18063 - European and International Criminal Procedure

Learning outcomes

It is well known that in every field of the law different existing systems tend to influence reciprocally. This is true for criminal law too, typically the most conservative and close of national legal systems. We can say that, at the present stage, it is sometimes not possible to manage properly the national criminal system ignoring the extra or supranational sources, such as the European or international ones.

Tendency to the melting of the different traditions is clearly emerging even in the field of the criminal process. Sometimes the result of the mentioned inclination (propensity) gives rise to autonomous international criminal justice systems, such as that one of the International Criminal Court (ICC); at the European level, the dialogue between the different juridical traditions is giving birth to reforms tending, on one side, to the harmonisation of the national systems; on the other, to the mutual recognition of judicial decisions.

The aim of the course is to examine, in the first instance, the principal characters of the reforms introduced in the field of the criminal process at the European level. At a second stage, to deal with the main traits of the criminal process adopted before the ICC. In examining the ICC criminal process, some comparative considerations will be spent to the solutions and the decisions adopted by the ad hoc Tribunals – the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda. They represent, in fact, the historical and, for some aspect, juridical precedent of ICC.

 

The exam can be sustained only after having passed European Union Law, Criminal Law, Civil Procedure and Criminal Procedure. The rule applies to every student, included those of the precedent years.

 

It is necessary a adequate knowledge of English or French.

Course contents

EUROPEAN CRIMINAL PROCEDURE (Dr. Silvia Allegrezza)

1. Europe and criminal justice: from the Council of Europe to the European Union. The interaction between different national systems and the multilevel protection of foundamental rights. Confrontation or fight?

2. Justice for Europe and Justice within Europe

3. Criminal trial in the Third Pillar: Referencies of Criminal Procedure law in the European Union Law.

 4. The Corpus Juris as an experimental European Criminal Code: cultural issues and the reasons of the failure.

5. Europol: an European Police or a Europe of Police? 

6. After Tampere: judicial cooperation in criminal matters. New bodies and new instruments.

a. Eurojust: towards an European Public Prosecutor?

b. Joint Investigation Teams

c. European Arrest Warrant

d. European Evidence Warrant

e. Seizures (2003/577/GAI)

 7. Traditional ways: the 2000 Convention on mutual judicial assistance

8. The struggle on the rights of the defendant: contents of the draft for a framework decisions on certain procedural rights in the EU  (COM 2004/688 def.) The framework decision on the rights of the victim in criminal trial (2001/220/GAI).

 9. Personal Data and criminal justice 

10. The Charter of Nice.  

11.   The Pupino case (C-105/03, 15 giugno 2005)

 12. An European concept of the ne bis in idem principle: art. 54 of the Schengen Agreement in the case law of the European Court of Justice

13. The Lisbon Treaty: the future of the European Criminal Justice?

 

INTERNATIONAL CRIMINAL JUSTICE (Prof. Michele Caianiello)

 

            A) Historical profile

1)      A short historical preamble. The different attempts to create an international criminal tribunal in the Twentieth Century. From Versailles to the ICC.

2)      Jurisdiction of the International Criminal Court. Complementarity and its procedural consequences

 

B) Subjects

1)      Judges: Appointment, status, guarantees, causes of exclusion. A short comparison with the ad hoc Tribunals provisions

2)      The Prosecutor: Appointment, status, independence. The Office of the Prosecutor. The juridical relations between the Office of the Prosecutor with UN Security Council and with national or international investigative organs/bodies

3)     The Accused. Rights and safeguards.

4)     The Victim: The right to intervene during the process and to make representations before the Court. Protection of the victims and witnesses during the testimony

 

C) The Trial

1)      The initiation of a proceedings. The investigations and the decision to charge a person with a crime. The control for the confirmation of the charges before the Pre-Trial Chamber

2)     The trial. The law of evidence: Presentation and admission of evidence. Right to confrontation and the rule against hearsay. Some comparison with the jurisprudence of ICTY and ICTR. The judgment: The criteria provided for by the statutory provisions and by the Rules of procedure and evidence

 

Readings/Bibliography

Recommended reading

 - European Criminal Procedure

At the beginning of the lessons the appropriate materials will be recommended to the students.

 

 - International Criminal Procedure

Michele Caianiello, Ammissione della prova e contraddittorio nelle giurisdizioni penali internazionali, Giappichelli, Torino, 2008, p. 1-205.

At the beginning of the lessons other materials will be recommended to the students.

Every student must 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:  http://www.icc-cpi.int

Assessment methods

Lessons and exams

Lessons will take place in the II semester of the year.

The final exam will be oral.

The exam can be sustained only after having passed European Union Law, Criminal Law and Civil Procedure. The rule applies to every student, included those of the precedent years.

Thesis

The subject of the thesis must be discussed and agreed with Professor Caianiello. The final version of the thesis must be presented to Professor Caianiello at lest 45 days before the date provided for production to the Faculty Students Secretariat.

 

Language of the course

Italian. However, it is necessary an adequate  knowledge of English or French.

 

Office hours

See the website of Michele Caianiello

See the website of Silvia Allegrezza