Apart from ne bis in idem, other reasons may result in a Member State not having the right to prosecute. These relate to time bars, immunities and the failure to comply with various other formalities.
4.3.1. Time Bars to the Prosecution
Regulations may contain specific rules concerning the limitation period for proceedings, rules regarding interruption thereof, and the period for implementing a decision that imposes an administrative penalty. The importance of mentioning this lies in the fact that the limitation periods provided in Regulations are much shorter than those provided in national criminal law for corresponding criminal offences.
(European Criminal Law, Intersentia, a treia ediție, 2016, la p. 297)
The lack of any case law on the compliance of Member States with the obligation to criminalise behaviour stems from the fact that the Court did not have jurisdiction over such cases until the entry into force of the Treaty of Lisbon.
(European Criminal Law, Intersentia, a treia ediție, 2016, la p. 246)
The Court only has jurisdiction if the question relates to a pending dispute and if the national court or tribunal ‘is called upon to give a decision capable of taking into account the preliminary ruling'(cu trimite la cauza 338/85). The general view is that public prosecutors are not able to refer to the Court. However, in one of the first criminal cases decided by the Court, it declared the Pretore di Salo admissible. It observed that, in the pending proceedings, the Pretore combined the functions of a public prosecutor and an examining magistrate. What mattered was that the ‘request emanates from a court or tribunal which has acted in the general framework of its task of judging, independently and in accordance with the law, cases coming within the jurisdiction conferred on it by law, even though certain functions of that court or tribunal in the proceedings which gave rise to the reference for a preliminary ruling are not, strictly speaking, of a judicial nature (cu trimitere la cauza 14/86 Pretore di Salo).
With reference to Pretore di Salo, Advocate General Ruiz-Jarabo Colomer stated that all kinds of preliminary investigations could qualify:
„The investigation could have resulted in an order than no further action be taken, in a summons to appear, or in an acquittal, but it could not, under any circumstances, create an inrreversible procedural situation, nor did it constitute, for the purpose of national law, a judicial act subject to the fundamental safeguards”(C-60/02, punctul 22 din Concluzii).
In the light of the evolving case law of the Court on ne bis in idem and out-of-court settlements by a prosecutor, the question arises as to whether a request by a prosecutor should remain inadmissible. (…) If the Court in Gozutok attached much weight to the fact that an out-of-court settlement has the same value as a court decision, then an investigation by a prosecutor might qualify for a reference. (…)
The scope of some Framework Decisions and Directives is determined by proceedings before the ‘court having jurisdiction in particular in criminal matters’. This is a concept that needs a uniform application of Union Law. The question is whether this limitation has jurisdictional consequences for the Court.
(European Criminal Law, Intersentia, a treia ediție, 2016, la pp. 138-9)
This contribution focuses on the question of the extent to which national administrative authorities can derive their powers directly from directives and regulations. To answer this question, first the content and scope of the principle of legality are discussed in section 2. Then the question of if, and to what extent, national administrative authorities can derive powers directly from directives (section 3) and regulations (section 4) is discussed. The requirements of both EU law and Dutch law in this regard are taken into account. For the extent to which national administrative authorities can derive their powers directly from directives or regulations, section 5 discusses whether this is problematic in the light of the functions of the legality principle. Finally, the contribution is finished by a conclusion in section 6.
Maartje Verhoeven, Rob Widdershoven
(National Legality and European Obligations în The Eclipse of the Legality Principle in the European Union (coord. L. Besselink, F. Pennings, S. Prechal), Wolters Kluwer, 2011, la p. 56)
The new AML framework consists of tow legal instruments both based on Article 114 TFEU on the internal market: the Fourth AML Directive 2015/849 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing, and Regulation 2015/857 on information accompanying transfers of funds.
Under the new AML framework, the Member States will still have the freedom to choose the applicable penalties, i.e. administrative, criminal or a combination of two. In contrast, any measure based on Article 83(1) TFEU will leave no such freedom to the Member States. However, the resulting penalties must all comply with the Charter and be effective, proportionate and dissuasive.
With a strict legal basis analysis as a starting point, this chapter has analysed the current EU AML framework from both a historical and contextual point of view, thereby providing a nuanced picture of the current EU AML framework and its particulars. This has not only included an overview of the current regulatory framework, but also highlighted certain specific issues, such as the involvement of private actors and related potential problems from a procedural and fundamental rights point of view.
(Money laundering în Research Handbook on EU Criminal Law, ed. Edward Elgar, 2016, la p. 342 p. 354)
Criminal law, whether substantive or procedural, is indispensably associated with fundamental and human rights. Since the period of the enlightenment, this bond has long been considered as a conquest of Western civilization and is manifest in the first „Bill of Rights”; such as the French Declaration of the Rights of Man, adopted in 1789, and the Fifth and the Sixth Amendments to the United States Constitution adopted in 1791. The roots of this relationship though, go way back into article 39 of the Magna Carta, the law of th 12 tables of the Romans and the ancient Greek laws and teachings. (nota de subsol 9: For example, the famous legal maxim audi alteram partem is attributed to Aristophanes in Wasps 725.27, ‘Thou shall hold no trial, before both parties are heard’ and to Euripides in his speech against Timokrates, 157, from which the maxim was drawn that ‘no one should be judged and punished without being heard’. Also see Aristotle in his Rhetoric, Ch. 1, 1354b, 1355a, where the principle of legality may be founded in his teachings: ‘it is of great moment that well-drawn laws should themselves define all points they possibly can and leave as few as may be to the decision of the judges’.
(Fundamental rights, national identity and EU criminal law în Research Handbook on EU Criminal Law, ed. Edward Elgar, 2016, la p. 126)
Therefore, an interpretation can violate the principle of lex stricta if it „produces a result which was not reasonably foreseeable at the time when the offence was committed, especially in the light of the interpretation put on the provision in the case-law at the material time„(cu trimitere la C-189/02 P, 202/02 P, 208/02 P et al. Dansk, para. 218)
(The Principle of Legality in European criminal law, ed. Intersentia, decembrie 2015, la p. 209)
There are various examples of criminal norms in European instruments that are potentially vague.
Examples include the European instruments on terrorism, child pornography, racism and xenophobia.
The core criticism of vague European definitions of crimes is that they prevent the national legislator from respecting the lex certa principle.
An additional example relates to the definitions of the elements of the general part of criminal law. Framework Decisions and Directives include the obligation to criminalise certain forms of participation, negligence and attempt without providing a definition of those terms. Thus, the Commission in its Annex to the report on the implementation of the Framework Decision on terrorism refers to the problems created by the different interpretations of the term ‘incitement’ in Italy, Spain, France and UK.
(The Principle of Legality in European criminal law, ed. Intersentia, decembrie 2015, la p.pp. 200-2)
Such a legal basis is also needed when the national prosecution is based on a Regulation. While Regulations should not be implemented into national law, because they have direct effect, the ECJ has held that a Regulation cannot form the basis of criminal liability without a national legal basis (cu trimitere la C-60/02, paragrafele 60-62). This holding should be followed by the national systems, irrespective of the obligations of the national legality principle.
(The Principle of Legality in European criminal law, ed. Intersentia, decembrie 2015, la p. 181)
This is because judicial arbitrariness can take different forms. Certainly, one form is taking over the legislative functions. Another form, though, may be found in judicial reasoning per se, namely the arguments that courts use for interpreting criminal liability. To illustrate this, a case will be presented where a judicial interpretation was declared to be in violation of lex stricta. This case is a landmark German judgment on the principle of legality.
The Sitzblockaden case was about the interpretation of Article 240 GCC, which criminalises coercion and it includes the term „force”(Gewalt). The question was whether „force” referred to psychological as well as physical force. Participants in a sit-in demonstration were regarded as exercising psychological force over the driver of the truck who supplied a nuclear plant. Here the grammatical interpretation would suggest that also psychological force fall within the scope of criminalisation, as the provision only mentions the term ‘force’ without any further distinction. Yet the German Constitutional Court concluded that interpreting psychological force as coercion would be an arbitrary interpretation and, thus, against the principle of legality. What is interesting about this case is that the German Constitutional Court did not come to this conclusion by using the prohibition of analogy. It rather argued that the interpretation of the conflicting rights followed by the lower court was irreconcilable with the will of the legislator and the German legal order in general.
With subtlety, the German Constitutional Court adopted a ‘rights-conception’ to the legality principle similar to the ECtHR by focusing on the concept of foreseeability and how this would be influenced by judicial interpretation. It explored possible interpretations in the light of the specific situation at hand and weighed the right to foreseeable criminalisation of passive acts of intimidation during demonstrations against the purpose of the criminal provision. It found that the right to foreseeability outweighs the obligation to protect individuals from emotional coercion in the specific context of the German society. The claim to foreseeability in this case was successful because criminalisation of psychological force would create chaos in future cases. The norm would become so broad that it would be impossible to predict what intimidating act would be coercive for the purpose of criminalisation. It would create confusion regarding permissibility of acts during demonstrations and also other situations, involving intimidation at work or school. (s.n. – M.M.-B.)
(The Principle of Legality in European criminal law, ed. Intersentia, decembrie 2015, la pp. 110-1)