98222 - European and International Criminal Procedure

Learning outcomes

By the end of the course, students will: - 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 European Court of Human Rights; - Learn about the rules of procedure and jurisprudence of the International Criminal Court; - Be able to identify the reasoning underlying courts’ decision and solve concrete cases on problematic issues emerging from the application of criminal procedure rights at the European level; - Be 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, particularly on the European Union criminal procedure law, the case-law of the Court of Justice, and the case law of the European Court of Human Rights.

• This part of the course is relevant for LEGS students and Laurea Magistrale (LMCU) students.

Part 2 of the course is dedicated to the basic principles of International Criminal Justice, focusing on the International Criminal Court (ICC) case law.

• This part of the course is mandatory for LMCU students only. 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 taught in English. Students' participation is encouraged and welcomed also in other languages (Italian, French, Spanish, German…). LMCU students may choose whether to write their exam in English or 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; [EN] Lasagni G., Suspect and Defedant, in: Elgar Encyclopedia of Crime and Criminal Justice, Cheltenham, Edward Elgar, 2024 (all 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's Office (EPPO); the European Anti-Fraud Office (OLAF);
• Fundamental 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 LMCU students, 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 analysing leading cases by the European Courts and the Superior Courts of the European Member States.

The decisions will be analysed during the lessons and discussed with the students.

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

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

Following the calendar indicated in the Syllabus, to make the discussion effective and for 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; [EN] Lasagni G., Suspect and Defendant, in: Elgar Encyclopedia of Crime and Criminal Justice, Cheltenham, Edward Elgar, 2024 (all contributions are available on Virtuale together with the course material).

The primary sources of the course may be found online, namely:

- 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 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 be posted on Virtuale

- LMCU students shall also have a copy of the ICC Statute and the ICC Rules of Procedure and Evidence. Both sources can be downloaded in English or French from the ICC site.

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

Teaching methods

The teaching method will follow, for the most part, a problem-based approach.

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

Classes will follow this 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 participate actively in the discussion in class.

Variations on the programme may be decided during the course and will be communicated to the students in a timely manner.

Prof. Giulia Lasagni, chair of the course, and Prof. Michele Caianiello will teach classes.

Assessment methods

Students are strongly encouraged to attend the lessons and examine and actively discuss the cases the teacher will submit.

To do so, students are required to read in advance the cases highlighted in green in the Syllabus that will be discussed in class, following 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 LMCU  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)

LMCU students can choose whether to write the exam in English or 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;

On 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 the Professors to adjust the program according to their learning agreement.

 

MASTER THESES

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

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

The Professors will also indicate a tutor, who will assist the student during the research.

Teaching tools

In a complementary way, PPT presentations might be used, which will be uploaded to Virtuale.

Students with learning disorders and/or temporary or permanent disabilities: please contact the competent office as soon as possible. The office will propose acceptable adjustments. The request for adaptation must also be submitted in advance (15 days before the exam date) to the lecturer, who will assess the appropriateness of the adjustments, considering the teaching objectives.

Office hours

See the website of Giulia Lasagni

See the website of Michele Caianiello

See the website of Michele Caianiello