGLE EXAM FOR THE WHOLE COURSE of “Criminal Justice From A Comparative And International Perspective (I.C)”

The final exam will be held in writing.

The final examination will consist of 3 questions (maximum 10 points each), which will deal with the topics dealt with in the lessons (both on the criminal procedure AND the criminal law module) and in particular:

- A theoretical question on principles

- A question on the topics dealt with in the criminal procedure module

- A question on the topics dealt with in the criminal law module

For each question there will be a maximum number of lines for the answer (approximately 15-20 lines).

The duration of the written examination will be about 1,5 hours.

The evaluation of the test will be carried out taking into account:

o knowledge of institutional profiles;

o the ability to analyse jurisprudential and doctrinal orientations;

o the ability to make connections between the different parts of the programme;

o the ability to develop, including in writing, critical arguments in summary form;

o the structure of the answers;

o the accuracy of the exposure of the answers.

Students with disabilities or Specific Learning Disorders can ask to the Professors adaptations for their specific needs.

FOR STUDENTS AND ERASMUS STUDENTS WITH 6 CREDITS (only enrolled to the criminal procedure module):

The final exam will be held in writing.

The final examination will consist of 3 questions (maximum 10 points each), which will deal with the topics dealt with in the lessons of the Criminal Procedure module, and in particular:

- A theoretical question on principles

- Two questions on the topics dealt with in the criminal procedure module

For each question there will be a maximum number of lines for the answer (approximately 15-20 lines).

The duration of the written examination will be about 1,5 hours.

The evaluation of the test will be carried out taking into account:

o knowledge of institutional profiles;

o the ability to analyse jurisprudential and doctrinal orientations;

o the ability to make connections between the different parts of the programme;

o the ability to develop, including in writing, critical arguments in summary form;

o the structure of the answers;

o the accuracy of the exposure of the answers.

Students with disabilities or Specific Learning Disorders can ask to the Professors adaptations for their specific needs.

 

Teaching tools

To facilitate the comprehension and learning of the syllabus, the course will be presented with the support of PowerPoint slides.

Students with disabilities or learning disabilities (DSA) who need additional support will be able to refer to the Professorsto discuss their needs and be directed to the relevant personnel and agree on specific assistance.

Guidance and support will be provided to students seeking internship opportunities at European and international institutions, such as international criminal courts and tribunals, European courts, the Inter-American Court for Human Rights, or NGOs.

Supervision for the final dissertation

Supervision for the final dissertation is offered with preference to students who have attended the course or, at least, successfully sat the exam.

Other criteria that will be taken into account are:

• The student’s interest in the subject, demonstrated not only by his or her exam records in the areas of international and criminal justice, but also by other experiences, such as internships and pro bono work, relating to the topics of the course;
• A working knowledge of foreign languages (in particular English, Spanish, German, French and Arabic). Passive knowledge of languages different from Italian is essential for supplementing the research with non-Italian documents and academic works;
• Participation in Erasmus or other exchange programmes, in particular if accompanied by the attendance of international and European criminal procedure courses.

The topic of the dissertation will be agreed after a preliminary interview finalised at ascertaining the student’s inclinations and aspirations. Where possible, freedom of choice as regards the topic of the thesis will be left to the student. Students are encouraged to propose a topic for their final thesis. The Professors will assess the suitability of the topic, based on her expertise, past thesis, and the student’s abilities.

Office hours

See the website of Michele Caianiello [https://www.unibo.it/sitoweb/michele.caianiello/en]

See the website of Giulia Lasagni [https://www.unibo.it/sitoweb/giulia.lasagni6/en]

Office hours

See the website of Michele Caianiello

See the website of Giulia Lasagni