91372 - International Criminal Procedure

Course Unit Page

SDGs

This teaching activity contributes to the achievement of the Sustainable Development Goals of the UN 2030 Agenda.

Peace, justice and strong institutions

Academic Year 2021/2022

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

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.

Students will also have the possibility to give an oral presentation in class on a topic to be agreed with the Professors. Students that wish to give a presentation shall communicate so to the Professors no later than March 15th, 2021.

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

The final exam will consist of a research paper of at least 4,000 and no more than 6,000 words, to be individually prepared.

Students will be free to propose the topic of the research paper, choosing from a list of topics that is uploaded on the VIRTUALE (virtuale.unibo.it) website (further topics could be agreed with the Professors). The chosen topic of the research paper shall be communicated by the students to the Professors no later than March 15th, 2021.

For the paper, students are expected to autonomously present an exhaustive bibliography on the chosen topics. Online sources are allowed, as long as they do not include websites such as Wikipedia. The paper must indicate a list of all used bibliographic sources.

Papers will be e-mailed to the Professors e-mail address at least 3 weeks before the final examination date, which will be communicated to the students during the course (and published on Almaesami (https://almaesami.unibo.it/almaesami/welcome.htm ).

The Professors will only reply if the paper does not respect the prescribed parameters and requirements and therefore cannot be accepted (e.g., because it does not meet the minimum length requirement or due to a late submission). In case the paper meets all requirements and therefore it is accepted by the Professors, no e-mail response will be forwarded to the student. The student will come in person to the final examination to know the final evaluation outcome and decide whether to accept or refuse the final grade.

Active students’ participation is encouraged and will also be taken into account in the final evaluation: to be positively assessed students are required to read the compulsory readings indicated in the Syllabus and strongly encouraged to actively participate to the discussion at class.

The final assessment will be based on an overall evaluation, which will take into consideration both the paper and active interventions of the students during the course, in the terms previously expressed.

Enrolment in the final exam shall be done through the online application form Almaesami (https://almaesami.unibo.it/almaesami/welcome.htm ).

Students with disabilities or Specific Learning Disorders (DSA) can ask the Professor 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 Professor 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

See the website of Giulia Lasagni