98222 - EUROPEAN AND INTERNATIONAL CRIMINAL PROCEDURE

Learning outcomes

- Learn about the development of criminal procedural law at the European level, in particular through the analysis of a series of cases of the Court of Justice of the European union and of the Court of Human Rights; - Learn about the rules of procedure and jurisprudence of the international criminal court; - are able to identify the reasoning undetlying courts’ decision and solve concrete cases on problematic issues emerging from the application of criminal procedure tights throughout the European union; - are able to critically evaluate the new jurisprudential and legislative trends in the field of European and international criminal procedure.

Course contents

Part 1 of the course focuses on the interaction in criminal law and procedure between different legal systems, in particular on the European Union criminal procedure law, the case-law of the Court of Justice, and on the case law of the European Court of Human Rights.

• This part of the course is relevant for both LEGS students and students of the Laurea Magistrale.

Part 2 of the course is dedicated to the basic principles of International Criminal Justice, with a special focus on the International Criminal Court (ICC) case-law.

• This part of the course is reserved only to students of the Laurea Magistrale. LEGS students wishing to study international criminal justice may choose the separate course of International Criminal Procedure (91372).

 NECESSARY SKILLS:

A basic knowledge of English is necessary as the course is held in English. Students’ participation is anyway encouraged and welcomed also in other languages (Italian, French, Spanish, German…). Students of the Laurea Magistrale will also be able to choose whether to write their exam in English or in Italian.

Basic knowledge of criminal procedure is required. For students that have not attended the criminal procedure classes before, it is recommended: [IT] Caianiello M, Accusatorio e inquisitorio, 2023 (forthcoming publication); [EN] Caianiello M., Adversarial and Inquisitorial Criminal Procedure, in: Elgar Encyclopedia of Crime and Criminal Justice, Cheltenham, Edward Elgar, 2023, pp. 1 – 14 (both contributions are available on Virtuale together with the course material).

COURSE CONTENTS:

EUROPEAN CRIMINAL PROCEDURE: main topics (all students)

• Institutional profiles: The ECHR and the European Court on Human Rights; The European Union (EU); the Court of Justice (CJEU); the European Public Prosecutor Office (EPPO); the European Anti-fraud Office (OLAF);
• Basic problematic aspects: Substantial “vs” Procedural Criminal Law; Holistic notion of fair trial; definition of criminal matter; principle of legality in the criminal matter;
• Mutual recognition in judicial cooperation: secondary legislation; limits and counter-limits;
• Scope of application of the Charter of the Fundamental Rights of the EU;
• Evidence sharing and admissibility of evidence;
• right to examine or have examined witnesses during criminal proceedings;
• Privacy protection and criminal investigations: secondary legislation on data retention and AI; case-law on metadata, mass surveillance and wiretapping;
• Privilege against self-incrimination;
• Right to be assisted by a lawyer;
• Ne bis in idem/prohibition of double jeopardy;
• Right to interpretation and translation in criminal proceedings;
• Amendment of charges;
• Prohibition of torture and inhuman and degrading treatment and criminal proceedings.

INTERNATIONAL CRIMINAL PROCEDURE: main topics (only students from Laurea Magistrale, no LEGS students)

From the International Military Courts of Nuremberg and Tokyo to the Rome Statute and the establishment of the Permanent International Criminal Court. Proceedings before the International Criminal Court. Analysis of the court’s case-law with some emblematic decisions, eg. amendment of charges; the Afghanistan situation; method of conducting examination and counter-examination of witnesses.

Readings/Bibliography

The course is based on the analysis of leading cases by the European Courts and by the Superior Courts of the European Member States.

The decisions will be analysed in the course of the lessons and discussed together with the students.

Texts and materials of the cases discussed during the course will be posted on Virtuale.

On Virtuale, in addition to texts of the decisions and some brief comments/analysis, a program with the calendar of lessons, topics covered, and cases analyzed is uploaded (Syllabus).

Following the calendar indicated in the Syllabus, to make the discussion effective and for the purposes of the final exam grade, students are required to read, before each lesson the decisions highlighted in green in the Syllabus, which will be discussed together.

Complementary textbooks:

For European Criminal Law and Procedure V. Manes - M. Caianiello, Introduzione al diritto penale europeo. Fonti, metodi, istituti, casi, Giappichelli, 2020.

Students who wish to use sources in English, may refer to the dedicated folder uploaded on Virtuale (name: "English reading material").

For International Criminal Justice (no LEGS students): Caianiello M / Ferioli ML (2013). Il procedimento davanti alla Corte penale internazionale. In: Diritto processuale dei diritti umani. p. 33-102, RIMINI: Maggioli Editore.

For students that have not attended the criminal procedure classes before, it is recommended [IT] Caianiello M, Accusatorio e inquisitorio, 2023 (forthcoming publication); [EN] Caianiello M., Adversarial and Inquisitorial Criminal Procedure, in: Elgar Encyclopedia of Crime and Criminal Justice, Cheltenham, Edward Elgar, 2023, pp. 1 – 14 (both contributions are available on Virtuale together with the course material).

- EU Treaties and EU regulations, directives and framework decisions can be found at the Court of Justice of the EU website: http://curia.eu - relevant decisions will however be posted on Virtuale

- The European Convention on Human Rights and the case law of the European Court of Human Rights may be found at https://hudoc.echr.coe.int/eng ; relevant decisions will however be posted on Virtuale

- Laurea Magistrale students shall also have a copy of the ICC Statute and of the ICC Rules of Procedure and Evidence. Both the sources can be downloaded freely at the ICC site, in the English or in the French version.

- The ICC site is (no LEGS students): http://www.icc-cpi.int - relevant decisions will however be posted on Virtuale

Students who, for reasons related to disabilities or specific learning disorders, need compensatory tools, can communicate their needs to the lecturers in order to be addressed to the Referents and agree on the adoption of the most appropriate measures.

Teaching methods

The teaching method will follow in most part a problem-based approach.

This implies that students will be strongly encouraged to attend to the lessons, and to examine and discuss the cases that will be submitted by the teacher. Participation at class represents a fundamental part of the final grade.

Classes will be in accordance with the following general scheme (however, please check the Syllabus uploaded on Virtuale for a more specific calendar):

1. First three weeks: traditional classes (European Criminal Procedure Law)
2. From the 3rd to the 6th week: lessons based on active discussion of the cases (European Criminal Procedure Law).
3. 7th week: traditional classes on International Criminal Justice (not for LEGS students)
4. 8th week on: lessons based on active discussion of the cases (International Criminal Justice) - not for LEGS students

Following the calendar indicated in the Syllabus, students are asked to read, before each lesson, the decisions highlighted in green in the Syllabus to actively participate to the discussion in class.

Variations on the Programme may be decided during the course and will be timely communicated to the students.

Classes will be taught by Dr. Giulia Lasagni, chair of the course, and by Prof. Michele Caianiello.

Assessment methods

Students are strongly encouraged to attend to the lessons, and to examine and actively discuss the cases that will be submitted by the teacher.

To do so, students are required to read in advance the cases highlighted in green in the Syllabus that will be discussed in class, in accordance with the plan indicated in the Syllabus.

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 European criminal procedure and – for Laurea Magistrale students- on the trial before the International Criminal Court) and in particular:

- A theoretical question on the principles

- A theoretical question about the cases treated in class (those cases are also examined in the textbooks)

- A practical question (solution of a case)

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

Students of the Laurea Magistrale will be able to choose whether to write the exam in English or in Italian. LEGS students will write their exam in English.

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 the lecturers for adaptations to their specific needs.

Erasmus students may ask to the Professor adjustment of the program according to their learning agreement.

MASTER THESES

Master theses are assigned by Dr Giulia Lasagni or Prof. Michele Caianiello after an interview with the student, that shall also present a short paper (max 1 page) with a proposal for a potential topic of the thesis.

After this pre-screening phase, a topic (which may be also different from that proposed by the student) will be assigned directly by the Professors.

The Professors will also indicate a tutor, which will assist the student in the course of the research.

Teaching tools

In a complementary way ppt presentations might be used, which will be uploaded on Virtuale.

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

Office hours

See the website of Giulia Lasagni

See the website of Michele Caianiello

See the website of Michele Caianiello