International and European Criminal Law 9781509922222, 9783406694752, 9783848730889

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Preface to the 2nd edition The field of International and European Criminal Law is under continuous development; a development not only facilitated by the extensive jurisprudence of European and international (criminal) courts and tribunals, but also growing efforts of conceptualisation in international legal scholarship. These characteristics provided the motivation to create this second, fully revised and considerably extended edition of my textbook on International and European Criminal Law. It offers a concise introduction to those areas of criminal law in which international and European influence is most obvious as well as to the genuinely international criminal legal order. This comprises the sub-fields of criminal jurisdiction and the territorial scope of the application of national criminal law (B.), European Criminal Law, including the influence of EU law on national criminal law, EU criminal legislation, as well as the legal regime of the European Convention on Human Rights (C.), and finally International Criminal Law as applied by the International Criminal Court and other international criminal courts and tribunals (D.). The second edition includes all of the latest substantive legal developments and contains numerous references to international legal literature and jurisprudence. The updated chapter on the comparative analysis of the law of criminal jurisdiction illustrates the most recent essential legal reforms in a number of European states. The chapters on the criminal law of the European Union now contain a completely new segment on fundamental rights in the context of judicial cooperation in criminal matters. Furthermore, the revised chapter regarding the European Charter on Human Rights focuses particularly on the European Court of Human Rights’ recent jurisprudence on the right to representation and confrontation. Moreover, the reviewed chapters regarding International Criminal Law have been revised and updated as to include the most important recent judgments and decisions issued by the International Criminal Court. Lastly, a visual synopsis displaying all situations and cases into which the International Criminal Court has opened formal investigations so far as well as a short summary of their broader socio-political backgrounds, can now be found in the attached annex. My original inspiration to publish an English textbook on “International and European Criminal Law” can be traced back to a strong interest in a compact and concise textbook similar to the one I have published in German (“Internationales und Europa¨isches Strafrecht”, 7th edition, Nomos 2016) demonstrated by several colleagues and numerous students from abroad. Since the English textbook is intended to primarily address readers from outside Germany, I decided to prepare an internationalised version rather than to simply translate the German textbook into English. However, the form of a typical German textbook has been maintained. I focused on the most important problematic legal issues in order to make the complex subject matters easily comprehensible for students but also for legal scholars and practitioners from diverse legal backgrounds. Additionally, the text is illustrated by numerous charts, examples and case exercises, which complement particularly complicated issues. Reference is frequently made to national legal orders and jurisprudence in order to exemplify similarities between national and international legal structures and developments. As international and European legal texts and documents of relevance are often not easily available, I have created a complementary website in order to provide the reader with a constantly updated list of all necessary material. The website can be accessed via http://www.satzger-international.info V

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Preface

The realisation of a second edition, revising the original text considerably and taking into account all the important and numerous changes in European and International Law, is the result of perfect team work by my most diligent student and research assistants working at my chair at the Ludwig-Maximilians-Universita¨t in Munich. All of them deserve my utmost gratitude for their most valuable contributions, their constant commitment and dedication. Foremost, I want to thank my assistants Dr. Laura Neumann and Nicolai von Maltitz, LL.M., who were in charge of coordinating the second edition and diligently drafted and revised large parts of the core text. Furthermore, I want to thank Dr. Frank Zimmermann and Laura Funke for their persistent help in adapting and updating essential parts of the textbook. Moreover, I want to thank Juliane Abel, Severin Berger, Lena Hartung, Dorothea Hirt, Niklas Kastel, Philipp Kellner, Johannes Kleinhenz, Julia Mayer, Julio Ramos Pires, Lorenz Seidl, Isabel Vicarı´a Barker, and Jan Wiebers for their attentive work on formal corrections. I am especially indebted to my student assistant Lorca´n Hyde for his excellent 24/7 language control and translation efforts as well as for his most valuable input to the contents. Without his constant efforts, the realisation of the 2nd edition would not have been possible. Last but not least, I want to thank Dr. Wilhelm Warth and Thomas Klich from our German co-publisher C.H.Beck for their permanent support, valuable advice and enormous patience. Helmut Satzger Munich, July 2017

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Glossary AC .......................................... AcP ........................................ AEUV .................................... AG .......................................... AJIL ....................................... AK .......................................... alt. .......................................... AMG ...................................... Am. J. Comp. L. .................. AO ......................................... art. .......................................... AT .......................................... AVR ....................................... AWG ..................................... BAL ........................................ BayObLG .............................. BGBl. ..................................... BGH ....................................... BGHSt ................................... BNatSchG ............................. BR-Drucks. ........................... BT .......................................... BT-Drucks. ........................... BVerfG .................................. BVerfGE ............................... C.pe´n. .................................... C.pr.pe´n. ............................... CDPC .................................... CEN ....................................... CENELEC ............................ cf ............................................. CFR ........................................ CFSP ...................................... ch. ........................................... Cic .......................................... CISA ...................................... CJEU ...................................... CJEUSt .................................. cl. ............................................ CLF ........................................ CMLR .................................... CoESt ..................................... Colum. J. Transnat. L. ....... COM ...................................... cont. ....................................... CP .......................................... CR .......................................... Crim.L.R. .............................. d.o. ......................................... Dir. ......................................... DNA ...................................... Doc. ....................................... Do¨V ....................................... DRiZ ......................................

Appeals Chamber Archiv fu¨r die civilistische Praxis (journal) Vertrag u¨ber die Arbeitsweise der Europa¨ischen Union (TFEU) Amtsgericht (Local Court) American Journal of International Law (journal) Alternativkommentar Alternative Arzneimittelgesetz (German Act on Medical Products) The American Journal of Comparative Law (journal) Abgabenordnung (German Fiscal Code) article Allgemeiner Teil (General Part) Archiv des Vo¨lkerrechts (journal) Außenwirtschaftsgesetz (German External Trade and Payments Act) blood alcohol level Bayerisches Oberstes Landesgericht (Former Bavarian Supreme Court) Bundesgesetzblatt (Federal Law Gazette) Bundesgerichtshof (German Federal Court of Justice) Sammlung der Entscheidungen des Bundesgerichtshofs in Strafsachen (Decisions of the Federal Court of Justice in criminal matters) Bundesnaturschutzgesetz (Federal Nature Conservation Act) Bundesratsdrucksache (Bundesrat document) Besonderer Teil (Special Part) Bundestagsdrucksache (Bundestag document) Bundesverfassungsgericht (Federal Constitutional Court) Sammlung der Entscheidungen des Bundesverfassungsgerichts (Decisions of the Federal Constitutional Court) Code pe´nale (Criminal Code of France) Code proce´dure pe´nale (Criminal Procedure Code of France) Committee on Crime Problems European Committee for Standardization European Committee for Electrotechnical Standardization confer Charter of Fundamental Rights of the European Union Common Foreign and Security Policy Chapter Code d’instruction criminelle (Criminal Procedure Code of Belgium) Convention implementing the Schengen Agreement Court of Justice of the European Union (before 1st December 2009: European Court of Justice [ECJ]) Statute of the Court of Justice of the European Union (before 1st December 2009: Statute of the European Court of Justice [ECJSt]) Clause Criminal Law Forum (journal) Common Market Law Review (journal) Statute of the Council of Europe Columbia Journal of Transnational Law (journal) Documents of the European Commission contested Codice Penale (Criminal Code of Italy) Computer und Recht (journal) Criminal Law Report (journal) dissenting opinion Directive deoxyribonucleicacid Document Die o¨ffentliche Verwaltung (journal) Deutsche Richterzeitung (journal)

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Glossary dt. ........................................... D-TCE ................................... DVBl. ..................................... e. g. ......................................... EC .......................................... ECCC .................................... ECHR .................................... ECJ ......................................... ECJSt ..................................... ECN ....................................... ECPI ...................................... ECR ........................................ ECSC ..................................... ECtHR ................................... ed./eds ................................... edn ......................................... EEC ........................................ EG .......................................... EGC ....................................... EGStGB ................................. EGV ....................................... Einf. ....................................... Einl. ........................................ EJCCLCJ ............................... EJIL ........................................ EJN ......................................... ELOs ...................................... E. L. Rev. .............................. EMRK ................................... et al. ....................................... et seq./et seqq. ..................... etc. .......................................... EU .......................................... EUBestG ............................... EuCLR ................................... eucrim ................................... EuGRZ .................................. EuHbG .................................. EuR ........................................ EUR ....................................... eur. ......................................... Euratom ................................ Euratom Treaty ................... Eurojust ................................ Europol ................................. EUV ....................................... EuZW .................................... EVV ....................................... EWCA Crim ........................ EWS ....................................... FAZ ........................................ FischEtikettG ....................... fn ............................................ Fordham Int.L.J. ................. FS ........................................... FSB ......................................... g .............................................. GA ..........................................

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deutsch (German) Draft Treaty establishing a Constitution for Europe Deutsches Verwaltungsblatt (journal) exempli gratia European Community Extraordinary Chambers in the Courts of Cambodia European Convention on Human Rights European Court of Justice (since 1st December 2009: Court of Justice of the European Union [CJEU]) Statute of the European Court of Justice (since 1st December 2009: Statute of the Court of Justice of the European Union [CJEUSt]) European Cartel Network European Criminal Policy Initiative European Court Report European Coal and Steel Community European Court of Human Rights editor/editors edition European Economic Community Europa¨ische Gemeinschaft (European Communities) European General Court Einfu¨hrungsgesetz zum Strafgesetzbuch (Introductory Act to the German Criminal Code) Vertrag zur Gru¨ndung der Europa¨ischen Gemeinschaft (TEC) Einfu¨hrung (introduction) Einleitung (introduction) European Journal of Crime, Criminal Law and Criminal Justice (journal) European Journal of International Law (journal) European Judicial Network European Liaison Officers European Law Review (journal) Europa¨ische Menschenrechtskonvention (ECHR) et alia/alii/aliae et sequens/et sequentia et cetera European Union EU-Bestechungsgesetz European Criminal Law Review (journal) The European Criminal Law Associations’ Forum (journal) Europa¨ische Grundrechte-Zeitschrift (journal) Europa¨isches Haftbefehlsgesetz (German Act on the Implemenation of the European Arrest Warrant) Europarecht (journal) Euro European European Atomic Energy Community Treaty Establishing the European Atomic Energy Community European authority for judicial cooperation European Police Office Vertrag zur Gru¨ndung der Europa¨ischen Union (TEU) Europa¨ische Zeitschrift fu¨r Wirtschaftsrecht (journal) Europa¨ischer Verfassungsvertrag (TCE) England and Wales Court of Appeal (Criminal Division) Europa¨isches Wirtschafts- und Steuerrecht (journal) Frankfurter Allgemeine Zeitung (journal) Fischetikettierungsgesetz (German Act on the Labelling of Fish) footnote Fordham International Law Journal (journal) Festschrift (celebratory/commemorative publication) Federal Security Service of the Russian Federation gram Goltdammer’s Archiv fu¨r Strafrecht (journal)

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Glossary GBA ....................................... GDR ....................................... GG ......................................... GoJIL ..................................... GmbHR ................................ GrK ........................................ GS ........................................... GSSt ....................................... Harv. Int. L. J. ..................... HK ......................................... Hum. R. Rev. ....................... HRRS ..................................... HuV-I .................................... i. e. .......................................... ICC ........................................ ICCPR ................................... ICJ .......................................... ICJ-Rep ................................. ICJSt ...................................... ICLR ...................................... ICLQ ...................................... ICRC ...................................... ICTR ...................................... ICTR Statute ........................ ICTY ...................................... ICTY Statute ........................ id. ........................................... IJHR ....................................... ILC ......................................... ILR ......................................... IMT ........................................ IMTFE ................................... InDret .................................... int. .......................................... IntBestG ................................ IntVG .................................... IRG ........................................ IRRC ...................................... IRSG ...................................... JA ........................................... JCE ......................................... JCP ......................................... J. East. Afr. S. ...................... JECL ...................................... JHA ........................................ JICJ ........................................ JK ........................................... JR ............................................ Jura ........................................ JuS .......................................... JYIL ........................................ JZ ............................................ KritJ ....................................... KritV ..................................... LFGB .....................................

Generalbundesanwalt(schaft) (Federal Prosecutor General/Office of the Federal Prosecutor General) German Democratic Republic Grundgesetz (German Basic Law) Goettingen Journal of International Law (journal) GmbH-Rundschau (journal) Große Kammer (Grand Chamber) Geda¨chtnisschrift (commemorative publication) Großer Senat in Strafsachen (Grand Panel for Criminal Matters) Harvard International Law Journal (journal) Handkommentar Human Rights Review (journal) Ho¨chstrichterliche Rechtsprechung in Strafsachen (journal) Humanita¨res Vo¨lkerrecht – Informationsschriften (journal) id est International Criminal Court International Covenant on Civil and Political Rights International Court of Justice International Court of Justice Reports Statute of the International Court of Justice International Criminal Law Review (journal) The International and Comparative Law Quarterly (journal) International Committee of the Red Cross International Criminal Tribunal for Rwanda Statute of the International Criminal Tribunal for Rwanda International Criminal Tribunal for the former Yugoslavia Statute of the International Criminal Tribunal for the former Yugoslavia idem International Journal of Human Rights (journal) International Law Commission International Law Reports (journal) International Military Tribunal International Military Tribunal for the Far East Revista para el Ana´lisis del Derecho (journal) international Gesetz zur Beka¨mpfung der internationalen Bestechung (German Act on International Bribery) Integrationsverantwortungsgesetz (German Act on the Exercise of Responsibility for Integration of the Bundestag and the Bundesrat in Matters Concerning the European Union) Gesetz u¨ber die internationale Rechtshilfe in Strafsachen (German Act on Mutual Legal Assistance) International Review of the Red Cross (journal) Schweizerisches Bundesgesetz u¨ber internationale Rechtshilfe in Strafsachen (Swiss Act on Mutual Judicial Assistance in Criminal Matters) Juristische Arbeitsbla¨tter (journal) Joint Criminal Enterprise Juris-Classeur Pe´riodique (journal) Journal of Eastern African Studies (journal) Journal of European Criminal Law (journal) Justice and Home Affairs Journal of International Criminal Justice (journal) Jura-Karteikarte (journal) Juristische Rundschau (journal) Juristische Ausbildung (journal) Juristische Schulung (journal) Japanese Yearbook of International Law (journal) Juristenzeitung (journal) Kritische Justiz (journal) Kritische Vierteljahresschrift fu¨r Gesetzgebung und Rechtswissenschaft (journal) Lebensmittel- und Futtermittelgesetzbuch (German Foodstuff and Animal Feedingstuff Code)

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Glossary LG .......................................... lit. ........................................... LJIL ........................................ LK .......................................... LOPJ ...................................... LPICT .................................... MDR ...................................... MJECL .................................. MK ......................................... mph ....................................... n.v. ......................................... NATO ................................... NILR ...................................... NJ ........................................... NJECL ................................... NJW ....................................... No(s)./no(s). ........................ NStZ ...................................... NStZ-RR ............................... NVwZ .................................... NZV ....................................... o.v. .......................................... ¨ AnwBl ................................ O OJ (EU/EC) .......................... OLAF ..................................... OLG ....................................... ORIL ...................................... OTP ....................................... p./pp. ..................................... para./paras ............................ PCIJ ....................................... PIF ......................................... PJCC ...................................... Prot. ....................................... PTA ....................................... RDP ....................................... Reg. ........................................ Res. ......................................... Rev. sc. Crim. ...................... RGBl. ..................................... RiFlEtikettG ......................... RJD ........................................ RMC ...................................... Rome Statute ....................... RPE ........................................ RStGB .................................... s. ............................................. SCSL ...................................... SCSLSt ................................... SEC ........................................ sec. ......................................... sen. ......................................... StGB ....................................... StGB-Austria ....................... StGB-Switzerland ................ STL ......................................... StPO ...................................... StR .......................................... StraFo .................................... StV .........................................

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Landgericht (Regional Court) litera Leiden Journal of International Law (journal) Leipziger Kommentar zum Strafgesetzbuch Ley Orga´nica del Poder Judicial (Spanish Act on the Organisation of the Judiciary) The Law and Practice of International Courts and Tribunals (journal) Monatsschrift fu¨r Deutsches Recht (journal) Maastricht Journal for European and Comparative Law (journal) Mu¨nchener Kommentar zum Strafgesetzbuch miles per hour new version North Atlantic Treaty Organization Netherlands International Law Review (journal) Neue Justiz (journal) New Journal of European Criminal Law (journal) Neue Juristische Wochenschrift (journal) number(s) Neue Zeitschrift fu¨r Strafrecht (journal) Neue Zeitschrift fu¨r Strafrecht – Rechtsprechungsreport (journal) Neue Zeitschrift fu¨r Verwaltungsrecht (journal) Neue Zeitschrift fu¨r Verkehrsrecht (journal) old version ¨ sterreichisches Anwaltsblatt (journal) O Official Journal of the European Union/Communities European Anti-Fraud Office Oberlandesgericht (Higher Regional Court) Oxford Reports on International Law Office of the Prosecutor page(s) paragraph/paragraphs Permanent Court of International Justice Convention on the Protection of the European Communities’ Financial Interests Police and Judicial Cooperation in Criminal Matters Protocol Pre-Trial Chamber Revue de droit pe´nal et de criminologie (journal) Regulation Resolution Revue de science criminelle et de droit pe´nal compare´ (journal) Reichsgesetzblatt (Law Gazette of the German Reich) Rindfleischetikettierungsgesetz (German Act on the Labelling of Beef) Reports of Judgments and Decisions Revue du Marche´ Commun (journal) Rome Statute of the International Criminal Court Rules of Procedure and Evidence Reichsstrafgesetzbuch (Criminal Code of the German Reich) sentence Special Court for Sierra Leone Statute of the Special Court for Sierra Leone SEC Document (European Commission document which cannot be classified in another series) section(s) senior Strafgesetzbuch (German Criminal Code) ¨ sterreichisches Strafgesetzbuch (Criminal Code of Austria) O Schweizerisches Strafgesetzbuch (Criminal Code of Switzerland) Special Tribunal for Lebanon Strafprozessordnung (German Criminal Procedure Code) Strafrecht (Criminal Law) Strafverteidiger Forum (journal) Strafverteidiger (journal)

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Glossary StVG ...................................... subpara. ................................. SVG ....................................... TC .......................................... TCE ........................................ TEC ........................................ TEU ....................................... TFEU ..................................... TFV ........................................ UCLAF .................................. UK .......................................... UN ......................................... UNTS .................................... US(A) .................................... U.S.C. .................................... Utrecht L. Rev. .................... VCLT ..................................... vol./vols ................................. VPRS ..................................... v. ............................................. VStGB ................................... WCC ...................................... wistra ..................................... WiVerw ................................ WuW ..................................... Zao¨RV ................................... ZEuS ...................................... ZIS .......................................... ZP ........................................... ZRP ........................................ ZStW ..................................... ZZP ........................................

Straßenverkehrsgesetz (Road Traffic Act) subparagraph Schweizer Straßenverkehrsgesetz (Swiss Road Traffic Act) Trial Chamber Treaty establishing a Constitution for Europe Treaty establishing the European Community Treaty establishing the European Union Treaty on the Functioning of the European Union Trust Fund for Victims Unite´ de Coordination pour la Lutte Anti-Fraude (Task Force for the Coordination of Fraud Prevention) United Kingdom United Nations United Nations Treaty Series United States (of America) Code of Laws of the United States of America Utrecht Law Review (journal) Vienna Convention on the Law of Treaties volume/volumes Victims Participation and Reparations Section versus Vo¨lkerstrafgesetzbuch (German Code of Crimes against International Law) War Crimes Chamber (in Bosnia-Herzegovina) Zeitschrift fu¨r Wirtschafts- und Steuerstrafrecht (journal) Wirtschaft und Verwaltung (journal) Wirtschaft und Wettbewerb – Zeitschrift fu¨r deutsches und europa¨isches Wettbewerbsrecht (journal) Zeitschrift fu¨r ausla¨ndisches o¨ffentliches Recht und Vo¨lkerrecht (journal) Zeitschrift fu¨r Europarechtliche Studien (journal) Zeitschrift fu¨r Internationale Strafrechtsdogmatik (journal) Zusatzprotokoll (additional protocol) Zeitschrift fu¨r Rechtspolitik (journal) Zeitschrift fu¨r die gesamte Strafrechtswissenschaft (journal) Zeitschrift fu¨r Zivilprozess (journal)

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Bibliography Abo Youssef, Omar Al-Farouq: Die Stellung des Opfers im Vo¨lkerstrafrecht unter besonderer Beru¨cksichtigung des ICC-Statuts und der Rechte der Opfer von Vo¨lkerstrafrechtsverbrechen in der Schweiz, Zu¨rich 2008 (cited as: Abo Youssef, Die Stellung des Opfers im Vo¨lkerstrafrecht). Ahlbrecht, Heiko: Geschichte der vo¨lkerrechtlichen Strafgerichtsbarkeit im 20. Jahrhundert – unter besonderer Beru¨cksichtigung der vo¨lkerrechtlichen Straftatbesta¨nde und der Bemu¨hungen um einen Sta¨ndigen Internationalen Strafgerichtshof, Baden-Baden 1999 (cited as: Ahlbrecht, Geschichte). Ambos, Kai: Internationales Strafrecht, 2nd edition, Munich 2008 (cited as: Ambos, Int. Strafrecht, 2nd edn). Ambos, Kai: Internationales Strafrecht, 4th edition, Munich 2014 (cited as: Ambos, Int. Strafrecht). Ambos, Kai: Treatise on International Criminal Law, vol. 1, Oxford 2013 (cited as: Ambos, Treatise, vol. 1). Ambos, Kai: Treatise on International Criminal Law, vol. 3, Oxford 2016 (cited as: Ambos, Treatise, vol. 3). Arendt, Hannah: Eichmann in Jerusalem. Ein Bericht von der Banalita¨t des Bo¨sen, Munich 2006 (cited as: Arendt, Eichmann in Jerusalem). Arnold, Jo¨rg/Burkhardt, Bjo¨rn/Gropp, Walter (eds): Menschengerechtes Strafrecht: Festschrift fu¨r Albin Eser zum 70. Geburtstag, Munich 2005 (cited as: contributor, in: Arnold et al. (eds), FS Eser). Asp, Petter: The Substantive Criminal Law Competence of the EU, Stockholm 2012 (cited as: Asp, Criminal Law Competence of the EU). Asp, Petter (ed.): The European Public Prosecutor’s Office – Legal and Criminal Policy Perspectives, Stockholm 2015 (cited as: contributor, in: Asp (ed.), The EPPO). Asp, Petter/Ulva¨ng, Magnus (eds): Essays on European Criminal Law, Engelska 2015 (cited as: contributor, in: Petter/Ulva¨ng (eds), Essays on European Criminal Law). Bair, Johann: The International Covenant on Civil and Political Rights and its (First) Optional Protocol – a Short Commentary Based on Views, General Comments and Concluding Observations by the Human Rights Committee, Frankfurt am Main 2005 (cited as: Bair, The International Covenant). Bantekas, Ilias/Nash, Susan: International Criminal Law, 3rd edition, London 2007 (cited as: Bantekas/ Nash, Int. Criminal Law). Ba´rd, Ka´roly/Soyer, Richard (eds): Internationale Strafgerichtsbarkeit – Status quo und Perspektiven. ¨ sterreiStrafverfolgung und Strafverteidigung vor internationalen Strafgerichtsho¨fen [Ungarisch-O chisches Seminar Budapest, 22. April 2005], Berlin 2005 (cited as: contributor, in: Ba´rd/Soyer (eds), Internationale Strafgerichtsbarkeit). Bassiouni, M. Cherif: Introduction to International Criminal Law, 2nd edition, Dordrecht 2012 (cited as: Bassiouni, Introduction). Bassiouni, M. Cherif (ed.): International Criminal Law, vol. 3, International Enforcement, 3rd edition, Leiden 2008 (cited as: contributor, in: Bassiouni (ed.), International). Bassiouni, M. Cherif/Wise, Edward M.: Aut Dedere aut Judicare: the Duty to Extradite or Prosecute in International Law, Dordrecht 1995 (cited as: Bassiouni/Wise, Aut Dedere aut Judicare). Baumann, Ju¨rgen/Weber, Ulrich/Mitsch, Wolfgang/Eisele, Jo¨rg: Strafrecht – Allgemeiner Teil, 12th edition, Bielefeld 2016 (cited as: Baumann/Weber/Mitsch, AT). ¨ berlegungen zur ProbleBecker, Astrid: Der Tatbestand des Verbrechens gegen die Menschlichkeit – U matik eines vo¨lkerrechtlichen Strafrechts, Berlin 1996 (cited as: Becker, Der Tatbestand des Verbrechens gegen die Menschlichkeit). ˇ erny´, Filip (eds): Czech Yearbook of International Law, ˇ Belohlávek, Alexander J./Rozehnalová, Nadzˇda/C vol. 4 – The Role of Governmental and Non-governmental Organizations in the 21st Century, New York 2014 (cited as: contributor, in: Beˇlohlávek et al., Czech Yearbook of International Law).

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Bibliography Wessels, Johannes/Beulke, Werner/Satzger, Helmut: Strafrecht Allgemeiner Teil, Die Straftat und ihr Aufbau, 47th edition, Heidelberg 2017 (cited as: Wessels/Beulke/Satzger). Wiggenhorn, Harald: Verliererjustiz. Die Leipziger Kriegsverbrecherprozesse nach dem Ersten Weltkrieg, Baden-Baden 2005 (cited as: Wiggenhorn, Verliererjustiz). Wilhelmi, Theresa: Das Weltrechtsprinzip im internationalen Privat- und Strafrecht – Zugleich eine Untersuchung zu Parallelita¨ten, Divergenzen und Interdependenzen von internationalem Privatrecht und internationalem Strafrecht, Frankfurt am Main et al. 2007 (cited as: Wilhelmi, Weltrechtsprinzip). Wilkitzki, Peter: Erla¨uterungen zum Gesetz u¨ber die Zusammenarbeit mit dem Internationalen Strafgerichtshof fu¨r das ehemalige Jugoslawien, Baden-Baden 2008 (cited as: Wilkitzki, Zusammenarbeit ICTY). Wilmshurst, Elizabeth (ed.): International Law and the Classification of Conflicts, Oxford 2012 (cited as: contributor, in: Wilmshurst (ed.), International Law and the Classification of Conflicts). Winkler, Rolf: Die Rechtsnatur der Geldbuße im Wettbewerbsrecht der Europa¨ischen Wirtschaftsgemeinschaft – Ein Beitrag zum Wirtschaftsstrafrecht d. Europa¨ischen Gemeinschaften, Tu¨bingen 1971 (cited as: Winkler, Rechtsnatur der Geldbuße). Wohlers, Wolfgang (ed.): Neuere Entwicklungen im schweizerischen und internationalen Wirtschaftsstrafrecht, Zu¨rich 2007 (cited as: contributor, in: Wohlers (ed.), Neuere Entwicklungen). Wolter, Ju¨rgen (ed.): Systematischer Kommentar zum Strafgesetzbuch, loose-leaf collection, Neuwied, last updated October 2009 (cited as: SK-contributor). Zahar, Alexander/Sluiter, Go¨ran: International Criminal Law: A Critical Introduction, Oxford 2007 (cited as: Zahar/Sluiter, International Criminal Law). Zimmerman, Robert: La coope´ration judiciaire international en matie`re pe´nale, 4th edition, Brussels et al. 2014 (cited as: R. Zimmerman, La cooperation international). Zimmermann, Frank: Strafgewaltkonflikte in der Europa¨ischen Union, Baden-Baden 2015 (cited as: F. Zimmermann, Strafgewaltkonflikte). Zippelius, Reinhold: Juristische Methodenlehre, 11th edition, Munich 2012 (cited as: Zippelius, Juristische Methodenlehre).

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A. INTRODUCTION §1 Criminal Law in an International Context Criminal law is continuously perceived – and especially taught – as a purely national 1 discipline. Most textbook writers tacitly assume their cases to have taken place on domestic national territory, with all persons involved being domestic nationals and no foreign legal interests being affected by the offence. Yet, as a quick glance at any given newspaper shows, such a perspective is not reflected in the real world: there are frequent reports on crimes committed by or against foreigners or migrants, on transnational organised crime (e. g. drug rings, organised car theft and smuggling rings or criminal gangs comitting burglary), on European-wide VAT cartels, on international terrorism and cyber-crime, as well as on European arrest warrants or fraud to the detriment of the European Union’s budget. International ad hoc tribunals were engaged with the warlike acts in the former Yugoslav countries and the Rwandan massacre. Moreover, there are a number of courts throughout the globe (e. g. in Sierra Leone and Cambodia) that are composed of judges with national as well as international backgrounds (so-called hybrid tribunals). These courts – and to an increasing extent also purely national ones – pass judgments on questions regarding international criminal law offences and related legal matters. Furthermore, a permanent international criminal court was established in The Hague in July 2002, which is investigating a large number of cases and has also already passed first judgments. These examples alone show that in the wake of increased globalisation, criminal law has more and more become a truly internationalised subject. This textbook traces and describes that development. As another consequence of internationalisation, the study of International and European Criminal Law depends on a multitude of legal instruments and court decisions of various international as well as national courts that – due to lack of space – cannot possibly be elaborated on in this book. For this reason, I have launched a website dedicated to facilitate access to all important decisions, instruments and other documents quoted in this textbook. The page will be regularly updated and can be accessed via the following web address: http://www.satzger-international.info

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§2 Terminology of “International Criminal Law” Contents I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. International Criminal Law (stricto sensu): Criminal Law under Public International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Supranational (especially European) Criminal Law . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Criminal Jurisdiction and Rules Determining the Exercise of Jurisdiction . V. Mutual Legal Assistance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 3 4 5

I. Introduction 1

International Criminal Law (in a broader sense) or “criminal law in an international context” are terms which can be and in fact are used to carry a variety of different meanings. Therefore, they are often unclear or ambiguous, especially when applied to completely different areas of the law in different legal orders. Used in a very broad sense, the term “International Criminal Law” could be seen as embracing all areas of criminal law which exhibit – factually or legally – any international element. To go into particulars, the following areas of International Criminal Law in a broader sense can be differentiated:

II. International Criminal Law (stricto sensu): Criminal Law under Public International Law 2

The term “International Criminal Law” is often used in a stricter sense to describe the body of all legal norms constituting criminal liability under public international law.1 It is pure “international” criminal law, as it is derived from the traditional sources of international law.2 This usage of the term is especially prevalent in Anglo-American legal systems.3 Examples: war crimes, crimes against humanity, genocide The norms of national criminal law specifically concerned with the incorporation of International Criminal Law into the respective national legal system can be assigned to municipal international criminal law and are often considered to be a part of international criminal law as well. 1

Triffterer, in: Go¨ssel/Triffterer (eds), GS Zipf, p. 500; Werle, International Criminal Law, para. 86. Cf art. 38 of the ICJ Statute; Shaw, International Law, pp. 69 et seq. 3 See only Oehler, Int. Strafrecht, para. 2. 2

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§ 2. Terminology of “International Criminal Law”

Example: On 30th June 2002, the German Code of Crimes against International Law4 (Vo¨lkerstrafgesetzbuch [VStGB]) entered into force. This code contains inter alia the substantive International Criminal Law (e. g. crimes against humanity) in an effort to implement the Rome Statute – the founding treaty of the International Criminal Court – into German law.5 International Criminal Law stricto sensu is examined in section D. of this book (§§ 10 et seq.).

III. Supranational (especially European) Criminal Law In its proper sense, supranational criminal law means that a supranational legal 3 order itself contains criminal offences directly applicable in the Member States. In this case, the supranational offence can be the sole legal basis of a criminal conviction by a national court. From a European perspective, the European Union (the former European Community) is the most important supranational legal order. Currently, however, a European Criminal Law in the sense of a “Criminal Law of the European Union” is still nascent. In a broader sense, every legal rule of the European legal order with criminal law content can be considered a part of European Criminal Law. This would also include EU measures aiming at the harmonisation of the criminal law of the Member States. Furthermore, international treaties within the framework of the Council of Europe with implications for the national criminal (procedural) law can be included hereunder, in particular the European Convention on Human Rights. Finally, in a very broad sense, European Criminal Law could be understood as an instrument encompassing all rules of national criminal law as embraced, modified and complemented by EU law. These rules may be termed Europeanised national criminal law. European Criminal Law will be discussed in section C. of this book (§§ 5 et seq.).

IV. Criminal Jurisdiction and Rules Determining the Exercise of Jurisdiction Continental legal terminology employs International Criminal Law mostly to describe 4 those legal norms, which determine the territorial scope of application of national criminal law.6 These rules are mostly7 part of national criminal law. For instance, the territorial limits of German criminal jurisdiction are enshrined in §§ 3 et seqq. of the German Criminal Code (Strafgesetzbuch [StGB]). These provisions determine whether or not German criminal law can be applied to a set of facts with an international element. Those rules (sometimes also termed “transnational criminal law”) have to be distinguished from what is known as interlocal criminal law, which, in turn, addresses 4

Federal Law Gazette (BGBl.) 2002 I, p. 2254. For more details on the different models of incorporation, see § 12 paras 26 et seqq. 6 Oehler, Int. Strafrecht, para. 1; for a critical view on this terminology, see MK-Ambos, Vor § 3 StGB para. 1. 7 Outside the national legal order, international treaties creating the framework for the national legal rules on the application of criminal law must also be included; to that effect also Oehler, Int. Strafrecht, para. 1. 5

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A. Introduction

the problems created by the existence of multiple systems of criminal law in different sub-territories of the same country.8 This can only be the case when the constitutional distribution of competences allocates the competence to legislate in the field of criminal law not only to the central government but also to the federal states. Such models can be found – above all – in some distinctive federal states, which then – in addition to a common federal criminal law – possess multiple state criminal laws. Examples: Australia, Mexico, United Kingdom, USA In Germany, interlocal criminal law was once important concerning offences committed on the territory of the former GDR, which – according to West German law – was deemed to be domestic territory for the purposes of criminal law (strafrechtlicher Inlandsbegriff). Even for offences committed after the German reunification, similar problems continued to exist until 1994/95 because significant norms of the GDR’s criminal law were still applicable to the territory of former East Germany for a transitional period.9 §§ 3 et seqq. StGB did not resolve interlocal jurisdiction in those cases, as they only determine whether German criminal law is applicable in general, yet remain silent on the question which sub-section of the German criminal legal order is to be applied. These problems had to be addressed by a specific interlocal criminal law which was entirely comprised of customary norms.10 Section B. (§§ 3 et seq.) elaborates on issues concerning the territorial scope of national criminal law.

V. Mutual Legal Assistance 5

The law of mutual legal assistance encompasses all legal rules with the purpose of facilitating transnational law enforcement. This especially concerns the extradition of criminals, but also provides assistance with the execution of sentences or the acquisition of evidence.11 The need for mutual legal assistance is a direct consequence of the disparities in the legal rules on the scope of territorial application of criminal law in different countries. In particular, it is possible that a crime committed abroad is subjected to domestic criminal law. In these cases, however, either the perpetrator or vital evidence will often be in the territory of the state in which the crime was committed. Similarly, it may be the case that an offender has fled to a state where the offence committed by him or her is not subject to criminal prosecution due to the territorial scope of its criminal law. A state whose criminal law is applicable and which is also willing to prosecute has to respect the territorial sovereignty of the host country and therefore may not simply unilaterally seize evidence or the accused.12 Therefore, national laws such as the German Act on Mutual Legal Assistance (Gesetz u¨ber die internationale Rechtshilfe in Strafsachen [IRG])13 as well as a multitude of bilateral and 8

See SK-Hoyer, Vor § 3 StGB paras 53 et seq. This was especially the case for the law on abortion, the protection of the soil and the sexual abuse of youths. 10 For the principles of this area of law, cf SK-Hoyer, Vor § 3 StGB paras 56 et seq.; LK-Werle/Jeßberger, Vor § 3 StGB paras 420 et seq. 11 Hackner, in: Wabnitz/Janovsky (eds), Handbuch, ch. 24, paras 6 et seq.; Werle/Jeßberger, JuS 2001, 36; in detail on basic terms and principles Hackner, in: Schomburg et al. (eds), Internationale Rechtshilfe in Strafsachen, Einleitung paras 1 et seq.; see also von Heintschel-Heinegg, in: Schroeder (ed.), Justizreform, pp. 107 et seq. 12 Maurach/Zipf, AT vol. 1, § 11 para. 37. 13 Federal Law Gazette (BGBl.) 1982 I, p. 2071. 9

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§ 2. Terminology of “International Criminal Law”

multilateral treaties elaborate on the conditions for extraditions and other acts of mutual assistance. To some extent, this field of law overlaps with EU law inasmuch as the judicial cooperation in criminal matters on the basis of the Treaty establishing the European Union (TEU) increasingly replaces the traditional rules on mutual assistance. This (European) development will be discussed in section C. (especially § 8 II). However, an in-depth analysis of the complex law on mutual assistance is beyond this book’s scope so that the reader will be referred to the literature specifically dedicated to this area of the law instead.14 14 See e. g. Gru ¨ tzner/Po¨tz/Kreß, Internationaler Rechtshilfeverkehr; Schomburg et al. (eds), Internationale Rechtshilfe in Strafsachen; Vogler/Wilkitzki, IRG; Hackner, in: Wabnitz/Janovsky (eds), Handbuch, ch. 24; cf also Popp, Grundzu¨ge der int. Rechtshilfe in Strafsachen (written from a German perspective); Nicholls et al., The Law of Extradition and Mutual Assistance, pp. 279 et seq. (on English law); Cameron et al., International Criminal Law from a Swedish Perspective, pp. 101 et seq. (on the situation in Sweden); R. Zimmerman, La coope´ration international (from a Swiss perspective).

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B. CRIMINAL JURISDICTION AND THE TERRITORIAL SCOPE OF CRIMINAL LAW * §3 The Application of National Criminal Law to Cases with International Elements Contents I. II. III. IV.

The Competence of National Criminal Courts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Applicable (Substantive) Criminal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 The Danger of Double Jeopardy and Conflicts of Jurisdiction. . . . . . . . . . . . . . . 6 The Relation between the Territorial Scope of Criminal Laws and their Material Scope of Protection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

This section shall focus on the area of national law usually referred to as criminal 1 jurisdiction (or – according to German legal terminology – Strafanwendungsrecht1). More precisely, these provisions deal with two issues: the international competence of criminal courts on the one hand and the scope of application (or ambit of the specific substantive criminal laws) on the other.2

I. The Competence of National Criminal Courts The first question to be answered in this context is whether a certain set of facts with 2 an international element is generally subject to the criminal jurisdiction of the state concerned. Only then does this state have the competence to prosecute behaviour vis-a`vis the international community and likewise the perpetrator.3 In the absence of this competence, instituting criminal proceedings would be inadmissible under international law. In this respect, rules on criminal jurisdiction are of a procedural nature. Consequently, German criminal procedure law, for instance, treats lack of jurisdiction as a procedural bar which hinders the instigation of proceedings or – in the case where the lack of jurisdiction is discovered after proceedings have already been instigated – compels the competent authority to stay them.4 Some states – especially of AngloAmerican legal tradition – also perceive the question of the applicable law as a purely procedural issue.5

* The case-law, legislative acts and other documents quoted in this textbook can be accessed over the internet on the website http://www.satzger-international.info/. 1 See only S/S-Eser, Vor §§ 3–9 StGB para. 5. 2 Jescheck, in: Schroeder/Zipf (eds), FS Maurach, p. 580; LK-Werle/Jeßberger, Vor § 3 StGB para. 3. 3 Jescheck/Weigend, § 18 I 1. 4 BGHSt 34, 3 et seq.; BGH NJW 1995, 1845; LK-Gribbohm, 11th edn, Vor § 3 StGB para. 1. As a consequence, the proceedings have to be discontinued; under § 260 (3) StPO this can also happen by a judgment following the trial. 5 See Ambos, Int. Strafrecht, § 1 para. 4.

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B. Criminal Jurisdiction and the Territorial Scope of Criminal Law

II. Applicable (Substantive) Criminal Law Beyond the procedural issue of determining the national courts’ competence for cases with a transnational element the rules of criminal jurisdiction also determine whether the respective state’s domestic substantive criminal law is applicable to the case at hand. Since this is a preliminary question which is inherent to every statutory offence and every provision of substantive criminal law in general, the rules on criminal jurisdiction also share the character of substantive criminal law. Thus, as a whole they are rightly characterised as having a dual procedural and substantive character.6 Whenever a state has criminal jurisdiction, the usual consequence is that the applicability only extends to own provisions of substantive criminal law. Only when the law of a state (exceptionally) allows for the application of foreign law and takes a decision on which of several criminal law systems shall be applied to a case, it can – as is the rule in Private International Law7 – be truly characterised as law of conflicts. Until several years ago, such an application of foreign criminal law was stipulated in art. 5 (1) StGB-Switzerland: “Whoever commits a felony or misdemeanour against a Swiss national abroad is to be punished according to Swiss law, provided the act is also criminal under the law of the territory where it was committed, if he is present in Switzerland and will not be extradited or if he is extradited to the Confederation because of this act. If the law of the place of commission is more favourable to the offender, it is to be applied.” Although that provision was clearly of an exceptional character, at least some kind of transnational lex mitior principle is recognised by numerous states. For instance, a number of legal systems (e. g. Poland8 and Greece9) at least allow domestic courts to take into account the legal situation at the place of commission of the offence. Others expressly state that the punishment may not be harsher than it would be according to the law of the state where the offence was committed. This is so inter alia in Finland (see § 4 paras 19, 28, 42) and Austria (see § 4 para. 42). However, it should be noted that this does not amount to an application of foreign law stricto sensu, and some states, such as Italy, do not accept that kind of limitation at all.10 4 Generally speaking, most states’ rules on criminal jurisdiction follow the principle that national courts exclusively apply their own domestic criminal law. Hence, when the legal systems of more than one state apply to the same case, these legal systems may not provide any provisions to determine which state shall have the competence to adjudicate it. In this sense also §§ 3 et seqq. StGB (according to the prevailing opinion in Germany) do not contain a law of conflicts stricto sensu, but solely a list of rules governing the territorial scope of Germany’s national criminal law. Thus, they merely determine whether or not German criminal law is applicable to a specific case.11 3

6 Cf Ambos, Int. Strafrecht, § 1 para. 4; see also Asp, Criminal Law Competence of the EU, pp. 124 et seq., who does not entirely deny the dual character of jurisdiction rules, but still clearly favours a procedural understanding. 7 Cf Kegel/Schurig, Internationales Privatrecht, p. 25. 8 Go ´ rski/Sakowicz, in: Bo¨se et al. (eds), Conflicts of Jurisdiction, vol. 1, p. 369. 9 Chatzinikolaou/Papakyriakou/Zachariadis/Kaiafa-Gbandi, in: Bo ¨ se et al. (eds), Conflicts of Jurisdiction, vol. 1, pp. 207 and 213. 10 Militello/Mangiaracina, in: Bo ¨ se et al. (eds), Conflicts of Jurisdiction, vol. 1, p. 259. 11 Cf MK-Ambos, Vor § 3 StGB para. 1.

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§ 3. The Application of National Criminal Law to Cases with International Elements

In spite of their relevance for transnational cases these provisions are of a purely national character. Their function is limited to unilaterally determining the territorial scope of national criminal law.12 Simultaneously, these rules also determine the reach of a state’s claim to jurisdiction. The Swiss example, however, demonstrates that it would not be a revolutionary 5 innovation if a state’s rules on the ambit of its national criminal law provided for the application of foreign criminal law. On the contrary, a general principle that national criminal courts can only apply domestic criminal law would to a certain extent appear anachronistic in an ever-increasing process of globalisation. This applies all the more within the closely integrated European Union. Therefore, an application of foreign law is indeed sometimes considered a possible solution to conflicts of jurisdiction (see para. 9). It should, however, be taken into account that even presently an application of foreign law is not entirely excluded by a number of legal systems. On the one hand, this is illustrated by provisions that make criminal liability dependent upon the ability to punish a specific act at the place of commission (as does § 7 StGB in Germany).13 On the other hand, it can be necessary to apply another state’s law (albeit not necessarily its criminal law) when interpreting blanket clauses14 or normative elements of a crime.15 A rather straight-forward theft case may illustrate this aspect: The presumed perpetrator insists that the object he or she removed is his or her own; the person from whom it was taken, claims to have legally obtained it abroad. In such a case the foreign state’s property law is relevant to determine the issue of lawful ownership. Similar questions arise in the context of statutory offences that presuppose an infringement of administrative provisions, e. g. in environmental criminal law, to the extent that they also apply to infringements of foreign law (such as § 330 d (2) StGB).16 Thus, even the application of domestic criminal law provisions may make it necessary to take into account foreign civil and administrative law, another state’s rules of Private International Law as well as European Union law (see § 8 paras 1 et seq.).17 12

See also S/S-Eser, Vor §§ 3–9 StGB para. 5; Satzger, NStZ 1998, 112. See also Huber, in: Sinn (ed.), Conflicts of Jurisdiction, pp. 263, 267 et seq.; sceptical with regard to the question of whether such provisions indeed entail an application of foreign law Helenius, BJCLCJ 2015, 22, 41 et seq. 14 More generally on this SSW-StGB-Satzger, § 1 StGB para. 53. 15 For the example of “breach of duty” under § 266 StGB, cf Radtke, GmbHR 2008, 732 et seq. 16 More generally on this LK-Werle/Jeßberger, Vor § 3 StGB paras 333 et seq. 17 For more detail on this, see Mankowski/Bock, ZStW 120 (2008), 704 et seq.; see also OLG Schleswig NJW 1989, 3105. 13

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B. Criminal Jurisdiction and the Territorial Scope of Criminal Law

III. The Danger of Double Jeopardy and Conflicts of Jurisdiction 6

As demonstrated above most states unilaterally determine the territorial scope of their domestic substantive criminal law. The logical consequence is that the criminal legal orders of more than one state apply to one and the same case. In other words: there is an overlap of the respective criminal jurisdictions. At first sight this situation may seem acceptable and even reasonable, considering that a tight network of concurrent claims to punishment by different states is likely to ensure the effective prosecution of every criminal behaviour.18 However, it seems disproportionate and unjust to hold an offender fully responsible for a crime with foreign elements in each and every state concerned, without taking into account convictions in other states. Still, the solution to this problem is anything but simple: if there is an express prohibition on double jeopardy (ne bis in idem) in one national legal order, this prohibition will normally not apply where the authorities of another state want to prosecute the same case. This is because the ne bis in idem principle, albeit recognised in most legal orders, traditionally only concerns the internal sphere.19 Therefore, it only protects a person from being prosecuted a second time where his or her act has already been adjudicated within the same (national) criminal justice system. Example: In Germany, the prohibition on double punishment is enshrined in art. 103 (3) GG (Grundgesetz – German Constitution): “No person may be punished for the same act more than once under the general criminal laws.” But this guarantee only carries internal effect. If an Algerian citizen is suspected of murder in Germany and has already been acquitted of this charge by a court in Algeria, this judgment would not preclude German authorities from prosecuting the perpetrator a second time on this count (and even from convicting him this time). Thus, a prohibition on double jeopardy with transnational effect can usually only be found in international treaties.20 The most renowned examples are – in relation to the European Union – art. 50 of the EU-Charter of Fundamental Rights and art. 54 of the Convention Implementing the Schengen Agreement.21 Nowadays, however, there seems to be a certain tendency in favour of such a transnational ne bis in idem rule, as several states have introduced provisions to this effect into their domestic legislation, among them France (for offences committed outside French territory)22 and also England and Wales.23 A comparable rule exists only with regard to legal persons in Italy;24 in Spain it serves to limit only the nationality and universality principles.25 But despite these 18

Werle/Jeßberger, JuS 2001, 36. First decided for Germany in BVerfGE 12, 62 et seq.; for more details on the only internal effect of the principle, see BVerfGE 75, 1 et seq. and BVerfG StraFo 2008, 151 et seq.; for Austria, see Fuchs, AT, § 5 para. 20.; for Poland, see Guzik-Makaruk/Go´rski/Sakowicz, in: Sinn (ed.), Conflicts of Jurisdiction, pp. 377 et seq. In the USA, this even has the consequence that the same act can generally be prosecuted by courts of multiple states or under federal and state law concurrently, cf US v. Claiborne, 92 F.Supp. 2 d 503 (E.D.Va. 2000). 20 For more details on this, see § 8 paras 59 et seqq. 21 See § 8 paras 65 et seqq. 22 Lelieur, in: Sinn (ed.), Conflicts of Jurisdiction, pp. 291, 295. 23 Cf Treacy v. DPP, [1971] AC 537 per Diplock L. J.; see also Huber, in: Sinn (ed.), Conflicts of Jurisdiction, p. 271. 24 Militello/Mangiaracina, in: Bo ¨ se et al. (eds), Conflicts of Jurisdiction, vol. 1, p. 263. 25 Art. 23 (2) and (5) LOPJ, cf Nieto Martı´n/Garcı´a-Moreno, in: Bo ¨ se et al. (eds), Conflicts of Jurisdiction, vol. 1, pp. 395 et seq., 401. 19

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§ 3. The Application of National Criminal Law to Cases with International Elements

commendable developments, it would be premature to consider a transnational prohibition of double jeopardy a general principle of international law. This does of course not preclude national criminal justice systems from requiring or 7 enabling judicial authorities to take account of the fact that a case has already been prosecuted abroad, particularly when making procedural or sentencing decisions. In Germany, for example, this is accomplished in two different ways: – § 153 c StPO (Strafprozessordnung – German Code of Criminal Procedure) gives German public prosecution offices the opportunity to refrain from prosecution where crimes with cross-border elements are concerned. This is an important exception to the general principle of mandatory prosecution (Legalita¨tsprinzip). – When a perpetrator has already received a sentence in another country and shall now be convicted by a German court, the foreign punishment has to be deducted from the new sentence to the extent that it has been served (§ 51 (3) StGB). Even to the extent that such provisions avoid repeated prosecution, overlapping 8 criminal jurisdiction remains problematic.26 This is because it creates the risk of parallel proceedings: if prosecutors from various states simultaneously investigate the same case, this is often not very efficient as their measures are constantly at risk of impeding each other. From the suspect’s perspective, parallel proceedings can make an effective defence very difficult. They might even allow for a “forum shopping” by the prosecution authorities, e. g. by choosing the state with the harshest penalties as the forum state. What is more, it can be hard for the (presumed) perpetrator to foresee which consequences a conduct will actually have when it is covered by differing provisions of various states. In light of these problems, finding a solution to conflicts of jurisdiction is obviously 9 one of the great challenges in the field of transnational criminal justice. As we have already seen, an application of foreign law is not at all alien to criminal justice systems. Thus, the question arises whether a model similar to the one known from Private International Law could be established for cross-border criminal cases: at least in the long run, the substantive criminal law with the “closest connection” to the case could be applied, irrespective of the place of the forum.27 However, it should not be neglected that such a wide application of foreign criminal law would entail numerous practical and legal problems.28 For this reason, a different approach that aims at coordinating national jurisdictions could present a preferable solution, at least for the European Union as an evolving single area of criminal justice. According to some recent proposals, binding supranational rules could determine which EU Member State shall be competent to adjudicate a cross-border case and apply its substantive law to it.29 Such an instrument could thus prevent and solve conflicts of jurisdiction.

26

F. Zimmermann, BJCLCJ 2015, 1, 11 et seq. See LK-Gribbohm, 11th edn, Vor § 3 StGB para. 3; Helenius, BJCLCJ 2015, 22, 43; Jescheck/Weigend, § 18 I. 28 For further arguments, see Satzger, in: Reindl-Krauskopf et al. (eds), FS Fuchs, pp. 431 et seq.; F. Zimmermann, BJCLCJ 2015, 1, 11 et seq.; for details on the application of art. 5 StGB-Switzerland in its old version, see only Donatsch, Schweizerisches Strafgesetzbuch, Annotation on art. 5 (1) (2) and art. 6 no. 1 s. 2 StGB-Switzerland with further reference. 29 Cf F. Zimmermann, Strafgewaltkonflikte, pp. 369 et seq. as well as the English summary in BJCLCJ 2015, 1, 15 et seq.; Bo¨se/Meyer/Schneider, in: Bo¨se et al. (eds), Conflicts of Jurisdiction, vol. 2, pp. 381 et seqq.; Sinn (ed.), Conflicts of Jurisdiction, pp. 606 et seq.; Schu¨nemann (ed.), A Programme for European Criminal Justice, pp. 258 et seq. 27

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B. Criminal Jurisdiction and the Territorial Scope of Criminal Law

IV. The Relation between the Territorial Scope of Criminal Laws and their Material Scope of Protection 10

Whenever a state has criminal jurisdiction and, thus, its substantive criminal law is applicable to a cross-border case, this does obviously not mean that the elements of the respective statutory offence will automatically be fulfilled. Rather, it needs to be examined in every single case whether the act belongs to the category of conduct that the respective provision is meant to cover, i. e. whether a legal interest protected by the particular national offence was violated. Example: § 113 (1) StGB (Strafgesetzbuch – German Penal Code) (“Resistance to Law Enforcement Officials”) reads: “Whoever, by force or threat of force, offers resistance to or violently assaults a public official or soldier of the Federal Armed Forces, who is charged with the enforcement of laws, ordinances, judgments, judicial rulings or orders, while in the performance of such an official act, shall be punished with imprisonment for not more than three years or a fine.” An act of resistance committed by a German national against a foreign police officer does not fall within this provision’s scope of protection. The reason for this is that § 113 StGB protects interests of the state, namely that public authorities are capable of carrying out their activities free from disruption. Since this provision was adopted by the German legislator, it must be assumed that it exclusively aims at protecting the activities of German authorities – in general the German legislator has no interest to extend the criminal law protection to the authorities of a foreign state who has the power to use its own criminal law for that purpose.

As a general rule, it is therefore widely accepted (at least in Germany, but e. g. also in England and Wales30) that the protection offered by statutory offences to interests of the state is confined to domestic public interests. Exceptionally, however, by way of express provisions foreign interests and authorities may also be protected by national criminal law (e. g. § 102 StGB – “attacks against organs or representatives of foreign states”). General provisions can also be interpreted in a broader manner, relating to areas in which the German state has committed itself to protecting interests of other states in international treaties or is even obliged to do so by EU law.31 12 There is some controversy concerning the correct order of scrutiny of these two points (territorial scope of application on the one hand, material scope of protection on the other). Bearing in mind that the scope of protection of an offence can only be determined by interpreting the statutory offence itself, this step already implies the application of national law. Thus, the determination of the territorial scope of a criminal law provision logically takes priority over the identification of its material scope of protection.32 Within the framework of the German legal system, the procedural consequences also support this view: if German criminal law is not applicable under the §§ 3 et seqq. StGB, there will already be a bar to proceedings; the issue as to whether the elements of a 11

30

Huber, in: Sinn (ed.), Conflicts of Jurisdiction, p. 267. See, for instance, art. 42 of the Convention Implementing the Schengen Agreement; for an overview, see F. Zimmermann, Strafgewaltkonflikte, pp. 128 et seqq. 32 For German law, see also SK-Hoyer, Vor § 3 StGB para. 31; Schroeder, NJW 1990, 1406; LK-Tro ¨ ndle, 10th edn, Vor § 3 StGB para. 23; different viewpoints hold Asp, Criminal Law Competence of the EU, pp. 124 et seq.; S/S-Eser, Vor §§ 3–9 StGB para. 31; Oehler, JR 1978, 382; T. Walter, JuS 2006, 870. 31

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§ 3. The Application of National Criminal Law to Cases with International Elements

German criminal offence are fulfilled would therefore not be accorded any further relevance.33 Consequently, the test to be applied can be summarised as follows: I. Is national criminal law applicable ratione loci? II. Does the national criminal offence in question provide for the protection of foreign legal interests?

33

To this effect correctly SK-Hoyer, Vor § 3 StGB para. 31.

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§4 The Principles of Criminal Jurisdiction and their Implementation in National Legal Orders Contents I. The Competence to Establish Criminal Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . II. The Principles of Criminal Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Overview of the Principles Recognised by International Law . . . . . . . . . . . . 2. Territorial Principle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) General Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) In Particular: Cybercrime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c) Flag Principle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . d) Implementation of the Territorial Principle in Various National Legal Systems . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Nationality Principle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) General Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Implementation of the Nationality Principle in Various National Legal Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. The Protective Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Protective Principle (stricto sensu) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Passive Personality Principle/Individual Protective Principle . . . . . . . . . 5. The Universality Principle. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) General Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Implementation of the Universality Principle in Various National Legal Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. Representation Principle. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) General Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Application in Various National Legal Orders . . . . . . . . . . . . . . . . . . . . . . . . . 7. Principle of Distribution of Competences. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8. Principle of Protection of European Union Interests . . . . . . . . . . . . . . . . . . . . .

2 3 3 6 6 9 11 12 15 15 17 22 23 26 30 30 32 40 40 42 43 44

Case 1

1

A Belgian statute (passed in 1993) provided that war crimes, crimes against humanity and (subsequently) genocide could be adjudicated in Belgium irrespective of the location of the offence. Based on this Act, charges concerning the 1982 massacre in the Lebanese refugee camps of Sabra and Shatilla were issued, inter alia against the (then) Israeli Minister of Defence Ariel Sharon. Was it legal for Belgium to apply its criminal law to a case like this? (see para. 39)

I. The Competence to Establish Criminal Jurisdiction 2

As mentioned before, rules on criminal jurisdiction are part of national law. Each state therefore decides independently to which cases it wishes to apply its criminal law. Formerly, the widespread opinion among jurists was that states enjoyed unrestricted autonomy in this regard.1 This view, however, conflicts with the principle of non1 See e. g. Binding, Handbuch des Strafrechts, p. 372; Wach/Mendelssohn-Bartholdy, Vergleichende Darstellung, pp. 106, 316 (as cited by Oehler, Int. Strafrecht, para. 111).

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§ 4. The Principles of Criminal Jurisdiction and their Implementation in National Legal Orders

intervention under international law.2 Without any material connection between the regulating state and the regulated set of facts, an expansion of criminal jurisdiction would encroach upon the sovereignty of another state, thereby violating international law. The Kompetenz-Kompetenz (competence-competence) for determining the rules on criminal jurisdiction is thus still perceived as a prerogative of the single state.3 At the same time, however, every state will have to abide by the limits imposed by international law when adopting legislation.4 Therefore, a sufficient connection, usually referred to as meaningful link5 or genuine link, has to exist between the case and the regulating state at all times.6 However, international law recognises a variety of such connecting factors. National legislators cannot only combine but also modify these to a certain extent when drafting their domestic rules on criminal jurisdiction. Such various modifications are accepted by international law as long as – by its categories – a meaningful link exists. This results in a considerably broad margin of appreciation of national legislators, which is – at the most – limited by the general prohibition of arbitrariness.7

II. The Principles of Criminal Jurisdiction 1. Overview of the Principles Recognised by International Law Example: 3 An Austrian citizen has committed a murder against an Italian in Spain. Spain intends to put him on trial. Public international law generally accepts the following connecting factors: – Location of the offence (principle of territoriality and flag principle respectively) In the above example, Spain could therefore establish and exercise criminal jurisdiction because the offence was committed in Spain. – Nationality of the offender (nationality principle) As in our example the perpetrator is an Austrian citizen, Austria would also be entitled to establish and exercise criminal jurisdiction over the case (and consequently to apply its criminal law to it). – The protection of domestic legal interests (protective principle) In this regard, a distinction can be made according to whose legal interests are concerned: * Legal interests of an individual who is a national of the legislating state (passive personality principle) or 2 PCIJ, The Case of the S.S. Lotus (France v. Turkey), Judgment, 7th September 1927, PCIJ Series A no. 10 (1927), pp. 18 et seq.; Epping/Gloria, in: Ipsen (ed.), Vo¨lkerrecht, § 23 paras 85 et seq. 3 See Jescheck/Weigend, § 18 I 2; for a different view, see MK-Ambos, Vor § 3 StGB para. 12, based, however, on a very narrow notion of Kompetenz-Kompetenz. 4 Cf BGH, Judgment of 5th March 1998, 5 StR 494/97 = BGHSt 44, 57 = NJW 1998, 2610; BayObLG, Judgment of 23rd May 1997, 3 St 20/96 = NJW 1998, 392; Oehler, Int. Strafrecht, paras 111 et seq. 5 See BVerfG, Decision of 22nd March 1983, 2 BvR 475/78 = BVerfGE 63, 343 (369) = NJW 1983, 2757; BVerfG, Decision of 15th May 1995, 2 BvL 19/91 = BVerfGE 92, 320 = NJW 1995, 1811; BGH, Judgment of 22nd April 1999, 4 StR 19/99 = BGHSt 45, 64 = NJW 1999, 2604. 6 ICJ, Nottebohm Case (Liechtenstein v. Guatemala), Judgment, 6th April 1955, ICJ-Rep 1955, pp. 24 et seq.; ICJ, Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Judgment, 5th February 1970, ICJ-Rep 1970, pp. 1 et seq.; the concept (under the term “linking point”) was also acknowledged by the District Court of Jerusalem in its judgment against Adolf Eichmann, ILR 36 (1961), pp. 5 et seq., paras 31 et seq.; more detailed on this: Epping/Gloria, in: Ipsen (cd.), Vo¨lkerrecht, § 23 paras 90 et seq.; see also MK-Ambos, Vor § 3 StGB para. 21 with further references. 7 Kasper, MDR 1994, 545.

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B. Criminal Jurisdiction and the Territorial Scope of Criminal Law

Legal interests of the state itself, especially its existence or integrity (protective principle [stricto sensu]) or principle of state protection). Under the passive personality principle, Italy – as the home state of the victim – may also establish and exercise criminal jurisdiction over the crime. – Legal interests the protection of which is a common domain of all states (universality principle) If the Austrian perpetrator in our example not only committed murder but genocide, every state in the world could apply its criminal law to the case according to the universality principle, irrespective of where, by whom and against whom the offence had been committed. *

All these principles focus on certain connecting factors between the alleged crime and the adjudicating state. In addition to those connecting factors, international law recognises three more principles that entitle states to establish criminal jurisdiction without any obvious “genuine link” to the case. These are the representation principle, the distribution of competence principle, which can be found in certain international agreements, and – finally – the principle of protection of European Union interests, which can be considered an extension of the principle of state protection. 5 In the following paragraphs, the underlying rationales of the jurisdiction principles mentioned above will be examined in further detail. In addition, selected examples will illustrate to what extent states have implemented them into their national legal systems thus extending their criminal jurisdiction. 4

2. Territorial Principle 6

a) General Considerations. Under the territorial principle (or principle of territoriality)8 a state is entitled to claim criminal jurisdiction over any situation which occurred within its national territory. The place where the offence was committed (locus delicti) must 8 See e. g. LK-Werle/Jeßberger, § 3 StGB para. 3; on the differing development and substance of this principle in Common and Civil Law traditions, see Oehler, Int. Strafrecht, paras 55 et seq., 64 et seq.

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§ 4. The Principles of Criminal Jurisdiction and their Implementation in National Legal Orders

therefore fall within its domestic boundaries; by contrast, the nationality of the perpetrator or of the victim is without relevance in this respect. The underlying rationale is that the domestic criminal justice system must be applicable to any person present in the country without any distinction.9 This principle enjoys the widest acceptance throughout the international community.10 The advantage of the delimitation of criminal jurisdiction along national borders is that it corresponds with the international law principles of territorial sovereignty, independence and sovereign equality of states to the highest possible extent.11 At the same time, the territorial principle is often considered too narrow since it does not cover crimes committed abroad – even if the offender or the victim are own nationals or if the offence affects essential interests of the state. Thus, the principle is frequently applied in a very broad sense: many states postulate a domestic locus delicti also in cases where a conduct performed in another state merely produces a certain effect within their own territory (known as the “effects doctrine”).12 Additionally, the principle is often combined with other principles (protective principle, nationality principle) or diluted by exceptions. The limits of this principle also become obvious where national borders lose their relevance because multiple states cooperate in the field of criminal policy, which is especially the case in the EU. As a consequence, there have been numerous demands for the introduction of a principle of “European territoriality”.13 The implementation of the territorial principle into national law requires the national legal system to answer two questions: – Where is the location of the offence (locus delicti), i. e. where was the offence committed? – What is considered to be domestic territory (notion of the national territory)? The issue concerning the location of the offence (locus delicti) can be addressed in 7 different ways. Possible places of reference include the place where the perpetrator actually acted (“place of conduct”-theory, also: “subjective territoriality theory”)14 as well as the place where the result of the offence occurred (“result theory” or: “objective territoriality theory”)15. Continental legal systems mostly combine both reference points with the consequence that the offence is deemed to have been committed at both the location of action and the location of the result (“theory of ubiquity”).16 In order to avoid conflicts with the sovereignty of other states and the principle of 8 non-intervention,17 almost all states define their national territory in accordance with the concept of territory under international law. In most cases this is seen as self-evident and not even expressly mentioned in the statute books. Only a few criminal codes contain at least some declaratory provisions dealing with the inclusion of certain areas into national territory for the purpose of criminal law. For instance, Norway (sec. 4 (2) (a) of its criminal code)18 and Denmark19 provide for the application of their criminal laws to installations on the continental shelf. Likewise, 9

Satzger, Jura 2010, 110; LK-Werle/Jeßberger, Vor § 3 StGB para. 222. Jescheck/Weigend, § 18 II 1. 11 Oehler, Int. Strafrecht, paras 152 et seq.; Jescheck/Weigend, § 18 II 1. 12 Cf the observations of Advocate General Darmon in the “Woodpulp Case”, ILR 1996, 177. 13 See § 8 para. 62; especially Delmas-Marty’s proposal for a Corpus Juris for the Protection of the Financial Interests of the European Union, Delmas-Marty, Corpus Juris, pp. 48 et seqq. 14 Cf Jennings/Watts, Oppenheim’s International Law, pp. 458 et seq. 15 Cf Brownlie, International Law, pp. 301 et seq. 16 Cf e. g. § 7 (1) StGB; Oehler, Int. Strafrecht, paras 246 et seq. 17 Cf Principle (c) Friendly Relations Declaration 1970; art. 2 no. 7 UN Charter; Shaw, International Law, pp. 213 et seq. 18 Cf Suominen, in: Elholm/Feldtmann (eds), Criminal Jurisdiction, p. 106. 19 Cornils/Vagn Greve, in: Elholm/Feldtmann (eds), Criminal Jurisdiction, p. 23. 10

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B. Criminal Jurisdiction and the Territorial Scope of Criminal Law

art. 5 of Chile’s Criminal Code extends the territorial scope of Chilean criminal law to the waters directly adjacent to the territorial waters. A comparable provision can also be found in art. 4 (1) (2) Criminal Code of Cuba. 9

b) In Particular: Cybercrime. Every legal system that basically relies on territoriality when determining the territorial scope of application of its criminal law is nowadays confronted with difficulties that have their origin in technological progress. In recent years, there has been an increasing number of crimes which can hardly be localised because of them being committed by way of modern communication devices. Most problematic are offences committed via the internet. Here the question arises whether it is legitimate to apply the national criminal laws of state A to internet content uploaded from state B and hosted on a server in state B for the sole reason that it can in principle be retrieved by internet users in state A. The logical consequence of such a wide approach would be that the criminal law of every state would be globally applicable in those and similar cases, as internet access will normally be possible at any given place. The place where the offender – the provider of the problematic content – acted will in many cases be located abroad. Still, the question remains whether or not the criminal result of his or her acts occurs within the national territory. For reasons of criminal policy the “location of result” is often considered to be the place from where the incriminated content was actually accessed or even the place where a mere possibility of access existed.20 This approach, however, can easily amount to a violation of the principle of non-intervention under international law, since a “meaningful link” to domestic territory is difficult to establish in such circumstances.21 If all states were to establish their criminal jurisdiction on this basis, all internet users would be subject to each and every criminal law on the globe. Ultimately this would mean that any act committed via the internet would have to be assessed on the basis of the strictest criminal law provision. Example: In some Islamic countries the publication of critical expressions on religious issues is regarded as “blasphemy” and (often heavily) criminalised.22 If applied to internet content such “blasphemy legislation” severely restricts the World Wide Web as a forum for open discussion and free expression of opinion. It is submitted that the mere fact that online content, like a blog entry or a Facebook post, can be retrieved in these countries does not constitute a sufficient “genuine link” to their legal systems. From this it follows that they cannot extend their criminal jurisdiction to all these cases. Depending on the jurisdiction rules of the state concerned, a narrower interpretation of territoriality must therefore be developed. Since the mere possibility of access to a certain internet content cannot create a “location of the crime”, a reasonable solution implies the definition of additional requirements that have to be met in order to apply the principle of territoriality to internet cases. In order to increase legal certainty the adoption of explicit statutory provisions on this issue is desirable (de lege ferenda).23 20

Jofer, Strafverfolgung im Internet, pp. 108 et seq. To that effect for German transnational criminal law, see Satzger, IntStr, § 5 para. 47; for a different opinion, see Jofer, Strafverfolgung im Internet, pp. 109 et seq. 22 The reach of some of these laws is demonstrated by the case of Saudi journalist Hamza Kashgari, who is accused of blasphemy and apostasy over Twitter postings featuring a fictional conversation with the Prophet Muhammad, see http://www.nytimes.com/2012/02/13/world/asia/saudi-writer-is-deported-overtwitter-posts-on-prophet-muhammad.html (last visited July 2017); http://www.thedailybeast.com/articles/ 2012/02/08/twitter-aflame-with-fatwa-against-saudi-writer-hamza-kashgari.html (last visited July 2017). 23 Further on this in the context of German transnational criminal law, cf Satzger, IntStr, § 5 paras 43 et seq. 21

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§ 4. The Principles of Criminal Jurisdiction and their Implementation in National Legal Orders

As a conclusion we may say that the internet deterritorialises the law. This is also true in relation to “cloud storage”. The physical location of the server where the information is stored cannot be easily identified; it may change and/or the data may be stored on several servers in different countries. A truly sustainable and wellfunctioning solution to the numerous problems that arise in the context of criminal jurisdiction and the internet has not been elaborated so far; such a solution can only be achieved by promoting a consensual international approach towards the matter.24 Within the European Union an interesting approach to the regulation of internet 10 cases can be found in the E-Commerce-Directive of the European Community,25 which introduced the country of origin principle for commercial teleservices. This principle centres around the idea that a service provider wishing to provide his or her services throughout the internal market would only have to adhere to the regulations of the Member State he or she is established in. It is designed to increase legal certainty for the service provider. Even though such certainty would also be especially desirable in the field of criminal law, the country of origin principle does not proffer a solution to the issues at hand: it does not apply to non-commercially provided services, which are probably the most relevant category for criminal law cases. Even more importantly – the directive flatly excludes criminal law from the scope of application of the country of origin rule.26 Therefore, at least in the area of criminal law, the directive has not brought forward any increase in legal certainty. c) Flag Principle. Closely related to the territorial principle is the flag principle, 11 which is applicable to acts committed on board of ships or aircraft. For such behaviour, international law recognises a special connection to the state under whose flag the ship sails respectively where the aircraft is registered.27 It has to be noted, however, that contemporary international law has moved away from the – once widely held – view of the ship or aircraft as “moving territory”28 of the state of register.29 Instead, an additional fictional location in the register state is attributed to the act, independently from the “real” locus delicti determined according to the territorial principle. Whilst the latter will in many cases be situated outside any state territory (e. g. on the high seas), this does not have to be the case. Rather, it can also be located inside the territorial sea or the airspace of another country. This state’s territorial jurisdiction would thus compete with the criminal jurisdiction of the flag state (within the limits imposed by the UN Convention on the Law of the Sea). In these circumstances, some legal systems therefore limit the reach of the flag principle.30

24 To that effect as well: MK-Ambos, § 9 StGB para. 34; Kappel, Ubiquita ¨tsprinzip im Internet, p. 248; Rath, JA 2007, 29. 25 Dir. 2000/31/EC, OJ (EC) 2000 No. L 178/1. 26 For more detail on this, see Kudlich, HRRS 2004, 278 et seq.; Satzger, in: Heermann/Ohly (eds), Verantwortlichkeit im Netz, pp. 176 et seq.; id., CR 2001, 117; to the same effect also: Ambos, Int. Strafrecht, § 1 para. 20; for a different opinion, see Spindler, NJW 2002, 926. 27 Cf MK-Ambos, § 4 StGB paras 1, 5. 28 So-called territoire flottant, cf PCIJ, The Case of the S.S. Lotus (France v. Turkey), Judgment, 7th September 1927, PCIJ Series A no. 10 (1927), pp. 4, 25. 29 MK-Ambos, Vor § 3 StGB para. 26 with further references; Hirst, in: Bo ¨ se et al. (eds), Conflicts of Jurisdiction, vol. 1, p. 40. However, this view still seems to be upheld in Italy, see Foffani/Orlandi/Ruggeri, in: Sinn (ed.), Conflicts of Jurisdiction, p. 314; Militello/Mangiaracina, in: Bo¨se et al. (eds), Conflicts of Jurisdiction, vol. 1, p. 262; and also in France, see Lelieur, in: Bo¨se et al. (eds), Conflicts of Jurisdiction, vol. 1, p. 117. In Spain, only public vessels are considered domestic territory, see Nieto Martı´n/Garcı´aMoreno, in: Bo¨se et al. (eds), Conflicts of Jurisdiction, vol. 1, p. 393. 30 For Finland, see Suominen, in: Elholm/Feldtmann (eds), Criminal Jurisdiction, p. 49; for Denmark, see Cornils/Vagn Greve, in: Elholm/Feldtmann (eds), Criminal Jurisdiction, pp. 23 et seq. According to

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B. Criminal Jurisdiction and the Territorial Scope of Criminal Law 12

d) Implementation of the Territorial Principle in Various National Legal Systems. The territorial principle forms the basis of all major countries’ rules on criminal jurisdiction in both the continental and the common law legal tradition.31 In English law, territoriality is seen as the primary and predominant source of criminal jurisdiction.32 As a general rule, English criminal law is applicable ratione loci to all offences committed under, on or over English (and Welsh) territory, including the territorial sea and certain domestically registered ships and aircraft.33 This seemingly simple rule is made considerably more complicated by the fact that according to the “terminatory theory of jurisdiction” the offence is deemed to have been committed at the place where it was “terminated”.34 Termination in turn is defined as the moment when the last constituting element of the offence occurs. From this follows the traditional distinction between “conduct crimes”, whose termination is considered to occur as soon as the incriminated action is performed, and “result crimes”, in relation to which the place of termination shall be situated where the offence takes effect. Nowadays, however, the terminatory rule is not applied that strictly anymore: by statute law (Criminal Justice Act 1993, effective from 1st June 1999), the territorial scope of English criminal law has been considerably extended for some of the most high profile fraud and property offences. Under the Act there is a sufficient basis for jurisdiction if an essential element of these offences occurs in England or Wales.35 This has been applied by subsequent case-law36 to other offences under common law as well, whilst still a uniform or at least consistent system for the localisation of crimes has not been created.37 In general the localisation of crimes under English law is not very transparent to the external observer as it applies rather distinct rules to each offence and strongly “depends upon the nature of the crime, the definition of the offence, the provisions of the statute creating it or any geographical limitation which is apparent from the nature of the crime itself or the language of the statute creating it”.38 Concerning cyber-crime, the territorial link is mostly sought through the location of hardware: a publication is considered domestic whenever it has been displayed on a domestic device.39 This means that English criminal courts can assume jurisdiction over all internet content that is accessed from England without any further limiting factors.40 Each extension of criminal jurisdiction beyond the territorial principle – which from the perspective of common law itself forms the only valid reference point for jurisdiction – has to be expressly provided for by an Act of Parliament (“statute law”). Such provisions usually can be found with reference to single offences and often due to Kato/Sagawa, in: Sinn (ed.), Conflicts of Jurisdiction, p. 335, the flag principle should always be considered subsidiary when it conflicts with territorial jurisdiction. 31 Epping/Gloria, in: Ipsen (ed.), Vo ¨ lkerrecht, § 23 paras 90 et seq.; Oehler, Int. Strafrecht, para. 154; see also MK-Ambos, Vor § 3 StGB para. 21 with further references. 32 Halsbury’s Laws of England, vol. 11 (1), 4th edn, paras 623, 622; see also Card/Molloy, Criminal Law, pp. 10 et seq. 33 Mansdo ¨ rfer, Allgemeine Strafrechtslehre des Common Law, p. 221. 34 R. v. Harden (1963) 1 QB 8; Treacy v. DPP (1971) AC 537; for an excellent overview of relevant caselaw and recent developments, see Hirst, in: Bo¨se et al. (eds), Conflicts of Jurisdiction, vol. 1, pp. 31 et seq. 35 For more details, see Hirst, in: Bo ¨ se et al. (eds), Conflicts of Jurisdiction, vol. 1, pp. 31 et seq.; Huber, in: Sinn (ed.), Conflicts of Jurisdiction, pp. 272 et seq. 36 The first step in that direction was taken in R. v. Smith (No. 1) (1996) 2 Cr App R 1. 37 The reasoning in R. v. Smith was rejected in R. v. Manning (1998) EWCA Crim 2074, but reasserted in R. v. Smith (No. 4) (2004) EWCA Crim 631, (2004) QB 418; it has also been applied in R. v. Sheppard and Whittle (2010) EWCA Crim 65. For more details, see Hirst, in: Bo¨se et al. (eds), Conflicts of Jurisdiction, vol. 1, pp. 32 et seq. 38 Halsbury’s Laws of England, vol. 11 (1), 4th edn, para. 624. 39 R. v. Perrin, (2002) EWCA Crim 747. 40 For a critical appreciation of such an extensive view, see para. 9.

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international obligations. As a general conclusion, English law on criminal jurisdiction unfortunately seems to lack consistency and comprehensive academic analysis.41 Other legal systems of the Anglo-American tradition will, as a general rule, also focus on the territorial principle and criminal jurisdiction can normally only be extended by statute.42 The basic structure of the German rules on criminal jurisdiction, as enshrined in §§ 3 13 et seqq. StGB for all offences of the criminal code (and extended by art. 1 (1) Introductory Act of the Penal Code [EGStGB]) to all criminal offences outside the StGB), are generally based on the territorial principle. However, the concept of territoriality is construed in a quite extensive way and, thus, the question whether an act was committed on German soil often is to be answered in the affirmative. Moreover, the territorial principle is partially supplemented by other principles of jurisdiction.43 Thus – as a starting point – German criminal jurisdiction primarily concerns domestic activities. With the rules on localisation following the theory of ubiquity (§ 9 StGB), however, the notion of a domestic act is a rather broad one. Under German law, the location of the offence encompasses every location where the perpetrator acted (or should have acted in the case of a criminal omission), as well as every location where the result constituting the offence occurred (or was intended to occur by the perpetrator in the case of an attempt).44 As a general rule German criminal law does not apply to acts committed abroad (§ 3 StGB). But there are, of course, important exceptions to this rule (in §§ 4 et seqq. StGB). If specific connecting factors (flag principle, nationality principle, protective principle, universality principle) exist – the set of facts will still fall within the criminal jurisdiction of German courts, even though the perpetrator exclusively acted on foreign territory. Additionally, there are certain specific rules for individual offences that can be found outside the StGB: Examples for this include § 370 (7) Fiscal Code (Abgabenordnung, AO), which establishes the state protection principle for tax fraud and the handling of tax evaded goods, and § 17 (7) Foreign Trade and Payments Act (Außenwirtschaftsgesetz, AWG), which is based on the nationality principle.45 The application of German criminal law for crimes aboard German ships or aircraft is regulated by § 4 StGB (flag principle). The codes of many other states following the civil law tradition contain provisions 14 very similar to those in force in Germany: A domestic location of the offence is stipulated as the regular basis for the application of the national criminal law e. g. in § 62 StGB-Austria, art. 3 StGB-Switzerland, art. 6 CP in Italy, art. 113–2 C.pe´n. in France, ch. 2 sec. 1 Criminal Code of Sweden, art. 5 Criminal Code of Poland, art. 1 (Federal-) Criminal Code of Mexico and art. 14, 15 Criminal Code of Colombia. Often, there is also a rule on the localisation of the crime analogous to § 9 StGB following the theory of ubiquity, cf § 67 (2) StGB-Austria, art. 8 StGB-Switzerland, art. 16 Criminal Code of Greece,46 ch. 1, sec. 10 para. 2 Criminal Code of Finland,47 ch. 2 sec. 4 Criminal 41 Similarly also Cameron, Protective Principle of International Criminal Jurisdiction, pp. 303 et seq., calling English law on localisation of offences a “confused mess” and its (English law’s) claims to extraterritorial jurisdiction an “illogical patchwork”. 42 Cf Oehler, Int. Strafrecht, paras 163 et seq. 43 For details, see Satzger, IntStr, §§ 5, 6. 44 So-called “subjective ubiquity”, cf Oehler, Int. Strafrecht, para. 246. 45 Art. 2 no. 1 EGStGB enables the countries to enact rules differing from §§ 3 et seqq. StGB for criminal offences under state law. On other special provisions, see SSW-StGB-Satzger, Vor § 3 para. 12. 46 Chatzinikolaou/Papakyriakou/Zachariadis/Kaiafa-Gbandi, in: Bo ¨ se et al. (eds), Conflicts of Jurisdiction, vol. 1, p. 189. 47 Suominen, in: Elholm/Feldtmann (eds), Criminal Jurisdiction, pp. 46 et seq.

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Code of Sweden,48 sec. 9 Criminal Code of Denmark49 and art. 6 § 2 Criminal Code of Poland.50 There are, however, statutes adherent to the ubiquity rule which do not localise attempts at the place where the result was intended to occur (so-called “objective ubiquity”, e. g. art. 6 (2) of the Italian CP51). France applies a particularly extensive form of the principle of ubiquity: according to French jurisprudence it shall suffice that any aspect of the case is linked with French territory, for instance because an object that the perpetrator later misappropriates abroad is handed over to him in France.52 Furthermore, France also claims jurisdiction over acts that cannot be separated from an offence committed on domestic territory.53 However, France is not alone with its very broad understanding of territoriality. Italy, for instance, claims jurisdiction over offences that were preceded by preparatory acts on its own territory.54 Likewise, Austria applies its criminal law to the offences of handling of stolen goods and money laundering where the asset concerned originated from an offence that had been committed in Austria (§ 64 (1) no. 8 StGB-Austria).

3. Nationality Principle 15

a) General Considerations. Under the nationality principle, the conduct of every person is always subject to the criminal law of the state whose national he or she is. Metaphorically speaking, according to this approach everyone is at all times carrying with him or her the national criminal legal order of his or her home state. Whether the person is acting at home or abroad is irrelevant. A possible rationale for this principle would be that any state is entitled to require its citizens to adhere to its legal order even when acting abroad.55 To demand this kind of “duty of allegiance” from a citizen is, however, often considered to be a feature of authoritarian states.56 It is therefore not very surprising that during the time of Nazi-rule in Germany, the nationality principle became the fundamental rule of the German provisions on criminal jurisdiction (and it was to remain so until the reform of the General Part of the StGB in 1975). For crimes committed abroad, another basis for this principle might also be seen in international solidarity: at least when the act is also punishable according to the law of the state where it was performed (so-called lex loci or double criminality), it is not acceptable for the 48 Cf Cameron et al., International Criminal Law from a Swedish Perspective, pp. 58 et seq. for a detailed account of the Swedish rules on localisation of offences; see also Cornils, in: Elholm/Feldtmann (eds), Criminal Jurisdiction, pp. 125, 134 et seq. 49 Cornils/Vagn Greve, in Elholm/Feldtmann (eds), Criminal Jurisdiction, pp. 20 et seq. 50 Go ´ rski/Sakowicz, in Bo¨se et al. (eds), Conflicts of Jurisdiction, vol. 1, p. 370. 51 Cf Militello/Mangiaracina, in: Bo ¨ se et al. (eds), Conflicts of Jurisdiction, vol. 1, p. 262. The situation in Spain seems to be similar, cf Nieto Martı´n/Garcı´a-Moreno, in: Bo¨se et al. (eds), Conflicts of Jurisdiction, vol. 1, p. 392. For the French system Lelieur, in Bo¨se et al. (eds), Conflicts of Jurisdiction, vol. 1, p. 113 (with further references), criticises an older court decision that did not comply with this objective ubiquity rule. 52 Lelieur, in: Bo ¨ se et al. (eds), Conflicts of Jurisdiction, vol. 1, pp. 109 et seq. 53 Lelieur, in: Bo ¨ se et al. (eds), Conflicts of Jurisdiction, vol. 1, p. 111. 54 At least this is the stance taken (and defended against criticism by the legal doctrine) by Italian courts, see Militello/Mangiaracina, in: Bo¨se et al. (eds), Conflicts of Jurisdiction, vol. 1, p. 261. 55 (In German) so-called Personalhoheit (i. e. sovereignty over the person); this is the historically earliest connecting factor, as ancient legal systems determined the legal status of a person according to affiliation with a tribe, see Jescheck/Weigend, § 18 II 3. A critical view on this historical interpretation is offered by Oehler, Int. Strafrecht, para. 706, highlighting the fact that Germanic tribal law intended to protect the individual by ensuring the application of “his own law” to him while the modern nationality principle, by additionally imposing the application of the law of “his” state, in stark contrast places an extra burden of rules on the individual. 56 LK-Werle/Jeßberger, Vor § 3 StGB para. 234; cf Jescheck/Weigend, § 18 II 3; for a very critical view, see MK-Ambos, Vor § 3 StGB paras 36 et seq.

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home state to sit back and watch one of its citizens committing crimes in other countries. This notion especially holds true in cases where the site of crime is not subject to any criminal jurisdiction (e. g. the high seas or terra nullius as [at least parts of] Antarctica).57 Interests of the suspects’ home states as well as those of other states could still be affected here. With no criminal law being applicable under the territorial principle, it is plausible for the home state to assume the task of criminal prosecution, due to its close connection to the offender. The nationality principle is of specific importance to states which are, by their domestic legal order, prevented from extraditing their own citizens, as it used to be – and to a certain extent still is – the case for many European countries as e. g. Austria (§ 12 (1) Law on Extradition and Mutual Assistance [Auslieferungs- und Rechtshilfegesetz]) and Germany, art. 16 GG.58 If a citizen of those states escapes to his or her home country after having committed a crime abroad, the nationality principle enables the home state to prosecute that person. This concept is often referred to as principle of aut dedere aut iudicare.59 Such bans on extradition are (sometimes with certain exceptions for extraditions pursuant to an international treaty) very common in civil law countries (cf art. 55 Constitution of the Republic of Poland, art. 25 Constitution of the Swiss Confederation, art. 26 Constitution of the Italian Republic, art. 33 (3) Constitution of the Portuguese Republic). By contrast, many states that adhere to the common law legal tradition seem to be more willing to extradite their nationals for crimes committed abroad than to prosecute them themselves.60 In its purest form, the nationality principle would entail that no criminal act committed by foreigners could be subject to the criminal jurisdiction of the host state, even if committed against one of its own nationals. This obviously inacceptable consequence can only be avoided by combining the nationality principle with the territorial principle and/or the protective and passive personality principles. In order to implement the nationality principle, a criminal law system at least has to define who is its national. For most cases, this will be accomplished by reference to national citizenship law. Generally speaking, the fact that the suspect additionally holds a foreign nationality does not exclude the application of the nationality principle.61 Instead of using nationality as the decisive factor, it would also be possible to refer to 16 the concept of domicile, meaning the status of a permanent residence within a jurisdiction. This concept is rather well known to common law jurisdictions as an important criterion in private international law. According to criminal law terminology it has to be called the domicile principle.62 For this principle, in turn, it is necessary to define the notion of “domicile”. b) Implementation of the Nationality Principle in Various National Legal Orders. 17 In German Law especially § 7 (2) no. 1 alt. 1 StGB is based on the principle of nationality. In addition to the nationality of the perpetrator, this provision also requires that the act is punishable according to the law in force at the location of the offence, or that it does not fall under any criminal jurisdiction at all. Rather peculiar is the “new57

Similar Brownlie, International Law, p. 304. Cf also MK-Ambos, § 7 StGB para. 1. 59 Ambos, Treatise, vol. 3, pp. 230 et seq.; Bassiouni/Wise, Aut Dedere aut Judicare, pp. 3 et seqq. 60 With the exception of Ireland, see para. 21. 61 For the legal situation in Germany, see Satzger, IntStr, § 5 para. 82; for the one in Poland, see Go ´ rski/ Sakowicz, in: Bo¨se et al. (eds), Conflicts of Jurisdiction, vol. 1, p. 373. An Italian court decision which gave priority to the foreign nationality is mentioned by Militello/Mangiaracina, in: Bo¨se et al. (eds), Conflicts of Jurisdiction, vol. 1, p. 268. 62 Cf Kielwein, in: Hohenleitner/Linder (eds), FS Rittler, pp. 97 et seq. 58

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citizens-clause” in § 7 (2) no. 1 alt. 2 StGB: it extends German criminal jurisdiction to persons who were naturalised after having committed the crime in question (as nonGermans) abroad. This provision can only be understood in the context of the constitutional ban on the extradition of German nationals. As a matter of principle, art. 16 (2) GG prevents Germans from being extradited to foreign states, including the state where they committed an offence (it should be noted, however, that a different regime has been established in relation to EU states with the introduction of the European Arrest Warrant, see § 8 para. 38). This guarantee applies irrespective of when the person became a German citizen. The extension of Germany’s jurisdiction to cases where the perpetrator held a different nationality at the time when committing the offence is clearly due to this subsequent impossibility of extradition. Thus, it is more convincing not to rely on nationality as the “genuine link” in these cases. Rather, this provision should be explained with the representation principle (akin to § 7 (2) no. 2 StGB).63 Furthermore, the nationality principle in German criminal law applies to certain offences which the legislator deemed to affect German legal interests, even if committed abroad. They can be found in the catalogue of § 5 StGB. In this provision, however, the nationality principle is sometimes combined with other principles, especially the protective principle or the domicile principle. Depending on its implementation in each case, the nationality principle is limited by these additional criteria or instead serves to limit them where they establish Germany’s extraterritorial jurisdiction. It has to be noted that the attribution of the particular provisions is disputed among German legal scholars.64 18 The nationality principle is also frequently invoked by other legal systems of civil law tradition. For instance, Poland has a provision which is quite similar to the German one (albeit without any new citizens’ clause).65 In France, art. 113-6 C.pe´n. implements the principle even more extensively than German law. It extends French criminal jurisdiction to offences classified as crimes (serious criminal offences) committed by French nationals abroad without further requirements and to de´lits (less serious criminal offences), provided the act is also punishable under the law of the state where it was committed.66 In addition, a “newcitizens-clause”, akin to the one in Germany, can be found in para. 4.67 Furthermore, the relatively new art. 113-13 C.pe´n. introduces an active domicile principle with regard to acts of terrorism.68 However, the transnational ne bis in idem principle recognised in French domestic law for acts committed abroad (see § 3 para. 6) limits France’s extraterritorial jurisdiction based on the nationality principle. Spain has a similar provision in art. 23 (2) LOPJ, which also includes a transnational ne bis in idem rule. In addition, it presupposes a request for prosecution by the Minister of Justice. It is worth mentioning that the double criminality requirement does not apply where Spain is entitled to exercise extraterritorial jurisdiction by virtue of an international treaty or a legal act by an international organisation. 63 Disputed. Supportive of the view advocated herein: S/S-Eser, § 7 StGB para. 1 with further reference; the issue is discussed in more detail in Satzger, IntStr, § 5 paras 78 et seq. 64 Cf Satzger, IntStr, § 5 paras 65 et seq.; as well as Ambos, Int. Strafrecht, § 3 paras 44 et seq. 65 Go ´ rski/Sakowicz, in: Bo¨se et al. (eds), Conflicts of Jurisdiction, vol. 1, pp. 372 et seq. 66 This lex loci requirement is abolished only with regard to some specific offences, cf Lelieur, in: Bo ¨ se et al. (eds), Conflicts of Jurisdiction, vol. 1, p. 119. 67 Bouloc, Droit pe ´nal ge´ne´ral, para. 181; Bouloc/Matsopoulou, Droit pe´nal ge´ne´ral et proce´dure pe´nale, para. 122; Desportes/Le Gunehec, Droit pe´nal ge´ne´ral, pp. 361 et seq.; Lelieur, in: Sinn (ed.), Conflicts of Jurisdiction, pp. 301 et seq. 68 Cf Bouloc, Droit pe ´nal ge´ne´ral, para. 181.

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Italy claims jurisdiction under the nationality principle for all offences (delitti) committed by its nationals abroad pursuant to art. 9 CP. Nevertheless this general rule is limited expressly by certain procedural hurdles: for all offences directed only against foreigners or foreign countries criminal prosecution requires a request from the Minister of Justice; moreover Italy must have denied extradition or the government of the state where the crime was committed must have rejected extradition of the offender. If the offence affects domestic legal interests, but incurs a maximum sentence of not more than three years (under Italian law), prosecution can only commence upon the demand of the Minister of Justice or the injured person for all offences that incur, under Italian law, a maximum sentence of not more than three years.69 Although the wording of art. 9 CP does not presuppose a lex loci, it seems to be accepted that such requirement must be read into the provision.70 An example of a state which makes use of this principle in an especially extensive way is the Republic of Cuba: art. 5 (1) of the Cuban Criminal Code provides for the application of Cuban criminal law to all offences committed abroad by persons with a residence in Cuba or by Cuban citizens irrespective of their place of residence. The only limiting factor is that the perpetrator must be extradited to Cuba. The application of Cuban law under this provision is even independent of the question as to whether the act is punishable under the lex loci. Japanese criminal law does apparently not establish any express limitations of the nationality principle; however, there is a discussion whether the principle should be applied only to serious offences.71 By contrast, a very restrictive form of the nationality principle can be found in Austrian law (§§ 64, 65 StGB-Austria):72 According to § 64 StGB-Austria, the nationality principle applies, but only in combination with the domicile principle either alone (no. 4a) or together with the passive personality principle (no. 7 – cases where perpetrator and victim are Austrians and habitually resident in Austria). § 65 StGB-Austria combines the nationality principle with the principle of representation in a way similar to the German § 7 (2) no. 1 StGB. However, some additional restrictions allow for the conclusion that the provision shall merely compensate for a foreign state’s incapacity to prosecute the case itself (see para. 42). Also Switzerland has implemented a restrictive form of the nationality principle in art. 7 (1) StGB-Switzerland. The act must constitute a criminal offence under the law of the state in which the crime was committed and the perpetrator must be present in Switzerland or have been extradited for the specific crime. Additionally, art. 7 (3) StGBSwitzerland requires the Swiss court to determine its sentence in a way which ensures that it is not harsher than the one that would have been imposed under the lex loci. Thus, even though foreign law is not applied directly (in contrast to the former legal situation in Switzerland, see § 3 para. 3), the offender keeps the benefit of a more favourable criminal law at the location of the offence with regard to the punishment. Moreover, as a general rule, prosecution will be barred if the suspect has already been convicted or finally acquitted in another state, art. 7 (4) StGB-Switzerland. Taken together, all these limitations result in a remarkable emphasis on the subsidiary nature

69 Cf Marinucci/Dolcini, Manuale di diritto penale, p. 107; Militello/Mangiaracina, in: Bo ¨ se et al. (eds), Conflicts of Jurisdiction, vol. 1, p. 269. 70 Cf Militello/Mangiaracina, in: Bo ¨ se et al. (eds), Conflicts of Jurisdiction, vol. 1, p. 269. 71 Cf Kato/Sagawa, in: Sinn (ed.), Conflicts of Jurisdiction, p. 336. 72 For more details, see Hochmayr, in: Sinn (ed.), Conflicts of Jurisdiction, pp. 359 et seq.

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of the nationality principle, implying that these provisions should be regarded as an expression of the representation (rather than the nationality) principle.73 19 Another interesting observation with regard to the nationality principle can be made by analysing the legal systems of Scandinavian countries, which frequently extend their criminal jurisdiction to foreigners permanently residing in their territory. Sweden (ch. 2 sec. 2 para. 1 no. 1 Swedish Criminal Code),74 Denmark (§ 7 (1), (2) Criminal Code)75 and Norway (sec. 5 (1) (b) Criminal Code)76 employ this domicile principle in order to supplement the nationality principle as a basis for jurisdiction.77 In Sweden and Denmark, the assumption of jurisdiction is generally limited by the requirement of a lex loci or alternatively the lack of any criminal jurisdiction at the location of the offence. Denmark, however, in § 7 (1) no. 2 b Danish Criminal Code extends the reach of its criminal law further by combining the nationality and domicile principles with the passive personality and (possibly) universality principles. This provision renders Danish criminal law applicable to Danish nationals and residents, without the requirement of a lex loci, for cases where also the victim is a Danish national or resident. No additional requirement on the part of the victim must be fulfilled in cases involving sexual abuse of children and female genital mutilation.78 Also Norway dispenses with the lex loci requirement for a number of offences (e. g. international core crimes, female genital mutilation, forced marriage and child marriage), as well as for offences against the Norwegian State or authorities (cf sec. 5 (1) of its criminal code).79 Often, Scandinavian rules on criminal jurisdiction also provide that persons with equivalent status in any Nordic country shall be treated akin to own nationals (or foreigners with a permanent domestic residence) as long as they are present (or apprehended) in the state claiming jurisdiction (e. g. § 7 (3) Criminal Code of Denmark, ch. 1 sec. 6 (3) no. 2 Criminal Code of Finland,80 ch. 2 sec. 2 para. 1 no. 2 Criminal Code of Sweden). This unusual rule of equivalence must be understood as a consequence of the close relations between the Nordic states, the high degree of mobility and the outstanding and progressive cooperation in many matters dating back to a time long before the beginning of the process of European integration in the area of criminal law.81 Finally, the Nordic states often provide for lex mitior rules, according to which the penalty imposed by a domestic court exercising jurisdiction under the nationality 73 Cf Stratenwerth, Schweizerisches Strafrecht, § 5 paras 11 et seq., with respect to art. 6 StGB-Switzerland o.v. 74 Cornils, in: Elholm/Feldtmann (eds), Criminal Jurisdiction, pp. 137 et seq. 75 Cornils/Vagn Greve, in: Elholm/Feldtmann (eds), Criminal Jurisdiction, pp. 24 et seq. 76 Cf Suominen, in: Elholm/Feldtmann (eds), Criminal Jurisdiction, pp. 111. 77 Cf Cameron, Protective Principle of International Criminal Jurisdiction, pp. 72 et seq. on general considerations. Some of the provisions cited there have, however, been amended in the meantime. 78 For more details, see Cornils/Vagn Greve, in: Elholm/Feldtmann (eds), Criminal Jurisdiction, pp. 25 et seq. 79 Cf Suominen, in: Elholm/Feldtmann (eds), Criminal Jurisdiction, pp. 111 et seq. 80 Fra ¨ nde/Helenius, in: Bo¨se et al. (eds), Conflicts of Jurisdiction, vol. 1, pp. 76 et seq.; Suominen, in: Elholm/Feldtmann (eds), Criminal Jurisdiction, p. 50. 81 To that effect: Oehler, Int. Strafrecht, para. 694, who attributes this provision to the distribution of competence principle (this is dubitable, as competences are actually not distributed due to considerations of proximity to the subject or convenience, but rather multiplied, as any Scandinavian country where the suspect is seized, has jurisdiction for all crimes committed by any “Scandinavian” anywhere in the world, if it wishes to prosecute them). However, as Cameron et al., International Criminal Law from a Swedish Perspective, pp. 69 et seq. indicate, there seem to be mechanisms on the administrative plane aimed at ensuring that the case is dealt with at the most convenient jurisdiction. As to the so-called Nordic approach to criminal law, see Suominen, EuCLR 1 (2011), 170 et seq.; Asp, in: De Kerchove/Weyembergh (eds), Mutual Recognition, pp. 223 et seq.

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principle may not exceed the penalty provided for by the law of the state of commission (ch. 1 sec. 11 para. 1 Criminal Code of Finland,82 ch. 2 sec. 2 para. 3 Criminal Code of Sweden, § 10 (2) Criminal Code of Denmark). Summing up, civil law countries – as a rule – assume jurisdiction on the basis of the 20 nationality principle. At the same time most states acknowledge that this principle encounters problems under international law, especially with a view to the sovereignty of the state on whose territory the crime was committed. As a consequence, they have set more or less extensive limits on its application. In most cases the act must be considered criminal according to the lex loci delicti. In common law jurisdictions, nationality as a basis for criminal jurisdiction – while 21 technically an exception to the general rule – is nevertheless widely used. Since extradition of own nationals is normally not excluded by those legal systems the reason for applying the nationality principle is mostly seen in a distinctly perceived necessity of punishment for specific offences. The United Kingdom stipulates by statute the external application of its own criminal laws to some crimes which are considered particularly serious (e. g. homicide under the Offences Against the Person Act 1861 sec. 9, 57 and certain sexual offences under the Criminal Justice and Immigration Act 2008, sec. 72).83 Also, under sec. 12 (2) to (4) of the UK Bribery Act 2010, persons with a “close connection” to the UK (e. g. British citizens, British subjects under the British Nationality Act 1981, individuals ordinarily resident in the UK, bodies incorporated under the law of any part of the UK, etc.) can be held liable for acts and omissions outside the UK. However, statutes must have “the clearest possible wording” if extraterritorial jurisdiction shall be based upon them.84 The situation in the USA is quite similar but more focused on offences covered by the protective principle and on acts the criminalisation of which is prescribed by international treaties.85 The US case-law tends to make use of the principle more extensively, as courts have found it possible to apply it to crimes of US-American nationals committed abroad where the protection of “state interests” is concerned – even without any express statutory stipulation.86 Examples include, inter alia, crimes concerning bribery, malpractice in office, counterfeiting or perjury, but also classic state security offences like (high) treason (e. g. treason according to 18 U.S.C. § 2381). The courts justify their approach especially by referring to the allegiance owed by nationals to their government, which subjects them to the laws of the nation anywhere in the world.87 Based on this reasoning, it is not surprising that the majority of legal scholars in the USA considers it admissible under international law to use the principle as a basis for jurisdiction, even without any limitation to the protection of legal interests of the state.88 In the Republic of Ireland, sec. 38 of the Extradition Act 1965 – a provision similar to many others in place on the European Continent – stipulates: an Irish citizen having committed a crime abroad is to be punished according to Irish law if he or she is not extradited and the state in which the crime was committed demands prosecution. Here the extraterritorial application of national criminal law is also a way of compensating for the general prohibition to extradite nationals (which is enshrined in sec. 14 of the Extradition Act 1965). 82

Fra¨nde/Helenius, in: Bo¨se et al. (eds), Conflicts of Jurisdiction, vol. 1, pp. 75 et seq. Cf also Shaw, International Law, pp. 663 et seq. 84 Hirst, in: Bo ¨ se et al. (eds), Conflicts of Jurisdiction, vol. 1, pp. 41 et seq. 85 Cf MK-Ambos, Vor § 3 para. 41 fn 265; Schmitz, Das aktive Personalita ¨tsprinzip im Int. Strafrecht, p. 244. 86 US v. Bowman (1922) 260 U.S. 94, 98; Oehler, Int. Strafrecht, paras 758 et seq. 87 Cf Oehler, Int. Strafrecht, para. 763. 88 This reasoning can be traced back to as early as the Harvard Draft (1935), art. 5. 83

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4. The Protective Principles 22

The protective principles grant a state jurisdiction over all actions that endanger or violate its domestic legal interests.89 It is of no importance whether the acts concerned take place on domestic territory or in another country or whether the offender is a national or a foreigner to the state claiming jurisdiction. The principle is justified by taking into account that it is one of the most important responsibilities of any state to protect its own legal interests – and those of its citizens. In its purest form, the principle does not cover the prosecution of any criminal act that may be committed on the state’s territory against foreigners or foreign countries. Therefore, the protective principle is primarily invoked to supplement other principles of criminal jurisdiction. It is often referred to as the principle which especially enables a state to exercise jurisdiction over crimes against domestic legal interests committed abroad by foreigners.90 Depending on the kind of legal interest protected, two sub-principles of the protective principle can be discerned:91

a) Protective Principle (stricto sensu). If self-defence of the state and its institutions is at issue, e. g. in the case of espionage, the governing principle is called protective principle (stricto sensu). The underlying rationale is evident: the offender himself establishes a “genuine link” between his act and the state concerned by attacking it as an entity.92 Moreover, foreign criminal law generally does not sufficiently protect the interests of the attacked state.93 Consequently the only possibility a state has to ensure the criminal law protection of its peculiar interests is to establish its own criminal jurisdiction. By the same token, the application of the protective principle cannot be dependent on the act being punishable under the law of the place where it was committed (lex loci).94 Practically all states claim (more or less extensively) criminal jurisdiction for actions committed outside their territory by foreigners on the basis of the protective principle. Civil law (and civil law influenced) countries invoke the principle in their codes either with a broad comprehensive clause or a conclusive enumeration of the relevant offences. Their provisions share some similarities as to the general nature of the crimes covered, but also differ substantially in the specific way they are drafted. 24 In Germany the provisions in § 5 nos. 1–5, 10–14 as well as (partly) 15–16 StGB can be considered embodiments of this principle. Some of the offences included are (high) treason, propaganda offences, preparation of a war of aggression, and other crimes against the external security, but also offences dealing with false statements in court, malpractice in office, certain offences against the environment as well as bribery offences if the person accepting the benefit is a German public official. In many provisions – but not as a general rule – § 5 StGB limits the sweeping reach of the principle through the additional requirement that the suspect must be a German national or have a domestic residence.95 23

89

Jescheck/Weigend, § 18 II 4. MK-Ambos, Vor § 3 StGB para. 39. 91 For a critical view on the terminology used herein, see Henrich, Das passive Personalita ¨tsprinzip, pp. 30 et seq. 92 Jescheck/Weigend, § 18 II 4. 93 See also § 3 para. 10 and in more detail Satzger, IntStr, § 6. 94 MK-Ambos, Vor § 3 StGB para. 40; NK-Bo ¨ se, Vor § 3 StGB para. 19. 95 For details, cf Satzger, IntStr, § 5 paras 64 et seq. 90

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The legal situation in France under art. 113–10 C.pe´n. is comparable: French criminal law is declared applicable – irrespective of the location of the offence or the person of the perpetrator – for all crimes and de´lits protecting the fundamental interests of the nation and punishable under Title I of Book IV, the counterfeiting of state seals and money and crimes against French diplomats abroad.96 Austria has akin rules for offences against the state or domestic public officials, false testimony and counterfeiting of money (§ 64 (1) nos. 1, 2, 3 and 4 StGB-Austria).97 In Switzerland, art. 4 StGBSwitzerland is a similar provision; it extends the application of certain – exhaustively enumerated – offences against the state and national defence to acts committed abroad. Moreover Belgium, under art. 10 (1) Cic (titre pre´liminaire), applies its criminal law extraterritorially to crimes against the security of the state.98 The Scandinavian countries tend to have fairly extensive legislation concerning the protective principle: Sweden, with ch. 2 sec. 3 no. 4 Swedish Criminal Code (“crime […] against the Swedish nation, a Swedish municipal authority or other assembly, or against a Swedish public institution”)99 and Finland, in ch. 1 sec. 3 Criminal Code, (“Offence directed at Finland”, encompassing treason or high treason, “offences directed at a Finnish authority” or any act that “has otherwise seriously violated or endangered the national military or economic rights or interests of Finland”100) both have sweeping general clauses instead of any enumerative catalogue of offences. Denmark, in § 8 nos. 1-4 of its Criminal Code makes use of the general clause method in an even more extensive and – at least in part – ambiguous way: Danish criminal law is to be applied to acts violating “the independence, security, constitution or public authorities of the Danish State” (§ 8 no. 1 Danish Criminal Code).101 The subsequent clauses refer to legal interests depending on a “personal connection with the Danish State”, the violation of obligations which “the perpetrator is required by law to observe abroad” and official duties in connection with Danish ships or aircraft. In Italy, art. 8 CP even goes much further in that it extends the protective principle stricto sensu to all “political” offences. This notion encompasses offences affecting political interests of the Italian state, political rights of Italian citizens as well as all offences committed for a political purpose.102 Obviously, such an extremely far-reaching application of the principle is highly problematic in regard of international law. Furthermore, it seems questionable whether the rather vague category of “political” offences still complies with the lex certa requirement of the principle of legality. Looking beyond Europe’s borders, a similar approach can be found e. g. in Colombia, in art. 16 of its criminal code: the article contains an enumeration of some particular offences against the state in paragraph one, while a limited general clause is to be found in art. 16 (5) 1 alt. 1. The latter applies to all crimes against the state but requires that the perpetrator acts from within the territory, that the offence committed can be punished with at least two years of imprisonment and that the perpetrator has previously not been tried abroad for the act. Additionally, the assent of the Attorney General is required (s. 2) and an international ne bis in idem clause applies. 96

Cf Bouloc, Droit pe´nal ge´ne´ral, para. 183; Desportes/Le Gunehec, Droit pe´nal ge´ne´ral, pp. 366 et seq. For more details, see Hochmayr, in: Sinn (ed.), Conflicts of Jurisdiction, pp. 361 et seq. 98 Verbruggen/Verstraeten, Strafrecht en Strafprocesrecht, para. 2080 with further references. 99 Cf Cameron et al., International Criminal Law from a Swedish Perspective, pp. 75 et seq. 100 Fra ¨ nde/Helenius, in: Bo¨se et al. (eds), Conflicts of Jurisdiction, vol. 1, pp. 81 et seq. 101 Translation taken from Langsted/Garde/Greve, Criminal Law in Denmark, p. 41; a detailed account on the situation before the 2008 reforms can be found in Cameron, Protective Principle of International Criminal Jurisdiction, pp. 169 et seq. 102 Foffani/Orlandi/Ruggeri, in: Sinn (ed.), Conflicts of Jurisdiction, p. 316; Militello/Mangiaracina, in: Bo¨se et al. (eds), Conflicts of Jurisdiction, vol. 1, p. 272. 97

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Under the provisions of the new criminal code of Norway (§ 5 (1) no. 6), the protective principle applies to Norway’s own nationals, permanently resident foreigners and Scandinavians (as well as foreigners permanently resident in Scandinavian countries) present in Norway. In addition to that, this principle applies to other foreigners if they are present in Norway, but only in relation to offences with a penalty of at least one year imprisonment (§ 5 (3)). Furthermore, prosecution is only permitted if deemed necessary in the public interest. Finally, the new criminal code limits the sentence to the maximum penalty provided by the laws of the state where the offence was committed for a similar crime (§ 5 (6), (7)). This forms a considerable contrast to the very extensive extraterritorial application of Norwegian criminal law on foreigners under sec. 12 no. 4a) of the former criminal code.103 25 In common law jurisdictions, this principle (like the nationality principle, see para. 21) is mostly used in the context of specific offences. Nevertheless, especially the courts in those countries tend to make broad use of the principle, despite the somewhat critical views expressed in legal doctrine.104 In the UK, criminal liability of foreigners for acts outside the realm is expressly provided for e. g. in sec. 1, 8 Perjury Act for perjury before British public officials and courts as well as in the Dockyard Protection Act 1772 for the offence of “burning the Queen’s Ships, Dockyards and Naval Stores”.105 Some commentators consider the case of “Joyce vs. Director of Public Prosecutions” an application of the protective principle. It was held that acts outside national territory could be punished as treason, if the perpetrator illegally by false statements obtained a British Passport and therefore was subject to a “duty of allegiance” towards the Crown, even though not being a national under citizenship law.106 However, it is unclear whether it is indeed the principle of state protection that serves as basis for such extraterritorial claims to jurisdiction: alternative views rely on the nationality principle and even a broad concept of territoriality may apply when an act performed abroad is intended to take effect in England or Wales.107 A rather curious example is the criminal liability of commercial organisations for failure to prevent bribery under sec. 7 of the UK Bribery Act 2010.108 Prosecution under this section is possible not only against organisations incorporated in the UK (see para. 21), but also against a foreign corporate body or partnership that “carries on a business, or part of a business, in any part of the United Kingdom” (sec. 7 (5)), irrespective of where in the world the relevant conduct has taken place (cf sec. 12 (5)). This extensive assertion of jurisdiction is difficult to justify with any of the traditional jurisdiction principles. That a company is doing business in the UK does not in itself suffice to create a territorial link to all its actions or omissions anywhere in the world – particularly if this was to be interpreted broadly to encompass mere contractual relations to UK companies or consumers. And while bribery may be prejudicial to national interests or the interests of domestic businesses in a number of circumstances, the protective and the passive personality principles cannot account for the complete ambit of the provision either. The Act does not provide for any restrictions to the claim of jurisdiction that refer to the interests protected by those principles. Where the provision covers extraterritorial conduct of non-national organisations, criminal juris103

Cf Suominen, in: Elholm/Feldtmann (eds), Criminal Jurisdiction, p. 113. Cf Cameron, Protective Principle of International Criminal Jurisdiction, pp. 38 et seq. with further references. 105 Oehler, Int. Strafrecht, para. 550. 106 Cf Shaw, International Law, p. 667. 107 Hirst, in: Bo ¨ se et al. (eds), Conflicts of Jurisdiction, vol. 1, p. 46; see also Oehler, Int. Strafrecht, para. 754. 108 A short introduction to the Act (in German) provide e. g. Klengel/Dymek, HRRS 2011, 22 et seq. 104

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§ 4. The Principles of Criminal Jurisdiction and their Implementation in National Legal Orders

diction seems to be based on an unclear mixture of the “effects doctrine” (see para. 6) and a very extensive reading of the domicile and protective principles. Thus it remains rather doubtful, whether this is still in conformity with international law. In the USA, extraterritorial criminal jurisdiction is explicitly stipulated for certain crimes by statute law (e. g. counterfeiting according to 18 U.S.C. ch. 25). As for other offences, the extraterritorial application of domestic criminal law in situations embraced by the protective principle may often be justified with the rationale used by the US Supreme Court in the aforementioned Bowman case.109 In this decision it was held that nothing in the Constitution impedes Congress from declaring (by statute) US criminal law applicable to extraterritorial events and that this does not need to be expressly provided for in the text of the statute, but may also be extracted from the nature of the offence by interpretation.110 Contrary to a widely held opinion,111 using the protective principle only in combination with the nationality principle can therefore no longer be described as the general rule throughout common law jurisdictions. b) Passive Personality Principle/Individual Protective Principle. It is widely accepted 26 that the interest of any state to protect its citizens against infringements of their individual legal interests, such as property rights, may also be seen as a “genuine link”.112 However, the justification of this passive personality principle is much less straightforward than that of the protective principle.113 In many cases, it concerns acts committed abroad by foreigners (often nationals of the state where the offence is located) against a national of the state claiming jurisdiction. That the postulate to apply domestic criminal law to these cases has its problems can be illustrated by a case where the (domestically) incriminated act is not punishable under the lex loci. The (foreign) perpetrator then would not have been the addressee of the (domestic) prohibition which he or she infringed.114 If one still was to apply domestic criminal law to the case, this would introduce a “foreign body” into the legal system, as the connection to the domestic legal order is not strong enough to justify the assumption of jurisdiction. In contrast to what was said above concerning the protective principle, the “meaningful link” also cannot result from the nature of the crime itself, as it is not directed against domestic legal interests per se. Thus, for the application of the principle to be in accordance with international law, it is rightly demanded that the act should also be criminalised under the law of the state of commission.115 Also the intervention into the internal affairs of the state where the conduct took place appears less serious when that state – by maintaining a corresponding criminal offence – in principle recognises the criminal character of the act.116 Consequently, an absolute application of the passive personality principle without any limitations is inadmissible under public international law.117 109

See para. 21. On this complex, cf the comprehensive analysis undertaken by Cameron, Protective Principle of International Criminal Jurisdiction, pp. 236 et seq. 111 Cf Oehler, Int. Strafrecht, paras 545 et seq.; MK-Ambos, Vor § 3 para. 41 fn 265. 112 It is also common not to connect the aspect of protection of the individual with the protective principle but rather to discuss the passive personality principle as an independent principle juxtaposed with the nationality (or “active personality”) principle, see e. g. SK-Hoyer, Vor § 3 StGB para. 11. 113 Cautious also: MK-Ambos, Vor § 3 StGB para. 42. 114 Jescheck/Weigend, § 18 II 4. 115 Jescheck, in: Schroeder/Zipf (eds), FS Maurach, p. 581; Oehler, Int. Strafrecht, paras 127 et seq.; LKWerle/Jeßberger, Vor § 3 StGB para. 230. 116 Cf Cafritz/Tene, Colum. J. Transnat. L. 41 (2003), 585, 597; furthermore, in such cases it can hardly be argued that the offender has not been addressee of the prohibition. 117 To that effect also MK-Ambos, Vor § 3 StGB para. 44. 110

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Traditionally, the appreciation of the principle has been a very critical one in states with common law legal systems. For the (until recently) absolutely prevailing opinion governing academic discussions in the USA, textbook writers still quote the 19th century “Cutting case”: Mr Cutting, a US journalist and publisher, was charged with libel in Mexico for a publication issued in the US.118 The US administration vehemently protested the Mexican assertion of jurisdiction on inter alia the basis of the victim’s nationality. In the end the conflict was resolved using diplomatic channels without any concession on matters of legal principle by either party. Meanwhile US statute law also establishes limited extraterritorial jurisdiction in cases of especially serious offences against US nationals (e. g. hostage taking under the Comprehensive Crime Control Act – § 1203, 18 U.S.C. and acts of terrorism under the Omnibus Diplomatic Security and Anti-Terrorism Act).119 Moreover, current court decisions – in the light of the spread of global terrorism – have deemed the principle to be internationally accepted.120 By contrast, the principal jurisdictions of the United Kingdom (England, Wales, and Scotland), as well as the Republic of Ireland apparently do not seem to make direct use of the principle.121 For some offences, however, an exception to this rule can now be found in England’s and Wales’ anti-terrorism legislation.122 28 Among civil law jurisdictions, the use of the principle is much more common. Those states also accept it as a base for jurisdiction and consider it to be in conformity with international law, almost without any disagreement. In almost all civil law states actively invoking the principle there are, however, limiting criteria concerning e. g. the gravity of the crime or the requirement that the act must be punishable also at the place of commission. In some jurisdictions, the principle is limited to especially serious crimes or certain categories of offences. In France it is irrelevant whether the act is criminalised under the lex loci delicti. In order to exercise extraterritorial jurisdiction on the basis of the passive personality principle, the offence instead has to be classified as a crime or as a de´lit punishable with a custodial sentence under French law (art. 113–7 C.pe´n.).123 This legal situation reflects the high status of the victim in French criminal proceedings and is only limited by procedural requirements such as a complaint by the victim or the foreign judicial authority.124 In Italy, art. 10 CP implements the passive nationality principle. The respective offence must carry a minimum penalty of one year imprisonment according to Italian law and the injured person or the Minister of Justice must issue a demand for prosecution;125 27

118 Cf Henrich, Das passive Personalita ¨tsprinzip, p. 196, who, however, by dismissing the case as outdated, overlooks the fact that it is still frequently cited by US/UK textbooks on international law. 119 Shaw, International Law, pp. 665 et seq.; for a different opinion, see Henrich, Das passive Personalita¨tsprinzip, p. 200, who at least in the first case sees jurisdiction as based on the consent of other states under the hostage-taking-Convention. Yet, this interpretation does not account for the fact that the US statute does not limit the extraterritorial application on nationals of States Parties to the convention. 120 See US v. Yunis (no. 2) 82 ILR, p. 344. 121 Henrich, Das passive Personalita ¨tsprinzip, p. 198. 122 Huber, in: Sinn (ed.), Conflicts of Jurisdiction, p. 276; Massa, in: Klip (ed.), Substantive Criminal Law of the EU, pp. 111 et seq. 123 Cf Bouloc/Matsopoulou, Droit pe ´nal ge´ne´ral et proce´dure pe´nale, para. 123; Desportes/Le Gunehec, Droit pe´nal general, pp. 366 et seq.; for a critical appraisal, see Cafritz/Tene, Colum. J. Transnat. L. 41 (2003), 585, passim. 124 Lelieur, in: Sinn (ed.) Conflicts of Jurisdiction, p. 303. 125 See Marinucci/Dolcini, Manuale di diritto penale, pp. 108, 109.

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furthermore, the suspect must be present in Italy. Moreover, it is also recognised as a necessary requirement for Italy’s extraterritorial jurisdiction under this principle that the act must be punishable according to the law of the state where it was committed – although this is not expressly stated in art. 10 CP.126 The revisions of the Criminal Code of Norway, which entered into force in 2015, have introduced the passive personality principle in sec. 5 para. 5 (contrary to the former legal situation).127 However, prosecution presupposes that the penalty for the offence under Norwegian law is at least six years of imprisonment. Additionally, the limitations enshrined in paragraphs 6 and 7 (described above in the context of the protective principle, see para. 24) apply. Coming back to our South-American example, Colombia makes use of this principle under art. 16 para. 5 s. 1 alt. 2 of its criminal code subject to the same constraints as those placed on the protective principle. These include the seizing of the perpetrator domestically, a minimum penalty of at least two years imprisonment, an international ne bis in idem and a demand for punishment by the injured person or the Attorney General (see para. 24). Most countries, by contrast, make the application of their criminal law dependent on the act being a criminal offence also at the place where it was committed (lex loci requirement). German criminal law protects the individual legal interests of nationals in § 7 (1) StGB. The assumption of jurisdiction under this provision presupposes a lex loci or alternatively the lack of any criminal jurisdiction at the location of the offence. Apart from that, also § 5 nos. 6 (lit. a, lit. b and lit. c alt. 2), 7, 9 a lit. b alt. 2, 14 StGB implement the passive personality principle for specific offences, but without a lex loci requirement. This is because the enumerated offences (e. g. parental abduction of children, maltreatment of wards) are deemed to affect legal interests which are so exceptionally important or vulnerable that German criminal law must protect them even against extraterritorial acts if the victim is of German nationality or has a permanent residence in Germany. However, in some cases the passive personality principle is limited by the requirement of additional connecting factors such as nationality or domestic residence of the perpetrator. The legal situation is very similar in Poland.128 Also in Portugal, art. 5 (1) (e) of the Co´digo Penal demands that the act be punished by the lex loci (except where no punitive power is exerted over the locus delicti, e. g. on the high seas), the crime to be an extradition crime and extradition to be impossible in the particular case. A further exception to this rule is to be found in art. 5 (1) (b), which provides for the unconditioned application of Portuguese law to offences committed abroad by Portuguese perpetrators against their fellow citizens, as long as the former have their usual residence in Portugal and are found (after the offence) in Portuguese territory; arguably, this solution might infringe upon the principle of non-intervention, in cases where the lex loci does not punish the acts and double criminality lacks. Some legal orders react to the contentious status of the principle by putting in place even further restrictions on its application – one example for this being Finland:129 Ch. 1 sec. 5 of its criminal code provides that Finnish criminal law shall apply to all offences against Finnish nationals, domestic legal persons and even permanently resident aliens. This is, however, qualified by both the requirement of a lex loci in ch. 1 sec. 11 s. 1 and the restriction of the maximum sentence to the one provided by the most lenient legal 126

Militello/Mangiaracina, in: Bo¨se et al. (eds), Conflicts of Jurisdiction, vol. 1, pp. 270 et seq. Cf Suominen, in: Elholm/Feldtmann (eds), Criminal Jurisdiction, p. 112. 128 Go ´ rski/Sakowicz, in: Bo¨se et al. (eds), Conflicts of Jurisdiction, vol. 1, pp. 374 et seq. 129 Fra ¨ nde/Helenius, in: Bo¨se et al. (eds), Conflicts of Jurisdiction, vol. 1, pp. 79 et seq. 127

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order applicable (lex mitior) in ch. 1 sec. 11 s. 2. As a further limitation, prosecution may only be instituted in the case where the punishment possible under Finnish criminal law exceeds a prison term of six months. In Belgium art. 10 (5) Cic (titre pre´liminaire) places a fairly unusual restriction on its implementation of the passive personality principle: in addition to the common requirement of the offence being punishable according to the lex loci, it also presupposes a maximum sentence of at least five years imprisonment under the lex loci. Sweden (ch. 2 sec. 3 no. 5 Swedish Criminal Code) is in a special position regarding the application of the passive personality principle: its law uses the nationality of the victim as a basis for jurisdiction only for offences committed on terra nullius or territories without any government recognised under international law.130 While Denmark has a similar provision (with the additional requirement of a penalty of at least four months of imprisonment being possible) in § 7 a (3) of its criminal code, it makes wider use of the principle, not only as limitation on the nationality principle (see para. 19), but also as a principal ground of jurisdiction in § 7 a (1), (2) Danish Criminal Code.131 Danish criminal jurisdiction based on the nationality (or residence) of the victim is (where the offender is not himself a Danish citizen or resident), however, limited to exhaustively enumerated offences. These include homicide, gross violence, deprivation of liberty, robbery, sexual offences (including incest), female genital mutilation or offences causing danger to the public and have in common that they can result in a sentence of at least six years imprisonment. Furthermore, also a lex loci is required. 29 These examples evidence the widespread support for the passive personality principle among civil law jurisdictions. However, the fact that it is not undisputed is illustrated by states like the Netherlands132, Spain133 and Austria (with the exception of cases where the perpetrator is an Austrian national, see para. 18),134 as they completely refrain from using passive personality as “principal ground” for jurisdiction in a particular case. Another aspect that is currently under discussion is whether the principle infringes upon the prohibition of discrimination under EU law (art. 18 TFEU): since its rationale is to protect the state’s own citizens, one could indeed raise the question of whether citizens of other EU Member States should not enjoy the same level of protection.135 However, the solution obviously cannot consist in extending the passive nationality principle in that sense – otherwise the number of parallel proceedings would increase even further. Thus, this matter should be addressed in the context of a comprehensive solution to conflicts of jurisdiction (see § 3 para. 9).

5. The Universality Principle 30

a) General Considerations. The central notion of the universality principle is that every state is entitled to exercise jurisdiction over certain offences without regard to the 130

Cf Cameron et al., International Criminal Law from a Swedish Perspective, pp. 76 et seq. Cornils/Vagn Greve, in: Elholm/Feldtmann (eds.), Criminal Jurisdiction, pp. 26 et seq. 132 The Dutch legislator always tried to avoid the passive personality principle (passief personaliteitsbeginsel) in the past. Because of the growing terroristic threat in the last years the principle became more important since it is enshrined in sec. 4 no. 12, no. 13 and no. 14 criminal code (Wetboek van Strafrecht). By signing international treaties, the Netherlands also partly accepted the principle; see e. g. art. 5 (1) (c) United Nation Convention Against Torture, 1984 (Kooijmans, Internationaal publiekrecht in vogelvlucht, p. 61 and also van Elst/Orie, in: van Sliedregt et al. (eds), Handboek, pp. 53 et seq.). 133 It has to be noted, however, that the principle is now employed in order to limit jurisdiction over offences which Spain is internationally obliged to prosecute by requiring a domestic link, see para. 37. 134 List according to Henrich, Das passive Personalita ¨tsprinzip, p. 198. 135 Bo ¨ se, in: Bo¨se et al. (eds), Conflicts of Jurisdiction, vol. 2, pp. 54 et seq.; F. Zimmermann, Strafgewaltkonflikte, pp. 133 et seq. 131

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nationality or domicile of the perpetrator, the location of the offence or the domicile or nationality of the victim. Obviously, if this principle was to be applied to all offences, this would mean a complete abandonment of the requirement of a “genuine link”. Clearly, there is no legitimacy whatsoever for a Nigerian criminal tribunal to convict under its own domestic criminal law a Chinese citizen who stole a car belonging to a Mexican in Poland. This example shows that the factual circumstances of a particular case (e. g. location of the offence, nationality of perpetrator or victim) cannot establish a sufficiently close link with all states of the world. Universal jurisdiction can only be justified where either common security interests of all states are concerned (as is the case e. g. for piracy or terrorism)136 or the legal interest endangered or infringed by the crime is of a global character itself. Such is the case where a crime affects values the protection of which is considered a common task of the international community as a whole. Thus, the underlying rationale of the universality principle is in some respects comparable to the one of the protective principle. Before legal interests deserving universal protection can be determined, the imple- 31 mentation of the universality principle presupposes the establishment of common values throughout the international community. This can only be described as an ambitious task. Yet, at least the international crimes enshrined in the Statute of the International Criminal Court can be seen as having such broad international acceptance. b) Implementation of the Universality Principle in Various National Legal Orders. 32 The universality principle is quite common among civil law jurisdictions. National legislation generally uses one of two regulatory systems when implementing it: Either the offences to which the principle shall apply are enumerated exhaustively or there is a sweeping clause describing the offences in their general characteristics. German law mainly resorts to the universality principle in two provisions: 33 § 1 VStGB (Vo¨lkerstrafgesetzbuch – German International Penal Code) provides for the application of the universality principle to all statutory offences defined in this code – which are mainly the international core crimes enshrined in the Rome Statute.137 Furthermore, the catalogue in § 6 nos. 2–9 StGB is intended to implement this principle, as the heading of § 6 reads “Acts Abroad against Internationally Protected Legal Interests”. These provisions establish Germany’s extraterritorial criminal jurisdiction without regard to the existence of a lex loci or the nationality of the perpetrator or the victim of the crime. The offences covered are misuse of nuclear energy, ionizing radiation or explosives, piracy and aircraft hijacking, trafficking of human beings, narcotics offences, offences concerning so-called “hard” (i. e. violent) and child pornography, as well as counterfeiting domestic and foreign means of payment. In most cases, the application of domestic criminal law under this provision is based on corresponding obligations in international treaties. Whether the universality principle can also apply to the offence of subsidy fraud mentioned in § 6 no. 8 StGB is equivocal and sharply criticised by many commentators.138 Yet this tension can be mitigated by giving this very number a narrow interpretation and considering it an implementation of the principle of protection of European Union interests.139 An additional general clause is contained in § 6 no. 9 StGB, which, in the style of a blanket provision, has the purpose of avoiding regulatory gaps and sparing the legislator 136

Cf MK-Ambos, Vor § 3 StGB para. 47. See § 15 para. 25, as well as Satzger, NStZ 2002, 131 et seq.; id., ICLR 2002, 279 et seq. 138 Dismissive of this proposal and therefore arguing that the provision so far contravenes international law MK-Ambos, § 6 StGB paras 3 et seq. 139 See para. 44. 137

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the trouble of continuously amending § 6 StGB.140 Whenever Germany ratifies an international treaty establishing an obligation to prosecute certain acts committed outside its territory,141 already existing statutory offences can be applied extraterritorially – without the need of previously adjusting the catalogue of § 6 StGB. Even though this provision is only relevant to the scope of application of German criminal law, there is reason to criticise it for not complying with the principle of legality (i. e., more precisely, the lex certa requirement): since it refers to the – often complex – legal situation under public international law, it can hardly be regarded as being sufficiently clear.142 Although the provisions portrayed above substantially extend Germany’s criminal jurisdiction their relevance in practice is considerably limited due to important procedural thresholds: for crimes committed on foreign territory, § 153 c (1) no. 1 StPO grants the prosecution service a wide margin of appreciation when deciding on whether or not to press charges (so-called Opportunita¨tsprinzip – principle of discretionary prosecution). This results in German jurisdiction not being exercised in many (or even most) cases. The modalities of prosecution for crimes under the VStGB are enshrined in § 153 f StPO, whereby the competent authority is empowered to discontinue prosecution if none of the domestic links mentioned in this provision is present. 34 In Austrian law, the universality principle can essentially be found in § 64 (1) no. 6 StGB-Austria which contains a general cross reference akin to that in Germany, embracing all offences that Austria is obliged to prosecute due to an agreement under international law. Likewise, France mostly limits its universal jurisdiction to cases where international treaties require it. But in contrast to the situation in Germany and Austria, those treaties are enumerated in the exhaustive list of art. 689-2 et seq. C.pr.pe´n. Thus, the reference is much clearer. As a general requirement, art. 689-1 C.pr.pe´n. presupposes that the suspect is present in France; in addition, the list of treaties sometimes establishes further prerequisites.143 Moreover, art. 692 C.pr.pe´n. provides that prosecution may not take place if the same case has already been finally disposed of in a foreign state. Thus, the exercise of universal jurisdiction – as of extraterritorial jurisdiction in general – is restricted by means of a transnational ne bis in idem clause (see § 3 para. 6). Also Finnish law mainly implements the universality principle with regard to obligations under international treaties. To these ends, ch. 1 sec. 7 of the Finnish Criminal Code contains a general clause similar to the ones we have already examined. However, Finland – like France – obviously saw a need to further substantiate that provision in order to comply with the lex certa requirement. Therefore, ch. 1 sec. 7 of the Finnish Criminal Code determines that further provisions on the application of that section (i. e. a list of relevant offences) shall be issued by decree.144 Art. 7 (2) (b) StGB-Switzerland demands that the suspect shall have committed “an especially serious crime that is generally condemned by the international community”. However, the provision is perceived as uncertain since there is no enumeration of the offences implied. Nonetheless, its application probably embraces capital crimes and crimes according to international law; thus, its reach should be much less extensive than 140

SK-Hoyer, § 6 StGB para. 4. This also covers cases of a duty to prosecute subject to a condition subsequent, especially for cases where there is no extradition. On this, see LK-Werle/Jeßberger, § 6 StGB para. 129. 142 For details, cf LK-Werle/Jeßberger, § 6 StGB para. 107; see also Satzger, Europa ¨isierung, p. 391. 143 Lelieur, in: Sinn (ed.), Conflicts of Jurisdiction, pp. 304 et seq. 144 For details, including a full list of the relevant treaties, see Fra ¨ nde/Helenius, in: Bo¨se et al. (eds), Conflicts of Jurisdiction, vol. 1, pp. 85 et seq.; Suominen, in: Elholm/Feldtmann (eds), Criminal Jurisdiction, pp. 53 et seq. 141

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that of § 6 nos. 1–8 StGB. The universality principle is arguably also the basis of art. 5 StGB-Switzerland, e. g. in the case of certain sexual offences against minors. In that case, however, it is a precondition for the exercise of Swiss criminal jurisdiction that the perpetrator is seized in Switzerland and will not be extradited. Furthermore, a provision apparently similar to the ones already examined above is to be found in art. 6 StGBSwitzerland, concerning offences whose mandatory prosecution by Switzerland is enshrined in an international treaty. But compared to the other criminal justice systems mentioned above, Swiss law shows a great deal of restraint in establishing extraterritorial jurisdiction on this basis: the provision does not only require that the suspect is apprehended on Swiss territory and cannot be extradited. What is more, it establishes a lex loci requirement, a prohibition on double jeopardy with international effect, a credit towards the sentence for sanctions already incurred for the act abroad and – in part – the approximation of the possible punishment to the legal situation in the state where it was committed (see above). All this taken together shows that the norm is clearly of subsidiary character and should thus rather be interpreted as implementing the principle of representation (see paras 40 et seq.). In Norway § 5 (3) of the criminal code makes Norwegian criminal law applicable to some acts committed abroad by foreigners, but only if certain specific offences are concerned. Of the list in § 5 (1), to which § 5 (3) refers, at least nos. 2 and 3 (international core crimes) as well as no. 10 (terrorist offences) can be considered a sufficient basis for universal jurisdiction. Thus, no problems under international law arise due to the fact that the Norwegian provision renounces a lex loci requirement for these offences. The only limitations to Norway’s jurisdiction are that the suspect must be present in Norway and that the maximum penalty of the offence exceeds one year imprisonment. Furthermore, the universality principle has also been implemented in the general clause of § 6, which extends Norwegian jurisdiction to all cases for which international treaties establish an obligation to prosecute. Still, these new provisions have limited significantly the extraterritorial reach of Norwegian criminal law, as compared to the former criminal code.145 Despite the apparent general acceptance of the principle and the establishment of the 35 ICC, the spread of universal jurisdiction now seems to have come to a halt. The dynamic development of the principle at the end of the 20th and beginning of the 21st century and its stagnation in the meantime can be best illustrated using the examples of Belgium and Spain. The case of Belgium stands out due to the international reactions it caused. 36 Under a statute of 16th June 1993, as amended in 1999,146 the principle of universality was applied to practically all international crimes. In particular, criminal prosecution could be initiated directly through a complaint filed by the (alleged) victim(s) and even irrespective of the suspect’s possible immunity under international law.147 This made the Belgian act one of the most extensive ever to have been based on the principle of universality. Over the years, this special position caused severe diplomatic conflicts. The original version of the provision already enabled Belgium to obtain an international arrest warrant for the former Chilean president, Augusto Pinochet. On this basis, Belgium also filed – unsuccessfully due to the physical condition of the suspect – a request for extradition with the government of the United Kingdom, where he was present at that time.148 145

Cf Suominen, in: Elholm/Feldtmann (eds), Criminal Jurisdiction, pp. 116 et seq. An English translation was published in ILM 1999, 918 et seq. 147 Wilhelmi, Weltrechtsprinzip, pp. 174, 176. 148 Labrin/Bosly, RDP 1999, 291, 300 – quoted according to Wilhelmi, Weltrechtsprinzip, p. 178. 146

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In the year 2000, following a Belgian request, another international arrest warrant was issued against the incumbent Foreign Minister of the Democratic Republic of the Congo, accusing him of crimes against humanity. The suspect’s home state contested the issue and brought an action against Belgium before the ICJ. In this Arrest Warrant Case149 Belgium was found to have violated the immunity ratione personae of the minister, which he possessed according to his official status. Consequently, the Court did not have to rule on the admissibility of the application of the universality principle. Nonetheless, several judges voiced an opinion on the issue separately: three of them found that the application of the principle even in absentia was generally justified under current international law for especially serious crimes,150 while another group of judges saw this as going beyond what was admissible under customary international law at that time.151 Other investigation proceedings were instituted against (then) Israeli Prime Minister Ariel Sharon and other protagonists on both sides of the Middle East conflict, as well as against former US president George Bush (sen.) in 2003 and members of his administration (Colin Powell, Richard “Dick” Cheney) for the bombing of Baghdad during the Second Gulf War. These proceedings led to US legislation directed explicitly against the extraterritorial application of criminal law by Belgium and to further measures on the diplomatic plane. It is said that Belgium was – inter alia – threatened with the relocation of the NATO headquarters from Brussels.152 Following the ICJ judgment, Belgium restrained its laws in April 2003,153 only to abolish them for good – also due to constant pressure by the USA – on 5th August 2003. Even today, Belgium only applies the passive personality principle and a “limited passive domicile principle” to international crimes (art. 10 Cic. – titre pre´liminaire), with a final foreign judgment on the same case constituting a procedural bar (art. 13 Cic. – titre pre´liminaire).154 The universality principle remains in place only for cases of counterfeiting of foreign money or other means of payment (art. 10 (3) in connection with art. 6 (3) Cic [titre pre´liminaire]) and is also embraced in a general clause (art. 12 bis Cic [titre pre´liminaire]) for crimes whose prosecution is mandatory due to international treaties, akin to the German provision in § 6 no. 9 StGB.155 Additionally, the extraterritorial application of Belgian criminal law is limited by an international ne bis in idem principle according to art. 13 Cic (titre pre´liminaire).156 37 Spain has also retracted its extension of criminal jurisdiction on the basis of the universality principle.157 Originally, its legal situation was similar to that in Germany 149 ICJ, Case Concerning the Arrest Warrant of 11th April 2000 (Democratic Republic of Congo v. Belgium), Judgment, ICJ-Rep 2002, p. 3; available under: http://www.icj-cij.org (last visited July 2017). 150 Cf Joint Separate Opinion Judges Higgins, Kooijmans and Buergenthal, ICJ, Case Concerning the Arrest Warrant of 11th April 2000 (Democratic Republic of Congo v. Belgium), Judgment, ICJ-Rep 2002, pp. 63 et seq. 151 President Guillaume, ICJ, Case Concerning the Arrest Warrant of 11th April 2000 (Democratic Republic of Congo v. Belgium), Judgment, ICJ-Rep 2002, pp. 35 et seq.; Judge Ranjeva, ICJ, Case Concerning the Arrest Warrant of 11th April 2000 (Democratic Republic of Congo v. Belgium), Judgment, ICJ-Rep 2002, pp. 54 et seq.; Judge Rezek, ICJ, Case Concerning the Arrest Warrant of 11th April 2000 (Democratic Republic of Congo v. Belgium), Judgment, ICJ-Rep 2002, pp. 91 et seq. 152 Cf Ratner, AJIL 97 (2003), 888. 153 In particular, the possibility to initiate proceedings by means of a victim’s complaint was limited, the Council of Ministers was given the competence to refer the case to the suspect’s home state or the state he or she is present in and immunity under international law was acknowledged as a bar to prosecution. 154 Cf for a detailed account of the multiple revisions made, Wilhelmi, Weltrechtsprinzip, pp. 184 et seq. and also David, in: Bassiouni (ed.), International, pp. 359 et seq. 155 Verbruggen/Verstraeten, Strafrecht en Strafprocesrecht, para. 2081. 156 Verbruggen/Verstraeten, Strafrecht en Strafprocesrecht, paras 2088 et seq. 157 Cf Feijoo Sa ´ nchez, InDret 11 (2011), 1 available under: http://www.indret.com/pdf/788.pdf (last visited July 2017); Andre´s Dominguez, Revista de Derecho Penal, pp. 31 et seq.

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before the entry into force of the German VStGB: as a requirement for the prosecution of international crimes committed abroad, the national courts demanded the existence of a judicial link to Spain under art. 23.4 of the Judicial Power Organisation Act (LOPJ). In 2005, the respective provision was extended to render Spanish criminal law applicable to certain crimes against internationally protected legal interests – e. g. genocide and terrorism – committed anywhere in the world without any connection to Spain whatsoever. Yet, the practical experience with the new law and a number of spectacular investigation proceedings caused the Spanish legislator to rethink this move: on 19th May 2009, the Spanish parliament – also due to concerns about negative influences on diplomatic relations towards other states158 – adopted a law which restored the legal situation prior to 2005. At that time, 14 proceedings concerning acts committed in eight different countries without any connection to Spain were pending before the Audiencia ~a (National Court of Spain). Inter alia these concerned human rights Nacional de Espan violations alleged to have been committed in Tibet, the Gaza Strip, the US detaineecamp in Guantanamo Bay/Cuba or in Guatemala.159 Meanwhile, the Spanish legislator has even gone a step further: with the latest amendment of the Spanish rules on criminal jurisdiction, which entered into force on 15th March 2014, art. 23 (4) and (5) LOPJ were entirely rewritten and a new art. 23 (6) LOPJ has been introduced. Now, art. 23 (4) LOPJ encompasses a large catalogue of offences. However, this new provision mostly requires a substantial link to the Spanish legal system, often in the sense that the proceeding must be directed against a Spanish national, a foreigner habitually residing in Spain or a foreigner who cannot be extradited. Pursuant to art. 23 (4) (a), this even applies to crimes which fall under the competence of the ICC. Other provisions require the victim to be a Spanish national (e. g. art. 23 (4) (b) (2)). Only art. 23 (4) (d), which extends extraterritorial jurisdiction to a group of offences that Spain is obliged to prosecute by virtue of international conventions (e. g. piracy, terrorism, drug trafficking and trafficking in human beings), does not establish further prerequisites than those demanded by the respective treaty. What is more, the new art. 23 (5) LOPJ introduces a subsidiarity and complementarity test according to which Spain cannot exercise its jurisdiction when a proceeding has been initiated before an international court or – with several limitations – in another state. Finally, art. 23 (6) LOPJ makes prosecution in Spain dependent upon a demand for prosecution by the injured person or the Minister of Justice. With all these limits, the provisions of art. 23 (4) can hardly be said to still incorporate the classical universality principle (except probably art. 23 (4) (d)). Traditionally, the universality principle is seen more critically in the common law 38 jurisdictions. The law of England (and Wales) generally assumes a somewhat restrictive stance towards it: under English common law, jurisdiction based on this principle is only valid for so-called piracy jure gentium (i. e. piracy as defined by customary international law).160 This is based on the rationale that the pirate, by nature of his crime, has placed himself outside of any legal protection and must therefore be considered an enemy of all 158 Cf the concerns of the president of the Spanish Tribunal Supremo that the provisions carried the danger of turning Spain into a “world policeman”: http://www.elmundo.es/elmundo/2009/05/04/espana/ 1241452393.html (last visited July 2017). 159 See http://jurist.org/paperchase/2009/10/spain-parliament-passes-law-limiting.php (last visited July 2017); for more details on the development of the Act and the proceedings facilitated by it, see also de la Rasilla del Moral, The Swan Song of Universal Jurisdiction in Spain, ICLR 2009, pp. 777 et seq.; Nieto Martı´n/Garcı´a Moreno, in: Bo¨se et al. (eds), Conflicts of Jurisdiction, vol. 1, pp. 401 et seq. 160 Cf Halsbury’s Laws of England, vol. 11 (1), 4th edn, paras 621, 634; Re Piracy Jure Gentium [1934] AC 586.

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mankind (hostis humani generis).161 There are also some statutory provisions relying on the principle, which can mostly be found in incorporating acts of international treaties, e. g. for crimes under the ICC-Statute (International Criminal Court Act 2001), hijacking, hostage-taking and torture. However, they partly establish additional requirements that make it somewhat difficult to consider them still an application of the universality principle.162 The vehement resistance by the USA towards the application of the universality principle – especially if potentially directed at its own citizens and members of the armed forces – is well-known (see also para. 36).163 At the same time, US criminal law contains provisions which can well be understood as reflections of the principle: corresponding to the English practice, universal jurisdiction is stipulated for piracy jure gentium, though by statute rather than common law (18 § 1651 U.S.C.). Other provisions deal e. g. with hostage taking (18 § 1203 (a), (b) (1) (B) U.S.C.) and certain offences involving explosives (18 § 2332 f (b) (2) (C) U.S.C.). The United States Court of Appeal for the District of Columbia Circuit has also expressly sanctioned the use of the universality principle as a basis for jurisdiction in the aforementioned (see para. 27) Yunis case.164 39 A restrictive interpretation of universal jurisdiction is especially popular among legal scholars with a common law background: the proponents of this view regard the application of the universality principle (except in the case of piracy on the high seas, whose prosecution is subject to worldwide jurisdiction) to be dependent on the seizure of the suspect on the territory of the forum state, as a kind of minimum link to its legal system.165 Due to the diplomatic conflicts surrounding this principle and the existence of the ICC, the universality principle would appear to have assumed a lower profile,166 but it is still considered by most states and international legal scholars to be a valid base for the claim to extraterritorial criminal jurisdiction.167 This is convincing – at least insofar as international core crimes are concerned. In the light of the – still generally accepted – admissibility of the universality principle under international law for international crimes, it was legitimate for Belgian law to enable its courts in case 1, to apply domestic criminal law to those acts, even in the absence of any additional “meaningful links” to Belgium or its nationals.

6. Representation Principle 40

a) General Considerations. In contrast to the principles described above, the representation principle mostly serves the purpose of filling regulatory gaps. As its name indicates, it basically entitles a state without a “genuine link” to the case to exercise criminal jurisdiction on behalf of another state that is incapable of prosecuting it. The representation principle is thus based on the idea of solidarity of states in matters of law 161 Cf the Dissenting opinion of Judge Moore, PCIJ, The Case of the S.S. Lotus (France v. Turkey), Judgment, 7th September 1927, PCIJ Series A no. 10 (1927), p. 70. 162 For more details on this, see Huber, in: Sinn (ed.), Conflicts of Jurisdiction, pp. 276 et seq.; Massa, in: Klip (ed.), Substantive Criminal Law of the EU, pp. 112 et seq. 163 For the similarly motivated actions of especially the G. W. Bush administration, cf Wilhelmi, Weltrechtsprinzip, pp. 206 et seq. 164 US v. Yunis, 924 F.2 d 1086 (C.A.D.C. 1991). 165 Shaw, International Law, pp. 673 et seq. with further reference, terms this approach “quasi-universal jurisdiction”. 166 Cf Cassese, JICJ 1 (2003), 589 et seq. 167 Cf the “Princeton Principles on Universal Jurisdiction” (2001), available under https://lapa.princeton.edu/hosteddocs/unive_jur.pdf (last visited July 2017).

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enforcement and is by its very nature a subsidiary principle.168 It applies where the perpetrator is seized in one state and for legal or factual reasons cannot be extradited to the state which would be competent to adjudicate the case, normally (but not necessarily) under the territorial principle.169 Therefore, it can also be seen as a substitute for extradition, in line with the maxim aut dedere aut iudicare (see also para. 15). Since the application of domestic criminal law in these cases occurs only in representation of the originally competent state, it is a crucial requirement of the principle that the act must be a criminal offence according to the lex loci. Moreover, it would also contradict the idea of ‘representing’ another state if an act was prosecuted after having already been finally disposed of (by sentence, remission of sentence or pardon).170 In the case where a political refugee might have committed a crime (e. g. murder) in his or her country of origin, thanks to the representation principle this act will not go unpunished only because it has no genuine link to the host country and the refugee cannot be extradited to his or her country of origin. The principle of representation – similarly to the passive personality and nationality 41 principles – causes practical problems when it requires judges to rule on the question as to whether an act is criminal under foreign law.171 It is also a necessary consequence of the principle that normative values of foreign legal systems basically need to be respected, even where they contravene values enshrined in domestic law.172 b) Application in Various National Legal Orders. With regard to the application of 42 the principle there is a considerable degree of diversity among different states. In Germany, § 7 (2) no. 2 StGB is seen as an expression of this principle. The provision requires that the perpetrator is present in Germany and will not be extradited. Furthermore, the act also has to be criminalised at the location of the offence, unless it was committed on terra nullius. The prevailing opinion also explains the ‘new citizens clause’ in § 7 (2) no. 1 alt. 2 StGB with the representation principle.173 It is subject to controversial discussions, however, to what extent the extraterritorial application of German substantive criminal law can be said to actually represent another state. Depending on the stance taken, there are different approaches to the interpretation of the lex loci requirement: German courts generally take into consideration all grounds for excluding criminal liability (irrespective of their dogmatic impact e. g. on the unlawfulness or the culpability of the act) under the substantive law of the location of the offence. If, for instance, the perpetrator acted in legitimate self-defence according to the law of the state of commission, this also precludes prosecution in Germany. Nevertheless, there is a certain limit, a so-called “ordre-public exemption” for provisions granting impunity which are utterly inacceptable with regard to the fundamental values of German law. By contrast, German courts (unfortunately174) do neither take into account foreign procedural bars to prosecution nor the mere fact that the represented state generally refrains from prosecuting similar cases or has refrained from prosecution in this particular case.175 What is more, no request for prosecution by the competent 168

S/S-Eser, Vor §§ 3–9 StGB para. 9. Jescheck/Weigend, § 18 II 6. 170 So-called principle of disposal (Erledigungsprinzip), see Jescheck/Weigend, § 18 II 6. 171 On the possibility of expert evidence on these legal questions, see L/R-Krause, Vor § 72 StPO para. 12. 172 For more details, see Satzger, IntStr, § 5 paras 93, 95. 173 Disputed, see para. 17. 174 For the opposite view, see Satzger, IntStr, § 5 paras 97 et seq. 175 Disputed in details; for a more elaborate analysis of the different viewpoints, see Satzger, Jura 2010, 193 et seq. 169

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state is required. This puts the (alleged) perpetrator in a rather unfavourable position as he or she may face prosecution even though the authorities of the technically competent state are not interested in the case at all. Thus, the German provisions are criticised with good reason: a mere reference to the representation principle can hardly justify such extension of a state’s criminal jurisdiction.176 However, a certain limitation follows from an unwritten, but largely accepted lex mitior principle, according to which the sentence imposed by the German court may not be more severe than the punishment according to the law of the place of commission.177 The legal situation in Austria enshrined in § 65 (1) no. 2 StGB-Austria is essentially comparable to the one in Germany. Moreover § 65 (1) no. 1 StGB-Austria can also be considered an implementation of the representation principle, even though it focusses on offences committed by Austrians abroad:178 for both provisions § 65 (2) StGBAustria contains an express lex mitior clause. Furthermore, § 65 (4) StGB-Austria establishes a transnational prohibition of double jeopardy, which is equally applicable to § 65 (1) nos. 1 and 2. Also art. 110 § 2 Criminal Code of Poland is similar to the provision in Germany with the particularity that the offence must be subject to a penalty exceeding two years imprisonment.179 In the Netherlands a form of representative criminal jurisdiction is enshrined in § 4 a of the criminal code (Wetboek van Strafrecht): the provision establishes a competence to prosecute on behalf of other countries in line with international treaties (e. g. a corresponding Benelux accord) and declares certain statutory offences of Dutch criminal law applicable if the suspect cannot be extradited.180 Broadly speaking, the legislation of Nordic states (see para. 19) has also been linked to the representation principle in as far as it provides for the extraterritorial application of criminal law with respect to nationals of other Scandinavian countries and domestically resident foreigners.181 Finland – like Austria – applies a transnational lex mitior principle; furthermore it also takes into account procedural bars to prosecution in the state of commission when examining double criminality.182 Also France, which originally did not implement the representation principle,183 now refers to it – albeit to a quite limited extent. Art. 113-8-1 C.pe´n., which entered into force in 2004, provides that French criminal law shall apply to offences qualified as a crime or a de´lit punishable with at least five years of imprisonment if the extradition of the offender has been denied due to specific reasons. The principle seems – aside from the incorporation of treaty obligations – to have very little significance in most common law jurisdictions as well. This, however, could be explained by the fact that those states are generally prepared to extradite their own nationals to the state having territorial jurisdiction. 176 Cf Pappas, Stellvertretende Strafrechtspflege, § 5 A. IV, VI, who calls the use of the term “representation” ill-conceived for designating the German provisions. Instead she proposes that the provisions are founded on the exercise of subsidiary criminal jurisdiction to compensate for the lack of extradition, which she deems to have no basis in international law. 177 SSW-StGB-Satzger, § 7 paras 10, 16 with further references. 178 For details on the following, see Hochmayr, in: Sinn (ed.), Conflicts of Jurisdiction, pp. 366 et seq. 179 Go ´ rski/Sakowicz, in: Bo¨se et al. (eds), Conflicts of Jurisdiction, vol. 1, pp. 376 et seq. 180 On this, see Pappas, Stellvertretende Strafrechtspflege, p. 162; van Elst, in: Cleiren/Crijns (eds), Strafrecht Tekst & Commentaar, pp. 33 et seq. 181 Cf § 7 (3) criminal code of Denmark; art. 5 criminal code of Iceland; ch. 2, sec. 2 para. 1 no. 2 criminal code of Sweden. 182 Fra ¨ nde/Helenius, in: Bo¨se et al. (eds), Conflicts of Jurisdiction, vol. 1, pp. 83 and 84. 183 Oehler, Int. Strafrecht, para. 805.

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§ 4. The Principles of Criminal Jurisdiction and their Implementation in National Legal Orders

7. Principle of Distribution of Competences From a rather new development in the field of international agreements a so-called 43 principle of distribution of competences can be derived. This principle rests on the notion that any overlapping of criminal jurisdiction should be avoided wherever possible through international agreements in order to avert double prosecution.184 International treaties relying on this principle mostly attribute jurisdiction to the state in which the perpetrator has his or her habitual residence or in which prosecution seems to be most convenient.185 Yet, in contrast to the other principles examined above, this one is not about unilaterally expanding the territorial reach of national criminal jurisdiction, but rather about solving conflicts of jurisdiction by international regulation.186 Examples of agreements linked to the principle include the European Convention on the Punishment of Road Traffic Offences concluded on 30th November 1964, and the European Convention on the Transfer of Proceedings in Criminal Matters concluded on the 15th May 1972, both of which were agreed upon within the framework of the Council of Europe. Domestic legislation implementing the principle of distributed competences can be found in Switzerland (art. 101 of the Swiss Road Traffic Act, art. 85 et seq. of the Swiss Act on Mutual Judicial Assistance in Criminal Matters) and Portugal (art. 79 et seq. of the Portuguese Act on Mutual Judicial Assistance). While there are differences in details, they determine that these countries can assume criminal jurisdiction, following a request by the state where the offence was committed, on the basis of considerations of convenience. In particular, such transfer of criminal proceedings requires double criminality as well as the exclusion of double prosecution and punishment (generally meaning that the ‘represented’ state needs to formally waive its original claim to punishment). Sometimes the equal treatment of one another’s nationals, as practised in some Scandinavian states, is also seen as an expression of this principle.187

8. Principle of Protection of European Union Interests Another principle of criminal jurisdiction, which has emerged in Europe during the 44 last decades as an extension of the protective principle, is the one referring to interests of the European Union.188 Under this principle, the Member States may prosecute offences affecting EU interests also in cases committed abroad. Thus it can be seen as a correlate of the interpretation of national substantive criminal law in the light of European Union law.189 The need for this principle arises from the fact that under the classical principles of criminal jurisdiction, often no Member State would be able to prosecute attacks against the legal interests of the Union.190 At the same time, it is also true that it is actually not a newly developed principle of its own kind, but merely follows from the 184

LK-Werle/Jeßberger, Vor § 3 StGB para. 255; id., JuS 2001, 37. LK-Werle/Jeßberger, Vor § 3 StGB para. 256. 186 For more detail on this, see MK-Ambos, Vor § 3 StGB para. 61; LK-Werle/Jeßberger, Vor § 3 StGB paras 255 et seq. 187 Cf also the objections to this stance, para. 19. 188 More specifically LK-Werle/Jeßberger, Vor § 3 StGB paras 251 et seq.; cf also Oehler, Int. Strafrecht, para. 913. 189 See § 7 paras 86 et seq. 190 See also Oehler, Int. Strafrecht, para. 916. 185

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B. Criminal Jurisdiction and the Territorial Scope of Criminal Law

adaption of the territorial and protective principles to the trend that states nowadays often confer parts of their sovereign powers to independent supranational bodies. There are only very few examples of this still quite new principle. It expressly shines up, however, in art. 10 para. 2 of the Italian criminal code which declares Italian criminal law applicable to offences causing damage to the European Communities, even when committed abroad and by foreigners, as long as the following conditions are met: the Minister of Justice demands prosecution, the perpetrator is located in the inland, the minimum sanction for the offence is three years and extradition is not granted. A comparable provision can now also be found in Spain, where art. 23 (4) (e) no. 6 LOPJ in its latest version establishes jurisdiction over terrorist offences affecting EU institutions and organs that have their seat in Spain (according to the initial sentence of art. 23 (4), this provision shall nevertheless refer to acts committed outside the national territory). Finally, two provisions in Greece dealing with the protection of the Union’s financial interests deserve being mentioned in the context, although it is not entirely clear which principle(s) they are based on.191 Possibly, also the German provision in § 6 no. 8 StGB could be interpreted as an example of the principle (see para. 33).192 The provision could then be justified with the necessity to effectively protect the financial interests of the EU (which at the same time are collective legal interests of all Member States) against subsidy fraud. Whether or not this assumption is correct, the wording of the provision does not contain any limitation to the EU area and thus appears to be formulated much too widely. 191 Chatzinikolaou/Papakyriakou/Zachariadis/Kaiafa-Gbandi, in: Bo ¨ se et al. (eds), Conflicts of Jurisdiction, vol. 1, pp. 216 et seq. 192 In support of this viewpoint LK-Werle/Jeßberger, Vor § 1 StGB para. 100, with further references.

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C. EUROPEAN CRIMINAL LAW* §5 Basic Principles of European Criminal Law Contents I. Defining European Criminal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. The European Influence on Criminal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Primary Law’s Influence on Criminal Law: a Historical Overview . . . . . . . 2. European Law-Making versus Harmonisation of Laws. . . . . . . . . . . . . . . . . . . . III. European Criminal Law and the Protection of Fundamental Rights . . . . . . . . 1. Existing EU Fundamental Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. The ECJ’s Fundamental Rights Examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. The Scope of EU Fundamental Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Application of EU Fundamental Rights to EU Institutions, especially to the EU Legislator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Applicability to the Institutions of the Member States that “implement” Union Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Collision of Fundamental Rights Standards of Union and National Law

2 4 5 8 9 10 16 17 18 19 22

Section C deals with several different aspects which may be classified loosely and in 1 non-technical terms as European Criminal Law. Thus, first of all, we need to clarify the term European Criminal Law.

I. Defining European Criminal Law The term “European Criminal Law”1 seems to imply a normative structure which 2 resembles a domestic criminal law system as found for example in Germany, France or Italy. This would mean that we would be looking at a set of offences that derive from a single European source of law and are directly applicable as European law in all Member States. A European Criminal Code in this sense does not exist and there are no criminal rules that are uniformly applicable in all Member States (as shown below in more detail). However, there is a strong tendency towards the development of directly applicable European offences. It may very well be only a matter of time until European criminal rules will be enacted (see § 6 paras 18 et seqq.). Nevertheless, this does not mean that there is no “European Criminal Law” at all. If 3 we apply a broader definition, the result is indeed positive: – First of all, there are legal provisions that impose sanctions which are applicable in all Member States. Even though these sanctions are not within the scope of criminal law, they may be seen as European Criminal Law in a broader sense (see § 6 paras 5 et seqq.). – National criminal law provisions which are influenced by European law may also be considered “European Criminal Law” in a wider sense. Where European law conflicts with domestic criminal law, European law takes precedence over national law. * The case-law, legislative acts and other documents quoted in this textbook can be accessed over the internet on the website http://www.satzger-international.info/. 1 For details, see Klip, Eur. Criminal Law, pp. 1 et seqq.

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European provisions may also influence the interpretation of domestic criminal provisions and thereby exert an indirect effect. This, for example, is the case where the domestic provision was established to implement a European directive and thus must be interpreted in the light of this directive. However, the interpretation does not turn the domestic criminal law provision into European law. Instead, the provision remains essentially domestic and may be described as Europeanised (national) criminal law. The European influence on national criminal law has already gained strength and is of great theoretical as well as practical importance. It will be described in more detail in § 7 paras 1 et seqq. – Apart from these aspects, a broad interpretation of “European Criminal Law” encompasses a procedural element. § 8 paras 1 et seqq. will outline the most important European institutions and instruments that aim at ensuring an effective criminal prosecution throughout Europe. – Finally, the European Convention on Human Rights (ECHR) influences the national criminal law and criminal procedure. The Convention’s minimum guarantees regarding criminal law will be discussed in § 9 paras 21 et seqq.

II. The European Influence on Criminal Law 4

When defining European law, one must distinguish primary law and secondary law. The term “primary law” refers to the “founding” treaties of the European Union, specifically the amended version including all its supplements, annexes and protocols.2 Primary law has its origin in international law and derives its validity from the treaties between the Member States. “Secondary law” comprises law established by the European institutions on the basis of primary law.3 European institutions may only take action if primary law has established respective competences. Such actions have to accord with the relevant legislative procedure. The most important legislative acts that European institutions may issue are regulations and directives. While regulations are directly applicable in all Member States in the same way as domestic legislation,4 directives must be transposed into national law in order to become effective in the Member States5 (see in more detail para. 8).

1. Primary Law’s Influence on Criminal Law: a Historical Overview 5

The law of the European Community, which has been replaced and succeeded by the European Union (art. 1 subpara. 3 TEU), had influenced national criminal law even before judicial cooperation in criminal matters constituted one of the policies of the European Union. At first, the European Communities did not focus on questions concerning whether or not to enact criminal law and adopt supranational criminal offences or even a European Criminal Code. At the same time, they were somewhat concerned that national criminal law might hamper the implementation of the European internal market by violating the fundamental freedoms (which were formerly laid down in the TEC). For example, domestic criminal law provisions penalising the import or export of certain products openly conflicted with the free movement of goods. The European Community also depended on the application of national criminal law in 2

Streinz, Europarecht, para. 3; de Witte, in: Kapteyn et al. (eds), EC Law, p. 273. Streinz, Europarecht, para. 4. 4 See art. 288 subpara. 2 TFEU. 5 See art. 288 subpara. 3 TFEU; also – before the Treaty of Lisbon – the framework decision pursuant to art. 34 (2) (b) TEU o.v. 3

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§ 5. Basic Principles of European Criminal Law

order to protect its own interests. Since the European Community could not itself establish criminal offences, the European Court of Justice (ECJ) derived certain requirements from primary law which had to be observed by the Member States to protect the interests (the financial interests in particular) of the Community. When the European Union was established by the Treaty of Maastricht (in force since 6 1st November 1993), the already existing European Communities were joined by two more pillars of political cooperation.6 Unlike the supranational character of the European Communities, the new fields of the Common Foreign and Security Policy (CFSP) and the cooperation in the fields of Justice and Home Affairs (JHA) were not intended to broaden the (supranational) legal system, which would have allowed for enacting directly effective European law. The Member States were reluctant to transfer the necessary competences to the European Community as foreign policy and matters of justice and internal security were important features of state sovereignty and are still regarded as such. Instead, a forum for intergovernmental cooperation was created which also allowed for the adoption of legislative acts. Since the European Union constituted a single institutional framework, the European Community “lent” its institutions (Council, Commission etc.) to the European Union. The legislative acts passed by the Council were legally binding only on the level of public international law (that is, between the Member States). The Treaty of Amsterdam (in force since 1st May 1999) shifted part of the judicial cooperation from the Union level to the supranational level. The third pillar was then confined to Police and Judicial Cooperation in Criminal Matters (PJCC). The possible forms of actions were governed by art. 34 TEU o.v. In this context, the conventions under art. 34 (2) subpara. 1 (d) TEU o.v. were of great practical significance. These conventions were drafted by the Council and then recommended to the Member States for adoption. However, since conventions are international treaties, each Member State had to ratify the conventions in accordance with its respective constitutional requirements. This ratification procedure involved tedious formalities and was not very effective. Thus, the so-called framework decisions (art. 34 (2) subpara. 1 (b) TEU o.v.) were the most important form of action. Similar to directives, which are the standard instrument of harmonisation on the supranational level, framework decisions could impose obligations on Member States to approximate provisions of their domestic law. Whilst directives can have direct effect – in favour of an individual – after the deadline for transposition has passed, the TEU explicitly rejected the direct effect of framework decisions. Among the framework decisions, the European arrest warrant in particular was subject to great public debate. The use of framework decisions did, however, not stop at approximating procedural law; the substantive law of the Member States was also subject to harmonisation, for example with regard to money laundering, human trafficking or cybercrime (see § 7 para. 33). The Treaty establishing a Constitution of Europe was the first attempt to abolish the 7 three pillars and to transfer the PJCC from the intergovernmental level of the third pillar to a supranational level. However, this treaty was rejected by voters in referenda in France and the Netherlands. After a one-year “period of reflection”, the fundamental contents of the Constitutional Treaty were adopted by a streamlined Reform Treaty which, in particular, abandoned allusions to the constitutional character of the document (for example terms such as constitution or “European law”7 and descriptions of 6 On the historical development of European integration in general, see Klip, Eur. Criminal Law, pp. 25 et seqq.; Streinz, Europarecht, paras 16 et seqq.; Timmermans, in: Kapteyn et al. (eds), EC Law, pp. 1 et seq.; for a detailed account of the development of European integration in the area of criminal law, see Sieber, in: Sieber et al. (eds), Europ. StR, Einfu¨hrung paras 13 et seqq.; see also Meyer, EuR 2011, 169, 170 et seq.; Nilsson, EuCLR 2 (2012), 106 et seqq. 7 Cf art. I-33 D-TCE.

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C. European Criminal Law

symbols such as flag, anthem etc.). The Reform Treaty was signed in Lisbon on 13th December 2007 and came into force on 1st December 2009 after having overcome numerous obstacles.8 It was labelled Treaty of Lisbon.9 The intended modifications of the Constitutional Treaty are largely reflected in the Lisbon Treaty:10 The pillar structure and consequently the distinction between European Community and European Union have been abolished. The Union was provided with its own legal personality. The Treaty establishing the European Union (TEU) has been maintained and the Treaty establishing the European Community (TEC) was renamed Treaty on the Functioning of the European Union (TFEU). The term “Community” was replaced by the term “Union”. Similar to the previous version, the TEU now encompasses common provisions as well as provisions on enhanced cooperation, general provisions on CFSP (the previous second pillar) and final provisions. The provisions on democratic principles and institutions were newly introduced. The provisions on PJCC were incorporated into the TFEU, meaning that the decision-making structures of the TFEU (in particular majority voting in the Council) are – at least in principle – applicable. Furthermore, the Union’s competences regarding criminal law were also extended (see § 7 paras 31 et seqq. and § 8 paras 32 et seqq., 91 et seqq.). Even though the framework decision was replaced by the directive as the EU’s form of action when the Lisbon Treaty entered into force, existing framework decisions continue to be applicable until they “are repealed, annulled or amended” in accordance with art. 9 of Protocol No. 36 on transitional provisions.11

2. European Law-Making versus Harmonisation of Laws 8

According to the new primary law, the legislative acts of the European Union – like formerly those of the European Communities – exist in two forms: regulations pursuant to art. 288 subpara. 2 TFEU and directives pursuant to art. 288 subpara. 3 TFEU. Both types of legislative acts differ in their effects. While regulations have direct effect within all Member States (and therefore enact supranational law), directives generally only oblige Member States to achieve certain goals and must be transposed into national law. Where the EU wishes to establish supranational criminal offences, i. e. to adopt European Criminal Law, it can only do so by enacting regulations, which are per se directly applicable in all Member States (European law-making). If a European regulation were to include criminal offences, the individual’s liability would then result directly from European law common to all Member States. Irrespective of any legislative

8 The Treaty of Lisbon was initially rejected by the Irish electorate in a referendum. For a long time, it was uncertain whether or not it would share the same fate as the Constitutional Treaty. Germany‘s former President Horst Ko¨hler deferred the ratification process in order to await a decision of the BVerfG. After the Court held that the act approving the Treaty of Lisbon was compatible with the GG and only considered the accompanying domestic law unconstitutional (see BVerfG, Judgment of 30th June 2009, 2 BvE 2/08 et al. = BVerfGE 123, 267 = NJW 2009, 2267, “Lissabon”), Germany ratified the Treaty in September 2009. Czech President Vaclav Klaus delayed the ratification for several months for political reasons. During this long period of suspension, there was growing concern that the Tory party might push to withdraw the instrument of ratification (which had been deposited by the Labour government) after a change in government in the United Kingdom. In a second referendum in 2009, the Irish electorate reversed its initial rejection and approved the Treaty. Subsequently, the Czech President also relented. 9 The Treaty of Lisbon, amending the Treaty on European Union and the Treaty establishing the European Community, OJ (EU) 2007 No. C 306/1. 10 For details, see Cerizza, eucrim 5 (2010), 65 et seqq.; Herlin-Karnell, eucrim 5 (2010), 59 et seqq.; Serzysko, eucrim 5 (2010), 69 et seqq. 11 See § 7 paras 33 and 111 as well as § 8 para. 36; in more detail, also with regard to follow-up issues, see Satzger, NJECL 5 (2015), 528 et seqq.

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§ 5. Basic Principles of European Criminal Law

act established by the national legislators, the perpetrator could be convicted under the European offence (e. g. “fraud against the financial interests of the European Union”).

Directives (formerly in the third pillar also framework decisions), on the other hand, may be used to pursue the harmonisation of (national) criminal law. In this regard, the European Union itself does not enact criminal law which is directly applicable within the Member States. Rather, the Member States are obliged to achieve a certain result that is more or less specified by the directive. Thus, harmonisation requires the national legislators to enact or amend domestic criminal law provisions. The European directive only exerts an indirect effect on individuals via the transposing act. An individual would then have to observe the domestic criminal law provision and the potential perpetrator would be convicted under (Europeanised) domestic law only. In the context of the former law of the European Community, the ECJ held that under certain conditions (and if the transition period had passed), directives may have direct effect,12 but only to the extent to which they benefit an individual. Given that directives concerning the harmonisation of substantive criminal law typically exercise an incriminating effect on the individual, directives exerting a direct effect in this field of criminal law are virtually impossible.13 Nevertheless, in the area of criminal procedure, directives with beneficial effects to the individual (e. g. guarantee of minimum rights in criminal proceedings) do exist; here direct effect is conceivable.

12 See ECJ, Judgment of 6th October 1970, Case C-9/70 “Leberpfennig” ECR 1970, 825; affirmative BVerfG, Decision of 8th April 1987, 2 BvR 687/85 = BVerfGE 75, 223, 235 et seq.; for an overview on the effect of directives, see Herrmann/Michl, JuS 2009, 1065 et seq.; see also Kapteyn, in: Kapteyn et al. (eds), EC Law, pp. 524 et seq.; Klip, Eur. Criminal Law, pp. 70 et seq. 13 On the so-called “reverse vertical direct effect”, see ECJ, Judgment of 8th October 1987, Case C-80/86 “Kolpinghuis Nijmegen” ECR 1987, 3969, para. 9; ECJ, Judgment of 3rd May 2005, Joined Cases C-387/ 02, C-391/02 and C-403/02 “Berlusconi” ECR 2005, I-3565, paras 73 et seq.; see also Streinz, Europarecht, para. 492; see further Kapteyn, in: Kapteyn et al. (eds), EC Law, pp. 531 et seq.

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C. European Criminal Law

III. European Criminal Law and the Protection of Fundamental Rights 9

EU institutions can enact legislative acts that may even be directly applicable in the Member States. Therefore, the rule of law requires respect for (European) fundamental rights in these instances. This is especially important in the areas of criminal law and procedural criminal law, which are particularly sensitive with regard to fundamental rights.

1. Existing EU Fundamental Rights The fundamental rights of the Union originally stem from the jurisprudence of the ECJ, which has developed a comprehensive stock of fundamental rights on Union level by evaluative comparison of laws based on the constitutional traditions common to the Member States and on the ECHR. At first and for many years, the protection of fundamental rights was based solely on case-law. European fundamental rights were regarded as general legal principles of community law. Only when the Charter of Fundamental Rights of the European Union (CFR) entered into force (at the same time as the Lisbon Treaty) the EU enacted a catalogue of fundamental rights pursuant to art. 6 (1) TEU that is fully formulated in writing and is binding on almost14 all Member States. However, fundamental rights as guaranteed by the ECHR and as they result from the constitutional traditions common to the Member States continue to apply as general principles of Union law (art. 6 (3) TEU)15, independently from the guarantees laid down in the CFR.16 11 With regard to criminal law and criminal procedural law, Justice, as provided for in Chapter VI of the CFR, is of particular importance.17 The respective provisions include e. g.: – the presumption of innocence (art. 48 (1) CFR), – the right of defence (art. 47 (2) (2) und art. 48 (2) CFR)18 and – the transnational ne bis in idem principle (art. 50 CFR)19. 10

Moreover, the Charter contains substantive guarantees in art. 49. These include the principles of legality and proportionality with respect to criminal offences and penalties. This is important not least because the guarantees of the CFR are partially more extensive than those of the national constitutions. In German law for example, the lex mitior principle which is a fundamental right of Justice in the CFR (art. 49 (1) (3) CFR), is only of sub-constitutional nature (see § 2 (3) StGB).20 13 Aside from this, within the European context criminal procedural measures must be in line with the extensive catalogue of general fundamental rights.21 The Charter standardises e. g. the right to life (art. 2 CFR), to physical and mental integrity (art. 3 12

14 Opt-Out Clauses are in place for the UK, Poland, the Czech Republic and Ireland, see Protocol No. 30 concerning the applicability of the Charter of Fundamental Rights of the European Union to Poland and the United Kingdom, OJ (EU) 2010 No. C 83/313. 15 On the relationship of art. 6 (1) to (3) TEU, see Geiger/Khan/Kotzur-Geiger, art. 6 TEU para. 33; Calliess/Ruffert-Kingreen, art. 6 EUV paras 15 et seqq. 16 See also Borchardt, Die rechtlichen Grundlagen der Europa ¨ischen Union, paras 165 et seqq.; Herdegen, Europarecht, § 3 paras 1 et seq., § 8 paras 26 et seq.; Klip, Eur. Criminal Law, p. 251; Kober, Der Grundrechtsschutz in der Europa¨ischen Union, 2009; Streinz, Europarecht, paras 748 et seqq. 17 On the fundamental rights relating to criminal law in Union law Jarass, NStZ 2012, 611 et seq. 18 For details, see Esser, in: Sieber et al. (eds), Europ. StR, § 53 para. 27, § 58 paras 23 et seqq. 19 For details, see § 8 paras 59 et seqq. 20 For details, see Satzger, in: Heger et al. (eds), FS Ku ¨ hl, pp. 411 et seq.; also Satzger, in: Sieber et al. (eds), Europ. StR, § 1 para. 69. 21 See also Esser, in: Sieber et al. (eds), Europ. StR, § 53 para. 24.

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CFR) as well as the prohibition of torture and inhumane or degrading treatment or punishment (art. 4 CFR). The right to liberty and security in art. 6 CFR22 serves as the standard for all freedom-restricting measures, making this right especially important for the execution of the European arrest warrant.23 In addition to this, the respect for private and family life guaranteed in art. 7 CFR can play a decisive role e. g. in the context of cross border search warrants based on European investigation orders.24 Some fundamental rights enshrined in the Charter closely resemble provisions of the ECHR.25 Insofar, art. 52 (3) CFR dictates that the fundamental freedoms contained in the Charter shall have the same “meaning and scope” as the respective rights laid down in the ECHR. Hence, the guarantees of the ECHR pose the minimum standard. According to art. 52 (3) (2) CFR, however, the Union may provide more extensive protection. In addition, the ECHR continues to be the most important source of law for 14 determining the content of EU fundamental rights as general principles of Union law (see para. 10). Even though the EU itself has not (yet) become a member of the ECHR, all of the Member States have ratified the Convention. The rights and guarantees of the ECHR are therefore the lowest common denominator regarding human and fundamental rights within the EU Member States. In accordance with this, the ECJ has repeatedly referred to the ECHR when assessing fundamental rights. It has also made reference to the respective jurisprudence of the ECtHR even though it is not formally binding for the ECJ.26 As mentioned above, the ECJ applies the fundamental rights contained in the ECHR as Union law (namely as general principles of law pursuant to art. 6 (3) TEU), which stand on equal footing with the CFR. If the EU accedes to the ECHR27 as envisaged in art. 6 (2) TEU, the ECHR would 15 move up from a source for legal interpretation to an independent source of law and would thus directly bind the EU institutions as well as the ECJ as a part of Union law.28 Momentarily, however, this causes significant concern, especially on the part of the ECJ. In its opinion of 18th December 2014 on the EU’s accession to the ECHR, the ECJ has declared the current draft agreement as not reconcilable with art. 6 (2) TEU and the accompanying Protocol No. 829.30 In essence, the ECJ fears that the autonomy of Union law and especially its own competences, particularly its power of independent interpretation of Union law (including the guarantees of the ECHR as general principles of Union law) will be endangered by an external scrutiny of human rights on the part of the ECtHR that would be binding also for the ECJ.

2. The ECJ’s Fundamental Rights Examination The interpretation of EU fundamental rights lies within the sole competence of the 16 ECJ. This is even the case when EU fundamental rights are used as a standard of review by the courts of the Member States (in detail paras 19 et seqq.). 22

Esser, in: Sieber et al. (eds), Europ. StR, § 53 para. 25. For details, see § 8 paras 37 et seqq. 24 For details, see § 8 paras 47 et seqq. 25 I. e. art. 6 (2) ECHR (presumption of innocence), art. 6 (3) ECHR (rights of defence), art. 7 ECHR (legality); see § 9 paras 21 et seqq. for the individual guarantees of the ECHR relating to criminal law. 26 Some examples of case-law outlined in Karpenstein/Mayer-Mayer, Einleitung para. 123. 27 For details, see § 9 para. 15. 28 For details, see § 9 para. 15; Streinz, Europarecht, para. 785. 29 OJ (EU) 2012 No. C 326/273. 30 ECJ, Opinion of 18th December 2014, C-2/13; for a critical view, see Breuer, EuR 2015, 330 et seq.; Wendel, NJW 2015, 921 et seq. 23

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To date, when assessing whether the fundamental rights of the Union were respected, the ECJ does not clearly define the scope of the individual rights.31 However, for fundamental rights which correspond to rights guaranteed by the ECHR (see art. 52 (3) CFR and above), it must draw on those corresponding provisions and the relevant case-law of the ECtHR.32 The ECJ also classifies all indirect interferences with fundamental rights that are to be ascribed to the EU as encroachments on those rights and examines whether these encroachments are justifiable. It is on this “justification test” that the ECJ’s scrutiny of adherence to fundamental rights focuses. As far as the ECHR contains comparable fundamental rights, the ECJ draws on the limitations of the fundamental rights established by the ECHR. In contrast to the ECHR, however, art. 52 (1) CFR now contains a uniform provision regarding the – subsidiary33 – requirements that have to be met by any limitation on fundamental rights: (1) any limitation on the exercise of the rights and freedoms recognised by the CFR must be provided for by law; (2) it must respect the essence of those rights and freedoms and (3) in accordance with the principle of proportionality those limitations must be necessary and have to meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others. Especially due to the lack of uniformity in its application of the proportionality test34, the ECJ case-law regarding fundamental rights was often subject to criticism.35 Nonetheless, the recent decision on retention of data36, in which the ECJ by way of example assesses the compliance of Directive 2006/24/EC37 with art. 7 and 8 CFR, exemplifies the ECJ’s intensified and systematic monitoring of fundamental rights since the entry into force of the CFR.38 The directive inter alia aims at harmonising the retention of data that is created or processed by public institutions, in order to ensure that the data is available for the investigation, detection and prosecution of serious crime. Amongst others, the ECJ identifies the fight against serious crime in order to ensure public security as an objective of general interest in the sense of art. 52 (1) CFR (see para. 42) and subsequently, in line with its previous case-law, considers the requirements of appropriateness and necessity (see para. 46). Whilst the ECJ affirms the former (see para. 49), it emphasises in the following that the fight against serious crime as an objective of general interest does not, in itself, justify the necessity of a retention measure (see para. 51) and proceeds to undertake an extensive balancing of legally protected interests. The ECJ’s objection raised with regard to the directive is to be understood as an appeal to the EU legislator. In future, it should respect the require-

31

Streinz, Europarecht, para. 780. Calliess/Ruffert-Kingreen, art. 52 GRCh paras 21 et seqq.; Uerpmann-Wittzack, JA 2014, 916, 924; regarding the ECHR’s individual guarantees relevant for criminal law, see § 9 paras 21 et seqq. 33 Meyer-Borowsky, Charta der Grundrechte der Europa ¨ischen Union, art. 52 GRCh para. 3. 34 Cf among others Hilf, in: Merten/Papier (eds), Handbuch der Grundrechte, vol. VI/1, 2010, § 164 paras 23 et seq. 35 See Calliess, JZ 2009, 113, 114; Hilf, in: Merten/Papier (eds), Handbuch der Grundrechte, vol. VI/1, 2010, § 164 para. 26. 36 ECJ, Judgment of 8th April 2014, Joined Cases C-293/12 and C-594/12 “Digital Rights Ireland Ltd. and Seitlinger” = EuGRZ 2014, 299 et seq.; in this regard, see also ECJ, Judgment of 21st December 2016, Joined Cases C-203/15 and C-698/15 “Tele2 Sverige AB and Secretary of State for the Home Department” = NJW 2017, 717. 37 OJ (EU) 2006 No. L 105/54. 38 Meyer, HRRS 2014, 270, 278; it is said that this Judgment showed that the intensity of scrutiny of adherence to fundamental rights applied by the Luxembourg judges sometimes even goes beyond that of their Karlsruhe colleagues (Ludwigs, EuGRZ 2014, 273, 274), and that the Judgment constitutes a historic decision with regard to the protection of fundamental rights (Ku¨hling, NVwZ 2014, 681, 685); this is said to be true at least in cases in which the privacy of citizens is affected (Streinz, JuS 2014, 758, 759 et seq.); for a critical view, see Classen, EuR 2014, 441, 443 et seq. 32

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ments established by the ECJ in said decision, in particular with regard to all legislative acts relating to criminal law as well as to criminal procedural law: The legislative act of the Union must establish “clear and precise rules governing the scope and application of the measure in question” and minimum safeguards for the protection against abuse (see para. 54). Moreover, provided that the limitation on fundamental rights results from the legal provision of the EU itself and is thus attributable to it,39 the EU legislative act must itself provide for the necessary mechanisms to protect the fundamental rights, e. g. in the present case for substantive and procedural conditions relating to the access of the competent national authorities to the data (see para. 61), and cannot rely on the Member States to do so when implementing the Union act in question; the EU legislator is also not discharged by the fact that Member States themselves tend to introduce guarantees not envisaged in a directive.40 This is remarkable and convincing, as the ECJ makes the EU legislator discharge its duties itself and does not let “correction” by means of the Member States’ implementing acts suffice.41 In substance, this equates to the demand formulated in the European Criminal Policy Initiative’s “Manifesto on European Criminal Procedure Law” for a compensation for the weakened procedural position especially of the defendant (in more detail see § 8 para. 101).

3. The Scope of EU Fundamental Rights In principle, a legislative act can only be ascribed to the authority that passed it. In 17 line with this notion, only a guarantee that is part of the same system of fundamental rights as the object of legal examination may be utilised as a legal standard for the scrutiny of adherence to fundamental rights.42 Thus, the EU is only bound by the fundamental rights of the Union and not by national fundamental rights when issuing or enforcing EU law. a) Application of EU Fundamental Rights to EU Institutions, especially to the EU 18 Legislator. In accordance with art. 51 (1) CFR, all institutions and bodies of the Union are bound by the Union’s fundamental rights. The goal of this provision is to subject the EU in all its branches and fields of activity to a legal obligation of respect for fundamental rights to the widest extent possible.43 As just demonstrated using the example of the ECJ‘s case-law regarding data retention (see para. 16), the provisions of the Charter are of special importance to the EU legislator. But also for all other actors including the ECJ and the future European Public Prosecutor’s Office44, Chapter VI on Justice poses the primary standard for lawful action. With regard to the European Public Prosecutor’s Office which will naturally encroach on fundamental rights in the course of criminal investigations, this notion will become particularly important as the final Regulation on the establishment of the European Public Prosecutor’s Office itself will apparently not include extensive provisions to protect the rights of the accused.45 39 See also Advocat General Cruz Villalo ´ n‘s opinion in the Cases C-293/12, “Digital Rights Ireland Ltd”, and C-594/12, “Seitlinger et al.”, paras 116 et seq. 40 As previously stated by Advocat General Cruz Villalo ´ n in his opinion on the Cases C-293/12, “Digital Rights Ireland Ltd.”, and C-594/12, “Seitlinger et al.”, paras 117, 132. 41 Cf also Streinz, JuS 2014, 758, 759; regarding a respective obligation to act in order to prevent conflicts of jurisdiction, see F. Zimmermann, Strafgewaltkonflikte in der EU, pp. 216 et seq. and pp. 222 et seq. 42 Linder, Jura 2008, 401, 404. 43 Meyer-Borowsky, Charta der Grundrechte der Europa ¨ischen Union, art. 51 GRCh para. 16. 44 For details, see § 8 paras 21 et seqq. 45 See also Esser, in: Sieber et al. (eds), Europ. StR, § 53 para. 25.

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b) Applicability to the Institutions of the Member States that “implement” Union Law. It is a particularity of the EU that its laws are not only implemented by its own institutions but also by the Member States, for example when enacting laws that transpose EU directives or when directly enforcing EU regulations. This begs the question: when are the Member States’ institutions bound by the Union’s fundamental rights? Beginning with art. 51 (1) 1 CFR, this is the case “when they are implementing Union law”. What exactly is to be understood by implementing is of great and also practical relevance, especially when considering the possibility of differing levels of protection provided for by national and European fundamental rights (see para. 12 on the one hand and paras 22 et seq. on the other).46 20 According to the ECJ’s case-law, transposition acts of the Member States that are not determined by secondary Union law must as well be measured against the fundamental rights of the Union. According to the Court’s understanding, their application extends to the entire scope of Union law. This means that EU fundamental rights must be respected once the fundamental freedoms laid down in the treaties (free movement of goods, freedom of establishment, freedom to provide services, free movement of payments) are applicable. This understanding does not exclude a parallel application of national and EU fundamental rights from the outset (see para. 23). However, it is not shared universally by all Member States. The German Federal Constitutional Court (Bundesverfassungsgericht [BVerfG]), for example, supports a narrower understanding with regard to the scope of the Union’s fundamental rights. In its eyes, they are only applicable when the case in question is determined by Union law. All acts of German public authorities (including the legislator) that utilise scopes for action left by Union laws must be measured against the fundamental rights of the Grundgesetz (GG).47 Apart from these divergences48, there is at least agreement on the fact that Member States implement Union law in the sense of art. 51 (1) 1 CFR and are therefore bound by the fundamental rights of the Union whenever they transpose Union law into national law without any own leeway but acting as the “extended arm” of the EU, or when they enforce Union law administratively. 21 The case of Åkerberg Fransson49 clearly illustrates the ECJ’s conviction that the term “implementation of Union law” goes far beyond this narrow understanding. The ECJ classified the criminal prosecution of a tax offence as “implementation of European Union law”, even though the facts of the case were purely domestic (Swedish), so that the provisions used by the domestic courts were not formally based upon EU law. The 19

46 For interpretation of the term “implementation”, see also Ga ¨ rditz, JZ 2013, 633, 635 with further references in fn 29; regarding the case-law of the ECJ and the BVerfG prior to the binding nature of the Charter, see Calliess, JZ 2009, 113, 115 et seq.; Kingreen, JZ 2013, 801. 47 BVerfG, Decision of 13th March 2007, 1 BvF 1/05 = BVerfGE 118, 79, 95 “Emissionshandel”; BVerfG, Decision of 11th March 2008, 1 BvR 256/08 = BVerfGE 121, 1, 15; BVerfG, Judgment of 2nd March 2010, 1 BvR 256/08 = BVerfGE 125, 260, 306 et seq. “Vorratsdatenspeicherung”; the BVerfG‘s judgment on the legality of the law on an anti-terrorism database (ATDG) (BVerfG, Judgment of 24th April 2013, 1 BvR 1215/07 = StV 2013, 673; see Fontanelli, EuCLR 3 (2013), 315, 327 et seq.; Ga¨rditz, JZ 2013, 633, 635 et seq.; Ohler, NVwZ 2013, 1433, 1436 et seq.) shows that the BVerfG has continued this line of reasoning (likewise Ohler, NVwZ 2013, 1433, 1436; for a differing view, see Esser, in: Sieber et al. (eds), Europ. StR § 56 para. 17); in line with this also the BVerfG’s recent Decision of 15th December 2015, 2 BvR 2735/14 = NJW 2016, 1149, para. 36. 48 In more detail, especially regarding diverging case-law of ECJ and BVerfG, Calliess, JZ 2009, 113, 115 et seq.; Jarass, EuR 2013, 29; Kingreen, JZ 2013, 801, 802 et seq. 49 ECJ, Judgment of 26th February 2013, Case C-617/10 “Åkerberg Fransson”; see Vervaele, Utrecht L. Rev. 9 (2013), 211, 223 et seqq.; for the critical stance of the BVerfG on this judgment, see BVerfG, Judgment of 24th April 2013, 1 BvR 1215/07 = StV 2013, 673, para. 91.

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court argued that this assessment was justified by the effective combat of evasion of domestic VAT that indirectly also protects the Union’s budget. Moreover, it argued that Union law50 demands an effective collection of VATs.51 Thus, the ECJ continues its previous effet utile oriented case-law rather consistently, thereby following the approach of assuming a relatedness to EU law as soon as the relevant provision serves an aim of the Union that Union law obliges the Member States to protect.52 However, scholars have contested the judgment as a violation of the principle of subsidiarity (art. 5 (3) TEU) and have imputed centralist tendencies to the ECJ.53

4. Collision of Fundamental Rights Standards of Union and National Law Union law has priority (of application) over national law. The ECJ has deducted this 22 precedence very early from the autonomy of the European legal order.54 It is generally accepted by the Member States,55 even though e. g. the BVerfG regards the precedence of Union law as based not on European but on national constitutional law.56 Recently, problems have arisen with regard to criminal law as European legal acts seemingly collide with fundamental rights standards set by national constitutional law. In the above mentioned Åkerberg Fransson case, the ECJ first permitted the domestic courts to apply their respective national standards of protection of fundamental rights in cases where the actions of the Member States were not fully determined by Union law. There are, however, two prerequisites: Firstly, “the level of protection provided by the Charter, as interpreted by the Court,” may not be compromised. The national standard of protection of fundamental rights may therefore provide additional protection going beyond the protection offered by the Charter. This rather positive statement relating to fundamental rights is, however, cut short by the second prerequisite: Neither may the “primacy, unity and effectiveness of European Union law” be compromised.57 As the ECJ regards the functioning of judicial cooperation on the basis of mutual recognition as an integral part of these aspects, the second prerequisite entails that in case of doubt the effectiveness of criminal prosecution and the obligation of mutual trust between prosecuting authorities will be favoured over the protection of fundamental rights that an individual would be granted under national constitutional law. The consequences are illustrated in the Melloni case (which the ECJ points to in its Åkerberg Fransson ruling):58 In this case the ECJ highlights that the execution of a European arrest warrant issued in order to execute a decision rendered in absentia cannot be denied by invoking a violation of national fundamental rights that exceed the level of 50 Directive 2006/12/EC, OJ (EU) 2006 No. L 114/9, in conjunction with art. 4 (3) TEU is said to demand that Member States have to guarantee for the collection of all VAT owed within their respective jurisdictions and have to actively fight fraud; art. 325 TFEU obliges Member States to take measures “which shall act as a deterrent and be such as to afford effective protection” to counter fraud and any other illegal activities affecting the financial interests of the Union and especially to harmonise national legislation to these ends; see also Ga¨rditz, JZ 2013, 633, 635. 51 ECJ, Judgment of 26th February 2013, Case C-617/10 “Åkerberg Fransson”, paras 24 et seq. 52 Safferling, NStZ 2014, 545, 548. 53 Eckstein, ZIS (8) 2013, 220, 223 et seq.; Safferling, NStZ 2014, 545, 548. 54 Fundamental ruling on the primacy of Community law: ECJ, Judgment of 5th February 1963, Case C26/62 “van Gend & Loos” ECR 1963, 1; ECJ, Judgment of 15th July 1964, Case C-6/64 “Costa ./. ENEL” ECR 1964, 1251, paras 8 et seq. 55 Among others Satzger, in: Sieber et al. (eds), Europ. StR, § 1 paras 8 et seq.; Reinbacher, Strafrecht im Mehrebenensystem, p. 522 with further references. 56 On the German explanation for the primacy of Union law Streinz, Europarecht, paras 205 et seqq. 57 ECJ, Judgment of 26th February 2013, Case C-617/10 “Åkerberg Fransson”, para. 29. 58 ECJ, Judgment of 26th February 2013, Case C-399/11 “Melloni”; see Besselink, E. L. Rev. 39 (2014), 531 et seqq.; Tinsley, NJECL 3 (2012), 19 et seqq.

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protection provided for by the Charter, when the provisions of the framework decision on the European arrest warrant (in this case regarding the execution of decisions rendered in absentia) are complied with. Otherwise, judicial cooperation on the basis of mutual recognition would fail. In this context, the ECJ clarifies that art. 53 CFR cannot be interpreted as to say that the application of provisions of EU law may be denied when the standard of protection of fundamental rights offered by the respective national constitution is higher than that deriving from the Charter. Otherwise, the primacy, unity and effectiveness of EU law could be compromised. If one were to interpret art. 53 CFR too extensively, this in turn, “by casting doubt on the uniformity of the standard of protection of fundamental rights as defined in that framework decision, would undermine the principles of mutual trust and recognition which that decision purports to uphold and would, therefore, compromise the efficacy of that framework decision”.59 Both decisions are based on a problematic notion: Even if there is room for enhanced protection of fundamental rights on the basis of national constitutions when the acts of the Member States are not solely determined by Union law, this shall not apply if the effectiveness of Union law, in particular judicial cooperation in criminal matters based on mutual recognition, would be impaired.60 One could argue that as long as the protection of fundamental rights provided for on Union level is akin to that offered by the national constitutions, the individual in question need not worry.61 In this regard, however, the Melloni ruling does create doubts as the framework decision on the European arrest warrant was simply “rubber-stamped” by the ECJ without a real examination of fundamental rights but only pointing to the act’s conformity with art. 47 and 48 CFR.62 This is in line with the Radu case63 in which the ECJ refuses to further examine the violation of fundamental rights due to the exhaustive nature of the list of grounds for non-enforcement provided for by the framework decision on the European arrest warrant. This approach, however, must be regarded as too general, especially in light of the fundamental rights clause contained in art. 1 (3) of said framework decision.64 The emphasis on effectivity rather than on national protection of fundamental rights may potentially lead to serious conflicts, especially when the primacy of EU law is deducted from national constitutional law. This proves particularly true when the national position on the protection of fundamental rights that is subdued by the priority of effectiveness of EU law is of such high importance that it is regarded as an integral part of the respective state’s constitutional identity, and thus cannot be surrendered from that state’s point of view. 23 Faced with the ECJ’s case-law outlined above, the BVerfG recently felt compelled to indicate limits for the subordination of national protection of fundamental rights. Even if it was not the objective of the BVerfG to directly confront the ECJ,65 it uttered a warning that it might put into question its previous cooperative relationship with the ECJ regarding the subject matter:66 In principle, the BVerfG adheres to its position that Union law has priority of application also over national fundamental rights; however, it ECJ, Judgment of 26th February 2013, Case C-399/11 “Melloni”, paras 56 et seq. Safferling refers to the Åkerberg-Melloni-effect, NStZ 2014, 545, 550. 61 This is explicitly demanded by art. 23 (1) 1 GG. 62 Streinz, in: Heid et al. (eds), FS Dauses, p. 429, 439. 63 ECJ, Judgment of 29th January 2013, Case C-396/11 “Radu”; see Tinsley, EuCLR 2 (2012), 338 et seqq. 64 See also recitals 12 and 13 in the preamble of the framework decision on the European Arrest Warrant, and Opinion of Advocate General Sharpston in Case C-396/11, “Radu”, para. 70. 65 Satzger, NStZ 2016, 514, 518. 66 Regarding the cooperative protection of fundamental rights involving ECJ, BVerfG and ECtHR, see among others Ludwigs, EuGRZ 2014, 273. 59 60

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bases this priority on German constitutional law, more precisely on the authorisation contained in art. 23 GG to properly integrate Germany into the EU. According to the so-called “Solange” judicature,67 the BVerfG does not measure EU legal acts against the GG as long as the ECJ generally provides for an effective protection of fundamental rights that basically equates the protection offered by the German Constitution.68 The court, however, reserved the right to review whether or not EU legislation abides by the principle of subsidiarity (“monitoring of subsidiarity”)69, whether the EU institutions act within the limits of the competences attributed to them according to the principle of conferral of powers (ultra vires monitoring)70 and whether the inviolable core of constitutional identity described by art. 23 (1) 3 read in conjunction with art. 79 (3) GG is preserved (“monitoring of preservation of constitutional identity”)71. The consequence of a negative outcome of these tests would be that Union law would have to be declared inapplicable in Germany under certain and narrowly defined circumstances. A possible instance of necessity to monitor the preservation of constitutional identity was discussed by the BVerfG as recently as on 15th December 201572, at least in principle: The court reviewed a judgment rendered by a Higher Regional Court in which the extradition based on a European arrest warrant that was issued for the purpose of enforcement of an Italian judgment rendered in absentia (and unbeknown to the convict) was declared permissible. The BVerfG measured said decision against the GG, even though it was determined by Union law and thus should not have been assessed on the basis of German constitutional standards according to the principle of priority of application of Union law. This priority of application was, however, said to be limited by the constitutional identity of the GG which may not be impaired by European integration according to art. 23 (1) 3 in conjunction with art. 79 (3) GG and which also encompasses the principle of culpability which is in turn enshrined in the guarantee for human dignity of art. 1 (1) GG. As the Higher Regional Court had not sufficiently investigated whether a new evidentiary hearing required by the principle of culpability was going to take place in Italy, the BVerfG considered the judgment an instance for monitoring the preservation of German constitutional identity. In the end it did, however, not activate the monitoring in a substantial manner but rather only “threatened” to do so: Without submitting the issue to the ECJ (!)73, the BVerfG interpreted the framework decision on the European arrest warrant (and the respective German act of transposition) to the effect that in the case at hand the requirements for an extradition to Italy set out in the framework decision were not even fulfilled. It remains to be seen in how far this decision is a one-off “warning shot” and whether or not other Member States’ constitutional courts will invoke similar reservations. On a positive note, it should be stressed that an extensive automatism of recognition that puts a hold on any scrutiny of adherence to fundamental rights was not simply “rubberSee BVerfG, Decision of 22nd October 1986, 2 BvR 197/83 = BVerfGE 73, 339, 387 “Solange II”. Among others, BVerfG, Decision of 22nd October 1986, 2 BvR 197/83 = BVerfGE 73, 339, 387 “Solange II”; BVerfG, Decision of 7th June 2000, 2 BvL 1/97 = BVerfGE 102, 147, 164 “Bananenmarkt”. 69 BVerfG, Judgment of 30th June 2009, 2 BvE 2/08 et al. = BVerfGE 123, 267, 353 et seq., especially para. 240 = NJW 2009, 2267, 2272, “Lissabon”. 70 Monitoring whether EU legislation respects the limits of competences conferred on the EU: BVerfG, Judgment of 30th June 2009, 2 BvE 2/08 et al. = BVerfGE 123, 267, 396 et seq. = NJW 2009, 2267, 2284, “Lissabon”; more in detail and interpreting the requirements for ultra vires legal acts very narrowly BVerfG, Decision of 6th July 2010, 2 BvR 2661/06 = BVerfGE 126, 286, 304 et seq. “Honeywell”. 71 BVerfG, Judgment of 30th June 2009, 2 BvE 2/08 et al. = BVerfGE 123, 267, 353 et seq., especially para. 240 = NJW 2009, 2267, 2272, “Lissabon”. 72 BVerfG, Decision of 15th December 2015, 2 BvR 2735/14 = NJW 2016, 1149. 73 The BVerfG invokes the so-called acte clair theory; for details and for a critical view, see Satzger, NStZ 2016, 514, 519. 67 68

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stamped” by the BVerfG, although the respective decision itself gives rise to some doubts.74 A development parallel to the German one in terms of substance and timing has taken place on the European level: Only a few weeks after the BVerfG’s decision, also the ECJ restricted the obligation to enforce a European arrest warrant because of aspects regarding human rights protection.75 74

Satzger, NStZ 2016, 514, 519. ECJ, Judgment of 5th April 2016, Joined Cases C-404/15 and C-659/15 PPU “Pa´l Aranyosi/ Ca˘lda˘raru”; see in detail § 8 para. 30; see Meysman, EuCLR 6 (2016), 186, 206 et seqq.; on the decisions of both the BVerfG and the ECJ and their relationship Satzger, NStZ 2016, 514 et seqq. 75

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§6 Supranational Criminal Law Contents I. Existing Sanctions at Union Level. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. The Different Types of European Sanctions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Fines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Other Financial Sanctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c) Other Detriments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Classification as Criminal Law in a Broader Sense . . . . . . . . . . . . . . . . . . . . . . . . II. European Criminal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Terminology. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. First Instances of a European Criminal Law de lege lata? . . . . . . . . . . . . . . . . . 3. European Competence Provisions for Adopting Criminal Law. . . . . . . . . . . III. Projects Concerning European Criminal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Corpus Juris of Criminal Provisions for the Protection of the Financial Interests of the European Communities (Corpus Juris 2000) . . . . . . . . . . . . . 2. Commission Green Paper on Criminal-Law Protection of the Financial Interests of the Community and the Establishment of a European Prosecutor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 1 2 3 4 5 9 9 10 18 32 33 38

I. Existing Sanctions at Union Level 1. The Different Types of European Sanctions European law contains a variety of provisions that allow for sanctions to be imposed. 1 Basically, those sanctions may be divided into three groups: a) Fines. Fines gained great importance under the former Treaty of the European 2 Community, in particular in the field of competition law.1 Within the TFEU, Art. 103 (2) (a) explicitly provides for the imposition of fines – and numerous regulations have already made use of it: Example: Art. 23 (1) of the Regulation (EC) 1/20032: “The Commission may by decision impose on undertakings and associations of undertakings fines not exceeding 1 % of the total turnover in the preceding business year where, intentionally or negligently: a) they supply incorrect or misleading information in response to a request made pursuant to article 17 or article 18 (2) […]” In this context, Commission decisions imposing fines of hundreds of millions of euros on companies have repeatedly hit the headlines. Examples: In 2008, the European Commission imposed a fine of almost E 1.4 billion on four international car glass manufacturers for illegal price-fixing arrangements. The French company Saint-Gobain was fined E 896 million in respect of this matter.3 In 1

Vogel/Brodowski, in: Sieber et al. (eds), Europ. StR, § 5 paras 10 et seqq. OJ (EC) 2003 No. L 1/1. 3 See press release RAPID, IP/08/1685 of 12th November 2008; see also http://www.nytimes.com/2008/11/ 12/business/worldbusiness/12iht-cartel.4.17767064.html (last visited July 2017); http://www.welt.de/welt_ print/article2715204/EU-verhaengt-Rekordstrafe-gegen-Autoglas-Kartell.html (last visited July 2017). 2

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May 2009, the semiconductor manufacturer Intel Corp. was fined a record sum of E 1.06 billion for abusing its dominant market position.4 In 2017, the European Commission imposed a fine of E 2.42 billion on Google for abusing its dominance as a search engine by giving illegal advantage to its own comparison shopping service.5 3

b) Other Financial Sanctions. The group of other financial sanctions involves different types of sanctions which, like a fine, involve a loss of assets but are nevertheless not expressly described as “fines”. Such financial sanctions, for instance, include the forfeiture of a deposit or so-called “financial penalties”.6 Example: Art. 134 b (2) Regulation (EEC, Euratom) No. 2342/2002 of the Commission of 1st January 20097: “Tenderers or candidates who have made false declarations, committed substantial errors, irregularities or fraud, may also be subject to financial penalties representing 2 % to 10 % of the total estimated value of the contract being awarded.”

4

c) Other Detriments. This group includes sanctions that do not directly aim at a loss of assets but at other adverse legal consequences, such as the withdrawal of authorisations or licences or the reduction or cancellation of subsidies.8 Example: The Council Regulation (EC) No. 73/2009 of 19th January 2009 establishing common rules for direct support schemes under the common agricultural policy9 […] provides in its art. 21 et seqq. for reductions and exclusions of aids in the event of noncompliance with the regulation.

2. Classification as Criminal Law in a Broader Sense 5

However, not all sanctions mentioned above can be considered criminal law sanctions. The ECtHR’s case-law offers a good means for differentiation. It points towards a non-restrictive application of criminal law guarantees not confined to traditional criminal law but also extending to criminal law in its broader sense.10 Thus, these guarantees apply in all instances where someone is “charged with a criminal offence” in the sense of art. 6 ECHR.11 The European Court of Human Rights (ECtHR) in particular assumes a criminal sanction if the penalty is imposed also for repressive 4 See press release RAPID, IP/09/745 of 13th May 2009; also cf New York Times of 13th May 2009, available under: http://www.nytimes.com/2009/05/14/business/global/14compete.htmI?pagewanted=all (last visited July 2017); see handelsblatt.com of 13th May 2009, http://www.handelsblatt.com/unterneh men/it-medien/milliarden-strafe-eu-legt-intel-an-die-leine/3175858.html (last visited July 2017); confirmed by EGC, Judgment of 12th June 2014, T-286/09. 5 See the European Commission Press Release of 27th June 2017, available under http://europa.eu/ rapid/press-re1ease_lP-17-1784_en.htm (last visited July 2017). 6 For further information, see e. g. Dannecker/Bu ¨ lte, in: Wabnitz/Janovsky (eds), Handbuch, ch. 2 paras 176 et seqq. 7 Commission Regulation (EC, Euratom) No. 478/2007 of 23rd April 2007 amending Regulation (EC, Euratom) No. 2342/2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No. 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities. 8 Vogel/Brodowski, in: Sieber et al. (eds), Europ. StR, § 5 paras 18 et seqq. 9 OJ (EU) 2009 No. L 30/16. 10 On the ECtHR’s differentiation between criminal law in its strict sense and in its broader sense, see only ECtHR, Judgment of 12th May 2010, No. 32435/06, “Kammerer ./. Austria”, para. 27, as well as Vilsmeier, Tatsachenkontrolle und Beweisfu¨hrung im EU-Kartellrecht, pp. 36 et seq. 11 For an overview of relevant case-law, see Frowein/Peukert, EMRK, art. 6 EMRK paras 37 et seqq.; see also Klip, Eur. Criminal Law, pp. 191 et seqq.; Letsas, EJIL 15 (2004), 279, 297.

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reasons or if the penalty implies a particularly severe loss of legally protected rights (for details, see § 9 para. 69). The fines described above are always of a repressive nature and as such must be 6 deemed criminal sanctions in a broader sense – notwithstanding that the legislator himself considers these sanctions to be “not […] of a criminal law nature” (art. 23 (5) Regulation (EC) No. 1/2003). As far as the other categories (see above) are concerned, the Regulation (EC, 7 Euratom) No. 2988/9512 can be of great help. The regulation applies to so-called “irregularities” within the important field of secondary law sanctions. “Irregularity” refers to any violation of Union law resulting from an act or omission by an economic operator which has or would have inflicted a loss on the general budget of the European Union – either by reducing or losing revenue accruing from its own resources collected directly on behalf of the Union, or by an unjustified item of expenditure. This framework regulation forms a General Part13 for the sanctions mentioned above. It enumerates, inter alia, the possible legal consequences of irregularities. The regulation distinguishes between so-called “administrative measures” (art. 4), e.g. withdrawal of the wrongly obtained advantage, and so-called “administrative penalties” (art. 5), e.g. complete or partial removal of an advantage granted by Union rules, even if the operator’s benefit from this advantage was only partially illegal. The administrative penalties in essence correspond to the repressive sanctions which 8 are regarded as criminal law in the broader sense. This classification refers to the effect of the sanction and therefore does not contradict the express wording of the regulation which refers to “administrative” penalties. This may be explained by the sensitivity on the part of the Member States concerning the Union’s claim of competences for criminal law.14

II. European Criminal Law 1. Terminology It is widely recognised that European Criminal Law does not yet exist, but it is not 9 easy to arrive at a precise definition of the term since each Member State has its own concept of criminal law. A valid definition would have to be found on a European level and would have to apply equally in all Member States. A precise description and demarcation of European Criminal Law may be based primarily on a comparative

12

OJ (EC) 1995 No. L 312/1. Tiedemann, in: Eser/Schittenhelm/Schumann (eds), FS Lenckner, p. 413. 14 Heitzer, Punitive Sanktionen, p. 127. 13

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evaluation of the domestic criminal law systems. Since imprisonment internationally is considered to be a typical criminal punishment, custodial sentences may be considered (European) criminal law. The same applies to fines which are replaced by imprisonment if they cannot be enforced.15 Besides, the fact that in the Member States’ criminal law orders the imposition of a criminal sanction always involves social disapproval or moral blame is imperative. Accordingly, this element should be regarded as constitutive also of the term “criminal sanction” understood in a specifically European sense.16 The ECtHR’s case-law argues a very similar point. It also draws a clear distinction between criminal law in a broader sense and the core of “traditional” criminal law, laying special emphasis on the stigma associated with a criminal sanction. From the ECtHR’s perspective, this distinction is of importance because the criminal head guarantees enshrined in the ECHR are not necessarily to be applied with all rigour to criminal law in its only broader sense. They rather must be applied in a differentiated manner depending on the nature of the issue and the degree of stigma that certain criminal cases carry.17

2. First Instances of a European Criminal Law de lege lata?

Case 2

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US-American citizen A falsely takes an oath before the Court of Justice of the European Union in Luxemburg. He is charged in Germany, his temporary place of residence. On which offence will the German Criminal Court base its conviction? Is it necessary that the prerequisites of §§ 3 et seqq. of the German Criminal Code (StGB) are fulfilled? (see paras 13, 15) 11

Scholars discuss whether European primary law already includes – albeit only exceptionally – supranational criminal law where primary law refers to national criminal law. There are several legal norms which require the Member States to treat violations of Union law as violations of corresponding domestic law provisions. Member States must apply domestic criminal law to certain violations of legal interests of the European Union.18 The most important provision in this regard is art. 30 of the Statute of the Court of Justice of the European Union (CJEUSt).19 It reads as follows: “A Member State shall treat any violation of an oath by a witness or expert in the same manner as if the offence had been committed before one of its courts with jurisdiction in civil proceedings. At the instance of the Court of Justice, the Member State concerned shall prosecute the offender before its competent court.” 15 See also Winkler, Rechtsnatur der Geldbuße, p. 60; in detail also Asp, Substantive Criminal Law, ¨ berg, EuCLR 3 (2013), 273 et seqq. pp. 61 et seqq.; O 16 Cf Advocate General Jacobs, in: Case C-240/90 “Deutschland ./. Kommission” ECR 1992, I-5383, para. 11; for details, see von der Groeben/Schwarze-Prieß/Spitzer, art. 280 EGV paras 33 et seqq.; for German law, see BVerfG, Decision of 16th July 1969, 2 BvL 2/69 = BVerfGE 27, 18, 29 et seq.; BVerfG Judgment of 8th February 1977, 1 BvF 1/76 et al. = NJW 1977, 569; see also Corstens/Pradel, Eur. Criminal Law, pp. 2 et seq. 17 ECtHR, Judgment of 12th May 2010, No. 32435/06, “Kammerer ./. Austria”, para. 27; cf also ECtHR, Judgment of 23rd November 2006, No. 73053/01, “Jussila ./. Finland”, para. 43; ECtHR, Judgment of 4th March 2008, No. 11529/02, “Hu¨seyin Turan ./. Turkey”, para. 32; in detail Vilsmeier, Tatsachenkontrolle und Beweisfu¨hrung im EU-Kartellrecht auf dem Pru¨fstand der EMRK, pp. 34 et seqq. 18 This “technique of assimilation” raised huge concerns, especially in respect of the lex certa requirement, cf Ambos, Int. Strafrecht, § 11 paras 20 et seqq.; Oehler, Int. Strafrecht, paras 920 et seqq.; Satzger, Europa¨isierung, pp. 196 et seqq. 19 OJ (EU) 2010 No. C 83/210.

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According to the long-prevailing opinion, art. 30 CJEUSt is a “self-executing” and 12 directly effective provision of European law. Consequently, it is regarded as supranational criminal law.20 Due to the interaction with the respective national criminal offence, art. 30 CJEUSt and the national provision taken together are said to establish what has been termed a composite supranational criminal offence.21 In Germany, art. 30 CJEUSt refers to § 154 (1) StGB (perjury) which states: “Whosoever falsely takes an oath before a court or another authority competent to administer oaths, shall be liable to imprisonment of not less than one year.” Although a combination of the two provisions has never been put in writing, it would probably read as follows: “Whosoever falsely takes an oath before the Court of Justice of the European Union, shall be liable to imprisonment of not less than one year.” The previously prevailing opinion would not only lead to the direct modification of a 13 domestic criminal law provision but also to an extension of domestic criminal jurisdiction. The composite supranational criminal offence would therefore be applicable to every offence committed before the Court of Justice, irrespective of whether or not Germany may extend its jurisdiction to the case.22 This would result in the establishment of a new principle of criminal jurisdiction in international criminal law. It could be described either as a European principle of territoriality23 or as principle of protection of European Union interests24 replacing national criminal jurisdiction (see § 4 para. 44). In case 2, according to the prevailing opinion among scholars, the application of the supranational offence of perjury (which in Germany refers to § 154 StGB) does not follow from the German provisions on criminal jurisdiction (§§ 3 et seqq. StGB) but follows directly from the CJEUSt. This prevailing opinion, however, is not convincing. Its basic premise that art. 30 14 CJEUSt is a directly effective provision of primary law appears to be ill-founded.25 According to the ECJ, a provision of primary law may only be considered directly applicable if the provision satisfies the following four requirements: it shall – be complete and legally perfect, i. e. sufficiently clear and precise, – be unconditional, – impose an obligation on the Member States that is not dependent on any (national) implementing measures and – leave no margin of discretion to the Member States.26 Art. 30 CJEUSt does not meet any of these requirements. It is not supposed to be 15 legally perfect but is rather designed to be complemented by the various national offences, as regards the elements of the offence (e. g. subjective elements) as well as the legal consequence. Without the domestic criminal law statute, the reference in primary law is inoperative. Further implementing measures by the national legislators – for instance by enacting a new offence of perjury or by maintaining the existing one – are 20

Cf the references in Satzger, Europa¨isierung, p. 192. Bo¨se, Strafen und Sanktionen, p. 108. 22 For a critical view, see also Dannecker, Jura 2006, 95, 99 et seq. 23 Johannes, EuR 1968, 63, 71; Satzger, Europa ¨isierung, p. 388. 24 See also Oehler, Int. Strafrecht, para. 913. 25 See also Rosenau, ZIS 3 (2008), 9. 26 For details on these requirements, see Craig/de Burca, EU law, p. 683; Herdegen, Europarecht, § 8 para. 13; Kapteyn, in: Kapteyn et al. (eds), EC Law, pp. 515 et seq.; Schweitzer/Hummer/Obwexer, Europarecht, para. 168; Schweitzer, Staatsrecht III, para. 520. 21

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prerequisites for achieving the aim envisaged by art. 30 CJEUSt. This becomes particularly clear in legal systems that have not established the offence of perjury. In such cases, the Member State would have to enact the offence in question for the reference to make sense. After all, the value judgments regarding false testimony and perjury – in particular with respect to the inherent wrongfulness and, accordingly, the threat of punishment – are made exclusively by the Member States which can modify the requirements as well as the legal consequences of the national offence of perjury at any time. Thus, there is a margin of discretion left to the Member States. Consequently, not one single prerequisite for the direct effect of art. 30 CJEUSt is fulfilled. In fact, the only possible interpretation of art. 30 CJEUSt is to assume that it obliges the Member States to provide the respective national criminal law to treat any violation of an oath by a witness or expert in the same manner as if the offence had been committed before one of its own courts.27 The German legal system already meets the European legal requirements by virtue of § 154 StGB. The same applies to the other offences regarding false statements (in particular the false unsworn testimony pursuant to § 153 StGB). Here, it is not the Statute of the Court of Justice that obliges the Member State to interpret §§ 153 et seqq. StGB in the light of European Union law. It is the principle of loyalty (art. 4 (3) subpara. 2 TEU) which requires the Member States to assure the functional efficiency of European administration of justice to the same extent as that of the German judiciary.28 Accordingly, § 162 StGB stipulates that §§ 153–161 StGB shall apply mutatis mutandis to false statements made before the ECJ and other international courts.29 However, in the light of the above, § 162 StGB must be considered a mere clarification.30 Therefore, in case 2, the conviction of A is not based on a supranational criminal offence but rather on the national offence of perjury. The applicability of national law depends on the general principles that determine the exercise of national jurisdiction (in Germany: §§ 3 et seqq. StGB). In the case at hand, the corresponding provision is § 6 no. 9 StGB. It stipulates that German criminal law shall apply to offences which, on the basis of an international agreement binding on the Federal Republic of Germany (in this case the TEU), must be prosecuted despite their having been committed abroad. 16 A provision similar to art. 30 CJEUSt can be found in art. 194 (1) subpara. 2 of the Euratom Treaty. This provision requires that the Member States treat any infringement of the obligations of secrecy as an act prejudicial to its rules on secrecy. Due to the reasons given above and in contrast to the long-prevailing opinion, this provision does not constitute supranational criminal law either.31 17 It can thus be concluded that there are punitive provisions which can be interpreted as European Criminal Law in a broader sense. By contrast, a European Criminal Law stricto sensu does not yet exist.

3. European Competence Provisions for Adopting Criminal Law 18

Since supranational European Criminal Law does not yet exist, it is of particular interest whether it could be established de lege lata. Due to the distribution of competences between the European Union and the Member States, the question of competence cannot be resolved by determining whether the European Union is competent for “the 27

Filopoulos, Europarecht, p. 37; Satzger, Europa¨isierung, pp. 198 et seqq. In detail Satzger, Europa¨isierung, pp. 575 et seqq. 29 Cf Sinn, NJW 2008, 3526 for further information on the new provision. 30 Esser, Eur. und Int. Strafrecht, § 2 para. 44. 31 Filopoulos, Europarecht, p. 37; Satzger, Europa ¨isierung, pp. 198 et seqq.; for a differing view, see BGH, Decision of 13th April 1962, 1 StR 41/62 = NJW 1962, 1211. 28

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criminal law” in general.32 Unlike, for instance, the German Constitution, the European treaties do not allocate competences for certain fields of law alternatively to the federal republic or to the states. According to the principle of conferral of competences (art. 5 (1), (2) TEU),33 primary Union law instead incorporates the competences for achieving certain specified goals. Whether or not the European Union shall be competent to enact supranational criminal law to achieve a certain goal must be determined by the interpretation of the respective competence provisions and primary Union law in general. Even though the interpretation is based on European principles, the specific characteristics of criminal law must be borne in mind. The TFEU comprises several competences which – if interpreted broadly – may form 19 the basis for enacting criminal law sanctions. Examples: Art. 103 (2) (a) TFEU allows the enactment of legislative acts providing for fines to ensure compliance with competition rules of the TFEU (art. 101, 102 TFEU). The term “in particular” used in paragraph 2 indicates that the list is not exclusive. Thus, the establishment of criminal law to combat infringement of competition law appears to be possible as well. Within the framework of a common transport policy (art. 90 et seqq. TFEU), art. 91 (1) (d) TFEU allows the enactment of “any other appropriate provision” which might include criminal provisions in the field of traffic law. In the case of environmental policy, art. 192 (1) TFEU seems to enable the Parliament and Council to decide freely on which “action is to be taken by the Union”. Furthermore, the flexibility clause of art. 352 TFEU only requires that an action by the Union proves necessary to attain one of the objectives set out in the Treaties wherever the Treaties have not provided the necessary powers. The wording of this provision indicates that it also allows for the establishment of criminal law. Before the Treaty of Lisbon entered into force, the prevailing opinion34 rightly took 20 the view that the specific characteristics of criminal law require a restrictive interpretation. Criminal law could therefore not be based on the existing competences within the range of the TFEU.35 Since the Treaty of Lisbon entered into force, however, this dispute is settled. Yet the essential arguments for this restrictive opinion are still important in order to 21 fully appreciate the impact of the Lisbon Treaty: – Firstly, due consideration had to be given to the intention of the contracting parties. The plan to form a “European Defence Community” had failed in the early 50s. The Defence Community was meant to have the power to establish a common military criminal code.36 Thus, the “fathers” of the European Coal and Steel Community (ECSC) – and shortly thereafter of the European Economic Community (EEC) and the Euratom – were well aware of the criminal law issue. Nevertheless, the Treaties did not even refer to criminal law which indicates that criminal law provisions at a Community level were not intended.37 32

See Heitzer, Punitive Sanktionen, p. 134. Cf Streinz, Europarecht, para. 544; for further information on the legislative competences of the Union in criminal law, see also Klip, Eur. Criminal Law, pp. 37 et seq., 180 et seqq.; Mitsilegas, EU Criminal Law, pp. 65 et seq. 34 See for example Ambos, Int. Strafrecht, 2nd edn 2008, § 11 paras 6 et seqq.; Filopoulos, Europarecht, p. 19; Griese, EuR 1998, 462, 476; Jokisch, Gemeinschaftsrecht und Strafverfahren, p. 64; Streinz-Satzger, art. 325 AEUV para. 20; Calliess/Ruffert-Waldhoff, 3rd edn, art. 280 EGV paras 3. 35 For a differing view, see Silva Sanchez, RP 2004, pp. 138 et seq. 36 See Jescheck, ZStW 65 (1953), 496 – this was laid down in art. 18 of the judicial protocol. 37 See Satzger, Europa ¨isierung, pp. 136 et seq. 33

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C. European Criminal Law 22 – Secondly, after the Treaty of Amsterdam had entered into force, the system of the

TEC and the TEU o.v. was considered another argument against the Communities’ competence for enacting criminal law. The Treaty of Amsterdam had integrated large parts of the third pillar into the European Communities (the first pillar of the European Union). Yet criminal law was deliberately kept as a part of the third pillar (then known as “Police and Judicial Cooperation in Criminal Matters”). Rather than becoming part of Community law, criminal law was therefore supposed to continue to be a matter of intergovernmental cooperation.38 23 – Thirdly, the prevailing opinion was based on two provisions established by the Treaty of Amsterdam (see art. 135, 280 (4) TEC). Both provisions contained a reservation according to which certain measures should “not concern the application of national criminal law or the national administration of justice”. It was assumed that the reservation should clarify that neither these competence provisions nor any other provisions of Community law allowed the enactment of criminal law by the EC.39 24

The Treaty of Lisbon, however, amended the provisions laid down in the TEU and TEC, thereby depriving the above-mentioned arguments of their foundation: – In contrast to the previous treaties’ version, the current treaties expressly address criminal law. In particular, art. 82, 83 TFEU contain detailed provisions on criminal law matters that are to fall within supranational competences. – The Treaty of Lisbon also abolished the pillar structure and integrated the police and judicial cooperation in criminal matters into the supranationally structured TFEU. Thus, the decision-making structures within the framework of the TFEU (in particular the Council‘s majority decisions) now apply to criminal matters – at least in principle. The above-mentioned systematic argument is therefore no longer convincing. – Finally, the most prominent argument, namely the reservations concerning criminal law within Community law, no longer applies. In art. 33 TFEU and art. 325 TFEU (which are the successor provisions to art. 135, 280 (4) TEC), these reservations are no longer included.40 Some scholars admittedly maintain that no legal consequences derive from the cessation of a merely declaratory reservation. From these scholars’ perspective, given the Union’s new criminal harmonisation competences, the sole purpose of the reservation’s cessation is to ensure consistency within the Union’s legal order. They argue that in order to introduce a legislative competence of the Union for the area of criminal law, an express standardisation would have been necessary.41 In light of the heated debates surrounding the meaning of said reservations and considering the fact that the respective provisions have only been changed 38

See Satzger, Europa¨isierung, pp. 141 et seqq. This view was partially disputed, see only Bacigalupo, in: Delmas-Marty/Vervaele (eds), Implementation, pp. 369 et seq.; Delmas-Marty, in: Delmas-Marty/Vervaele (eds), Implementation, pp. 55 et seqq., 374 et seqq.; Tiedemann, GA 1998, 107, 108, fn 7; id., in: Eser/Schittenhelm/Schumann (eds), FS Lenckner, p. 415; similarly Berg/Karpenstein, EWS 1998, 77, 81; Moll, Nationale Blankettstrafgesetzgebung, pp. 6 et seqq.; Wolffgang/Ulrich, EuR 1998, 644; in detail, see Esser, Eur. und Int. Strafrecht, § 2 para. 124; von der Groeben/Schwarze-Prieß/Spitzer, art. 280 TEC paras 103 et seqq. 40 Ambos, Int. Strafrecht, § 9 para. 8; Hecker, Eur. Strafrecht, § 4 para. 82; Safferling, Int. Strafrecht, § 10 paras 41 et seq. 41 For arguments to these ends, see Asp, Substantive Criminal Law, pp. 150 et seqq.; Schu ¨ tzendu¨bel, EUVerordnungen in Blankettstrafgesetzen, pp. 27 et seqq.; Kru¨ger, HRRS 2012, 311, 316, who – like Heger, ZIS 4 (2009), 406, 416 – deduces a competence for the enactment of supranational criminal law only from the linkage of art. 325 (4) TFEU with art. 86 (2) 1 TFEU; also Schuster, Das Verha¨ltnis von Strafnormen und Bezugsnormen aus anderen Rechtsgebieten, p. 317; Sicurella, in: Klip (ed.), Substantive Criminal Law, 233, 236; Sturies, HRRS 2012, 273, 281. 39

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with regard to these reservations, their cessation, however, indicates that the general reservation towards criminal law shall not be maintained.42 Now, art. 325 (4) TFEU envisages – as did the former art. 280 (4) TEC – the adoption of all “necessary measures” which include the enactment of (directly applicable) regulations. A comparison with the corresponding art. III-415 (4) TCE shows that a competence for the enactment of regulations is also intended. With regard to legislative acts, art. III-415 (4) TCE explicitly allowed “European laws” which were supposed to be directly applicable in all Member States (art. I-33 (1) subpara. 2 TCE).43 Furthermore, by extending the wording of the paragraphs 2 and 4 – they now include the effective protection of the financial interests “in all the Union’s institutions, bodies, offices and agencies” – the provision clarifies that criminal law protection is not only pursued within the Member States but also at the European level. This supports the view that the European Union shall be given competence to adopt supranational criminal law provisions. Thus, at least in principle, the enactment of directly applicable criminal law may be 25 based on the new provision on combating fraud (art. 325 (4) TFEU).44 However, the criminal provisions must be restricted to the prevention of and fight against fraud affecting the financial interests of the Union. The notion of “fraud” is not restricted to the meaning of fraud in national legal systems but has to be construed from a European perspective. Consequently, fraud must be interpreted in the light of already existing European law in the field of combating fraud, namely art. 1 PIF.45 Consequently, further actions with deceptive character (e. g. forgery of documents) also fall within the Union’s competence pursuant to art. 325 (4) TFEU.46 The same is true for the protection of the customs union. The former art. 135 TEC contained a reservation regarding criminal law which was deleted without replacement in the new art. 33 TFEU. Therefore, the new primary law also allows the creation of supranational criminal law in this particular field of law.47 Furthermore, art. 79 (2) (c) and (d) TFEU may be a valid basis for enacting 26 supranational criminal law.48 The provision enables the Union to enact measures in accordance with the ordinary legislative procedure – also including regulations – to combat illegal immigration and unauthorised residence, or, respectively, trafficking in persons. In particular, the term “combating” as used by the provision on trafficking in persons – and as generally used in European law in the context of criminal law – points towards this interpretation.49 The fact that art. 83 (1) TFEU enables the Member States to adopt directives – and thus to approximate national criminal law – to combat trafficking in persons does not in principle contradict this view.50 It rather reveals the 42

Cf Ambos, Int. Strafrecht, § 9 para. 8. Cf Safferling, Int. Strafrecht, § 10 para. 41. 44 For an overview of the current debate in literature, cf Gru ¨ newald, JR 2015, 245, 251 et seq.; L. Neumann, Das US-amerikanische Strafrechtssystem, pp. 175 et seqq.; on the relationship between art. 325 and art. 83 TFEU, see Herlin-Karnell, eucrim 5 (2010), 59, 61; Miettinen, EuCLR 3 (2013), 194, 195 et seqq.; Simon, NJECL 2 (2012), 242, 248 et seq. 45 OJ (EC) 1995 No. C 316/49. 46 F. Zimmermann, Jura 2009, 844, 846. 47 For a differing view, see Asp, Substantive Criminal Law, pp. 160 et seq. 48 Cf T. Walter, ZStW 117 (2005), 912, 918 et seq. (art. III-267 (2) (c) and (d) of the Constitutional Treaty correspond to art. 79 (2) (c) and (d) TFEU); see also Tiedemann, Wirtschaftsstrafrecht BT, para. 47. For a differing view, see Asp, Substantive Criminal Law, pp. 157 et seqq. 49 Cf T. Walter, ZStW 117 (2005), 912, 918 et seq. 50 In agreement Safferling, Int. Strafrecht, § 10 paras 44 et seq.; for a differing approach, see Heger, ZIS 4 (2009), 406, 416; Kru¨ger, HRRS 2012, 311, 312 et seq. 43

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unsystematic approach towards criminal law within the scope of the TFEU (see § 7 paras 34 et seqq., 38 et seqq., 50). Within the above-mentioned fields, the Treaty of Lisbon has brought about a breakthrough for European Criminal Law stricto sensu.51 Even though the European Union is only allowed to impose criminal law in specified fields, European legislation cannot be restricted to the establishment of isolated new criminal offences once it has been created. It seems rather likely that the European Union will enact further provisions to encompass a “general part” applicable to those offences – for example provisions governing perpetration of or participation in an offence, or the penalisation of an attempt.52 Given the new competences to adopt supranational criminal law, it will be all the more important to strictly comply with the principles of subsidiarity53 (cf art. 5 (3) TEU) and proportionality54 (art. 5 (4) TEU).55 Regarding the principle of subsidiarity, it should be noted that enacting criminal law is closely connected to the Member States’ sovereignty, and therefore, the necessity of action by the Union must meet particularly high demands. The protocol on subsidiarity gives the Member States the opportunity to voice their concerns regarding this principle in the legislative process at European level.56 When applying the principle of proportionality, it should be considered that a criminal law sanction can only be the ultima ratio due to its stigmatising effect.57 Apart from those narrowly defined competences to enact criminal law which are limited to certain areas and mainly rooted on the reformed primary law, a general annex competence – enabling the European Union to enact criminal law in order to ensure that its rules are fully effective – should be rejected. In art. 83 (2) TFEU, the annex competence for criminal law is explicitly restricted to the Member State’s obligation to ensure a minimum level of approximation of their domestic criminal laws (competence for approximation). However, if it is true that the approximation of domestic criminal provisions as “annexes” to other Union policies necessitates an explicit competence provision in the Treaties, an implicit “annex competence” to set supranational criminal law – which would encroach on national sovereignty and the fundamental rights of the individual to an even greater extent – a fortiori cannot be accepted. Moreover, there is a debate whether art. 86 TFEU – which allows for the creation of a European Public Prosecutor’s Office – also contains a legal basis for the enactment of supranational criminal law.58 Proponents of this view point to the wording of subpara. 2 51 See also Engelhart, in: Mu ¨ ller-Gugenberger (ed.), Wirtschaftsstrafrecht, § 6 para. 78; Fromm, StraFo 2008, 365; Rosenau, ZIS 3 (2008), 9, 16; Weigend, ZStW 116 (2004), 275, 288; see Tiedemann, Wirtschaftsstrafrecht BT, paras 44 et seq. for a rather extensive interpretation of this competence provision; on the subject of Community criminal law competence after the enforcement of the Lisbon Treaty, see also Mitsilegas, EU Criminal Law, pp. 107 et seq. 52 For details, see Gru ¨ newald, JZ 2011, 972 et seqq. 53 In more detail Asp, EuCLR 1 (2011), 44 et seqq.; Klip, Eur. Criminal Law, pp. 37 et seq. 54 In more detail Asp, Substantive Criminal Law, pp. 138 et seqq.; Klip, Eur. Criminal Law, p. 38. 55 For details, see Gru ¨ newald, JR 2015, 245, 253 et seq. 56 Cf art. 7 and 8 of Protocol No. 2 on the application of the principles of subsidiarity and proportionality (OJ [EU] 2010 No. C 83/206); see also Satzger, KritV 2008, 17, 37; Weber, EuR 2008, 88, 102 et seq.; regarding the most current example of a subsidiarity objection pursuant to Protocol No. 2 of the proposed regulation on the establishment of a European Public Prosecutor’s Office, see KOM Ares (2013) 3702525; see on this also § 8 para. 22. 57 See “A Manifesto on European Criminal Policy” established by the research group “European Criminal Policy Initiative”, ZIS 4 (2009), 697 et seqq. and EuCLR 1 (2011), 86 et seqq. 58 In this sense apparently Heger, ZIS 4 (2009), 406, 416; Kru ¨ ger, HRRS 2012, 311, 317; (correctly) disagreeing L. Neumann, Das US-amerikanische Strafrechtssystem, pp. 179 et seq.; Sturies, HRRS 2012, 273, 278.

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§ 6. Supranational Criminal Law

which deals with the content of the regulation that would put such a European Public Prosecutor’s Office in place. It reads as follows: “The European Public Prosecutor’s Office shall be responsible for investigating, prosecuting and bringing to judgment, where appropriate in liaison with Europol, the perpetrators of, and accomplices in, offences against the Union’s financial interests, as determined by the regulation provided for in paragraph 1” (highlights not included in the original text). If one would correlate the expression “[…] as determined by the regulation provided for in paragraph 1” with the aforementioned “offences” (and not the “Union’s financial interests”) this would be a grammatically feasible interpretation of the English text version (and also e. g. of the German one). On the other hand, it seems rather out of the norm for such a fundamental question as the introduction of a competence to enact supranational criminal offences to be addressed in such a very unspectacular manner, namely in an accessory sentence in the context of the creation of a European Public Prosecutor’s Office. However, a compelling argument against such an understanding is that a number of language versions do simply not permit such an interpretation. In these language versions, the above mentioned expression is very clearly attributable to the “financial interests” as defined in the regulation and not to the “offences”. This is e. g. the case for the French version: “[…] les auteurs et complices d’infractions [f. pl.] portant atteinte aux intérêts financiers de l’Union, tels que déterminés [m. pl.] par le règlement prévu au paragraphe 1”. Or the Spanish version: “los autores y cómplices de infracciones [f. pl.] que perjudiquen a los intereses financieros de la Unión definidos [m. pl.] en el reglamento contemplado en el apartado 1” (highlights not included in the original text).59 This backs the proposed notion that art. 86 TFEU cannot be construed to be a basis for supranational substantive criminal law. In summary, one can say that the amendments of primary European law allow the 31 adoption of supranational criminal law at least in the fields of combating fraud and protecting customs. The exercise of these competences, however, is restricted by the principles of subsidiarity and proportionality. Thus it is required that the goal pursued by the supranational offence cannot be achieved equally effectively by measures taken at the national level and that the adoption of criminal law must be absolutely necessary. There is still no competence for establishing supranational criminal law as an “annex” to other supranational provisions.

III. Projects Concerning European Criminal Law Irrespective of the fact that criminal law could not be enacted at a supranational level 32 before the Treaty of Lisbon entered into force, there were already detailed proposals for a supranational European Criminal Law. These preliminary works contain an important pool of ideas and guidelines whose significance for future legal development should not to be underestimated.

1. Corpus Juris of Criminal Provisions for the Protection of the Financial Interests of the European Communities (Corpus Juris 2000) By initiative of the European Parliament, a group of distinguished experts from the 33 Member States – under the presidency of Mireille Delmas-Marty – developed the socalled Corpus Juris of criminal provisions for the protection of the financial interests of 59

~oz de Morales Romero, El Legislador Penal Europeo, pp. 240 et seqq. In detail Mun

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C. European Criminal Law

the European Communities,60 a code containing substantive and procedural criminal law provisions.61 The revised version of the “Corpus Juris” encompasses 39 articles.62 34 As regards substantive law, the Corpus Juris established eight criminal offences in order to protect the EU budget. These offences are: – Fraud affecting the financial interests of the European Communities – Market-rigging – Corruption – Abuse of office – Misappropriation of funds – Disclosure of secrets pertaining to one’s office – Money laundering and receiving – Conspiracy Furthermore, attention must be drawn to the General Part of the Corpus Juris. It contains detailed rules on sanctions, mens rea, error as to the constituent elements of the offence or to the legal prohibition, penalisation of attempt as well as the criminal liability of the head of businesses or persons with powers of decision and control within the business and the criminal liability of organisations. 36 With regard to the established offences, the Corpus Juris envisages the following principal penalties: for individuals, custodial sentences of up to five years and/or a fine. Fines shall be determined according to the day fine system. A day fine corresponds to the daily income of the accused. This may be estimated freely by the court but shall not exceed 3,000 euros per day. The total fine shall not exceed three hundred and sixty five day fines. For legal persons, it envisages a fine up to ten million euros. In respect to additional penalties, the draft refers to the publication of the conviction as well as to the exclusion of the convicted natural person or organisation from future subsidies granted under European Union law. For further legal consequences, the instruments used for the offence and its fruits and profits may be confiscated. 37 Moreover, it is worth mentioning a private project headed by Klaus Tiedemann (“Arbeitskreis Strafrechtsangleichung in Europa”).63 By means of comparative law methods, the group established criminal offences for areas closely connected to the European Union. The so-called Europa-Delikte (Europe offences) might constitute the foundation of a future European economic criminal law. The work includes offences such as manipulation of stock prices, insider trading, collusion restraining competition in tendering procedures and environmental offences. It also provides for a restricted general part. However, the realisation of these proposals would require more extensive criminal legislative competences of the Union.64 The work by Tiedemann and his group may well serve as a “model” and could be of great importance for future projects. 35

2. Commission Green Paper on Criminal-Law Protection of the Financial Interests of the Community and the Establishment of a European Prosecutor 38

The Corpus Juris has already played a major role in legislation at the European level. It served as a guide for several legislative acts in the field of the former third pillar and as a model for the “Commission Green Paper on criminal-law protection of the 60 Delmas-Marty, in: Delmas-Marty/Vervaele (eds), Implementation, pp. 187 et seqq.; see also Mitsilegas, EU Criminal Law, pp. 67 et seq. 61 For an overview, see Dona ` , EJCCLCJ 6 (1998), 289 et seqq. 62 A German version of the Corpus Juris 2000 is available under https://www.ec.europa.eu/anti-fraud/ sites/antifraud/files/docs/body/corpus_juris_de.doc (last visited July 2017). 63 Tiedemann (ed.), Freiburg-Symposium. 64 Satzger, in: Tiedemann (ed.), Freiburg-Symposium, p. 87.

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financial interests of the Community and the establishment of a European Prosecutor”.65 The Green Paper suggested – in addition to the establishment of a European Prosecutor and measures for improving the effect of cross-border criminal prosecution – uniform criminal offences in the Member States. The constitution of these offences should be based upon the ideas set forth by the “Corpus Juris 2000”.66 At present, the Commission does not seem to be pursuing the creation of a supranational offence of fraud. A legislative initiative dating back to July 201267 envisions the creation of a directive and thus an approximation of national criminal provisions in this area; the directive is still under discussion within the Council, but will presumably be passed in the nearer future. 65

COM (2001) 715 final. For a critical view, see Hecker, Eur. Strafrecht, § 14 para. 31. 67 COM (2012) 363 final; for details on this, see Kaiafa-Gbandi, EuCLR 2 (2012), 319 et seqq.; Kuhl, eucrim 7 (2012), 63 et seqq.; see also § 7 paras 41, 46. 66

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§7 The Influence of European Law on Domestic Substantive Criminal Law Contents I. General Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Criminal Law under the Influence of European Union Law . . . . . . . . . . . . . 2. Particularities of Criminal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Primary Law as a Restriction on National Criminal Law. . . . . . . . . . . . . . . . . . . . 1. European Law Serving as Upper Limit for National Criminal Law. . . . . . a) Elements of a Criminal Offence Conflicting with European Law . . . . b) Legal Consequences Conflicting with European Law. . . . . . . . . . . . . . . . . . aa) Severity of Penalty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . bb) Type of Sanction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Minimum Requirements for Criminal Law Set by European Law . . . . . . . III. Restrictions on National Criminal Law Resulting from Secondary Law – in Particular Directives (art. 83 TFEU). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Combating Crime with a Cross-Border Dimension (art. 83 (1) TFEU) . a) Amendments in Primary Law Concerning the Former Third Pillar . b) Legal Acts Adopted Prior to the Entry into Force of the Treaty of Lisbon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c) Prerequisites of art. 83 (1) TFEU. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Annex Competence (art. 83 (2) TFEU) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) “Annex Character” of the Competence Provision . . . . . . . . . . . . . . . . . . . . . b) Legal Situation Prior to the Entry into Force of the Treaty of Lisbon c) The Prerequisites of art. 83 (2) TFEU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Competence for Minimum Harmonisation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. The “Emergency Brake” (art. 83 (3) TFEU) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) General Idea and Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Fundamental Aspects of the Criminal Justice System . . . . . . . . . . . . . . . . . 6. Other Approximation Competences. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Competence Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Does the “Emergency Brake” Apply? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7. Excursus: A Concept for a European Criminal Policy . . . . . . . . . . . . . . . . . . . . a) Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) The Specific Principles for a European Criminal Policy. . . . . . . . . . . . . . . IV. References to European Law in Domestic Criminal Law Provisions . . . . . . . 1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Rules in Directives. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Rules in Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Problems Arising from the Use of Blanket Criminal Laws Referring to EU Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Effect of Blanket References and Issues Concerning their Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Blanket Laws and the lex certa Requirement . . . . . . . . . . . . . . . . . . . . . . . . . . . aa) General Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . bb) References to European Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . cc) Cross–References in National Statutory Instruments . . . . . . . . . . . . . dd) Gaps in Criminal Liability and the Principle of lex mitior . . . . . . . V. The Influence of European Law on the Interpretation and Application of Domestic Substantive Criminal Law . . . . . . . . . . . . . . . . . . . . 1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Neutralising Effect on Domestic Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Current Conflicts with Regard to the Elements of a Criminal Offence b) Current Conflicts with Regard to Legal Consequences . . . . . . . . . . . . . . . . c) Ostensible Conflicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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§ 7. The Influence of European Law on Domestic Substantive Criminal Law 3. Interpretation in the Light of European Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Interpreting Criminal Law in the Light of European Law . . . . . . . . . . . . . c) Examples . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . aa) Protection of EU Legal Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . bb) Interpretation of National Law in Conformity with Directives and Terminological Accessoriness of Individual Elements of Offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . cc) Crimes of Negligence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . dd) Sentencing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Relevance of Framework Decisions for the Application of Criminal Law .

87 88 91 94 95 102 106 110 111

I. General Issues 1. Criminal Law under the Influence of European Union Law The European Union’s competence to create supranational criminal law is limited to 1 certain well-defined fields (namely fraud affecting its financial interests and customs). Outside these, it cannot enact new supranational criminal law applicable in all Member States to supplement or even replace existing domestic criminal law. This limitation, however, has no bearing on the question as to whether and to what extent domestic criminal law can be influenced by European law. This phenomenon is called Europeanisation1 of national substantive criminal law. In other fields of law, this effect was identified as an important issue quite some time ago.2 In the field of criminal law, however, one might expect a limitation on the influence 2 of European law, based on Member State sovereignty and the fact that the competence for adopting criminal law – in most fields – remains exclusively with the Member States. Consequently, criminal law would be a “taboo zone for European law” and a “reservation of national law”.3 In fact, this opinion – even if in many cases due to a lack of critical examination of the issue – used to be very popular, particularly among legal practitioners.4 The idea of a reservation towards criminal law is, however, not consistent with the distribution of competences between the European Union and the Member States, which focuses on the achievement of the Treaties’ goals: The TFEU generally describes certain aims (e. g. free movement of goods [art. 34 TFEU], undistorted competition [art. 101 TFEU]) and enables the institutions of the Union – under certain formal and substantive conditions – to adopt the appropriate measures in order to achieve these goals. Consequently, the legislative acts adopted by the Union are oriented towards a certain objective and may generally influence all fields of national legal orders in the process of achieving it. This way of distributing competences at Union level may be described as a dynamic competence structure.

1

Similarly e. g. europe´anisation in French, europeizacio´n in Spanish, Europa¨isierung in German. Thus, terms like “European Community private law” (see Mu¨ller-Graff, Privatrecht und Europa¨isches Gemeinschaftsrecht, p. 27) and “common European administrative law” (see Schwarze, Verwaltungsrecht unter europa¨ischem Einfluss, p. 17) have been in use since (at least) the early 1990s; on the subject of Union law influencing national law, see also Timmermans, in: Kapteyn et al. (eds), EC Law, pp. 148 et seq. 3 Cf Schack, ZZP 1995, 47. 4 On the relationship between criminal law and Member State sovereignty, see Suominen, The Principle of Mutual Recognition in Cooperation in Criminal Matters, pp. 292 et seqq.; id., EuCLR 1 (2011), 170, 172. 2

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Example: A national administrative provision according to which only foreigners need a licence for freelance work as well as a criminal provision that stipulates penalisation for violation of the licensing requirement contravene the non-discrimination rule of art. 49 (2) TFEU. Both the better legal status of nationals in respect to the licensing requirement and the criminal sanction are inconsistent with the goal of implementing comprehensive freedom of establishment. Hence, the criminal provision comes within the scope of application of the TFEU. This dynamic competence structure stands in stark contrast to the static competence structure which is commonly found at national levels, e. g. regarding the distribution of competences between the Federation (Bund) and the States (La¨nder) under the German Constitution. The latter is not goal-oriented, but strictly delimitates competences by subject matters. Whole branches of the law are allocated to a certain entity for regulation (e. g. “the private law” and “the criminal law” in art. 74 (1) no. 1 GG). 4 Within a static competence structure certain branches of the law may be – and often are – allocated exclusively to one entity, whereas within a goal-oriented competence structure, the same would necessarily be an alien element. 5 If criminal law was considered to be a taboo zone for European law, the Member States could easily undermine the basic principles and goals of European law under the guise of criminal law. The French legislator, for instance, might enact a criminal law provision pursuant to which an EU citizen of non-French nationality crossing the French border without explicit permission may be sentenced to a custodial sentence of up to five years. If such a restriction of freedom of movement by means of criminal law were to be beyond the scope of European law, this would bring about the end of the internal market – a truly unacceptable result. 6 Hence, domestic criminal law – like any other field of law within the national legal orders – can generally be influenced by European law and thus be “Europeanised”. 3

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2. Particularities of Criminal Law However, it is important to bear in mind the exceptional position of criminal law 7 within national legal orders – which is also illustrated by the discussion concerning the competence for adopting supranational criminal law (see § 6 paras 18 et seq.). Due to its close link to national sovereignty, the field of criminal law is considered extremely sensitive. This has also been emphasised by the German BVerfG in its decision on the Treaty of Lisbon: “(para. 253) As regards the preconditions of criminal liability as well as the concepts of a fair and appropriate trial, the administration of criminal law depends on cultural processes of previous understanding that are historically grown and also determined by language, and on the alternatives which emerge in the process of deliberation and which move the respective public opinion […] the penalisation of social behaviour can, however, only to a limited extent be normatively derived from values and moral premises that are shared Europe-wide. Instead, the decision on punishable behaviour, on the rank of legal interests and the sense and the measure of the threat of punishment, is to a particular extent left to the democratic decision-making process […].”5 “(para. 355) Securing legal peace by the administration of criminal law has always been a central duty of state authority. […] To what extent and in what areas a polity uses precisely criminal law as an instrument of social control is a fundamental decision. By criminal law, a legal community gives itself a code of conduct that is anchored in its values, and whose violation, according to the shared convictions on law, is regarded as so grievous and unacceptable for social existence in the community that it requires punishment […].”6 Criminal law is deeply rooted in the social and ethical values of a society.7 The special role of criminal sanctions is further underlined by the fact that criminal prohibitions carry with them a social and ethical judgment of unworthiness on the penalised conduct.8 There are several examples illustrating the cultural and socio-political origin of criminal law.9 The criminalisation of abortion in certain legal orders, for example, is the result of a social debate on the legal status of “unborn life” and the role of criminal law in its protection. The Irish Constitution, for instance, expressly acknowledges the right to life of the unborn and its protection by means of criminal law (art. 40 (3) (3) of the Constitution of Ireland). There is even a protocol of the Treaty of Lisbon ensuring that nothing in the Treaties shall affect the application of art. 40 (3) (3) of the Irish Constitution.10 The role of social and ethical values is also visible in § 130 (3) StGB which criminalises holocaust denial in the German legal order. § 130 (3) StGB specifically reflects the German state’s attitude towards its own past. The justification of such an offence is inter alia based on the assumption that the official acknowledgement of those immense historic crimes, committed under the Nazi regime, is “identity sustaining” for a free and internationally respected German state. The denial 5 BVerfG, Judgment of 30th June 2009, 2 BvE 2/08 et al. = BVerfGE 123, 267 = NJW 2009, 2267, 2274, “Lissabon”. 6 BVerfG, Judgment of 30th June 2009, 2 BvE 2/08 et al. = BVerfGE 123, 267 = NJW 2009, 2267, 2287, “Lissabon”. 7 Cf Greve, in: Sieber (ed.), Europa ¨ische Einigung und Strafrecht, pp. 109 et seq.; Ru¨ter, ZStW 105 (1993), 35; Satzger, Europa¨isierung, pp. 159 et seq.; Schubarth, ZStW 110 (1998), 847; see also Haguenau, RMC 1993, 357; Sevenster, CMLR 29 (1992), 64. 8 BVerfG, Judgment of 30th June 2009, 2 BvE 2/08 et al. = BVerfGE 123, 267 = NJW 2009, 2267, 2287, “Lissabon”. 9 See Tiedemann, in: Kreuzer et al. (eds), Europa ¨isierung, p. 134. 10 Cf Protocol No. 35 on the Treaty of Lisbon, No. C 115/321.

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of those crimes amounts to a violation of basic values of German society in that sense and may justify punishment.11 A number of other states also have criminalised holocaust denial.12 Often their criminal laws cover the denial of genocidal acts in a broader context (e. g. also including crimes committed in the Communist era).13 In the framework of the EU, a harmonising legal act with the objective of combating racism and xenophobia was passed in 2008.14 This enumeration of examples could easily be continued.15 However, there are also many offences which do not represent national peculiarities, especially in the fields of white-collar crimes and rather technical penal provisions (e. g. food or wine criminal law). 8 The socio-ethical and socio-political values are not only reflected by certain offences but also by criminal policy as such, in particular whether a general “tough” or “soft” attitude towards (a certain type of) crime is adopted, or when assessing the role of criminal law in the context of social problems (keyword: decriminalisation) etc.16 9 The more the criminal laws of the Member States and their criminal policies are based on peculiar national conditions, the more issues may arise from the implications of “Europeanisation”: Europeanisation may entail the risk of breaking with a community‘s accepted socio-ethical values and this may render European law inacceptable to the general public. European integration in the field of criminal law should therefore be pursued with special care. However, since national peculiarities are not reflected by all criminal offences and not every field of criminal policy is characterised by unique social conditions, it is not necessary to exclude criminal law as such from the scope of application of the TFEU altogether. Still, due to its close connection to socio-political and cultural peculiarities of the Member States, (national) criminal law should be treated with care and be protected against disproportionate encroachments by European law. This demand seems to primarily concern criminal policy, but it can also be justified as a legal rule: according to art. 4 (2) TEU, the Union shall respect the national identities of the Member States, and consequently the socio-ethical values underlying criminal law also enjoy special protection. Furthermore, art. 4 (3) TEU governs the Union’s duty of loyalty towards the Member States which encompasses an obligation to respect the legitimate interests of the Member States. As a result, we can discern a legally relevant principle demanding that national criminal law is to be treated with care, the so-called principle

11 Cf SSW-StGB-Lohse, § 130 para. 4; in favour of the constitutionality of § 130 (3) StGB: BVerfG, Decision of 6th April 2006, 1 BvQ 10/06 = NVwZ 2006, 815; see also ECtHR, Judgment of 24th June 2003, No. 65831/01, “Garaudy v. France” = NJW 2004, 3691. 12 E. g. Belgium, see Loi tendant a ` re´primer la ne´gation, la minimisation, la justification ou l’approbation du ge´nocide commis par le re´gime national-socialiste allemand pendant la seconde guerre mondiale of 23rd March 1995, French text available under http://www.ejustice.just.fgov.be/cgi_loi/change_lg.pl?language= fr&la=F&cn=1995032331&table_name=loi (last visited July 2017), Israel, see the Denial of Holocaust (Prohibition) Law, 5746-1986, of 8th July 1986, English translation available under http://www.mfa.gov.il/ MFA/Anti-Semitism+and+the+Holocaust/Documents+and+communiques/Denial+of+Holocaust+-Prohibi tion-+Law-+5746-1986-.htm (last visited July 2017). 13 E. g. § 261 a of the Czech Law Against Support and Dissemination of Movements Oppressing Human Rights and Freedoms (2001). 14 Framework Decision 2008/913/JHA on combating certain forms and expressions of racism and xenophobia by means of criminal law, OJ (EU) 2008 No. L 328/55. Several exception clauses, however, allow the national legislators to stipulate further prerequisites for penalising the Auschwitz Lie, see F. Zimmermann, ZIS 4 (2009), 1, 6 et seq. 15 For details, see Filopoulos, Europarecht, pp. 20 et seq.; Satzger, Europa ¨isierung, pp. 160 et seq. 16 See Filopoulos, Europarecht, p. 31; Safferling, Int. Strafrecht, § 11 para. 10; Satzger, Europa ¨isierung, pp. 162 et seq.

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of minimally invasive treatment of criminal law (strafrechtsspezifischer Schonungsgrundsatz), which the BVerfG has expressly acknowledged.17

II. Primary Law as a Restriction on National Criminal Law As we have seen, domestic criminal law can be influenced by European law. This 10 raises the question of the extent to which European law requires or prohibits the criminalisation of a certain conduct by national legislatures. Member States must comply with the general requirements derived from primary law on the one hand and the special requirements derived from secondary law on the other. Principles derived from primary law were developed in detail in the jurisprudence of the ECJ and still apply after the entry into force of the Treaty of Lisbon. In this regard, two different but equally significant effects must be distinguished: on the one hand, European primary law serves as an upper limit for domestic criminal law. On the other hand, it also sets a lower limit for the establishment of national criminal law.

1. European Law Serving as Upper Limit for National Criminal Law

Case 318

11

Mrs Skanavi (S), a Greek national, was in possession of a Greek driving licence but no German licence. Under the combined provisions of § 4 of the German regulation on international vehicle traffic and § 21 (1) (1) Road Traffic Act (StVG), S was charged with driving without a licence. She had neglected to exchange her Greek licence for a German one within one year of taking up permanent residence in Germany as prescribed by German law based on the directive 80/1263/EEC applicable at that time. Does this conviction for driving without a licence contravene European law?19 (see paras 18 et seq.) Generally, it is left to the discretion of the national legislator to decide whether 12 certain conduct deserves punishment and should therefore be criminalised. However, this margin of discretion is limited by the Member States’ duty of loyalty as stipulated in art. 4 (3) TEU: domestic criminal law that contravenes European law must neither be enacted nor maintained.20 To determine whether or not domestic law contravenes European law, the entire body of European law that binds the Member States has to be taken into account. This includes not only directly applicable European law but also legal acts addressing the Member State without direct effect on individuals, for example directives or decisions addressed to the Member State in question. With respect to the structure of a criminal offence, both the elements of a criminal 13 offence and the legal consequences may violate European law. 17 See BVerfG, Judgment of 30th June 2009, 2 BvE 2/08 et al. = BVerfGE 123, 267 = NJW 2009, 2267, 2274, 2287, “Lissabon”; the principle was first developed by Satzger, Europa¨isierung, pp. 166 et seq.; see also Bo¨se, ZIS 5 (2010), 76, 85; Eisele, JZ 2001, 1157, 1160, 1163; Hecker, Eur. Strafrecht, § 8 para. 55; Hecker, in: Sieber et al. (eds), Europ. StR, § 10 para. 44; Safferling, Int. Strafrecht, § 9 para. 66; Satzger, Europa¨isierung, pp. 162 et seq. 18 ECJ, Judgment of 29th February 1996, Case C-193/94 “Skanavi” ECR 1996, I-929. 19 The legal situation has changed since 1st July 1996. The Council Directive 91/439/EEC of 29th July 1991 attained a further step of harmonisation by stipulating the mutual recognition of driving licences without the obligation of exchange. 20 ECJ, Judgment of 14th July 1977, Case C-8/77 “Sagulo” ECR 1977, 1495, para. 6.

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14

a) Elements of a Criminal Offence Conflicting with European Law. A closer look reveals that the elements of a criminal offence cannot directly violate European law since criminal law itself does not prohibit the criminalised conduct. Rather, it is premised on the existence of such a prohibition – outside criminal law – in written or unwritten form.21 The prohibition itself is established by a non-criminal primary norm. The criminal law as a secondary norm attaches a penalty to a violation: whoever violates the primary norm will be punished.22 Therefore, the above illustration needs to be modified:

15

Thus, only the primary norm can directly violate European law. It must not be adopted or maintained if it conflicts with European law. This, however, entails only indirect consequences for criminal law.

16

Example (Thompson):23 In criminal proceedings in England several tradespeople were accused inter alia of illicit exportation of coins. At the time of the exportation said coins were no longer legal tender in the United Kingdom. The ECJ affirmed the applicability of the provisions on the free movement of goods (now: art. 35 TFEU). Thus, the criminal 21 See BVerfG, Decision of 23rd October 1985, 1 BvR 1053/82 = BVerfGE 71, 108, 118 et seq.; Ho¨ltkemeier, Sponsoring als Straftat, p. 68; Lagodny, Strafrecht vor den Schranken der Grundrechte, pp. 77 et seq.; Satzger, Europa¨isierung, pp. 223 et seq.; Sta¨chelin, Strafgesetzgebung im Verfassungsstaat, p. 111; see also Biancarelli/Maidani, Rev. sc. crim. 1984, 227; Labayle, Rev. sc. Crim. 1995, 36. 22 See e. g. Freund, Strafrecht AT, § 1 para. 27; Vogel, Norm und Pflicht bei den unechten Unterlassungsdelikten, pp. 27 et seq. 23 ECJ, Judgment of 23rd November 1978, Case C-7/78 “Thompson” ECR 1978, 2247.

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offence seemingly contradicted the law of the European Community at that time – but only indirectly: it was merely the primary norm (ban on exports) that directly conflicted with Community law. The ECJ, however, pointed out that the export ban was justified under art. 30 TEC (public policy; now art. 36 TFEU), as it served to protect the coinage prerogative. Consequently, the criminal offence in UK law did not violate European law. Example (Donner):24 In a German trial a German haulier was accused of aiding and abetting copyright offences pursuant to §§ 106 and 108 a Copyright Act (UrhG). The haulier had organised the shipping of an Italian furniture retailer located in Bologna to Germany. The shipping included copies of certain “designer”-furniture that was copyrightprotected in Germany, but not in Italy. In the case at hand the German criminal copyright law infringes on the free movement of goods – however only indirectly as the primary norm underlying § 106 UrhG that bans the prohibited “distribution” of copyright-protected works to the public directly collides with the free movement of goods. The ECJ, however, regarded the free movement of goods to be restricted also in this case, but deemed the provision of criminal penalties for copyright offences justified under art. 36 TFEU. It argued that the protection of intellectual property poses a legitimate interest of the Member States and that, therefore and insofar, the restriction of the free movement of goods by criminal law provisions was necessary and proportionate to the objective pursued. The court stated that the Member States were also allowed to provide for differing terms of copyrights. Hence, in its view, the primacy of application of Union law does not inhibit the application of the German criminal copyright law provisions. b) Legal Consequences Conflicting with European Law. One might assume that the 17 national legislator is accorded absolute discretion over the statutory range of penalties, provided that the elements of the national criminal offence are based on a primary norm which is in compliance with European law. Yet, the penalty as such may also contravene EU law. As far as the legal consequences are concerned, the influence of European law directly affects criminal law. Both the type and severity of the sanction may violate European law:

24

ECJ, Judgment of 21st June 2012, Case C-5/11 “Donner”.

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aa) Severity of Penalty. Frequently, national legal orders criminalise conduct that is closely connected to the exercise of the fundamental freedoms. Case 3 demonstrates how Member States pursue their sovereign interests by imposing administrative obligations (here the obligation to exchange driving licences issued by another Member State) and thereby hamper the exercise of fundamental freedoms. Member States, however, may still impose such obligations, provided they are in accordance (explicitly or by implication) with European law. In case 3, Member States were allowed to impose an obligation to exchange driving licences – which was also approved by the ECJ – due to the fact that harmonisation of the provisions on driving licences had not yet been fully accomplished at that time. The ECJ distinguishes between legitimate exercise of the right of control accepted by European law and an illegitimate encroachment upon the fundamental freedoms by applying the principles of proportionality and non-discrimination. Accordingly, a disproportionate or discriminating sanction violates the fundamental freedoms. 19 However, the Court itself gave no further explanation to justify this delimitation. It is therefore important to understand the connection between the primary norm, the sanction and the right of control retained by the Member States. The penalty provided in the penal provision reveals which conduct is actually demanded or prohibited by the domestic primary norm. Therefore, it may become apparent that the primary norm captures behaviour going beyond that which the criminal norm, by virtue of its express requirements, purports to punish. This broader scope of the criminal offence may infringe EU law. Case 3 is an example for this: The failure to exchange a licence (= document) was treated as equivalent to driving without a licence (= permission). Because she was driving without a licence, Mrs Skanavi was accused of driving without permission. However, the obligation to exchange driving licences was essentially a matter of meeting administrative requirements. It did not constitute the basis of the right to drive a motorised vehicle in the territory of the host State, which had been conferred directly by Community law (the provisions on freedom of movement). Thus, the Court considered the equal treatment of failing to exchange a licence (= document) and driving without a licence (= permission) to be disproportionate.25 Since the sentence provided by § 21 (1) (1) StVG under German law always requires driving without the permission to drive, this view is consequent. If this section was applied to persons who have not exchanged their licences within the prescribed period – which has no effect on the right to drive – the section would constitute an offence of “driving without being issued with the German document certifying the driving licence”. Thus, deviating from its wording, § 21 (1) (1) StVG would in this interpretation establish an offence which is incompatible with European law. 20 Similar situations can be observed where national criminal law provisions are established in areas closely connected to the fundamental freedoms of European law. These criminal provisions are only justified when applied within the framework of explicit or implied derogations of EU law (in particular art. 36, 51 [in connection with 62], 52 TFEU). The extent of the threatened penalty is therefore subject to the same restrictions as the primary norm itself. 21 However, if fundamental freedoms are restricted by national provisions within the framework of the above-mentioned derogations, not every penalty imposed for viola18

25 ECJ, Judgment of 29th February 1996, Case C-193/94 “Skanavi” ECR 1996, I-929, paras 34 et seq., subsequent to ECJ, Judgment of 28th November 1978, Case C-16/78 “Choquet” ECR 1978, 2293; for the legal situation subsequent to the entry into force of the second directive on harmonisation of driving licences, see OLG Ko¨ln, Judgment of 27th February 1996, Ss 2/96 – 5 = NZV 1996, 289.

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tions of such provisions is tolerable under EU law. If a criminal statute stipulates a more lenient penalty for a national compared to an EU-alien for the same conduct, this (obviously) violates the principle of non-discrimination. The (different or disproportionate) severity of the sanction indicates in these cases that the penalty is not only imposed for conduct criminalised by the respective offence but also (in part) for making use of a fundamental freedom protected by European law. In this context, it is worth referring to the Kraus26 decision of the ECJ: the Court dealt inter alia with the question as to whether a Member State may prescribe criminal penalties for a Community national who holds a postgraduate academic degree awarded by another Member State and uses this degree in the host state without first obtaining an administrative authorisation to do so. While such penalties may constitute an obstacle to the freedom of establishment, they may be justified (under European law) by “imperative requirements in the general interest”. However, this unwritten exception only permits proportionate and non-discriminatory restrictions,27 meaning that the extent of the penalty must be determined in accordance with consideration the European principle of proportionality. bb) Type of Sanction. The type of sanction can likewise violate EU law if it 22 unjustifiably restricts the use of fundamental freedoms. Imprisonment of an alien from an EU Member State, however, would always constitute a restriction as it prevents him or her from moving freely within the EU, choosing a place of establishment, providing services across the common market, etc. If this connection to the fundamental freedoms were sufficient to bring the case within the scope of EU law, every criminal law provision threatening imprisonment would fall within European law’s scrutiny. Whether or not life imprisonment for murder (e. g. under § 211 StGB or § 75 StGBAustria) is proportionate would then be a matter of European law to be decided by the ECJ. It is obvious that this would go too far, but it is more difficult to find compelling reasons to explain why. In the end, one can say that restrictions of fundamental freedoms that are necessary and common side effects of criminal penalties do not fall within the scope of the TFEU. In the case of “Friedrich Kremzow vs. Austria” the ECJ reached a similar result. The Court held that the “purely hypothetical prospect” of exercising a fundamental freedom bears no sufficiently close connection to European law to justifying the application of EC- or EU-provisions.28 This does not mean, however, that the type of sanction is not affected by European law 23 at all. If the sanction is specifically designed as a restriction of a fundamental freedom, one may not justify its exclusion from the influence of European law by considering it a side effect to a crime.29 The order for professional disqualification (in Germany § 70 StGB), for example, is a deliberate encroachment upon the freedom of establishment and free movement of services and must therefore conform to European law. The same applies to deportation, if domestic law – unlike German law – uses it as a criminal sanction. Example (Donatella Calfa):30 24 Pursuant to a Greek statute, nationals of other Member States who were found guilty of certain offences involving narcotics were automatically expelled from Greece for ECJ, Judgment of 31st March 1993, Case C-19/92 “Kraus” ECR 1993, I-1663. Cf ECJ, Judgment of 30th November 1995, Case C-55/94 “Gebhard” ECR 1995, I-4165, headnote 6. 28 ECJ, Judgment of 29th May 1997, Case C-299/95 “Friedrich Kremzow v. Republik O ¨ sterreich” ECR 1997, I-2629 para. 16; cf also Baker, Crim.L.R. 1998, 375. 29 For a differing view, see Kreis, Verbrechenssystematische Einordnung der EG-Grundfreiheiten, pp. 200 et seq. 30 ECJ, Judgment of 19th January 1999, Case C-348/96 “Donatella Calfa” ECR 1999, I-11. 26 27

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life. An Italian national was charged with procurement and possession of illicit drugs for her own personal use by a Greek criminal court. She was sentenced to a custodial sentence of three months and expelled for life from Greek territory. The ECJ held that the penalty of expulsion constituted an obstacle to her freedom to receive services (art. 56 TFEU). Such a penalty could still be justified by the public policy exception provided for in art. 62 in connection with 52 TFEU. However, according to the Directive 64/221 (now Directive 2004/38)31 the exception is only applicable if the personal conduct of the offender constitutes a present threat to the requirements of public policy. By contrast, the automatic penalty of expulsion without regard to the personal conduct of the accused or to the danger which that person poses is not permissible. The Greek legislation therefore violated European law.

2. Minimum Requirements for Criminal Law Set by European Law So far we have only focused on the upper limits for domestic criminal law. We will now turn to another European influence which may be surprising at first glance: minimum requirements for domestic criminal law. 26 European law may oblige the Member States to maintain a minimum level of criminalisation. This obligation is based on the Union’s dilemma regarding the protection of its own legal interests (e. g. financial, human and physical resources). The European Union owns property and other assets; it is entitled to the domiciliary right concerning its premises and so on. Due to its lack of competence for establishing criminal law, the European Community was unable to ensure comprehensive protection of its own legal interests by itself. Only the Member States had the power to do so. Art. 10 TEC (now art. 4 (3) TEU), which governs the Member States’ duty of loyalty to the Community/Union, provided a solution to this dilemma: the Member States’ obligation to provide sanctions (also – where necessary – involving criminal law) to ensure the protection of the Union’s legal interests. 25

27

The ECJ has specified this duty of loyal cooperation as follows: – As a minimum Member States are obliged to impose effective, proportionate and dissuasive sanctions for every violation of Union law or legal interests of the Union. “Effective” and “dissuasive” mean that the sanctions must be aimed at and be suitable to realise the goals of the protected European provisions or interests. In this regard, the sanction must have both specific and general deterrent effect.32 In a recent (and especially in Italy much noticed and disputed) decision, the ECJ regarded these criteria not to be fulfilled in cases where – due to national regulations governing the interruption of the limitation period in a considerable number of cases – acts that constitute major fraud (art. 325 TFEU) could not be penalised, because they had generally met their statute of limitation earlier than the respective sanction could be imposed by the final judicial instance.33 “Proportionate” requires the sanctions to be commensurate to the goals pursued and to correspond to the severity of the violation. The Member States thus must impose an “adequate” sanction.34 31 See Art. 3 (1) of Council Directive 64/221/EEC (“Measures taken on grounds of public policy or public security shall be based exclusively on the personal conduct of the individual concerned”) which corresponds to art. 27 (2) of new Directive 2004/38/EC (OJ (EU) 2004 No. L 158/77). 32 For details on the criteria, see Klip, European Criminal Law, pp. 76 et seqq., White, E. L. Rev. 31 (2006), pp. 87 et seq. 33 ECJ, Judgment of 8th September 2015, Case C-105/14 “Taricco et al.”, para. 47. 34 For details on the criteria, see Klip, European Criminal Law, pp. 78 et seq.; Satzger, Europa ¨isierung, pp. 368 et seq.

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The selection of the specific sanction, however, is left to the Member States. The ECJ does not require Member States to break with their legal traditions. The sanctions must rather be compatible with fundamental principles of domestic law.35 This can be regarded as a manifestation of the above-mentioned (see para. 9) “principle of minimally invasive treatment of criminal law”. – If a Member State’s legal order already contains sanctions for comparable violations of national law, the principle of assimilation, which is derived from the duty of loyalty pursuant to art. 4 (3) TEU, applies.36 It demands that the violation of European law is accorded at least equal treatment in comparison to the pure national situation. If there are no such comparable national provisions or if they do not meet the minimum requirements set out above, said minimum rules continue to apply. In this context the decision of the ECJ in the Greek Maize scandal was groundbreak- 28 ing:37 The Commission initiated an infringement procedure (cf now: art. 258 TFEU) against the Hellenic Republic concerning two consignments of maize exported from Greece to Belgium in May 1986 which in fact contained Yugoslavian maize. Greek authorities had, however, officially declared the maize to be of Greek origin. For that reason, the agricultural levy due to the Community had neither been collected by Belgium nor by Greece since the maize was deemed Greek instead of from a third country. The Greek authorities refused to take criminal or disciplinary action against the officials who were involved in the incident. According to the Commission, the fraud had not only initially been committed with the complicity of certain Greek civil servants but also, at a later stage, a number of senior civil servants had issued false documents and made false statements to conceal it. The Commission called on the Greek government to take appropriate measures, though not to any positive effect. As regards the Member States’ duty of loyalty, the ECJ stated quite clearly: 29 “It should be observed that where Community legislation does not specifically provide any penalty for an infringement or refers for that purpose to national laws, regulations and administrative provisions, art. 5 of the Treaty [now: art. 4 (3) TEU] requires the Member States to take all measures necessary to guarantee the application and effectiveness of Community law. For that purpose, whilst the choice of penalties remains within their discretion, they must ensure in particular that infringements of Community law are penalised under conditions, both procedural and substantive, which are analogous to those applicable to infringements of national law of a similar nature and importance and which, in any event, make the penalty effective, proportionate and dissuasive. Moreover, the national authorities must proceed, with respect to infringements of Community law, with the same diligence as that which they bring to bear in implementing corresponding national laws.”38

35 The ECJ, for instance, refused to find an obligation to introduce criminal liability of legal persons, see ECJ, Judgment of 2nd October 1991, Case C-7/90 “Vandevenne” ECR 1991, I-4371. 36 Cf Asp, in: Mitsilegas et al. (eds), pp. 317 et seqq.; Mitsilegas, EU Criminal Law after Lisbon, pp. 75 et seq.; Raitio, The Principle of Legal Certainty in EC Law, p. 96; Safferling, Int. Strafrecht, § 11 paras 31 et seqq. 37 ECJ, Judgment of 21st September 1989, Case C-68/88 “Commission v. Greece” ECR 1989, 2965. 38 ECJ, Judgment of 21st September 1989, Case C-68/88 “Commission v. Greece” ECR 1989, 2965, paras 23 to 25. For details on the prerequisites of art. 10 TEC, see Satzger, Europa¨isierung, pp. 360 et seq.; see also Hecker, Eur. Strafrecht, § 7 paras 55 et seqq.; Timmermans, in: Kapteyn et al. (eds) Timmermans, EC Law, pp. 148 et seq.; regarding the question of the continued legal effects of obligations set up by primary Union law alongside specific secondary law provisions, see F. Zimmermann, Strafgewaltkonflikte in der EU, pp. 120 et seqq.

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The Hellenic Republic did not comply with these requirements as it failed to initiate criminal or disciplinary proceedings. Consequently, the ECJ found an infringement of the Treaty by the Hellenic Republic. 30 This case-law is now reflected in art. 325 (1) and (2) TFEU (and had already been contained in the preceding provisions).39 Although the Treaty of Lisbon enables the European Union to adopt supranational criminal law against fraud so as to protect its financial interests (see § 6 paras 24 et seq.), the Member States’ obligation remains of great importance – at least as long as the European Union does not make use of this competence.

III. Restrictions on National Criminal Law Resulting from Secondary Law – in Particular Directives (art. 83 TFEU) 1. Overview 31

So far we have examined the influence of primary law on domestic criminal law, which has been established by the case-law of the ECJ. We will now turn to the influence of secondary law aimed at the approximation of national criminal laws.40 Already prior to the entry into force of the Treaty of Lisbon and its fundamental modifications of primary law, the European Union was able to adopt measures for approximating substantive41 criminal law. These measures primarily involved framework decisions in the field of police and judicial cooperation in criminal matters (PJCC).42 With art. 83 TFEU, there is now a general competence provision for the approximation of substantive criminal law by means of directives. The provision distinguishes between approximation of particularly serious crimes with a cross-border dimension (para. 1) and approximation to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures, the socalled “annex competence” (para. 2). Finally, art. 83 (3) TFEU establishes an emergency brake which enables individual Member States to veto any draft directive if they fear its enactment would affect fundamental aspects of their criminal justice system.

2. Combating Crime with a Cross-Border Dimension (art. 83 (1) TFEU) 32

a) Amendments in Primary Law Concerning the Former Third Pillar. The opening of borders within the European Union enhanced the free movement of its citizens, but it also increased the danger of cross-border crime. In the framework of the former third pillar (art. 29 et seqq. TEU o.v.), the Union’s objective was to provide citizens with an area of freedom, security and justice and a high level of safety. This objective is now pursued at a supranational level by art. 67 et seqq. TFEU. Due to the transfer of competences from intergovernmental co-operation to the supranational level (“supranationalisation”), the ordinary legislative procedure pursuant to art. 289, 294 TFEU applies also to the approximation of criminal law. The requirement for unanimity, which had been imperative within the range of the former third pillar, has been abandoned. Since the European Parliament has to approve every draft directive, the 39 On the transferability of these principles on the provisions governing jurisdiction and the territorial scope of criminal law (§ 5 No. 4 in conjunction with § 99 StGB), see F. Zimmermann, Strafgewaltkonflikte in der EU, pp. 125 et seqq. 40 The following section deals with the approximation of criminal law. For the difference between adoption and approximation of criminal law, see § 5 para. 8. 41 For harmonisation of criminal procedure law, see § 8 paras 93, 98. 42 For the structure of the European Union and in particular the PJCC before the Treaty of Lisbon entered into force, see § 5 para. 6.

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Treaty of Lisbon has strengthened the position of the European Parliament – a very positive aspect regarding democratic legitimation.43 The position of the individual Member State, however, is weakened by the Treaty. A single Member State can now be outvoted and has no autonomous right of initiative. Art. 76 (b) TFEU prescribes that an initiative requires at least the support of a quarter of the Member States. b) Legal Acts Adopted Prior to the Entry into Force of the Treaty of Lisbon. 33 According to art. 9 Protocol No. 36, the legal acts adopted on the basis of the TEU prior to the entry into force of the Treaty of Lisbon shall in principle remain valid.44 It must be noted, however, that these legal acts did not follow a coherent concept of criminal policy. Several measures pursuing the approximation of domestic criminal law were passed simply due to current events45 and indicated a lack of coherence. The measures taken apply to the following areas, whereby the legal acts passed prior to the Lisbon Treaty’s entering into force were already (or will be) changed into directives. The reform or readoption of such measures on the basis of the Lisbon Treaty is also referred to as “Lisbonisation”.46 – Crimes against the financial interests of the European Communities (PIF-Convention and its protocols;47 in this regard, see the Commission’s proposal COM (2012) 363 final) – Corruption (PIF-Convention and its first protocol; in this regard, see the Commission’s proposal COM (2012) 363 final) – Corruption in the private sector (Framework Decision OJ (EU) 2003 No. L 192/54) – Organised crime (Joint Action48 OJ (EC) 1998 No. L 351/1 – in the meantime replaced and partially extended by the Framework Decision OJ (EU) 2008 No. L 300/42) – Money laundering (Framework Decision OJ (EC) 2001 No. L 182/1; see also Directive 2015/849/EU, OJ (EU) 2015 No. L 141/73) – Protection of the Euro against counterfeiting (Directive 2014/62/EU, OJ (EU) 2014 No. L 151/1) – Fraud and counterfeiting of non-cash means of payment (Framework Decision OJ (EC) 2001 No. L 149/1) – Terrorism (Framework Decision OJ (EC) 2002 No. L 164/3 and Framework Decision OJ (EU) 2008 No. L 330/21; see also the Commission’s proposal COM (2015) 625 final, replacing the framework decision mentioned above)49 43 Sieber, ZStW 121 (2009), 1, 57 et seq.; Suhr, ZEuS 2009, 687, 692; F. Zimmermann, Jura 2009, 844; see also van Ballegooij, eucrim 9 (2014), p. 107. 44 Protocol No. 36 on Transitional Provisions, OJ (EU) 2010 No. C 83/322; see also Blanchet, NJECL 5 (2015), 434, 435 et seqq.; Satzger, NJECL 5 (2015), 528 et seqq. 45 For details, see Satzger, in: 4. Europa ¨ischer Juristentag 2008, pp. 220 et seq.; similarly Fletcher/Lo¨o¨f/ Gilmore, EU Criminal Law, p. 175 and pp. 194 et seq., who, in consideration of the principle of subsidiarity, criticise the handling of national problems at European level. 46 An in-depth analysis of framework decisions issued can be found here: Hecker, Eur. Strafrecht, § 11 para. 10; as well as Peers, EU Justice, pp. 783 et seqq.; cf also Vogel, GA 2003, 314, 322 et seqq.; critical as to whether this actually leads to an approximation of national provisions Peers, CMLR 41 (2004), 5, 29 et seqq., 33. 47 Convention on the protection of the European Communities’ financial interests (PIF, short for protection des inte´reˆts financiers), OJ (EC) 1995 No. C 316/49; 1st Protocol: OJ (EC) 1996 No. C 313/2; 2nd Protocol: OJ (EC) 1997 No. C 221/12. 48 This form of action was envisaged by art. K.3 (2) (b) TEU o.v., prior to the Treaty of Amsterdam; the binding force of Joint Actions, however, was and still is disputed; see Hailbronner/Wilms-Hailbronner, art. K paras 92 et seq. 49 For an overview on the fight against terrorism at EU level, see Ambos, Int. Strafrecht, 2nd edn, § 12 paras 10 et seqq.; as well as Peers, EU Justice, pp. 784 et seqq.; see also Kreß/Gazeas, in: Sieber et al. (eds),

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– Trafficking of persons (Directive 2011/36/EU, OJ (EU) 2011 No. L 101/1) – Sexual exploitation of children, child pornography (Directive 2011/93/EU, OJ (EU) 2011 No. L 335/1)50 – Facilitation of unauthorised entry, transit and residence (Framework Decision OJ (EC) 2002 No. L 328/1)51 – Drug trafficking (Framework Decision OJ (EU) 2004 No. L 335/8) – Attacks on information systems (Directive 2013/40/EU, OJ (EU) 2013 No. L 218/8) – Racism and xenophobia (Framework Decision OJ (EU) 2008 No. L 328/55) – Environmental crimes (Framework Decision OJ (EU) 2003 No. L 29/55 – annulled by the ECJ52) – Ship-source marine pollution (Framework Decision OJ (EU) 2005 No. L 255/164 – also annulled by the ECJ53) 34

c) Prerequisites of art. 83 (1) TFEU. On the basis of art. 83 (1) TFEU – as previously on the basis of the third pillar – the European Union can establish only minimum rules if they are necessary to combat certain crimes with a cross-border dimension.54 Its scope of application is furthermore restricted to the areas of “modern crime”55 as enumerated in art. 83 (1) TFEU. By contrast to the legal situation prior to the Treaty of Lisbon, art. 83 (1) TFEU constitutes a considerable restriction: According to the correct and prevailing opinion among legal scholars, art. 29 (2), 31 (1) (e) TEU o.v. allowed approximation regarding every area of crime.56 Minimum harmonisation of provisions on racism and xenophobia, as included in a framework decision adopted in 200857, is no longer possible de lege lata58 as this area of crime is not included in the enumeration found in art. 83 (1) TFEU. Also, art. 67 (3) TFEU cannot serve as a legal basis due to its mainly programmatic character – otherwise the European Union could circumvent the prerequisites established by art. 83 TFEU. Art. 83 (1) TFEU does not enumerate specific criminal offences. Rather, it only vaguely sketches out areas of crime such as terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking and illicit arms trafficking, corruption or organised crime.59 Certainly, a competence provision in primary law cannot be as precisely defined as would be required for domestic criminal law provisions.60 Furthermore, some offences do not exist within the national legal orders or have a different structure. It must be acknowledged, however, that due to the Europ. StR, § 19 paras 1 et seqq.; for the most recent framework decision, see F. Zimmermann, ZIS 4 (2009), 1 et seqq. 50 Census corrected by OJ (EU) 2012 No. L 18/7; see the critical discussion of this directive by Ziemann/Ziethen, ZRP 2012, 168 et seqq. 51 The framework decision is supplemented by the Directive 2002/90/EC defining the facilitation of unauthorised entry, transit and residence, OJ (EC) 2002 No. L 328/17, so-called “cross-pillar approach”. 52 ECJ, Judgment of 13th September 2005, Case C-176/03 “Commission v. Council” ECR 2005, I-7879. 53 ECJ, Judgment of 23rd October 2007, Case C-440/05 “Commission v. Council” ECR 2007, I-9097. 54 Hecker, Eur. Strafrecht,§ 11 para. 4; Klip, European Criminal Law, pp. 181 et seqq. 55 Tiedemann, Wirtschaftsstrafrecht BT, para. 37. 56 For details, see Satzger, IntStr, 3rd edn, § 8 paras 52 et seq. 57 Framework decision 2008/913/JHA on combating certain forms and expressions of racism and xenophobia by means of criminal law, OJ (EU) 2008 No. L 328/55. 58 Bo ¨ se, ZIS 5 (2010), 76, 82; Nilsson, eucrim 9 (2014), 19, 21; Suhr, ZEuS 2009, 687, 706; for a differing view, see Hecker, Eur. Strafrecht, § 11 para. 4. 59 For a more detailed interpretation of the offences contained in the catalogue, see Tiedemann, Wirtschaftsstrafrecht BT, paras 48 et seqq.; see also Nilsson, eucrim 4 (2014), 19, 20. 60 See Vedder/Heintschel von Heinegg-Kretschmer, art. III-271 EVV para. 7; Tiedemann, Wirtschaftsstrafrecht BT, para. 41; T. Walter, ZStW 117 (2005), 912, 927 et seq.

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vagueness of the enumeration it is hardly foreseeable to what extent domestic criminal law may be approximated on the basis of art 83 (1) TFEU.61 This problem could be avoided if the European Union followed accepted criminal law standards, such as those developed by a group of scholars from several European countries (“European Criminal Policy Initiative”62) in their Manifesto on European Criminal Policy.63 While the list of areas of crime in art. 83 (1) subpara. 2 TFEU is worded exhaustively, 35 the Council may unanimously extend the list of areas of crime “on the basis of developments in crime” upon obtaining the consent of the European Parliament (art. 83 (1) subpara. 3 TFEU). However, with regard to the vagueness of the present enumeration, it seems doubtful that this “extension clause” will attain great significance.64 The German BVerfG rightly pointed out that this provision actually amounts to a competence to amend the Treaty. According to the principle of conferral (art. 5 (1) and (2) TEU), the Union shall act only within the limits of the competences conferred upon it in the Treaties by the Member States (see also § 6 para. 18). Art. 5 (2) TEU clearly stipulates that the Union has no competence to extend its codified competences. Therefore, the BVerfG emphasised the need for the enactment of a statute under art. 23 (1) 2 GG for such (concealed) amendments as well.65 As a consequence of this decision, the German legislator passed its Act on the Exercise of Responsibility for Integration of the Bundestag and the Bundesrat in Matters Concerning the European Union (IntVG)66. In its § 7 (1), the act stipulates that the German representative in the Council may approve a decision on extension pursuant to art. 83 (1) subpara. 3 TFEU only after a corresponding act of parliament has entered into force.67 Art. 83 (1) TFEU only allows for approximation of domestic law in “areas of 36 particularly serious crime with a cross border dimension”.68 These restrictions must be taken seriously, despite the vagueness of the wording.69 An offence can only be classified as particularly serious if it is detrimental to society in a way comparable to the offences listed in art. 83 (1) TFEU. Also, the mere political will for a coordinated effort against certain crimes does not in itself suffice to establish a “special need to combat them on a common basis”.70 It is not entirely clear, however, whether the above-mentioned prerequisites must be fulfilled in cases where the directive concerns one of the areas enumerated in subpara. 2.71 One could argue that the wording of the provision “these areas of the crime 61 Ambos/Rackow, ZIS 4 (2009), 397, 402; Braum, ZIS 4 (2009), 418, 421; Weigend, ZStW 116 (2004), 275, 285 et seq.; see also Schu¨nemann, StraFo 2004, 348 on the vague enumeration of offences in the Framework Decision on the European arrest warrant. 62 See http://www.crimpol.eu (last visited July 2017). 63 ECPI, “A Manifesto on European Criminal Policy”, ZIS 4 (2009), 697 et seq.; introductory Satzger, ZIS 4 (2009), 691 et seq.; also cf ECPI, “The Manifesto on European Criminal Policy in 2011”, EuCLR 1 (2011), 86 et seq. 64 Folz, ZIS 4 (2009), 427, 430. 65 BVerfG, Judgment of 30th June 2009, 2 BvE 2/08 et al. = BVerfGE 123, 267 = NJW 2009, 2267, 2288, para. 363, “Lissabon”. 66 Federal Law Gazette (BGBl.) 2009 I, p. 3022, last amended by art. 1 of the Law of 1st December 2009, Federal Law Gazette (BGBl.) 2009 I, p. 3822. 67 For details on the Integrationsverantwortung (“responsibility for integration”), see Nettesheim, NJW 2010, 177 et seq. 68 Cf Grabitz/Hilf/Nettesheim-Vogel/Eisele, art. 83 AEUV paras 40 et seqq.; see also Safferling, Int. Strafrecht, § 10 paras 49 et seq. 69 Ambos/Rackow, ZIS 4 (2009), 397, 402; Weigend, ZStW 116 (2004), 275, 283. 70 BVerfG, Judgment of 30th June 2009, 2 BvE 2/08 et al. = BVerfGE 123, 267 = NJW 2009, 2267, 2288, “Lissabon”; see Ambos/Rackow, ZIS 4 (2009), 397, 402; Heger, ZIS 4 (2009), 406, 412; Meyer, EuR 2011, 169, 178; F. Zimmermann, Jura 2009, 844, 849 et seq. 71 Distinguishing view by Grabitz/Hilf/Nettesheim-Vogel/Eisele, art. 83 AEUV para. 52.

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are the following…” (prima facie) confirms that the requirements are always met in the mentioned areas. However, the wording is less clear in other languages.72 Furthermore, the prerequisites would then only be significant as a limit on the reach of the “extension clause” (subpara. 3). One would assume in this case that the prerequisites would have been placed in connection with the extension clause rather than in subpara. 1.73 Furthermore, the prerequisites found in subpara. 1 could play an important role in ensuring the observance of the principle of subsidiarity within the whole range of application.74 However, it must be acknowledged that in respect to the offences listed in subpara. 2, the prerequisites will be met in most cases.75 37 Finally, the European Union has the competence for approximating substantive criminal law only if necessary.76 This criterion is not found in art. 83 (1) TFEU, but rather in art. 67 (3) TFEU. On the one hand, it can be seen as correlating to the principle of subsidiarity (art. 5 (1) and (3) TEU)77 which demands that combating the respective crime would not be possible with the same effectiveness at the national level. On the other hand, the criterion is aimed at realising the objective of creating an area of freedom, security and justice. A measure of approximation therefore is only necessary if all other less onerous measures would be insufficient to achieve the objective of a high level of security. Also at the European level, criminal law is therefore only to be used as the ultima ratio.

3. Annex Competence (art. 83 (2) TFEU) 38

a) “Annex Character” of the Competence Provision. Art. 83 (2) TFEU contains a blanket clause granting competence for the minimum harmonisation of criminal law by means of directives. The approximation of domestic criminal laws must prove essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures. The aim of the harmonisation is to improve the effet utile of the respective Union policy. Criminal law is “used” as a mere enforcement mechanism. The measures based on art. 83 (2) TFEU shall be adopted in the same legislative procedure as the harmonisation measure in non-criminal matters, which is indicative of the “annex character” of the provision. Thus, by contrast to art. 83 (1) TFEU, the ordinary legislative procedure is inapplicable to several areas which leads to a restriction of the Parliament’s rights of participation.78 In the view of the BVerfG, the annex competence in art. 83 (2) TFEU brings forward a serious extension of EU competence in the field of criminal law by comparison to the situation before the Treaty of Lisbon.79 The BVerfG points out that the provision poses the risk of limitless application, which would strictly speaking prove incompatible with the principle of 72 The Dutch wording, for example, reads as follows: “Het betreft de volgende vormen van criminaliteit […]” which may be understood in a more restrictive sense; in the same vein Asp, Substantive Criminal Law, pp. 80 et seqq.; Kaifa-Gbandi, in: Asp/Ulväng (eds), pp. 42 et seq. 73 Correctly F. Zimmermann, Jura 2009, 844, 847. 74 Vedder/Heintschel von Heinegg-Kretschmer, art. III-271 EVV para. 4; see also De Hert/Wieczorek, NJECL 2 (2012), 394, 401 et seq. 75 BVerfG, Judgment of 30th June 2009, 2 BvE 2/08 et al. = BVerfGE 123, 267 = NJW 2009, 2267, 2288, para. 363, “Lissabon”: “the areas for which minimum rules may be established […] are typically areas of serious cross-border crime”. Cf also Esser, Eur. und Int. Strafrecht, § 2 para. 136. 76 For details, see Asp, EuCLR 1 (2011), 44, 45 et seqq.; De Bondt, EuCLR 4 (2014), 147, 149 et seqq.; Melander, EuCLR 3 (2013), 45, 58. 77 Grabitz/Hilf/Nettesheim-Vogel/Eisele, art. 83 AEUV para. 44. 78 For details, see Vedder/Heintschel von Heinegg-Kretschmer, art. III-2701 EVV para. 17. 79 BVerfG, Judgment of 30th June 2009, 2 BvE 2/08 et al. = BVerfGE 123, 267 = NJW 2009, 2267, 2288, para. 361, “Lissabon”; see also Ambos/Rackow, ZIS 4 (2009), 397, 403, who criticize the norm as posing a high potential risk for poorly legitimised criminal law harmonisation (“potentiell wohl breiteste[s] Einfallstor fu¨r unterlegitimierte Strafrechtsharmonisierung”); Weigend, ZStW 116 (2004), 275, 284 simi-

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conferral and the principle of democracy. Therefore, the BVerfG demands a narrow interpretation of art. 83 (2) TFEU. b) Legal Situation Prior to the Entry into Force of the Treaty of Lisbon. Before the 39 Treaty of Lisbon entered into force, it was a highly disputed issue whether the European Community could enact directives based on the TEC obliging the Member States to adopt criminal sanctions for certain violations of Community law or whether such approximation could only be achieved by framework decisions under the third pillar. The ECJ effectively pre-empted the reform of the Treaties by its strongly criticised and unconvincing case-law of 200580 and 200781. The Court did not consider any of the arguments brought forward against a Community competence for adopting criminal law (see § 6 paras 18 et seq.). Instead, it ruled in favour of an extensive interpretation of the TEC in the light of the effet utile principle. The Court affirmed – with certain restrictions82 – the existence of an (annex) competence for the harmonisation of criminal law by means of directives. Based on this case-law, already the European Community adopted several directives in criminal matters: – Directive on the protection of the environment through criminal law83 – Directive on ship-source pollution (and on the introduction of penalties for infringements)84 – Directive on providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals85 It must be noted that while establishing the competence for harmonisation on the 40 basis of the TEC, the ECJ was well aware of (then draft) art. 83 (2) TFEU. It was therefore foreseeable at this point that, even with continuing integration, an annex competence for approximation would be qualified by an essentiality requirement and also would only be acceptable for the Member States under the condition of an emergency brake. In this respect, art. 83 (2) TFEU has repealed the (criticised86) case-law.87

larly considers it as completely uncertain concerning its reach (“inhaltlich vo¨llig offene Akzessorieta¨tsklausel”); for a differing view, see Grabitz/Hilf/Nettesheim-Vogel/Eisele, art. 83 AEUV para. 73. 80 ECJ, Judgment of 13th September 2005, Case C-176/03 “Commission v. Council” ECR 2005, I-7879; for a differing view, see Ambos, Int. Strafrecht, § 11 para. 33; Braum, wistra 2006, 121 et seq.; Hefendehl, ZIS 1 (2006), 161 et seq.; Heger, JZ 2006, 307, 310 et seq.; Kaiafa-Gbandi, ZIS 1 (2006), 521, 523 et seq.; Pohl, ZIS 1 (2006), 213 et seq.; Sˇugmann Stubbs/Jager, KritV 2008, 57 et seq.; however, the judgment is welcomed by Bo¨se, GA 2006, 211 et seq.; Frenz/Wu¨bbenhorst, wistra 2009, 449, 450; Hecker, Eur. Strafrecht, § 8 paras 30 et seq.; Peers, EU Justice, pp. 771 et seq.; Suhr, ZEuS 2008, 45, 57 et seq. 81 ECJ, Judgment of 23rd October 2007, Case C-440/05 “ship-source pollution” ECR 2007, I-9097; see Eisele, JZ 2008, 251, 252 et seq.; Fromm, ZIS 3 (2008), 168; Satzger, KritV 2008, 17, 22 et seq.; Sˇugmann Stubbs/Jager, KritV 2008, 57, 59 et seq.; F. Zimmermann, NStZ 2008, 662 et seq. 82 In ECJ, Judgment of 23rd October 2007, Case C-440/05 “ship-source pollution” ECR 2007, I-9097, the Court held that prescriptions on the type and level of criminal penalties do not fall within the Community’s sphere of competence. 83 Directive 2008/99/EC, OJ (EU) 2008 No. L 328/28; see F. Zimmermann, ZRP 2009, 74 et seq. Instructive on the international provisions, see Ruhs, ZJS 2011, 13, 14 et seqq.; regarding the transposition of this directive into German law, see Heger, HRRS 2012, 211 et seqq. 84 For the amended Directive 2009/123/EC, see OJ (EU) 2009 No. L 280/52; for the old Directive 2005/ 35/EC, see OJ (EU) 2005 No. L 255/11. 85 Directive 2009/52/EC, OJ (EU) 2009 No. L 168/24; for the Commission’s proposal, which was adopted essentially unchanged, see F. Zimmermann, ZIS 4 (2009), 1, 8 et seq. 86 See Satzger, IntStr, 3rd edn, § 8 paras 31 et seq. 87 See also Asp, Substantive Criminal Law, p. 136; Heger, ZIS 4 (2009), 406, 413; Engelhart, in: Mu ¨ llerGugenberger (ed.), Wirtschaftsstrafrecht, § 6 para. 97; on the relationship between the ECJ case-law and the new competences for approximation, see also Mitsilegas, EU Criminal Law, pp. 108 et seq.

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General considerations of effet utile cannot justify approximation of criminal law beyond the scope of art. 83 (2) TFEU. 41

c) The Prerequisites of art. 83 (2) TFEU. The above-mentioned annex competence may be exercised in every area that has been subject to harmonisation measures by the EU.88 The wording of the provision therefore excludes approximation of criminal law at the same time as the (initial) approximation of non-criminal law provisions. Art. 83 (2) TFEU does not, however, contain any requirements concerning the extent of the pre-existing approximation. Therefore an excessive application of the provision cannot be ruled out.89 The application of the competence provision is limited by the fact that approximation must have proven to be “essential” to ensure the effective implementation of a Union policy.90 According to the German BVerfG, this means that only if it is demonstrably established that a serious deficit concerning enforcement actually exists and that it can only be remedied by the threat of a sanction, this exceptional constituent element exists and the annex competence for legislation in criminal law may be deemed conferred.91 Although this interpretation deserves approval,92 it remains to be proven whether the criterion of necessity will act as a material restriction on the application of art. 83 (2) TFEU. This would require the ECJ to abandon its previous case-law and to be prepared to examine closely and on a case-by-case basis whether there really is no alternative to approximating criminal law provisions. Meanwhile, the EU has made use of the criminal annex competence now provided for by primary law and has passed a directive on criminal sanctions for market abuse (market abuse directive93).94 In addition, a directive on the fight against fraud to the Union’s financial interests by means of criminal law (so-called PIF-directive95) was adopted on the basis of art. 83 (2) TFEU in July 2017. For quite some time this was highly debated, due to the fact that the Commission’s proposal96 had named art. 325 (4) TFEU97 as the legal basis. While the Council already in 2013 in its general approach relied on art. 83 (2) TFEU,98 the European Parliament now also spoke up for drawing on this article as the correct legal basis.99

4. Competence for Minimum Harmonisation 42

Minimum harmonisation means that the transposing acts must ensure a minimum level of criminalisation within the Member States. The Member States can still go beyond this regulation by criminalising further conduct or establishing harsher penalties. 88 For examples, see Vedder/Heintschel von Heinegg-Kretschmer, art. III-271 EVV para. 20; see also Schu¨tzendu¨bel, EU-Verordnungen in Blankettstrafgesetzen, pp. 39 et seqq. 89 For a critical view, see Vedder/Heintschel von Heinegg-Kretschmer, art. III-271 EVV para. 19; see also T. Walter, ZStW 117 (2005), 912, 929, demanding an already existing non-criminal prohibition at Union level. 90 On this Hecker, Eur. Strafrecht, § 8 para. 48; Meyer, EuR 2011, 169, 186 et seqq.; Safferling, Int. Strafrecht, § 10 paras 57 et seq.; Grabitz/Hilf/Nettesheim-Vogel/Eisele, art. 83 AEUV paras 82 et seqq. 91 BVerfG, Judgment of 30th June 2009, 2 BvE 2/08 et al. = BVerfGE 123, 267 = NJW 2009, 2267, 2288, para. 362, “Lissabon”. 92 See also Ambos/Rackow, ZIS 4 (2009), 397, 403; Suhr, ZEuS 2009, 687, 713; F. Zimmermann, Jura 2009, 844, 850. 93 Directive 2014/57/EU, OJ (EU) 2014 No. L 173/179. 94 For a critical view, see Schro ¨ der, HRRS 2013, 253. 95 Directive 2017/1371/EU, OJ (EU) 2017 No. L 198/29. 96 COM (2012) 363 final. 97 On art. 325 (4) TFEU, see § 6 paras 24 et seq. 98 Council Document No. 10729/13 of 10th June 2013. 99 Council Document No. 9024/14 of 29th April 2014; on the current status, see Council Document No. 5478/17 of 1st February 2017.

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Unfortunately, there is no competence in Union law for any approximation with the aim of decriminalisation.100 This imbalance continues to cultivate an alarming trend towards increased punitivity of criminal law all over Europe.101 In the first instance, minimum harmonisation concerns the elements of criminal 43 offences. In addition to the definition of essential terms102 (such as “terrorist organisation”), a description of conduct that in any case must be criminalised is outlined. Thus, art. 2 of the Council Framework Decision on combating corruption in the private sector stipulates:103 (1) Member States shall take the necessary measures to ensure that the following intentional conduct constitutes a criminal offence, when it is carried out in the course of business activities: (a) promising, offering or giving, directly or through an intermediary, to a person who in any capacity directs or works for a private-sector entity an undue advantage of any kind, for that person or for a third party, in order that that person should perform or refrain from performing any act, in breach of that person’s duties; […]. The framework decision does not exclude the establishment of additional national criminal provisions, which shows that minimum harmonisation generally leads to a growing body of criminal law.104 Furthermore, past measures on harmonisation of criminal law contain requirements 44 that refer to the general part: the obligation to criminalise the attempt of or the participation in a crime, or provisions on the criminal liability of legal persons. The difficulty with this selective approximation of general provisions in criminal law is that there are no consistent conceptions of “attempt” or “participation” at the European level. Therefore, Member States can implement such concepts only in light of their domestic understanding.105 For instance, it depends on the national legal order when an attempt begins or whether (and, if so, for how long and how) it is possible to abandon the attempt. Thus, the benefits that can be gained by such harmonisation measures do not go far beyond mere rhetorical symbolism.106 As regards the legal consequences, the provisions established on the basis of Union/ 45 Community law (provided they contain requirements for the sentence) demand that the Member States stipulate so-called “minimum-maximum penalties”.107 For example, the domestic criminal law provision must impose a maximum penalty of not less than three years’ imprisonment.108 At least for a while, the Council decision for a certain amount of penalty was based on a system which provided for four groups of minimum-maximum penalties depending on the severity of the offence (maximum penalty 1. not less than one to two years, 2. 100 Hefendehl, in: Schu ¨ nemann (ed.), A Programme for European Criminal Justice, pp. 457 et seq.; Heger, ZIS 4 (2009), 406, 415. 101 Satzger, ZIS 4 (2009), 691, 692; Schu ¨ nemann, ZIS 2 (2007), 528, 529 et seq. 102 Hecker, Eur. Strafrecht, § 11 para. 5. 103 Framework Decision 2003/568/JHA, OJ (EU) 2003 No. L 192/54. 104 For a critical view, see Hefendehl, in: Schu ¨ nemann (ed.), A Programme for European Criminal Justice, pp. 457 et seq. 105 Hecker, Eur. Strafrecht, § 11 para. 6. 106 See also Ambos, Int. Strafrecht, § 11 para. 11; Satzger, in: 4. Europa ¨ischer Juristentag 2008, p. 226; for a critical view on the restriction of approximation to the special part, see Peers, EU Justice, pp. 758, 797. 107 Hecker, Eur. Strafrecht, § 8 para. 38, § 11 para. 7. 108 See Grabitz/Hilf/Nettesheim-Vogel/Eisele, art. 83 AEUV paras 37 et seq.

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not less than two to five years, 3. not less than five to ten years, 4. not less than ten years).109 The Member States’ legal provisions on sentencing, however, are still very diverse. The impact of an envisaged maximum penalty on the sentence in a specific case is therefore not consistent. Without simultaneous harmonisation of the legal provisions on sentencing,110 the minimum-maximum penalties achieve mainly symbolic harmonisation.111 46 After the reform of the treaty, the European legislator continues to utilise the technique of minimum-maximum penalties. For example, art. 4 of Directive 2011/36/ EU on combatting trafficking in human beings as well as art. 3 et seqq. of Directive 2011/93/EU on combatting the sexual abuse of children contain requirements regarding minimum-maximum penalties. Furthermore, the Commission applied a novel approach in its 2012 proposal for a directive on the protection of the Union’s financial interests112: In addition to minimum-maximum penalties (which concern the upper limit of possible sentences), it provided for the first time for a real minimum penalty of six months imprisonment for specified severe cases. Hence, also regarding the lower limits of sentences such a directive would prescribe a minimum that may not be fallen below. The wording of art. 83 (1) TFEU would not contradict this approach, as the respective requirements would still constitute “minimum rules” in the sense of this article113 – the Member States would still be free to impose higher minimum and maximum penalties.114 The harmonising effect achievable this way would naturally be a lot higher compared to the limitation on minimum-maximum penalties adhered to so far. However, such a requirement poses massive problems for Member States whose legal orders are not familiar with or even explicitly reject minimum penalties.115 According to the final version of the PIF directive, adopted on 5th July 2017, no minimum penalties in the proper sense have been introduced.116 The issue demonstrates that the highest possible diligence is required of the Union legislator when harmonising the legal consequences of offences (regarding the so-called principle of coherence, see also para. 56).

5. The “Emergency Brake” (art. 83 (3) TFEU) 47

a) General Idea and Procedure. While it seems doubtful that the legal prerequisites provided in art. 83 (1) and (2) TFEU will effectively limit the EU competence to harmonise domestic substantive criminal law, the so-called emergency brake117 laid down in art. 83 (3) TFEU appears capable of preventing an excessive use of the competences.118 Pursuant to art. 83 (3) TFEU, a Member State has the right to veto 109 See Council conclusions of 24th/25th April 2002 on the approach to apply regarding approximation of penalties, Council Document No. 9141/02 of 27th May 2002; on the background to this system, see also ¨ AnwBl. 2008, 249, 254. Zeder, O 110 The Framework Decision 2008/675/JHA on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings (OJ (EU) 2008 No. L 220/32) is, to some extent, a step in this direction. 111 See Fletcher/Lo ¨ o¨f/Gilmore, EU Criminal Law, pp. 203 et seq.; Satzger, in: 4. Europa¨ischer Juristentag 2008, pp. 226 et seq. 112 COM (2012) 363 final, see para. 41. 113 Seemingly in agreement Grabitz/Hilf/Nettesheim-Vogel/Eisele, art. 83 AEUV para. 38. 114 Cf De Bondt, EuCLR 4 (2014), 147, 160 et seqq.; Streinz-Satzger, art. 83 AEUV para. 33. 115 Streinz-Satzger, art. 83 AEUV para. 33. 116 Directive 2017/1371/EU, OJ (EU) 2017 No. L 138/29. 117 For the term, see Folz, ZIS 4 (2009), 427, 429; Schu ¨ nemann, ZIS 2 (2007), 535, 536; Sieber, ZStW 121 (2009), 1, 56; T. Walter, ZStW 117 (2005), 912, 923. 118 Klip, European Criminal Law, pp. 38 et seq.; Mitsilegas, EU Criminal Law, p. 43 considers art. 83 (3) TFEU a “primarily political mechanism”; see also Peers, EU Justice, pp. 65 et seqq.

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any draft directive affecting fundamental aspects of its criminal justice system. This “typical [political] compromise”119 provides an exception to the usual majority principle. A Member State may request that the draft directive be referred to the European Council. In this case, the ordinary legislative procedure is suspended. If the problem can be resolved in the European Council, the procedure will be resumed. Otherwise, the draft directive will not enter into force. The other Member States may, however, choose to establish enhanced cooperation pursuant to art. 83 (3) TFEU and enact the draft among themselves (art. 20 et seq. TEU and art. 326 et seq. TFEU). b) Fundamental Aspects of the Criminal Justice System. However, it is not entirely 48 clear what exactly the term fundamental aspects of the criminal justice system refers to and whether the ECJ would have the jurisdiction to rule on the admissibility of pulling the “emergency brake”. The answers to these questions depend entirely on whether the provision is interpreted from the perspective of a Member State or of the European Union. Since the provision is part of the European Treaties, one might be tempted to favour an exclusively European standard as its interpretation falls within the jurisdiction of the ECJ, according to art. 267 (1) (a) TFEU. However, the specific purpose of the provision is to safeguard the national identities of the Member States and to protect their criminal justice systems. Consequently, a certain margin of appreciation must be left to the Member States and be exempt from the jurisdiction of the ECJ. This margin of appreciation, however, is exceeded if a Member State pursues goals evidently not connected to the integrity of its domestic criminal law system. Otherwise, a Member State could paralyse European legislation by such a (mis-)use of the “emergency brake”, which would be inconsistent with the established principle of majority. Apart from actual fundamental aspects, a Member State’s domestic legal system is not accorded any special protection under art. 83 (3) TFEU.120 Although the Member States enjoy a margin of appreciation in their definition of “fundamental aspects”, the ECJ remains competent to rule on whether or not the “emergency brake” has been abused. Interpreting the term “fundamental aspects” from the perspective of a Member State 49 begs the question as to which principles of domestic criminal law are covered. In its decision on the Lisbon Treaty, the German BVerfG, for example, stressed that the principle of guilt forms part of the constitutional identity, which, according to art. 79 (3) GG, is inalienable and is also protected against encroachment by supranational public authority.121 In addition to that, from a German perspective, such disputes might be caused by a draft directive introducing criminal responsibility of legal persons122 or abandoning the distinction between principal offenders and accessories or accomplices to a crime. From a Swedish perspective, freedom of press is mentioned as an example for areas where the “emergency brake” might be activated.123 It must, however, be noted that potential disputes concerning the scope of this term could be avoided or at least mitigated if the European Union itself started to apply certain principles of criminal policy124: the more the EU follows certain standards 119

According to Suhr, ZEuS 2009, 687, 708. Asp, Substantive Criminal Law, p. 140; Heger, ZIS 4 (2009), 406, 415; Safferling, Int. Strafrecht, § 10 para. 64; F. Zimmermann, Jura 2009, 844, 848. 121 BVerfG, Judgment of 30th June 2009, 2 BvE 2/08 et al. = BVerfGE 123, 267 = NJW 2009, 2267, 2289, para. 364, “Lissabon”. Similarly BVerfG, Decision of 15th December 2016, 2 BvR 2735/14, 48 et seq. (guilt principle in criminal law as part of “human dignity”). 122 For details, see Ransiek, EuCLR 5 (2015), 337; Selvaggi, EuCLR 4 (2014), 46. 123 See Asp, Substantive Criminal Law, p. 140. 124 Cf Satzger, ZIS 4 (2009), 691 et seq. with reference to ECPI, “A Manifesto on European Criminal Policy”, ZIS 4 (2009), 697 et seq.; also cf ECPI, “The Manifesto on European Criminal Policy in 2011”, EuCLR 1 (2011), 86 et seq. 120

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generally accepted among the Member States, the less its legislative acts will differ from fundamental national requirements.

6. Other Approximation Competences 50

a) Competence Provisions. According to a debated, but accurate view, harmonisation may be achieved not only by recourse to the general criminal harmonisation competences provided for by art. 83 TFEU, but also may be based on norms which (however only in accordance with the limitations of the exercise of competences drawn by the principles of subsidiarity and proportionality) in principle permit the enactment of supranational criminal law (see § 6 paras 24 et seqq.). Examples of such norms include especially art. 325 (4) TFEU for combatting fraud and art. 33 TFEU regarding the protection of customs. This may be justified by the fact that the Union’s competences provided for by those provisions are not limited to the passing of regulations. Instead, reference is generally only made to “measures”. These also include directives and thus the typical form of legal acts utilised for harmonising national criminal law provisions.125 If the legal basis enshrined in primary law does, however, permit the Union to create directly applicable criminal law in certain areas, it must be a fortiori possible to instruct the Member States to harmonise their criminal law provisions. In consequence, particularly art. 325 (4) TFEU and art. 33 TFEU are to be conceived as autonomous competences for harmonisation in the areas of combatting fraud and protecting customs. Directive proposal COM (2012) 363 on the fight against fraud to the Union’s financial interests was therefore at its core126 correctly based on art. 325 (4) TFEU.127 A differing opinion128, however, maintains that it results from the system of the TFEU that measures for harmonisation of criminal law provisions may only be based on art. 83 TFEU. Otherwise it is feared that the special prerequisites for the exercise of competences contained in art. 83 TFEU would be undermined. This approach would be feasible if art. 83 TFEU was lex specialis for criminal harmonisation in relation to the other legal bases in the treaty. Such a generalised approach, however, may not be taken lightly. Rather, one must clearly differentiate between the individual sections of art. 83 TFEU: – Art. 83 (1) TFEU lays down special prerequisites and procedures for legislative alignment in particular areas of crime. For these listed areas, the provision is therefore a special and conclusive one. Hence, even if one supports the view taken here that art. 79 (2) (d) TFEU provides for a criminal competence to combat trafficking in persons (see § 6 para. 26), this may not imply a circumvention of the special pre125 Coming to the same conclusion and with further references Ambos, Int. Strafrecht, § 11 para. 10; Gru¨newald, JZ 2011, 972, 973 et seq.; Hecker, Eur. Strafrecht, § 14 para. 53; Safferling, Int. Strafrecht, § 10 para. 41; Vogel, in: Ambos (ed.), Europa¨isches Strafrecht post-Lissabon, 41, 48 (who, however, would like to exclude regulations). 126 The proposal does however also contain provisions on the sanctioning of money laundering, corruption and misappropriation of funds or assets of the EU. Insofar, it does not concern acts that are deceptive at their core and thus “fraudulent”. In consequence, art. 325 (4) TFEU is inapplicable in this regard (see § 6 para. 25). 127 According to the current progress of negotiations, however, the directive is to be based on art. 83 (2) TFEU. See on this para. 41. 128 In detail and with further arguments for both sides Asp, Substantive Criminal Law, pp. 147 et seqq.; also Bo¨se, ZIS 5 (2010), 76, 87 who draws attention to the fact that the BVerfG does not refer to art. 325 (4) TFEU as a legal basis for criminal law in its Lisbon-Judgment (to these ends also Schuster, Das Verha¨ltnis von Strafnormen und Bezugsnormen aus anderen Rechtsgebieten, Berlin 2012, pp. 316 et seq.). One must however note that the BVerfG is not competent to interpret the TFEU and may only control whether the sovereign rights transferred pursuant to art. 23 (1) GG have been transgressed.

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requisites detailed in art. 83 (1) TFEU that provides for specifically criminal harmonisation competences and explicitly addresses trafficking in human beings. In this area, art. 83 (1) TFEU is therefore the more specific provision for criminal harmonisation. – Art. 83 (2) TFEU, on the other hand, is a general annex-competence referring to all policy areas of the TFEU, which have already been subject to other harmonisation measures. This provision is lex specialis in relation to all those provisions of the TFEU that provide for competences without explicitly making any reference to the admissibility of criminal measures specifically (see the examples in § 6 para. 19). Insofar the approximation of substantive criminal law provisions is only possible in accordance with the (more narrow) prerequisites of art. 83 (2) TFEU (“essential”, previous harmonisation measures, “emergency brake”). The legislative procedure to be followed insofar does not differ from the legislative procedure to be followed for the adoption of non-criminal harmonisation measures in the respective area anyway due to the accessory character of art. 83 (2) TFEU also in this regard. The general annexcompetence of art. 83 (2) TFEU may, however, not take precedence over the few provisions in the treaty that sufficiently clearly indicate that criminal law measures may be taken in a distinctly confined area outside of the scope of art. 83 TFEU.129 b) Does the “Emergency Brake” Apply? Nevertheless, in light of these findings 51 regarding the Union’s competences, the question arises whether the emergency brake laid down in art. 83 (3) TFEU should also be applicable to these other competences for approximation. Art. 83 (3) TFEU – in general – needs to be interpreted narrowly due to its role as an exception. In determining whether art. 83 (3) TFEU should apply to other criminal law competences found in the TFEU, it would be expedient to distinguish between direct EU legislation through regulations on the one hand and approximation of the Member States’ legal systems through directives on the other. It is submitted that the “emergency brake” is inapplicable to the adoption of 52 supranational criminal law. One might argue that “fundamental aspects of a criminal justice system” are more severely affected in this case than in case of a mere approximation because such legislation would establish a European criminal justice system parallel to the existing systems within the Member States.130 However, national interests are not concerned with comparable intensity: creating supranational criminal law has an entirely different effect compared to the harmonisation of domestic criminal law. While the adoption of supranational criminal law might lead to inconsistencies with domestic criminal law (e. g. in the general part of criminal law), this is simply the logical consequence of the parallel existence of autonomous legal systems. At least from a formalistic perspective, the domestic legal system stays intact. For this reason, national interests aiming at the protection of the integrity and coherence of the domestic criminal law system are not affected in the same way as they would be if a harmonising directive obliged the national legislators to change domestic criminal law pursuant to EU requirements. Consequently, where directives are concerned, art. 83 (3) TFEU should also apply (by 53 analogy) to the criminal law competences found in art. 33 and 325 (4) TFEU.131 Directives based on these provisions would force national legislators to adapt the 129 See para. 52 – regarding the analogous application of art. 83 (3) TFEU – on the notion that the discussion is a lot less pertinent than it may seem at first glance. 130 See in this regard on the Treaty establishing a Constitution for Europe, T. Walter, ZStW 117 (2005), 912, 924. 131 For a differing view, see Vogel, in: Ambos (ed.), Europa ¨isches Strafrecht post-Lissabon, 41, 49, who draws attention to the Member States’ duty of cooperation; see also Sicurella, in: Klip (ed.), Substantive Criminal Law, 233, 238.

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domestic criminal law accordingly. They thus would have the same effect as approximation pursuant to art. 83 TFEU, except that they lack an “emergency brake” provision. One may, of course, wonder whether the Member States really left an unintended lacuna when they reformed the Treaties. This seems dubious, especially with regard to art. 325 (4) TFEU where – by way of analogy – the aim of protecting the financial interests of the EU as effectively as possible seems to weigh against the introduction of veto rights for Member States. According to the author’s view, the “emergency brake” would, however, not apply to supranational criminal law that is created by regulations. Only directives are able to encroach upon a Member State’s margin of appreciation which each Member State enjoys in drafting its domestic law and may affect fundamental aspects of its criminal justice system in the same way as directives pursuant to art. 83 (3) TFEU. Consequently, the “emergency brake” found in art. 83 (3) TFEU also applies to harmonising directives, which for instance are based on art. 325 (4) and 33 TFEU. In accordance with the view presented here, the controversial question regarding the lex specialis character of art. 83 (2) TFEU in relation to the other treaty provisions gets put into perspective (see para. 51). In any case, the “emergency brake” applies by analogy.

7. Excursus: A Concept for a European Criminal Policy 54

a) Background. For quite a while, acts of the European legislator have been influencing criminal law in the Member States of the European Union. Thus, the European Union in fact pursues criminal policy, even though it is not officially acknowledged as a proper policy area of the Union. The influence on criminal policy was strengthened further due to the Treaty of Lisbon: it established for the first time – albeit only in some isolated cases – the competence to enact supranational criminal offences; the annex competence in art. 83 (2) TFEU furthermore creates a danger for criminal law to be misused as a mere instrument to promote the objectives of the Treaty.132 Activity by the European Union in the field of criminal law is often triggered by events in day-to-day politics, with clear guidelines regarding criminal policy being barely recognisable. The individual legislative acts in the context of criminal law do not always follow the same concepts and the necessary implementation measures on the national level tend to cause frictions within the traditional, more or less coherent criminal law systems of the Member States. Against this background, the necessity of basic principles of criminal policy to serve as guidelines for the European legislator becomes increasingly clear. For that reason, a group of European penologists came together in 2008 to form the “European Criminal Policy Initiative (ECPI)”133 and published a first “Manifesto on European Criminal Policy” in 2009. In this Manifesto, basic principles of criminal policy for substantive law were formulated, which are all rooted in European law (regarding the second Manifesto of the ECPI, which addresses procedural law, see § 8 para. 101). Meanwhile, the problems caused by insufficiently reasoned criminal policy have also been recognised at the European Union level: The Council has – in particular in its Stockholm Programme – called for the proportionate application of criminal law.134 Former 132 Regarding this criticism, see Kaiafa-Gbandi, ZIS 1 (2006), 521, 524; Satzger, in: 4. Europa ¨ischer Juristentag 2008, pp. 207, 216; concerning the experiences with the European legislation, see the analyses in Part II of the “Manifesto on European Criminal Policy”, ZIS 4 (2009), 697, 699 et seq., and introduction by Satzger, ZIS (4) 2009, 691 et seq.; as well as – referring to the situation in 2011 – ECPI, “The Manifesto on European Criminal Policy in 2011”, EuCLR 1 (2011), 86, 99 et seqq. 133 ECPI, ZIS 4 (2009), 695, 697 et seq., with introduction by Satzger, ZIS 4 (2009), 691 et seq.; see also in this context F.C. Schroeder, FAZ of 5th March 2010, p. 10 and http://crimpol.eu (last visited July 2017). 134 Council Document No. 17024/09 of 2nd December 2009, p. 29.

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European Commissioner of Justice Viviane Reding has repeatedly pleaded for a coherent and principled criminal policy concept.135 Meanwhile, EU institutions – the Council136, the Commission137 and the Parliament138 – have also addressed the topic and have passed concurring statements that in part make explicit reference to the ECPI’s Manifesto. b) The Specific Principles for a European Criminal Policy. The criminal policy 55 guidelines elaborated by the European Criminal Policy Initiative propose the following fundamental principles of European Law as minimum requirements to be observed in the harmonisation of national criminal law:139 – The requirement of a Legitimate Purpose: This principle is an element of the (European) principle of proportionality. According to this principle, criminal provisions may only be introduced in order to protect a fundamental interest of the Union based in primary EU law, which is compatible with both the Constitutions of the Member States and the EU Charter of Fundamental Rights and whose violation bears the risk of considerable harm to individuals or to society as a whole. – The ultima ratio Principle: Criminal Law, as the most severe kind of governmental sanction, may only be employed if less restrictive means are not available or ineffective. This is another consequence of the European principle of proportionality. – The principle of Guilt (mens rea): This requirement can be derived from the inviolability of human dignity. It prohibits the imposition of penalties without individual guilt and additionally demands that penalties must correspond to the guilt of the offender. – The principle of Legality: This principle imposes several obligations on the European legislator. Firstly, the individual shall be able to foresee which conduct entails criminal liability. Therefore, criminal offences must be defined clearly and unambiguously. Secondly, criminal law must not be applied retroactively. This rule is only suspended where the retroactive effect favours the offender (see now art. 49 (1) 3 CFR). Thirdly, the principle of democracy demands a high level of democratic legitimation, due to the character of criminal law as one of the most invasive state measures. This means that the participation of the European Parliament in the legislative process must be strengthened. The extension of the “ordinary legislative procedure” (cf art. 294 TFEU) – the former co-decision procedure – by the Treaty of Lisbon, in this regard – constitutes a first step into the right direction. – The principle of Subsidiarity: According to art. 5 (3) TEU, the EU legislator may take action only on the condition that the goal pursued cannot be sufficiently achieved by measures taken at national level, yet can be better achieved at the European level due to the scale or effects of the proposed action. Accordingly, as far as the Member States are able to handle a certain problem on their own, national criminal policy should take precedence over action by the European legislator. Moreover, since criminal law is both an expression and a defining element of a 135 E. g. Reding, EuCLR 1 (2011), 5 et seq. and speech at the European Law Academy Trier of 12th March 2010, available under http://ec.europa.eu/commission_2010-2014/reding/multimedia/speeches/in dex_en.htm (last visited July 2017). 136 Council Document No. 16542/09 of 27th November 2009. 137 COM (2011) 573 final; cf also Reding, EuCLR 1 (2011), 5 et seq. 138 Resolution P7_TA(2012)0208, available under http://www.europarl.europa.eu (last visited July 2017). 139 The elaborated principles can only be outlined here. For a detailed illustration, see “A Manifesto on European Criminal Policy”, ZIS 4 (2009), 695, 697 et seqq.; as well as – referring to the situation in 2011 – ECPI, “The Manifesto on European Criminal Policy in 2011”, EuCLR 1 (2011), 86 et seqq.

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system of values, it is as such a component part of the “national identities” of the Member States and thus enjoys special protection under art. 4 (2) TEU. Action on the part of the Union will thus only be permissible after its necessity has been thoroughly scrutinised. – The principle of Coherence: The character of criminal sanctions, being especially severe interferences with the liberty of the individual, creates the necessity for coherence in any criminal law system – not only on the European level. The legislator determines the range of offences and the severity of punishment by reference to the abstract values that are held to be important by society. It thereby assures social acceptance of the criminal system as a whole. The European legislator therefore must be especially careful to shape its legislation in a way, which avoids upsetting this delicate inherent balance of the national criminal law systems (vertical coherence). Simultaneously, however, it must pay regard to the framework provided by different preceding EU-instruments in order to keep European legislation as internally coherent as possible (horizontal coherence).

IV. References to European Law in Domestic Criminal Law Provisions

Case 4

56

§ X of a fictional German statute states: “Whosoever contravenes the labelling requirement pursuant to art. 1 EU-Regulation No. Z/2011 (OJ of 15th December, 2011) shall be liable to (range of penalties)…”. On 10th May, 2012, A commits a criminal offence under § X of this statute. On 1st June, 2012, EU-Regulation No. Z/ 2011 is replaced by EU-Regulation No. Y/2012, whose labelling requirement is identical in content. The German legislator adapts the reference in § X of the statute as quickly as possible. However, due to the necessary legislative procedure, the amended § X cannot enter into force until 2nd June, 2012. Does this delay influence A’s liability to criminal prosecution? (see paras 72 et seq.)

1. Introduction 57

The “Europeanisation” of criminal law finds its most visible expression in the case where domestic criminal law itself expressly stipulates the violation of a requirement or prohibition of European law as a criminal offence. Such references are necessary because, as has been shown above, the competences for substantive European law and the competence to enact criminal law do not necessarily go hand in hand. In cases where the EU does not possess the competence to enact (supranational) criminal law, violations of European law can only be punished on the basis of national law. Consequently, European and national legislators must co-operate where criminal law is considered necessary to enforce the European provision. The nature of this cooperation will depend on whether the European rule is found in a directive or in a regulation.

58

a) Rules in Directives. A European rule found in a directive (art. 288 (3) TFEU) does not pose a problem for national legislators because they have to transpose the European rule into domestic law in order for it to become legally binding on individual citizens. A directive defining a criminal offence will never be directly applicable, because directives

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can only have direct effect in favour of an individual but not against him or her.140 If a rule found in European law (primary norm) has to be transposed to domestic law, a violation of the said rule can easily be punished under domestic law (secondary norm) as well. Example: A directive requires the Member States to ensure that from a certain point in time a certain food additive will be prohibited. This means that first a Member State must include this prohibition into its law on foodstuffs. The national legislators may then – as with strictly domestic prohibitions – enact a criminal statute which penalises violations against this respective (domestic) prohibition. b) Rules in Regulations. If such a rule is found in a regulation (art. 288 (2) TFEU), 59 the procedure is significantly more complicated. A conceivable solution would be to enact a domestic law restating the regulation word by word and to punish any violation of this prohibition by a domestic criminal law. Such a procedure, however, is impossible due to European law: it is not only unnecessary to reiterate the directly applicable European provisions but actually not even permissible. The ECJ has found that Member States are under an obligation not to introduce any measure which might conceal the European nature of a legal rule because this would jeopardise the consistent interpretation and application of the regulation within the Union.141 Whilst the national legislators have to refrain from passing a domestic (primary) norm, the only remaining alternative is to base the domestic criminal norm solely on the European (primary) norm. Legislators therefore use blanket criminal laws, which refer to an EU regulation.

2. Problems Arising from the Use of Blanket Criminal Laws Referring to EU Regulations In order to clarify the constitutional problems arising from the use of blanket 60 criminal laws the following – fictional – case shall be adduced: § Z of a national Criminal Code: “Whosoever intentionally violates art. X of regulation (EU) Y/9999, shall be punished by imprisonment of no less than 3 years.” This provision would be referred to as a blanket criminal law because the threat of 61 punishment is entirely contained in this same provision, the elements of the offence are, however, to be found (in this case even entirely) in a different provision (VO (EU) Nr. Y/9999).142 a) Effect of Blanket References and Issues Concerning their Interpretation. Fic- 62 tional § Z National Criminal Code is thus a provision of national law. It refers to a EU regulation which is directly applicable in all Member States. The determination of what 140 This is a case of reverse vertical direct effect; see ECJ, Judgment of 3rd May 2005, Joined Cases C387/02, C-391/02 and C-403/02 “Berlusconi” ECR 2005, I-3565; Calliess/Ruffert-Ruffert, art. 288 AEUV para. 57; Ro¨nnau/Wegner, GA 2013, 561, 567; Streinz-Schroeder, art. 288 AEUV para. 115. 141 Cf ECJ, Judgment of 10th October 1973, Case C-34/73 “Variola” ECR 1973, 981 paras 9 et seq.; see Advocate General Capotorti, Opinion of 15th December 1976, Case C-50/76 “Amsterdam Bulb” ECR 1977, 152; Satzger, Europa¨isierung, p. 199; Streinz-Schroeder, art. 288 AEUV para. 58. 142 On the definition of blanket criminal laws that are conceived as a subcategory of references, cf Moll, Nationale Blankettstrafgesetzgebung, pp. 46 et seqq.; Tiedemann, Wirtschaftsstrafrecht AT, paras 197 et seqq.

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constitutes a criminal offence is consequently to be found in § Z National Criminal Code and art. X of the EU regulation read together.

The reference has the effect that a repetition of the wording of the referenced provision becomes unnecessary. From a formal perspective, the referenced provision is incorporated into the referencing provision and thereby made part of it.143 Within the scope of application of the referencing provision, the European prohibition (or obligation) in the regulation is applicable due to the domestic referring provision (in the case at hand § Z National Criminal Code). It thus becomes an integral part of the domestic criminal law provision. Whilst the European prohibition (or obligation) – in the case at hand: art. X of regulation (EU) Y/9999) – is embedded in a provision of domestic law from a formal perspective, the rule itself substantially retains its European law character. Consequently, the interpretation of the referenced provision must be conducted in accordance with the standards of European law. Otherwise, the rule would be interpreted differently depending on whether or not it was applied within the (domestic) criminal law or the European context. This is not a consequence of the principle of the “unity of the legal order”, precisely because the provisions (§ Z and art. X) stem from different legal orders.144 Instead, a similar interpretation is required due to the fact that by passing the law containing the reference, the national legislator intended to punish conduct that violates the rule found in the European regulation. If the referenced provision were to be interpreted differently, the reference would have failed to capture the provision it aimed at. Rather, due to the lack of a corresponding provision in EU law, the domestic criminal law would relate to an unwritten primary norm of a merely domestic nature. This undesirable consequence may be depicted as follows:

143 So-called “theory of incorporation”, cf for domestic law only BVerfG, Decision of 15th July 1969, 2 BvF 1/64 = BVerfGE 26, 338, 368; BVerfG, Decision of 1st March 1978, 1 BvR 786/70, 1 BvR 793/70, 1 BvR 168/71, 1 BvR 95/73 = BVerfGE 47, 285, 309 et seq. = NJW 1978, 1475, 1476 et seq.; Karpen, Verweisung als Mittel der Gesetzgebungstechnik, pp. 30 et seq. 144 The Union forms an autonomous legal order, cf ECJ, Judgment of 15th July 1964, Case C-6/64 “Costa ./. ENEL” ECR 1964, 1251 paras 8 et seq.; BVerfG, Decision of 18th October 1967, 1 BvR 248/63, 1 BvR 216/67 = BVerfGE 22, 293, 296.

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If, depending on the context of its application, the rule found in the regulation were 63 to be interpreted differently, the result would be a fragmentation of the applicable law. Such an approach would not be permissible under art. 4 (3) TFEU and under the principle of supremacy of EU law. For these reasons, the referenced provision found in European law in substance remains European law.145 This has significant consequences for the interpretation of the provision. If the referenced provision remains part of European law, the respective standards for interpretation apply.146 This entails that the regulation’s wording must be considered in all (24!) official languages of the EU.147 Secondly, the interpretation has to be conducted with reference to European interpretation standards. Among these, the principle of effet utile (practical effectiveness) is eminently important. This principle accords preference to the interpretation that is most capable of promoting the purpose of a provision.148 b) Blanket Laws and the lex certa Requirement. Since the blanket law including the 64 incorporated referenced provision remains – at least from a formal perspective – a provision of domestic criminal law, it has to meet the national constitutional requirements. In particular, the principle of definiteness (lex certa), which is found for example in art. 103 (2) GG, but also in basically all other European constitutions and also the ECHR, has to be observed.149 The following explanations will be based on the lex certa requirement according to art. 103 (2) GG but may be transferred – more or less – to comparable provisions in other legal systems. aa) General Requirements. The principle of definiteness requires that legal texts be 65 phrased so clearly and precisely that citizens are able to understand what they have to do in order to avoid criminal liability. Furthermore, it imposes the duty on the legislature to itself elaborate the prerequisites of a criminal offence; the legislature must not delegate 145

In detail Satzger, Europa¨isierung, pp. 230 et seq. Cf Advocate General Capotorti, Opinion of 15th December 1976, Case 50/76 “Amsterdam Bulb” ECR 1977, 152. 147 Cf ECJ, Judgment of 17th October 1996, Case C-64/95 “Konservenfabrik Lubella Friedrich Bueker GmbH & Co KG ./. Hauptzollamt Cottbus” ECR 1996, I-5105, para. 17. 148 Streinz, Europarecht, para. 625. 149 Cf Moll, Nationale Blankettstrafgesetzgebung, pp. 61 et seq., 75 et seq.; for more details on possible violations of the lex certa requirement, cf Bo¨se, Strafen und Sanktionen, p. 436; Satzger, Europa¨isierung, p. 238; see also Safferling, Int. Strafrecht, § 11 paras 61 et seqq. 146

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this obligation to the executive or the judicial branch.150 However, since legislators cannot foresee every possible punishable behaviour in full detail, they may generalise the wording used for the elements of an offence. The threshold for determining whether the wording of a particular criminal statute is sufficiently clear may not therefore be based on the individual concerned in a particular case, but rather depends on a “reasonable citizen”.151 Such a “reasonable citizen” does not only have to understand the words but – in a second step – must be able to conceive what the law requires him or her to do (or not to do). Depending on the particular field of law, this may not require particular intellectual efforts – especially in cases where the wording is relatively exact and close to colloquial language (e. g. “destroy”, “injure”). In other cases, determining the precise extent of legally permitted conduct may amount to an almost impossible task for the “reasonable citizen”, especially if references, comprehensive clauses and technical terms are used. In Germany, this is especially the case with so-called “supplementary” penal provisions (Nebenstrafrecht), which are not found in the Criminal Code but in other statutes governing a particular field of law (tax law, food law, etc.). However, one has to bear in mind that complex criminal law provisions often only apply to a group of professionals (e. g. criminal law provisions in food or wine law). Their expert knowledge also plays a major role in determining whether a criminal statute is too complex or still sufficiently precise. If an offender belongs to such a group of professionals to which a criminal statute is addressed, he can be expected to dedicate more than average effort to conceiving the scope of (il-)legal conduct.152 However, this does not mean that the knowledge of the “old hands” in a business may set the standard for the less experienced majority. Inexperienced and even potential members of such an occupational group must also be capable of determining what the law requires them to do. 66 These principles only need minor adjustments when it comes to the issue of blanket criminal laws. With regard to their definiteness, the German BVerfG has pointed out that the blanket criminal law provision as well as the referenced provision must be phrased in a sufficiently clear manner.153 This, in fact, goes without saying, since both provisions nevertheless have to be read together to constitute the whole criminal offence. It is, however, also a matter of definiteness that the provision referred to by the blanket criminal is clearly identifiable.154 Those who are subject to the provision must be able to identify the other provisions and content referred to without any specialised knowledge. 67

bb) References to European Law. Since the referenced provision remains one of European law despite its incorporation into a domestic criminal law provision and thus is subject to the European standards of interpretation, the task of determining the applicable law becomes more complex for the judge and those subject to the criminal law because all official languages of the EU must be considered.155 This daunting task, 150 Established case-law of the German BVerfG, e. g. BVerfG, Decision of 26th February 1969, 2 BvL 15, 23/68 = BVerfGE 25, 269, 285; BVerfG, Decision of 6th May 1987, 2 BvL 11/85 = BVerfGE 75, 329, 340 et seq.; BVerfG, Decision of 21st September 2016, 2 BvL 1/15, 36 et seqq. 151 Cf BVerfG, Decision of 22nd June 1988, 2 BvR 234/87, 2 BvR 1154/86 = BVerfGE 78, 374, 389. 152 See also BVerfG, Decision of 15th March 1978, 2 BvR 927/76 = BVerfGE 48, 48, 57; BVerfG, Decision of 6th May 1987, 2 BvL 11/85 = BVerfGE 75, 329, 345; BVerfG, Decision of 29th April 2010, 2 BvR 871/04 = wistra 2010, 396, 402, para. 55; cf also Satzger/Langheld, HRRS 2011, 460, 464. 153 BVerfG, Decision of 7th May 1968, 2 BvR 702/65 = BVerfGE 23, 265, 270; see also Baumann/Weber/ Mitsch, AT, § 9 para. 28. 154 BVerfG, Decision of 15th March 1978, 2 BvR 927/76 = BVerfGE 48, 48, 55; BVerfG, Decision of 29th April 2010, 2 BvR 871/04 = wistra 2010, 396, 402, para. 56; cf also SSW-StGB-Satzger, § 1 para. 54. 155 ECJ, Judgment of 6th October 1982, Case C-283/81 “CILFIT” ECR 1983, 3415, para. 18; for details, see Langheld, EuCLR 6 (2016), 39 et seqq.; id., Vielsprachige Normenverbindlichkeit im Europa¨ischen Strafrecht.

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however, seems nearly impossible even for the criminal judge, let alone the normal citizen. In general, he or she will not be able to draw the necessary comparison due to a lack of proficiency in all of the official languages. Thus, every sensible citizen must be aware of the fact that the prerequisites that can be identified in the language versions of the legal act he or she is able to understand may not be the actually relevant ones that would result from a correct interpretation of the provision in consideration of all official languages. This structurally preset uncertainty regarding the provisions’ content is not altered by the possibility that in many cases the wanted interpretation of the norm in consideration of all official EU-languages will come to the same conclusion as the citizen subject to the provision might be able to asses from his or her mother tongue and perhaps any additional languages he or she understands. In this case, the individual’s assumption regarding the provision’s content was indeed correct. The principle of legal certainty, however, demands that any sensible ordinary citizen and not only a polyglot one may actually foresee and not only guess what conduct is prohibited.156 For this reason, and quite unlike a rather questionable decision of the German BVerfG might indicate,157 the necessity to consider all official languages when interpreting the European provision a national law makes reference to poses a structural problem of blanket criminal laws referencing Union law.158 Another aggravating fact renders it even more complicated to effectively determine 68 the applicable law and therewith to reach legally sound decisions: the reference does not remain within a single legal system but points to another, autonomous legal order. This means that those subject to or applying the law need to consult various official journals and deal with legislative acts and regulatory methods, which do not conform to domestic standards. However, one has to bear in mind that the European legal order itself already applies to all European citizens within the particular national legal order of an EU Member State. For this reason, the determination of the applicable law is not seriously hampered if the blanket criminal law refers to a particular version of a particular provision (static reference159). For instance, this would be the case if the blanket law itself names the exact citation in the Official Journal of the European Union. But blanket criminal laws commonly refer to an EU regulation “as amended from time to time” (dynamic reference). In these cases, an exact reference to the Official Journal is not possible. If the organs of the EU amend the regulation, they simultaneously change the referenced provision of the domestic blanket criminal law. The blanket criminal law does not need to be changed and does not indicate in any way that there has been a change in the referenced provision. This regulatory policy is favoured by national legislators because the content of the criminal law provision adapts automatically to the frequent and swift changes in EU legislation. Such an approach requires that citizens can access the most recent version of the 69 referenced provision. With regard to referenced provisions in domestic law, this already proves to be a difficult task and a strict threshold for determining whether the law complies with the principle of definiteness needs to be applied.160 The determination of 156 Constant case-law of the German BVerfG, cf inter alia BVerfG, Decision of 6th May 1987, 2 BvL 11/ 85 = BVerfGE 75, 329, 341. 157 Cf BVerfG, Decision of 29th May 2010, 2 BvR 871/04, para. 78: a general objection against blanket laws due to references to Union law cannot be deducted “in the case at hand” from the necessity to consider multiple official languages, as there was no indication of linguistically conflicting versions. 158 Cf also Satzger/Langheld, HRRS 2011, 460, 464. 159 On the use of different types of references in German law, see Satzger, in: Sieber et al. (eds), Europ. StR, § 9 paras 24 et seq. 160 Satzger, Europa ¨isierung, pp. 253 et seq.; MK-Schmitz, § 1 StGB para. 51. Pleasingly strict in this point also now the BVerfG, Decision of 21st September 2016, 2 BvL 1/15, 43 et seqq.

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the applicable law is even more difficult where references to European legislation are involved.161 European law is far more complex and provisions are often amended by numerous subsequent legislative acts, with consolidated versions not being available in every case.162 Furthermore, it is not uncommon that several references need to be observed (even within European law). With a certain number of references, those subject to criminal law cannot be expected to disentangle a resulting web of references. Consequently, such a blanket criminal law would be unconstitutional.163 An exception to this conclusion might be made in cases in which only negligible sanctions are imposed or in which the criminal law provisions only apply to professionals. The Treaty of Lisbon has created another source for problems concerning the principle of definiteness, in that the former EC has been replaced by the EU (cf art. 1 (3) TEU). Dynamic references in German blanket criminal laws had not been amended but still pointed to the law of the “European Community” instead. As long as the law refers to EC regulations that are still valid, there are no problems. If the referenced provision, however, is changed and labelled “EU regulation”, it is doubtful whether such a regulation would still be covered by the term “law of the European Community”. Meanwhile, the German legislator has enacted new provisions effective from 1st January 2011 to adapt German law to the new legal situation.164 70

cc) Cross–References in National Statutory Instruments. For example the German legislator usually incorporates European legislative acts by means of cross-references in order to simplify the process of finding the respective European legislation. The blanket criminal law itself does not refer to certain rules in European law but contains (at the most) a rough paraphrase of the content of potential referenced provisions. The blanket criminal law instead authorises the executive branch to determine which rules in European law shall be object of the reference by means of statutory instrument. This approach is meant to ensure that the content of the criminal statute can be quickly adapted to changes in European legislation. The following example shows an important provision in German food (criminal) law: § 58 LFGB (German Code on Foodstuffs, Consumer Goods and Animal Feeding Stuffs) (1) Whosoever 1. produces or processes eatables in violation of § 5 I 12. puts into circulation a substance as eatable in violation of § 5 II no. 1 […] shall be liable to imprisonment of not more than three years or a fine. (3) Whosoever 1. acts in violation of a directly applicable legislative act of the European Community or the European Union, corresponding in content to an obligation or a prohibition in subsection (1) nos. 1 through 17 if and to the extent to which a statutory instrument pursuant to § 62 I no. 1 refers to this criminal provision in respect of the elements of a particular criminal offence […] shall be liable to the same punishment. § 62 LFGB To the extent to which this is necessary for the enforcement of legislative acts of the European Community or the European Union, the Federal Ministry of 161

Regarding the higher standard of legal certainty cf also Satzger/Langheld, HRRS 2011, 460, 464. A consolidated version is a declaratory codification which combines several legal acts to one single document but is itself not legally binding, cf Grams, Zur Gesetzgebung der EU, pp. 268 et seq. 163 Also cf the similarly strict approach of BVerfG, Decision of 21st September 2016, 2 BvL 1/15, 46; also OLG Koblenz, Judgment of 26th January 1989, 1 Ss 567/88 = NStZ 1989, 188 et seq. agrees to the outcome; similarly (with regard to the German Foreign Trade Act [AWG]) BVerfG, Decision of 3rd March 2004, 1 BvF 3/92 = NJW 2004, 2213, 2218; with regard to customs criminal law Bender, wistra 2006, 41; see also Dannecker, Jura 2006, 95, 101; more cautious Bo¨se, Strafen und Sanktionen, p. 439; Moll, Nationale Blankettstrafgesetzgebung, p. 154; for a differing view, see Streinz, WiVerw 1993, 1, 33. 164 For a more detailed account, cf Ko ¨ pferl, JURA 2011, 234, 237. 162

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the Interior is authorised to specify by statutory instrument without the consent of the Bundesrat those offences 1. which shall be punished as a criminal offence under § 58 III or § 59 III nos. 1 or 2 (a) […]. The approach of using cross-references, however, has its weaknesses and violates not 71 only the principle of definiteness but also art. 80 (1) (2) GG which requires that the content, purpose and scope of the authority conferred must be specified in the authorising act of parliament itself.165 The authorising statute must contain the scope of authorisation, define the situations to which the authorisation applies and furthermore must generally outline the regulatory content of the envisioned statutory instrument. In other words, the legislature must have already made the essential decisions in the statute. Defining punishable conduct by way of cross-reference does not satisfy these requirements:166 it then is the executive branch which has the final say as to the violation of which European rules will constitute criminal offences. In spite of the constitutional requirement pursuant to art. 103 (2) GG for a lex parlamentaria regarding criminal offences, the executive branch is not limited to merely making additional specifications.167 Instead, only the reference found in the statutory instrument contains practically all of the essential content of the criminal offence. In the case of § 58 (3) LFGB, at least the purpose of the conferred authority is foreseeable because the legislator has paraphrased the intended provisions by inserting the words “corresponding to … in content” (“die inhaltlich … entspricht”). Blanket criminal laws do not, however, always include such a paraphrase (cf e. g. § 8 (1) no. 4 Fish Labelling Act [FischEtikettG] [administrative offence]). The benefits of cross-referencing can only be secured by sacrificing the clarity of the elements of the criminal offence.168 dd) Gaps in Criminal Liability and the Principle of lex mitior. The principle of lex 72 mitior (found for example in § 2 (3) StGB)169 basically170 states that the most lenient criminal law is to be applied if the criminal law changes after the criminal act but before the court’s ruling on the case. Comparable provisions are in force in several other European countries, cf for example art. 2 (3) of the Italian Criminal Code (Codice Penale).171 Even a state of impunity is regarded as a more lenient criminal law. In the case of references to European law, the defence can benefit from belated amendments to the criminal law: a reference in a domestic blanket criminal law, which, at some moment in time between the criminal conduct and the judgment does not point to a reference object in force, results in a state of impunity because such a void reference constitutes a more lenient criminal law. In other words, the perpetrator can no longer be punished. Such a state of impunity can (temporarily) occur with static as well as dynamic references. In the case of a static reference, the national legislator has to adjust the blanket 73 criminal law to changes in EU legislation in time, to ensure that the criminal law refers 165 For a general explanation of the requirements for the authorising statute under art. 80 (1) 2 GG, see e. g. Maunz/Du¨rig-Remmert, art. 80 paras 69 et seqq. 166 Fundamentally Volkmann, ZRP 1995, 220 et seq.; cf Hecker, Eur. Strafrecht, § 7 paras 94 et seqq.; for a differing view, see Chr. Schro¨der, in: FS Mehle, p. 609. This strict view is shared by the BVerfG in its new decision BVerfG, Decision of 21st September 2016, 2 BvL 1/15, 47. 167 BVerfG, Judgment of 3rd July 1962, 2 BvR 15/62 = BVerfGE 14, 174, 185 et seq. 168 This is also considered problematic by Hecker, Eur. Strafrecht, § 7 paras 100 et seq. 169 For a comprehensive overview, see Satzger, Jura 2006, 746, 752. 170 There is, however, an exception for temporary laws in § 2 (4) StGB; see Tiedemann, Wirtschaftsstrafrecht AT, paras 160 et seq. 171 Cf in this regard ECJ, Judgment of 3rd May 2005, Joined Cases C-387/02, C-391/02 and C-403/02 “Berlusconi” ECR 2005, I-3565.

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to the new European provisions at the time the respective amendment enters into force. If the national legislator lags behind, the blanket criminal law at least temporarily refers to an inoperative referenced provision.172 In case 4, the blanket criminal law contains a static reference. This is indicated by the exact citation of the Official Journal. By deferring the amendment of the criminal law by one day, a state of impunity is reached on 1st June 2010. Consequently, A cannot be punished for the crime he has committed. 74 In the case of dynamic references – if they can be considered constitutional at all – a state of impunity cannot occur due to a neglect of the national legislator because the content of the criminal law adapts “automatically” to amendments of the referenced provision. If, however, the referenced provision expires or is annulled and not replaced in time, then the reference also refers to a defunct object. If a European regulation is amended or replaced by another, it is difficult to determine as to whether this introduces a new offence or only modifies the former criminal offence. In order to distinguish between these two possible interpretations, one has to determine whether the penalisation of a certain conduct merely continues or whether the new legislation establishes a completely new type of criminal offence. In the latter case, this leads to a state of impunity concerning the former criminal offence, whilst in the first case, the reference does not refer to a void object but instead is directed to the new provision.173 75

Example: Starting 1st June 1997, Regulation No. 338/97174 prohibited cross-border trade in protected animals and plants for all EU Member States. The German Federal Nature Conservation Act (BNatSchG), including its references to EC law, was amended with a substantial delay to account for the new regulation,175 which resulted in states of impunity for some perpetrators.176 For example, §§ 30 a (1), (2), 30 (1) no. 4 and 21 (1) BNatSchG o.v. referred to Regulation (EEC) No. 3626/82, which was replaced on 1st June, 1997 by the regulation mentioned above. During the period between the adoption of the new regulation and the delayed amendments to the German law on the protection of endangered species, the references referred to void provisions. Consequently, a state of impunity existed for this period of time and a number of offenders who had committed crimes in the past (when Regulation [EEC] No. 3626/ 82 was still in force) could no longer be prosecuted177.178 The legislator then introduced a transitional provision in § 39 (2) BNatSchG o.v. (now § 69 (2) BNatSchG), which provides an exception to the principle of lex mitior. Criminal offences that were committed before the reference became void should still be punishable despite a state of impunity having potentially occurred in the meantime. Offenders should be prosecuted according to the provisions that were in force at 172 An interpretation of static references to European law will usually show that they only refer to legislative acts that are in force; for more, see Satzger, Europa¨isierung, p. 270. 173 Prevailing opinion, cf BGH, Decision of 10th July 1975, GSSt 1/75 = BGHSt 26, 167, 172 et seq.; S/SEser/Hecker, § 2 StGB para. 24; Jescheck/Weigend, § 15 IV 5, fn 49; for a differing view, see SK-Rudolphi/ Ja¨ger, § 2 StGB para. 10; MK-Schmitz, § 2 StGB para. 23. 174 Regulation No. 338/97 on the protection of species of wild fauna and flora by regulating trade therein, OJ (EC) 1997 No. L 61/1. 175 Cf the second amendment to the Federal Nature Conservation Act (Zweites Gesetz zur A ¨ nderung des BNatSchG) of 30th April 1998, Federal Law Gazette (BGBl.) 1998 I, p. 823, in force since 9th May 1998. 176 Cf Su ¨ ddeutsche Zeitung of 28th February 1998, p. 1: “Schlupfloch fu¨r Tierschmuggler. Gesetzeslu¨cke verschont Kriminelle derzeit vor harten Strafen” (Loophole for animal smugglers. Legal gap currently spares criminals from severe punishments). 177 This would be different if one considered EU regulations to be in force only for a definite time pursuant to § 2 (4) StGB. This is argued by Pfohl, wistra 1999, 161, 166. 178 Cf on the whole complex Moll, Nationale Blankettstrafgesetzgebung, p. 174; Pfohl, wistra 1999, 161, 165 et seq.

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the time when the crime was committed. This legislative approach does not violate the prohibition of laws ex post facto (pursuant to art. 103 (2) GG) because it merely states that a crime is to be judged according to the law in force at the time of the commission and the criminal law itself is not changed retroactively. The principle of lex mitior itself does not enjoy a constitutional status under German law.179 Nevertheless, this approach does raise constitutional concerns because abandoning the impunity of a former criminal offence retroactively violates the constitutional principle of protecting legitimate expectations if the time spans during which impunity occurred are not negligibly short.180 Those who have committed a crime cannot reasonably expect that a subsequent state of impunity of “their” conduct might be annulled with retroactive effect. Furthermore, it must be noted that the principle of lex mitior is of significant importance at the European level: The ECJ considered it a general principle of European law181 and consequently as a part of primary EU law. Today, the principle is a fundamental right pursuant to art. 49 (1) (3) CFR. The cases regarding references in national provisions to EU-regulations that have been delineated so far must be clearly differentiated from cases where a national provision makes reference to an EU-directive that is abolished and replaced, but the adaptation of the national provision containing the respective reference occurs belated. The German Federal Court of Justice (BGH) had to deal with such a case in the recent past:182 According to § 370 (6) 2 alt. 2 of the German revenue code (AO), § 370 (1) AO is to be applied also to cases where the offence at hand was directed at harmonised consumers’ taxes for goods regulated in art. 3 (1) of Directive 92/12/EEC. This directive was abolished prior to the offence in question and replaced by Directive 2008/118/EC. The reference in the German revenue code was however only adjusted after the offence in question was committed and completely accomplished. The BGH correctly stated that this does not preclude the applicability of the national norm in regard to the taxes mentioned in the abolished directive. The reason is that a directive, in order to have binding force in the national legal orders of the Member States, must generally first be transposed into national law. In view of this lack of direct applicability of EU-directives in the Member States, a reference to a directive in a national provision does not lead to the formation of a single provision composed of a national and a European part. The terms of the national provision are rather only concretised by the reference made to the directive. This concretisation may similarly be undertaken by national law itself or by reference to other sources. The validity of the referring national norm therefore – unlike in case of references to regulations – does not rely on the validity of the directive. Rather, the directive and the clarification it provides for remains relevant for the understanding of the terms used in the referring national norm even when the directive has been abolished in the concrete form referred to. This is why no structural conflict with the principle of legal certainty can arise from the directive’s abolition. The only problem may be whether the citizen can still obtain knowledge of the content of the abolished directive with reasonable efforts. This, however, will usually be the case if the 179 This is the sole concern for the BVerfG, see BVerfG, Decision of 29th November 1989, 2 BvR 1491/ 87 = BVerfGE 81, 132, 138; BVerfG, Decision of 18th September 2008, 2 BvR 1817/08 = StraFo 2008, 465 et seq.; OLG Du¨sseldorf, Decision of 21st December 2007, IV-2 Ss (OWi) 83/07 – (OWi) 64/07 III = NJW 2008, 930 et seqq. 180 See LK-Dannecker, § 2 StGB paras 59 et seqq.; cf Pfohl, wistra 1999, 161, 166; Chr. Schro ¨ der, in: FS Mehle, p. 604. 181 ECJ, Judgment of 3rd May 2005, Joined Cases C-387/02, C-391/02 and C-403/02 “Berlusconi” ECR 2005, I-3565, paras 68 et seq. 182 BGH, Decision of 20th November 2013, 1 StR 544/13 = NJW 2014, 1029.

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reference made in the national norm is concise enough, i. e. if the directive is clearly labelled by the national provision and if the content of the directive itself is unambiguous.183 Furthermore, also in the context of references for the purpose of concretising the terms used in the national provisions, the general language problem remains because the (former) directive is referred to in all official EU-languages (see para. 69).

V. The Influence of European Law on the Interpretation and Application of Domestic Substantive Criminal Law 1. Introduction 76

At first glance, a national criminal court has to apply only domestic criminal law. European law, however, must not be disregarded. As established above, domestic criminal law, like any other field of law, is equally subject to its “Europeanising” influence. First of all, a judge needs to apply all directly effective provisions of European law because they either directly grant rights or impose obligations within the legal orders of the Member States. This concerns mostly European regulations but also those directives which are directly effective pursuant to the case-law of the ECJ. According to the ECJ, a directive is directly effective in so far as the following requirements are met: the directive must be phrased clearly and precisely and be free of all ambiguity. The time limit for implementation must have expired and the directive has to be solely beneficial for the individual concerned (subjective direct effect).184 If this last criterion is not met, the directive nevertheless has to be applied by courts and the administration.185 European law also influences the application of national law – regardless of its direct effect – when the interpretation of domestic law is concerned. As shown below (see paras 87 et seqq.), national courts and public authorities are obliged to consider even those parts of European law which are not directly effective by means of interpretation in the light of Union law. European law may therefore also have an “indirect” effect on domestic law.

2. Neutralising Effect on Domestic Law

Case 5

77

Before an Italian criminal court, Mr Ratti (R) was accused of violating the Italian law No. 245 of 3rd March 1963, which set certain requirements for the labelling of solvents. A violation of these requirements was a criminal offence at the time. The accused did not deny the violation of Italian law, but argued that he had only followed the sufficiently clear requirements which had been introduced by Directive 73/173/EEC. Although the time limit for implementation had expired, the directive had not been transposed into Italian law. Could the Italian criminal court still convict R? (see para. 79)

183 The foregoing arguments represent a summary of the BGH’s reasoning in BGH, Decision of 20th November 2013, 1 StR 544/13 = NJW 2014, 1029; for a critical view, see Hecker, JuS 2014, 458 et seqq. 184 Cf Calliess/Ruffert-Ruffert, art. 288 AEUV paras 77 et seqq. for further information on these prerequisites. 185 See among others Streinz, Europarecht, para. 491; for more information and (partly) unresolved questions concerning the direct application of directives cf Streinz-Schroeder, art. 288 AEUV paras 101 et seqq.

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Case 6 German citizen D lived in the Bavarian city of L and offered sports betting for a company named U which was based in London. U had a bookmaker’s licence under UK law. D accepted the betting tickets from his clients, forwarded them electronically to England and distributed any winnings in his office. D did not possess a German permit which was required according to the Bavarian Act on Lotteries. Is D criminally liable pursuant to § 284 (1) StGB, which reads as follows: “(1) Whoever, without the permission of a public authority, publicly organizes or runs a game of chance or makes the equipment therefor available, shall be punished with imprisonment for not more than two years or a fine.”? (see paras 80 et seqq.) The supremacy186 of European law over domestic law means that national criminal 78 laws are neutralised if they are incompatible with the applicable law of the European Union. The term neutralisation implies that a law describing a criminal offence may not be applied to a particular case.187 The neutralising provision of European law does not result in the justification of the criminal conduct but merely concerns the applicability of the relevant criminal provision.188 Provisions of European law only have a neutralising effect on domestic national criminal laws if there is an actual conflict between both provisions: this is the case if the domestic criminal law contravenes a directly effective provision of the law of the European Union.189 Such a conflict may occur with regard to the elements of a criminal offence as well as to its legal consequences. A domestic criminal law provision which contravenes other (i. e. not directly effective) provisions of European law must be applied by domestic courts since they are bound by law and justice (e. g. pursuant to art. 20 (3) GG). In these cases, there is no actual conflict between domestic and European law provisions. However, a court may still be obliged to interpret the domestic provisions in the light of European law (see paras 87 et seqq.). a) Current Conflicts with Regard to the Elements of a Criminal Offence. If the 79 elements of a crime contravene European law, conduct which is prohibited by domestic law becomes legal through directly applicable European law provisions. In these cases, the individual is confronted with two incompatible commands. According to the ECJ, “the national authorities shall not impose penalties for disregard of a provision which is incompatible with Community [now: Union] law.”190 The doctrine of supremacy resolves the conflict in favour of EU law. The criminal law provision in question may not be applied in the particular case – it is “neutralised”. In case 5, R may not be punished because his conviction would contravene the directly effective provisions of the labelling directive.191 186 Seminal for the doctrine of supremacy of Union ([then] Community) law is ECJ, Judgment of 15th July 1964, Case 6/64 “Costa ./. ENEL” ECR 1964, 1251, paras 8 et seqq. 187 According to the prevailing opinion, the conflicting domestic law provision remains legally valid (and applicable to national cases not involving EU law). They simply may not be applied in the case of a conflict, see Jarass, DVBl. 1995, 958 et seq.; Streinz, Europarecht, para. 221. 188 Kreis, Verbrechenssystematische Einordnung der EG-Grundfreiheiten, pp. 170 et seqq. disagrees; respective criticism is found among Italian scholars with regard to art. 51 of the Criminal Code of Italy (Codice Penale), for example Pedrazzi, in: Universita` di Parma, Droit communautaire, pp. 57 et seq. For the effect of neutralising provisions, also cf Hecker, Strafbare Produktwerbung, p. 286; Satzger, Europa¨isierung, pp. 506 et seqq. 189 See Satzger, Europa ¨isierung, pp. 479 et seqq. 190 ECJ, Judgment of 14th July 1977, Case 8/77 “Sagulo” ECR 1977, 1495, para. 6. 191 ECJ, Judgment of 5th April 1979, Case 148/78 “Ratti” ECR 1979, 1629, para. 23.

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It must be noted that R would have been found guilty if the proceedings had taken place at a point in time at which the time limit for the implementation of the directive had not yet expired: there would not have been a conflict because the directive would not have been directly effective and consequently not capable of neutralising the Italian criminal law. 80 The fundamental freedoms of Union law (free movement of goods, free movement of workers, freedom of establishment, freedom to provide and receive services, free movement of capital) may also conflict with domestic criminal law and trigger the neutralising effect.192 However, it must be noted that European primary law contains certain derogations193 and unwritten exceptions for “imperative requirements in the general interest”.194 Especially criminal offences will often be justified pursuant to public policy derogations or amount to such “imperative requirements”. The scope of these exceptions in any case will still be defined by Union law. 81 For example, § 287 (1) and (2) of the German StGB prohibit not only the organisation of public lotteries without a permit but also the advertising for such a lottery. A private lottery organiser who is based in the UK and offers his services in Germany by advertising his lottery and by sending lottery tickets to German customers would be liable to prosecution in Germany pursuant to § 287 StGB if such a conduct did not fall within the scope of an EU fundamental freedom. The ECJ has handed down judgments in several comparable cases.195 The Court found that organising a cross-border lottery is protected by the freedom to provide services as defined in art. 57 TFEU. Art. 57 et seq. TFEU do not only prohibit discriminating measures by the Member States but also any national restrictions liable to hinder or make less attractive the use of the freedom to provide services.196 Consequently, § 287 (1) and (2) StGB constitute a restriction on the freedom of the lottery organiser to provide services in another Member State. The ECJ considers such measures to conform to Union law if they are of non-discriminatory nature, can be justified by imperative requirements in the general interest, are suitable for securing the attainment of the objective which they pursue and do not go beyond what is necessary in order to attain it.197 On the specific subject of lotteries, the Court reasoned that “[i]n that context, moral, religious or cultural factors, as well as the morally and financially harmful consequences for the individual and for society associated with betting and gaming, may serve to justify a margin of discretion for the national authorities, sufficient to enable them to determine what is required in order to ensure consumer protection and the preservation of public order.”198 This may even include an outright ban on lotteries. The measures taken by a Member State must, however, in any case be proportionate to the objective they pursue.199 192 Further examples can be found in Hecker, Eur. Strafrecht, § 9 paras 24 et seq., 33 et seqq., 36 et seqq.; also in case of collisions with the CFR, on this ECJ, Judgment of 26th February 2013, Case C-617/ 10 “Åkerberg Fransson”, para. 45. 193 For example art. 36, 45 (3), 52, 62 TFEU. 194 ECJ, Judgment of 30th November 1995, Case C-55/94 “Gebhard” ECR 1995, I-4165, para. 37; see also the overview in Streinz, Europarecht, paras 863 et seqq. 195 ECJ, Judgment of 24th March 1994, Case C-275/92 “Schindler” ECR 1994, I-1039; ECJ, Judgment of 6th November 2003, Case C-243/01 “Gambelli” ECR 2003, I-13031; ECJ, Judgment of 21st September 1999, Case C-124/97 “Markku Juhani La¨a¨ra¨” ECR 1999, I-6067; ECJ, Judgment of 21st October 1999, Case C-67/98 “Zenatti” ECR 1999, I-7289; ECJ, Judgment of 6th March 2007, Case C-338/04 “Placanica” ECR 2007, I-1891. 196 ECJ, Judgment of 3rd December 1974, Case 33/74 “Van Binsbergen” ECR 1974, 1299, paras 10 et seqq.; cf Streinz-Mu¨ller-Graff, art. 56 AEUV para. 85. 197 ECJ, Judgment of 30th November 1995, Case C-55/94 “Gebhard” ECR 1995, I-4165, para. 37; ECJ, Judgment of 31st March 1993, Case C-19/92 “Kraus v. Land Baden-Wuerttemberg” ECR 1993, I-1663, para. 32. 198 ECJ, Judgment of 6th November 2003, Case C-243/01 “Gambelli” ECR 2003, I-13031, para. 63. 199 ECJ, Judgment of 6th March 2007, Case C-338/04 “Placanica” ECR 2007, I-1891.

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With regard to the German situation, the requirement of a government authorisation may be considered an appropriate instrument for containing gambling and betting within certain legal boundaries and thus preventing the exploitation of gamblers for criminal and fraudulent purposes. If these permits are issued in a non-discriminatory manner, such a practice generally is in conformity with Union law.200 Yet, this result is far from clear-cut: the ECJ ruled in the case of Gambelli that a national court has to consider that a Member State may not be able invoke “imperative requirements in the general interest” to restrict access to the market where it specifically pursues a policy of extending the gambling turnover of the authorised providers in order to increase its revenue. The ECJ also stressed that the national court had to examine closely the proportionality of the use of criminal law to regulate gambling and betting.201 In case 6, D is generally liable to prosecution under § 284 StGB for organising gambling 82 without the necessary permit.202 However, imposing a penalty on him constitutes a restriction on his freedom to provide services. This infringement cannot be justified under European law. Imperative requirements in the general interest do not apply here because the Bavarian Act on Lotteries does not allow the issuance of permits to individuals and private companies but rather grants a state monopoly for sports betting. The legislation is primarily enacted in order to increase state revenue and the alleged aim of combating gambling addiction was not pursued consistently. The Higher Regional Court of Munich (Oberlandesgericht [OLG] Mu¨nchen)203 dismissed a conviction of D because the court assumed that § 284 (1) StGB had been neutralised by the directly applicable freedom to provide services in European law. While the result found by the court is correct, it is submitted that its reasoning is not completely convincing. The court could have achieved the result by conducting an interpretation in the light of European law prior to assuming a neutralisation. In order to avoid a complete neutralisation of the provision, the court could have interpreted the term “permission of a public authority” (in § 284 (1) StGB) in a broader sense exceptionally encompassing the licence issued in accordance with UK law in as far and as long as the German legal requirements contravene European law.204 This interpretation would have had the advantage, that betting providers operating illegally under the law of their country of origin (provided it is in conformity with European law) could still be treated as “without permission” under German law which would be impossible, if the relevant provisions would be seen as completely neutralised. b) Current Conflicts with Regard to Legal Consequences. Since Union law also sets 83 limits with regard to legal consequences of criminal behaviour (see paras 17 et seqq.), it may conflict with the legal consequences of domestic criminal law as well. Firstly, such a conflict may arise where the imposed sanction exceeds the maximum 84 limit under Union law. Within the scope of the fundamental freedoms, this maximum limit is defined by the rule of non-discrimination and the principle of proportionality. Any penalty imposed in violation of these principles would contravene the directly applicable fundamental freedoms205. If the statutory penalty cannot be reduced to a level 200 Confirmed in ECJ, Judgment of 21st September 1999, Case C-124/97 “Markku Juhani La ¨a¨ra¨” ECR 1999, I-6067, and ECJ, Judgment of 21st October 1999, Case C-67/98 “Zenatti” ECR 1999, I-7289. 201 ECJ, Judgment of 6th November 2003, Case C-243/01 “Gambelli” ECR 2003, I-13031, paras 68 et seqq.; Walz, EuZW 2004, 523. 202 Lackner/Ku ¨ hl-Heger, § 284 StGB para. 11 with further references. 203 OLG Mu ¨ nchen, Judgment of 26th September 2005, 5 St RR 115/05 t = NJW 2006, 3588 et seqq.; affirmative Moosbacher, NJW 2006, 3529, 3532; Lackner/Ku¨hl-Heger, § 284 StGB para. 12 with further references. 204 Satzger, JK 3/07, StGB § 284/1. Heine, in: Wohlers (ed.), Neuere Entwicklungen, pp. 12 et seq. is sceptical concerning the recognition of foreign permits due to a lack of harmonisation in this field of law. 205 See Herdegen, Europarecht, § 8 para. 14.

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which conforms to the above-mentioned principles of Union law by interpretation in the light of European law, the criminal offence is neutralised – which means that no sanction can be imposed at all. However, this should only occur in exceptional cases. Example: A criminal law punishes any employee who does not fulfil his or her obligation to obtain a compulsory insurance with a fine or a custodial sentence of up to 3 months. EU aliens shall be punished with a custodial sentence of at least 6 months. Such a criminal law would directly discriminate against EU aliens because a minimum custodial sentence is required only for them. An interpretation in the light of European law cannot result in reducing the sentence to a level of conformity due to the clear wording of the provision. Since the criminal provision violates the rule of non-discrimination, it could not be applied to EU aliens at all. The application of the criminal offences to citizens of the particular Member State would, however, still be possible. If the criminal law discriminated against citizens of the respective Member State, this poses the problem of national treatment (so-called reverse discrimination). Whether or not such discrimination is legal is no question of European law but depends entirely on domestic (constitutional) law, in particular the principle of equality.206 85

Secondly, the nature of the penalty may contravene directly applicable Union law, such as in the Greek case of Donatella Calfa, who was expelled from Greece for life due to a drug offence (see para. 24). In this case the domestic criminal law is likewise neutralised.207

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c) Ostensible Conflicts. The Berlusconi case208 involved a conflict of legal rules only at first glance. Then Italian Prime Minister, Silvio Berlusconi, faced prosecution for false accounting. The elements of the criminal offence reflected the requirements set by a directive. This directive required the Member States to introduce appropriate penalties for violations of these provisions on false accounting. Between the commission of the crime and the judgment, the Italian parliament changed the respective criminal statute in such a way that it no longer contained appropriate sanctions. In particular, additional prerequisites for criminal liability were introduced and the offence was “downgraded” to a misdemeanour which involved a reduction of the limitation period with the result that the prosecution of Berlusconi’s criminal offence was already time barred. According to the principle of lex mitior in Italian law (art. 2 (3) of the Criminal Code of Italy [Codice Penale]), the Court would have had to apply the more lenient criminal law and thus find Berlusconi not guilty. The case was, however, referred to the ECJ for a preliminary ruling concerning the question as to whether the mitigated Italian criminal law could be applied even though the amended provisions violated the requirements set by the directive. The ECJ ruled that the amended Italian criminal statute could nevertheless be applied. The court did not base its reasoning on the principle of lex mitior, which it, however, recognised as a general principle of European law.209 Instead, the ECJ noted that the supremacy of European law generally requires the national court to disregard

206 This question has not yet been resolved, cf Streinz, Europarecht, paras 844 et seqq. with further references to scholarly writings. 207 Disagreeing Kreis, Verbrechenssystematische Einordnung der EG-Grundfreiheiten, pp. 189 et seqq. 208 ECJ, Judgment of 3rd May 2005, Cases C-387/02, C-391/02 and C-403/02 “Berlusconi” ECR 2005, I-3565. 209 The principle of lex mitior is codified in art. 49 (1) CFR and legally binding (except for the United Kingdom and Ireland).

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those domestic criminal provisions that violate the requirement of appropriate sanctions in European law. In a case like the one at hand, however, an exception had to be made because “a directive cannot, of itself and independently of a national law adopted by a Member State for its implementation, have the effect of determining or aggravating the liability in criminal law of persons who act in contravention of the provisions of that directive”.210 Although the result found by the ECJ is correct, the reasons are not fully convincing. The domestic criminal statute would only have been inapplicable if it had actually conflicted with the European directives. These directives, however, only required that “appropriate sanctions” be imposed and lacked any further description concerning the character of those sanctions.211 Consequently, the directives could only have direct effect to the extent that they demanded that the Member States had to provide for sanctions at all.212 The Member States were left a margin of appreciation as to how to implement these sanctions as the directives were not sufficiently specific in this regard. Since the amending law passed by the Italian legislator did not exclude any punishment but merely set a more lenient standard, the Italian criminal law only “conflicted” with not directly effective European law. Consequently, it only seemed as if there had been a conflict of legal rules: For this reason, the directives could not exert any neutralising effect, the amending statute remained applicable and there was no reason to make an exception to the basic principle of the supremacy of European law.213 This reasoning does not, however, affect the court’s obligation to interpret the more lenient criminal law in the light of European law.

3. Interpretation in the Light of European Law

Case 7

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L lives in Berlin and is unemployed. Craving for more recognition, he poses as an EU Commission officer and pretends to act in an official capacity. Can he be prosecuted for arrogation of public office pursuant to § 132 StGB? (see para. 99) § 132 StGB (Arrogation of Public Office) provides: “Whosoever unlawfully engages in the exercise of a public office or undertakes an act which may only be undertaken with the authority of a public office, shall be liable to imprisonment of not more than two years or a fine.” a) Introduction. As mentioned above, domestic law has to be interpreted in the light 88 of European law, giving European law an indirect effect on domestic law.214 This serves two purposes: – First, such an interpretation prevents conflicts between domestic and European law. If several interpretations are possible, domestic courts have to choose one which does not conflict with European law, thereby avoiding that the domestic rule is neutralised 210 See inter alia ECJ, Judgment of 8th October 1987, Case 80/86 “Kolpinghuis Nijmegen” ECR 1987, 3969, para. 13 and ECJ, Judgment of 7th January 2004, Case C-60/02 “X”, ECR 2004, I-651, para. 61. 211 It has to be noted, however, that at least before the Treaty of Lisbon, there was no competence of the EC to prescribe specific sanctions; on the case-law of the ECJ (issued at that time), see paras 27, 39. 212 The directive contained the obligation to provide for sanctions and was in this regard sufficiently clear and unconditional. 213 For detailed criticism (also with regard to the Advocate General Kokott’s opinion), see Hecker, Eur. Strafrecht, § 9 para. 19; Satzger, JZ 2005, 998 et seqq.; see also Dannecker, ZIS 1 (2006), 309, 312 et seqq.; Gross, EuZW 2005, 371 et seqq. 214 On this in detail also Ro ¨ nnau/Wegner, GA 2013, 561, 562 et seqq.

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and cannot be applied to the case at all. In German law, this method of interpretation resembles the generally recognised practice of interpreting ordinary statutory law in the light of the constitution. – Second, considering the entire body of European law (whether directly effective or not) for interpretation ensures that domestic law is compatible as far as possible with the purposes of European law and fosters the uniformity of application among the Member States. This objective effect exerted by European law is of great importance especially with regard to directives and the national provisions transposing them into domestic law.215 89

The legal reasons for the obligation of interpretation in the light of European law are based in domestic law and in European law: – On the one hand, the traditional domestic methods of legal interpretation, with regard to the wording, context, genesis of the norm and its object and purpose (telos),216 generally require such an interpretation217. Let us, for instance, take a look at the transposition process of a directive: it may generally be presumed that the national legislator intends to transpose the directive correctly into domestic law. Consequently, it is at least one of the objects and purposes of the law to conform to the directive. Also, where the transposing legal act reiterates terms used in the directive, wording and context suggest an interpretation of the national norm in the light of the directive. – On the other hand, European law itself contains an obligation to conduct an interpretation in the context of EU law. The duty of loyalty as enshrined in art. 4 (3) TEU means that all domestic public authorities must take appropriate measures in order to fulfil the Member State’s duties under European law. Domestic courts must consequently ensure that EU law is uniformly applied.218 According to the ECJ, the indirect effect of European law does not replace any direct effect but is limited to cases in which the domestic law leaves a margin for interpretation in the light of European law.219

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Consequently, the limits for indirect effect also derive from both domestic and European law. – From a domestic perspective, an interpretation in the light of European law must neither exceed the limits placed on interpretation by the ordinary meaning nor contradict the object and purpose of the national provision. Otherwise, the courts would cease to apply laws enacted by the national legislatures and create the applicable law by themselves instead.220 – From a European perspective, according to the ECJ in “Kolpinghuis Nijmegen”, the limit is set by the “principles of law which form part of [European Union] law and, in particular, the principles of legal certainty and non-retroactivity.”221 215

Also Esser, Eur. und Int. Strafrecht, § 2 para. 90; Safferling, Int. Strafrecht, § 11 para. 15. See Zippelius, Juristische Methodenlehre, § 8 and § 10 II. 217 See Hommelhoff, AcP 192 (1992), 71, 95. 218 Grabitz/Hilf/Nettesheim-von Bogdandy/Schill, art. 4 EUV para. 58; Hecker, JuS 2014, 385, 386; Heise, Gemeinschaftsrecht und nationales Strafrecht, p. 93; the interpretation in the light of directives is also based on art. 288 (3) TFEU, cf Chr. Schro¨der, Europa¨ische Richtlinien und dt. Strafrecht, p. 335 (with regard to art. 249 (3) TEC). For the obligation to interpret in accordance with framework decisions within the former third pillar, see ECJ, Judgment of 16th June 2005, Case C-105/03 “Pupino” ECR 2005, I-5285, especially paras 43–45 and para. 111. 219 ECJ, Judgment of 10th April 1984, Case 14/83 “Von Colson und Kamann” ECR 1984, 1891, paras 27 et seq. 220 Hecker, JuS 2014, 385, 388 et seq. 221 ECJ, Judgment of 8th October 1987, Case 80/86 “Kolpinghuis Nijmegen” ECR 1987, 3969 (emphasis added). 216

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b) Interpreting Criminal Law in the Light of European Law. Since criminal law is 91 affected by European law like all other fields of law, the principles governing the interpretation of domestic law described above apply to it as well. Among several possible interpretations of a criminal law statute, a court must prefer the one which best enforces European law.222 However, the principle of legality sets a limit: The literal meaning of the wording is of particular importance and narrows the margin of possible interpretations for the national court. In contrast to other fields of law, a judge is not allowed to “develop” the law by judicial interpretation where this would transcend the ordinary meaning of the statutory wording – at least not to the detriment of the accused. This restriction follows not only from domestic codifications of the lex certa requirement (see e. g. art. 103 (2) GG or § 1 StGB) but also from the acknowledgement of this principle at the European level (e. g. art. 49 (1) CFR).223 Consequently, an extensive interpretation of a domestic criminal law provision due to European law is only permissible if – it is still in line with the literal sense of wording of the criminal law provision and – the European legislative act itself is sufficiently definite.224 In spite of opposing viewpoints among legal scholars,225 the principles of legal 92 certainty and non-retroactivity do not exclude the possibility that an interpretation conducted in the light of European law may “expand” criminal liability.226 A directive which does not have any direct effect may lead to the extension of criminal liability to conduct which was not considered punishable in the past (under a purely domestic interpretation) – although the ‘new’ legal situation is detrimental to the accused. Some scholars argue that the individual must be able to rely on the principle that a 93 directive cannot weaken his or her legal position prior to its implementation. If criminal liability were to be extended by interpretation, this would result in attributing a (reverse) vertical direct effect to the directive which – also according to the ECJ – is not permissible.227 An interpretation in the light of European law does not, however, lead to a judicial extension of criminal liability in this formal sense. Criminal conduct is still solely determined by the legislator and not by judicial interpretation. The position of the accused is only inferior to a previous interpretation of the law; the new interpretation is based on the criminal statute itself and the directive merely serves as a criterion for assessing the scope of the pre-existing criminal law. A change in interpretation does not retroactively impose a criminal liability but correctly implements the true intentions of the legislators – according to a new and better understanding.228 Any reliance on a certain interpretation by the courts does not deserve legal protection. According to the continental legal tradition229 but also according to com222 In detail Satzger, Europa ¨isierung, pp. 549 et seq.; Chr. Schro¨der, Europa¨ische Richtlinien und dt. Strafrecht, pp. 340 et seqq.; Dannecker/Bu¨lte, in: Wabnitz/Janovsky (eds), Handbuch, ch. 2, paras 286 et seqq. 223 ECJ, Judgment of 12th December 1996, Cases C-74/95 and C-129/95 “Telecom Italia” ECR 1996, I-6609, para. 25. 224 ECJ, Judgment of 12th December 1996, Cases C-74/95 and C-129/95 “Telecom Italia” ECR 1996, I-6609, paras 24 et seq., 31; Hecker, Eur. Strafrecht, § 10 paras 50 et seqq.; Chr. Schro¨der, Europa¨ische Richtlinien und dt. Strafrecht, pp. 387 et seq. 225 Brechmann, Die richtlinienkonforme Auslegung, pp. 275 et seqq.; similarly Ko ¨ hne, Richtlinienkonforme Auslegung im Umweltstrafrecht, pp. 107 et seq. 226 See also Hecker, Eur. Strafrecht, § 10 para. 63; Heger, HRRS 2012, 213. 227 Brechmann, Die richtlinienkonforme Auslegung, p. 277; Ko ¨ hne, Die richtlinienkonforme Auslegung im Umweltstrafrecht, p. 115. 228 Satzger, Europa ¨isierung, p. 555. 229 Cf BVerfG, Decision of 11th November 1964, 1 BvR 488/62, 1 BvR 562/63, 1 BvR 216/64 = NJW 1965, 243; BayObLG, Judgment of 20th July 1990, RReg. 1 St 164/90 = NJW 1990, 2833; Lackner/Ku¨hlKu¨hl, § 1 StGB para. 4; also Hecker, Eur. Strafrecht, § 10 para. 60.

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mon law (and in conformity with ECtHR standards)230, a change in case-law is always permissible and does not violate the principle of non-retroactivity. 94

c) Examples. The following examples shall illustrate the scope of application and the process of interpretation of criminal statutes in the context of European law.

aa) Protection of EU Legal Interests. The EU has a variety of legal interests (e. g. property, domiciliary rights and the functioning of its administration) which so far have been protected only by the legal orders of the Member States and not those of the Union. The duty of loyalty found in art. 4 (3) TEU obliges the Member States to apply their criminal law in order to protect these interests. Since all public authorities of the Member States are also bound by art. 4 (3) TEU,231 domestic courts are required to extend criminal liability to ensure equivalent protection of EU legal interests as far as legally possible. 96 If the legislators have already explicitly extended the scope of criminal laws to protect European legal interests, there is no need for the courts to do so by means of interpretation. 95

Examples: Art. 434-5 C.pe´n. explicitly treats institutions created by the European Treaties as public international organisations for the purpose of applying French corruption offences. § 108 e StGB treats bribery of a Member of the European Parliament in the same way as bribery of a Member of the federal parliament (Bundestag) or a parliament of the La¨nder (Landtage). As far as subsidiary fraud is concerned, § 264 (7) no. 2 StGB explicitly refers to public funds under the law of the European Communities. Furthermore, an interpretation in the context of European law is not necessary if the application of the traditional national standards of interpretation already results in the inclusion of EU legal interests into the scope of a criminal law statute. In general, domestic criminal laws cover only domestic legal interests which, however, comprise all legal interests of all individuals (e. g. property rights etc.) regardless of their nationality. Therefore, as far as the European Union (and – by the way – any state) is in the same position as an individual its (private) legal interests are automatically protected under German criminal law. As far as public or sovereign legal interests of the Union (e. g. effectiveness of administration of justice, territorial integrity) are at stake, however, these are not considered domestic and are therefore not protected by German criminal law according to traditional interpretation standards. 98 Yet, public and sovereign legal interests are of fundamental importance for the functioning of the European Union and thus require particular protection. This means that a domestic court in principle is obliged to interpret national criminal laws in the light of European law in this context as well. This, of course, presupposes that the wording of the provision in question allows for such interpretation and that the intentions of the legislature are not contradicted. If the national legislator has unambiguously limited the scope of a criminal law to domestic legal interests, a broader interpretation is not permissible. 97

230 Cf ECtHR, Judgment of 22nd November 1995, No. 47/1994/494/476, “SW and CR v. Great Britain”, Series A, 335-B/C, paras 35/33; ECtHR, Judgment of 26th April 1979 “Sunday Times v. Great Britain”, Series A, No. 30, para. 49; cf also House of Lords, R v. Rimmington and R. v. Goldstein, [2005] UKHL 63, available under http://www.publications.parliament.uk/pa/ld200506/ldjudgmt/jd051027/gold.pdf (last visited July 2017), para. 35. 231 Cf inter alia Streinz-Streinz, art. 4 EUV para. 5.

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Examples: According to art. 412-13 C.pe´n. violent insurrections are only punished if they put in danger the institutions or the territorial integrity of the French Republic. § 256 StGBAustria only penalises the institution of a secret intelligence service to the detriment of the Austrian Republic. § 81 (1) StGB (territorial integrity, constitutional order) as well as §§ 105, 106 StGB (protection of constitutional organs against coercion) are expressly limited to protecting sovereign legal interests of the German state. If this is not the case and the wording of a criminal law is “open” to interpretation, an 99 interpretation in the context of European law is possible. Case 7 shall illustrate how such an interpretation is conducted: L could be liable under § 132 StGB (Arrogation of Public Office; see para. 87). The aim of this provision is to prevent unauthorised persons from engaging in the exercise of a public office or undertaking an action which may only be undertaken with the authority of public office. The provision protects the public authority of the state and its organs because it is considered essential for the functionality of public administration and judicature.232 Since these are public and not individual legal interests, traditional interpretation methods would understand the provision as referring to a domestic “public office” only.233 This interpretation is supported by § 11 (1) no. 2 StGB, which expressly limits the term “public official” to German public officials.234 The wording of § 132 StGB does not, however, dictate such a restriction. The reference to § 11 (1) no. 2 StGB is, it is submitted, not a compelling argument. The general part of the StGB only defines the term “public official”, but not “public office”. It therefore does not preclude an interpretation of the term “public office” in a broader sense so as to capture any public office of the European Union. The criminal law provision is thus open to an interpretation in the context of European law.235 Such a broadened interpretation seems appropriate because the protected legal interest – the authority of public office – is essential for the functioning of the European Union. With regard to the various administrative competences of the EU, unlawful assumption of public authority may cause citizens to lose confidence in the EU and thus impede the accomplishment of its tasks. In this regard, the EU requires the same protection through criminal law as the German state does. Since such an interpretation does not contradict the purpose of § 132 StGB, it remains within the limits of interpretation outlined above. Consequently, § 132 StGB applies to public offices of the EU as well.236 L is therefore liable pursuant to § 132 StGB. A comparable reasoning applies to § 133 (1) StGB (destruction of materials under 100 official safekeeping). This provision protects the official power of disposition. Since it does not concern individual legal interests, the traditional standards of interpretation result in the assumption that the provision only applies if safekeeping has been

232 BGH, Judgment of 16th October 1952, 5 StR 300/52 = NJW 1953, 73, 74; BGH, Judgment of 19th August 1958, 5 StR 338, 58 = NJW 1958, 1692; Lackner/Ku¨hl-Ku¨hl, § 132 StGB para. 1; SK-Rudolphi/ Stein, § 132 StGB para. 2; S/S-Sternberg-Lieben, § 132 StGB para. 1; for a differing view, see AK-Ostendorf, § 132 StGB para. 4: protection of civil liberties against pseudo-governmental exercise of authority. 233 Especially LK-Krauß, § 132 StGB para. 13; Fischer, Vor §§ 3–7 StGB para. 9; S/S-Sternberg-Lieben, § 132 StGB paras 1, 4; cf SK-Rudolphi/Stein, § 132 StGB para. 5. 234 LK-Krauß, § 132 StGB para. 13. 235 Apparently viewed differently by LK-Krauß, § 132 StGB para. 13, who considers this a palpable violation of the prohibition of analogies and also LK-von Bubnoff, 11th edn, § 132 StGB para. 10. 236 The same result reach SK-Rudolphi/Stein, § 132 StGB para. 5.

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established by a sovereign act of German authorities.237 Consequently, § 133 (1) StGB would only apply to domestic legal interests.238 Again, the wording does not demand such a restriction. Since official safekeeping of documents and other chattels may be a part of various administrative duties of EU officials or of third parties acting on behalf of the EU and since its protection is equally important for the functioning of the EU as it is for the German state, § 133 (1) StGB is to be interpreted in the context of European law.239 The term “official safekeeping” therefore captures not only safekeeping established by German but also by EU official acts. The purpose of § 133 (1) StGB is not contradicted by this interpretation. 101 Further examples can be found in §§ 136 (2) (destruction of objects under seal), 267 et seq. (forgery of documents), 348 (making false entries in public records) and 153 (false testimony before the ECJ – see § 6 para. 10 et seqq.) StGB.240 102

bb) Interpretation of National Law in Conformity with Directives and Terminological Accessoriness of Individual Elements of Offences. The law of the European Union may also influence the interpretation of domestic law without any explicit references (see paras 56 et seqq.), especially with regard to determining the meaning of an offence and its individual elements. Necessary condition is of course a relation to EU law. Basically, criminal law – also in purely national contexts – is independent of other fields of law as far as definitions are concerned, which means that the exact same term may have a different meaning in a criminal law provision compared to other legal provisions. This does not, however, forbid linking the definition of a criminal law term to the meaning attributed to the expression in another field of law. Such a link may be explicitly established by statute. Example, taken from German environmental criminal law: § 330 d no. 3 StGB – “Within the meaning of this chapter […] dangerous goods shall be goods within the meaning of the Transportation of Dangerous Goods Act or an ordinance based thereon and within the meaning of the provisions relating to the international transportation of dangerous goods in the respective territories of their application.” Such a link may also be – implicitly (by means of interpretation241) – derived from the context: Example: § 242 (1) StGB (theft) – “Whosoever takes chattels belonging to another away from another with the intention of unlawfully appropriating them for himself or a third person shall be liable to imprisonment of not more than five years or a fine.” The owner of an object (relevant as to the element “belonging to another”) is determined by applying the rules of property law242).

In particular, a terminological accessoriness as described may also arise from the context whenever the respective provisions transpose EU law of the transferal process of Union law. The following examples illustrate that this as well boils down to a question of interpretation: 103 If the national criminal law provision in question belongs to a complex of provisions aiming at implementing an EU-directive, the systematic, historical and teleological approach of interpretation reveal that the terms employed in the national provision must be understood in the same way as in the directive itself. 237

Bru¨ggemann, Der Verwahrungsbruch, p. 235. Fischer, Vor §§ 3–7 StGB para. 9. 239 Correctly explained by Gro ¨ blinghoff, Verpflichtung des deutschen Strafgesetzgebers pp. 42, 71. 240 In detail Hecker, Eur. Strafrecht, § 10 paras 68 et seqq.; Satzger, Europa ¨isierung, pp. 571 et seqq. 241 See Satzger, Europa ¨isierung, pp. 599 et seqq. 242 BGH, Judgment of 7th May 1953, 3 StR 485/52 = NJW 1954, 1292, 1293. 238

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Example243: D, owner of the shop “All things hemp”, sells little bags of herbs that contain synthetic cannabinoids as “air fresheners”. He is aware that his customers use the contents as a substitute for Marihuana, as the cannabinoids can induce a high, which is, however, often accompanied by health problems (sickness, vomiting, palpitations etc.). At the time the offence was committed these substances did, however, not come under the German narcotics code. Nevertheless, D was convicted of putting unsafe medicinal products on the market pursuant to §§ 5 (1), 95 (1) of the German Act on Medicinal Products (AMG)244. It was, however, questionable, whether the respective substances equated to medicinal products in the sense of the German provisions at hand. As the AMG transposes EU-Directive 2001/83245 into German law, the term “medicinal product” in the AMG is – as far as of interest here – almost equally worded with the definition in the directive. Apart from substances with healing or diagnostic properties, it also contains substances that restore, correct or modify physiological functions by exerting a pharmacological, immunological or metabolic action (§ 2 (1) AMG). Requested for a preliminary ruling the ECJ argued – almost in a textbook manner and utilising the various European criteria for interpretation – that not every effect could be included in the meaning of the words “modify the physiological functions”, but due to the context must rather be interpreted as encompassing only substances which are capable of having a beneficial effect on the functioning of the human organism and, as a consequence, on human health. In light of these findings, the cannabinoids that can only induce a high and on top of that even provoke health problems may not be regarded as medicinal products. Thus D cannot be held criminally liable on the grounds of §§ 5 (1), 95 (1) AMG interpreted in conformity with the directive. As the ECJ explicitly states, this conclusion cannot be called into question by the fact that there are no other national provisions criminalising the putting into circulation of these substances.246 Whether or not and to what extent terms and concepts of European law play a role 104 when interpreting domestic criminal law is increasingly being discussed also with regard to fraud and consumer protection. In the context of cross-border trade under the protection of the free movement of goods pursuant to art. 34 TFEU, questions have arisen regarding the issue of whether and under which circumstances the presentation and promotion of goods may be of deceptive character and therefore liable to punishment as fraud under § 263 (1) StGB. This provision reads as follows: “Whosoever with the intent of obtaining for himself or a third person an unlawful material benefit damages the property of another by causing or maintaining an error by pretending false facts or by distorting or suppressing true facts shall be liable to imprisonment of not more than five years or a fine.” Whether the victim of deliberately misleading statements has acted carelessly him- or herself is traditionally considered irrelevant by German courts and legal doctrine. This means that even the most blatantly obvious misrepresentation may basically be considered fraudulent conduct.247 By contrast, the European consumer concept is based on the notion Patterned on ECJ, Judgment of 10th July 2014, Case C-358/13 “Markus D.”. German Act on Medical Products (Gesetz u¨ber den Verkehr mit Arzneimitteln [AMG]), at the time the offence was committed applicable in the version of 17th July 2009 (Federal Law Gazette [BGBl.] 2009 I, p. 1990). 245 OJ (EC) 2001 No. L 311, p. 67, in the version altered by Directive 2004/27/EC (OJ [EC] 2004 No. L 136, p. 34). 246 ECJ, Judgment of 10th July 2014, Case C-358/13 “Markus D.”, para. 48. 247 BGH, Judgment of 22nd October 1986, 3 StR 226/86 = NJW 1987, 388, 388 et seq. 243 244

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of “an average consumer who is reasonably well informed and reasonably observant and circumspect”248. This evaluative difference may lead to conflicts between the traditional German definition of fraudulent conduct and art. 34 TFEU. Imposing criminal law sanctions for cross-border trade must be considered a measure having equivalent effect (to a quantitative restriction) for the purposes of art. 34 TFEU. It is submitted that this measure could not be justified under the requirements of the ECJ’s Cassis de Dijon caselaw249 by requirements of consumer protection because the German concept of consumer protection differs too strongly from the one established by the ECJ. Consequently, if blatantly inaccurate descriptions of products were considered fraud under German criminal law, § 263 StGB would be – in this respect – neutralised by art. 34 TFEU. In order to prevent this neutralising effect, the interpretation of § 263 StGB – at least as far as cross-border trade is concerned – has to be adapted to the European consumer concept.250 By contrast, the assumption that European legal provisions must have surpassed a certain threshold in order to become relevant for criminal law and thus must be continuously tested as to their actual impact on criminal law251, is based on an antiquated conception of the relations between EU law and criminal law; there is precisely no criminal law privilege. 105 Another example in this regard is set by environmental criminal law which is linked to terms and definitions found in environmental administrative law which, in turn, is influenced strongly by European law (cf for instance the definition of “waste” in § 326 StGB).252 By way of a reform of environmental criminal law in December 2011253 the German legislator has transposed the Directive of the European Parliament and the Council on the protection of the environment through criminal law (2008/99/EC) into national law, thereby expressing that also the already existing offences serve the implementation of obligations set by Union law and must be interpreted accordingly.254 In a recent judgment, the BGH addressed implications of European law for § 266 a (1) StGB (Non-payment and misuse of wages and salaries). Under this section it is a criminal offence inter alia for an employer to withhold due contributions to the social security system. If the term “obligation” is interpreted in the context of European law, withholding payments is not an offence if the payment of contributions cannot be required in Germany pursuant to European social law.255

248 ECJ, Judgment of 13th January 2000, Case C-220/98 “Lifting Creme” ECR 2000, I-117, para. 27; with regard to secondary law, see recently BGH, Judgment of 5th March 2014, 2 StR 616/12 = NJW 2014, 2595 and BGH, Judgment of 28th May 2014, 2 StR 437/13 = NStZ-RR 2014, 309, where this consumer concept is rendered more flexible (but probably in an undue general way); cf also Heger, HRRS 2014, 467 et seqq. 249 Fundamentally ECJ, Judgment of 20th February 1979, Case 120/78 “Cassis de Dijon” ECR 1979, 649. 250 In detail SSW-StGB-Satzger, § 263 StGB paras 66 et seq. In the same vein also Dannecker, Jura 2006, 173, 174 et seq.; Hecker, Strafbare Produktwerbung, pp. 282 et seqq.; id., Eur. Strafrecht, § 9 paras 33 et seqq.; these authors appear to consider this a matter of supremacy of EU law. In opposition to such a restrictive interpretation in conformity with European law of § 263 StGB: BGH, Judgment of 5th March 2014, 2 StR 616/12 = NJW 2014, 2595, 2596 et seq. 251 Apparently in this sense, however, BGH, Judgment of 5th March 2014, 2 StR 616/12 = NJW 2014, 2595, 2596 et seq., but with regard to the interpretation in conformity with Directive 2005/29/EC; reaching the same result: BGH, Judgment of 28th May 2014, 2 StR 437/13, para. 24 = NStZ-RR 2014, 309, 309 et seq. On the two lines of reasoning, see Heger, HRRS 2014, 467, 469 et seq. 252 For the European influence on the definition of waste, see Satzger, Europa ¨isierung, pp. 600 et seqq.; Heine, in: Mu¨ller-Dietz et al. (eds), FS Jung, pp. 268 et seqq. In general for the influences of European law of environmental criminal law, see Hecker, ZStW 115 (2003), 880 et seq.; id., JuS 2014, 385, 390 et seq. 253 Federal Law Gazette (BGBl.) 2011 I, p. 2557. 254 In detail Heger, HRRS 2012, 211, 212 with a good overview of the individual innovations. 255 BGH, Judgment of 24th October 2006, 1 StR 44/06 = NJW 2007, 233; in this case, the lack of an obligation to make contribution payments was based on a fiction due to a European certificate. See in detail Hauck, NStZ 2007, 218, 221 et seq.; F. Zimmermann, ZIS 2 (2007), 407 et seqq.

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cc) Crimes of Negligence. Notably a glance at the crimes of negligence demonstrates 106 that European law may decisively influence the interpretation of elements of an offence formulated in a comprehensive-clause style.256 Any possible indirect effect of European law would attach to the requirement of a violation of a duty of care, which is common to all crimes of negligence. The duty of care requires everyone to identify dangers for a protected legal interest which might arise from a specific situation and to adjust one’s conduct accordingly.257 The judge has to determine the content of the duty of care in each particular case from an ex ante perspective according to what could be expected of a considerate and conscientious third party in the social position of the offender.258 The content of such an (objective) duty of care is determined on the basis of an individual assessment of the case at hand. The degree of appropriate care is limited by those risks which the offender is allowed to take: certain foreseeable risks which are necessarily connected to dangerous conduct are considered actually or presumably beneficial for the realisation of other legal interests and therefore not negligent (e. g. driving a car or operating a power plant). It is often a difficult task for the judge to assess the content and range of the 107 appropriate diligence. However, he is assisted in this task where specific guidelines for a certain situation exist. Irrespective of whether these guidelines are legally binding or found in a private set of rules, the judge may consult them as codified experience for a certain area of life259 and consider them as indicators for the appropriate standard of care.260 The judge may – at a European level – take European legislative acts into consideration as well as private European sets of rules (such as CEN, CENELEC) since it is of no consequence whether the guidelines are legally binding or not. It must be noted that a rule may mandatorily limit the duty of care. This of course 108 only applies to legally binding rules. If legislators allow or demand a certain conduct, they implicitly accept its dangerous consequences for the legal interests of others or the general public. It would be contradictory to punish someone for negligence who has acted in accordance with the applicable law. An exception is to be made only for those cases in which the danger or harm was patently foreseeable in spite of the abstract assessment made by the legislators.261 Guidelines which are found in European regulations or directives may likewise impose a limit to the duty of care by establishing a standard for permissible risk. Example: Directive 2009/48/EC of the European Parliament and the Council of 18th June 2009 on the safety of toys262 contains detailed safety requirements for toys in Annex II. With regard to the protection of children, safety values for certain toxic substances are established. The share in arsenic for example may only be 0,9 mg/kg at the 256

Cf Hecker, JuS 2014, 385, 392 et seq. Wessels/Beulke/Satzger, para. 942. See the definition in § 6 Criminal Code of Austria (StGB-Austria). 258 BGH, Judgment of 11th February 1955 = NJW 1955, 1038; BGH, Judgment of 25th September 1990, 5 StR 187/90 = NJW 1991, 501; Jescheck/Weigend, § 55 I 2 b. 259 Similar Ku ¨ hl, Strafrecht AT, § 17 para. 15. 260 BGH, Judgment of 23rd April 1953, 3 StR 894/52 = NJW 1954, 121; BGH, Judgment of 10th July 1958, 4 StR 180/58 = NJW 1958, 1980; OLG Karlsruhe, Judgment of 16th December 1999, 3 Ss 43/99 = NStZ-RR 2000, 141; Lackner/Ku¨hl-Ku¨hl, § 15 StGB para. 39; Gropp, AT, § 12 paras 30 et seq.; Wessels/ Beulke/Satzger, para. 947; for a differing view, see MK-Duttge, § 15 StGB para. 114. 261 Satzger, Europa ¨isierung, pp. 610 et seqq.; for a detailed overview, cf MK-Duttge, § 15 StGB paras 135 et seqq. 262 OJ (EC) 2009 No. L 170/1; transposed into German law by the second regulation regarding the law on safety of appliances and products (Zweite Verordnung zum Gera¨te- und Produktsicherheitsgesetz – 2. GPSGV) of 7th July 2011 (Federal Law Gazette [BGBl.] 2011 I, p. 1350, 1470). 257

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highest in liquid or sticky toy material. If a producer of toys complies with this requirement, the risk he takes concerning the children’s health is – under ordinary circumstances – permissible. He would not be liable for bodily injury caused by negligence (in Germany § 229 StGB) if a child were to be poisoned with arsenic due to playing with such a legally manufactured toy. The provision found in the directive’s annex must be considered when interpreting the criminal law provision – after the directive has been adopted and even before the national legislator has implemented it into German law. This view is, however, disputed.263 109

It has to be noted that by taking into account EU standards of care when interpreting a national offence of negligence the limits of any interpretation in conformity with EU law must not be violated. Those offences are phrased openly and need to be specified by interpretation. The criminal conduct is only specified in a rather general way by the national legislator and thus a considerable amount of substantiation is left to the judge. With regard to the principle of definiteness, one might in general be concerned about the definition of substantial elements of a criminal offence being in the hands of judges, since this task usually lies with the legislators.264 Accepting this practice necessarily goes hand in hand with enhancing the scope of judicial discretion. The greater the judge’s margin of interpretation, the more influence may be attributed to European prescriptions. This practice is, as is submitted, in line with the national limits for an interpretation in the context of European law set out above (wording, purpose).

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dd) Sentencing. As seen above, the legal consequences of a domestic criminal law provision may conflict with European law resulting in colliding domestic law being neutralised. However, in these cases European law does not prevent criminal conduct from being punished. Not the offence itself but merely the sanctions imposed do not comply with European prerequisites. Neutralising the criminal offence as a whole in those cases would encroach upon the legislators’ decision to penalise the respective conduct. This conflict between domestic sentence and European law can be avoided by interpreting sentencing provisions in the light of European law. According to the ECJ, “it is the task of the national court to use its judicial discretion to impose a punishment appropriate to the character and objective of the provisions of [Union] law the observance of which the penalty is intended to safeguard.”265 While deliberating on the sentence for a crime, the judge must therefore also consider European law to the extent to which this is possible under domestic law: a neutralisation of the criminal offence (see para. 78) may be avoided by an interpretation in the light of European law. Where this proves to be impossible, this entails the unsatisfying consequence that criminal conduct may not be punished at all.

4. Relevance of Framework Decisions for the Application of Criminal Law 111

What has been said above concerning the neutralisation of criminal law provisions and the interpretation in the light of European law applies to all supranational legal acts passed by the European Union (or European Communities, respectively). The principles described earlier may not, however, be automatically extended to framework decisions which used to be a legislative measure under the former third pillar of the European Union. According to art. 9 of Protocol No. 36 on transitional provisions annexed to the 263 For more information regarding this dispute, cf Streinz-Schroeder, art. 288 AEUV para. 130; with regard to the e-commerce directive (OJ [EC] 2000 No. L 178/1), see also Satzger, CR 2001, 109, 114 et seq. 264 See Schlu ¨ chter, Grenzen strafbarer Fahrla¨ssigkeit, pp. 18 et seq. 265 ECJ, Judgment of 14th July 1977, Case 8/77 “Sagulo” ECR 1977, 1495, para. 12.

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TEU, the TFEU and the Euratom Treaty by the Treaty of Lisbon,266 the legal effects of these framework decisions are preserved until the acts (generally by way of a directive267) “are repealed, annulled or amended in implementation of the Treaties”. The restrictions that had been set up for a five-year transitional period (exclusion of the infringement procedure by the Commission, only partial jurisdiction of the ECJ) have ceased since 1st December 2014.268 The unaltered framework decisions preserve their previous legal effect; they do not constitute directives and may therefore not be treated as such.269 Correctly understood, subsequent alterations of individual parts of the framework decisions by directives do neither bring about a transformation of the entire legal act into a directive – comparable to King Midas’ “golden touch”. Only those parts of the framework decision that have actually been modified by the directive do actually gain the character of a directive. The remaining parts keep their character as framework decisions. Hence, “mixed legal acts” emerge. Quite unlike directives, framework decisions, however, never have direct effect (cf art. 34 (2) (b) TEU o.v.)270 and, consequently, can under no circumstances neutralise a domestic provision. Yet domestic criminal law and criminal procedural law have to be interpreted in the light of framework decisions. In 2005, the ECJ found such an obligation in the case of “Pupino271 on the grounds of similarities between directives and framework decisions and the duty of loyalty which – according to the Court – also applied to the third pillar. Since framework decisions remain in force, they will also continue to have indirect effect on domestic law because the obligation to interpret it in conformity with the framework decisions persists as well.272 However, the limits to an interpretation open towards European law must be abided by also in this context (see para. 90).273 Therefore, criminal liability may never be based solely on a framework decision.274 As a result, no methodological differences remain between interpretation in the context of European law in general and the effect of framework decisions. Dispute among scholars had arisen in the past as to whether the indirect effect attributed to framework decisions was compatible with the former structure of the European Union.275 This question is, however, of no further relevance today. 266

Protocol No. 36 on transitional provisions, OJ (EU) 2008 No. C 115/322. Comprehensively on this point Satzger, NJECL 7 (2015), 528, 530. 268 See art. 10 of Protocol No. 36 on transitional provisions. 269 On the issue of the legal nature of a framework decision that has been altered by a directive, see Satzger, NJECL 2015, 528, 529 et seqq. 270 In agreement Grasso, NJECL 7 (2015), 494, 497; Karsai, ZIS 11 (2016), 24, 31 et seqq; Lenaerts, ICLQ 2010, 255, 270 et seq.; Schwarze-Herrnfeld, art. 67 AEUV, paras 37 et seqq.; in disagreement – however, unconvincing in his reasoning (after the transition period the lack of an explicit provision on the primary law of EU forms of actions according to art. 34 TEU o.v. must be addressed by resort to art. 288 TFEU; in consequence, the exclusion of direct applicability of framework decisions no longer applies) – Grabitz/Hilf/Nettesheim-Ro¨ben, art. 67 AEUV, para. 162. 271 ECJ, Judgment of 16th June 2005, Case C-105/03 “Pupino” ECR 2005, I-5285; see Hillgruber, JZ 2005, 841; Safferling, Int. Strafrecht, § 11 para. 51 et seq.; Tinkl, StV 2006, 36, 39; Unger, NVwZ 2006, 49. 272 Likewise Lenaerts, ICLQ 2010, 255, 270 et seq.; Schwarze-Herrnfeld, art. 67 AEUV, paras 37 et seqq. 273 See BGH, Judgment of 3rd December 2009, 3 StR 277/09, para. 28 = NJW 2010, 1979, 1981. 274 ECJ, Judgment of 16th June 2005, Case C-105/03 “Pupino” ECR 2005, I-5285, paras 43–45. 275 Rackow, ZIS 3 (2008), 526, 529 et seq.; see Ga ¨ nswein, Grundsatz unionsrechtskonformer Auslegung nationalen Rechts, pp. 126 et seqq. with further references. 267

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§8 Criminal Law Enforcement in Europe Contents I. Institutions of Law Enforcement within the EU. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Europol . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Eurojust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. The European Anti-Fraud Office (OLAF) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. The Future European Public Prosecutor’s Office. . . . . . . . . . . . . . . . . . . . . . . . . . a) History and Basis in Primary Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Background of the Establishment of a European Public Prosecutor’s Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. The Judicial Cooperation in Criminal Matters on the Basis of the Principle of Mutual Recognition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. The Principle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. The Codification of the Principle of Mutual Recognition in art. 82 TFEU a) Scope of Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Distinction from Approximation Measures Pursuant to art. 82 (2) TFEU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Legislative Acts on the Basis of the Principle of Mutual Recognition . . . a) The European Arrest Warrant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . aa) The Framework Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . bb) The Implementation of the Framework Decision within the Member States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) European Supervision Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c) Mutual Judicial Assistance Concerning Evidence and the European Investigation Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . d) Assistance in Enforcement of Criminal Penalties . . . . . . . . . . . . . . . . . . . . . . 4. The Prohibition of Double Jeopardy (ne bis in idem). . . . . . . . . . . . . . . . . . . . . a) Merely Internal Effect of ne bis in idem as the General Rule . . . . . . . . . b) Sanctions in Multiple Member States Based on the Same Facts . . . . . . aa) Necessity for and Concept of a European ne bis in idem Principle bb) The Relationship between art. 54 CISA and art. 50 CFR . . . . . . . . . c) Elements and Uniform Application of art. 54 CISA . . . . . . . . . . . . . . . . . . . aa) “Decision Finally Disposing of the Trial”. . . . . . . . . . . . . . . . . . . . . . . . . . bb) “The Same Acts”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . cc) Enforcement Element. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . dd) The Prohibition of Double Jeopardy as a Ground for NonEnforcement of a European Arrest Warrant . . . . . . . . . . . . . . . . . . . . . . III. Exchange of Information and the Principle of Availability in Particular. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Approximation of Criminal Procedural Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Fields of Application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Mutual Admissibility of Evidence between Member States (lit. a). . . . b) The Rights of Individuals in Criminal Procedure (lit. b) . . . . . . . . . . . . . . c) The Rights of Victims of a Crime (lit. c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . d) Other Specific Aspects of Criminal Procedure (lit. d) . . . . . . . . . . . . . . . . . 2. “Emergency Brake” (art. 82 (3) TFEU) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Excursus: Manifesto on European Criminal Procedure Law . . . . . . . . . . . . . . . .

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2 3 11 18 21 21 22 26 26 32 33 34 37 37 37 40 46 47 55 59 60 61 61 65 69 71 78 80 85 86 90 91 92 93 98 99 100 101

While the previous sections of this book mainly focused on substantive criminal law, the following section will contain an overview of the most important institutions, developments and problems with respect to cross-border criminal law enforcement throughout Europe. It comes as no surprise that in the aftermath of the terrorist attacks on the World Trade Center on 11th September 2001 and deplorably numerous similar events throughout Europe, this issue has moved to the centre of legal policy considerations. 124

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In art. 67 (1) TFEU, the European Union claims to be an area of freedom, security and justice. According to art. 67 (3) TFEU, its aim is to provide citizens with a high level of safety by means of selected measures and policies. The triad of “freedom – security – justice” emphasises that the aspired “plus” in security must not be attained at the expense of freedom, but that instead a balanced relation between the often quite antagonistic aspects of freedom and security must be preserved.1 As paragraph 3 of the provision shows, measures selected by the Union can concern the coordination and cooperation of police authorities and other law enforcement services (I.), the mutual recognition of (especially judicial) decisions in the field of criminal law (II.) and finally – if necessary – the harmonisation of criminal law (III.). The cross-border ban on double punishment (ne bis in idem) within the EU is a very important – and for the accused quite favourable – manifestation of the principle of mutual recognition (IV.).

I. Institutions of Law Enforcement within the EU For the purpose of facilitating cooperation between national police authorities and 2 other law enforcement services, the European Police Office (called “Europol”) and the central European authority for judicial cooperation (called “Eurojust”) were established. Furthermore, to step up the fight against fraud, corruption and other criminal activities at the expense of the EU, the European Anti-Fraud Office (OLAF) was founded as a department of the Commission which is not subject to directives.

1. Europol Pursuant to the Europol-Convention2 on 26th July 1995, Europol was founded on the 3 basis of art. K.3 TEU (in the version of the Maastricht Treaty)3 as an international organisation seated in The Hague. After this convention had come into force on 1st October 1998, the European Police Office was able to commence its operations on 1st July 1999. The choice of a convention as a legal basis proved impractical and rather cumbersome with respect to its modifiability, because the ratification by all Member States is required before any changes to the convention become effective. For this reason, Europol had been put on a new footing within secondary law by decision of the Council (which could enter into force without a lengthy ratification process) on the basis of the Treaty of Nice.4 On 11th May 2016 this decision was repealed and replaced by a regulation adopted by the European Parliament and the Council acting according to art. 88 (2) TFEU, which governs Europol’s structure, operation, field of action and tasks (Europol Regulation).5 According to art. 9 of the Europol Regulation, Europol has two main organs: the 4 Management Board, which is staffed by the Member States and decides on fundamental issues extending beyond daily practice and the Executive Director, who is responsible 1

COM (1998) 459 final, pp. 1, 11. OJ (EC) 1995 No. C 316/2; the Convention is complemented by the Protocol on the interpretation, by way of preliminary rulings, by the Court of Justice of the European Communities (OJ [EC] 1996 No. C 299/2) as well as by the Protocol on the privileges and immunities of Europol, the members of its organs, the deputy directors and the employees of Europol (OJ [EC] 1997 No. C 221/2); cf Fletcher/Lo¨o¨f/Gilmore, EU Criminal Law, pp. 76 et seq.; Mitsilegas, EU Criminal Law, pp. 161 et seq. 3 As to the predecessor of Europol, the European Drug Unit, see de Moor/Vermeulen, CMLR 47 (2010), 1089, 1090 et seqq. and Hecker, Eur. Strafrecht, § 5 paras 57 et seq.; cf also Safferling, Int. Strafrecht, § 12 para. 4; Neumann, in: Sieber et al. (eds), Europ. StR, § 44 paras 1 et seqq. 4 Council Decision 2009/371/JHA, 6th April 2009, OJ (EU) 2009 No. L 121/37. 5 Reg. (EU) 2016/794 of 11th May 2016, OJ (EU) 2016 No. L 135/53). 2

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for day-to-day operations. Where appropriate, the Management Board can establish other advisory bodies in order to fulfil its functions. 5 According to art. 88 (1) TFEU, the competence of Europol extends to organised crime, terrorism and other “forms of crime which affect a common interest covered by a Union policy.” For the concretisation of these other crimes, art. 3 (1) of the Europol Regulation, refers to Annex I of the regulation. This annex contains a list which clarifies that inter alia drug trafficking, immigrant smuggling, trafficking in human beings, murder, swindling and fraud, computer crime and corruption fall within the competence of Europol. 6 However, unlike the domestic police forces of the Member States, the European Police Office is not (yet)6 an operational police with executive authority. The tasks of Europol are limited to the enhancement of cooperation between national police authorities and the support for law enforcement within the Member States.7 For this purpose, each Member State establishes or dedicates a National Unit to form the sole connection between Europol and the responsible national law enforcement services (art. 7 Europol Regulation), which shall designate at least one Liaison Officer to be attached to Europol (art. 8 Europol Regulation). The latter’s responsibility is to guarantee a smooth and efficient exchange of information between his or her National Unit and Europol as well as his or her Member State and other Liaison Officers.8 7 For the completion of its tasks, Europol maintains an automated system of information9 with which data is collected and analysed in order to be made available to the Member States. It contains data on persons who are suspected or convicted of having committed or taken part in a criminal offence falling within the competence of Europol, or persons regarding whom there are factual indications or reasonable grounds to believe that they will commit such an offence (art. 18 (2) Europol Regulation). Information may be provided to Europol by the Member States (through their National Units or other competent authorities) and, more restrictively, by Union bodies, third countries, international organisations as well as private parties and private persons (art. 17 (1) Europol Regulation). Moreover, Europol may directly retrieve and process information, including personal data, from publicly available sources (art. 17 (2) Europol Regulation). Generally, the Europol Regulation implements a differentiated system of access to the information thus collected by Europol. Direct access is only granted to Member States (through their National Units or other competent authorities) for the purpose of cross-checking aimed at identifying connections or other relevant links between information related to the persons described above and additionally in relation to analyses of a strategic or thematic nature (art. 20 (1); 18 (2) (a), (b) Europol Regulation). Moreover, Europol staff empowered by the Executive Director is granted (direct) access to all information processed by Europol to the extent required for the performance of their duties (art. 20 (4) Europol Regulation).

6 Cf art. 88 (2) subpara. 1 TFEU on a possible extension of tasks. Even if Europol can in general be entrusted with competences to implement investigative and operational action, art. 88 (3) TFEU clearly states that this implementation is only possible in cooperation with the administrative authorities of the Member States whose territory is concerned. The application of coercive measures is the exclusive responsibility of those. 7 On the specific tasks exercised by Europol, see art. 4 Europol Regulation. 8 See also Schuster, Kriminalistik 2000, 74, 78 et seq.; Klimek, in: Be ˇ lohlávek et al. (eds), Czech Yearbook of International Law, pp. 209, 220 et seqq. 9 For further information, see Klimek, in: Be ˇ lohlávek et al. (eds), Czech Yearbook of International Law, pp. 209, 219 et seq.; for the Europol information system from the point of view of the police, see Manske, Kriminalistik 2001, 105.

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With a view to the main function of Europol as a unit for the collection and exchange 8 of data, the protection of privacy is an important element of the Europol Decision. Chapter VII of the Europol Regulation therefore implements a detailed system of data protection, which is intended to create an autonomous regime of high level protection of individual rights, consistent with other data protection instruments applicable in the area of police cooperation in the Union.10 According to art. 43 Europol Regulation, the European Data Protection Supervisor 9 (EDPS) monitors the protection of fundamental rights and freedoms of natural persons with regard to the processing of personal data by Europol. Any individual subjected to actions of Europol may file a complaint with the EDPS under art. 47 Europol Regulation. Moreover, art. 48 Europol Regulation grants the individual a right to judicial remedy against any decision of the EDPS before the Court of Justice of the European Union. Most progressively, art. 50 (1) Europol Regulation grants any individual who has suffered damage as a result of an unlawful data processing operation the right to receive compensation for damage suffered, either from Europol or a Member State. Compensatory remedies are granted either by the Court of Justice or the competent national courts respectively. This differentiated system of judicial review and compensation under the EDPS replaced the former joint supervisory body, which had been charged with the general review of legality under the replaced art. 34 Europol Decision.11 But formerly, any judicial review of the supervisory body’s decision had been excluded by art. 34 (8) of the Europol Decision. As such a purely internal control mechanism could – as was often 10 11

See clause 40 of the preamble to the Europol Regulation. Council Decision 2009/371/JHA, 6th April 2009, OJ (EU) 2009 No. L 121/37.

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criticised – neither meet the international standards of fair trial (art. 6 ECHR), due process and the right to access to court nor the specific standards of national constitutional law12 the adoption of the Europol Regulation constitutes a positive development in terms of the protection of individual rights. 10 Controversial issues concern the democratic legitimacy of Europol13, as well as – particularly with regard to future developments – its integration into the judicial system and the immunity of Europol Directors and staff under art. 63 (1) Europol Regulation in connection with art. 11 of the Protocol on the Privileges and Immunities of the European Union14. At least in cases where the EU provides Europol with own powers to take action based on art. 88 TFEU, legal protection (regarding individual acts of data protection or regarding operative action) must be obtainable before national courts with the possibility to request a preliminary ruling of the ECJ (art. 267 TFEU); this is required according to art. 47 CFR.15 Accordingly, a (further) limitation of the immunity of Europol employees becomes necessary. To date, Europol-employees that are part of joint investigation teams are not excluded from national jurisdiction;16 in case of future equipping of Europol with operative competences, immunity may not be extended to the employees involved.17

2. Eurojust As a structure mirroring Europol on the judicial side a central European unit for judicial cooperation, called Eurojust, was founded by decision of 28th February 200218 in accordance with the agreement at the Tampere European Council19. It has legal personality and – like Europol – is seated at The Hague.20 Since the implementation of the Treaty of Lisbon, Eurojust is based in primary law (art. 85 TFEU). 12 Eurojust must not be confused with the so-called European Judicial Network (EJN): This term refers to a network of contact points in the individual Member States which was established in 1998 by a Joint Action21 and aims to prepare and simplify the judicial cooperation between Member States particularly in the area of mutual legal assistance. The EJN maintains a secretariat in The Hague. The national contact points are designated 11

12 E. g. the German art. 23 (1) in connection with art. 79 (3) GG, which requires a standard of protection of fundamental rights at the European level that is generally equivalent to that under the GG; see also Calliess/Ruffert-Suhr, art 88 AEUV paras 8, 26 et seq.; Frowein/Krisch, JZ 1998, 589. 13 Cf on this the proposals of the Commission in COM (2010) 776 final. 14 Protocol No. 7 on the Privileges and Immunities of the European Union, OJ (EU) 2008 No. C 115/ 266; see also with further references von Arnauld, JA 2008, 327, 332 et seqq.; Streinz-Danneker, art. 88 AEUV paras 30 et seqq. 15 Grabitz/Hilf/Nettesheim-Ro ¨ ben, art. 88 AEUV para. 26. 16 Reg. (EC) No. 371/2009 amending Reg. (Euratom, ECSC, EEC) No. 549/69 determining the categories of officials and other servants of the European Communities to whom the provision of art. 12, 13 (2) and art. 14 of the Protocol on the Privileges and Immunities of the Communities apply, OJ (EU) 2009 No. L 121, p. 1. 17 Streinz-Dannecker, art. 88 AEUV para. 34. 18 Council Decision 2002/187/JHA, OJ (EC) 2002 No. L 63/1; last amendment by Council Decision 2009/426/JHA, OJ (EU) 2009 No. L 138/14; see also Grotz, in: Sieber et al. (eds), Europ. StR, § 45 paras 1 et seqq.; for more details about Eurojust, cf Fletcher/Lo¨o¨f/Gilmore, EU Criminal Law, pp. 65 et seq.; Klip, Eur. Criminal Law, pp. 498 et seqq. 19 Conclusion No. 46. 20 As early as 3rd January 2001, a provisional judicial cooperation unit called Pro-Eurojust had started working on the basis of Council Decision 2000/799/JHA, OJ (EC) 2000 No. L 324/2. It was later replaced by Eurojust, see Barbe, RMC 44 (2002), 5, 7. 21 Joint Action 98/428/JHA, OJ (EC) 1998 No. L 191/4; replaced by Council Decision 2008/976/JHA, OJ (EU) 2008 No. L 348/130; on this topic, see also Klip, Eur. Criminal Law, pp. 502 et seqq.

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by the Member States (in Germany e. g. the Federal Office of Justice [Bundesamt fu¨r Justiz]). In total, there are over 350 such contact points throughout the EU. Especially due to its informal nature and simplicity as well as the use of personal contacts, practitioners have highlighted the great effectiveness of the EJN. Hence it forms an important element of cross border cooperation within the EU.22 The primary function of Eurojust is to act as a “unit for documentation and clearance” in order to facilitate cross-border criminal law enforcement.23 Similar to the structure of Europol, Eurojust is staffed with so-called “national members” (judges, public prosecutors or police officers). Their status and authority depend entirely on national law. Like their domestic colleagues, they have access to national criminal records. On the one hand, this is supposed to ensure Eurojust’s role as a central unit for fast legal advice and effective exchange of information between Member States who are jointly engaged in law enforcement. On the other hand, the fact that the national members themselves may exercise their law enforcement authority under national law – preferably to the same extent as their domestic colleagues – implies that the unit’s purpose is to facilitate cross-border law enforcement.24 Additionally, Eurojust aims at a coordination of measures of prosecution and law enforcement in order to avoid redundant duplication of work and jurisdictional conflicts. Apart from the transfer of information, its task is mainly to assist national authorities, for instance through proposals concerning ongoing investigations, the commencement of investigations or in the area of mutual legal assistance. According to art. 85 (1) TFEU, Eurojust is responsible for serious crimes affecting two or more Member States or requiring a prosecution on common bases. Art. 4 Eurojust Decision (which remains valid also after the entry into force of the Lisbon Treaty according to art. 9 of Protocol No. 36 to the Treaty of Lisbon25) links the competence of Eurojust to the catalogue of competences of Europol.26 On the basis of art. 85 (1) subpara. 2 TFEU, the area of action allocated to Eurojust can, in the future, be determined by regulation.27 Eurojust is authorised to process data automatically. As with Europol, the protection of privacy is ensured by detailed legal provisions and the installation of an independent data protection officer within Eurojust. Furthermore, a joint supervisory body has been established which – notwithstanding national remedies – oversees the processing of personal data and decides upon respective complaints by individuals. The aforementioned Council Decision by which Eurojust was founded had no direct effect. The Member States therefore had to transpose the decision into national law. In Germany, for instance, the so-called Eurojust-Gesetz28 was passed. After the implementation of a future regulation based on art. 85 (1) subpara. 2 TFEU, Eurojust will be based on supranational law, which will minimise the importance of national legislation at least in this respect.

22

For further information, see http://www.ejn-crimjust.europa.eu (last visited July 2017). Cf Schomburg, ZRP 1999, 237, 239; thoroughly Suominen, MJECL 9 (2008), 217, 222 et seqq. 24 See Barbe, RMC 44 (2002), 5, 8. 25 Regarding Protocol No. 36 see § 7 para. 33 and para. 111. 26 See Annex I of the Europol Regulation, Reg. (EU) 2016/794 of 11th May 2016, OJ (EU) 2016 No. L 135/53). 27 The Commission has already submitted a corresponding proposal for a regulation, COM (2013) 535 final; on this, see para. 17. 28 Act for the implementation of the Council Decision 2002/187/JHA of 28th February 2002 setting up Eurojust with a view to reinforcing the fight against serious crime (Eurojust-Act – EJG), Federal Law Gazette (BGBl.) I of 2004, pp. 902 et seqq. 23

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The essential role of Eurojust was often perceived as providing a judicial counterweight to Europol, which might assume increasing executive authority in future.29 Eurojust was therefore seen as a kind of nucleus of a prospective European Public Prosecutor’s Office; this is reflected in the wording of art. 86 (1) subpara. 1 TFEU, which authorises the creation of a European Public Prosecutor’s Office “from Eurojust”.30 Hence, the structure and function of Eurojust will have to be reformed when the European Public Prosecutor’s Office is established. On 17th July 2013 the Commission issued a package of measures in order to strengthen the institutional protection of the European Union’s financial interests.31 The individual proposals it contains are carved out to fundamentally reform the antifraud strategy on a European level.32 Whilst its core is a draft regulation on the establishment of a European Public Prosecutor’s Office33 it also contains a proposal to re-structure Eurojust34 (as well as a reform of OLAF35). According to the proposal for a Eurojust-regulation, Eurojust itself is set out to continue its work as a “clearing- and documentation institution” aside a prospective European Public Prosecutor’s Office. In order to clearly differentiate the remits of the two institutions, the structure as well as the tasks and competences of Eurojust must be fundamentally reformed.36

3. The European Anti-Fraud Office (OLAF) 18

The European Anti-Fraud Office is referred to simply as OLAF, which is short for its French name Office europe´en de lutte antifraude. Its task is to strengthen the fight against fraud, corruption and other illegal activity adversely affecting the financial interests of the EU and to expose cases of serious professional misconduct by members of the EU staff.37 Unlike Europol or Eurojust, OLAF does not have legal personality, but rather is a department of the Commission. In contrast to its predecessor organisation UCLAF (short for its French name Unite´ de Coordination pour la Lutte Anti-Fraude [Task Force for the coordination of fraud prevention]) – a mere task force for the coordination of the fight against fraud which was installed by the Commission in 1988 – OLAF is fully independent. The demand for the creation of an independent office became more urgent after suspicions of corruption within the Commission had become more and more concrete in connection with the resignation of the Commission in 1999.38

29 For the question how Eurojust could be integrated into the judicial control of Europol, see Grote, in: Gleß et al. (eds), Justitielle Einbindung und Kontrolle von Europol, p. 607; on the general criticism of Eurojust, see Grabitz/Hilf/Nettesheim-Vogel/Eisele, art. 85 AEUV paras 35 et seq. 30 On this Grabitz/Hilf/Nettesheim-Vogel/Eisele, art. 86 AEUV paras 14 et seqq. 31 COM (2013) 532 final. 32 Esser, StV 2014, 494, 495. 33 COM (2013) 534 final; in more detail paras 22 et seqq. 34 COM (2013) 535 final; for further information, see Mitsilegas, EU Criminal Law after Lisbon: Rights, Trust and the Transformation of Justice in Europe, pp. 94 et seqq. 35 More on this forthwith at 3. 36 Cf the reasoning in the regulation-proposal COM (2013) 535 final, pp. 2 et seqq., as well as Brodowski, ZIS 8 (2013), 455, 462; id., ZIS 10 (2015), 79, 85; Esser, StV 2014, 494, 498. 37 Art. 1 Commission Decision 1999/352/EC, OJ (EC) 1999 No. L 136/20. In detail on the investigative powers and especially their character, see Strobel, Die Untersuchungen des Europa¨ischen Amtes fu¨r Betrugsbeka¨mpfung, 2012, pp. 107 et seqq.; Stefanou/White/Xanthaki, OLAF at the Crossroads – Action against EU Fraud, pp. 77 et seqq. 38 Cf only the decisions of the Parliament of 28th October 1996, OJ (EC) 1996 No. C 320/211 and 7th October 1998, OJ (EC) 1998 No. C 328/95; for the background of these decisions, see Gleß, EuZW 1999, 618; Stefanou/White/Xanthaki, OLAF at the Crossroads – Action against EU Fraud, pp. 9 et seqq.

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OLAF was established by a decision of the Commission on 28th April 199939 and 19 started its work on 1st June 1999. OLAF is headed by a director-general nominated by the Commission following consultation with the European Parliament and the Council.40 He or she has the duty to report to the Parliament, the Council and the European Court of Auditors.41 The independence of OLAF is protected by a five-person Surveillance Committee;42 the director even has the right to bring an action before the ECJ if he or she believes OLAF’s independence to be endangered.43 As part of OLAF’s extensive competences against fraud, corruption and other illegal activity affecting the financial interests of the EU – which were previously specified in Reg. (EC) 1073/9944 and can now be found in regulation (EU, Euratom) 883/201345 – it may also exercise the competences for external investigations46 already granted to the Commission in Reg. (EC, Euratom) 2988/9547 and Reg. (EC, EAEC) 2185/9648. On this basis, OLAF may in particular conduct spot checks and inspections in order to protect the European Communities’ financial interests against fraud and other irregularities. In certain areas, where fraud against the EU seems to be particularly lucrative, OLAF has installed Task Groups for the oversight of products such as cigarettes, alcohol or olive oil. Furthermore, OLAF has the authority to initiate and conduct “administrative 20 investigations within the institutions, bodies, offices and agencies” of the Union.49 In doing so, it can make use of extensive investigative competences, for instance including access to all information and locations, the scrutiny and – if necessary – seizure of documents as well as the auditing of accounts.50 The aforementioned package of measures for strengthening the institutional protection of the European Union’s financial interests (see para. 17) also envisages a fundamental re-structuring of OLAF.51 Within the European Public Prosecutor’s Office’s ambit of competences52 i. e. the prosecution of crimes against the European Union’s financial interests, OLAF itself shall no longer conduct investigations.53

39 Commission Decision 1999/352/EC, OJ (EC) 1999 No. L 136/20; for more details about OLAF, cf Mitsilegas, EU Criminal Law, pp. 210 et seq. 40 Art. 17 Reg. (EU, Euratom) No. 883/2013; furthermore already art. 5, 6 of the Commission’s decision. 41 Art. 17 Reg. (EU, Euratom) No. 883/2013, formerly art. 12 Reg. (EC) No. 1073/99, OJ (EC) 1999 No. L 136/6. 42 Art. 15 Reg. (EU, Euratom) No. 883/2013, formerly art. 11 Reg. (EC) No. 1073/99. 43 Art. 17 (3) Reg. (EU, Euratom) No. 883/2013, formerly art. 12 (3) Reg. (EC) No. 1073/99. 44 OJ (EC) 1999 No. L 136/6. 45 Reg. (EU, Euratom) No. 883/2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF) and repealing Reg. (EC) No. 1073/1999 and Reg. (Euratom) No. 1074/1999, OJ (EU) 2013 No. L 248/1; in detail Gru¨newald, JR 2015, 245, 246 et seq.; Zeder, StraFO 2014, 239 et seqq. 46 Art. 3 Reg. (EU, Euratom) No. 883/2013. 47 OJ (EC) 1995 No. L 312/1. 48 OJ (EC) 1996 No. L 292/2. 49 Art. 4 Reg. (EU, Euratom) 883/2013; furthermore already Council Decision1999/394/EC, Euratom, 25th May 1999, and Commission Decision 1999/396/EC, ECSC, Euratom, 2nd June 1999; see also the interinstitutional agreement of 25th May 1999, OJ (EC) 1999 No. L 136/15. 50 Cf Kuhl/Spitzer, EuR 2000, 671; Stefanou/White/Xanthaki, OLAF at the Crossroads – Action against EU Fraud, pp. 78 et seq.; on the problems of norm-setting regarding the duty of cooperation of the organs and their officers and employees, see Schwarze-Schoo, art. 325 AEUV paras 35 et seqq. 51 COM (2013) 533 final. 52 See para. 22. 53 COM (2013) 532 final, p. 7; COM (2013) 533 final, p. 2.

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4. The Future European Public Prosecutor’s Office 21

a) History and Basis in Primary Law. The Corpus Juris for the protection of the financial interests of the European Community54 had already entertained the idea of the creation of a European criminal prosecution authority (art. 18 et seq. Corpus Juris). Embracing this idea, the Commission drafted the concept of a European Public Prosecutor’s Office in a Green Paper55 and presented it for discussion. As mentioned before (see para. 17), art. 86 TFEU provides a legal basis for the creation of such an institution. According to art. 86 (1) subpara. 1 TFEU, in principle, this requires unanimity among all Member States and the approval of the European Parliament. However, art. 86 (1) subpara. 2 TFEU permits a group of at least nine Member States to create a European Public Prosecutor’s Office (EPPO) by means of enhanced cooperation (art. 20 TEU and art. 329 (1) TFEU). In June 2017, 20 Member States agreed to create a European Public Prosecutor’s Office (EPPO) by enhanced cooperation.56 Thus, the future EPPO promises to have sufficient territorial outreach for constituting an effective body of European criminal prosecution.57

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b) Background of the Establishment of a European Public Prosecutor’s Office. On 17th July 2013, the Commission presented a proposal for a regulation on the establishment of a European Public Prosecutor’s Office for the protection of the financial interests of the Union based on art. 86 TFEU.58 The Commission continued to stand by its regulation-proposal despite subsidiarity complaints (so-called “yellow card”) brought forth by the national parliaments as part of the subsidiarity control procedure59.60 Since then the proposal has been widely discussed and (heavily) reconsidered particularly by the Council.61 In January 2017 the last updated Council version of the draft regulation was published.62 The regulation is set out to create an independent prosecutor’s office of the EU with a distinct legal personality and containing centralised and decentralised elements:63 Whilst the Commission’s draft pleaded for a powerful central level consisting of the executive European Public Prosecutor and four deputies64 the Council decided on the establishment of a collegial body – similar to Eurojust – consisting of the European 54 See a printed version at Delmas-Marty/Vervaele, Implementation, pp. 189 et seqq.; for detailed considerations on future perspectives, see Killmann/Hofmann, in: Sieber et al. (eds), Europ. StR, § 48 paras 1 et seqq.; about the project of a European Public Prosecutor’s office, see also Klip, Eur. Criminal Law, pp. 510 et seqq.; Ligeti, EuCLR 1 (2011), p. 123 et seq.; see also already § 6 paras 33 et seqq. 55 Green Paper on Criminal Law Protection of the Financial Interests of the Community and a European Public Prosecutor, COM (2001) 715; see already § 6 para. 38. 56 Council of the European Union Press Release of 8th June 2017, available under http://www.consilium. europa.eu/en/press/press-releases/2017/06/08-eppo/ (last visited July 2017). 57 The latest draft regulation on the implementation of the EPPO (Council Document No. 9545/2/17 REV 2 of 2nd June 2017) is available under https://db.eurocrim.org/db/en/doc/2763.pdf (last visited July 2017). 58 COM (2013) 534 final. 59 Art. 12 lit. a, b TEU in conjunction with Protocol No. 2. 60 COM (2013) 851 final; see also Council Document No. 16624/13 of 28th November 2013. 61 On the revision of the Commission’s proposal in the Council, see Council Documents No. 9834/1/14 of 21st May 2014; No. 13679/14 of 29th September 2014; No. 15862/1/14 of 28th November 2014; No. 6318/1/15 of 2nd March 2015; No. 7877/1/15 of 5th June 2015; No. 9372/15 of 12th June 2015; No. 15100/15 of 22nd December 2015. 62 Council Document No. 5766/17 of 31st January 2017. 63 Art. 3 (1) and art. 6 of the Commission regulation-proposal in the version COM (2013) 534 final and art. 3, 6, 7 of the Council draft regulation in the version of Council Document No. 5766/17 of 31st January 2017. 64 Art. 6 of the Commission regulation-proposal in the version COM (2013) 534 final.

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Chief Prosecutor and one so-called European Prosecutor per Member State.65 The College is to have the general oversight of the European Public Prosecutor’s Office’s activities. In particular, it is to decide upon the strategic and general questions that arise from individual cases. It is expressly not competent to take operational decisions in individual cases. These decisions are to be taken by “permanent chambers” that shall monitor and direct the decentralised investigations and prosecutions in the Member States.66 The decentralised level shall be of an institutional dual nature.67 Every Member State 23 shall have at least two so-called “European Delegated Prosecutors”68 who shall be in charge of the cases of the European Public Prosecutor’s Office aside from performing his duties as a national prosecutor. When he is acting as European Delegated Prosecutor, he undertakes investigation measures either on his own or by way of instructing the law enforcement authorities of the Member State where he is located. Eventually, he brings the case to judgment at the competent national criminal court and thus in a decentralised manner.69 In accordance with art. 86 (1) subpara. 1 TFEU the competence of the European Public Prosecutor’s Office extends – at least for the time being – only to crimes affecting the financial interests of the Union. Whilst the TFEU does not specify the offences captured, the Commission’s proposal70 and the latest Council draft71 define them as those offences that are provided for by the directive for the protection of the European Union’s financial interests72 (so-called PIF-directive). According to the Commission’s draft, the European Public Prosecutor’s Office shall have the “exclusive” competence for the prosecution of crimes against the financial interests of the Union (art. 11 (4)). The Council on the other hand has decided upon a concurrent competence of both prosecuting authorities of the Member States and the European Public Prosecutor’s Office.73 The latter may, however, claim power to deal with a case and take the proceedings upon itself (so-called “Right of Evocation”).74 Art. 86 (3) TFEU provides that the regulation that establishes the European Public Prosecutor’s Office must also determine the details regarding the performance of its functions, the rules of procedure that must be abided during its investigations and the rules governing the admissibility of evidence and the judicial control of the institution. The regulation may therefore become something of a nucleus of a supranational criminal procedural law. However, neither the Commission’s proposal nor the Council’s consolidated text version do really live up to these possibilities. Investigative measures are not regulated in detail or in a uniform way; rather it is only indicated which Art. 8 (1) of the Council draft in the version of Council Document No. 5766/17 of 31st January 2017. Art. 7 (3), art. 8 (2), (3), art. 9 (2) of the Council draft regulation in the version of Council Document No. 5766/17 of 31st January 2017. 67 Cf also Schramm, JZ 2014, 749, 754; Klip, Eur. Criminal Law, pp. 512 et seq. 68 Art. 12 (2) of the Council draft regulation in the version of Council Document No. 5766/17 of 31st January 2017. 69 Art. 18 (1), 27 (1) of the regulation-proposal in the version COM (2013) 534 final or art. 12 (1) subpara. 2 and 3, 23 (1), 30 (1) of the regulation-proposal in the version Council Document No. 15100/15 of 22nd December 2015. 70 Art. 2 lit. b and art. 12 of the regulation proposal in the version COM (2013) 534 final. 71 Art. 17 (1) of the Council draft regulation in the version of Council Document No. 5766/17 of 31st January 2017. 72 Directive 2017/1371/EU, OJ (EU) 2017 No. L 138/29, see on this § 7 paras 41, 46. 73 In detail on this Schramm, JZ 2014, 749, 753; see also Council Document No. 9834/1/14 of 21st May 2014, p. 3. 74 See art. 22 a of the Council draft regulation in the version of Council Document No. 5766/17 of 31st January 2017. 65 66

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measures must be made available to the European Public Prosecutor’s Office by national law.75 Both drafts do not include an autonomous law of evidence.76 Judicial review is to be exercised solely through national courts according to the Commission’s proposal77, whilst the Council at least favours an involvement of the ECJ in this regard78. 24 The proposed models for a European Public Prosecutor’s Office must be criticised for several reasons, just some of them may be mentioned here79: The Commission’s proposal in particular was especially questionable with regard to the “exclusive competence” of the European Public Prosecutor in light of the principles of subsidiarity and proportionality; in this regard, a model in which the Member States generally remain in charge of the prosecution of crimes would seem favourable. Only in cases in which the respective national prosecuting authorities are “unable” or “unwilling” to effectively prosecute should the European Public Prosecutor be competent to adopt the case (so-called “model of complementarity”, inspired by the complementarity principle laid down in the Rome Statute, see § 12 para. 17 et seqq.). As the Council’s version of the proposal deviates from the Commission’s model in respect of the distribution of competences, it takes a step in the right direction in this regard. The said model of complementarity, however, would represent a notably smarter approach due to the lack of tensions caused by personnel intertwining of national and European prosecution services. Moreover, it would serve as a legal policy incentive for every Member State as each state can prevent interference from “outside” by tracking all suspicious facts itself and effectively investigating them.80 25 Both drafts also pose problems with a view to the rule of law:81 In particular, an arrangement of territorial jurisdiction as conceptualised in art. 27 (4) of the Commission’s proposal harbours the risk of forum-shopping82: According to said provision the European Public Prosecutor may choose where it wishes to press charges – whether it be the state in which the offence was committed, or where the accused has his habitual residence, or where the evidence is located or even where the direct victims usually reside. Lacking detailed provisions and a strict regime of judicial control, such an arrangement is in grave danger of misuse, as the choice of the jurisdiction of trial also determines the substantive and procedural law that will be applied.83 For example, a 75 Art. 26 (1), (2) of the Commission’s regulation-proposal in the version COM (2013) 534 final and art. 25 (1) of the Council draft regulation in the version of Council Document No. 5766/17 of 31st January 2017. 76 See art. 30 of the Commission’s regulation-proposal in the version COM (2013) 534 final and art. 31 of the Council draft regulation in the version of Council Document No. 5766/17 of 31st January 2017. 77 Art. 36 of the regulation-proposal in the version COM (2013) 534 final: this is rightly criticised e. g. by Erbezˇnik, EuCLR 2016, 215 et seqq. 78 Art. 36 (2)-(4) of the Council draft regulation in the version of Council Document No. 5766/17 of 31st January 2017. 79 In more detail, see e. g. Erbez ˇnik, EuCLR 2016, 209 et seqq; Asp (ed.) The European Public Proscecutor’s Office – Legal and Criminal Policy Perspectives, passim. 80 In detail on the model of complementarity Satzger, NStZ 2013, 206 et seqq.; id., in: Asp (ed.), The EPPO, pp. 69 et seqq. 81 Disapproving of the regulation-proposal in the version Council Document No. 6318/1/15 of 2nd March 2015 especially the common position of the German Federal Chamber of Lawyers (Bundesrechtsanwaltskammer) and the German Bar Association (Deutscher Anwaltsverein) of July 2015, available under http://www.brak.de/zur-rechtspolitik/stellungnahmen/ (last visited July 2017). 82 The provision of territorial jurisdiction in the Council’s consolidated version of the proposal (Council Document No. 15100/15 of 22nd December 2015) is slightly less problematic in this regard, as at least in principle the competence is attributed to a court of the Member State whose European Delegated Prosecutor is handling the case, art. 30 (1), (2). 83 In detail Wasmeier, in: Erkelens et al. (eds), The European Public Prosecutor’s Office, pp. 139 et seqq.; F. Zimmermann, in: Asp (ed.), The EPPO, pp. 156 et seqq.; on this danger in particular in

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Member State could be chosen that has very low prerequisites for encroachments on fundamental rights in the context of investigations, whilst the threat of punishment is comparatively high. Moreover, currently there are no provisions that guarantee a high level of procedural rights or that restrict the admissibility of evidence gathered in another Member State.84 These “counter-weights” are, however, unavoidable in order to guarantee balanced proceedings in the sense of a “fair trial” despite the enhanced possibilities of prosecution that a prospective European Public Prosecutor would at his command. Prima facie the provision of territorial jurisdiction in the Council’s latest draft version is less problematic in this regard, as at least “in principle” the competence is attributed to a court of the Member State whose European Delegated Prosecutor is handling the case;85 but nevertheless, this does not exclude that the Permanent Chamber decides to bring the case in a different Member State “if there are sufficiently justified grounds to do so”. To a certain extent forum-shopping thus remains possible also under the Council draft regulation.

II. The Judicial Cooperation in Criminal Matters on the Basis of the Principle of Mutual Recognition 1. The Principle The classical instrument of international cooperation in criminal matters is mutual 26 judicial assistance, which has been and still is shaped by various bilateral and multilateral conventions. The traditional law of judicial assistance is based on the sovereignty of states. For this reason, the traditional concepts are not suitable for the cooperation between states who, like the EU Member States, aim for the creation of a common area of justice. This aim would be hindered if one were, for instance, to cling to the classical prerequisite of double criminality within the law of extradition or to categorically refuse to extradite one’s own citizens.86 The “cumbersome” law of extradition within the EU has widely been replaced by the principle of mutual recognition. This principle was elevated by the Tampere Council of October 199987 to the status of a “cornerstone” of judicial cooperation in civil and criminal law matters.88 Its fundamental meaning is now also outlined in art. 82 (1) TFEU. The principle of mutual recognition was originally developed by the Commission for the establishment of the internal market in order to achieve the marketability of goods without a time-consuming and difficult process of harmonisation of national provisions.89 Applied to criminal (procedural) law, this principle would mean that a judicial decision that was lawfully reached in one Member State has to be recognised in every other Member State.90 It was presupposed that the Member States “have mutual trust in comparison with the US-system of criminal procedure law, see L. Neumann, Das US-amerikanische Strafrechtssystem, pp. 354 et seqq. 84 On the collection and use of evidence Zerbes, ZIS 10 (2015), 145 et seqq. 85 Art. 30 (1), (2) of the Council draft regulation in the version of Council Document No. 5766/17 of 31st January 2017. 86 In this respect the European arrest warrant introduces a paradigm shift, see paras 37 et seqq. 87 This European Council exclusively dealt with the creation of an “area of freedom, security and justice” within the EU. 88 Cf the conclusions, available under http://www.europarl.europa.eu/summits/tam_en.htm (last visited July 2017), nos 33 et seqq. 89 See in detail Fletcher/Lo ¨ o¨f/Gilmore, EU Criminal Law, pp. 109, 188 et seq.; Hecker, Eur. Strafrecht, § 12 para. 62; Safferling, Int. Strafrecht, § 12 para. 40; Satzger, StV 2003, 137, 141. 90 Fundamentally Bo ¨ se, in: Momsen et al. (eds), Fragmentarisches Strafrecht, pp. 233 et seqq.; an interim assessment regarding the application of the principle in the area of criminal law is made by Harms/Knauss,

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their criminal justice systems and that each of them recognises the criminal law in force in the other Member States even if the outcome would be different if its own national law were applied”.91 Through the Union-wide recognition of national judicial decisions, the time-consuming impediments, especially in the area of mutual judicial assistance, are supposed to be removed in order to facilitate effective cross-border enforcement of criminal law. Just as the right to free movement makes crossing the border easier for “criminals”, the principle of mutual recognition is meant to ease the constraints that national borders impose on law enforcement authorities and their actions92 and thus open up the road to a “genuine European area of justice”.93 27 One has to bear in mind, however, that the transfer of this principle from the law of the internal market to the cooperation in criminal matters is fraught with problems.94 Whereas liberalisation as an end in itself is central to the idea of free movement of goods, the most important objective of criminal procedural law is to ensure a fair trial. Without an extensive harmonisation of national criminal law systems, however, the mechanism of mutual recognition may cause fundamental defensive rights to go astray.95 Additionally, while in the law of free movement of goods there has always been a reservation for considerations of public policy (ordre public, cf art. 30 TEC and the subsequent provision of art. 36 TFEU) to deal with the remaining diversity of legal systems, such a reservation is missing from the concept of mutual recognition in criminal matters. Especially in view of the considerable differences between the structures of criminal (procedural) law from state to state, this can only by seen as a huge shortcoming of the principle of mutual recognition.96 These concerns led a group of European criminal law scholars to propose an alternative “general concept” for European criminal law enforcement97 that is centred on the idea that transnational criminal proceedings will be carried out by one Member State in accordance with its own procedural rules, which are in this case applied by all other Member States involved. 28 Nonetheless, it has to be noted that all legislative acts drafted or enacted by the EU in the area of police and judicial cooperation in criminal matters so far have been based on the principle of mutual recognition. This, however, does not imply a strict and complete positive acceptance of different national standards. Understood correctly, the principle of mutual recognition is a rather flexible tool, easily adaptable to various situations. It is best characterised as a “waiver-concept”: the executing state waives its (sovereignty based) control power and the possibility to apply (maybe stricter) national standards to a certain extent. However, the degree of waiver does not necessarily amount to 100 %, in: FS Roxin, 2011, pp. 1479 et seqq.; on the differences between mutual recognition in the European single market and in the context of judicial cooperation (especially secondary law reservation), see Burchard, Die Konstitutionalisierung der gegenseitigen Anerkennung, pp. 65 et seqq. 91 ECJ, Judgment of 11th February 2003, Joined Cases C-187/01 “Go ¨ zu¨tok” and C-385/01 “Bru¨gge” ECR 2003, I-1345 (para. 33); cf Klip, Eur. Criminal Law, pp. 400 et seqq. 92 Streinz-Satzger, art. 82 AEUV, para. 9. 93 See the Conclusions of the Tampere European Council, B., in particular Conclusions 33 et seqq. 94 See Grabitz/Hilf/Nettesheim-Vogel/Eisele, art. 82 AEUV para. 10; Mitsilegas, EU Criminal Law, pp. 116 et seqq.; Peers, CMLR 41 (2004), 5, 23 et seqq.; F. Zimmermann, Strafgewaltkonflikte in der EU, pp. 55 et seqq. 95 See also Erbez ˇnik, EuCLR 2 (2012), 4 et seqq. 96 See Gleß, ZStW 115 (2003), 131, 146 et seqq.; Hecker, Eur. Strafrecht, § 12 paras 63 et seqq.; KaiafaGbandi, ZIS 1 (2006), 521, 527 et seqq.; Kirsch, StraFo 2008, 449, 453 et seqq.; Meyer, GA 2007, 15, 33 et seqq.; Peers, CMLR 41 (2004), 5, 35; Roxin/Schu¨nemann, Strafverfahrensrecht, § 3 para. 20; Safferling, Int. Strafrecht, § 12 paras 45 et seq.; Satzger, StV 2003, 137, 141; id., in: Scho¨ch et al. (eds), FS Widmaier, pp. 557 et seq. 97 Schu ¨ nemann (ed.), A Programme for European Criminal Justice.

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but depends on the quantity of “mutual trust” which preexisted or which has been created by international instruments. Limitations and grounds for refusal thus do not constitute obstructive exceptions but characterise the concrete form and degree of mutual recognition. In this sense all respective EU acts enacted so far did not implement the principle of mutual recognition without exceptions. Rather, although to a different extent, (mandatory or optional) grounds for refusal are included. Whether an order may be refused also on other grounds is – as already illustrated in 29 the context of the general depiction of the collision of national and EU fundamental rights (see § 5 para. 22 et seq.) – much debated. The discussion boils down to the question in how far a European or national ordre public can be invoked against the execution of the order of another Member State. The notion that fundamental rights standards going beyond the level of protection provided for by secondary legislative acts may not be ignored seems consistent with the rule of law (see already § 5 para. 23). It is also in line with the flexible understanding of mutual recognition in the abovementioned sense. A fundamental rights or even ordre public proviso as such would not obstruct mutual recognition but contribute to its (best) concretisation. In this light it does not at all seem far-fetched for an accused to contest an extradition to another Member State with the (substantiated) claim that he may face a trial not abiding to fundamental- or human rights standards there.98 In this sense, Advocate General Sharpston pleaded in her opinion on the Radu case in the context of the framework decision on the European arrest warrant for a restriction of the principle of mutual recognition by (European) human rights and by a European ordre public.99 Advocat General Bot, however, argued in a parallel proceeding that purely national constitutional guarantees that exceed the grounds for refusal in secondary legislative acts must be regarded as insignificant.100 The ECJ joined in this opinion and held that only those grounds for refusal are relevant that are included in the European legislative act (in this case: the European arrest warrant), as otherwise it “would inevitably lead to the failure of the very system of surrender provided for by Framework Decision 2002/584 and, consequently, prevent the achievement of the area of freedom, security and justice”.101 This stands to reason – limited to a purely national ordre public – when one follows the ECJ in its norm-hierarchical conception, placing even secondary Union law higher than national constitutional provisions.102 In any case, this approach which is solely guided by the effectiveness of the system fails to convince (at the latest) when it inhibits – in open contrast to Advocat General Sharpston – the possibility to apply a common European human rights standard and a European ordre public as a corrective for the unduly extensive principle of mutual recognition.103 In light of this, the newest ECJ case-law in the case Pa´l Aranyosi/Ca˘lda˘raru104 on the obligation to execute a European arrest warrant must be welcomed. In a case in which the individual subjected to a European arrest warrant could substantiate the claim that the custodial situation in the 98 See Tinsley, EuCLR 2 (2012), 338 et seqq.; cf also BVerfG, Decision of 15th December 2015, 2 BvR 2735/14 = NJW 2016, 1149 (see already § 5 para. 23). 99 Advocate General Sharpston’s Opinion in Case C-396/11“Radu”, paras 63 et seqq. 100 Advocat General Bot’s Opinion in Case C-399/11 “Melloni”, paras 88 et seqq., especially para. 136. 101 ECJ, Judgment of 29th January 2013, Case C-396/11 “Radu”, paras 36, 40 = NJW 2013, 1145, 1147. 102 ECJ, Judgment of 26th February 2013, Case C-399/11 “Melloni”, paras 58 et seqq. = NJW 2013, 1215, 1219. 103 ECJ, Judgment of 29th January 2013, Case C-396/11 “Radu”, paras 28 et seqq. = NJW 2013, 1145, 1146 seq. with disapproving remarks by Brodowski, HRRS 2013, 54 et seqq. who validly makes reference to the possible violation of European law by § 73 (1) 2 of the national act on mutual legal assistance (IRG) and the possibility of a resulting conflict between the ECJ and the BVerfG. 104 ECJ, Judgment of 5th April 2016, Case C-404/15, C-659/15 PPU “Pa ´l Aranyosi/Ca˘lda˘raru”; see Ga´spa´r-Szila´gyi, European Journal for Crime, Criminal Law and Criminal Justice 2016, 197 et seqq.

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Member State he was to be extradited to is generally accepted as contrary to human rights standards, the ECJ demands that the executing state, in presence of certain evidence, must examine whether the individual concerned will be exposed to a real risk of inhuman or degrading treatment within the meaning of art. 4 CFR in the issuing state. If this proves to be the case, the execution of the warrant must be postponed according to the ECJ. The Court reasons that the framework decision on the European arrest warrant does not have the effect of modifying the Member State’s obligation to respect fundamental rights, particularly those set out in the EU-Charter. Rather art. 51 (1) CFR orders the application of these rights when implementing Union law. According to the ECJ, this is precisely the case when the national judicial authorities apply the provisions of national law adopted to transpose the framework decision on the European arrest warrant (paras 83 et seq.). Thus, the ECJ has after all accepted the violation of the European fundamental rights standard as a ground for at least postponing (not denying) the execution of a European arrest warrant. To a limited extent it therewith approved a corrective for the principle of mutual recognition in the form of a European ordre public-reservation. 30 Just a few weeks prior to the above mentioned ECJ ruling, the German BVerfG made an important decision in this context:105 a European arrest warrant that violates the “constitutional identity” which is construed as being resistant to any integration may not be executed in Germany and is subject to a monitoring of preservation of constitutional identity (so-called “Identita¨tskontrolle”) performed by the BVerfG. According to the BVerfG, the constitutional principles resistant to any integration comprise the principle that every punishment presupposes culpability. This principle is said to be anchored in the guarantee for human dignity of art. 1 (1) GG and may never be encroached on.106 Thus, the BVerfG considers a national ordre public limited to extreme cases and assumes – going further than the ECJ – that its violation even results in the inadmissibility (not only postponement) of executing a European arrest warrant. Even if the highest German court deviates from the ECJ’s judgment with regard to the reasoning as well as the consequences, case-law collisions with relevance for the outcome of proceedings can be expected to remain restricted to relatively rare exceptional cases.107 31 This assumption has already been confirmed by a recent ruling of the BVerfG.108 The Court did not accept a constitutional complaint against an extradition to the United Kingdom based on a European Arrest Warrant, as it had no prospect of success. The Court argued that the English law called into question by the complainant (§ 35 Criminal Justice and Public Order Act 1994), which stipulates that remaining silent and nonresponse to certain questions may have a negative impact on the assessment of evidence for the accused, is indeed not compliant with the right to remain silent guaranteed in the GG. However, these circumstances did not violate the constitutional principles resistant to any integration, which are the only standard to be considered in these cases. An extradition would only be out of order when the core principle of nemo tenetur is no longer guaranteed, as only these cases are covered by the protection of human dignity set out in art. 1 (1) GG. The English law does, however, not abolish the right to remain silent all together, but rather restricts it in a way, which does not in itself pose a violation of human dignity. This illustrates how restrictively the BVerfG interprets and practically applies the – generally accepted – reservation of national ordre public. BVerfG, Decision of 15th December 2015, 2 BvR 2735/14 = NJW 2016, 1149, see § 5 para. 23. BVerfG, Decision of 15th December 2015, 2 BvR 2735/14, para. 49 = NJW 2016, 1149, 1152. 107 On this in general, including possible “exceptional cases” Satzger, NStZ 2016, 514, 521 et seq. 108 BVerfG, Decision of 6th September 2016, 2 BvR 890/16. 105 106

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2. The Codification of the Principle of Mutual Recognition in art. 82 TFEU Although the principle of mutual recognition has de facto formed the basis for all 32 framework decisions in the field of criminal procedure since the European Council in Tampere, it was not until the Treaty of Lisbon entered into force that this principle was incorporated into primary European law (art. 82 (1) TFEU; cf also art. III-270 TCE). Now art. 82 (1) subpara. 2 (a) and (d) TFEU assigns the competence to the EU to enact rules for all Member States concerning the mutual recognition of judgments and all forms of judicial decisions. a) Scope of Application. Pursuant to art. 82 (1) subpara. 2 TFEU, the EU may lay 33 down rules and procedures for ensuring Union-wide recognition of all forms of judgments and judicial decisions (lit. a) and facilitate cooperation between judicial or equivalent authorities of the Member States in relation to proceedings in criminal matters and the enforcement of these decisions (lit. d). Lit. a), which is considered more specific than the general catch-all provision in lit. d), is to be interpreted extensively and contains all measures for mutual recognition in the widest sense of judicial decisions that are taken in the course of a criminal proceeding. Lit. d) therefore only remains applicable beyond the facilitation of mutual recognition. In particular, it covers measures of other authorities than the judicial authorities engaged in criminal prosecution or criminal enforcement measures (e. g. tax- and customs authorities) and decisions that cannot be classified as “judicial” (e. g. orders by executing authorities).109 b) Distinction from Approximation Measures Pursuant to art. 82 (2) TFEU. 34 Approximation of national provisions is not permissible on the basis of art. 82 (1) subpara. 2 TFEU. This follows both from the wording of art. 82 (1) subpara. 1 TFEU, which limits approximation of domestic law to the areas referred to in paragraph 2 and art. 83 TFEU, as well as from the structure of art. 82 TFEU. Art. 82 (2) subpara. 2 TFEU confines approximation of criminal procedural laws to the expressly listed areas. This restriction would be by-passed if art. 82 (1) subpara. 2 TFEU allowed further approximation. Furthermore, the “emergency brake” in art. 82 (3) TFEU, which is meant to protect criminal law systems, does not apply to art. 82 (1), but only to art. 82 (2) TFEU. This, in turn, does not mean that directives are not potential “measures” under 35 art. 82 (1) subpara. 2 TFEU as this provision, unlike art. 82 (2) TFEU, is not restricted to a particular type of legislative act. If, however, a directive was adopted in order to set rules for mutual recognition, this would of course lead to a certain approximation of the national legal systems. The following approach seems reasonable in order to distinguish between art. 82 (1) subpara. 2 and art. 82 (2) TFEU: Art. 82 (1) subpara. 2 TFEU does not allow approximation of criminal procedural laws in a stricter sense. A directive based on art. 82 (1) subpara. 2 TFEU must mainly contain rules concerning the cooperation between Member States – in other words: the traditional area of mutual judicial assistance. In contrast, those procedural law provisions that would also be applicable to a criminal proceeding without cross-border implications cannot be approximated pursuant to art. 82 (1) subpara. 2 TFEU.110 The legal acts based on art. 82 (1) subpara. 2 TFEU that have been passed so far111 adhere to this differentiation. The majority of legal acts that rely on the principle of mutual recognition were passed 36 as framework decisions prior to the coming-into-force of the Lisbon Treaty. Even 109

Streinz-Satzger, art. 82 AEUV, para. 44. On the whole issue, see Grabitz/Hilf/Nettesheim-Vogel/Eisele, art. 82 AEUV para. 50. 111 See paras 51 et seqq. 110

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though the Treaty of Lisbon no longer knows this form of legal act (cf art. 288 TFEU) framework decisions maintain their relevance pursuant to art. 9 of Protocol No. 36 to the Lisbon Treaty: They preserve their legal effects and have been transformed into supranational Union law following the expiration of the five year transitional period. Hence it is now possible to have their implementation reviewed by the ECJ by way of an infringement proceeding.112

3. Legislative Acts on the Basis of the Principle of Mutual Recognition a) The European Arrest Warrant. aa) The Framework Decision. The Council framework decision of 13th June 2002 on the European arrest warrant and the surrender procedures between Member States,113 which was mainly based on art. 31 (1) (a), (b), 34 (2) (b) TEU o.v., constituted the first application of the principle of mutual recognition in the area of criminal law. In this respect, it is perceived as a role model for subsequent legislative acts.114 Its main purpose is to abolish (between EU Member States) the traditional procedure of extradition which is widely considered to be time-consuming, cumbersome and complex. On the one hand, the traditional procedure is characterised by two stages: the legal examination of the admissibility of extradition (which is, for instance, in Germany carried out by the higher regional courts (Oberlandesgerichte), §§ 12 et seqq. of the German Act on Mutual Legal Assistance (Gesetz u¨ber internationale Rechtshilfe in Strafsachen [IRG]) is necessarily followed by a political decision, the so-called grant of extradition. This grant is subject to a discretionary decision made on a case-by-case basis with regard to foreign policy considerations by government officials (cf § 74 IRG). This influence of political considerations has often been blamed for the inefficiencies of the extradition procedure.115 On the other hand, double criminality is traditionally a fundamental principle of extradition. The conduct in respect of which the request for extradition is made has to be a criminal offence under the law of the requesting state as well as the state addressed with the request. The latter can thus refuse its cooperation if a foreign offence is unknown to its own law.116 The accused person therefore has the possibility of raising various objections with respect to substantive law against his or her extradition which serves the purpose of protecting the individual but at the same time diminishes the effectiveness of the extradition procedure.117 38 With the introduction of the European arrest warrant,118 which throughout Europe is to be issued in a unified form strictly regulated by the framework decision, the element of a political authorisation is abandoned; instead, the procedure is to be controlled exclusively by the judiciary. The principle of double criminality has been maintained insofar as the extradition can in general be made conditional on the relevant conduct 37

112 Cf art. 10 (1) of Protocol No. 36 on transitional provisions; on the whole issue, see also § 7 para. 111. 113 Framework Decision 2002/584/JHA, OJ (EC) 2002 No. L 190/1. 114 See Mitsilegas, EU Criminal Law, p. 120; Rohlff, Europa ¨ischer Haftbefehl, p. 35. 115 Rohlff, Europa ¨ischer Haftbefehl, p. 41; Xanthopoulou, NJECL 7 (2015), 32, 33. 116 Klimek, European Arrest Warrant, pp. 81 et seq.; Klip, Eur. Criminal Law, pp. 382 et seqq.; Oehler, ZStW 96 (1984), 555, 557; in more detail e. g. Asp/v. Hirsch/Fra¨nde, ZIS 1 (2006), 512 et seqq.; Hackner, in: Wabnitz/Janovsky, Handbuch, ch. 24 para. 134. 117 For criticism against the principle of double criminality, see Asp/v. Hirsch/Fra ¨ nde, ZIS 1 (2006), 512, 515 et seqq; Lagodny, in: Schomburg et al. (eds), Internationale Rechtshilfe in Strafsachen, § 3 IRG para. 2; Vogel, JZ 2001, 937, 942. 118 According to art. 2 (1) of the framework decision, an arrest warrant “may be issued for acts punishable by the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 12 months” (arrest warrant of extradition) or “where a sentence has been passed or a detention order has been made, for sentences of at least four months” (arrest warrant of execution).

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being a criminal offence under the law of the Member State of execution as well. However, if the arrest warrant is issued in respect of one of the 32 criminal offences explicitly listed in art. 2 (2) of the framework decision (“positive list”), double criminality is not required.119 This conception, however, poses problems because the catalogue offences are only outlined roughly, for instance as “computer-related crime”, “counterfeiting and piracy of products”, “racism” or “xenophobia”. Since the determination of whether a catalogue offence is given is to be made under the national law of the issuing Member State,120 in some cases it will be very difficult to determine whether an offence falls within one of the headings.121 In art. 3 and art. 4 as well as in art. 4 a, which was newly introduced via the Framework 39 Decision 2009/299/JI (see para. 85), the framework decision itself contains grounds for non-execution of the arrest warrant. Grounds for mandatory non-execution are, for instance, amnesty, the lack of criminal accountability of the suspect under the law of the Member State of execution due to the suspect’s age or a final decision in a Member State122 that hinders any further prosecution. Besides the absence of double criminality in case of non-catalogue offences, grounds for optional non-execution are, for example, cases where the prosecution is statute-barred pursuant to the law of the executing Member State, where the person is prosecuted for the same act in the executing Member State or where proceedings have been terminated.123 Finally, art. 5 stipulates that the execution of the European arrest warrant can be made dependent on special guarantees of the issuing state. For arrest warrants against citizens of the executing Member State, for instance, surrender may be made subject to the condition “that the person is returned to the executing Member State in order to serve the custodial sentence or detention order passed against him in the issuing Member State”.124 bb) The Implementation of the Framework Decision within the Member States. 40 The Member States were obliged to implement the framework decision by the end of 2003. The implementation process took quite different form throughout the Member States.125 The differences within national implementation acts are especially vast concerning the treatment of the framework decision’s grounds for non-execution. Some countries even introduced new grounds for non-execution that are not envisioned by the framework decision. In the UK, for example, the extradition can be refused for reasons of national security (sec. 208 of the Extradition Act 2003126). Art. 8 (3) of the Italian implementation act127 forbids extradition if an Italian citizen is to be extradited 119 On the principle of double criminality and its modifications by the framework decision, see in detail Pohl, Vorbehalt und Anerkennung, pp. 136 et seqq.; cf also Klimek, European Arrest Warrant, p. 81. 120 Art. 2 (2) of the framework decision. 121 For a critical view, see only Roxin/Schu ¨ nemann, Strafverfahrensrecht, § 3 paras 21 et seq.; Schu¨nemann, GA 2002, 501, 507 et seq. The deficient harmonisation of national offences contained in the catalogue of art. 2 (2) of the framework decision is also lamented by Peers, CMLR 41 (2004), 5, 29 et seqq. 122 Art. 3 No. 2 of the framework decision, see para. 74. For decisions of a non-EU Member State only an optional ground for non-execution is in place, cf art. 4 No. 5 of the framework decision. 123 For a general caveat with respect to the protection of human rights Peers, EU Justice, pp. 708 et seq.; cf concerning the grounds of non-execution de Groot, in: Blextoon/van Ballegooij (eds), European Arrest Warrant, pp. 93 et seq. 124 See further Bo ¨ se, in: Momsen et al. (eds), Fragmentarisches Strafrecht, pp. 240 et seqq.; von Heintschel-Heinegg/Rohlff, GA 2003, 44; for more details, see de Groot, in: Blextoon/van Ballegooij (eds), European Arrest Warrant, pp. 93 et seq. 125 On the implementation by the Member States, see COM (2011) 175 final; see also Fletcher/Lo ¨ o¨f/ Gilmore, EU Criminal Law, pp. 117 et seq.; for a less critical view, see Peers, EU Justice, pp. 709 et seq. 126 See http://www.legislation.gov.uk/ukpga/2003/41/pdfs/ukpga_20030041_en.pdf (last visited July 2017). 127 Legge 22 aprile 2005, n. 69, available under http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:legge:2005;69 (last visited July 2017).

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on account of a crime committed where he or she has been in error as to the prohibition of the act. Finally, the Italian legislator has distanced himself even further from the objectives of the framework decision by simply transposing the catalogue of offences in art. 2 (2) of the framework decision into a list of specific offences under Italian law (art. 8 (1)). As a result, extradition will thus only be possible if it concerns offences for which criminal liability exists in Italy. Ultimately, the principle of double criminality therefore is preserved at least de facto. 41 Overruling the objection of the Bundesrat, the Bundestag passed the German implementation act (German Act on the Implemenation of the European Arrest Warrant [Europa¨isches Haftbefehlsgesetz], EuHbG) on 16th June 2004, which came into force on 23rd August 2004. It integrated the European arrest warrant into the terminology (“extradition”, “issued state” and “issuing state”) and system of the pre-existing national act on mutual legal assistance (IRG).128 In its judgment of 18th July 2005,129 the BVerfG upheld an individual constitutional complaint and declared this (first) EuHbG to be void. The complainant, a German and Syrian dual national living in Germany who was suspected of being a key figure of the Al-Qaeda-network, was supposed to be extradited to Spain where he was prosecuted for participation in a criminal organisation and terrorism. The conduct of which he was accused – namely support of a foreign terrorist organisation – was not a criminal offence in Germany at that time. But since double criminality is not required for cases of “terrorism” according to the framework decision, this did not impede the execution of the European arrest warrant issued by Spain. 42 The BVerfG declared the EuHbG (as the legal basis for the extradition) unconstitutional and void for two reasons: – First, it considered the fundamental right to freedom from extradition (art. 16 (2) GG) to be violated. This fundamental right for German citizens is subject (pursuant to an amendment in 2000) to a reservation allowing the extradition of Germans (inside the EU or to an international court) as long as fundamental constitutional principles are upheld. According to the Court, the legislator is obliged to implement the objective of the framework decision in accordance with the principle of proportionality; in particular, the legislator has to take account of fundamental rights as far as possible when exercising margins of discretion left by the framework decision. Art. 4 no. 7 of the framework decision provides that “the execution of the European arrest warrant can be refused where it relates to offences that are regarded by the law of the executing Member State as having been committed in whole or in part on the territory of the executing Member State”. The BVerfG held that the German legislator, by making use of this discretion, should have provided a ground for nonexecution for crimes with a “significant domestic connecting factor”. According to the Court, “charges of criminal acts with such a significant domestic connecting factor are, in principle, to be investigated on the domestic territory by German investigation authorities if those suspected of the criminal act are German citizens. A significant domestic connecting factor exists in any case if essential parts of the site of crime and place where the result of the act occurred are located on German state territory”.130 The Court found that in these cases the trust of citizens to be held 128

For criticism, see Wehnert, StraFo 2003, 356, 359 et seq. BVerfG, Judgment of 18th July 2005, 2 BvR 2236/04 = BVerfGE 113, 273, translation available under http://www.bundesverfassungsgericht.de/entscheidungen/rs20050718_2bvr223604en.html (last visited July 2017); see Satzger/Pohl, JICJ 2006, 686 et seq.; see also von Heintschel-Heinegg, in: Sieber et al. (eds), Europ. StR, § 37 paras 16 et seqq. 130 BVerfG, Judgment of 18th July 2005, 2 BvR 2236/04 = BVerfGE 113, 273, 302, translation available under http://www.bundesverfassungsgericht.de/entscheidungen/rs20050718_2bvr223604en.html (last visited July 2017). 129

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criminally liable only according to their own national legal system was protected by art. 16 II GG in connection with the principle of the rule of law. For the Court, this was especially true if the conduct was in no way punishable according to national criminal law. – Second, the Court found a violation of art. 19 (4) GG due to the lack of any possibility for judicial review in Germany of the grant of extradition under the EuHbG. While this has been (and still is) generally accepted for the traditional procedure, where the grant of extradition is a political decision protected by the executive’s prerogatives, the Court considered it a violation of the constitutional guarantee of access to the courts due to the procedure having become “judicialised” under the EuHbG. The act provides for discretionary judicial decision on enumerated grounds for non-execution which – at least in part – have the purpose of protecting the individual. The citizen therefore has a right to an effective judicial remedy even at this stage. On 20th July 2006, the Bundestag then passed a new EuHbG which came into force on 43 2nd August 2006. The guidelines expounded by the BVerfG were taken into account; the reservation of a significant domestic connecting factor is now contained in § 80 (1) no. 2 and (2) no. 2 n.v. of the national act on mutual legal assistance (IRG). Whereas the ECJ has left the question of the admissibility of the new German provisions open,131 it declared a Dutch statute which allowed refusal of the extradition of foreigners after at least five years of lawful residence within the Netherlands to be in conformity with Union law.132 In view of a French provision that provided for the possibility to refuse an extradition of foreigners in contrast to nationals, the ECJ declared that legally at least the possibility must be maintained for nationals and EU-foreigners to be treated equally.133 In some Member States, complications with respect to constitutional law, similar to 44 those in Germany,134 arose: the Polish Constitutional Court, for example, declared the Polish implementation act invalid due to a violation of the constitutional ban on the extradition of Polish citizens.135 After a constitutional amendment, a new implementation act, requiring double criminality for Polish citizens, was passed in 2006.136 In Cyprus the Constitutional Court held that for the same reasons an implementation of the framework decision was possible only after the constitution had been amended.137 The Czech Constitutional Court, by contrast, dismissed an action against the national implementation act.138 The Belgian implementation act was also challenged. In this context, the Cour 45 d’Arbitrage referred three questions concerning the legality of the framework decision to the ECJ: the first question was whether the European arrest warrant should have been regulated by a convention and not by a framework decision. The ECJ139 rightly pointed 131 ECJ, Judgment of 17th July 2008, Case C-66/08 “Kozlowski” ECR 2008, I-6041, with remarks by Bo¨hm, NJW 2008, 3183. 132 ECJ, Judgment of 6th October 2009, Case C-123/08 “Wolzenburg” with remarks by Janssens, CMLR 47 (2010), 831. 133 ECJ, Judgment of 5th September 2012, Case C-42/11 “Lopes Da Silva Jorge”, para. 51. 134 See the overview of Satzger/Pohl, JICJ 2006, 686, 690; Fletcher/Lo ¨ o¨f/Gilmore, EU Criminal Law, pp. 119 et seqq. 135 An English version of the decision is available under http://www.trybunal.gov.pl/eu/case-list/ judicial-decisions/art/6079-application-of-the-european-arrest-warrant-to-polish-citizens/ (last visited July 2017). 136 For the development in Poland, see in more detail Nalewajko, ZIS 2 (2007), 113. 137 Judgment of 7th November 2005; the English version can be found in Council Document No. 14281/05. 138 Judgment of 3rd May 2006 (Pl. U ´ S 66/04); the English version is available under http://www. usoud.cz/en/decisions/20060503-pl-us-6604-european-arrest-warrant-1/ (last visited July 2017). 139 ECJ, Judgment of 3rd May 2007, Case C-303/05 “Advocaten voor de Wereld” ECR 2007, I-3633; cf Fletcher/Lo¨o¨f/Gilmore, EU Criminal Law, pp. 120 et seq.

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out that the TEU did not establish any order of priority between those different legal instruments. The second question was whether or not the almost complete abandonment of the prerequisite of double criminality was consistent with the principle of legality (nullum crimen sine lege) as a general legal principle of EU law according to art. 6 (2) TEU o.v. The ECJ stated that the principle of nullum crimen was observed since the law of the issuing state would contain sufficiently clear definitions of the criminal offences even if the conduct was not punishable in the executing state. At such a level of generality, this statement must seem highly problematic as the offender is not expected to anticipate criminal liability according to the law of the issuing state to the same extent in all situations.140 The third question related to a possible violation of the principle of equality and non-discrimination that might be attributed to the fact that only some crimes were excluded from the test of double criminality. For the ECJ, it was sufficient to highlight the inherent seriousness of these crimes as sufficiently affecting public order and public safety to justify the dispensation of double criminality. It is submitted that the questions posed by the Cour d’Arbitrage were not suitable to trigger an intensive and conclusive examination of the legality of the framework decision. Especially the – not very satisfying – examination of the nullum crimenprinciple by the ECJ demonstrates that considerable doubts still remain. 46

b) European Supervision Order. Shortly before the Treaty of Lisbon entered into force, the framework decision on a European supervision order was enacted.141 This instrument governs the mutual recognition of measures taken by a Member State in order to prevent a suspect from escaping justice and avoiding pre-trial custody. The relevant measures are listed in art. 8 of the framework decision. The Member State may inter alia require the suspect to report any change of residence, to remain at a specific place or to refrain from entering a specific place or area. As is the case in relation to the European arrest warrant, double criminality is required for the application of the framework decision to certain enumerated offences. The European supervision order safeguards the trial in a manner that is often less detrimental to the suspect because courts otherwise tend to presume that foreign nationals in general are particularly likely to escape and thus aliens are frequently taken into pre-trial custody.142 The framework decision is a welcome step towards forming a common judicial area where such discrimination is not acceptable. The European supervision order may cause courts to consider alternative measures which would allow the suspect to return to his or her home country and await the trial there instead of spending time in custody of the prosecuting Member State. The European arrest warrant may still supplement those measures if the suspect later refuses to return for trial.

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c) Mutual Judicial Assistance Concerning Evidence and the European Investigation Order. Just as the European arrest warrant has replaced extraditions, the complex traditional procedures of mutual judicial assistance are to be simplified at a European level on the basis of the principle of mutual recognition with regard to evidence as well. Mutual recognition, however, poses problems also in this regard: When evidence is collected during a purely domestic investigation, only the procedural law of the respective Member State is applicable (Member State A). Should another Member State (Member State B) later request a specific piece of evidence in order to use it in a 140 See also Braum, wistra 2007, 401, 404 et seq.; cf also the arguments of the BVerfG concerning crimes with a significant domestic connecting factor, see para. 42. 141 Council Framework Decision 2009/829/JHA, OJ (EU) 2009 No. L 294/20. 142 Cf SEC (2004) 1064, pp. 75 et seqq.; Schu ¨ nemann, in: Schu¨nemann (ed.), A Programme for European Criminal Justice, pp. 354 et seq.

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proceeding in B, the domestic requirements for collecting evidence that should have been adhered to in B cannot be observed any more.143 The result may be a “PatchworkProceeding” that disregards the rights of the individual. So-called forum regit actum arrangements (such as art. 12 cl.1 of the framework decision on the European evidence warrant or now art. 9 (2) of the directive on the European investigation order, see para. 52) may be able to counteract this imbalance.144 It is, however, within the discretion of the issuing state in how far, if at all, these arrangements are actually utilised. Moreover, the executing state may invoke a collision with fundamental legal principles and thus disregard these arrangements. Therefore, further harmonisation of procedural rights145 by the Union is indispensable as a counter-weight to the progressive development of the law governing mutual legal assistance relating to evidence. The Council framework decision on the execution of orders freezing property or evidence in the European Union146 is aimed at preventing the loss of evidence that is located in another Member State. However, this framework decision governs only preliminary measures. The subsequent transfer of evidence remains subject to the traditional rules of mutual judicial assistance – with all its disadvantages. Thus, following extensive negotiations, a framework decision on the European evidence warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters (EEW) was adopted.147 It has, however, been superseded by the directive on the European investigation order (see para. 50 et seqq.) which has come into force meanwhile and is significantly more extensive as to substance; the European evidence warrant therefore never gained practical relevance. Particularly, the European evidence warrant was applicable only to evidence already collected. For this reason the Commission contemplated further acts for the mutual recognition of evidence. Still during the transformation period for the EEW the Commission presented a Green Paper on obtaining evidence in criminal matters from one Member State to another148 which was partially criticised amongst scholars.149 In the year 2010 the Commission found itself virtually “overtaken” by an initiative presented by eight Member States in accordance with art. 76 lit. b TFEU.150 Following four years of preparatory work,151 the directive on the European investigation order in criminal matters152 (EIO) came into force in May 2014. This is the second legislative act – after the directive on the European protection order153 – based on art. 82 (1) TFEU which applies (to a large extent) the concept of

143 ECPI, ZIS 8 (2013), 412, 417; Mangiaracina, Utrecht Law Review 2014, 113, 115; Zerbes, in: Asp (ed.), The EPPO, p. 210, 217; F. Zimmermann, Strafgewaltkonflikte in der EU, p. 66. 144 In detail ECPI, ZIS 8 (2013), 412, 417. 145 See paras 90 et seqq. 146 Council Framework Decision 2003/577/JHA, OJ (EU) 2003 No. L 196/45. 147 Council Framework Decision 2008/978/JI, OJ (EU) 2008 No. L 350/72; on this Kru ¨ ßmann, StraFo 2008, 458. Regarding the Commission’s original proposal (COM [2003] 688 final); cf the extensive and critical analysis of Ahlbrecht, NStZ 2006, 70; Kotzurek, ZIS 1 (2006), 123 as well as Williams, in: Vervaele (ed.), European Evidence Warrant, pp. 69 et seqq. Further Gleß, Beweisrechtsgrundsa¨tze einer grenzu¨berschreitenden Strafverfolgung, 2006, pp. 165 et seqq. On the consequences for German criminal proceedings, see Esser, in: FS Roxin, 2011, pp. 1497 et seqq. Regarding the way of functioning and the procedure, cf Gleß, in: Sieber et al. (eds), Europ. StR, § 38 paras 22 et seqq. 148 COM (2009) 624 final. 149 Ambos, ZIS 5 (2010), 557; Busemann, ZIS 5 (2010), 552; Schu ¨ nemann/Roger, ZIS 5 (2010), 92 as well as F. Zimmermann/Glaser/Motz, EuCLR 1 (2011), 56, 70 et seqq. 150 Council Document No. 9145/10 of 29th April 2010. 151 On the development, see Gleß, in: Sieber et al. (eds), Europ. StR, § 38 fn 128. 152 Directive 2014/41/EU, OJ (EU) 2014 No. L 140/1. 153 Directive 2011/99/EU, OJ (EU) 2011 No. L 338/2.

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mutual recognition.154 Pursuant to its art. 34, it replaces155 earlier international law conventions on judicial assistance from 22nd May 2017 onwards156 as well as the framework decisions on protective measures157 and the European evidence warrant158. Therewith, the separate instruments of the European law on evidence are combined in one legal act and a unified legal framework for the collection and transfer of evidence within the Union is created.159 52 The EIO-directive thus surpasses the framework decision on the evidence warrant, as it does not only cover the transfer of already collected evidence, but also provides for measures for evidence collection. Pursuant to its art. 3, the directive covers all types of evidence and its gathering, solely excluding the setting up of joint investigation teams and the collection of evidence within such teams.160 Fully in line with the concept of mutual recognition161 the directive strengthens the position of the issuing state, accepting that the “whether or not” of a specific measure is to be generally determined by recourse to the law of the issuing state.162 This is illustrated by the terminology employed, as the directive now makes reference to “order” and not “request”,163 but also by the arrangement of terms according to which the executing authority must take its decisions and measures within specific time limits. The issuing state must verify in every single case whether the measure is proportionate and whether it could have been ordered under the same conditions in a similar, but purely domestic case (art. 6 (1) EIO). An EIO issued in accordance with these requirements has to be recognised by every Member State “without any further formality being required” and must be executed like a domestic order without a cross-border dimension (art. 9 (1) EIO). The law of the executing state therefore only governs the modalities of the enforcement (“how”). But even this is affected by the powers of the issuing state: Similar to art. 12 of the framework decision on the European evidence warrant164, the issuing state may, pursuant to art. 9 (2) of the EIO-directive and in accordance with the forum regit actum principle, indicate certain “formalities and procedures” the executing state has to comply with, unless they are contrary to fundamental principles of its law.165 53 In return, art. 11 (1) of the directive contains grounds which justify the refusal of the execution of an investigation order. These include, for example, the violation of immunities or privileges, essential national security interests or the ne bis in idem 154

See paras 26 et seqq. This does not apply to both Ireland and Denmark. Pursuant to art. 4 a (1) and art. 2 of Protocol No. 21, as well as art. 2 of Protocol No. 22 to the Treaty of Lisbon the previous instruments continue to be binding upon and applicable to these two states, as they are not participating in the new directive; cf Belfiore, EuCLR 5 (2015), 312, 316, fn 22; F. Zimmermann, ZStW 127 (2015), 143, 149. 156 For an overview, see F. Zimmermann/Glaser/Motz, EuCLR 1 (2011), 56, 57 et seqq. 157 Council Framework Decision 2003/577/JI, OJ (EU) 2003 No. L 196/45. 158 Council Framework Decision 2008/978/JI, OJ (EU) 2008 No. L 350/72. 159 Belfiore, EuCLR 5 (2015), 312, 316; Bo ¨ se, ZIS 9 (2014), 152; Esser, in: FS Roxin, 2011, pp. 1508 et seqq.; Zerbes, EuCLR 5 (2015), 304, 309 et seqq. 160 Allegrezza, in: Ruggeri (ed.), Transnational Evidence and Multicultural Inquiries in Europe, pp. 53 et seq.; cf also Schuster, StV 2015, 393. 161 Armada, NJECL 7 (2015), 8, 22; Weyembergh, in: Ligeti (ed.), Toward a Prosecutor for the European Union, 2013, pp. 972 et seqq.; F. Zimmermann, ZStW 127 (2015), 143, 147 et seqq. 162 Armada, NJECL 7 (2015), 8, 14; Vermeulen/De Bondt/Van Damme, EU Cross-Border Gathering and Use of Evidence in Criminal Matters, p. 105; F. Zimmermann, Strafgewaltkonflikte in der EU, pp. 64 et seq.; see also paras 26 et seqq. 163 See also Ambos, ZIS 5 (2010), 557. 164 See para. 47. 165 In detail on the interpretation of this provision, see F. Zimmermann, ZStW 127 (2015), 143, 150 et seqq.; in general Armada, NJECL 7 (2015), 8, 21 et seqq.; Daniele, NJECL 7 (2015), 179 et seqq.; Gleß, ZStW 125 (2013), 573, 592 et seqq. 155

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principle. A novel ground for refusal in the legal acts based on the principle of mutual recognition can be found in art. 11 (1) lit. f, which allows for a refusal to execute an EIO if the respective investigative measure would be incompatible with the executing state’s obligations in accordance with art. 6 TEU and in particular the CFR.166 Admittedly, the EIO principally adheres to the requirement of double criminality167 (art. 11 (1) lit. e and g) and, insofar, drops behind the EEW-framework decision, which in its art. 14 (1) generally prohibited the verification of double criminality for all measures that do not require a search or seizure. The possibility to verify double criminality is, however, restricted – insofar just as in the framework decision on the European arrest warrant – by a “positive list” of 32 categories of offences in the annex: As soon as an offence comes under one of these categories and is punishable in the issuing state with a maximum custodial sentence or detention order of at least three years, the impunity under the law of the executing state becomes irrelevant. Art. 10 of the directive constitutes a further novelty: Under certain circumstances it 54 provides the executing state with the possibility to replace the requested measure by another,168 in particular when there is a less intrusive measure at its disposal (art. 10 (3)). This provision ought to contribute to prevent conflicts resulting from the differences between the procedural legal orders within the European Union.169 d) Assistance in Enforcement of Criminal Penalties. The principle of mutual recogni- 55 tion also is to be applied to the enforcement of criminal penalties that have been imposed in another Member State. In this regard, the European Union has enacted a framework decision on the application of the principle of mutual recognition to financial penalties170 and a similar framework decision on the application of the principle of mutual recognition to confiscation orders171. These framework decisions follow the example of the European arrest warrant in abandoning the traditional requirement of double criminality in relation to the most important areas of criminality (“positive list”). In late 2008, the Council adopted a framework decision which extended the application 56 of the principle of mutual recognition to custodial sentences and (other) measures involving deprivation of liberty for the purpose of their enforcement in another Member State (European enforcement order).172 Pursuant to this framework decision, in many cases, a sentenced person may be transferred to another Member State (typically his or her home country) without his or her consent or the consent of the receiving state. This decision aims at enhancing social rehabilitation, operating under the assumption that this will be easier to attain if the sentenced person has a certain connection to the executing state. There is also a framework decision on the mutual recognition of judgments and 57 probation decisions173 that is supposed to make cross-border supervision of probation 166 In more detail, see F. Zimmermann, ZStW 127 (2015), 143, 157 et seqq.; see also Mangiaracina, Utrecht Law Review 2014, 113, 130 et seqq. 167 See also paras 26, 37 et seqq. 168 Armada, NJECL 7 (2015), 8, 16 et seq.; in detail F. Zimmermann, ZStW 127 (2015), 143, 162. 169 Likewise Belfiore, EuCLR 5 (2015), 312, 318. 170 Council Framework Decision 2005/214/JHA, OJ (EU) 2005 No. L 76/16. 171 Council Framework Decision 2006/783/JHA, OJ (EU) 2006 No. L 328/59. In this context Directive 2014/42/EU on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union, OJ (EU) 2014 No. L 127/39, must also be mentioned, although it constitutes a measure of harmonisation pursuant to art. 82 (2), 83 (1) TFEU; on this in detail Lelieur, EuCLR 5 (2015), 279; Montaldo, NJECL 7 (2015), 195; Simonato, NJECL 7 (2015), 213. 172 Council Framework Decision 2008/909/JHA, OJ (EU) 2008 No. L 327/27. For criticism and alternatives, see De Bondt/Suominen, EuCLR 5 (2015), 347; Satzger, in: Schu¨nemann (ed.), A Programme for European Criminal Justice, pp. 395 et seqq. 173 Council Framework Decision 2008/947/JHA, OJ (EU) 2008 No. L 337/102.

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conditions and alternative sanctions possible. The Council feared that courts might refrain from suspending a custodial sentence because they find it difficult to verify whether the convicted person meets the requirements for the suspension after having returned to his or her home state.174 In this regard, the framework decision is closely linked to the European supervision order (see para. 46). 58 These last two framework decisions illustrate an interesting development with regard to the principle of mutual recognition. While the original proposals had abandoned the requirement of double criminality by using a catalogue like the ones mentioned above, the Member States seem to have reconsidered this approach: the framework decisions in their latest versions left it to the discretion of the Member States to decide whether they wanted to insist on the requirement of double criminality.175 This also shows the flexibility inherent in the concept of mutual recognition (see para. 28 et seqq.).

4. The Prohibition of Double Jeopardy (ne bis in idem) 59

If, according to the principle of mutual recognition, decisions taken by courts and other judicial decisions in criminal matters issued in one Member State must be recognised in every other, this must principally also apply to decisions that conclude a criminal proceeding in a Member State. Those ought to be recognised and respected also in other Member States. This raises the question of a prohibition of double jeopardy applicable throughout the Union.

Case 8 German national D, habitually resident in Germany, is indicted in Belgium for inflicting bodily injury. The place of the alleged offence is in Belgium. During investigation proceedings concerning the same act, instigated by the Department of Public Prosecution in Bonn/Germany, the prosecution offers to discontinue proceedings in return for a payment of 1000 E under § 153 a (1) cl. 7 in connection with § 153 (1) cl. 2 StPO. After B has paid the sum, the Department of Public Prosecution Bonn, in accordance with national law, declares the termination of the proceedings without court assent. May the Belgian court still convict B? (see paras 71 et seqq.) 60

a) Merely Internal Effect of ne bis in idem as the General Rule. All Member States acknowledge the principle that nobody may be punished twice for the same conduct.176 In the words of the BVerfG the rule of ne bis in idem, as enshrined in art. 103 (3) GG, protects an “offender, who has been already punished or finally acquitted, against repeated prosecution and punishment due to the same act”.177 According to German law, the first final criminal judgment creates a comprehensive bar to proceedings for any subsequent trial concerning the same facts.178 Due to the general approval of the

174 Cf the reasoning for the original initiative, Council Document No. 5325/07 of 1st February 2007, p. 4; Staudigl/Weber, NStZ 2008, 17 et seq. 175 See art. 7 (4) of the Council Framework Decision 2008/909/JHA (European enforcement order) and art. 10 (4) of the Council Framework Decision 2008/947/JHA (probation conditions). 176 See also art. 4 (1) of the 7th additional protocol to the ECtHR, to which, however, not all Member States are signatories or parties, cf Vervaele, Utrecht Law Review 2013, 211, 213. 177 BVerfG, Decision of 17th January 1961, 2 BvL 17/60 = BVerfGE 12, 62, 66; quote translated from German. 178 See only Roxin/Schu ¨ nemann, Strafverfahrensrecht, § 52 para. 6.

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principle in the law of all Member States, ne bis in idem is part of the general principles of European Union law.179 It has also been codified in art. 50 CFR. Even if the legal orders of the Member States as well as the European Union both contain a prohibition of dual punishment, this does not mean that the sanctioning of an act in one Member State would, in principle, bar a second sentence in another. Neither does a sanction imposed by EU bodies – e. g. for violations of antitrust rules – by itself preclude prosecution and punishment by national authorities of the Member States. Following from the autonomy of legal systems, the ne bis in idem principle is limited to internal effect within the respective legal order. Art. 103 (3) GG, for example, is therefore understood as dealing only with conflicting criminal judgments of German courts.180 Also, as a general principle of European Union law, ne bis in idem merely excludes the repeated sanctioning under Union law (such as a second fine imposed for the same act). Yet, as a consequence of the principle of proportionality, both European law and the national legal orders require the former punishment incurred under another jurisdiction to be taken into account in the sentencing decision of the later judgment imposing another sanction.181 Correspondingly, the ECJ has constantly upheld the legality of concurrent proceedings on the European as well as on the national level in the important area of cartel law, reasoning that the Commission and national cartel authorities do not – as they apply different norms of their respective cartel law – decide according to the same criteria.182 This case-law arguably has lost its legal foundation through the reform of European cartel law (see Regulation 1/2003 EC),183 as the Commission and the national cartel authorities now form a European Cartel Network (ECN) and apply an identical cartel law (to the greatest possible extent) so that ne bis in idem is applicable.184 b) Sanctions in Multiple Member States Based on the Same Facts. aa) Necessity 61 for and Concept of a European ne bis in idem Principle. Since both European and national ne bis in idem principles are only relevant within the respective legal order, they are not applicable to judgments in other Member States.185 Also, in these cases, foreign punishment already executed is simply accredited to the new sentence (in Germany, this is provided for in § 51 (3) StGB).186 The aim of creating a single European area of justice brought about the necessity for a comprehensive transna-

179 Cf ECJ, Judgment of 5th May 1966, Joined Cases C-18/65 and C-35/65 “Gutmann” ECR 1966, 103, 149; ECJ, Judgment of 13th December 1984, Case C-78/83 “Usinor” ECR 1984, 4177, paras 12 et seqq.; Lenaerts, EuR 1997, 17, 21. 180 Settled case-law of the BVerfG since the Decision of 17th January 1961, 2 BvL 17/60 = BVerfGE 12, 62, 66, most recently BVerfG, Decision of 15th December 2011, 2 BvR 148/11 = NJW 2012, 1202, 1203; cf also Satzger, in: FS Roxin, 2011, pp. 1515, 1517. 181 Cf for the situation in Germany § 51 (3) German Criminal Code (StGB) and for EU law respectively general considerations of equity and the principle of proportionality, ECJ, Judgment of 13th February 1969, Case C-14/68 “Walt Wilhelm ./. Bundeskartellamt” ECR 1969, 1, para 11; see also art. 6 Reg. (EC, Euratom) No. 2988/95. 182 ECJ, Judgment of 13th February 1969, Case C-14/68 “Walt Wilhelm ./. Bundeskartellamt” ECR 1969, 1 (para. 11); this is true a fortiori where a sanction for the same cartel law violation was imposed not in a Member State but a third country, cf ECJ, Judgment of 10th May 2007, Case C-328/05 “SGL Carbon” ECR 2007, I-3921: A fine imposed by the Commission was found to be lawful despite previous sanction in the USA; cf Vervaele, in: Vervaele (ed.), European Evidence Warrant, pp. 141 et seq. 183 OJ (EU) 2003 No. L 1/1. 184 For details, see T. Streinz, Jura 2009, 412; cf also Klees, WuW 2006, 1222, 1226; Solte ´sz/Marquier, EuZW 2006, 102. 185 Cf only BVerfG, Decision of 17th January 1961, 2 BvL 17/60 = BVerfGE 12, 62, 66. 186 Going even further, § 65 (4) no. 2 Criminal Code of Austria provides “The act ceases to be punishable (under Austrian law), if the offender is finally acquitted or prosecution is otherwise discontinued by a court of the state where the offence was committed”.

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tional ne bis in idem principle.187 Consequently, any criminal sentence in an EU Member State should hinder the instigation of new criminal proceedings or at least another judgment in any other Member State. This entails the recognition of the effect of a final judgment in all other states. A transnational ne bis in idem principle is merely a further manifestation of the principle of mutual recognition – this time and contrary to the general situation, beneficial to the suspect.188 62 With every Member State having its own independent rules on the territorial scope of its criminal law (“transnational criminal law”) and no clear distribution of competences concerning the conduct of criminal proceedings in Europe,189 there is an inherent hazard of dual punishment. Additionally, art. 4 (3) TFEU compels Member States to frame their transnational criminal law in the interest of the Union so that violations of EU law can be criminally sanctioned to the greatest possible extent. Accordingly, the principle of territoriality, which had formerly been confined to national borders, is extended towards a “principle of European territoriality”190, as has come to pass with provisions like § 6 no. 8 StGB in Germany. As a consequence, there is a further increase in the risk of double prosecution.191 Thus, the more the administration of criminal justice becomes Europeanised and the differences between national criminal law systems are reduced by harmonisation, the more the need for a transnational application of the ne bis in idem principle becomes apparent. 63 There have been efforts towards the introduction of a comprehensive prohibition on dual prosecution and punishment through international treaties between the EU Member States,192 with the Convention Implementing the Schengen Agreement (CISA), in force since 1995,193 having the greatest impact.194 Art. 54 of the Convention reads: “A person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party.” 64 In contrast to the purely national prohibition of double jeopardy in art. 103 (3) GG, the second clause of its transnational equivalent, art. 54 CISA, requires an “element of enforcement” (see paras 80 et seqq.) in addition to a final judgment. The CFR of the 187 Cf Eser, in: Sieber et al. (eds), Europ. StR, § 36 paras 4 et seq.; Vervaele, Utrecht L. Rev. 2013, 211 et seqq. 188 See Satzger, in: FS Roxin, 2011, pp. 1515, 1520. 189 Fundamentally and most recently on this Bo ¨ se/Meyer/Schneider, in: Bo¨se et al. (eds), Conflicts of Jurisdiction, vol. 2, pp. 381 et seqq.; Sinn (ed.), Conflicts of Jurisdiction, pp. 575 et seqq.; Thorhauer, NJECL 7 (2015), 78 et seqq.; F. Zimmermann, Strafgewaltkonflikte in der EU, pp. 320 et seqq.; id., Bergen Journal of Criminal Law and Criminal Justice 2015, 1 et seqq.; previously already Schu¨nemann, in: Schu¨nemann (ed.), A Programme for European Criminal Justice, pp. 258 et seqq., as well as the Commission Green Paper on Conflicts of Jurisdiction and the Principle of ne bis in idem in Criminal Proceedings (COM [2005] 696 final). 190 Or, more fittingly termed, “principle of protection of European Union interests”, see § 4 para. 44. 191 On this in detail Satzger, in: FS Roxin, 2011, pp. 1515, 1518 et seq.; F. Zimmermann, Strafgewaltkonflikte in der EU, pp. 100 et seqq.; Whilst a framework decision on the prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings (OJ [EU] 2009 No. L 328/42, on this cf also the Commission’s implementation report COM [2014] 313 final) and preparatory works regarding the transfer of proceedings (cf Council Document No. 11119/09 of 30th June 2009) do exist, a legally binding resolution for conflicts of competence for criminal prosecution, however, will probably not be reached with these instruments. 192 Additionally, Greece put forward an initiative for a framework decision on the application of this principle in April 2003 (OJ [EU] 2003 No. C 100/24). 193 Federal Law Gazette (BGBl.) 1993 II, p. 1010. 194 A congruent provision on ne bis in idem can also be found in the EC ne bis in idem convention of 25th May, 1987, which has not been ratified by all Member States. See Satzger, Europa¨isierung, p. 694.

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European Union – in contrast – dispenses with such an element in its art. 50, which also provides for a comprehensive transnational ne bis in idem principle: “No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law.” Generally, art. 54 CISA and art. 50 CFR co-exist. Pursuant to art. 51 (1) cl. 1 CFR, the Charter only applies “to the institutions and bodies of the Union […] and to the Member States only when they are implementing Union law”. One can, however, argue that through the application of the principle of mutual recognition as enshrined in particular in art. 82 (1) TFEU every national court is eventually also “implementing” Union law.195 Also after the Charter’s entry into force, art. 54 CISA preserves its effects as a legal act on the level of European secondary law, whilst the Charter itself forms part of the Union’s primary law according to its art. 6 (1). This poses the question, how the two ne bis in idem provisions are related to each other. bb) The Relationship between art. 54 CISA and art. 50 CFR. Especially due to the 65 difference regarding the enforcement element, the question of the relationship of art. 54 CISA and art. 50 CFR was strongly contested. Recently, the ECJ answered it to the effect that art. 54 CISA continues to apply and that, consequently, the enforcement element must be abided by.196 This interpretation corresponds with the stance already previously taken here and has to be applauded. Others, however, adopt the position that art. 50 CFR supersedes art. 54 CISA with the result that transnational application of ne bis in idem would no longer be dependent on any enforcement element.197 Proponents of this view argue that in an area in which fines, sentences suspended on probation and custodial sentences will be mutually recognised and can be executed in a Member State other than that where the judgment was delivered, there is no further need for such an element.198 As far as it is applicable, the European arrest warrant would eliminate the danger that a suspect could evade punishment by fleeing to another Member State.199 Still, the notion of a single area of justice, in which the enforcement element could be dispensed with (as in art. 103 (3) GG) continues to be an illusion. The instruments of mutual recognition of sentences and decisions are not – and perhaps never will be – coordinated to the extent that a comprehensive system will evolve. This is also due to the flexibility of the concept of mutual recognition (following the variable waiver-concept, see para. 28). For example, the European arrest warrant is not applicable to all criminal convictions in an EU Member State. In cases where the perpetrator escapes to another EU country, the complete removal of the enforcement element might have the – undesirable – consequence that merely the fact of the suspect’s “having been convicted” elsewhere would prevent criminal proceedings in the host state.200 195 In detail Burchard/Brodowski, NJECL 2 (2010), 310, 316 et seq.; Burchard, Die Konstitutionalisierung der gegenseitigen Anerkennung, p. 386. 196 ECJ, Judgment of 27th May 2014, Case C-129/14 PPU “Spasic”, paras 55 et seqq. with discussion by Gaede, NJW 2014, 2990; Meyer, HRRS 2014, 270. 197 To that effect e. g. Anagnostopoulos, in: FS Hassemer, pp. 1136 et seq.; Heger, ZIS 4 (2009), 406, 408, id., HRRS 2008, 413, 415; Reichling, StV 2010, 237; see also Bo¨se, ZIS 5 (2010), 607, 612, as well as id., GA 2011, 504. 198 For these reasons, Fletcher/Lo ¨ o¨f/Gilmore, EU Criminal Law, p. 138 are also critical of the enforcement element. 199 Safferling, Int. Strafrecht, § 12 paras 84 et seq. attempts to solve the problem functionally by admitting an impact of the enforcement element in cases in which enforcement within the Union is not guaranteed by Union wide measures. 200 ECJ, Judgment of 27th May 2014, Case C-129/14 PPU “Spasic”, paras 65 et seqq.; cf already Satzger, in: FS Roxin, 2011, pp. 1515, 1522, 1532.

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Adherence to the enforcement element, however, is not only sound for policy reasons. There are also convincing legal arguments for the proposition that notwithstanding the entry into force of art. 50 CFR, the transnational application of the ne bis in idem principle continues to be governed by the (stricter) provision of art. 54 CISA as it has been interpreted by the courts. The unmodified application of art. 54 CISA cannot be justified by art. 52 (2) CFR. This provision determines that the rights recognised by the Charter which are based on the Community Treaties or the Treaty on European Union shall be exercised under the conditions and within the limits defined by those Treaties. Even though this provision was expressly designed to prevent modifications of rights already guaranteed by the Treaties in the course of their codification in the Charter,201 the term “Treaties” in this context refers only to primary EU law which does not include the CISA.202 The Schengen Protocol, which transferred the Schengen aquis into the legal and institutional framework of the EU, provides in its art. 2 (1) subpara. 2 that the Council shall, in conformity with the relevant provisions of the Treaties, determine the legal basis for each of the provisions or decisions which constitute the Schengen acquis. This clarifies that the Schengen aquis shall be accorded a rank below the founding Treaties; art. 54 et seq. CISA are therefore provisions of secondary, not primary law.203 67 Nevertheless, art. 50 CFR enshrines the principle of ne bis in idem as a judicial fundamental right and therefore – as is characteristic of fundamental rights guarantees – is framed in very broad terms. Art. 54 CISA with its enforcement element, by contrast, can be seen as a limitation to art. 50 CFR provided by law.204 The express stipulation of legal requirements for such limitations on the exercise of Charter rights in art. 52 (1) CFR (e. g. the requirement to respect the essence of the right and the principle of proportionality) demonstrates that – as is the case in national legal orders – limitations on fundamental rights are not only admissible but in fact immanent in the very system of the Charter.205 Furthermore, the official explanations on art. 50 CFR206 take the position that the limitation of the ne bis in idem principle caused by art. 54 CISA is covered by art. 52 (1) CFR.207 Consequently, art. 54 CISA and the case-law on this provision are still the relevant law on the transnational application of the ne bis in idem principle in the EU.208 While it can be 66

201 On the intentions of the “legislator”, see the explanations relating to the Charter of Fundamental Rights, concerning art. 52, OJ (EU) 2007 No. C 303/33. 202 In its decision of 25th October 2010, 1 StR 57/16, NStZ-RR 2011, 7, the BGH also discussed, whether art. 52 (2) CFR is also applicable to the prohibition on dual prosecution as it has been developed as a general principle of European law in the case-law of the ECJ (para. 15). The Court answered the question in the negative, reasoning that art. 52 (2) CFR is in principle inapplicable to general principles of European law. In its reasoning, the BGH seems to have overlooked that the ne bis in idem principle had only been acknowledged as a general principle of Union law with regard to punishments within the same legal order; a transnational European prohibition of dual jeopardy thus did not exist before art. 54 CISA was created (see paras 59 et seqq.). 203 The Council determined art. 34, 31 TEU o.v. as the legal bases for art. 54 et seq. CISA; cf also ECJ, Judgment of 11th February 2003, Joined Cases C-385/01 “Go¨zu¨tok” and C-187/01 “Bru¨gge” ECR 2003, I1345, paras 3 et seq. 204 See ECJ, Judgment of 27th May 2014, Case C-129/14 PPU “Spasic”, paras 55 et seqq.; earlier already Hackner, NStZ 2011, 425, 429; Hecker, Eur. Strafrecht, § 13 paras 38 et seqq. Esser, Eur. und Int. Strafrecht, § 7 para. 43; fundamentally Burchard/Brodowski, NJECL 2 (2010), 310, 317 et seqq.; cf on this the decision of the BVerfG of 15th December 2011, 2 BvR 148/11 = NJW 2012, 1202 et seqq. 205 For an early analysis, see Mansdo ¨ rfer, Prinzip des ne bis in idem im europa¨ischen Strafrecht, p. 242. 206 OJ (EU) 2007 No. C 303/31. 207 Referring to this ECJ, Judgment of 27th May 2014, Case C-129/14 PPU “Spasic”, para. 54. 208 Correctly, Burchard/Brodowsk, NJECL 2 (2010), 310, 322 et seq.; also Hecker, Europa ¨isches Strafrecht, § 13 para. 38; Satzger, in: FS Roxin, 2011, pp. 1515, 1524. For a differing view, see Radtke, NStZ 2012, 479, 481; Stalberg, Zum Anwendungsbereich des Art. 50 GRC, pp. 170 et seqq.

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assumed that the requirements laid down in art. 52 (1) CFR are met by art. 54 CISA, in the future the provision will have to be interpreted in accordance with the fundamental guarantee enshrined in art. 50 CFR.209 The question concerning the continued applicability of the enforcement element in 68 art. 54 CISA gained also practical relevance in Germany in recent years: German courts had to deal with a number of suspected murders of former SS- and Wehrmachtmembers during the Second World War.210 After the end of the war the offenders had been convicted in the respective states in which the crimes had been committed but had managed to escape punishment by fleeing those states. The German courts negated – ultimately rightfully so (see paras 65 et seqq.) – a transnational ne bis in idem effect according to art. 54 CISA on the ground that the enforcement element was not satisfied. Thus, the courts anticipated the position meanwhile also taken by the ECJ. Unfortunately in doing so, the German Federal Court of Justice (BGH) (as the court of final appeal) violated its obligation under art. 267 (3) TFEU to bring the matter before the ECJ in order to clarify this question of interpretation.211 As not least the extensively reasoned judgment of the ECJ’s grand chamber in the Spasic case, which has been issued in the meantime, demonstrates, the BGH’s invocation of the “acte-clair-Doctrine” due to the alleged clarity of the legal situation was misguided. Only under very strict conditions212 this reasoning can justify an exception to the obligation to refer a matter to the ECJ. Given the utter novelty of the question and the strong academic debate, it is, however, clear that these conditions were not met in the case at hand.213 c) Elements and Uniform Application of art. 54 CISA. Art. 54 CISA stipulates three 69 conditions for the prohibition of dual prosecution and punishment to take effect: firstly, the trial must have been finally disposed of in a Member State, secondly the disposal has to have been for the same acts and thirdly the enforcement element has to be fulfilled. While art. 54 CISA seems to be clear-cut in theory, the interpretation of the provision in its practical application quickly proved to be exceptionally difficult due to the different language versions and the diverse nature of the criminal justice systems of the Member States. Before the Schengen acquis was introduced into the institutional and legal framework of the EU by Protocol No. 2 to the Amsterdam Treaty (so-called Schengen Protocol), the national courts of the Member States were responsible for the interpretation of art. 54 CISA. This resulted in an inconsistent and amorphous application of the provision. Examples: The Tribunal of First Instance of Eupen (Belgium) considered a termination of proceedings under § 153 StPO in Germany to be a final disposal of the trial, although under German law it does not preclude an indictment for the relevant acts in the future.214 As 209

The same result is reached by LG Aachen, Decision of 8th December 2009, 52 Ks 9/08 = StV 2010,

237. 210 BGH, Decision of 25th October 2010, 1 StR 57/16 = NStZ-RR 2011, 7; BGH, Decision of 1st December 2010, 2 StR 420/10; preceeding: LG Aachen, Decision of 8th December 2009, 52 Ks 9/08 = StV 2010, 237, with remarks by Burchard/Brodowski, NJECL 2 (2010), 310, 313 et seqq. 211 At least the BGH would have been obliged to do so according to art. 267 (3) TFEU; the BVerfG, however, did not assume a transgression of the threshold of arbitrariness and accordingly did not deem art. 101 (2) cl. 2 GG to be violated, NJW 2012, 1202, 1203; on the difference between the German constitutional standard and art. 267 (3) TFEU, see Satzger, in: FS von Heintschel-Heinegg, pp. 391, 400 et seqq. 212 Cf Streinz, Europarecht, para. 704. 213 In detail on the violation of the obligation to refer Satzger, in: FS von Heintschel-Heinegg, pp. 391; as well as id., in: FS Roxin, 2011, pp. 1515, 1525 et seqq. 214 See wistra 1999, 479.

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to the enforcement element, the Regional Court of Landshut (Landgericht [LG] Landshut, Germany)215 deemed a sentence suspended on probation in Portugal to be a punishment which was “in the process of being enforced” while the Higher Regional Court of Saarbru¨cken (Oberlandesgericht [OLG] Saarbru¨cken, Germany) ruled that there was no bar to proceedings in a case where the accused had already been sentenced to a fine in Belgium which merely had not been paid yet.216 70

Following the entry into force of the Treaty of Lisbon, the ECJ has jurisdiction to rule on preliminary references concerning the interpretation of art. 54 CISA under art. 19 (3) (b) TEU in connection with art. 267 (2) (b) TFEU.

aa) “Decision Finally Disposing of the Trial”. (1) The Requirement of Final Disposal. The ECJ case-law shows a distinct trend towards a broader construction of the conditions of art. 54 CISA, leading to results more favourable to the suspect. In this context, the Court stresses the relation between the ne bis in idem principle and the rights of free movement:217 after his trial has been finally disposed of in one Member State, a citizen will only be able to effectively avail himself of his rights to free movement throughout Europe if he does not have to fear prosecution in another. Case 8, which is based on the first case referred to the Court of Justice dealing with these issues, is an illustrative example concerning the element of “final disposal of the trial”:218 On preliminary reference by the Belgian court, the ECJ held, that “the ne bis in idem principle laid down in Article 54 of the CISA also applies to procedures whereby further prosecution is barred, such as the procedures at issue in the main actions, by which the Public Prosecutor in a Member State discontinues, without the involvement of a court, a prosecution brought in that state once the accused has fulfilled certain obligations and, in particular, has paid a certain sum of money determined by the Public Prosecutor.” In spite of the wording of art. 54 CISA (“final”, “trial”), the ECJ considered the circumstances that no court had been involved in the proceedings and that the decision had not been handed down as a judgment following a criminal trial as “procedural or purely formal matters”. Instead, the Court followed the general principles of treaty interpretation under EU law and placed the greatest weight on the aim and purpose and the effet utile (favouring the interpretation which best realises the objectives of the treaties) of the provision. The court reasoned that within the framework of the creation of an area of freedom, security and justice in which free movement of persons is warranted, the freedom of movement of a person should be facilitated as far as possible after criminal prosecution against this person has finally been concluded in one Member State. 72 It follows that a trial is already finally disposed of in the sense of art. 54 CISA, when the act in question is of such a nature as to end proceedings and is passed by an authority – not necessarily a court – involved in the criminal justice system.219 71

215 LG Landshut, case no. 1 KLS 45 Js 4018/92 (not reported), quoted in Wolf, in: Organisationsbu ¨ ro der Strafverteidigervereinigungen, 22. Strafverteidigertag, 1999, p. 71. 216 See Mitsilegas, EU Criminal Law, pp. 145 et seq.; cf Sommer, StraFo 1999, 37, 39. 217 ECJ, Judgment of 11th February 2003, Joined Cases C-385/01 “Go ¨ zu¨tok” and C-187/01 “Bru¨gge” ECR 2003, I-1345, paras 36, 40. 218 ECJ, Judgment of 11th February 2003, Joined Cases C-385/01 “Go ¨ zu¨tok” and C-187/01 “Bru¨gge” ECR 2003, I-1345; see also Radtke/Busch, NStZ 2003, 281; Vogel/Norouzi, JuS 2003, 1059; about this element and the “enforcement element”, see furthermore Klip, Eur. Criminal Law, pp. 287 et seq. 219 ECJ, Judgment of 11th February 2003, Joined Cases C-385/01 “Go ¨ zu¨tok” and C-187/01 “Bru¨gge” ECR 2003, I-1345, para. 28; in summary on the further requirements for a “final disposal” in case of nonjudicial orders for withdrawal of prosecution Vogel/Norouzi, JuS 2003, 1059, 1061; summarising differing

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As finally disposing of the respective trial, the ECJ, for example, classified a transactie under Dutch law – an agreement between prosecution and suspect – as well as the closure of a case pursuant to § 153 a StPO which both lead to the termination of the investigation proceedings without the involvement of a court.220 The above mentioned statements of the ECJ point towards a punitive effect (“con- 73 ditions fulfilled”, “fees payed”) of the initial decision as a further characteristic of the final disposal of a trial. Such an effect can at any rate be affirmed in case of an obligation to pay a certain fee or other obligations and instructions (such as those in the sense of § 153 a of the German StPO). For the ne bis in idem effect to be brought about, it must, however, still be verified in every single case whether the trial was also finally disposed of by the relevant decision in the sense of art. 54 CISA (see para. 77). As art. 54 CISA refers to “disposal”, but not to “conviction”, it must be considered 74 irrelevant whether the respective decision positively establishes that the defendant has committed the offence in question. Rather, the ne bis in idem effect is also aroused in case of an acquittal by a court ruling. Whether the acquittal is based on legal or factual grounds is equally irrelevant.221 Whether the same applies to non-judicial decisions to terminate proceedings that are not made dependent upon conditions and are therefore similar to judicial acquittals has been approached only very tentatively by the ECJ so far. In the Miraglia case222 a factual assessment of the case was laid down as a minimum requirement. In consequence a decision terminating proceedings was not deemed to have the ne bis in idem effect as the prosecutor – without any determination as to the merits of the case – had decided not to pursue the prosecution on the sole ground that criminal proceedings against the defendant had been initiated in another Member State in respect of the same acts.223 Beyond this requirement, the necessity of a “punitive effect”224 cannot be rationally upheld in such constellations only similar to judicial acquittals.225 Here, rather the question of whether the case at hand is really finally disposed of (see para. 77) ought to gain particular attention. The expansive interpretation of art. 54 CISA chosen by the ECJ deserves approval at 75 least insofar as limiting the application of the provision to decisions with judicial participation would endanger the exercise of free movement rights by persons from conceptions Ambos, Int. Strafrecht, § 10 para. 121 with further references; cf also SSW-StPO-Satzger, ¨ , paras 19 et seqq., 29. art. 50 GRC/art. 54 SDU 220 ECJ, Judgment of 11th February 2003, Joined Cases C-385/01 “Go ¨ zu¨tok” and C-187/01 “Bru¨gge” ECR 2003, I-1345, paras 28 et seqq.; in agreement Hecker, Eur. Strafrecht, § 13 para. 30; in disagreement Ambos, Int. Strafrecht, § 10 para. 126; Radtke/Busch, NStZ 2003, 283; with reference to a “transactie” in Belgian law already previously affirming a “final disposal”: LG Hamburg, Decision of 14th September 1995, 615 KLs 3/93 = wistra 1995, 358; LG Hamburg, Decision of 24th June 1996, 615 KLs 3/93 = wistra 1996, 359; for a differing view, see OLG Hamburg, Decision of 8th March 1996, 1 Ws 316/95 = wistra 1996, 193; left open by BGH, Judgment of 2nd February 1999, 5 StR 596/96 = StV 1999, 244; on this also ¨ , paras 19 et seq. Hecker, JA 2000, 15; see also SSW-StPO-Satzger, art. 50 GRC/art. 54 SDU 221 ECJ, Judgment of 28th September 2006, Case C-150/05 “van Straaten” ECR 2006, I-9327, paras 54 et seqq. with critical remarks by Ku¨hne, JZ 2007, 247; see also Mitsilegas, EU Criminal Law, pp. 146 et seqq.; ECJ, Judgment of 28th September 2006, Case C-467/04 “Gasparini” ECR 2006, I-9199, paras 24 et seqq.; BGH, Judgment of 10th June 1999, 4 StR 87/98 = NStZ 1999, 579, 580; BGH, Decision of 28th February 2001, 2 StR 458/00 = BGHSt 46, 307, 309; BGH, Decision of 28th December 2006, 1 StR 534/06 = NStZ-RR 2007, 179. 222 ECJ, Judgment of 10th March 2005, Case C-469/03 “Miraglia” ECR 2005, I-2009, para. 30. 223 See SSW-StPO-Satzger, art. 50 GRC/art. 54 SDU ¨ , para. 21; F. Zimmermann, Strafgewaltkonflikte in der EU, pp. 258 et seqq. 224 Cf ECJ, Judgment of 11th February 2003, Joined Cases C-385/01 “Go ¨ zu¨tok” and C-187/01 “Bru¨gge” ECR 2003, I-1345, para. 29. 225 Likewise Hochmayr, in: Hochmayr (ed.), “Ne bis in idem” in Europa, 2015, pp. 89, 103 et seqq.

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Member States whose law makes extensive use of out of court procedures for ending criminal proceedings. They would face the risk of being prosecuted again in another Member State with criminal jurisdiction over the case.226 76 (2) The Criminal Nature of the Penalty or the Trial. Only decisions that are taken within the context of a criminal proceeding can have the ne bis in idem effect. The ECJ, however, referring to the case-law of the ECtHR, has an extensive and autonomous understanding of criminal penalties and criminal proceedings (see § 9 para. 69). According to this understanding, the criminal nature of a measure is determined by – the legal classification of the offence under national law, – the very nature of the offence, and – the nature and degree of severity of the penalty that the person concerned is liable to incur.227 Therefore, a ne bis in idem effect may also be brought about when a conduct is criminally punishable under the law of a Member State, but only constitutes an administrative offence in the state which first prosecuted the case and when the final decision in this state is accordingly taken by an administrative authority.228 In line with these principles, also judicial decisions taken in administrative offences proceedings must be considered to cause the ne bis in idem effect.229 77 (3) Requirements Regarding the Final Nature of the First Taken Decision. A disposal must be regarded as final where further prosecution is definitely barred230 and where the respective decision is given only after a determination has been made as to the merits of the case.231 The criterion of a definite ban on further prosecution is determined by the ECJ on the basis of the national law of the Member State where the decision was taken.232 In this regard, the application of the ne bis in idem principle does not pose any problem in case of domestic judgments or at least judicial decisions which substitute a judgment

226 See also Hecker, Eur. Strafrecht, § 13 para. 33, who emphasises the point that methods of ending proceedings without judgment, which are indispensable in the practice of criminal procedure, would be devaluated by a different interpretation. For a critical appraisal of the relationship postulated by the ECJ between art. 54 CISA and the rights to free movement, see Lo¨o¨f, EJCCLCJ 15 (2007), 324 et seqq. 227 ECJ, Judgment of 26th February 2013, Case C-617/10 “Åkerberg Fransson”, para. 35, referencing ECJ, Judgment of 5th June 2012, Case C-489/10 “Bonda”, para. 37; see also Ansems/Loeve, EuCLR 6 ¨ berg, EuCLR 3 (2013), 273 et seqq.; Weyembergh/Joncheray, NJECL 8 (2016), 190 (2016), 60 et seqq.; O et seqq.; F. Zimmermann, Strafgewaltkonflikte in der EU, pp. 272 et seqq. 228 Deviating for an Austrian penal order, however, BayObLG, Judgment of 26th May 2000, 1St RR 67/ 00 = StV 2001, 263; in disagreement Anagnostopoulos, in: FS Hassemer, pp. 1121, 1132; Hecker, Eur. Strafrecht, § 13 para. 30; Kniebu¨hler, Transnationales “ne bis in idem”, pp. 270 et seqq.; Mansdo¨rfer, Das Prinzip des ne bis in idem, p. 173; on the autonomous interpretation and regarding the question, under what circumstances a court is competent in criminal matters, ECJ, Judgment of 14th November 2013, Case C-60/12 “Bala´zˇ”. 229 Cf on this § 84 (2) of the German Code on regulatory offences (OWiG); cf also Hecker, Eur. Strafrecht, § 13 para. 64; id., StV 2001, 306, 310; Kniebu¨hler, Transnationales “ne bis in idem”, pp. 252 et seqq.; on administrative fines cf Bo¨se, EWS 2007, 202, 209; in detail SSW-StPO-Satzger, art. 50 GRC/ ¨ , paras 23 et seq. art. 54 SDU 230 ECJ, Judgment of 11th February 2003, Joined Cases C-385/01 “Go ¨ zu¨tok” and C-187/01 “Bru¨gge”, ECR 2003, I-1345 (para. 30). 231 ECJ, Judgment of 10th March 2005, Case C-469/03 “Miraglia”, para. 30; ECJ, Judgment of 5th June 2014, Case C-398/12 “M”, para. 28; ECJ, Judgment of 29th June 2016, Case C-486/14 “Kossowski”, paras 34 and 42. 232 ECJ, Judgment of 16th November 2010, Case C-261/09 “Mantello” ECR 2010, I-11477, para. 46 with remarks by Bo¨se, HRRS 2012, 19; ECJ, Judgment of 5th June 2014, Case C-398/12 “M” = NJW 2014, 3010, para. 36; ECJ, Judgment of 29th June 2016, Case C-486/14 “Kossowski”, para. 35.

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pursuant to national law (e. g. a penalty order under §§ 407 et seqq. StPO).233 In case of decisions with only partially final effects, it is, however, more complex to determine whether they definitely bar further prosecution. The ECJ recently affirmed this requirement in the case of an ordonnance de non-lieu of the Belgian court of appeals which precludes the bringing of new criminal proceedings unless new evidence or facts are revealed.234 From this, the Court derived a limited ne bis in idem effect which applies, however, Europe-wide: No other Member State may initiate proceedings against the same person in respect of the same acts; even if new evidence or facts become available, only Belgium, i. e. the state in which the respective (first) order was made, may reopen the proceedings. This implies a concentration of competences (in this case on Belgium), which is problematic as it cements the rather inappropriate principle of priority encompassed in art. 54 CISA (whoever convicts first, excludes all other states from doing so).235 The term “final disposal” is, however, a European one and therefore must be interpreted in a European-autonomous manner. Therefore, it is not reasonable that the ECJ allows – at least with regard to the requirement of a definite ban on further prosecution – the domestic law of the Member State which first took a decision to unilaterally dictate in which cases a decision is to be regarded as final. It is rather favourable for the legal situation in the state where the first decision was taken to only have a – however, strong – indicative quality236 and to generally apply a European standard. In doing so, credit should be given to the degree of trust caused by the decision first taken and worthy of protection that has been placed on the prospect of no further prosecution by the individual in question.237 A European standard is, however, applied by the ECJ at least with regard to the second prerequisite of a “final disposal”. Recently, this was clearly displayed by the Court in the Kossowski case238: First, the ECJ expressly clarified that a final disposal in the sense of art. 54 CISA in conjunction with art. 50 CFR has to satisfy two requirements, i. e., on the one hand, the definite ban on further prosecution that – according to the ECJ – must be assessed on the basis of the law of the Member State in which the decision in question has been taken, and, on the other hand, a determination of the merits of the case to be accomplished before the decision is taken. Corresponding to the Court’s reasoning in the Miraglia case239 it applied a European standard when verifying whether this second prerequisite was satisfied. This was accomplished by interpreting art. 54 CISA in the light of art. 3 (2) TEU that offers the Union citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured precisely also in conjunction with appropriate measures regarding the prevention and combating of crime. In light of the purpose of said provision, the ECJ refused to classify a decision that terminates criminal proceedings and finally closes 233 For the case of a Croatian penalty order, see BGH, Judgment of 12th December 2013, 3 StR 531/12 = NJW 2014, 1025, 1026, para. 11 with remarks by Hecker, StV 2014, 459. 234 ECJ, Judgment of 5th June 2014, Case C-398/12 “M” = NJW 2014, 3010 with approving remarks by Gaede, NJW 2014, 2990, and disapproving remarks by Burchard, HRRS 2015, 26. 235 In detail SSW-StPO-Satzger, art. 50 GRC/art. 54 SDU ¨ , paras 26 et seqq.; on the shortcomings of the principle of priority, see F. Zimmermann, Strafgewaltkonflikte in der EU, pp. 281 et seqq.; id, Bergen Journal of Criminal Law and Criminal Justice 2015, 1, 11 et seq. 236 Satzger, in: FS Roxin, 2011, pp. 1515, 1534. 237 In detail on possible criteria Hochmayr, in: id. (ed.), “Ne bis in idem” in Europa, 2015, pp. 89, 102 et seqq.; in favour of a differentiation according to whether or not a continued prosecution would be possible only on the basis of new facts or evidence Ambos, Int. Strafrecht, § 10 para. 127; earlier already Bohnert/Lagodny, NStZ 2000, 639 et seq. 238 ECJ, Judgment of 29th June 2016, Case C-486/14 “Kossowski”. 239 ECJ, Judgment of 10th March 2005, Case C-469/03 “Miraglia”.

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the investigation procedure as finally disposing of the case in the sense of art. 54 CISA in conjunction with art. 50 CFR, when it is clear from the decision’s statement of reasons that the procedure was closed without detailed investigations having been carried out. According to the Court, it may be indicative in this regard when neither the victim nor a potential witness have been interviewed. Thus, by this judgment the ECJ confirmed again that it assesses the quality of national decisions as final disposals in the sense of the provisions on the transnational ne bis in idem principle at least in part independently according to genuinely European criteria. 78

bb) “The Same Acts”240.

Case 9 On 31st May 1999, E exported narcotic substances from Member State X and imported them to Member State Z on the next day. E is then convicted of “unlawful import of narcotics” in Z and sentenced to a prison term. After being granted an early release, E returns to X. Upon arrival there, he is indicted for “unlawful export” of the same narcotics. Is this indictment legally sustainable? (see para. 79) 79

Finding a definition for the notion of “the same acts” in art. 54 CISA has turned out to be especially difficult since the reach of the ne bis in idem principle under national law differs considerably among the Member States. While German criminal procedural law, for instance, focuses on the “historical event”,241 other Member States use the legal qualification of the act or the legal interests protected by the criminal provision concerned to determine the extent of the prohibition of double prosecution.242 The ECJ resolved this discrepancy by developing an autonomous concept of the same acts under European law. Due to the lack of harmonisation of national substantive criminal law, the Court rightly refused to make the application of the provision dependent on the identical legal qualification of the act in both Member States claiming jurisdiction. Instead, it based its decision on whether the conduct of the accused appears as one act from a “material” point of view. The test applied by the ECJ is therefore “whether the material acts at issue constitute a set of facts which are inextricably linked together in time, in space and by their subject-matter”.243 In a similar case this line of argument has been affirmed by the Court of Justice.244 Additionally, the Court has meanwhile clarified that the mere presence of an identical criminal intention (without any link in space and time) would not in itself suffice to link conduct to a single act within the meaning of art. 54 CISA.245 In effect, the notion of the same act under European law differs only slightly from the concept used in German criminal procedural law, even though the terms are of course independent from each other.246 240

On this element, cf Klip, Eur. Criminal Law, pp. 293 et seqq. See only Beulke, StPO, paras 512 et seq. 242 See e. g. the submission of the Czech government in ECJ, Judgment of 9th March 2006, Case C-436/ 04 “van Esbroeck” ECR 2006, I-2333, para. 26 as well as the Advocate General Colomer’s Opinion in the same case, para. 43. 243 ECJ, Judgment of 9th March 2006, Case C-436/04 “van Esbroeck” ECR 2006, I-2333. On the applicability of the ECtHR’s criteria for determining whether a penalty is at issue, see ECJ, Judgment of 26th February 2013, Case C-617/10 “Åkerberg Fransson”, para. 35. 244 ECJ, Judgment of 28th September 2006, Case C-150/05 “van Straaten” ECR 2006, I-9327, where the Court held that not even the quantity of narcotics, either exported or imported, would have to be identical for both to constitute “the same act” in a material sense. 245 ECJ, Judgment of 18th July 2007, Case C-367/05 “Kraaijenbrink” ECR 2007, I-6619, para. 29. 246 Satzger, JK 9/06, CISA Art. 54/1; Zehetgruber, JR 2015, 184, 185 et seqq. 241

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Recently, also the German Federal Court of Justice (Bundesgerichtshof [BGH]) dealt with the term “the same act” in the sense of art. 54 CISA when it was asked to decide whether an individual that had already been convicted in Croatia on grounds of illegal possession of arms by way of a final judgment could still be put on trial in Germany for taking hostages with those same weapons.247 Thus, the question concerned was the relationship between an offence of maintaining an unlawful situation for an extended time period which had been finally disposed of abroad and a simultaneously committed (more serious) offence in Germany. In particular, with regard to the ECJ’s requirement of a spatial-temporal link, the BGH’s finding that the offences in question did not constitute “the same act” seems convincing.248 In case 9, the export of narcotics from X and the immediately following import into Z are merely elements of a continuous transport process of narcotics from X to Z. The different legal qualification in both states (“import” and “export” respectively) is without relevance (see above). Import and export are therefore “inextricably linked together in time, in space and by their subject-matter” and consequently “the same act” under European law. To indict E again in X therefore violates art. 54 CISA. cc) Enforcement Element. The enforcement element249 enshrined in art. 54 CISA, 80 which is still legally relevant, despite the entry into force of art. 50 CFR (see paras 65 et seqq.), is present in three cases. The first one concerns a penalty which has been enforced. This is the case where the enforcement has been completed, for instance where a prison term has been served, where the period of probation has ended or where a fine has been paid. A penalty is actually in the process of being enforced, if its execution has already begun 81 but has not yet been completed. The classification of custodial sentences suspended on probation is not completely unambiguous in this respect:250 on the one hand, it is true that the punishment affects the convicted person to a much lesser degree than an unconditional sentence. Yet on the other hand, his or her freedom of action during the probation period is still significantly curtailed by the conditions of probation which are routinely imposed in all Member States. Additionally, the original prison term will have to be served if the offender incurs another criminal conviction during probation. In the words of Advocate General Sharpston in her opinion in the Kretzinger case, a person on probation “lives with (the) sword of Damocles hanging over his head”.251 As long as the convict complies with the probation conditions, the (conditional) sentence is “in the process of being enforced”. This point of view is also shared by the ECJ.252 Another compelling reason for this interpretation can be found in the purpose of the enforcement element which is only to withhold the protection of ne bis in idem from a convicted person who tries to avoid the execution of his sentence by fleeing to another Member State. In the substantially different situation, where the person convicted merely travels to another Member State during the normal course of the probation period while complying with the conditions under which the first sentence was suspended, there is, by contrast, no justification for denying him or her the protection against additional prosecution.253 247 BGH, Decision of 20th November 2013, 1 StR 544/13 = NJW 2014, 1025, paras 12 et seqq.; see also Zehetgruber, JR 2015, 184, 185 et seqq. 248 For a differing view, see Zehetgruber, JR 2015, 184, 189 et seqq. 249 In detail Hecker, Eur. Strafrecht, § 13 paras 37 et seqq.; Safferling, Int. Strafrecht, § 12 paras 100 et seqq.; Satzger, Europa¨isierung, pp. 690 et seq.; Schomburg, StV 1997, 383, 384. 250 OLG Saarbru ¨ cken initially denied the enforcement element for suspended sentences, see para 69. 251 Advocate General Sharpston’s Opinion of 5th December 2006, Case C-288/05 “Kretzinger”, para. 49. 252 ECJ, Judgment of 18th July 2007, Case C-288/05 “Kretzinger” ECR 2007, I-6441, paras 42 et seqq. 253 Rightly so Ambos, Int. Strafrecht, § 10 para. 133; Hecker, Eur. Strafrecht, § 13 para. 44; Safferling, Int. Strafrecht, § 12 para. 102.

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In the case of cumulative sanctions (e. g. fines alongside with custodial sentences) it is not necessary that the enforcement of every single partial sanction has already been initiated. Rather, the cumulative sanctions should be assessed in unison as an “overall sanction”; only regarding its “core” (generally the custodial sentence) it is to be required that the enforcement element is satisfied.254 The ECJ recently decided that the enforcement element is not met when only the fine imposed has been paid, but the not suspended custodial sentence incurred alongside with the fine has not been served.255 It follows that a repeated prosecution is impossible if a fine has not yet been payed but the enforcement of a custodial sentence imposed in addition to the fine has already started; whether or not this custodial sentence has been suspended is not of relevance in this regard.256 83 Under the third case provided for in art. 54 CISA, the enforcement element is also present if the sentence “can no longer be enforced under the laws of the sentencing Contracting Party”. This is the case, for instance, if the enforcement of the sentence has become statute-barred due to the expiry of the applicable limitation period. At a first glance, the clear wording of art. 54 CISA257 (“can no longer be enforced”) requires that the legal possibility of enforcement existed at least at some point in time. The ECJ had to deal with this issue in the recent case C-297/07 “Bourquain”:258 The fugitive B had been convicted in absentia by a French court (in Algeria) in 1961 of desertion and wilful homicide. According to French law, however, enforcement of the sentence would have required new proceedings in the presence of B. After 20 years in which B had not been seized, the statute of limitations for enforcement expired, resulting in the sentence becoming finally unenforceable.259 Consequently, the penalty imposed by the French court in 1961 had never been enforceable. While the wording of art. 54 CISA does not appear to cover the above situation, this result proves to be unconvincing: the provision is based on the notion of mutual recognition. Therefore, its purpose is to ensure that within a single area of justice a person who has been convicted in one Member State shall not be limited in the exercise of his freedom of movement by the fear of repeated criminal prosecution in another Member State. Therefore, the applicability of art. 54 CISA cannot be dependent on the question as to whether the punishment could ever have been legally enforced.260 84 The construction of the enforcement element is also relevant for the effect of amnesties and pardons. While both are quite clearly embraced by the plain wording of art. 54 CISA, Advocate General Colomer argued against a duty of mutual recognition of these acts, based on their political and discretionary nature.261 As it was irrelevant to 82

254

Satzger, in: FS Roxin, 2011, pp. 1515, 1531 et seqq. ECJ, Judgment of 27th May 2014, Case C-129/14 PPU “Spasic”, paras 83 et seqq.; likewise on precisely this constellation already Satzger, in: FS Roxin, 2011, pp. 1515, 1531 et seqq. 256 See also Ambos, Int. Strafrecht, § 10 para. 133; Hecker, Eur. Strafrecht, § 13 para. 45; for a differing view, see OLG Saarbru¨cken, Judgment of 16th December 1996, Ss 90/95, Ss 90/95 (122/95) = StV 1997, 359. 257 However, this is not the only possible way of interpretation, cf ECJ, Judgment of 11th December 2008, Case C-297/07 “Bourquain” ECR 2008, I-9425, para. 47. 258 ECJ, Judgment of 11th December 2008, Case C-297/07 “Bourquain” ECR 2008, I-9425 annoted by Hecker, JuS 2010, 176. 259 As after the lapse of the 20-year-period at least the conviction became “irrevocable” (even though not executable), the ECJ also considered the decision to be final, cf Judgment of 11th December 2008, Case C-297/07 “Bourquain” ECR 2008, I-9425, para. 43. 260 ECJ, Judgment of 11th December 2008, Case C-297/07 “Bourquain” ECR 2008, I-9425, paras 49 et seq.; cf also Advocate General Colomer in his opinion delivered on 8th April 2008, paras 69 et seqq. 261 Cf Advocate General Colomer‘s opinion in Case C-297/07 “Bourquain”, delivered on 8th April 2008, paras 82 et seq. 255

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the outcome of the case, the ECJ did not have to rule on the issue. Yet, if one were to chiefly base the interpretation of the trans-European ne bis in idem principle on maximum protection of free movement rights, a policy of consistency would include acts of clemency into the scope of the provision. Admittedly, these decisions are mainly based on political considerations. This, however, does not constitute a persuasive argument for the opposing view: In the sensitive area of criminal law, practically every legal rule rests upon considerations dealing with its effect on society as a whole. Yet this is not considered an obstacle to the establishment of a duty of mutual recognition in other contexts, for instance, where the requirement of double criminality is partially abandoned for the European arrest warrant (see para. 38). This is also founded on the acceptance of the political (!) decision of another Member State to criminalise certain behaviour. There is no convincing reason to treat the case of the provision on ne bis in idem, which is favourable to the suspect, any differently. dd) The Prohibition of Double Jeopardy as a Ground for Non-Enforcement of a 85 European Arrest Warrant. The ne bis in idem principle of Union law does not only trigger a European wide bar to proceedings but – consequently – already prevents the surrender of a defendant based on a European arrest warrant.262 According to art. 3 no. 2 of the framework decision on the European arrest warrant, the judicial authority asked to surrender a defendant must refuse to do so if the information at hand indicate that the requested person has been finally judged by a Member State in respect of the same acts, provided that, where there has been sentence, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing Member State. Apart from the word “judged” (instead of “disposed of”), art. 3 no. 2 of the framework decision is thus akin to the wording of Art. 54 CISA. As expressly stated by the ECJ, the ground for non-enforcement of a European arrest warrant contained in the framework decision is to be interpreted in the same way as art. 54 CISA, due to their common objective.263 This does, however, not clarify which judicial authority is competent to decide on whether this ground for non-enforcement is given and, in particular, whether the requirement of “the same act” is fulfilled. As this is an autonomous term of Union law, its substance must be determined by the ECJ. The application of the set requirements to a concrete case must, however, be left to the national authority of the executing Member State which has to verify on a case-by-case basis whether the requirements for the enforcement of the warrant, as transposed into national law, are met. Rather inconsistently, the ECJ has, however, chosen another path in this regard in its Mantello case: In the respective proceedings, the (Italian) Court of Catania (Tribunale di Catania) issued a European arrest warrant which aimed at the surrender of an Italian national living in Germany on the grounds of his participation in a criminal organisation and illegal trade in narcotics. The Higher Regional Court of Stuttgart (Oberlandesgericht [OLG] Stuttgart, Germany) held reservations in view of art. 3 no. 2 of the framework decision on the European arrest warrant, as the defendant had already been convicted by an Italian court for an individual drug deal during his participation in said organisation. The ECJ, however, evaded the question referred to it by the OLG Stuttgart that tried to learn whether the narcotics offence and the simultaneous participation in the criminal organisation constituted “the same act”. Instead, the Court re-interpreted the question stating that it actually relates to the final nature of the first passed judgment, i. e., to whether this final judgment passed in respect 262 As stated expressly by Advocat General Bot in his opinion in Case C-261/09 “Mantello” (see the following fn), delivered on 7th September 2010, para. 78. 263 ECJ, Judgment of 16th November 2010, Case C-261/09 “Mantello” ECR 2010, I-11477, para. 40.

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of the drug offence was to be treated as if it were a final judgment also in respect of the offence of participation in a criminal organisation. The Court explained that whether a person has been “finally” judged is to be determined exclusively with reference to the law of the issuing state. Under Italian law, however, prosecution in respect of the offence of participation in a criminal organisation is not definitely barred in consequence of the final nature of the judgment regarding the drug offence. Therefore, the Court did not consider the ne bis in idem principle to stand as a ground for refusal to enforce the European arrest warrant.264 By doing so, the ECJ differentiates the standards – autonomous and with reference to Union law – for the question of “same acts” on the one hand and domestically with reference to the law of the issuing state for the question of the final nature of the decision on the other hand. This differentiation can, however, not be derived from the framework decision on the European arrest warrant.265 Furthermore, the Court did not address the question of the limits of the term “act” with regard to organisational offences and thus missed the opportunity to further develop the notion of the “same acts” known from art. 54 CISA with respect to organisational offences.266 By determining the final nature of the decision in question solely with reference to the domestic law of the issuing state, the Court implements the principle of mutual recognition in its purest form. As has been shown above, mutual recognition is a flexible concept (“waiver-concept”) which does not necessarily imply a 100 % recognition of the standards and decisions of another state if there is good reason for doing so. Here the Court neglects the central function of the ne bis in idem principle to protect the individual concerned, as it derives from art. 50 CFR.267

III. Exchange of Information and the Principle of Availability in Particular A central database for the exchange of information was established by art. 92 et seqq. of the Convention implementing the Schengen Agreement (Schengen Information System). This Convention was not concluded under the auspices of the European Union but subsequently integrated into its legal framework. The database contains entries for wanted persons or objects. The national border control and prosecution authorities named by the Member States have access to this database.268 This instrument was intended to act as a counterbalance to the opening of borders between the Schengen states and enable them to intensify their judicial cooperation.269 87 Then – parallel to the principle of mutual recognition – the Hague Programme introduced the principle of availability of information.270 This principle aimed at making data collected by one Member State available to all other Member States to the same extent to which the collecting Member State itself could access the data. As in the case of the Schengen Agreements, the Member States sought to realise this principle 86

264 On the fact that the result is nevertheless convincing because the issuing state and the state which passed the first judgment are identical, see F. Zimmermann, Strafgewaltkonflikte in der EU, pp. 264 et seq. 265 Advocat General Bot’s Opinion in Case C-261/09 “Mantello”, delivered on 7th September 2010, para. 83; for a critical view, see also Satzger, in: FS Roxin, 2011, pp. 1515, 1534 et seq. 266 SSW-StPO-Satzger, art. 50 GRC/art. 54 SDU ¨ , para. 31; F. Zimmermann, Strafgewaltkonflikte in der EU, pp. 263 et seq. 267 This was also emphasized by Advocat General Bot’s Opinion in Case C-261/09 “Mantello”, delivered on 7th September 2010, para. 76; in the same vein Bo¨se, HRRS 2012, 19, 21. 268 For a critical view with regard to deficits in legal protection, see von Arnauld, JA 2008, 327, 333. 269 For critical aspects, see Braum, KritV 2008, 82, 87 et seq. 270 OJ (EU) 2005 No. C 53/7 et seq.

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outside the legal framework of the European Union. A small group of Member States seeking further integration271 concluded the Pru¨m Convention on 27th May 2007.272 The Convention grants certain national authorities mutual access to DNA profiles and fingerprinting data.273 If there is a match, personal information for identification is not automatically transferred. The Pru¨m Convention does not govern the sharing of this information but rather leaves this subject to the domestic law of the state receiving the request. After nine additional EU Member States had voiced their intent to accede to the Pru¨m Convention the major provisions of this treaty were “unionised”, this time by means of a Council decision rather than a protocol to the EU treaties.274 The future of other initiatives for enhanced cooperation with regard to the exchange of information – especially a further-reaching Commission proposal for a framework decision275 – remains unclear. The principle of availability does not only play a role in exchanging information on 88 evidence. It is also reflected in the framework decision on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings.276 This framework decision aims at enabling courts to take into account previous convictions of the accused in other Member States in the same way as convictions in their own state; this is especially important with regard to the assessment of penalty in a new criminal proceeding. Furthermore, the transnational availability of information with relevance to criminal proceedings is gaining increasing significance particularly in the context of the fight against terrorism. Amongst the more recent initiatives in this area, e. g. the directive 2016/681/EU on the use of passenger name record (PNR) data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime277 as well as the Commission’s proposal to extend the exchange of information via the European Criminal Records Information System (ECRIS) to third country nationals278 are to be given special attention. Like the principle of mutual recognition, the principle of availability makes criminal 89 prosecution more effective at the expense of suspects’ rights. It is therefore essential that data protection be strengthened as well. The measures for legal protection and judicial review found in the Pru¨m Convention (cf art. 34 et seq.) and the recent directive on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data279, repealing a framework decision already previously regulating this area,280 are an important step in this direction.

271

Belgium, Germany, Spain, France, Luxembourg, the Netherlands and Austria. In detail Papayannis, ZEuS 2008, 229. 273 Access is also granted to vehicle registration data – including personal data of owners and operators. 274 Council Decision 2008/615/JHA on stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime, OJ (EU) 2008 No. L 210/1. Sceptical towards such a procedure Papayannis, ZEuS 2008, 229, 242 et seq. The Schengen acquis had been transferred to the legal framework of the European Union by a protocol to the EU treaties. 275 COM (2005) 490 final. 276 Council Framework Decision 2008/675/JHA, OJ (EU) 2008 No. L 220/32. 277 OJ (EU) 2016 No. L 119/132. 278 COM (2016) 7 final. 279 Directive (EU) 2016/680 of 27th April 2016, OJ (EU) 2016 No. L 119/89; regarding the processing of personal data for purposes other than those of the directive, the so-called General Data Protection Regulation is applicable (Reg. [EU] 2016/679 of 27th April 2016, OJ [EU] 2016 No. 119/1). 280 Council Framework Decision 2008/977/JHA on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters, OJ (EU) 2008 No. L 350/60. 272

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IV. Approximation of Criminal Procedural Law 90

Apart from expanding the principle of mutual recognition, the European Union may approximate national criminal procedural law (in a stricter sense, see paras 34 et seq.) by establishing minimum rules pursuant to art. 67 (3), 82 (1) subpara. 1 TFEU. The directives for such harmonisation can be based on art. 82 (2) TFEU. In contrast to cooperation through mutual recognition (without approximation), co-operation by approximation merely complements the principle of mutual recognition and makes it more effective. This supporting role is illustrated both by the wording of art. 82 (2) TFEU (“[t]o the extent necessary to facilitate mutual recognition […]”)281 and by a comparison to other provisions (cf “if necessary” in art. 67 (3) TFEU and “essential” in art. 83 (2) TFEU). Approximation of criminal procedural law must remain the last resort (ultima ratio) for improving judicial cooperation in criminal matters as national criminal legal systems must be treated minimally invasive – especially with regard to criminal procedure.

1. Fields of Application 91

Approximation of criminal procedural law is limited to a conclusive catalogue of areas, which, however, can be extended by unanimous Council decision (lit. d). In contrast to the competence to comprehensively define the scope of the principle of mutual recognition, approximation is only possible with regard to selected areas of criminal procedure. The TFEU provides for a criminal policy based on mutual recognition without approximation in those fields that are not mentioned in art. 82 (2) subpara. 2 TFEU.282

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a) Mutual Admissibility of Evidence between Member States (lit. a). Art. 82 (2) lit. a is the legal basis for a partial approximation of the law on evidence. This concerns the question of whether a piece of evidence taken in one Member State is admissible in a criminal proceeding in another Member State. Lit. a does not deal with the exchange of evidence between Member States – in contrast to art. 82 (1) subpara. 2 TFEU. Thus, an amendment to the directive regarding the European investigation order in criminal matters283 (see paras 50 et seqq.) could not be based on this provision. Unlike the regulation mentioned in art. 86 (3) TFEU, which will inter alia govern the admissibility of evidence taken by the European Public Prosecutor’s Office (see paras 21 et seqq.), art. 82 (2) subpara. 2 (a) TFEU only refers to national criminal proceedings conducted by national authorities; in contrast to art. 86 (3) TFEU, the approximation of the law of evidence under art. 82 (2) (a) TFEU is not confined to certain crimes. Example: The so-called “Fourth anti-money laundering directive”284, which aims at harmonising the area of freezing and confiscation of instrumentalities and proceeds of crime, is based on art. 83 (1) TFEU285 as well as art. 82 (2) TFEU. 281 Grabitz/Hilf/Nettesheim-Vogel/Eisele, art. 82 AEUV para. 81; Vedder/Heintschel von Heinegg¨ berg, Kretschmer, art. III-270 EVV para. 9; in detail on subsidiarity and EU procedural criminal law, see O EuCLR 5 (2015), 19. 282 Cf Kaiafa-Gbandi, EJCCLCJ 13 (2005), 495. 283 Directive 2014/41/EU, OJ (EU) 2014 No. L 140/1. 284 Directive 2014/42/EU on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union, OJ (EU) 2014 No. L 127/39. 285 On the harmonisation pursuant to art. 83 (1) TFEU, see § 7 paras 32 et seqq.

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There is a real danger that the balance between the rules on the collection and the use of evidence in domestic criminal procedural laws might become unhinged if the approximating directives imposed an obligation to admit any evidence gathered by other Member States before national courts. To address this threat, the European legislator must ensure that the national laws on the admissibility of evidence stay in accordance with the rule of law.286 b) The Rights of Individuals in Criminal Procedure (lit. b). The use of the principle 93 of mutual recognition to enhance the effectiveness of criminal prosecution goes hand in hand with diminishing suspects’ rights because the principle is based on the idea not to grant legal protection according to all legal orders involved but only according to that of the issuing state. The rights embodied in art. 6 (2), (3) ECHR and art. 47–50 of the CFR merely provide an absolute minimum standard. The remaining gap should have been closed some time ago by the framework decision on certain procedural rights in criminal proceedings throughout the European Union. What had started out as quite an ambitious project287 was completely dissected during the negotiations and reduced to a fraction of what was originally planned. The fact that the Member States could not agree even on this residual minimum solution highlights on the initially massive imbalance of European criminal policy at the expense of the suspects. A criminal procedure that respects the rule of law in a way worthy of the European Union must guarantee minimum standards that by far exceed those of the ECHR.288 Suspects’ rights may be improved on the grounds of art. 82 (2) subpara. 2 (b) 94 TFEU.289 But such approximation is limited to those provisions that directly grant a right to a suspect. If lit. b also applied to other provisions that protect the individual only indirectly, then the enumeration listed in art. 82 (2) subpara. 2 TFEU and especially the extension clause (lit. d) would be devoid of meaning because a lot of the rules of criminal procedure have at least some indirect effect in favour of a suspect.290 Although the framework decision mentioned above failed miserably, the efforts for 95 creating a European minimum standard of procedural rights were not abandoned completely: in December 2009, the European Council adopted the so-called Stockholm Programme291, including a Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings for the years 2009 to 2014.292 This roadmap envisioned several steps of measures for protecting the suspects, including in particular translation and interpretation services, information on rights and information about the

286

See also Grabitz/Hilf/Nettesheim-Vogel/Eisele, art. 82 AEUV paras 85 et seqq. Commission Green Paper on Procedural Safeguards for Suspects and Defendants in Criminal Proceedings throughout the European Union, COM (2003) 75 final. Cf also the following proposal for a framework decision, COM (2004) 328 final, and the remarks by Brants, in: Vervaele, European Evidence Warrant, pp. 103 et seqq. 288 See Kaiafa-Gbandi, ZIS 1 (2006), 521, 532; Kirsch, StraFo 2008, 449, 455 et seqq.; Satzger, in: Organisationsbu¨ro der Strafverteidigervereinigungen, 31. Strafverteidigertag, pp. 161 et seqq.; Vogel/Matt, StV 2007, 206; for synchronising EU procedural rights with those in the ECHR, cf Fletcher/Lo¨o¨f/Gilmore, EU Criminal Law, p. 129. 289 On this, see also Grabitz/Hilf/Nettesheim-Vogel/Eisele, art. 82 AEUV paras 73, 88. 290 BVerfG, Judgment of 30th June 2009, 2 BvE 2/08, 2 BvE 5/08, 2 BvR 1010/08, 2 BvR 1022/08, 2 BvR 1259/08, 2 BvR 182/09 = NJW 2009, 2267, 2288, para. 358 calls for a strict interpretation since the particularly sensitive democratic decision is concerned. 291 Stockholm Programme, Council Document No. 17024/09 of 2nd December 2009, pp. 17 et seq., adopted by the European Council in December 2009, see Council Document EUCO 6/09, pp. 9 et seqq.; the Programme is continued by the Post-Stockholm-Programme, which aims to consolidate the attained results. 292 Resolution of the Council of 30th November 2009, OJ (EU) 2009 No. C 295/1. 287

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charges, granting legal advice and aid, allowing communication with relatives, employers and consular authorities and special safeguards for persons who are especially vulnerable. In a first step, the Council and the European Parliament adopted the directive on the right to interpretation and translation in criminal proceedings293. Without regard to the outcome of the case, this directive aims at granting the accused the right to free translator’s services and translations of the documents that are necessary for an effective defence in criminal and extradition proceedings based on the European arrest warrant. In May 2012, the EU passed the directive on the right to information in criminal proceedings,294 that contains inter alia the harmonisation of the right to information about rights and about the accusation and of the right to free access to the materials of the case. Even though initially it looked as if some Member States were not ready to harmonise the rights of the accused regarding access to legal assistance and legal aid in a manner consistent with the rule of law, a directive on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty295 was passed in October 2013. Finally, in November 2013, the Commission presented a package of measures for the final implementation of the Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings (cf above). This package contained a proposal for a directive on provisional legal aid for suspects or accused persons296, a directive on procedural safeguards for children suspected or accused in criminal proceedings297 as well as for a directive on the strengthening of certain aspects of the presumption of innocence and of the right to be present at trial in criminal proceedings298. All those proposals have been realised in the meantime by the passing of corresponding directives.299 The directive on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings is even more giving with regard to the rights of the accused as initially intended in the Commission’s proposal.300 96 Independently of its efforts to establish an explicit catalogue of minimum guarantees in criminal proceedings, the Union has indirectly created a common standard.301 On the basis of the Treaty of Nice, the Council adopted a framework decision on the enforcement of decisions rendered in absentia302 which aimed at harmonising the rules on mutual recognition of such decisions contained in several framework decisions (inter alia on the European arrest warrant). Under the framework decision, decisions rendered in absentia have to be recognised by other Member States only under certain more restrictive requirements because in such proceedings certain essential rights of the accused person need to be secured.303 For example, mutual recognition is not required if the state rendering the decision failed to comply with certain duties of information. 293

Directive 2010/64/EU, OJ (EU) 2010 No. L 280/1. Directive 2012/13/EU, OJ (EU) 2012 No. L 142/1. 295 Directive 2013/48/EU, OJ (EU) 2013 No. L 294/1; see Symeonidou-Kastanidou, EuCLR 5 (2015), 68. 296 COM (2013) 824 final. 297 COM (2013) 822 final. 298 COM (2013) 821 final. 299 Directive 2016/800/EU, OJ (EU) 2016 No. L 132/1; Directive 2016/343/EU, OJ (EU) 2016 No. L 65/ 1 and Directive 2016/1919/EU, OJ (EU) 2016 No. L 297/1. 300 The provisions contained in the Commission’s original proposal on the possibility of shifting the burden of proof to the suspect or accused (art. 5 (2)) and of the use of evidence obtained by compulsion in exceptional cases (recital 17) are e. g. not part of the final directive (cf art. 6 and recital 27). 301 Vogel/Matt, StV 2007, 206, 210. 302 Council Framework Decision 2009/299/JHA, OJ (EU) 2009 No. L 81/24. 303 Cf the annex to Council Document No. 5213/08 of 14th January 2008, pp. 2 et seqq. 294

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However, it must be noted that the purpose of this initiative was to facilitate the mutual recognition of decisions rendered in absentia whereas an improvement of suspects’ rights would require these kinds of decisions to be rejected as far as possible.304 Although lit. b primarily concerns the rights of suspects, approximating the rights of 97 other individuals305 – especially witnesses306 – is also possible. It may, however, entail problematic consequences as the Member States are not precluded from maintaining or introducing higher levels of protection pursuant to art. 82 (2) subpara. 3 TFEU. If a Member State chooses to raise the level of protection for witnesses above the requirements set by the directive, this may entail a reduction of the level of protection for the suspect. c) The Rights of Victims of a Crime (lit. c). Approximation of procedural laws may 98 also affect the standing of victims in criminal proceedings. A respective framework decision had already been adopted before the Treaty of Lisbon entered into force. The framework decision improved legal protection and representation of victims and introduced measures for their support before and after a criminal proceeding.307 The ECJ has already dealt with the interpretation of this framework decision in several preliminary references (cf art. 267 TFEU). For example, the Court decided that a national court must ensure that young children who claim to have been victims of maltreatment are able to testify under circumstances which guarantee them an appropriate level of protection (e. g. giving the testimony outside the trial).308 In the case of a substitute private prosecution, a victim must be permitted to give testimony before a court in a way enabling the court to treat it as admissible evidence.309 Furthermore, the Court clarified that this framework decision only applies to natural persons (art. 1 (a) of the framework decision).310 In October 2012, the framework decision was replaced by the directive establishing minimum standards on the rights, support and protection of victims of crime.311 Meanwhile, the Commission has also made use of the competence title in art. 82 (2) subpara. 2 (c) TFEU in other legislative acts. Thus, the directive on combating sexual abuse and sexual exploitation of children and child pornography,312 for instance, contains not only provisions on the harmonisation of the substantive law; instead, there are also rules on the provision of support and care to the victims of such crimes as well as measures of harmonisation aiming at satisfying the needs of victims in criminal proceedings. To a certain extent, they take up provisions of the framework decision mentioned above (for example by excluding the public from the hearing and conducting the interrogation in a separate room, cf art. 20). In some parts, the directive provisions even exceed the framework decision: for instance, criminal prosecution must not be made conditional on a request for a penalty by the victim or its representative (art. 15) 304

For an extremely critical view, see Kirsch, StraFo 2008, 449, 457. See also Grabitz/Hilf/Nettesheim-Vogel/Eisele, art. 82 AEUV para. 90. 306 This also seems to be the interpretation by the BVerfG, Judgment of 30th June 2009, 2 BvE 2/08, 2 BvE 5/08, 2 BvR 1010/08, 2 BvR 1022/08, 2 BvR 1259/08, 2 BvR 182/09 = NJW 2009, 2267, 2287, para. 353. 307 Council Framework Decision 2001/220/JHA on the standing of victims in criminal proceedings, OJ (EC) 2001 No. L 82/1. 308 ECJ, Judgment of 16th June 2005, Case C-105/03 “Pupino” ECR 2005, I-5285 = para. 61. This decision raised awareness in another context: The ECJ therein established the obligation to interpret domestic law provisions in the light of framework decisions; see § 7 para 111. 309 ECJ, Judgment of 9th October 2008, Case C-404/07 “Katz” ECR 2008, I-7697, para. 60. 310 ECJ, Judgment of 28th June 2007, Case C-467/05 “Dell’Orto” ECR 2007, I-5557 paras 51 et seq. 311 Directive 2012/29/EU, OJ (EU) 2012 No. L 315/57. 312 Directive 2011/93/EU, OJ (EU) 2011 No. L 335/1; numbering corrected by OJ (EU) 2012 No. L 18/7. 305

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C. European Criminal Law

and the directive provides for impunity for child victims which in specific cases even extends to participatory acts (art. 14). Furthermore, preventive measures are also stipulated in the directive. These include the initialisation of effective intervention programs for potential criminals (art. 22) or the removal and the blocking of access to websites containing child pornography (art. 25). Similar provisions for victim protection are contained in the directive on preventing and combating trafficking in human beings and protecting victims313. 99

d) Other Specific Aspects of Criminal Procedure (lit. d). Pursuant to the comprehensive clause in art. 82 (2) subpara. 2 (d) TFEU, the Council may extend the competence for approximation to any other field of criminal procedural law.314 The wording, however, indicates that an all-embracing approximation is still not permissible since lit. d only applies to “specific aspects”.315 The range of such an extension is defined by a unanimous Council decision following the consent of the European Parliament. According to the “bridge-clause” of art. 48 (7) TEU, decisions pursuant to art. 82 (2) subpara. 2 (d) can be passed by a qualified majority, provided the European Council has decided so unanimously.316

2. “Emergency Brake” (art. 82 (3) TFEU) 100

According to art. 82 (2) subpara. 1 cl. 2 TFEU, the approximation is to take into account the differences between the legal traditions and systems of Member States. The fundamental aspects of a criminal justice system are protected – as with art. 83 (3) TFEU – by a (procedural) emergency brake to the extent to which the respective Member State considers they would be affected by a draft directive. This provision is identical with the one embodied in art. 83 (3) TFEU and the explanations apply accordingly (see § 7 paras 47 et seqq.). The term “fundamental aspects” will need to be clarified also with regard to procedural law. Again: the more the European Union chooses to follow a coherent criminal policy, the less Member States will be prompted to “pull the emergency brake” (see § 7 para. 47 et seqq.).

V. Excursus: Manifesto on European Criminal Procedure Law 101

In light of the many open questions surrounding the EU law that will become relevant for criminal procedure in the future and in light of the voiced criticism concerning the respective development up to now, the members of the “European Criminal Policy Initiative” presented the “Manifesto on European Criminal Procedure Law”317 in 2013 which directly ensued the “Manifesto on the European Criminal Policy” presented in 2009 (§ 7 paras 54 et seq.). In the same vein as the first Manifesto, the second one calls for a realignment of European criminal politics in the area of procedural criminal law. The main claims in this regard relate to the following aspects:318 313

Directive 2011/36/EU, OJ (EU) 2011 No. L 101/1. See F. Zimmermann, Jura 2009, 844, 850. 315 Grabitz/Hilf/Nettesheim-Vogel/Eisele, art. 82 AEUV para. 97. 316 In order to make the transition to the qualified majority, the German BVerfG has called for the participation of the German parliament: BVerfG, Judgment of 30th June 2009, 2 BvE 2/08, 2 BvE 5/08, 2 BvR 1010/08, 2 BvR 1022/08, 2 BvR 1259/08, 2 BvR 182/09 = NJW 2009, 2267, 2289 para. 366, 2295 para. 419; see § 4 (1) of the German Act on the Exercise of Responsibility for Integration of the Bundestag and Bundesrat Concerning Matters of the European Union (IntVG). 317 ECPI, ZIS 8 (2013), 412. 318 The claims can only be outlined here. For more details, see ECPI, ZIS 8 (2013), 412; as well as the comments by Asp et al., Manifesto II, pp. 19 et seqq.; similar notions presented by Gleß, Transnational Legal Theory 2015, 1, 11 et seqq. 314

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Limitation of mutual recognition: The principle of mutual recognition (see paras 26 et seqq.) does not demand absolute validity.319 Rather it must be limited through the rights of the individual as well as the national identity and the ordre public of the Member States in adherence to the principle of proportionality. Balance of the European criminal proceeding: The position of the persons involved in criminal proceedings are weakened by the increasing Europeanisation of such proceedings, in particular by the creation of supranational institutions. Thus, the public interest in criminal prosecution and the Member States’ interest in preserving their national identity as well as the affected individual interests must be balanced in order to counteract a shift of power solely in favour of the prosecuting authorities. Legality and judicial principles in European criminal proceedings: As cooperation in criminal matters is increasingly characterised and intensified by Union law, the latter must also guarantee the legality of cross-border criminal proceedings. Fundamental decisions and therefore at least those concerning the applicable law and criminal procedural measures which interfere with individual rights must be based on clear legal provisions in order to comply with the requirement of legality. In addition, there must be a possibility to have such decisions judicially reviewed. Preservation of Coherence: Just as for substantive law (see § 7 para. 55) the requirements set out by the Union legislator for cross-border criminal proceedings may not contradict already existing provisions of Union law on the one hand (horizontal coherence). On the other hand, the EU’s harmonisation-measures in the field of criminal procedure law may not interfere with the national criminal justice systems (vertical coherence). Observance of the principle of subsidiarity (see also § 7 para. 55): In every single case, i. e. in relation to legal acts in the field of cooperation in criminal matters between Member States as well as in relation to the harmonisation of national criminal procedure law and to the creation of supranational European institutions (such as a European Public Prosecutor’s Office), the test of subsidiarity has to be applied. Accordingly, the Union legislator may take action only under the condition that the goal pursued cannot be reached as effectively by measures taken at the national level and due to its nature or scope can be better achieved at Union level. Compensation of deficits in the European criminal proceeding: In order to satisfy the above mentioned demands, the Union legislator must himself provide for mechanisms in each respective legal act to safeguard the affected rights or must create supplementary measures for compensation. The defendant in a transnational criminal proceeding is for example always confronted with at least one other legal order foreign to him. It is upon the European criminal policy to react to this by the creation of minimum standards for the rights of the suspect applying all across Europe. 319

Cf also the “waiver-concept” para. 28.

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§9 The European Convention on Human Rights* Contents I. Council of Europe. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. The International Organisation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. The Council of Europe’s Role in Criminal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . II. European Convention on Human Rights (ECHR) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. The ECHR in Different Legal Systems . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) The Principle of “Minimum Standard”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Significance for Domestic Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c) Significance of the Convention for EU Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . aa) The EU’s Accession to the ECHR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . bb) The Charter of Fundamental Rights and art. 6 (3) TEU . . . . . . . . . cc) The Relationship between ECtHR and ECJ. . . . . . . . . . . . . . . . . . . . . . . . 2. The Interpretation of the ECHR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Guarantees Relating to Criminal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . aa) Subsidiary Protection through the ECtHR. . . . . . . . . . . . . . . . . . . . . . . . . bb) Scope of Application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Testing ECHR Rights Related to Criminal Law . . . . . . . . . . . . . . . . . . . . . . . . c) Right to Life – art. 2 ECHR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . d) Prohibition of Torture (and Degrading Punishment) – art. 3 ECHR aa) Scope of Protection and Unexceptional Prohibition of Torture . bb) Threat of Torture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . cc) Medical Interventions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . dd) Deportation and Extradition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ee) Procedural Effects of a Violation of art. 3 ECHR . . . . . . . . . . . . . . . . . ff) Requirements for Assessing a Violation of art. 3 ECHR in Criminal Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . e) Right to Liberty – art. 5 ECHR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . f) Right to a Fair Trial – art. 6 (1) and (3) ECHR. . . . . . . . . . . . . . . . . . . . . . . . aa) Scope of Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . bb) The Court and the Court Proceeding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . aa) Fair Trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . bb) Problem: A Fair Trial and the Use of Agents Provocateurs . . . . . . cc) Fairness and “Plea Bargaining” in Criminal Proceedings . . . . . . . . g) Presumption of Innocence – art. 6 (2) ECHR. . . . . . . . . . . . . . . . . . . . . . . . . . h) No Punishment without Law – art. 7 ECHR . . . . . . . . . . . . . . . . . . . . . . . . . . . aa) Scope of Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . bb) The Necessity for Clarity and Definiteness . . . . . . . . . . . . . . . . . . . . . . . . cc) Prohibition of Analogies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . dd) Prohibition of ex post facto Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i) Right to Respect for Private and Family Life – art. 8 ECHR. . . . . . . . . . j) Right to Appeal in Criminal Matters – art. 2 (1) Additional Protocol No. 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . k) Ne bis in idem. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . l) Limitations on Use of Restrictions of Rights/Prevention of the Misuse of Power – art. 18 ECHR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Procedural Law and Organs of the ECHR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) The ECtHR and its Role as an Organ. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Individual Applications and Inter-State Cases . . . . . . . . . . . . . . . . . . . . . . . . . c) Judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . d) Effect. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2 3 6 7 9 10 11 15 15 16 18 20 21 21 21 24 26 29 35 35 40 43 47 50 51 52 67 69 71 78 90 91 92 93 95 96 97 98 103 107 108 112 115 115 117 120 121

* The case-law, legislative acts and other documents quoted in this textbook can be accessed over the internet on the website http://www.satzger-international.info/.

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§ 9. The European Convention on Human Rights

A number of treaties concluded under the auspices of the Council of Europe form a 1 significant part of procedural and substantive European criminal law (in a broader sense, see § 2 para. 3).1 In particular, the European Convention on Human Rights (ECHR) and the case-law of the European Court of Human Rights (ECtHR) have had a profound impact on the domestic criminal law of the Contracting Parties. As shown above (§ 6 para. 5, § 8 para. 93), the European Convention on Human Rights has also played a major role in forming a European ordre public in EU law. The interpretation of the Charter of Fundamental Rights of the European Union, which has become legally binding with the entry into force of the Lisbon Treaty, is based on the interpretation of the Convention.

I. Council of Europe The Council of Europe2 began dealing with international aspects of criminal law far 2 earlier than the European Communities or the European Union. Founded as an international organisation on 5th May 1949, the Council of Europe has become the largest association of states in Europe.3 Commitment to the rule of law has always been the common denominator of all Contracting Parties (cf art. 3 (1) CoESt).

1. The International Organisation The Council of Europe is an international organisation. This is reflected in the 3 composition of its organs, which mostly consist of representatives of the Contracting Parties. Although the rights of individuals are often discussed, the individuals themselves are usually associated with ‘their’ state and not regarded as autonomous subjects of international law. This approach is in line with the traditional view that international law exclusively governs the legal relations between states.4 The Committee of Ministers is the Council’s decision-making body.5 It consists of the 4 Ministers of Foreign Affairs from all Contracting Parties or their Permanent Representatives. The Committee of Ministers convene for the purpose of examining such measures as conventions, discussing relevant organisational matters and monitoring the enforcement of the judgments of the European Court of Human Rights (art. 13 to 21 CoESt). Due to its roots in international law, the Committee has to pass so-called “recommendations” to the Member States unanimously; thus they must be considered to carry at least political (but not necessarily legal) binding force (art. 15 (b) CoESt). The Parliamentary Assembly (art. 22 to 35 CoESt) comprises 318 members, who are elected or named by the national parliaments. The largest states (Russia, France, Italy, United Kingdom, Germany) may send 18 members, whereas the smallest may send only two. The Parliamentary Assembly holds purely advisory capacity. 1 See http://www.coe.int/en/web/conventions/full-list (last visited July 2017) for an overview of all Council of Europe conventions. 2 The Council of Europe is not to be confused with the European Council, which is the supreme decision-making body of the EU (cf art. 4 TEU). 3 As in August 2009 it comprises 47 Contracting Parties (including all 28 Member States of the European Union and Turkey), see http://www.coe.int/en/web/portal/47-members-states (last visited July 2017); regarding the accession and relationship of the EU to the Council of Europe, see in detail Mader, AVR 2011, 435, 448 et seqq. 4 Cf Currie, Public International Law, p. 21; Epping, in: Ipsen (ed.), Vo ¨ lkerrecht, § 7 paras 1 et seq. 5 The Committee may impose sanctions on the Contracting Parties. It may suspend a Contracting Party from exercising its rights of representation or request its withdrawal; for further information, cf Jacobs/White/Ovey, ECHR, pp. 482 et seq.

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C. European Criminal Law 5

The Secretariat is not an organ of the Council of Europe. It supports the Committee of Ministers and the Parliamentary Assembly in their work and is headed by the Secretary-General, who is elected by the Parliamentary Assembly. The Congress of the Council of Europe should be duly mentioned as another consulting organ focusing on the interests of local and regional authorities in Europe. Bodies created by conventions of the Council of Europe are not organs of the Council itself but of the respective conventions, for instance, the European Court of Human Rights is an organ of the European Convention on Human Rights and the AntiTorture Committee is an organ of the Anti-Torture Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. The Council of Europe focuses its activities primarily on the suggestion and elaboration of conventions and recommendations. These are part of international law and therefore have to be ratified by the Contracting Parties, in order to become legally binding within their jurisdictions.

2. The Council of Europe’s Role in Criminal Law 6

The improvement of transnational cooperation in the field of criminal prosecution has always been one of the top priorities of the Council of Europe. The European Committee on Crime Problems (CDPC), founded in 1957 by the Committee of Ministers, has since been responsible for all works that relate to criminal law and has attended to over 100 resolutions and recommendations.6 Moreover, many conventions were concluded under the auspices of the CDPC such as the European Convention on Extradition (1957) or the European Convention on Mutual Assistance in Criminal Matters (1959). The most important convention in the context of criminal law is, however, the European Convention on Human Rights.

II. The European Convention on Human Rights (ECHR) 7

Originally, international law was conceived of as a field of law that governed the relations between sovereign states. The treatment of nationals was excluded from its scope and remained a “domaine reserve´” of the respective state.7 The Universal Declaration of Human Rights by the United Nations General Assembly on 10th December 1948 marked a turning point and initiated a fundamental change, despite it being a non-binding declaration of intent only.8 However, several states in Europe worked towards creating a legally binding implementation of the Declaration in Europe and signed the European Convention on Human Rights in Rome on 4th November 1950.9 The ECHR came into effect on 3rd September 1953 after ratification by all of the ten founding Contracting Parties. It is a multilateral treaty distinct from the CoESt. However, these two treaties are closely connected: in the past, the ECHR could only be ratified by Contracting Parties to the Council of Europe and a prospective Contracting

6

See http://www.coe.int/t/dghl/standardsetting/cdpc/default_en.asp (last visited July 2017). L/R-Esser, Einfu¨hrung EMRK, paras 4 et seq. 8 L/R-Esser, Einfu ¨ hrung EMRK, para. 12; HK EMRK-Nettesheim, Einleitung paras 6 et seqq. 9 There is still debate over the question as to whether human rights matters do not fall exclusively within national jurisdiction as they are allegedly matters of international concern due to their peacekeeping function. For further references, cf L/R-Esser, Einfu¨hrung EMRK, paras 7 et seqq.; Mowbray, ECHR, pp. 1 et seqq. 7

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§ 9. The European Convention on Human Rights

Party cannot accede to the Council of Europe without signing the ECHR. Consequently, all 47 members of the Council of Europe are also parties to the ECHR.10 Since the Russian parliament Duma ratified Additional Protocol No. 14, the ECHR is 8 now open to accession by the European Union.11 There are however some major hurdles to take on the way to accession. Most notably, there is a need to elaborate on an accession treaty between the EU and the Contracting Parties. Somewhat surprisingly, the ECJ’s report of 18th December 201412 set particularly high obstacles regarding the conformity with EU law of a draft “agreement on the accession of the EU to the ECHR” which had been prepared by an informal working-group. This will hinder an accession in the foreseeable future (see paras 15 et seqq.).

1. The ECHR in Different Legal Systems The role of the ECHR differs among the different legal systems of the Contracting 9 Parties and depends on the rank in the hierarchy of norms that is attributed to it by domestic law. a) The Principle of “Minimum Standard”. As expressed in art. 53 ECHR, the ECHR 10 establishes only a common minimum standard for all Contracting Parties. It does not conflict with those rights either granted by domestic law or other international instruments that exceed the guarantees of the Convention – irrespective of the rank the ECHR enjoys in domestic jurisdictions.13 b) Significance for Domestic Law. As a result of the Convention’s directly binding 11 effect, the Contracting Parties are obliged to grant the Convention rights to all persons within their jurisdictions. Contracting Parties are not required to additionally incorporate the guarantees as such into their domestic legal system.14 All aspects of implementation and the rank in the domestic hierarchy of norms remain open in the ECHR and are to be decided upon by the Contracting Parties.15 This leads to differing ranks among the Contracting Parties.16 The Netherlands, Luxembourg, Belgium and Switzerland conceive international and 12 domestic law as two parts of a single legal system (monism). If legal provisions conflict, international law always takes precedence over domestic law. As a result, the ECHR even prevails over domestic constitutional law. In Austria, which in principle also follows the doctrine of monism, the ECHR enjoys the same rank as the constitution. In some states, e. g. Spain and France, the Convention ranks below constitutional but above ordinary statutory law.17 In Germany, some scholars would like to attribute the same rank to the ECHR as in 13 France or Spain.18 They argue that the rights guaranteed by the ECHR have become part of customary international law and therefore must be considered “general rules of 10 Ambos, Int. Strafrecht, § 10 para. 6. The Additional Protocols are – with the exception of Prot. No. 11 and 14 – optional. 11 For further information, see paras 15 et seqq. 12 ECJ, Opinion 2/13 of 18th December 2014; on this amongst others Wendel, NJW 2015, 921. 13 HK EMRK-Renger, art. 53 EMRK para. 1; SSW-StPO-Satzger, art. 1 EMRK para. 19; Zwaak, in: van Dijk et al. (eds), Theory and Practice of the European Convention on Human Rights, p. 10. 14 HK EMRK-Nettesheim, Einleitung paras 15 et seqq. 15 BVerfG, Decision of 14th October 2004, 2 BvR 1481/04 = NJW 2004, 3407, 3416 et seq.; MeyerLadewig/Petzold, NJW 2005, 16. 16 See also Jacobs/White/Ovey, ECHR, pp. 19 et seq.; Sweet/Keller, in: Keller/Sweet (eds), A Europe of Rights, pp. 20 et seq. 17 Cf Ambos, Int. Strafrecht, § 10 para. 2; Grabenwarter/Pabel, EMRK, § 3 paras 3 et seq. 18 Cf L/R-Esser, Einfu ¨ hrung EMRK, paras 85 et seqq. for further information.

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international law” which take precedence over ordinary statutory law according to art. 25 GG. The BVerfG rejects this view and maintains that the ECHR shares the same rank with ordinary statutory law. According to art. 59 (2) GG, the ECHR – as any other treaty of international law – had to be transformed into domestic law in order to become legally binding within the German jurisdiction. The ECHR thus assumes the same rank within the hierarchy of norms as the transforming act.19 14 As a consequence, the lex posterior principle applies and conflicting statutes that were passed before the adoption of the ECHR are derogated accordingly. However, if this principle was to be applied consistently, German lawmakers could dispose of certain rights guaranteed by the ECHR simply by passing conflicting leges posteriores.20 However, the BVerfG has ruled that all German laws have to be interpreted as far as possible in conformity with the ECHR – including, notwithstanding its formal precedence, the constitution itself with its fundamental rights.21 This means that the ECHR remains of the same formal rank as ordinary statutory law but any court decision based on an interpretation conflicting with the ECHR may ultimately be reversed by the BVerfG due to a violation of the principle of the rule of law.22 15

c) Significance of the Convention for EU Law. aa) The EU’s Accession to the ECHR. In the past, the European Union could not become a party to the ECHR mainly for two (legal) reasons: First, the EU did not have the competence to accede to the ECHR under EU law.23 Second, membership to the convention was reserved to members of the Council of Europe pursuant to art. 59 (1) ECHR and this membership, in turn, was open to states only (art. 4 CoESt). Recent developments in December 2009 and January 2010 have changed the legal parameters. The Lisbon Treaty amended the EU Treaty, assigning the required competence for accession in art. 6 (2) TEU and Additional Protocol No. 14 to the ECHR. It amended (inter alia) art. 59 ECHR by providing that “[t]he European Union may accede to this Convention”. This development is highly relevant, as it is currently not possible for a private individual or company to sue the EU itself before the ECtHR. This is even true for legal areas (e. g. antitrust law and trademark law) that in the first instance fall within the competence of the General Court of the EU and in the final instance within the competence of the ECJ. A conviction by these Courts cannot be monitored in Strasbourg so far.24 However, even after Additional Protocol No. 14 has entered into force, further obstacles have to be overcome. First, the Member States to the ECHR and the EU have to negotiate an accession treaty. A first draft of an “agreement on the accession of the EU to the ECHR” that had been elaborated by an informal working-group of the Committee of Ministers (called CDDH-UE) was presented in April 2013. The ECJ, however, addressing the issue in a report at the request of the European Commission pursuant to art. 218 (11) TFEU, raised – rather surprisingly – general concerns,25 which don’t put an end to the accession project as such, but are likely to delay the process for a considerable amount of time.26 The ECJ’s main substantive concerns are the autonomy 19 BVerfG, Decision of 14th October 2004, 2 BvR 1481/04 = NJW 2004, 3407, 3416; cf Schweitzer, Staatsrecht III, para. 447; Ambos, Int. Strafrecht, 2nd edn, § 10 para. 9. 20 Cf Ambos, Int. Strafrecht, 2nd edn, § 10 para. 9. 21 BVerfG, Decision of 14th October 2004, 2 BvR 1481/04 = NJW 2004, 3407, 3417. 22 BVerfG, Decision of 14th October 2004, 2 BvR 1481/04 = NJW 2004, 3407, 3416; Roller, DRiZ 2004, 337. 23 ECJ, Opinion 2/94 of 28th March 1996, ECR 1996, I-1759. 24 Callewaert, StV 2014, 506. 25 ECJ, Opinion 2/13 of 18th December 2014. 26 Critical e. g. Breuer, EuR 2015, 330 et seqq.; Wendel, NJW 2015, 921 et seqq.

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of EU law and the exclusive competence of the ECJ. The court sees a grave potential danger to the system of judicial cooperation in criminal matters which is based on mutual recognition and trust. In light of the sensitivity regarding fundamental rights precisely in the area of criminal law, this is highly lamentable (see paras 7 et seq. and in general also § 7 paras 9 et seqq.): “In so far as the ECHR would, in requiring the EU and the Member States to be considered Contracting Parties not only in their relations with Contracting Parties which are not Member States of the EU but also in their relations with each other, including where such relations are governed by EU law, require a Member State to check that another Member State has observed fundamental rights, even though EU law imposes an obligation of mutual trust between those Member States, accession is liable to upset the underlying balance of the EU and undermine the autonomy of EU law.”27 Several amendments to the ECHR will also be necessary, for instance, concerning the relationship between the ECtHR and the ECJ28, the appointment of an EU judge to the ECtHR and the admissibility of inter-state applications by Member States against the EU.29 Moreover, the Lisbon Treaty establishes a complicated procedure in art. 218 TFEU for accession treaties. Pursuant to art. 218 (6) TFEU, it is the Council30 that adopts a decision concluding the agreement but has to obtain the consent of the European Parliament before (art. 218 (6) subpara. 2 (a) (ii) TFEU). The Council must then act unanimously (art. 218 (8) subpara. 2 TFEU). Finally, the decision concluding the agreement will only enter into force if it is approved by all Member States in accordance with their respective constitutional requirements. The ECHR, as an international treaty, would be incorporated into EU law and rank below the TEU and the TFEU (and also the Charter of Fundamental Rights) but above ordinary secondary legislation within the EU legal framework.31 The particular rank in the legal order is reflected in the provisions dealing with international agreements in the TFEU: On the one hand, agreements concluded by the EU are legally binding on its organs and its Member States pursuant to art. 216 (2) TFEU. On the other hand, art. 218 (11) TFEU allows a Member State, the European Parliament, the Council or the Commission to obtain the opinion of the ECJ as to whether an agreement envisaged is compatible with the Treaties.32 In light of these developments, it is hard to foresee when the EU will finally accede to the ECHR. bb) The Charter of Fundamental Rights and art. 6 (3) TEU. Regardless of the 16 accession of the EU to the ECHR, the Convention already influences EU law today. Since the Lisbon Treaty has entered into force, the ECHR and the case-law of the ECJ, Opinion 2/13 of 18th December 2014, para. 194. Regarding the practical consequences, cf also the ECJ’s discussion document of 5th May 2010, available under http://curia.europa.eu/jcms/upload/docs/application/pdf/2010-05/convention_en.pdf (last visited July 2017). 29 Drzemczewski, in: Kosta/Skoutaris/Tzevelekos (eds), The EU Accession to the ECHR, pp. 65 et seqq.; Mader, AVR 2011, 435, 440 et seqq.; Pache/Ro¨sch, EuR 2009, 781. 30 Note the differences in terminology: the Council is an organ of the European Union according to art. 13 (1) TEU and consists of a representative of each Member State at ministerial level pursuant to art. 16 (2) TEU; it must not be confused with the European Council, which consists of the Heads of State or Government of the Member States, together with the President of the European Council and the President of the Commission (art. 15 (2) TEU). For more information on the international organisation Council of Europe, see paras 2 et seq. 31 Calliess/Ruffert-Schmalenbach, art. 216 AEUV para. 50 with further references; Hecker in: Ruggeri (ed.), Human Rights in European Criminal Law, p. 4.; cf the differing view of Nettesheim, EuR 2006, 762, according to whom norms of international law, including the ECHR, enjoy the rank of secondary legislation. He, however, assumes that ECHR derogates colliding provisions of Union law. 32 Cf Huber, Der Beitritt der EU zur EMRK, p. 117. 27 28

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ECtHR have become indirectly binding for the EU through the Charter of Fundamental Rights because of the reference in the Charter’s preamble and the coherence clause in art. 52 (3) Convention of Fundamental Rights of the European Union (CFR). This provision states that the meaning and scope of those rights in the Charter which correspond to rights in the ECHR shall be the same as those laid down by the Convention. The Charter of Fundamental Rights in turn has become legally binding with the entry into force of the Lisbon Treaty. According to art. 6 (1) TEU, the Charter is legally equivalent to the Treaties and is therefore binding for the EU. Due to art. 51 (1) of the Charter, its provisions are addressed to the institutions, bodies, offices and agencies of the Union as well as to the Member States when implementing EU law. The ECJ has an extensive understanding of the binding effect on the Member States. The fundamental rights guaranteed by the Charter must be abided by every time a national legal provision falls within the scope of EU law. Whether the relevant national provisions have been passed in order to transpose Union law is not of relevance according to the ECJ. The court deems it decisive whether or not these provisions serve EU-interests.33 17 Additionally, art. 6 (3) TEU incorporates the rights guaranteed by the ECHR into EU law as they are “constitutional traditions common to the Member States”. This provision in effect codifies the ECJ’s practice to “extract” common European fundamental rights by way of a comparison of the Member States’ legal systems. The Court considered especially the ECHR a common denominator for fundamental rights because it is (and has been) legally binding on all EU Member States.34 cc) The Relationship between ECtHR and ECJ. EU organs are therefore indirectly bound by the ECHR. Within EU law, however, the scope of its relevance is determined by the ECJ. The ECtHR does not have any (direct) jurisdiction over EU law as long as the EU does not accede to the Convention. This raises the question of how to deal with diverging interpretations of the ECHR by the ECJ and the ECtHR, although both courts have so far tried to interpret the Convention consistently.35 19 The accession treaty will finally resolve the difficult question as to which court is competent to decide on fundamental rights issues in cases in which national authorities and courts of the Member States apply EU law. Domestic authorities are like EU organs bound by the CFR when implementing EU law. Since these fundamental rights have partly been extracted from the ECHR – and the CFR has to be interpreted in the light of the Convention (cf art. 52 (3) CFR) –, domestic authorities are therefore bound by the ECHR through the fundamental rights of Union law as interpreted by the ECJ. At the same time, they have to comply with the Convention as organs of Contracting Parties to the ECHR.36 This raises the question as to whether the ECtHR had the competence to review whether a Contracting Party had violated its responsibilities under the Convention while implementing Union law and whether it could consequently claim (indirect) jurisdiction over EU law.37 The ECtHR has answered this question in a practical manner which resembles the so-called “Solange” line of case-law of the BVerfG:38 As a starting 18

33 ECJ, Judgment of 26th February 2013, Case C-617/10 “Åkerberg Fransson”; on this Safferling, NStZ 2014, 545 et seqq.; for further details, see § 7 para. 19 et seqq. 34 Glauben, DRiZ 2004, 131. 35 E. g. the decisions ECtHR, Judgment of 8th December 1999, No. 28541/95, “Pellegrin v. France”, RJD 1999-VIII, paras 60–71 and ECJ, Judgment of 28th March 2000, Case C-7/98 “Krombach”, ECR 2000 I-1935. The ECtHR refers to the case-law of the ECJ and vice versa. 36 Glauben, DRiZ 2004, 131. 37 See Lock, LPICT, 375; Peters/Altwicker, EMRK, § 4 para. 4. 38 BVerfG, Decision of 22nd October 1986, 2 BvR 197/83 = NJW 1987, 577.

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point, the Contracting Parties remain bound to the Convention even when they act in the process of fulfilling other international (e. g. EU) obligations. However,“[s]tate action taken in compliance with such legal obligations is justified as long as the relevant organisation is considered to protect fundamental rights […] in a manner which can be considered at least equivalent to that for which the Convention provides”; by “equivalent” the Court means “comparable”. In this case “the presumption will be that a State has not departed from the requirements of the Convention. However, any such presumption can be rebutted if […] it is considered that the protection of Convention rights was manifestly deficient.”39 The ECtHR presumes that the protection of Fundamental Rights exerted by the ECJ is “equivalent” to the protection provided by the ECtHR. As long as this presumption is not rebutted, the ECtHR will assume that the obligations imposed on Contracting Parties by the ECHR are met. The limitations of this cooperative relationship have however been laid down by the ECJ in its opinion on the accession of the EU to the ECHR.40 The Court did this by emphasising the adherence to the autonomy of EU law and by taking a reserved stance towards “external control” (particularly by the ECtHR).

2. The Interpretation of the ECHR The interpretation of the ECHR is governed by art. 31 of the Vienna Convention on 20 the Law of Treaties or corresponding customary international law: a provision is to be interpreted in accordance with the ordinary meaning to be given to the terms of the treaty in their context and (most importantly) in the light of its object and purpose.41 The “ordinary meaning” may only be determined in the authentic languages, i. e. English and French for the ECHR as stipulated in the final provision of the Convention. Recourse to preparatory works and the circumstances of its conclusion is only of minor importance (cf art. 32 of the Vienna Convention on the Law of Treaties). A consistent interpretation in all Members States aiming at the best possible protection of human rights and driven by the goal of establishing a common minimum standard cannot easily be achieved: The ECtHR considers the ECHR a “living instrument” whose interpretation must remain in line with changes in economic, social and ethical circumstances.42 The Court prefers an “autonomous” interpretation of the Convention in order to prevent Contracting Parties from defining (and confining) the scope of the Convention by means of domestic law. National understandings of the Convention may therefore only serve as clues.43 Another important aspect of interpretation is the fact that the ECtHR frequently concedes a margin of appreciation to the state parties, allowing them to take independent and sovereign decisions. In accordance with this practice, the decisions are not examined in their entirety, but rather only with regard to their plausibility and adherence to the limitations required by human rights.44

3. Guarantees Relating to Criminal Law a) Overview. aa) Subsidiary Protection through the ECtHR. According to art. 13 21 and 35 ECHR, the responsibility for the protection of human rights remains primarily 39 ECtHR, Judgment of 30th June 2005, No. 45036/98, “Bosphorus (…) v. Ireland”, RJD 2005-VI, para. 155. 40 ECJ, Opinion 2/13 of 18th December 2014, paras 228 et seqq. 41 For further details, see Jacobs/White/Ovey, ECHR, pp. 38 et seq. 42 See Po ¨ sl, Das Verbot der Folter in Art. 3 EMRK, pp. 43 et seq. 43 HK EMRK-Nettesheim, Einleitung paras 26 et seq. 44 Braasch, JuS 2013, 602, 604; Greer, ECHR, pp. 22 et seqq.

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with the domestic authorities and courts of the Contracting Parties. The protection granted by the ECtHR is of subsidiary nature.45 This means: – With regard to substance, the principle of minimum standard applies. The rights granted in the ECHR do not constrain domestic fundamental rights guarantees exceeding the ECHR standard (art. 53 ECHR). – With regard to procedure, the Court may only deal with a matter after all domestic remedies have been exhausted (art. 35 ECHR).46 – In order to minimise interference with the sovereignty of the Contracting Parties, the ECtHR grants national authorities a rather broad margin of appreciation.47 – The ECtHR shows judicial restraint; only 5 % of the cases lead to the declaration that there has been a violation of the Convention. 22

This entails the following consequences: First, the ECtHR only applies a limited standard of scrutiny. The Court neither reviews whether domestic law has been applied correctly nor whether the domestic court has assessed the facts of the case truthfully. It is not designed to be an additional court of appeal.48 This, however, does not apply where the Convention itself refers to domestic law. Example: “with a procedure prescribed by law” or “lawful detention” (art. 5 (1) ECHR, emphasis added).

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Second, Contracting Parties remain primarily responsible for compensating any harm done to an individual resulting from a violation of the Convention.49 Applicants will lose their status as a victim (cf art. 34 ECHR) before the Court if the Contracting Party successfully remedies the breach. An application to the Court will be or become inadmissible50 or – in the case of a previous decision on admissibility – be unfounded. An applicant’s status as a victim therefore remains relevant at all stages of the proceedings. In order to successfully compensate for a violation of the Convention, general measures taken by a Contracting Party to avoid future violations do not suffice but the following requirements must be met: – The national authorities must acknowledge the breach either expressly or de facto and – The national authorities must have provided appropriate redress.51 This may include the criminal prosecution of those responsible for the breach and – of minor importance52 – reparations for damages incurred.

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bb) Scope of Application. The ECHR grants rights to individuals regardless of their citizenship or place(s) of residence.53 Legal persons are basically capable of enjoying the 45 A “system of cooperation”, cf Arai, in: van Dijk et al. (eds), Theory and Practice of the European Convention on Human Rights, p. 998; HK EMRK-Nettesheim, Einleitung para. 26, art. 35 para. 8. 46 Cf Corstens/Pradel, Eur. Criminal Law, pp. 287 et seq.; Zwaak, in: van Dijk et al. (eds), Theory and Practice of the European Convention on Human Rights, pp. 125 et seqq. 47 The breadth of this margin of appreciation is dependent on multiple factors. The Court grants a particularly broad margin concerning contentious moral or ethical issues like the question whether consensual sexual activities between consanguine adult siblings should be liable to criminal prosecution, cf ECtHR, Judgment of 12th April 2012, No. 43547/09, “Stu¨bing v. Germany”, paras 59 et seq. 48 ECtHR, Judgment of 21st January 1999, No. 30544/96, “Garcı´a Ruiz v. Spain”, RJD 1999-I, para. 28. 49 ECtHR (GC), Judgment of 1st June 2010, No. 22978/05, “Ga ¨fgen v. Germany”, RJD 2010-IV, para. 76. 50 See Esser, NStZ, 2008, 660. 51 ECtHR, Judgment of 15th July 1982, No. 8130/78, “Eckle v. Germany”, Series A, 51, para. 66. 52 See Esser, NStZ 2008, 660. 53 This does not hold true for cases concerning extradition, cf art. 3 of Additional Prot. No. 4.

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rights of the Convention if the right in question is not by its nature only applicable to individuals. Even corporate bodies organised under public law may be protected under the Convention if their fields of activity remain relatively free of state intervention (e. g. universities). Besides guaranteeing rights to individuals and corporate bodies, the Convention entitles the Contracting Parties themselves to instigate inter-state proceedings for breaches of the Convention by other Contracting Parties. The Convention applies to all (legislative, administrative and judicial) acts of state. 25 The guarantees of the Convention do not only grant protection to individuals against Contracting Parties (negative liberty or status negativus) but also form a “constitutional instrument” by establishing a “European public order”.54 Thus the Convention may have an indirect effect on the legal relations between individuals as the ECtHR under certain circumstances assumes a duty of the Contracting Parties to protect individuals from encroachments of their fundamental rights by other individuals.55 The scope of such a duty has not yet been discussed conclusively among scholars and will ultimately depend on the guarantee concerned.56 b) Testing ECHR Rights Related to Criminal Law. There are four categories of 26 rights under the ECHR:57 – Liberties: Art. 2, 3, 8, 9, 12 ECHR and art. 1 and 2 Additional Prot. No. 1 – Equality rights: Art. 14 ECHR, art. 5 Additional Prot. No. 7 and Additional Prot. No. 12 – Political rights: Art. 10, 11 ECHR, art. 3 Additional Prot. No. 1 – Judicial rights: Art. 5, 6 ECHR The following rights are relevant in the criminal law context and require a more 27 detailed explanation: – Art. 2 ECHR (Right to life) – Art. 3 ECHR (Prohibition of torture and inhuman or degrading treatment) – Art. 5 (2) – (5) ECHR (Rights of arrested individuals) – Art. 6 (1) ECHR (Right to a fair trial) and art. 6 (3) ECHR (Elements of the right to a fair trial) – Art. 6 (2) ECHR (Presumption of innocence) – Art. 7 ECHR (No punishment without law – nulla poena sine lege) – Art. 8 ECHR (Right to respect for private and family life) – Art. 18 ECHR (Limitations on use of restrictions of rights/Prevention of the misuse of power)58 – Art. 2 (1) Additional Prot. No. 7 (Right of appeal in criminal matters) – Art. 4 (1) Additional Prot. No. 7 (Prohibition of dual punishment, ne bis in idem) Tests for breaches of the Convention differ for negative liberties (defensive rights) on 28 the one hand and procedural and judicial guarantees on the other:

54 Cf ECtHR, Judgment of 18th December 1996, No. 15318/89, “Loizidou v. Turkey” (Preliminary Objections), Series A, 310, para. 75. 55 Jacobs/White/Ovey, ECHR, pp. 51 et seq. 56 Peters/Altwicker, EMRK, § 2 para. 33; HK EMRK-Nettesheim, art. 1 para. 21; ECtHR, Judgment of 23rd September 1998, No. 100/1997/884/1096, “A v. United Kingdom” RJD 1998-VI, para. 22; ECtHR, Judgment of 28th June 2001, No. 24699/94, “Verein gegen Tierfabriken v. Switzerland”, RJD 2001-VI, paras 45 et seq. 57 Ambos, Int. Strafrecht, § 10 para. 10; Peters/Altwicker, EMRK, § 1 paras 15 et seqq. 58 Regarding its function, art. 18 ECHR does, however, not equate to the classical rights and guarantees; on its particular meaning, see para. 112.

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A test for a breach of negative liberty is conducted in three steps:59 i) Scope of protection ii) Encroachment: Does an act/measure infringe the scope of protection and can a Contracting Party be held accountable? iii) Justification of the encroachment/limitation of the right 1. General limitations (art. 15–17 ECHR) 2. Specific limitations for certain rights (art. 8–11 ECHR para. 2 of each article) 3. Implicit limitations for rights without expressly stipulated limitations a) Does the measure/act pursue a legitimate aim? b) Is the encroachment on the right proportional to the act’s/measure’s aim? c) Does the act/measure respect the essence of the right? This structure applies to art. 3 ECHR only with modifications since – pursuant to art. 15 (2) ECHR – encroachments cannot be justified. Tests for breaches of procedural and judicial rights (i. e. in a criminal law context art. 5 (2), 6 and 7 ECHR, art. 2 (1), 4 (1) Additional Protocol No. 7) vary with the different scopes of protection but are basically structured as follows: i) Scope of protection ii) Does the act/measure comply with the standards as laid down by the Convention? (Only exceptionally will the structure “scope of protection”/“encroachment”/“justification” be applied)60 29

c) Right to Life – art. 2 ECHR.

Case 10 T, a thief, breaks into C’s house. C is a famous art collector and T aims to steal a valuable painting from C’s private collection. As T removes the painting, he is detected by C and flees the house taking the painting with him. C picks up his gun and fires a warning shot. The only way to stop swift T would be another shot targeted directly at him. Though he only wishes to prevent T from escaping, C realises that this second shot might strike T fatally and accepts this consequence. The bullet hits T in the head and he is killed instantly. Is C’s shot justified as an act of self-defence according to German law? The relevant provision on self-defence (§ 32 StGB) reads: “(1) A person who commits an act in self-defence does not act unlawfully. (2) Self-defence means any defensive action that is necessary to avert an imminent unlawful attack on oneself or another.” (see para. 33) 30

The scope of protection of art. 2 (1) ECHR covers all born human life. The question as to whether unborn children enjoy the right to life under the Convention is controversial. The wording “everyone” allows for such a broad interpretation which would give rise to conflicts with national abortion laws. The ECtHR has evaded this conflict by ruling that the Contracting Parties may determine autonomously when the 59 For further information on the structure of the tests refer to Grabenwarter/Pabel, EMRK, § 18 paras 1 et seq.; Peters/Altwicker, EMRK, § 3 paras 1 et seqq. 60 See for example art. 6 (1) ECHR (Access to courts) and cf Grabenwarter/Pabel, EMRK, § 18 para. 31.

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right to life begins.61 Art. 2 (1) ECHR does, however, also contain active obligations to protect.62 Once the right to life applies, Contracting Parties must not only refrain from the intentional and unlawful taking of life, but also “take appropriate steps within its internal legal framework in order to safeguard the lives of those within its jurisdiction”.63 Appropriate criminal law legislation must be passed in order to deter people from attacking the lives of others and the Contracting Parties must provide for law enforcement authorities that prevent, suppress and punish any such attacks.64 This duty also contains a procedural obligation: The state must conduct an adequate investigation the conclusions of which must be based on a “thorough, objective and impartial analysis of all relevant elements”.65 A state can only be presumed to have breached its obligation regarding the prevention of crimes committed by third parties, if the administration knew or should have known that a certain individual is threatened by offences of a third party and, nonetheless, did not take any countermeasures, even though they were within its competence and could reasonably have been expected.66 Thus, the state’s obligation to protect falls short of allowing the state to violate the convention rights itself, most notably art. 5 (1) ECHR (right to liberty) under the guise of its obligations to protect. Consequently, the mere acceptance of such an obligation to protect may not justify preventive detention.67 Enhanced obligations to protect apply in cases where the individual at risk is already in state custody, e. g. in the case of an injury or the disappearance of a detainee.68 The right to life ceases with death and does not protect an individual’s decision to commit suicide.69 In cases of euthanasia and cessation of medical treatment the ECtHR does not immediately identify a violation of the state’s obligation to protect; rather due to the vastly differing national provisions, the Member States are afforded a large margin of appreciation: According to the ECtHR, the question of whether and how treatment can be ceased legally, as well as the question of how to strike an adequate balance between the protection of a patient’s life on the one hand and his or her right to self-determination on the other hand, is primarily determined by the legal order of each individual Member State; the ECtHR only reserves itself the power to review whether or not a state has complied with its obligations under art. 2 ECHR.70 The ECtHR has not yet decided whether a Contracting Party is required to penalise attempted suicide or participation in another person’s suicide.71 The fact that national decisions to punish assisting in suicide have already been regarded as compliant to the convention,72 does, at any rate, support such a conclusion.

ECtHR, Judgment of 8th July 2004, No. 53924/00, “Vo v. France”, RJD 2004-VIII, paras 81, 82. Lastly ECtHR, Judgment of 5th June 2015, No. 46043/14, “Lambert et al. v. France”, para. 117. 63 ECtHR, Judgment of 21st February 2008, No. 57084/00, “Usta v. Turkey”, para. 45. 64 ECtHR, Judgment of 28th March 2000, No 22492/93, “Kiliç v. Turkey”, para. 62. 65 ECtHR (GC), Judgment of 30th March 2016, No. 5878/08, “Armani da Silva v. United Kingdom”, paras 233, 234. 66 ECtHR, Judgment of 7th January 2010, No. 25965/04, “Rantsev v. Cyprus and Russia”, RJD 2010-I, para. 219. 67 ECtHR, Judgment of 19th January 2012, No. 21906/09, “Kronfeldner v. Germany”, para. 87. 68 ECtHR, Judgment of 31st July 2012, No. 23016/04, “ER et al. v. Turkey”, paras 66 et seqq. 69 ECtHR, Judgment of 29th April 2002, No. 2346/02, “Pretty v. United Kingdom”, RJD 2002-III, para. 40. 70 ECtHR (GC), Judgment of 5th June 2015, No. 46043/14, “Lambert et al. v. France”, para. 148. 71 For example in Germany neither attempted suicide nor participation in another person’s suicide are criminal offences. 72 ECtHR, Judgment of 29th April 2002, No. 2346/02, “Pretty v. United Kingdom”, RJD 2002-III, para. 41. 61 62

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Any killing by a Contracting Party – be it intentional or unintentional – is, under the Convention, considered an encroachment on the right to life.73 31 Art. 2 (1) ECHR provides a specific limitation of the right to life by justifying executions of death penalties. The death penalty, however, has been absolutely abolished in Additional Prot. No. 13.74 Those Contracting Parties that have not yet ratified this protocol can impose the death penalty only in times of war pursuant to art. 2 Additional Prot. No. 6, which has been ratified by all Contracting Parties except Russia.75 32 Under art. 2 (2) ECHR, a person may be deprived of his right to life “in defence of any person from unlawful violence” (lit. a), “in order to effect a lawful arrest or to prevent the escape of a person lawfully detained” (lit. b) or “in action lawfully taken for the purpose of quelling a riot or insurrection” (lit. c). A legal basis (“lawful”) and a strict proportionality test (“absolutely necessary”) are required in all three events.76 33 Case 10 seems to describe a standard case of self-defence in German law under § 32 StGB. C acts in a situation of self-defence and a second shot was the only – and therefore necessary way – to prevent T from taking the painting. § 32 StGB does not require a general proportionality test, which makes German law rather unique. Thus from the angle of German domestic law, the killing of a person can be justified for defending property if it is a necessary means.77 Consequently, C would be justified in killing T under German law. Some scholars argue that art. 2 (2) (a) ECHR sets a limit to such a broad interpretation of the right to self-defence by confining this right to the defence of persons (“of any person”, “de toute personne”). In their opinion, this provision governs not only the legal relations between state and individual but also those between individuals. Consequently, the killing of a person in defence of property cannot be justified.78 Most scholars, however, apply art. 2 (2) (a) ECHR only to the relationship between state and individuals and prefer to answer the above question pursuant to domestic law only.79 Neither of the two approaches is truly convincing. On the one hand, it is true that the ECHR does not (directly) govern legal relations between individuals. On the other hand, the ECHR may indirectly limit the right to exercise self-defence. This would be the case if art. 2 (2) (a) ECHR imposed a duty on the Contracting Parties to effectively restrict the right to self-defence to the defence of persons.80 However, it is doubtful whether art. 2 (2) (a) ECHR – as part of the ECHR as the “constitutional instrument” of European public order – in fact requires an extension of the limit on the right to selfdefence to relations between individuals.81 73 See Ambos, Int. Strafrecht, § 10 para. 78; Eisele, JA 2000, 428; Grabenwarter, ECHR, art. 2 para. 5; disputed for unintentional killings, however, by Roxin, AT I, § 15 para. 78. 74 Additional Prot. No. 13 has been ratified by 44 Contracting Parties as of March 2017, available under http://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/187/signatures?p_auth=d2yvQFRr (last visited July 2017). 75 See also Corstens/Pradel, Eur. Criminal Law, pp. 334 et seq. 76 ECtHR (GC), Judgment of 27th June 2000, No. 21986/93, “Salman v. Turkey”, RJD 2000-VII, para. 98; Corstens/Pradel, Eur. Criminal Law, pp. 336 et seq.; Grabenwarter, ECHR, art. 2 para. 11. 77 Cf RGSt 69, 308, 310; BGH, Judgment of 12th February 2003, 1 StR 403/02 = NJW 2003, 1955; SSWStGB/Rosenau, § 32 StGB para. 21; Lackner/Ku¨hl-Ku¨hl, § 32 StGB para. 11; MK-Erb, § 32 para. 120; Wessels/Beulke/Satzger, paras 507, 512; for a differing view, see Bernsmann, ZStW 104 (1992), 326. 78 Frister, GA 1985, 564 et seq.; Koriath, in: Ranieri (ed.), Europa ¨isierung, p. 47. 79 Eisele, JA 2000, 428; Jescheck/Weigend, § 32 V; Fischer, § 32 StGB para. 40; S/S-Perron, § 32 StGB para. 62; MK-Erb, § 32 StGB para. 18. 80 See ECtHR, Judgment of 23rd September 1998, No. 100/1997/884/1096, “A v. United Kingdom”, RJD 1998-VI, para. 22 for a case involving art. 3 ECHR. 81 See MK-Erb, § 32 StGB para. 18 who argues in favour of applying a different measure with regard to interpretation in conformity with the convention in legal relations between individuals.

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Even if one should prefer such a limit, it is – in the end – without any practical relevance. It is submitted that “intentionally” in art. 2 (1) ECHR only refers to direct “intent to kill” (in the sense of dolus directus of 1st or 2nd degree) and does not cover pure dolus eventualis82 which is typical for cases of self-defence.83 As C also only acted with dolus eventualis, his right to self-defence would not be limited in case 10 – under any solution described above – since art. 2 ECHR only applies to homicide committed with dolus directus to kill.84 Let us bear in mind, however, that this case clearly has to be distinguished from the 34 “lethal shot as a last resort” (finaler Rettungsschuss) in police law. In such situations, a policeman kills an attacker by a single targeted shot in order to protect innocent persons from imminent danger to life or limb. Art. 2 ECHR is – without any doubt – applicable in those cases.85 d) Prohibition of Torture (and Degrading Punishment) – art. 3 ECHR. aa) Scope 35 of Protection and Unexceptional Prohibition of Torture. The ECtHR continues to stress that art. 3 protects a core value of any democratic society and thus contains a fundamental guarantee.86 Art. 3 ECHR is infringed by either inhuman or degrading treatment or punishment or – as a much more severe violation – by torture. The ECtHR has considered treatment to be inhuman if it “was premeditated, was applied for hours at a stretch and caused either bodily injury or intense physical and mental suffering”87. It regarded a treatment as being degrading “if it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them”88 and attains a certain level of severity.89 A relevant factor is the potential intention of the culprit to humiliate his or her victim, but also without such an intention a treatment can be degrading.90 In any case, a degrading treatment is a “less intense” violation under art. 3 ECHR as it aims rather at humiliating a person than inflicting pain upon the victim. Examples: An inhuman and degrading treatment was affirmed in a case in which a convict was detained unclothed in a safety cell of only 8 m2 for seven days.91 Moreover, the ECtHR affirmed a degrading treatment in the case of a defendant who was locked in a metal cage visible to the public during the twenty-one days of the trial, without there being any indication of a particular danger posed by him.92 82

Conditional intent, i. e. accepting a result without necessarily intending it to occur. Cf Ambos, Int. Strafrecht, § 10 para. 78; SSW-StPO-Satzger, art. 2 EMRK para. 17; idem. JURA 2009, 759, 762 et seq.with further references. 84 Cf Eisele, JA 2000, 428 for a good reasoning against such an interpretation; generally regarding this issue SSW-StPO-Satzger, art. 2 EMRK para. 17; idem. JURA 2009, 759, 762 et seq. 85 ECtHR (GC), Judgment of 27th September 1995, No. 18984/91, “McCann et al. v. United Kingdom”, Series A, 324, paras 147 et seqq. 86 ECtHR, Judgment of 7th July 2011, No. 20999/05, “Hellig v. Germany”, NJW 2012, 2173, para. 50. 87 ECtHR, Judgment of 15th July 2002, No. 47095/99, “Kalashnikov v. Russia”, RJD 2002-VI, para. 95. 88 ECtHR (GC), Judgment of 26th October 2000, No. 30210/96, “Kudla v. Poland”, RJD 2000-XI, para. 92. 89 ECtHR, Judgment of 22th April 2010, No. 1509/05, “Yankov v. Bulgaria”, RJD 2003-XII, para. 106. 90 ECtHR (GC), Judgment of 17th January 2012, No. 36760/06, “Stanev v. Bulgaria”, RJD 2012-I, para. 203. 91 Cf ECtHR, Judgment of 7th July 2011, No. 20999/05, “Hellig v. Germany”, NJW 2012, 2173, paras 56 et seq. – according to this judgment the deprivation of clothing may only not be considered as inhuman and degrading treatment when a sufficient reason (not further specified in the judgment) is at stake, see Pohlreich, JZ 2011, 1059 et seqq. 92 ECtHR, Judgment of 26th June 2012, No. 33376/06, “Piruzyan v. Armania”, paras 69 et seqq. 83

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Torture differs from inhuman or degrading treatment or punishment in two ways: First, torture requires a more severe infringement than either of the other forms of illtreatment.93 Torture is an inhuman or degrading treatment that causes very serious and cruel suffering (objective requirement). Inflicting mental harm can suffice. The treatment does not necessarily have to lead to physical injuries.94 Also, the sufferings must be inflicted in order to serve a certain purpose, especially forcing someone to confess (subjective requirement).95 Torture is a more severe form of ill-treatment and the provision in the Convention was drafted with the intention to attach a special stigma.96 The differentiation also has practical consequences: The Court has ruled that all evidence gained under the influence of torture is inadmissible in a proceeding whereas it has expressly left this question open for less severe violations of art. 3 ECHR. However, it should be noted that the actual use of evidence gained in violation of art. 3 ECHR does not violate art. 3 ECHR itself, but rather art. 6 (1) ECHR.97 Example: “Palestinian Hanging” (a person is stripped naked with hands tied behind the back and then suspended by the arms which causes paralysis) is torture98 as well as rape committed by policemen.99 Art. 3 ECHR also entails positive obligations to protect for the states that are members of the convention: They have to ensure that individuals within their jurisdiction are protected against all forms of ill-treatment prohibited under art. 3 ECHR, including where such treatment is administered by private individuals. Moreover they have to conduct effective investigations into allegations of ill-treatment and torture.100 36 Art. 3 ECHR does not provide for any specific limitations – not even in times of war or other public emergencies (cf art. 15 (2) ECHR). Thus, the test for art. 3 ECHR cannot be divided into the three steps – scope of protection, encroachment and justification. One might assume the existence of implicit limitations since not even the right to life pursuant to art. 2 ECHR is granted unexceptionally. However, the clear wording of art. 15 (2) ECHR and the lack of exceptions in art. 3 ECHR (argumentum e contrario)101 counter such an argument. Consequently, any treatment violating art. 3 ECHR is prohibited comprehensively and absolutely.102 The ECtHR has thus set a welcome and important standard – especially in times of the fight against terrorism. A convincing argument for the absolute character of the prohibition of torture is the protection of human dignity that the prohibition is based on. The ECHR does, however, – unlike the German Basic Law (Grundgesetz [GG]) in its art. 1 (1) – not explicitly refer to the notion of human dignity.103 93

Grabenwarter, ECHR, art. 3 para. 3. See also Frowein/Peukert, EMRK, art. 3 Nr. 5 EMRK with further references. 95 ECtHR, Judgment of 28th July 1999, No. 25803/94, “Selmouni v. France”, RJD 1999-V, para. 96; cf Ambos, Int. Strafrecht, § 10 para. 80. 96 ECtHR, Judgment of 18th January 1978, No. 5210/71, “Ireland v. United Kingdom”, Series A, 25, para. 167. 97 See Warnking, Strafprozessuale Beweisverwertungsverbote, p. 82. 98 ECtHR, Judgment of 18th December 1996, No. 21987/93, “Aksoy v. Turkey”, RJD 1996-VI, para. 64. 99 ECtHR, Judgment of 25th September 1997, No. 57/1996/676/866, “Aydin v. Turkey”, RJD 1997-VI, para. 86. 100 ECtHR, Judgment of 3rd September 2015, No. 10161/13, “M. and M. v. Croatia”, para. 136. 101 Ambos, Int. Strafrecht, § 10 para. 83; Safferling, Jura 2008, 100, 101; disputed by Peters/Altwicker, EMRK, § 6 para. 3, this, however, can hardly be argued with regard to art. 15 (2) ECHR and the clear position of the ECHR. 102 ECtHR (GC), Judgment of 1st June 2010, No. 22978/05, “Ga ¨fgen v. Germany”, RJD 2010-IV, para. 70. 103 In this sense convincingly Po ¨ sl, Das Verbot der Folter in Art. 3 EMRK, pp. 72 et seqq. 94

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To compensate for the lack of limitations the ECtHR has established the requirement 37 that the ill-treatment must “attain a minimum level of severity”104 to amount to an encroachment upon art. 3 ECHR. Whether this minimum level has been met is to be determined relative to the circumstances of the case: above all, it depends on the duration of the treatment, its physical and/or mental effects and, in some cases, the sex, age and state of health of the victim.105 This leads to the following structure for testing a violation of art. 3 ECHR: i) Scope of protection ii) Encroachment: Is the minimum level of severity met? (Justification is not possible, see art. 15 (2) ECHR and the explanation above) Pursuant to art. 3 ECHR, the Convention insofar exerts an indirect effect (see 38 para. 25) on individuals: Contracting Parties are obliged to protect individuals from torture and inhuman or degrading treatment even if committed by individuals.106 This duty also involves investigating and potentially prosecuting those who are responsible for such a treatment.107 The purpose of this duty is on the one hand to secure the effective execution of the provisions protecting the human right, on the other hand to ensure that the individual perpetrators are held accountable in case of violations by the government.108 In this context, relatives of individuals that were subjected to torture and have since 39 disappeared may also be victims of inhuman or degrading treatment themselves. Whether the necessary threshold of gravity has been surpassed depends on the suffering the relatives were subjected to. In order to assess this level of gravity, the ECtHR draws primarily on the proximity of the family tie between the relatives and the victim, the question whether or not the family member witnessed the abuse, the involvement of the family member in the attempts to obtain information about the disappeared person and the way in which the national authorities responded to those enquiries.109 These circumstances must lead to a level of intensity of the relatives’ suffering which surpasses the level of suffering inevitable when a family member is subjected to human rights abuse.110 In particular, inaction of national authorities may lead to a violation of art. 3 ECHR with regard to the relatives in these situations.111

104 See for example ECtHR, Judgment of 9th June 1998, No. 52/1997/836/1042, “Tekin v. Turkey”, RJD 1998-IV, paras 52 et seq.; ECtHR, Judgment of 7th July 2011, No. 20999/05, “Hellig v. Germany”, NJW 2012, 2173. 105 ECtHR (GC), Judgment of 11th July 2006, No. 548/10/00, “Jalloh v. Germany”, RJD 2006-IX, para. 67. 106 ECtHR, Judgment of 23rd September 1998, No. 100/1997/884/1096, “A. v. United Kingdom”, RJD 1998-VI, para. 22. 107 ECtHR, Judgment of 6th April 2000, No. 26772/95, “Labita v. Italy”, RJD 2000-IV, paras 130–136, especially para. 131: “Otherwise, the general legal prohibition of torture and inhuman or degrading treatment would, despite its fundamental importance, be ineffective in practice (…)”; see also Corstens/ Pradel, Eur. Criminal Law, pp. 348 et seq. 108 Grabenwarter, NJW 2010, 3129. 109 ECtHR, Judgment of 6th November 2008, No. 33185/04, “Magamadova and Iskhanova v. Russia“, para. 105. 110 ECtHR, Judgment of 8th July 1999, No. 23547/94, “Cakici v. Turkey”, RJD 1999-IV, para. 98; cf Vermeulen, in: van Dijk et al. (eds), Theory and Practice of the European Convention on Human Rights, pp. 440 et seq. 111 ECtHR, Judgment of 8th April 2004, No. 26307/95, “Tahsin Acarv v. Turkey”, RJD 2004-III, para. 238.

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bb) Threat of Torture.

Case 11 G was suspected of kidnapping a Frankfurt banker’s son but refused to testify during a police interrogation. The deputy police chief D instructed the interrogating officer O to threaten G with inflicting severe physical pain if he should continue to conceal the whereabouts of the child. D and O were convinced that the boy was still alive but assumed that he was in imminent danger to life. G confessed as a consequence of the threat and the boy’s dead body was found based on information from the confession. He had been killed before the arrest. G confessed again before police and prosecution. During his trial, G was instructed by the court that his earlier testimony would not be admissible evidence as he had been threatened with physical pain (§ 136 a (3) 2 StPO). Nevertheless, he confessed once more and was subsequently convicted of murder and sentenced to life imprisonment on 28th July 2003. O and D were later charged with coercion and incitement to coercion respectively and found guilty on 20th December 2004. The court chose the mildest sanctions possible and issued a “warning with punishment reserved” pursuant to § 59 (1) StGB (effectively amounting to a fine suspended on probation). Later on, D was appointed head of the state police headquarters in the field of technology, logistics and administration. After exhausting all domestic remedies, G applied to the ECtHR on 15th June 2005 claiming a violation of art. 3 and 6 (1) ECHR. The case aroused great interest among the general public; the police officers’ conducts were widely approved of. Can G claim a violation of art. 3 ECHR? (see para. 41) 41

According to the ECtHR in case 11, the mere threat of a treatment which is prohibited, pursuant to art. 3 ECHR, may constitute a violation of this provision – either torture or at least inhuman treatment – provided “it is sufficiently real and imminent”112 and attains a minimum level of severity. If the police officer had carried out his threats, his actions would have amounted to torture.113 However, in this case the Court considered the threat as inhuman treatment because the officer’s exhaustion and the short time span of the threatening interrogation were taken into account as “mitigating factors”. The Court expressly underlined that any (i. e. torture or inhuman or degrading treatment) ill-treatment pursuant to art. 3 ECHR is absolutely prohibited. No regard is to be given to the conduct of the person concerned or public emergencies threatening the life of the nation – or, a fortiori, of an individual.114 The subsidiary nature of the ECHR, however, caused an issue concerning the continuing status of G as a victim. The Chamber declined to find a violation of the Convention. It decided that G could not claim the status of a victim pursuant to art. 34 ECHR, because Germany had already adequately compensated the violation. The national court of first instance115 had expressly acknowledged a violation of the Convention in its judgment against G and also by convicting the police officers D and O. The Chamber was of the opinion that appropriate redress had been provided (again) by convicting the two police officers involved irrespective of “comparatively lenient” 112 ECtHR (GC), Judgment of 1st June 2010, No. 22978/05, “Ga ¨fgen v. Germany”, RJD 2010-IV, para. 66. st 113 ECtHR (GC), Judgment of 1 June 2010, No. 22978/05, “Ga ¨fgen v. Germany”, RJD 2010-IV, para. 69. 114 ECtHR (GC), Judgment of 1st June 2010, No. 22978/05, “Ga ¨fgen v. Germany”, RJD 2010-IV, para. 69. 115 Regional Court of Frankfurt (Landgericht [LG] Frankfurt).

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sentences and it noted that the police officers suffered prejudice in their professional careers and that any items of evidence obtained in violation of art. 3 ECHR had been excluded from the trial against G.116 The violation had thus been compensated on the national level and the ECtHR consequently found that G had lost his status as a victim. The Grand Chamber of the ECtHR, however, reversed the judgment of the Chamber. 42 While the Grand Chamber also asserted the conviction of the police officers D and O as an appropriate and express acknowledgement of the violation of art. 3 ECHR, it disagreed with the Chamber’s opinion that appropriate redress had taken place. Appropriate and sufficient redress especially in matters of art. 3 ECHR first of all means an effective investigation and criminal prosecution of those responsible for the violation of the Convention. Important factors for an effective investigation are its promptness, its expedition, and in particular the outcome of the investigations and of the ensuing criminal proceedings, including the sanction imposed as well as disciplinary measures.117 Promptness and expedition of the proceedings were found to be compatible with the standards of the ECtHR’s case-law. However, the Grand Chamber in contrast to the Chamber did not consider the warning with reserved fines of 60 and 90 day fine units of EUR 60 and EUR 120 an adequate response to the breach of art. 3. As art. 3 is a core right of the Convention, such – in the opinion of the Grand Chamber – manifestly disproportionate punishment was not considered to have the necessary deterrent effect to prevent further violations in similar situations.118 cc) Medical Interventions.

43

Case 12 Police officers observe J as he takes small plastic pellets out of his mouth and sells them to others. They assume that the pellets contain narcotics. As they arrest J, he swallows the pellets. P, the public prosecutor on duty, orders the use of an emetic in order not to risk a successful investigation. J refuses to take the emetic and is thus pinned down by policemen so a physician can administer the emetic through a stomach tube. J painfully throws up a pellet that contains 0.2 g of cocaine. Is such a procedure justified under art. 3 ECHR? (see para. 45) On the one hand, art. 3 ECHR requires a Contracting Party to ensure the physical 44 integrity of all persons who are arrested or detained, especially by granting them access to the necessary medical care.119 A treatment which is necessary from an established medical point of view cannot be considered inhuman or degrading in principle, e. g. force-feeding aimed at saving the life of a detainee who consciously refuses to eat.120 Even if the treatment is not motivated by any medical necessities and performed in defiance of the detainee’s will, it is not necessarily inhuman or degrading. A Contracting Party can obtain blood or saliva samples in order to investigate whether a suspect was 116 ECtHR (GC), Judgment of 1st June 2010, No. 22978/05, “Ga ¨fgen v. Germany”, RJD 2010-IV, paras 78, 79. 117 ECtHR (GC), Judgment of 1st June 2010, No. 22978/05, “Ga ¨fgen v. Germany”, RJD 2010-IV, para. 121. 118 ECtHR (GC), Judgment of 1st June 2010, No. 22978/05, “Ga ¨fgen v. Germany”, RJD 2010-IV, paras 124, 125. 119 ECtHR (GC), Judgment of 23rd October 2016, No. 11138/10, “Mozer v. the Republic of Moldova and Russia”, paras 179 et seq.; as to the higher standards of appropriate medical care in relation to minors, see EctHR (GC), Judgment of 23rd March 2016, No. 47152/06, “Blokhin v. Russia”. 120 ECtHR (GC), Judgment of 11th July 2006, No. 548/10/00, “Jalloh v. Germany”, RJD 2006-IX, para. 69.

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involved in a criminal offence if it acts on a convincingly justified factual basis. However, a medical intervention may amount to a violation of the Convention if it exceeds the minimum level of severity. In this regard, due consideration must be given inter alia to the seriousness of the offence at issue, possible alternative investigation methods, whether the person concerned suffered from physical pain or whether the intervention bore the risk of causing lasting damage to the suspect’s health and to the actual physical consequences of the intervention.121 45 The ECtHR decided in favour of J in case 12. Although the Court considered drug trafficking a serious felony, it concluded that J’s dealing was a rather minor offence. Besides, the Court criticised that the authorities did not contemplate other investigation methods (e. g. waiting for the pellets to “pass out of the system naturally”).122 It was observed that the victim suffered both physically and mentally and that the treatment bore risks to his health.123 J had been subjected to inhuman and degrading treatment. 46 This case demonstrates that the Court conducts a full consideration of all circumstances of the case in order to determine whether a violation of art. 3 ECHR has taken place. It should be noted that this is partially due to a lack of exceptions and the impossibility of justifying any measure contrary to art. 3 ECHR. 47

dd) Deportation and Extradition.

Case 13 German citizen S was a murder suspect in the USA. He fled to the United Kingdom. The UK accepted the US request for extradition. After exhausting all domestic remedies, S applied to the ECtHR and claimed a violation of art. 2 and 3 ECHR because he feared the death penalty in the USA. Would the extradition of S be contrary to the rights granted by the ECHR? (see para. 49) Although the Court has acknowledged that the Contracting States have the right to control entry, residence and expulsion of aliens, they may be obliged to refrain from expelling a person if he or she faces treatment contrary to art. 3 ECHR in the receiving state, by state and also by non-state actors like civil war parties.124 49 The Court found in case 13 that art. 3 ECHR stipulates an obligation not to extradite S. This obligation could not be based on art. 2 ECHR at the time because this provision does not prohibit the death penalty and Additional Prot. No. 6 had not yet been ratified by the United Kingdom. If the case was decided today, art. 2 ECHR would also entail an obligation not to extradite. At the time, only art. 3 ECHR was applicable. The death penalty, as such, was not considered a violation of art. 3 ECHR per se because the terms “inhuman” or “degrading” had to be interpreted in the light of art. 2 (1) ECHR, which explicitly states that the death penalty could be in conformity with the Convention. The Court, however, expected that S would suffer from the so-called “death row phenom48

121 ECtHR (GC), Judgment of 11th July 2006, No. 548/10/00, “Jalloh v. Germany”, RJD 2006-IX, paras 69 et seq. 122 ECtHR (GC), Judgment of 11th July 2006, No. 548/10/00, “Jalloh v. Germany”, RJD 2006-IX, para. 78. 123 ECtHR (GC), Judgment of 11th July 2006, No. 548/10/00, “Jalloh v. Germany”, RJD 2006-IX, paras 102, 253. 124 ECtHR (GC), Judgment of 15th November 1996, No. 22414/93, “Chahal v. United Kingdom”, RJD 1996-V, paras 73 et seq., 107; ECtHR (GC), Judgment of 23rd February 2012, No. 27765/09, “Hirsi Jamaa et al. v. Italy”, NVwZ 2012, 809, para. 120. Differentiating with regard to the risk for the applicant (and the respective distribution of the burden of proof), see ECtHR (GC), Judgment of 23rd March 2016, No. 43611/11, “F.G. v. Sweden”, paras 111, 120 et seq.

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enon” and considered the circumstances before the execution inhuman treatment.125 This decision also deserves closer attention because it confirms that Contracting States remain responsible under the Convention for matters involving mutual judicial assistance. In the case mentioned above, S was eventually extradited to the USA after it gave its consent not to impose the death penalty on him.126 ee) Procedural Effects of a Violation of art. 3 ECHR. The use of a piece of evidence 50 obtained by way of violation of art. 3 ECHR does not automatically pose a violation of art. 3 ECHR in itself. It may, however, constitute a violation of art. 6 (1) ECHR (fair trial). With regard to the use of evidence directly obtained by way of violation of art. 3 ECHR, the court differentiates according to the type of evidence:127 – According to the ECtHR, in case of a confession it shall be insignificant whether it was made as a direct result of torture, inhuman or degrading treatment. Whenever obtained as a result of a violation of art. 3 ECHR and used in criminal proceedings, it renders the trial unfair in the sense of art. 6 (1) 1 ECHR in any case.128 In the Ga¨fgen case (see case 11), a confession had been obtained by way of inhuman treatment (threats of use of force). That the trial was not classified as a violation of art. 6 (1) ECHR nonetheless was solely due to the fact that said confession was not utilised in court at all. Rather, Ga¨fgen was sentenced on the basis of a new confession made during the trial after being informed that the first confession could not be used.129 – The same applies to other (physical) evidence, but only as far as it was obtained directly by way of torture. The court’s stance towards physical evidence that was obtained through “mere” inhuman or degrading treatment is somewhat less clear. In “El Haski v. Belgium”, it does, however, summarise its stance stating that it will only breach art. 6 (1) ECHR if the use of such evidence had an impact on the conviction or sentence.130 In the court’s “Jalloh-decision” – which is the basis for case 12 – it thus affirmed a violation of art. 6 (1) ECHR, as “bubbles” are physical evidence and played a decisive role in the conviction of J.131 These principles are also applicable in cases in which the methods prohibited by art. 3 ECHR were directed towards third parties and the resulting evidence is then used against the applicant.132 Whether the use of evidence obtained merely indirectly by way of a violation of art. 3 ECHR constitutes a breach of art. 6 (1) 1 ECHR, regards the question of whether the prohibition to use evidence obtained in breach of art. 3 ECHR has a “remote effect”. The court has not yet resolved this issue in clear terms. It only refers to a strong presumption of such a trial being unfair.133 In any case, it would correspond to the 125 ECtHR, Judgment of 7th July 1989, No. 14038/88, “Soering v. United Kingdom”, Series A, 161. As of today, those states that have ratified Additional Prot. No. 6 cannot extradite any person potentially facing the death penalty pursuant to art. 1 of this protocol. 126 Cf also Corstens/Pradel, Eur. Criminal Law, pp. 349 et seq. 127 Critical on the differentiation Po ¨ sl, Das Verbot der Folter in Art. 3 EMRK, p. 327. 128 ECtHR, Judgment of 25th September 2012, No. 649/08, “El Haski v. Belgium”, para. 85; ECtHR (GC), Judgment of 1st June 2010, No. 22978/05, “Ga¨fgen v. Germany”, RJD 2010-IV, para. 173. 129 ECtHR (GC), Judgment of 1st June 2010, No. 22978/05, “Ga ¨fgen v. Germany”, RJD 2010-IV, paras 179, 187. 130 ECtHR, Judgment of 25th September 2012, No. 649/08, “El Haski v. Belgium”, para. 85; ECtHR (GC), Judgment of 1st June 2010, No. 22978/05, “Ga¨fgen v. Germany”, RJD 2010-IV, paras 178 et seqq. 131 ECtHR (GC), Judgment of 11th July 2006, No. 548/10/00, “Jalloh v. Germany”, RJD 2006-IX, paras 105 et seq.; see also SSW-StPO-Bosch, § 81 a para. 9. 132 ECtHR, Judgment of 25th September 2012, No. 649/08, “El Haski v. Belgium”, para. 85. 133 ECtHR (GC), Judgment of 1st June 2010, No. 22978/05, “Ga ¨fgen v. Germany”, RJD 2010-IV, para. 105; see also ECtHR (GC), Judgment of 1st June 2010, No. 22978/05, “Ga¨fgen v. Germany”, RJD 2010-IV, paras 173 et seqq.

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absolute character of art. 3 ECHR if the consequences of the absolute prohibition of torture were effectively implemented by way of affirming a “remote effect” of the prohibition of use of evidence as far reaching as possible.134 51

52

ff) Requirements for Assessing a Violation of art. 3 ECHR in Criminal Proceedings. If the alleged violations of art. 3 ECHR refer to persons in custody of a state, “strong presumptions arise in respect of injuries occurring during such detention”. The burden of proof is then on the Government to provide a satisfactory and convincing explanation by producing evidence establishing facts which cast doubt on the account of events given by the victim.135 In the absence of such explanation, the Court can draw inferences which may be unfavourable for the Government.136 According to the ECtHR it is sufficient that the applicant shows that there is a “real risk” that the impugned statement was obtained by way of torture or inhuman treatment. This is already the case where the judicial system of the third state does not offer meaningful guarantees of an independent, impartial and serious examination of allegations of torture or inhuman and degrading treatment. A corresponding assessment of an international organisation or a human rights organisation is deemed to be sufficient in this regard.137 This judgment must have implications for national criminal proceedings, as far as they still operate with a standard less favourable for the defendant: For example, in Germany138 the use of torture (and the other prohibited modes of behaviour) needs to be proven beyond doubt, even though the principle in dubio pro reo does generally not apply with regard to the assessment of a potential prohibition to use certain evidence.139 In light of the standards set by the ECtHR, German courts will therefore be obliged to markedly reduce the requirements for proving the use of torture and the other forms of conduct prohibited by art. 3 (1) ECHR. This is already justified in view of the practical difficulties to prove that respective methods have been used. These difficulties are due to the fact that such methods are systematically hidden and that traces are professionally avoided or removed.140 e) Right to Liberty – art. 5 ECHR.

Case 14 25th

On July 2002, a German local court (Amtsgericht [AG]) issued an arrest warrant for German citizen M due to danger of tampering with evidence and danger of flight. M was taken into pre-trial custody. The arrest warrant described on one and a half pages that M was strongly suspicious of having defrauded the revenue in approximately 20 cases from 1996 to June 2002 by not declaring commissions to the tax authorities. The warrant listed the names of the companies concerned and described the respective charges. It explained that the suspicion was based on the evaluation of documents which had been seized at M’s apartment. The defence counsel was denied 134 On this as well as on the refutability of the presumption only in exceptional cases, see Po ¨ sl, Das Verbot der Folter in Art. 3 EMRK, pp. 347 et seqq. 135 E. g. ECtHR (GC), Judgment of 28th September 2015, No. 23380/09, “Bouyid v. Belgium”, para. 83. 136 E. g. ECtHR (GC), Judgment of 28th September 2015, No. 23380/09, “Bouyid v. Belgium”, para. 83. 137 ECtHR, Judgment of 25th September 2012, No. 649/08, “El Haski v. Belgium”, paras 86 et seqq. 138 In particular OLG Hamburg, “Motassadeq”, NJW 2005, 2326, 2329; on this SSW-StPO-Eschelbach, § 136 a para. 54. 139 On the valid criticism of the current jurisprudence, see already Jahn, Gutachten C zum 68. Deutschen Juristentag (DJT) 2008, C 108 et seqq. with further references; similarly, Beulke, StPO, para. 143. 140 See Beulke, StPO, para. 143; Schu ¨ ller, ZIS 8 (2013), 245, 248.

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access to the files because the prosecution feared that this would threaten the on-going investigation. On 7th August 2002, M requested a review of his remand in custody. The local court and the district court (Landgericht [LG]) rejected his request. The Higher Regional Court of Du¨sseldorf (Oberlandesgericht [OLG] Du¨sseldorf) overruled the decisions of the lower instances but did not annul the arrest warrant. The court held that M’s right to be heard in court had been violated. Since the defence counsel had been denied access to the investigation files, the arrest warrant had to be especially explicit. Otherwise, the defence could not appropriately propose motions to take evidence in order to take legal action against the arrest warrant. After hearing the defence, the local court issued another arrest warrant on 29th October 2002, which described the reasons on four pages. The defence was allowed full access to the files on 18th November 2002. Was M’s right to liberty violated? (see para. 63) Art. 5 ECHR governs the conditions for depriving someone of his liberty (art. 5 (1) 53 ECHR) and also the rights of the arrested or detained (art. 5 (2)-(4) ECHR). Art. 5 ECHR protects a person’s liberty to physically move from one place to another.141 Any deprivation by state organs can only be justified under the following conditions: – A procedure prescribed by domestic law exists – Non-arbitrary execution of this procedure – A ground for arrest pursuant to art. 5 (1) (a)-(f) ECHR is present – The national law itself complies with the Convention, especially the principle of legal certainty While the interpretation of national law is in principle a matter for the national 54 authorities, the wording of art. 5 (1) ECHR (“in accordance with a procedure prescribed by law”) enables – and in fact obligates – the ECtHR to review whether the deprivation of liberty is in fact based on a national legal norm, which has a “quality of law” corresponding to the standards set by the rule of law and whether the norm was not applied arbitrarily.142 In this regard, the ECtHR stresses primarily the need to observe the principle of legal certainty, meaning that the national legal norm governing the admissibility of the deprivation of liberty has to be sufficiently accessible and precise in order to avoid any danger of arbitrariness; an individual subjected to the application of the norm, having regard to the concrete circumstances of the individual case and, as appropriate, resorting to legal assistance, must be able to anticipate which consequences a concrete conduct can have.143 One has to bear in mind that art. 5 ECHR only sets a minimum standard. Stricter requirements of national law have to be observed as otherwise the arrest would not be in accordance with the procedure prescribed by (domestic) law.144 The grounds of arrest exhaustively enumerated in art. 5 (1) ECHR are the following: 55 – The lawful detention after conviction by a competent court (a); – The lawful detention for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law (b); 141

Trechsel, EuGRZ 1980, 515; for more details, see also Jacobs/White/Ovey, ECHR, pp. 122 et seq. See only ECtHR, Judgment of 3rd July 2012, No. 34806/04, “X v. Finland”, RJD 2012-IV, paras 144 et seqq.; ECtHR, Judgment of 10th June 1996, No. 19380/92, “Benham v. United Kingdom”, RJD 1996-III, para. 41. 143 Cf ECtHR (GC), Judgment of 21st October 2013, No. 42750/09, “del Rı´o Prada v. Spain”, RJD-2013VI, paras 123 et seqq.; ECtHR, Judgment of 26th June 2012, No. 33376/07, “Piruzyan v. Armenia”, paras 79 et seqq. 144 See para. 9; HK EMRK-Harrendorf/Ko ¨ nig, art. 5 EMRK para. 93. 142

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– The lawful detention effected for the purpose of bringing a person before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his or her committing an offence or fleeing after having done so (c); – The detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority (d); – The lawful detention for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants (e); – The lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition (f). Of practical relevance is the ground for arrest laid down in art. 5 (1) (c) ECHR, which requires that the court assumes a “reasonable suspicion” of the individual having committed an offence. It will be for the authorities to present evidence to the court demonstrating grounds for such a reasonable suspicion. This evidence should in principle be disclosed to the applicant to enable him to challenge the grounds relied upon.145 The court did, however, clarify, that the prosecution of acts of terror constitutes a “special category”: “Contracting States cannot be asked to establish the reasonableness of the suspicion grounding the arrest of a suspected terrorist by disclosing the confidential sources of supporting information or even facts which would be susceptible of indicating such sources or their identity.”146 57 With regard to preventive detention in Germany (see para. 99) the grounds of arrest listed in art. 5 (1) (a) and (e) ECHR have gained particular importance. The wording of lit. (a) “after conviction” does not necessarily presuppose a close temporal link. The decisive parameter is rather a causal link between the conviction and the deprivation of liberty. The link is, however, weakening corresponding to the passage of time, making it obligatory to justify the decision the more the longer detention lasts. The causal link is entirely lacking if the decision to not release or to (repeatedly) incarcerate an individual is based on reasons not reconcilable with the original conviction. 56

Example: The ECtHR recognised a still sufficient causal link (and consequently negated a violation of art. 5 ECHR) in a case where the individual concerned had been accommodated in a psychiatric hospital on grounds of reduced culpability (§ 21 StGB) and was not released even after it had been established that the alleged reduction of culpability had been falsely diagnosed, but that a personality disorder (not amounting to the level of reduced culpability required by § 21 StGB) was effectively given.147 58

The ground of arrest enshrined in art. 5 (1) (e) ECHR primarily serves to protect the general public. This provision equally played a pivotal role in the context of German preventive detention because it was set out to justify the continued deprivation of liberty even after the BVerfG had established the unconstitutionality of preventive detention as practiced in Germany so far.148 Even though the ECtHR is reluctant to provide an autonomous definition of mental illness due to the progress of psychiatric research, it, however, explicitly names three requirements: Mental illness must firstly be reliably identified, secondly the kind and gravity of the illness must render the deprivation of ECtHR, Judgment of 20th October 2015, No. 5201/11, “Sher et al. v. United Kingdom”, para. 148. ECtHR, Judgment of 20th October 2015, No. 5201/11, “Sher et al. v. United Kingdom”, para. 149. 147 ECtHR, Judgment of 16th May 2013, No. 20084/07, “Radu v. Germany”, EuGRZ 2013, 584 et seqq. 148 On this, see SSW-StPO-Satzger, art. 5 EMRK para. 41. 145 146

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liberty necessary and, thirdly, said deprivation of liberty is only permitted as long as the illness persists.149 Moreover, the individual must be accommodated in a hospital, a clinic or a similarly appropriate institution and expressly not in a correctional facility – as it was generally the case in the German preventive detention system.150 It should be noted that meanwhile German law has been modified to fit the requirements of both, the BVerfG and the ECtHR: The order of preventive detention is now confined to the most severe sexual and violent crimes and preventive detention ordered only subsequently to the execution of the sentence has been essentially abolished.151 In addition, it has been determined by law that preventive detention and custodial sentences must be enforced in a substantially different manner.152 If someone was deprived of his or her liberty without any ground of arrest listed in 59 the catalogue of art. 5 (1), (2) (a)-(c) ECHR being applicable and art. 5 (1) ECHR is thus violated, the obligation to terminate the deprivation of liberty deriving from art. 1 ECHR is stinted to the victim’s release.153 Art. 5 (2) ECHR grants a person who is arrested the right to be informed of the 60 factual and legal grounds “promptly” and in a language he or she understands. Under art. 5 (3) ECHR, an arrested or detained person has the right to be brought 61 before a judge (or comparable officer) promptly – which means a maximum of four days.154 Such a person is entitled to trial within a reasonable time. These rights can be claimed from the time of arrest until the person’s release. If someone is remanded, the trial shall be given a higher priority.155 A detained person may demand to be released if the grounds for detention do not persist. Note that a reasonable suspicion under art. 5 (1) (c) ECHR only suffices for arresting a person but not for continuing the detention. Instead, additional grounds (e. g. danger of flight) are required.156 For delays in the proceedings due to required letters rogatory the respective state may not be blamed. It does, however, have to take proactive measures in order to accelerate the proceedings (e. g. by travels of the court to the relevant country).157 If the person concerned only makes use of his or her procedural rights, the ECHR generally does not attribute this additional proceeding to the state.158 This position is, however, rather hard to vindicate – except for cases of clear abuse of these procedural rights.159 149 So-called “Winterwerp criteria” (cf ECtHR, Judgment of 24th October 1979, No. 6301/73, “Winterwerp v. the Netherlands”; referencing these criteria ECtHR, Judgment of 19th January 2012, No. 21906/09, “Kronfeldner v. Germany”, with further references to case-law). 150 Cf ECtHR, Judgment of 19th January 2012, No. 21906/09, “Kronfeldner v. Germany”. 151 Act on realignment of the law of preventive detention (Gesetz zur Neuordnung des Rechts der Sicherungsverwahrung, Federal Law Gazette [BGBl.] 2010 I, p. 2300) and Act on therapy and accommodation of psycologically disturbed violent criminals (Gesetz zur Therapierung und Unterbringung psychisch gesto¨rter Gewaltta¨ter, Federal Law Gazette [BGBl.] 2010 I, pp. 2300, 2305). 152 Act on the implementation by federal law of the “precept of keeping distance” in the law of preventive detention (Gesetz zur bundesrechtlichen Umsetzung des Abstandsgebots im Recht der Sicherungsverwahrung, Federal Law Gazette [BGBl.] 2012 I, p. 2425). 153 Grabenwarter, JZ 2010, 857, 861. 154 ECtHR, Judgment of 3rd October 2006, No. 543/03, “McKay v. United Kingdom”, RJD 2006-X, para. 47; longer periods of time can only be even considered in exceptional circumstances. 155 See paras 74 et seq. for the duty to ensure a reasonable length of proceedings pursuant to art. 6 ECHR and for losing the status of a victim in these cases due to compensation. 156 ECtHR, Judgment of 12th December 1991, No. 49/1990/240/311, “Clooth v. Belgium”, Series A, 225, para. 48. 157 See ECtHR, Judgment of 6th November 2014, No. 67522/09, “Ereren v. Germany”, para. 62. 158 In this sense e. g. ECtHR, Judgment of 6th November 2014, No. 67522/09, “Ereren v. Germany”, para. 61. 159 On this, see SSW-StPO-Satzger, art. 5 EMRK para. 51 a; Esser, Europa ¨isches Strafverfahrensrecht, pp. 304 et seq.

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Those who are deprived of their liberties may submit their arrest or detention for court decision pursuant to art. 5 (4) ECHR. The court will then decide on such a measure whenever doubt is cast concerning the lawfulness of the measure (e. g. reasons for arrest cease to exist or the arrested/detained person is no longer suspected). A review of remand in custody has to be possible within reasonable time spans and has to be decided upon within a short period of time following the request for review. Should unlawfulness of the deprivation of liberty be determined, the release of the individual must be ordered.160 In addition, the review must meet the requirements of a fair trial pursuant to art. 6 (1) ECHR, due to the severe consequences of the deprivation of liberty.161 The person in custody has the right to a fair trial which involves – if necessary – the right to access the investigation files162 – at least with respect to the parts of the file used to establish reasonable suspicion unless the “special category” of terrorist offences are involved; insofar art. 5 (4) ECHR does not require disclosure of confidential material.163 63 In case 14, the ECtHR examined whether M had been deprived of his liberty in accordance with the procedure prescribed by law and consequently applied German domestic law. The Court thereby followed an approach which is comparable to the caselaw established by German courts. According to German law, a certain lack of form – such as the insufficient description of facts in the present case – may render the arrest warrant defective but not void.164 The courts will only declare a warrant void if the defect blatantly contradicts the StPO. This is because judicial authority must not be jeopardised due to the necessity for legal certainty and because formally incorrect decisions can be remedied.165 A defective arrest warrant could, for example, be redressed by annulling the faulty one or by issuing a new one.166 The ECtHR embodies all circumstances of the case, especially the assessment made by the domestic courts.167 The Court distinguishes between clearly illegal warrants and warrants which are prima facie valid. A warrant is clearly illegal if it suffers from “gross and obvious irregularities”.168 If a defect does not amount to such a gross and obvious irregularity – as in the present case 14 –, it can be remedied by domestic courts.169 64 According to the ECtHR the applicable domestic law conformed to the principles of the ECHR. The well-established German case-law always considers a warrant which only lacks a sufficiently detailed description of the facts to be merely defective but never void. The court’s finding was therefore foreseeable for the applicant.170 65 Lastly, the ECtHR found that M was not arbitrarily deprived of his liberty. Although the arrest warrant lacked a detailed description of the facts, the suspected offence, date and time of its commission, the evidence and the relevant legal provisions were made clear to the applicant. The Court also found that the speed with which the domestic courts remedied the defect had also to be taken into consideration when determining 62

160 ECtHR, Judgment of 7th June 2011, No. 277/05, “S.T.S. v. Netherlands”, RJD 2011-III with further references. 161 Esser/Gaede/Tsambikakis, NStZ 2011, 78, 81. 162 ECtHR, Judgment of 13th February 2001, No. 23541/94, “Garcia Alva v. Germany”, para. 39. 163 ECtHR, Judgment of 20th October 2015, No. 5201/11, “Sher et al. v. United Kingdom”, para. 149. 164 OLG Karlsruhe, NStZ 1986, 134 et seq. 165 BGH, Judgment of 24th January 1984, 1 StR 874/83 = NStZ 1984, 279. 166 OLG Karlsruhe, StV 2001, 118. 167 ECtHR, Judgment of 9th July 2009, No. 11364/03, “Mooren v. Germany”, para. 86. 168 ECtHR, Judgment of 4th March 2008, No. 63154/00, “Marturana v. Italy”, para. 78; ECtHR, Judgment of 9th July 2009, No. 11364/03, “Mooren v. Germany”, para. 75. 169 ECtHR, Judgment of 9th July 2009, No. 11364/03, “Mooren v. Germany”, para. 75. 170 ECtHR, Judgment of 9th July 2009, No. 11364/03, “Mooren v. Germany”, para. 91.

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whether a detention was arbitrary.171 In the present case, the Court noted that the time span of 15 days between the annulment of the rulings of the lower courts by the higher regional court and issuance of a new warrant was short enough.172 However, the Court assumed a violation of art. 5 (4) ECHR in the present case because the insufficient factual basis for the arrest warrant and the denial of access to the files did not ensure “equality of arms” between prosecution and defence.173 Those whose arrests or detentions were illegal under the Convention may claim 66 compensation under art. 5 (5) ECHR – regardless of culpability. f) Right to a Fair Trial – art. 6 (1) and (3) ECHR.

67

Case 15 In 1991 U, a civil servant, was informed about on-going investigations against him concerning tax evasion, fraud and breach of trust. He was suspended and his salary was reduced. Four years later, in 1995, he was convicted to a custodial sentence. Appeal and revision proceedings required another five years. In 2000, U filed a constitutional complaint to the BVerfG claiming the excessive length of the proceedings. The BVerfG rejected his complaint because U had not substantiated his claim adequately. Can U claim a violation of art. 6 (1) ECHR? (see para. 74). Art. 6 ECHR constitutes a right of paramount importance among all the guarantees 68 in the ECHR.174 In 2014 every fourth violation of the convention identified by the ECtHR concerned this provision.175 It provides for a set of minimum standards which ensure that criminal proceedings conform to the principle of the rule of law. Art. 6 (1) ECHR establishes basic requirements for criminal proceedings and guarantees access to courts, art. 6 (2) ECHR contains the vital presumption of innocence in criminal proceedings and para. 3 sets out minimum standards which have to be upheld in criminal proceedings meeting the requirements of the rule of law. As paras 1 and 3, in the final analysis, constitute special manifestations of the right to a fair trial provided for by art. 6 (1) ECHR176 they are commonly – also by the court – pooled when reviewing a case.177 The rights of the accused listed in para. 3 constitute manifestations of the principle of fairness not conclusively enumerated. Where this provision exceeds domestic law guarantees, art. 6 (3) ECHR directly affects the application of domestic law.178 aa) Scope of Protection. Art. 6 (1) and (3) ECHR apply to all kinds of criminal 69 proceedings. The words criminal charge do not restrict the scope of protection to certain advanced stages of a proceeding. Whether art. 6 (1), (3) ECHR apply to a certain proceeding is determined exclusively by an autonomous interpretation of the Convention without regard to domestic law. Contracting Parties shall not elude their obligaECtHR, Judgment of 9th July 2009, No. 11364/03, “Mooren v. Germany”, paras 94 et seq. ECtHR, Judgment of 9th July 2009, No. 11364/03, “Mooren v. Germany”, para. 95. 173 ECtHR, Judgment of 9th July 2009, No. 11364/03, “Mooren v. Germany”, para. 124; cf ECtHR, Judgment of 30th March 1989, No. 10444/83, “Lamy v. Belgium”, Series A, 151, para. 29. 174 Kreicker, in: Sieber et al. (eds), Europ. StR, § 51 para. 14. 175 Cf SSW-StPO-Satzger, art. 6 EMRK para. 1. 176 For a detailed definition of this concept cf Corstens/Pradel, Eur. Criminal Law, pp. 394 et seq. 177 See only ECtHR, Judgment of 17th November 2005, No. 73047/01, “Haas v. Germany”. 178 See OLG Mu ¨ nchen, NStZ 2006, 300 et seq.: art. 6 (3) (b) and (c) ECHR do not allow confiscating documents which the accused has prepared for his defence. BGH, Judgment of 29th November 2006, 1 StR 493/06 = NStZ 2007, 166 concludes that adversarial questioning is guaranteed under art. 6 (3) (d) ECHR. 171 172

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tions by relabelling the domestic procedure. The ECtHR bases its interpretation on the following – alternatively applicable – criteria:179 – The provisions defining the offence belong to criminal law according to domestic law. – The nature of the offence relates to criminal law, i. e. the imposed sanctions have preventive and repressive effects. – The imposed penalty has reached a certain degree of severity, e. g. custodial punishments. In the case of fines, it is difficult to set a specific value that generally amounts to an equally detrimental punishment. Examples: According to the jurisprudence of the ECtHR fines imposed in accordance with the German law on administrative offences meet these requirements as well as administrative fines imposed for tax evasion in Switzerland and penalty points for road traffic offences. Disciplinary proceedings, warnings for violations of professional rules of conduct (e. g. those issued by the bar association), pleas for amnesty and extradition proceedings are not of a criminal law character. Art. 6 (1), (3) ECHR do not apply to measures taken in the course of a court proceeding such as disciplinary fines imposed for contempt of court or challenging a member of the court.180 70

The ECtHR defines “charge” as “the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence”.181 Art. 6 (1) ECHR applies until all appeal proceedings are closed. However, a violation of art. 6 (1) ECHR can only be claimed if the accused is also aggrieved (i. e. in a criminal proceeding usually through conviction). Decisions on applications for interim relief, decisions on the costs of the proceeding, intermediate decisions and decisions on a motion for reopening proceedings after a final judgment do not aggrieve an applicant.182

bb) The Court and the Court Proceeding. According to art. 6 (1) ECHR, all criminal proceedings have to be decided upon by an independent and impartial tribunal established by law.183 This includes the right of access to such a court. The Contracting Parties have to provide an effective system of legal protection. They have to enable individuals to seek legal advice (when necessary free of charge) whereas national legislators enjoy a wide margin of discretion.184 72 The right of access to courts is not absolute but by its nature subject to limitations. Limitations are permitted if they pursue a legitimate goal, if there is a reasonable relationship of proportionality between the means employed and the aim sought to be achieved and if the very essence of the right is not impaired.185 With regard to these conditions, provisions which require mandatory representation in court by a lawyer, time limits, formal requirements or legal expenses which must be paid in advance186 are justified. The right of access to a court was infringed by a provision in French criminal procedure law which required a convicted person to surrender to custody within five 71

179 ECtHR, Judgment of 8th June 1976, Nos. 5100/71; 5101/71; 5102/71; 5354/72 and 5370/72, “Engel et al. v. the Netherlands”, Series A, 22, para. 82; cf also Corstens/Pradel, Eur. Criminal Law, pp. 398 et seq. 180 Peters/Altwicker, EMRK, § 19 para. 19. 181 ECtHR, Judgment of 27th February 1980, No. 6903/75, “Deweer v. Belgium”, Series A, 100, para. 46. 182 Regarding the re-opening of proceedings, cf HK EMRK-Harrendorf/Ko ¨ nig, art. 6 EMRK paras 62 et seqq.; L/R-Esser, art. 6 EMRK para. 100 seqq. 183 See also Corstens/Pradel, Eur. Criminal Law, pp. 403 et seq.; Grabenwarter, ECHR, art. 6 ECHR paras 34 et seqq. 184 See Grabenwarter/Pabel, EMRK, § 24 para. 48. 185 ECtHR, Judgment of 28th May 1985, No. 8225/78, “Ashingdane v. United Kingdom”, Series A, 93, para. 57. 186 On this Esser, Eur. und Int. Strafrecht, § 9 para. 215.

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days if he or she wanted his or her appeal to be admissible. The very essence of the right of access to a court was impaired because France had no legitimate interest in enforcing its judgments before a decision was final.187 Oral proceedings, as well as the pronouncement of the judgment, have to be open to the 73 public. Art. 6 (1) ECHR lists certain legitimate grounds for excluding the press and the public: morals, public order, national security in a democratic society, interests of juveniles, protection of the private life of the parties and the interests of justice. These reasons, however, can never justify the exclusion of the public from the pronouncement of a judgment. Most applications to the Court concern the length of a proceeding. Art. 6 (1) ECHR 74 requires that a court decides within a reasonable time. This makes judicial review more efficient. However, expediting a proceeding may conflict with other guarantees as a multitude of procedural rights may lengthen the whole proceeding.188 A criminal proceeding starts with the (opening of the) investigation (rather than with the indictment) and ends with a final decision by the court of last instance. In case 15, the proceeding against U started when he was notified about on-going investigations.189 Whether the length of the proceedings is reasonable depends on all circumstances of the case. Four criteria are crucial:190 – Relevance for the applicant: Especially cases that may lead to a custodial sentence are of high relevance for the applicant and deserve swift proceedings. – Complexity of the case: A case entailing factual or legal difficulties (e. g. in certain cases of white-collar crime) may require longer proceedings. – Conduct of the parties: A proceeding can be prolonged if the applicant has worked towards its delay. However, an applicant cannot be expected to actively co-operate with the authorities and he does not obstruct a proceeding by making use of all legal remedies.191 – Conduct of the authorities: Failure to act by the authorities may render the length of a proceeding unreasonably long. In case 15, the length of the proceeding (nine years) amounted to a violation of art. 6 (1) ECHR. It did not involve any special factual or legal difficulties. The case was of high relevance for the applicant because he had been suspended and the applicant himself had not obstructed the proceeding in any relevant way.192 The ECtHR has ruled that Contracting Parties have the obligation to set up their 75 judicial systems in a way that the proceedings are conducted in accordance with the ECHR193 and has thereby extended the scope of its judgments beyond finding a violation of an individual right. In Germany, the BGH has assumed that an excessive length of the proceedings can be 76 compensated when determining the sentence.194 However, according to the ECtHR, an individual loses his status as a victim only if the domestic court (1) explicitly acknowledges such a violation and (2) provides for appropriate redress (see para. 23).195 This 187 ECtHR, Judgment of 29th July 1998, No. 43/1997/827/103, “Omar v. France”, RJD 1998-V, paras 34–44. 188 Grabenwarter/Pabel, EMRK, § 24 para. 69; see also Corstens/Pradel, Eur. Criminal Law, pp. 436 et seq. 189 ECtHR, Judgment of 10th February 2005, No. 64387/01, “Uhl v. Germany”, para. 26. 190 ECtHR, Judgment of 29th March 1989, No. 11118/84, “Bock v. Germany”, Series A, 150, para. 38. 191 ECtHR, Judgment of 15th July 1982, No. 8130/78, “Eckle v. Germany”, Series A, 51, para. 82. 192 ECtHR, Judgment of 10th February 2005, No. 64387/01, “Uhl v. Germany”, paras 30 et seq. 193 ECtHR, Judgment of 27th June 1997, No. 19773/92, “Philis v. Greece”, Series A, 209, para. 40; ECtHR, Judgment of 31st May 2001, No. 37591/97, “Metzger v. Germany”, para. 42; ECtHR, Judgment of 15th July 1982, No. 8130/78, “Eckle v. Germany”, Series A, 51, para. 80. 194 Established case-law since BGH, Judgment of 10th November 1971, 2 StR 492/71 = NJW 1972, 402. 195 ECtHR, Judgment of 10th November 2005, No. 65745/01, “Dzelili v. Germany”, para. 103.

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approach fails in two cases: first, those in which the penalty is determined absolutely by statutory law (e. g. life imprisonment as the penalty for murder under § 211 StGB),196 second, cases in which the minimum penalty is appropriate without consideration to the length of the proceedings and any additional mitigation is legally impossible.197 Since the courts are bound by law in these cases, a different solution had to be found:198 Excessively long-lasting proceedings are not remedied by reducing the penalty but by pronouncing in the judgment that a certain part of the sentence shall be regarded as having already been enforced. This (new) approach has the advantage that consequential decisions (e. g. placing the accused on probation, preventive detention, loss of certain rights for civil servants) are not influenced by non-system mitigation of a sentence.199 77 As shown above (see para. 60), art. 5 (3) ECHR also stipulates the right to a reasonable length of the proceedings. While a person is detained, art. 5 and 6 ECHR both apply. After the detainee is released from custody, art. 5 (3) ECHR is no longer applicable.200 A reasonable time under art. 5 (3) ECHR has to meet more stringent requirements. 78

aa) Fair Trial.

Case 16 British citizen B was speeding through London at 69 mph (the applicable speed limit being 40 mph) and was caught by radar. He was notified three days later that the driver of the car with the licence plate number (…) had exceeded the speed limit by 29 mph and that he was the suspected perpetrator. Under sec. 172 (2) Road Traffic Act 1988 he was obliged to provide the name and address of the driver or information that would lead to the driver’s identification. If he did not comply with this obligation, he would be liable to prosecution under sec. 172 (3) Road Traffic Act 1988 and could be sentenced to a fine of up to £ 1,000 and receive between 3 and 6 penalty points. Sec. 172 (4) Road Traffic Act 1988 provided an exception for cases in which the keeper of the car lacked knowledge of the driver’s identity. B filled in the information on the attached form sheet. He was fined £ 100 and 6 penalty points on account of the picture and his testimony. His driver’s licence was confiscated. B unsuccessfully appealed against the use of his confession. Was B’s privilege against self-incrimination pursuant to art. 6 (1) ECHR infringed by the obligation to provide information concerning the identity of the driver? (see para. 82) 79

The scope of the right to a fair trial can only be determined by an overall analysis of rights derived from art. 6 ECHR in the case-law of the ECtHR. This also involves art. 6 (3) ECHR because the guarantees laid down are specific aspects of the right to a fair trial.201 However, art. 6 (3) ECHR contains minimum rights which are not to be treated as mere elements of the overall analysis under art. 6 (1) ECHR whether the trial in its entirety is to be considered fair; rather they are bestowed with independent value as minimum rights. In addition, art. 6 (1) ECHR guarantees that every trial must meet the BVerfG, Decision of 21st June 2006, 2 BvR 750/06 = NStZ 2006, 680; Satzger, JK 2/07, StGB § 46/2. E. g. especially serious arson (§ 306 a (2) StGB) requires a minimum punishment of five years. 198 BGH, Judgment of 17th January 2008, GSSt 1/07 = NJW 2008, 860. 199 Satzger, JK 9/08, StGB § 46/4; Kraatz, Jura 2008, 189 et seq. 200 Do ¨ rr/Grote/Marauhn-Do¨rr, ch. 13 para. 58; ECtHR, Judgment of 29th March 1989, No. 11118/84, “Bock v. Germany”, Series A, 150, para. 38. 201 ECtHR, Judgment of 12th July 2007, No. 503/05, “Kovac v. Croatia”, para. 23. 196 197

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requirements of a fair trial as a whole also apart from that.202 This concept predetermines the Court’s systematic approach: a violation of a procedural right does not automatically result in a violation of the fair trial principle; rather an overall examination of the case is necessary in order to determine whether the proceeding as a whole has to be considered unfair. The fair trial principle pursuant to art. 6 ECHR is linked to the following guarantees: – Equality of arms and the protection against forced self-incrimination (see paras 80 et seq.) – Right to a fair hearing (in court) including all relevant rights to access information and to actively take part in the proceeding (see para. 83) – Right to adversarial proceedings (see para. 85) The first aspect of the fair trial principle is the principle of equality of arms:203 This 80 guarantee not only involves placing the accused on a par with the prosecution but – according to the ECtHR – also granting each party the right to present its case without having to fear any disadvantages compared to the other party. Both sides – prosecution and defence – must have equal opportunities to influence the court’s judgment. They have to be granted equal access to the information relevant for the proceedings. The principle of ex officio investigation may give rise to discrepancies; however, it is crucial that both parties have comparable opportunities to represent their interests.204 An important aspect of the principle of equality of arms is the privilege against selfincrimination (nemo tenetur principle). Everyone has the right to remain silent without having to fear any negative consequences for the proceedings.205 The nemo tenetur principle also means that the prosecution has to prove the accused person’s guilt without using evidence that was obtained by coercion against the will of the accused.206 However, not every use of compulsion aimed at an active self-incrimination violates art. 6 (1) ECHR. The Court makes use of the following criteria in order to determine whether the 81 privilege against self-incrimination is violated:207 – The nature and degree of compulsion used to obtain the evidence – The weight of the public interest in the investigation – The existence of any relevant safeguards in the procedure – The use to which any material so obtained was put These criteria are weighed up by the Court in order to determine whether the nemo tenetur principle was violated. In case 16, the ECtHR considered the compulsion exerted by sec. 172 (2) Road Traffic 82 Act 1988 to incriminate oneself to be of direct nature. Such an obligation was to be accepted because the keeping and driving of motor cars entails an operational hazard for the lives and limbs of others. The hazardous conduct does not in itself suffice for 202

Esser/Gaede/Tsambikakis, NStZ 2011, 148. Cf Safferling, NStZ 2004, 181 et seq.; Jacobs/White/Ovey, ECHR, p. 176. 204 L/R-Esser, art. 6 EMRK paras 202 et seq.; ECtHR, Judgment of 20th April 2010, Nos. 12315/04 and 17605/04, “Laska and Lika v. Albania”, paras 58 et seqq. 205 For an extensive discussion on this matter, see ECtHR (GC), Judgment of 29th June 2007, Nos. 15809/02 and 25624/02, “O’Halloran and Francis v. United Kingdom”, RJD 2007-III, and the dissenting opinions; for a detailed view on the case-law, see Jacobs/White/Ovey, ECHR, pp. 196 et seq.; on this also ECtHR, Judgment of 18th March 2010, No. 13201/05, “Krumpholz v. Austria”, paras 32 et seqq. 206 ECtHR, Judgment of 17th December 1996, No. 19187/91, “Saunders v. United Kingdom”, RJD 1996VI, para. 68. 207 ECtHR (GC), Judgment of 11th July 2006, No. 548/10/00, “Jalloh v. Germany”, RJD 2006-IX, paras 117–121; confirmed in ECtHR (GC), Judgment of 29th June 2007, Nos. 15809/02 and 25624/02, “O’Halloran and Francis v. United Kingdom”, RJD 2007-III, para. 55. 203

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limiting the nemo tenetur principle because its paramount procedural importance would be otherwise lost. But the ECtHR could refer to other aspects: the degree of compulsion was not severe because B faced only a minor penalty for non-compliance. Furthermore, sec. 172 (4) Road Traffic Act 1988 provided for an exception and the use of the form as evidence in court could be appealed (unsuccessfully in the case of B). For the ECtHR, appropriate procedural guarantees had been put in place. Finally, B’s conviction was not only based on the information he gave but also on the picture that was taken. Consequently, the obligation imposed on B did not violate the nemo tenetur principle and the proceeding as a whole was not considered unfair. 83 Second, the fair trial principle involves the right to a fair hearing, to access all relevant information and to actively take part in the proceedings: the accused basically has the right to attend the proceedings, to interact with the court orally and in writing and to effectively defend him- or herself208 (see art. 6 (3) (c) ECHR). The right to an effective defence comprises the possibility of a person charged with a criminal offence to have recourse to legal assistance of his or her own choosing209 from the initial stages of the proceedings, the possibility to appeal against the admissibility of evidence and to object to its use in court.210 Art. 6 (1) ECHR obliges the court to instruct the accused and to respect his or her interests.211 84 According to recent case-law, a fair trial pursuant to art. 6 (1), (3) (c) ECHR not only encompasses the right to be defended by a lawyer chosen by the defendant, but also – in case of absence – a right to representation (cf “through legal assistance of his own choosing”).212 This may – as is the case in Germany – lead to a conflict with the principles of immediacy and orality pertained in national law. 85 Third, the ECtHR derives a right to adversarial proceedings213 from art. 6 (1) ECHR meaning “that both prosecution and defence must be given the opportunity to have knowledge of and to comment on the observations filed and the evidence adduced by the other party”.214 This neither aims at establishing nor prohibiting a certain system of criminal procedure (the Anglo-American adversary system or the Continental inquisitorial system based on ex officio investigation). Art. 6 (3) (d) ECHR grants the right to examine and confront witnesses. The accused is meant to be confronted with the witnesses for the prosecution in order to interrogate them and raise doubts on their credibility.215 For this it is sufficient, that said possibility is granted at any given point during the proceedings. Hence, there is no obligation to grant it during the main trial; the possibility may rather already be given during the investigation proceedings.216 The right to confront the witnesses is, however, not unlimited, but the questions posed by the defendant to the witnesses may be assessed with regard to their admissibility.217 A violation of the right to adversarial proceedings as the most important aspect of the 208

Cf Kreicker, in: Sieber et al. (eds), Europ. StR, § 51 paras 25 et seq. Regarding the necessary limitations of free choice, see ECtHR (GC), Judgment of 20th October 2015, No. 25703/11, “Dvorski v. Croatia”, para. 78 et. seq. 210 ECtHR (GC), Judgment of 1st June 2010, No. 22978/05, “Ga ¨fgen v. Germany”, RJD 2010-IV, para. 98. 211 L/R-Esser, art. 6 EMRK para. 197. 212 Zehetgruber, HRRS 2013, 397, 405. 213 See only Esser, Eur. und Int. Strafrecht, § 9 para. 225; HK EMRK-Harrendorf/Ko ¨ nig, art. 6 EMRK para. 96. 214 ECtHR, Judgment of 12th Marc 2003, No. 46221/99, “O ¨ calan v. Turkey”, para. 166. 215 Dehne-Niemann, HRRS 2010, 191. 216 Cf ECtHR (GC), Judgment of 15 h December 2011, Nos. 26766/05 and 22228/06 “Al-Khawaja and Tahery v. United Kingdom”, RJD-VI 2011, para. 128. 217 ECtHR, Judgment of 8th February 2011, No. 35863/10, “Judge v. United Kingdom”, paras 27 et seqq., where the right to confrontation was limited in cases of sexual abuse. 209

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equality of arms does not per se render the whole proceedings unfair. Therefore, it is not entirely impossible that the testimony of a witness for the prosecution the defendant could never interrogate is introduced into the main trial by way of reading out the respective records of interrogation or questioning the interrogators and that it is then utilised. Thus, the right to adversarial proceedings does not per se totally exclude “testimony by hearsay”, nor other forms of indirect evidence. Even in this context, an overall analysis regarding the fairness of the proceedings as a whole has to be made. In relation to admission as evidence of a statement of a witness who had not been 86 present and questioned at the trial the Court has established a three-step-test in order to decide whether art. 6 (1) and (3) (d) ECHR are violated.218 The Court examines: – Whether there was a good reason for the non-attendance of the witness and, consequently, for the admission of the absent witness’s untested statements as evidence; – Whether the evidence of the absent witness was the sole or decisive basis for the defendant’s conviction and – Whether there were sufficient counterbalancing factors, including strong procedural safeguards, to compensate for the handicaps caused to the defence as a result of the admission of the untested evidence and to ensure that the trial, judged as a whole, was fair. However, the Court stresses that all three steps of the test are interrelated and only taken together serve to establish whether the criminal proceedings as a whole may be considered fair. In a given case, it shall therefore be possible to examine the steps in a different order than the one indicated above.219 Thus, the formerly strictly enforced test becomes less concise and the result is now a lot less predictable. If one wants to put it negatively, the test is in danger of becoming arbitrary; if one wants to take a positive perspective, one could emphasise the possibility of ensuring fairness in the individual case. The latter aspect is alluded to by the Court when it highlights that it is important to give weight to substantial differences in legal systems and procedures, including different approaches to the admissibility of evidence in criminal trials. At the same time the Court stresses that for both common-law and continental-law systems the same standard of review must be applied.220 Regarding the first step of the Court’s test, a good reason of non-attendance is e. g. 87 assumed in cases of factual or legal unattainability of the witness,221 when a witness recourses to his or her right to refuse to give evidence222 or in cases of particular need for protection of a victim of a sex crime.223 In particular, the objectively founded fear of a witness in cases where the threat emanates from the accused himself or may be attributed to him, may be regarded as a good reason for un-attendance. This also applies to anonymous witnesses, especially in the context of threatened confidential informants 218 ECtHR (GC), Judgment of 17th April 2014, No. 9154/10, “Schatschaschwili v. Germany”, para. 107; ECtHR (GC), Judgment of 15th December 2011, Nos. 26766/05 and 22228/06 “Al-Khawaja and Tahery v. United Kingdom”, RJD-VI 2011, paras 119 ff.; earlier case-law of the ECtHR had reversed the order of the second and third step of the test, see LR-Esser, art. 6 EMRK paras 789 et seqq.; SSW-StPO-Satzger, art. 6 EMRK paras 60 et seqq. 219 ECtHR (GC), Judgment of 17th April 2014, No. 9154/10, “Schatschaschwili v. Germany”, para. 118. 220 ECtHR (GC), Judgment of 17th April 2014, No. 9154/10, “Schatschaschwili v. Germany”, para. 108. 221 This is also affirmed in cases where witnesses who have travelled abroad refuse to contribute to the proceedings in any form and where all (numerous) attempts to obtain a testimony with the means of legal assistance, fail, see ECtHR (GC), Judgment of 17th April 2014, No. 9154/10, “Schatschaschwili v. Germany”. 222 ECtHR, Judgment of 26th April 1991, No. 12398/86, “Asch v. Austria”, paras 16, 31. 223 ECtHR, Judgment of 18th October 2001, No. 37225/97, “N.F.B. v. Germany”, RJD 2001-XI.

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of the police in a public trial;224 in these cases, however, the administrative authorities must provide a well-founded and sufficient reasoning for the necessity to maintain the witness’s anonymity.225 Even if a reason of non-attendance commonly accepted as the ones mentioned in the foregoing is present, the exemption of confrontation by way of renouncing an interrogation in court must always be the last resort. Alternative methods that at least to some extent allow for a confrontation – such as e. g. interrogation via video-recording or by a delegated or requested judge – must have priority.226 As a general rule the absence of good reason for the non-attendance of a witness cannot of itself be conclusive of the unfairness of a trial. But nevertheless in the opinion of the Court the lack of a good reason for a prosecution witness’s absence is a “very important factor” to be weighed in the balance when assessing the overall fairness of a trial.227 88 On the second step, the ECtHR investigates, whether the testimony of the unconfronted witness poses the sole or decisive basis for the defendant’s conviction. In its previous case-law, the ECtHR regarded these cases as generally violating the right to confrontation. Only in cases in which the probative value of otherwise obtained evidence outweighed the probative value of the evidence obtained non-confrontationally, the Court accepted that the un-confronted testimony was not decisive for the judgment.228 According to the current, more flexible approach, even a testimony obtained without any confrontation may be the sole or decisive basis for a conviction, without being considered a violation of the right to confrontation, if the third step of the Court’s test has a positive outcome. But also in cases where the “sole or decisive” nature of the testimony can at least be questioned, the test’s third step is of pivotal importance.229 On this third step the Court assesses, whether the deficient or completely absent confrontation was compensated by sufficient counterbalancing factors. The decisive assessment for this entails that the more important that evidence is, the more weight the counterbalancing factors will have to carry in order for the proceedings as a whole to be considered fair.230 Counterbalancing factors can e. g. be a particularly rigorous and restrained evaluation of evidence by the Court231, a subsequent interrogation232, the use of audio-visual methods of interrogation (whereby the ECtHR did sometimes deem purely acoustical transmissions as being not sufficient233). Regarding the use of testimonies of anonymous witnesses, compensation was accepted, when the lawyer of the accused was able to interrogate the witnesses confrontationally without the accused’s presence and was able to damage their credibility without disclosing the witnesses’ identity.234 ECtHR, Judgment of 18th December 2014, No. 14212/10, “Scholer v. Germany”, para. 60. ECtHR, Judgment of 17th November 2005, No. 73047/01, “Haas v. Germany”, with remarks by Esser, NStZ 2007, 106 et seqq. 226 Fundamentally, ECtHR (GC), Judgment of 15th December 2011, Nos. 26766/05 and 22228/06 “AlKhawaja and Tahery v. United Kingdom”, RJD 2011, paras 120 et seq. 227 ECtHR (GC), Judgment of 17th April 2014, No. 9154/10, “Schatschaschwili v. Germany”, para. 113. 228 KK-Scha ¨ dler, art. 6 EMRK para. 60 with further references; Esser, Europa¨isches Strafverfahrensrecht, pp. 647, 674. 229 ECtHR (GC), Judgment of 17th April 2014, No. 9154/10, “Schatschaschwili v. Germany”, para. 116. 230 ECtHR (GC), Judgment of 17th April 2014, No. 9154/10, “Schatschaschwili v. Germany”, para. 116. 231 ECtHR, Judgment of 26th March 1996, No. 20524/92, “Doorson v. the Netherlands”, RJD 1996-II, para. 76; ECtHR, Judgment of 2nd July 2002, No. 34209/96, “S.N. v. Schweden”, RJD 2002-V, para. 53. 232 ECtHR, Judgment of 20th November 1989, No. 11454/85, “Kostovski v. Netherlands”, Series A, 166, para. 41. 233 ECtHR, Judgment of 23rd April 1997, No. 55/1996/674/861-864, “van Mechelen et al. v. Netherlands”. 234 ECtHR (GC), Judgment of 15th December 2011, Nos. 26766/05 and 22228/06 “Al-Khawaja and Tahery v. United Kingdom”, RJD 2011; ECtHR, Judgment of 26th March 1996, No. 20524/92, “Doorson v. the Netherlands”, RJD 1996-II, paras 42, 46, 73. 224 225

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Example:235 89 In a trial before a German criminal court, the main witnesses for the prosecution, which were of foreign origin, had returned to their state of origin directly after their interrogation during the investigation proceedings which had taken place without the accused or his defence lawyer being present. Many attempts were undertaken to convince them to partake in an interrogation with the presence of the accused or his defence lawyer (by offering to conduct the interrogation either in Germany, through video-recordings, through the means of legal assistance etc.). All of these attempts, however, failed due to the witnesses’ fear and the lack of cooperation by the foreign administration. As the testimonies in the main trial had been evaluated especially extensively and carefully and, in particular, had been assessed in the context of other pieces of evidence, the ECtHR denied a violation of the right to confrontation in a first instance Chamber decision.236 A slim majority within the Grand Chamber, however, saw it differently. This was mainly due to the conviction of the majority of the judges that the German prosecution authorities did not give the applicant an opportunity – which he could have been given under the provisions of German law – to have the witnesses questioned at the investigation stage by a lawyer appointed to represent the defendant and that the risk that neither the accused nor his counsel would be able to question the witnesses at any stage of the proceedings was foreseeable. bb) Problem: A Fair Trial and the Use of Agents Provocateurs. Another controver- 90 sial issue with regard to art. 6 (1) ECHR is the use of police officers for provoking criminal acts – especially in the field of drug-related crimes. If someone was instigated by a so-called agent provocateur, the subsequent trial might be considered unfair. In a case in which the accused had not been inclined to commit the crime before, the ECtHR has ruled that the intervention of the police officers and use of their testimonies rendered criminal proceedings unfair “from the outset”237. This suggests that the use of agents provocateurs puts a procedural bar to any criminal proceedings. The ECtHR has recently expressed that all evidence that was obtained by provoking the commission of the offence must result in a prohibition of its use or in proceedings with similar consequences. This clearly demonstrates that the reduction of penalty (solution on sentencing level, so-called Strafzumessungslo¨sung238) that was granted in Germany so far does not satisfy these requirements (neither does the so-called Vollstreckungslo¨sung that was applied alternatively in Germany and according to which a part of the sentence was regarded as already executed).239 Meanwhile, the BGH has changed its case-law240 – also as a consequence of the BVerfG’s decision241 – that, at least in extreme cases, the closure of proceedings is possible. In the relevant case the BGH is committed to taking the ECtHR’s case-law into account by terminating the proceedings; it must, however, be considered that the case at hand was a particularly blatant one (death threat by an agent provocateur). Thus, it remains to be seen whether ECtHR (GC), Judgment of 17th April 2014, No. 9154/10, “Schatschaschwili v. Germany”, paras 140 et seq. ECtHR (GC), Judgment of 17th April 2014, No. 9154/10, “Schatschaschwili v. Germany”. 237 ECtHR, Judgment of 9th June 1998, No. 44/1997/828/1034, “Texeira de Castro v. Portugal”, RJD 1998-IV, para. 39. 238 Fundamentally BGH, Judgment of 23rd May 1984, 1 StR 148/84 = NJW 1984, 2300; on this e. g. Beulke, StPO, para. 288. 239 See only ECtHR, Judgment of 23rd October 2014, No. 54648/09, “Furcht v. Germany”, with analysis by Satzger, JK 6/15, ECHR art. 6 (1), p. 660; cf also Ambos, Int. Strafrecht, § 10 para. 23; Esser/Gaede/ Tsambikakis, NStZ 2011, 140, 142; SSW-StPO-Satzger, art. 6 EMRK paras 76 et seqq. 240 BGH, Judgment of 10th June 2015, 2 StR 97/14 = NJW 2016, 91. 241 BVerfG, Decision of 18th December 2014, 2 BvR 209/14, 2 BvR 240/14, 2 BvR 262/14= NJW 2015, 1083; Satzger JK 6/15, EMRK Art. 6 (1), p. 660. 235 236

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an unlawful provocation of an offence will, in future, generally be considered to pose a final procedural impediment and thus lead to the closure of proceedings or – which is more likely – whether the BGH will instead follow a “graduated solution” depending on the gravity of the human rights violation in the individual case. To recede from the socalled Vollstreckungslo¨sung described above seems long overdue. Nonetheless, the BVerfG’s reluctance to assume a procedural impediment is also understandable when taking into account the generally hard to grasp prerequisites such a procedural impediment bears. In my opinion, the ample assumption of an unwritten ground for exclusion of criminal liability is the most appropriate solution242 that is also in line with the ECHR’s requirements. 91

cc) Fairness and “Plea Bargaining” in Criminal Proceedings. Agreements in criminal proceedings that are addressed in most codes of criminal procedure and that, meanwhile, have also been “ennobled” by German law by way of inclusion of a respective provision in the criminal procedural code (see only § 257 c StPO) are not regarded inadequate by the ECtHR in its first decision on the topic243 that, in a sense, even idealises such agreements. “Plea bargaining” is considered as one of the common features of contemporary European criminal justice systems. The ECtHR maintains that it not only alleviates the workload of prosecuting authorities, accelerates proceedings and is an effective tool in combating corruption and organised crime, but also reduces the number of sentences imposed and, as a result, the number of prisoners.244 The ECtHR acknowledges that the accused waives (or is deprived of) a number of important procedural rights. However, it does not consider this to be questionable as long as the waiver of rights is pronounced in an unequivocal manner and is attended by minimum safeguards; furthermore, the waiver of rights must not run counter to any important public interest.245 In any case, according to the Court, the validity of a respective agreement requires, first, that the accused – before accepting the agreement genuinely voluntarily – is fully aware of the facts of the case and of the legal consequences. Second, the content of the bargain and the fairness of the manner in which it has been reached have to be a possible subject to sufficient judicial review; therefore, the ECtHR places emphasis on the need to draw up a written record of the agreements and the respective negotiations.246 If the Court is not legally bound by the agreement, the ECtHR regards it an indication of the due fairness; the same is true for the possibility for judges to verify (at least by prima facie evidence) whether the accusations are correct, as well as for the possibility to examine the agreement during a public trial.247

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g) Presumption of Innocence – art. 6 (2) ECHR. The presumption of innocence pursuant to art. 6 (2) ECHR only applies to criminal law matters. Prior to the formal determination of guilt by a court, the suspect is protected from prejudgment,248 no matter if in trial or informally in public. This does, of course, not exclude investigative 242 Cf SSW-StPO-Satzger, art. 6 EMRK para. 67; similarly – but restricted to extreme cases – Beulke, StPO, para. 288. 243 ECtHR, Judgment of 29th April 2014, No. 9043/05, “Natsvlishvili and Togonidze v. Georgia”. 244 ECtHR, Judgment of 29th April 2014, No. 9043/05, “Natsvlishvili and Togonidze v. Georgia”, para. 90. 245 ECtHR, Judgment of 29th April 2014, No. 9043/05, “Natsvlishvili and Togonidze v. Georgia”, para. 91. 246 ECtHR, Judgment of 29th April 2014, No. 9043/05, “Natsvlishvili and Togonidze v. Georgia”, paras 92, 94. 247 ECtHR, Judgment of 29th April 2014, No. 9043/05, “Natsvlishvili and Togonidze v. Georgia”, para. 95. 248 Cf Corstens/Pradel, Eur. Criminal Law, pp. 412 et seq.

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measures, as they only take up suspicions and are directed toward the clarification of the accusations.249 The presumption primarily influences the burden of proof. The prosecution has to prove the guilt of the accused and the latter is given the benefit of the doubt (in dubio pro reo). Changes in the onus of proof do not in principle amount to a breach of the Convention. However, Contracting Parties are obliged to take the severity of the crime at stake into account and to maintain the rights of the defence.250 h) No Punishment without Law – art. 7 ECHR.

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Case 17 A is detained in the prison of S. He was convicted several times for severe crimes, last in 1986 for attempted homicide and robbery to a custodial sentence of five years. The court that had found him guilty obtained neurologic and psychiatric opinions and ordered preventive detention after the sentence had been served. At the time of the court’s ruling, preventive detention was limited to a maximum of ten years. This limit was removed in 1998. After A had served his sentence and applied several times for suspending his preventive detention, the LG rejected another request in 2001 and ordered that A was to remain in preventive detention for more than ten years. The OLG confirmed the ruling (on appeal). The BVerfG disallowed a constitutional complaint in 2004. He had claimed that his prolonged detention had retroactive effect and was therefore unconstitutional under art. 103 (2) GG. Does extending the time span for preventive detention violate art. 7 (1) ECHR? (see para. 95) Art. 7 (1) ECHR stipulates the principle of legality (nulla poena sine lege) which 94 protects citizens from arbitrary criminal prosecution, conviction and punishment.251 Furthermore, art. 7 (1) ECHR grants the retroactive application of less severe criminal provisions.252 Derogation from this fundamental substantive guarantee is not permissible – not even in times of war or public emergencies (cf art. 15 (2) ECHR). aa) Scope of Protection. Like the term “criminal charge” in art. 6 ECHR, the term 95 penalty in art. 7 (1) ECHR needs to be interpreted autonomously. The ECtHR considers the following criteria alternatively when determining whether a measure amounts to a “penalty”:253 – Whether the measure in question is imposed following conviction for a “criminal offence” or at least caused by the commission of a criminal offence254 – Nature and purpose of the measure in question – Characterisation under national law

249

Cf also BeckOK-StPO-Valerius, art. 6 EMRK para. 33. ECtHR, Judgment of 7th October 1988, No. 10519/83, “Salabiaku v. France”, Series A, 141-A, para. 28. 251 ECtHR, Judgment of 22nd November 1995, No. 20166/92, “S. W. v. United Kingdom”, Series A, 335-B, paras 34–36; ECtHR, Judgment of 22nd November 1995, No. 48/1994/495/577, “C. R. v. United Kingdom”, Series A, 335-C, paras 32–34; ECtHR, Judgment of 22nd March 2001, Nos. 34044/96, 35532/97 and 44801/98, “Streletz, Kessler and Krenz v. Germany”, RJD 2001-II, para. 50. 252 ECtHR, Judgment of 17th September 2009, No. 10249/02, “Scoppola v. Italy”, para. 109. 253 ECtHR, Judgment of 9th February 1995, No. 17440/90, “Welch v. United Kingdom”, Series A, 307A, para. 28. 254 In ECtHR, Judgment of 9th February 1995, No. 17440/90, “Welch v. United Kingdom”, Series A, 307-A, para. 28, the Court required that a measure be imposed as a consequence of a conviction for a criminal offence. In ECtHR, Judgment of 20th January 2009, No. 75909/01, “Sud Fondi Srl et al. v. Italy”, this criterion was extended. 250

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– Procedures involved in the imposition and implementation of the measure – Severity of the measure. However, the severity cannot be the sole criterion for assuming that a measure constitutes a “penalty” under art. 7 (1) ECHR. Example:255 Italian citizen S is granted a permission by the city of Bari for building a shopping centre near the coast “Punta Perrota”. The permission, however, is void because the development plan is defective. The prospective shopping centre was planned in a landscape preservation area. In Italy, construction without permission is a criminal offence. Although all the requirements of the respective criminal law were met, S was found not guilty due to an inevitable mistake of law. Nevertheless, the court confiscated the building. The confiscation was ordered due to provisions in the Italian Criminal Code; the domestic law considered this to be an administrative measure. The ECtHR classified the confiscation as a penalty pursuant to art. 7 (1) ECHR because it was ordered in the course of a criminal proceeding.256 96

bb) The Necessity for Clarity and Definiteness. The principle of legality requires a clear and definite legal basis for punishment in national or international law. As in art. 9–11 ECHR, the term “law” (French: loi) in art. 7 ECHR refers to written and unwritten law with the latter being relevant primarily in common law legal systems.257 In any case, a person concerned must be able to access the legal provision and foresee a possible punishment.258 The ECtHR accepts certain doubtful points in criminal law provisions as there is always the need for judicial interpretation and for adapting to changing circumstances.259 The following example shows that the standards set by the ECtHR are not particularly strict: Example: S (a UK citizen) was convicted of raping his wife. The applicant claimed that a general principle in common law granted “marital immunity”. This principle was debated in parliament at the time. A few weeks before S was sentenced to prison the Court of Appeal, however, had ruled that this principle no longer existed. There had been no violation of art. 7 ECHR because the court’s decision was only a “perceptible line of case-law development”. The judgment was an “evident evolution” of the criminal law which was in line with “the very essence of the offence” and which was “reasonably foreseeable”.260 The scope of the concepts of foreseeability and accessibility depends to a considerable degree on the content of the instrument in issue, the field it is designed to cover and the number and status of those to whom it is addressed.261 People who are professionally ECtHR, Judgment of 20th January 2009, No. 75909/01, “Sud Fondi Srl et al. v. Italy”. ECtHR, Judgment of 20th January 2009, No. 75909/01, “Sud Fondi Srl et al. v. Italy”, especially para. 115. 257 See ECtHR, Judgment of 17th May 2010, No. 36376/04, “Kononov v. Latvia”, RJD 2010-IV, para. 185; cf also Peters/Altwicker, EMRK, § 23 para. 4. 258 Regarding the range of protected persons in relation to the basis in public international law for the offence of genocide in 1953, see ECtHR (GC), Judgment of 20th October 2015, No. 35343/05, “Vasiliauskas v. Lithuania”. 259 The convictions of those responsible for the shootings at the inner German border after German reunification were in conformity with the Convention, see ECtHR, Judgment of 22nd March 2001, Nos. 34044/96, 35532/97 and 44801/98, “Streletz, Kessler and Krenz v. Germany”, RJD 2001-II, para. 82. 260 ECtHR, Judgment of 22nd November 1995, No. 20166/92, “S. W. v. United Kingdom”, Series A, 335-B, para. 43. 261 ECtHR, Judgment of 28th March 1990, No. 10890/84, “Groppera Radio AG et al. v. Switzerland”, Series A, 173, para. 68. 255 256

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used to exerting a certain degree of caution can be expected to seek legal advice.262 The same standards apply for the foreseeability of legal consequences (see art. 7 (1) ECHR). cc) Prohibition of Analogies. Art. 7 ECHR accepts the necessity for legal interpre- 97 tation and case-law development but prohibits analogies that are detrimental to the accused. Drawing a clear and distinctive line between permissible interpretation and prohibited analogy will remain a difficult task. The ECtHR is, however, rather “generous” in these instances: As long as the progressive development of criminal law through judicial law-making is free of contradictions, does not abandon the core of the offence and thus allows for the development of criminal law to be reasonably foreseeable, the Court does not assume a violation of the prohibition of analogy.263 dd) Prohibition of ex post facto Laws. Finally, art. 7 (1) ECHR also provides that 98 criminal law must not have retroactive effect: the offence must be punishable by law at the time of commission. Criminal laws that retroactively establish an offence or tighten the penalties are contradictory to the Convention. With regard to permissible case-law developments, one has to bear in mind that at the time of the act only the possibility of criminal liability must be foreseeable.264 As art. 7 ECHR constitutes a guarantee in relation to substantive criminal law, this provision does not conflict with a change in procedural law that is detrimental to the offender.265 A Contracting Party may thus extend limitation periods for crimes that were already punishable at the time of the offence – at least in those cases in which a limitation period has not expired.266 In case 17, the ECtHR267 considered the extension of the possible length of preventive 99 detention from a maximum of ten years to a potentially unlimited period of time a violation of the prohibition of ex post facto laws pursuant to art. 7 (1) ECHR. The BVerfG had not regarded preventive detention as a penalty under domestic constitutional law but as a measure of rehabilitation and incapacitation (cf § 61 no. 3 StGB) to which the prohibition of ex post facto laws stipulated in art. 103 (2) GG is not applicable.268 In contrast to penalties, these measures are not applied on account of a person’s guilt but because of the threat they pose to the general public and are thus of a purely preventive nature.269 The ECtHR is not bound by a national interpretation of the prohibition of ex post facto laws. Instead, the Court conducted an autonomous interpretation based on the criteria laid down above: the decision imposing the preventive detention was made by a criminal court subsequent to a criminal proceeding. Moreover, a preventive detention, like a custodial sentence, deprives a detainee of his liberty and both are implemented in similar ways. Persons subjected to preventive detention were – at least at that time – held in ordinary prisons270 and the way of enforcement of preventive detention, neither factually nor legally, differed decisively from how an ordinary custodial sentence is enforced. Furthermore, the purposes of custodial sentence 262 ECtHR, Judgment of 11th November 1996, No. 17862/91, “Cantoni v. France”, RJD 1996-V, para. 35; see Peters/Altwicker, EMRK, § 23 para. 7 for further references. 263 Cf ECtHR, Judgment of 22nd March 2001, Nos. 34044/96, 35532/97 and 44801/98, “Streletz, Kessler and Krenz v. Germany”, RJD 2001-II, para. 50. 264 Grabenwarter, ECHR, art. 7 ECHR para. 5; L/R-Esser, art. 7 EMRK para. 11. 265 L/R-Esser, art. 7 EMRK para. 33. 266 ECtHR, Judgment of 22nd June 2000, Nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, “Coe¨me et al. v. Belgium”, RJD 2000-VII, paras 142 et seq.; on this F. Zimmermann, in: Fahl et al. (eds), FS Beulke, pp. 1091, 1099 et seqq. 267 ECtHR, Judgment of 17th December 2009, No. 19359/04, “M. v. Germany”, RJD 2009-VI. 268 BVerfG, Judgment of 5th February 2004, 2 BvR 2029/01 = NJW 2004, 744. 269 Cf e. g. Kindha ¨ user, LPK-StGB, § 61 para. 1. 270 ECtHR, Judgment of 17th December 2009, No. 19359/04, “M. v. Germany”, RJD 2009-VI, paras 127 et seq.

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and preventive detention partly overlap as both aim at protecting the public from criminals and enabling the detainee to lead a socially responsible life. Although the severity of the measure is not in itself decisive, the Court notes that preventive detention is among the most severe “penalties” under German criminal law because the maximum time limit has been abolished and the detainee’s release depends entirely upon the court’s conviction that he or she will refrain from committing serious offences in the future.271 Consequently, the Court found that preventive detention (in Germany) has to be regarded as a “penalty” under art. 7 (1) ECHR. 100 The laws applicable at the time when A committed the crime limited preventive detention to ten years. Abolishing the limit resulted in a prolonged preventive detention for A and thereby imposed an additional penalty under art. 7 (1) ECHR, which not only involved changing the modalities of the execution of preventive detention (as the German government had claimed).272 Consequently, the German courts had violated art. 7 (1) ECHR by subsequently prolonging the time period for A’s preventive detention. The prolongation amounted to punishment ex post facto because A had been ordered to stay in detention after he had served the maximum period of time set by the law at the time of committal.273 101 Art. 7 (1) ECHR contains an express reference to “international law”. This means that domestic criminal law can be applied retroactively if an act was punishable under international criminal law (see § 10 paras 5 et seq.) at the time of the offence.274 Art. 7 (2) ECHR had been drafted with regard to the proceedings held before the International Military Tribunal at Nuremberg. It is now a redundant provision.275 102 Compared to the principle of legality276 in Germany and other states, art. 7 ECHR does not prohibit customary criminal law provisions and its foreseeability test sets lower standards. These differences are a consequence of including international and unwritten law as permissible legal basis for criminal laws. 103

i) Right to Respect for Private and Family Life – art. 8 ECHR.

Case 18 K was a Russian citizen living in Krasnojarsk. In September 2000, he commissioned assassin V to murder his business partner G. V did not carry out his assignment but went to the Russian secret service FSB instead and handed over the gun he had received from K. The prosecution opened a preliminary investigation on 21st September 2000. On 29th September 2000, the police staged an “operative experiment”: They acted as if they had found a corpse in G’s house and told the media that it was the assassinated G. As instructed by the police, V visited K on 3rd October 2000 and told him that he had executed his task. V carried a hidden device, which recorded the conversation with K and transmitted it to the police. K was arrested on 4th October 2000 and found guilty for conspiracy to murder on 19th June 2002. The audiotaped conversation had served inter alia as evidence in the proceeding against K. Was the use of the audiotape a violation of art. 8 ECHR? (see para. 106) ECtHR, Judgment of 17th December 2009, No. 19359/04, “M. v. Germany”, RJD 2009-VI, para. 132. ECtHR, Judgment of 17th December 2009, No. 19359/04, “M. v. Germany”, RJD 2009-VI, para. 135. 273 ECtHR, Judgment of 17th December 2009, No. 19359/04, “M. v. Germany”, RJD 2009-VI, para. 123; for further information about the decision, the violation of art. 5 ECHR and the reception by German courts, see Po¨sl/Du¨rr, EuCLR 2 (2012), 158 et seqq. 274 Grabenwarter, ECHR, art. 7 ECHR para. 8; Corstens/Pradel, Eur. Criminal Law, p. 360. 275 Grabenwarter/Pabel, EMRK, § 24 para. 140; Heringa/Zwaak, in: van Dijk et al. (eds), Theory and Practice of the European Convention on Human Rights, pp. 660 et seqq. 276 Found in art. 103 (2) GG and § 1 StGB. 271 272

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Art. 8 (1) ECHR comprises four different guarantees. The provision protects private 104 and family life, home and correspondence. Art. 8 (2) ECHR does not stop at prohibiting state interference with these guarantees but obliges the Contracting Parties to take active measures in order to ensure that they be respected.277 So far, the ECtHR has not conclusively defined the term “private life” in art. 8 (1) ECHR. In any case, the Court considers an interpretative approach which limits the term to an “inner circle”, in which a person may live his or her own life as too restrictive. Private life also implies – in the opinion of the Court – establishing and developing relations with other human beings at least to a certain degree. The Court also does not see a reason for excluding professional or business activities.278 Regarding the notion of family, the Court draws upon a bond that de facto amounts to family life. Indications for such a bond include e. g. shared living space, nature and duration of the relationship as well as interest and bonds between the individuals concerned; entering into marriage is, however, not necessary.279 An encroachment of art. 8 (1) ECHR can only be justified if the requirements of 105 art. 8 (2) ECHR are met. Any encroachment must have a legal basis and there must be a measure for legal protection against violations of these rights.280 For example, in those cases in which the law allows interception of communication, the law must state sufficiently clearly under what circumstances the authorities may resort to these respective measures.281 The Court notes that a law “which confers discretion must indicate the scope of that discretion”. Otherwise, the encroachment cannot be considered as “in accordance with the law” in the sense of art. 8 (2) ECHR.282 Sentencing that encroaches on the right enshrined in art. 8 ECHR must be justified. The penalisation must be necessary in a democratic society. Where a particularly important facet of an individual’s existence or identity is at stake, the margin of appreciation accorded to the Member States for determining such necessity is rather small. In these cases, the encroachment on the right enshrined in art. 8 ECHR can only be justified by particularly serious reasons. Where, however, there is no European consensus as to the relevance of the interest at stake and as to the best means of protecting it, the Court accords a wider margin of appreciation to the Member States. This is especially the case where moral or ethical issues are being assessed, as the national authorities are considered to be in a better position to determine these issues. An example of such issues is the penalisation of incestuous relationships between siblings.283 In case 18, the Court considered the “operative experiment” an infringement of K’s 106 right to respect in his private life. His right was infringed by the police who had initiated 277 ECtHR, Judgment of 12th January 2016, No. 61496/08, “Barbulescu v. Romania”, para. 53. Regarding the positive obligations of the Contracting States as a consequence of the ECHR being a “constitutional instrument” see para. 24. 278 ECtHR, Judgment of 16th December 1992, No. 13710/88, “Niemietz v. Germany”, Series A, 251-B, para. 29. 279 ECtHR (GC), Judgment of 13th July 2000, No. 25735/94, “Elsholz v. Germany”, RJD 2000-VIII, para. 43; ECtHR (GC), Judgment of 12th July 2001, No. 25702/94, “K. and T. v. Finland”, RJD 2001-VII, para. 150; Grabenwarter/Pabel, EMRK, § 22 para. 16 et seqq. with further references. Since recently, the ECtHR also subsumes same-sex couples under the term “family” and not anymore only under “private life”, see ECtHR, Judgment of 24th June 2010, No. 30141/04, “Schalk and Kopf v. Austria”, paras 94 et seq. 280 HK EMRK-Nettesheim, art. 8 EMRK paras 1, 3 et seq. 281 ECtHR, Judgment of 2nd August 1984, No. 8691/79, “Malone v. United Kingdom”,Series A, 82, para. 67; on the subject of restrictions on rights under art. 8, see also Corstens/Pradel, Eur. Criminal Law, pp. 449 et seq. 282 ECtHR, Judgment of 10th March 2009, No. 4378/02, “Bykov v. Russia”, para. 78. 283 ECtHR, Judgment of 12th April 2012, No. 43547/08 “Stu ¨ bing v. Germany”, paras 59 et seqq.

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the eavesdropping on him – even if the conversation was led by V instead of a police officer.284 The Court found that such an “operative experiment” did not meet the requirements as laid down above. Neither was such a measure subject to any conditions nor were the scope or the exercise of said “experiment” defined by the law. The Court considered the use of such a measure “open to arbitrariness” due to absence of adequate safeguards.285 Therefore, the measure violated art. 8 (1) ECHR. 107

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j) Right to Appeal in Criminal Matters – art. 2 (1) Additional Protocol No. 7. Ratification of Additional Protocol No. 7 is optional. Art. 2 (1) of this protocol does not call for a completely new trial but requires at least an appeal on legal issues and the competence of referring the matter back to a court of lower instance; art. 2 (1) Additional Protocol No. 7 exceeds the guarantees of art. 6 (1) ECHR.286 k) Ne bis in idem.

Case 19 G had caused a car accident in Austria in which a cyclist had been killed. G was convicted for negligent homicide while a conviction for driving while intoxicated was not possible since his blood alcohol content (BAC) was found to have been less than 0.8 %. A few months later, a new expertise showed that his BAC had in fact been 0.95 %. The competent administrative district authority issued a penalty statement imposing a regulatory fine for driving under the influence of alcohol. Was the penalty statement in conformity with art. 4 (1) Additional Protocol No. 7? (see para. 111) The prohibition of dual punishment pursuant to Additional Protocol No. 7 has almost exactly the same wording as the corresponding provisions of the ICCPR287 and similar provisions from national constitutions like art. 103 (3) GG. As with these provisions, art. 4 (1) Additional Protocol No. 7 only applies to dual punishment within the jurisdiction of a Contracting Party and not between Contracting Parties (unlike art. 54 CISA – see § 8 paras 77 et seqq.). It does not even require the taking into consideration of a penalty imposed in another Contracting Party. 110 The prohibition of double punishment is effective the moment a decision concerning the offence becomes final. When this is the case is not determined by the ECHR or the Additional Protocol, but depends on domestic procedural law. The scope of this prohibition depends mainly on how the term “offence” is defined. In a second proceeding, the court will have to determine whether the same offence has already been subject to a previous judgment. At least two approaches are possible (see also § 8 para. 79): the court could either examine whether the previous judgment was based on the same penal provisions as the second judgment would be (idem crimen) or on the same conduct (idem factum). 111 In case 19, the ECtHR followed the second approach by examining whether both judgments were based on the same conduct. Consequently, the Court considered the penalty statement a violation of art. 4 (1) Additional Protocol No. 7.288 In the meantime, the Court has changed its interpretation.289 Now, the Court inspects whether the second judgment is based on the same conduct (idem factum-element) and the same penal 109

Cf ECtHR, Judgment of 8th April 2003, No. 39339/98, “M.M. v. the Netherlands”. ECtHR, Judgment of 10th March 2009, No. 4378/02, “Bykov v. Russia”, paras 80 et seq. 286 Peters/Altwicker, EMRK, § 24 paras 3 et seqq.; HK EMRK-Harrendorf/Ko ¨ nig, art. 2 ZP 7 para. 3. 287 International Covenant on Civil and Political Rights. 288 ECtHR, Judgment of 23rd October 1995, No. 15527/89, “Gradinger v. Austria”, Series A, 328-C, para. 55. 289 ECtHR, Judgment of 30th July 1998, No. 84/1997/868/1080, “Oliveira v. Switzerland”, RJD 1998-V, paras 22–29. 284 285

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provisions or different provisions having the same essential elements (idem crimenelement).290 If a single act constitutes various offences, art. 4 (1) Additional Protocol No. 7 does not apply (e. g. causing negligent bodily harm and failure to control a vehicle due to inadequate speed291). In case 19, the two offences in question (negligent homicide and drunken driving) do not have the same essential elements. According to the new approach of the Court, art. 4 (1) Additional Protocol No. 7 is not violated. l) Limitations on Use of Restrictions of Rights/Prevention of the Misuse of Power – 112 art. 18 ECHR. Until recently, art. 18 ECHR was only considered of importance as a barrier for encroachments on defensive rights. According to the provision, restrictions on the rights under the Convention are only permitted for the purposes for which they have been prescribed. If interpreted this way, the provision would, however, largely be void, as the principle of proportionality which always demands a legitimate goal is itself acknowledged by the ECHR.292 Art. 18 does, however, have an autonomous meaning beyond this understanding, 113 which was recognised only recently (at least to some extent), particularly in the prominent cases of Khodorkovskiy in Russia and Tymoshenko in Ukraine. The aim of art. 18 ECHR has to be the prevention of misuse of power. Encroachments on human rights, which, from a purely formal point of view, may be considered as still being in line with the requirements of the Convention, are inadmissible when, in substance, their aim is to achieve goals contrary to the Convention such as, in particular, purely political goals as e. g. the combatting of political adversaries or the opposition’s oppression.293 A conviction due to a violation of art. 18 ECHR, which is, however, only possible in 114 addition to the assessment of violation of other ECHR guarantees,294 insofar expresses that the state did not only accidentally and exceptionally violate the convention (as it is usually the case), but that it rather intentionally defied elementary principles of pluralistic and democratic societies. A conviction based (inter alia) on art. 18 ECHR therefore has an inherently stigmatising effect as is demonstrates an intentional and systematic misuse of power in the respective state.295

4. Procedural Law and Organs of the ECHR a) The ECtHR and its Role as an Organ. The European Court of Human Rights is an 115 organ of the Convention rather than of the Council of Europe (see para. 5). Before Additional Protocol No. 11 had entered into force on 1st November 1998, it was the responsibility of the Committee of Ministers and the European Commission of Human Rights to monitor whether the Contracting Parties complied with the Convention. As of today, the ECtHR is a full-time court296 and formally independent of the Council of Europe.297 Nevertheless, ties between the two exist: the 47 judges (one for each Contracting Party) are elected by the 290 ECtHR, Judgment of 29th May 2001, No. 37950/97, “Fischer v. Austria”, paras 24 et seq.; ECtHR, Judgment of 6th June 2002, No. 38237/97, “Sailer v. Austria”, para. 25. 291 ECtHR, Judgment of 30th July 1998, No. 84/1997/868/1080, “Oliveira v. Switzerland”, RJD 1998-V, paras 22–29. 292 See also ECtHR, Judgment of 3rd July 2012, No. 6492/11, “Lutsenko v. Ukraine”, para. 62. 293 See Satzger/Zimmermann/Eibach, EuCLR 4 (2014), 91 et seqq.; SSW-StPO-Satzger, art. 18 EMRK para. 6; see also Eibach, EuCLR 6 (2016), 321, 324 et seqq. 294 ECtHR, Judgment of 19th May 2004, No. 70276/01, “Gusinskiy v. Russland”, RJD 2004-IV, para. 73. 295 Extensively, Satzger/Zimmermann/Eibach, EuCLR 4 (2014), 91 et seqq., 248 et seqq.; regarding the corresponding stance in jurisprudence, see ECtHR, Judgment of 30th April 2013, No. 49872/11, “Tymoshenko v. Ukraine” (concurring opinion), paras 65, 67. 296 L/R-Esser, Einfu ¨ hrung EMRK para. 45. 297 Cf HK EMRK-Nettesheim, Einleitung paras 9 et seq. for legal remedies before 1st November 1998.

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Parliamentary Assembly of the Council of Europe pursuant to art. 22 ECHR.298 The Committee of Ministers monitors the enforcements of the Court’s judgments (see art. 46 (2) ECHR)299 and the expenditure of the Court is borne by the Council of Europe (art. 50 ECHR).300 116 After the entry into force of Additional Protocol No. 14,301 which aims at improving working procedures at the Court besides enabling a membership of the EU, the ECtHR302 sits in single-judge-formation, Committees of three, Chambers of seven and the Grand Chamber of seventeen judges. According to art. 27 (1) ECHR, a single judge first decides on an individual application pursuant to art. 34 ECHR and under art. 49 of the Rules of Court may declare an application inadmissible. If he or she considers it admissible, the application is forwarded to a Committee or a Chamber pursuant to art. 27 (3) ECHR. The Committees may decide on the admissibility of individual applications by unanimous vote and also on the merits if the underlying question is already the subject of well-established case-law of the Court (art. 28 ECHR). Otherwise, it is the Chambers and the Grand Chamber that rule on admissibility and merits of individual applications and inter-state cases (art. 29 ECHR). The Grand Chamber decides on applications under art. 31 (a) ECHR if a Chamber has relinquished its jurisdiction (due to a serious question concerning the interpretation of the Convention pursuant to art. 30 ECHR303) or if a case is referred pursuant to art. 43 ECHR. The Grand Chamber may also give advisory opinions under art. 31 (b), 47 ECHR. b) Individual Applications and Inter-State Cases. Individual applications are by far the most frequent proceedings before the Court. Since the implementation of Additional Protocol No. 11, every individual can apply to the ECtHR after all domestic remedies have been unsuccessfully exhausted within a term of currently still304 six months after the final national decision has been passed. Pursuant to art. 34 ECHR, the applicant must claim to be the victim of a violation of the rights set forth in the Convention or the protocols thereto by an act or omission of a Contracting Party. The Court is not confined in its judgment to the violations claimed by the applicant but may examine the case comprehensively.305 118 The Court may indicate to the parties any interim measures pursuant to art. 39 Rules of Court if there is a danger of irreversible damages. In practice, these measures are limited to cases involving alleged violations of art. 2 (right to life), art. 3 (prohibition of torture), and art. 8 ECHR (right to respect for private and family life) and most of them concern the extradition of aliens.306 It is disputed whether these indications are legally binding. Although it was the prevailing opinion in the past that the indications lacked legally binding force, Contracting Parties generally complied with them. Today, nonadherence to indications is generally considered a violation of art. 34 ECHR. 119 The Contracting Parties may also submit so-called inter-state applications and claim a violation of the Convention by another Contracting Party. While the number of 117

298 Regarding the possibility of an “EU-judge” and the participation of a delegation of the European Parliament in the sessions of the Parliamentary Assembly following the EU’s accession to the ECHR, see Mader, AVR 2011, 435, 446 et seq., as well as Obwexer, EuR 2012, 115, 138 et seq. 299 On further tasks of the Committee of Ministers as well as the consequences of the EU’s accession, see Obwexer, EuR 2012, 115, 139 et seqq.; Mader, AVR 2011, 435, 443, 447. 300 L/R-Esser, Einfu ¨ hrung EMRK para. 43. 301 See paras 7, 15. 302 See in detail Meyer-Ladewig/Petzold, NJW 2009, 3752 et seq. 303 HK EMRK-von Raumer, Einleitung para. 46. 304 This term is reduced to four months by art. 4 of Protocol No. 15 amending the ECHR which has already been ratified by Germany (however, for the Protocol’s entry into force the ratification of all Contracting Parties is necessary). 305 HK EMRK-Nettesheim, Einleitung para. 32; on the possible consequences of the EU’s accession to the ECHR, see Mader, AVR 2011, 435, 437 et seqq. 306 HK EMRK-von Raumer, Einleitung para. 58.

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individual applications rose from 138 in 1955 to 56,250 in 2014307 (which will lead to a lasting overload for the Court), inter-state applications only play a minor role. They gain importance if controversial political issues are at stake (e. g. Turkey v. Greece regarding Cyprus or the United Kingdom v. Ireland regarding of Northern Ireland).308 c) Judgment. The judgments rendered by the ECtHR are of declaratory nature. The 120 Court does or does not find a violation of the Convention but cannot repeal or reverse a judgment of a domestic court.309 The judgments also do not have an erga omnes effect. They are legally binding only for the parties of the case. Pursuant to art. 46 (1) ECHR, the Contracting Parties have committed themselves to abiding by final judgments of the Court.310 The Court itself does not have the ability to provide direct protection for individuals,311 but under art. 41 ECHR the Court may award just satisfaction to the injured party if it has found a violation of the Convention and if full reparation is not possible under domestic law. In this respect, the Court may grant affirmative relief.312 d) Effect. According to art. 46 (1) ECHR, Contracting Parties have to abide by the 121 judgments rendered by the ECtHR. From the perspective of international law, provisions of domestic law, administrative acts and court decision have to be annulled if they do not comply with the guarantees laid down by the Convention. This obligation is imposed on the Contracting Party under international law and does not have direct effect on the authorities, courts and other state organs. It is left to the Contracting Parties as to how they fulfil this obligation in their national legal order.313 Since the ECHR enjoys the rank of ordinary statutory law in Germany (see para. 13), the judgments of the ECtHR, which is established under the Convention, do not – according to the interpretation of the Convention by German courts – automatically influence the interpretation of other ordinary statutory law decisively. German courts formerly assumed that they were not bound by decisions rendered by the ECtHR at all when interpreting the Convention and the fundamental rights of the German Constitution. In this regard, the ECtHR jurisprudence only played a supporting role.314 The BVerfG has rejected this view and sustained the influence of ECtHR case-law. It 122 has acknowledged that the decisions rendered by the Court reflect the current scope of the rights guaranteed by the ECHR and that all state organs are legally bound to avoid any violation and to establish a legal status which conforms to the Convention.315 A domestic court might already violate the principle of the rule of law and fundamental rights of the GG if it does not consider a decision rendered by the ECtHR. Law-makers also must verify whether a judgment calls for adjustments in statutory law.316 Consequently, all public authorities in Germany are obliged to observe the judgments rendered by the ECtHR.317 However, it remains possible for German courts not to abide by ECtHR judgments if this were to result in setting aside core principles of the Constitution.318 307 The statistical information is available under http://www.echr.coe.int/Pages/home.aspx?p=re ports&c=#n1347956767899_pointer (last visited July 2017). 308 HK EMRK-Kulick, art. 33 EMRK para. 3. 309 Glauben, DRiZ 2004, 129; HK EMRK-Nettesheim, Einleitung para. 27, art. 46 para. 23. 310 HK EMRK-von Raumer, Einleitung para. 55. 311 Glauben, DRiZ 2004, 130. 312 Meyer-Ladewig/Petzold, NJW 2005, 16. 313 ECtHR, Judgment of 31st October 1995, No. 14556/89, “Papamichalopoulos et al. v. Greece”, Series A, 330-B, para. 34; Corstens/Pradel, Eur. Criminal Law, pp. 308, 309. 314 Glauben, DRiZ 2004, 131. 315 BVerfG, Decision of 14th October 2004, 2 BvR 1481/04 = NJW 2004, 3407, 3423 et seq. 316 BVerfG, Decision of 14th October 2004, 2 BvR 1481/04 = NJW 2004, 3407, 3425. 317 Meyer-Ladewig/Petzold, NJW 2005, 17. 318 Grabenwarter, EMRK, 4th edn, § 16 para. 8.

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Since 1998, criminal proceedings in Germany can be reopened under § 359 no. 6 StPO if the ECtHR has found that the final judgment was rendered in violation of the Convention. However, this only applies to a convicted person who has successfully filed an application to the ECtHR and not to other similar cases.

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D. INTERNATIONAL CRIMINAL LAW * § 10 General Introduction to International Criminal Law Contents I. II. III. IV.

Definition of International Criminal Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 The Enforcement of International Criminal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 International Criminal Law and the Law of State Responsibility . . . . . . . . . . . . 10 Treaty Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

I. Definition of International Criminal Law The comparatively young field of International Criminal Law combines elements of 1 public international law and criminal law. It is considered criminal law as it penalises individual conduct as well as forming part of public international law as its sources of law are based on public international law. Therefore, International Criminal Law can be called the “criminal law of the international community”. International Criminal Law encompasses all legal provisions prescribing individual criminal responsibility under public international law.1 The content and range of International Criminal Law is therefore solely shaped by public international law.2 Despite its strong link to public international law, the term International Criminal Law does not comprise the responsibility of states in their traditional function as subjects of international law,3 but solely the criminal responsibility of individuals. Being part of public international law, the provisions of International Criminal Law can be applied by international criminal courts and tribunals. Generally, national criminal courts cannot directly apply International Criminal Law without the respective national legal order prescribing its immediate applicability. International Criminal Law – like criminal law in general – should be understood as 2 serving the purpose of protecting essential legal interests.4 Therefore, the legitimacy of International Criminal Law is based on the existence of certain legal interests attributed to the international community as a whole. In order to guarantee an efficient and appropriate protection of these supranational legal interests, the prosecution of cases of their violation cannot solely be left to national legal systems, but must also – sometimes * The case-law, legislative acts and other documents quoted in this textbook can be accessed over the internet on the website http://www.satzger-international.info/. 1 Triffterer, in: Go ¨ ssel/Triffterer (eds), GS Zipf, p. 500. 2 Eisele, JA 2000, 424; sometimes national legal norms can (subsequently) also be taken into account (cf art. 21 (1) (c) ICCSt) and can provide for the punishment of international crimes, see § 12 paras 26 et seqq. 3 Cf Safferling, Int. StrafR, § 4 para. 1. 4 In German legal terminology: “Rechtsgu ¨ ter”; see e. g. Ambos, Int. Strafrecht, § 5 para. 3; Werle/ Jeßberger, Principles of International Criminal Law, paras 88 et seq.; but also Bassiouni, Introduction, pp. 31 et seqq. The term “legal interest”, however, is not common in other legal systems, especially the Anglo-American system, cf Bantekas/Nash, Int. Criminal Law, p. 6. Similar terms are used by Cassese, Int. Criminal Law, p. 11 (“values of the whole international community”).

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even primarily – be guaranteed by international institutions applying international law. The idea of prosecuting crimes on an international level gained importance especially in relation to criminal acts of a political nature with an open or hidden participation of state authorities. In these cases, there is an imminent risk that the state concerned will not fulfil its duty of prosecuting the crime because of its own political agenda, thereby demanding the international community to guarantee the protection of its legal interests itself. Substantive International Criminal Law in particular refers to so-called macrodelinquency,5 which can be defined as criminal conduct that conforms to a political system, larger organisational structures of political power or other collective systems.6 3 In light of the diversity of legal interests protected by national legal systems, the identification of fundamental global values to be protected by International Criminal Law is not to be based on the consultation of selected cultural regions, even if they might be dominating international politics.7 International Criminal Law is therefore restricted to criminal provisions protecting minimum standards that are accepted and valued worldwide (so-called core crimes). The first cornerstone in formulating these crimes was laid by the International Military Tribunal (IMT) in Nuremberg prosecuting those mainly responsible for the following crimes committed under the German National Socialist regime: – War crimes, – Crimes against humanity, – Crimes against peace. These crimes are considered crimes of the utmost gravity. Although there is a general consensus that the commission of those core crimes is criminalised under international law, their individual prerequisites are often highly disputed. For instance, no agreement could be reached on the content of the definition of crimes against peace (aggression) at the Rome Conference in 1998, where the Statute of a permanent International Criminal Court (Rome Statue8), a major achievement for modern International Criminal Law, was negotiated. Following lengthy discussions, the definition of the crime was comprised at the revision conference in Kampala (31st May 2010 until 11th June 2010) by the Assembly of States Parties. Since 2nd January 2017 the definition could realistically become judiciable, which still requires a resolution to be adopted by the Assembly of States Parties (see § 14 paras 80 et seq.). With the adoption of the UN Genocide convention in 1948,9 the crime of genocide – originally (especially during the IMT trials) regarded as being a crime against humanity – was recognised as an independent international crime, being often referred to as the “crime of crimes”.10 4 According to para. 3 of the preamble of the Rome Statute, International Criminal Law is created to protect “peace, security and well-being of the world” as the most important legal interests attributed to the international community.11 The individual core crimes constitute different types of violations of these international legal interests: 5

Werle/Jeßberger, Vo¨lkerstrafrecht, para. 92. See Ja¨ger, in: Lu¨derssen (ed.), Kriminalpolitik III, pp. 122 et seq. 7 Ambos/Steiner, JuS 2001, 9, 10; using the example of conspiracy: Cassese, Int. Criminal Law, p. 201. 8 See the publication in the Federal Law Gazette (BGBl.) 2000 II, pp. 1394 et seq. (also in English and French as the authentic languages). 9 UN General Assembly Resolution 3/260. 10 ICTR, Prosecutor v. Kambanda, Judgment and Sentence, ICTR-97-23-S, 4th September 1998, para. 16; ICTR, Prosecutor v. Serushago, Sentence, ICTR-98-39-S, 5th February 1999, para. 15. 11 As well as collective legal interests, individual legal interests may also be protected by International Criminal Law, as argued by Ambos, Int. Strafrecht, § 5 para. 3; too restrictive Safferling, Int. Strafrecht, § 4 para. 65 et seq., arguing in favour of protection only extending to collective, supranational legal interests. 6

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genocide is imminently directed against world peace, by the wilful destruction of a protected group;12 crimes against humanity are a threat for peace, security and the wellbeing of the world through systematic and numerous violations of basic human rights of the civil population; war crimes endanger peace through an escalation of violence and the impact of armed conflicts on the civil population.13 According to the principles of International Criminal Law, an individual can be 5 punished for his or her individual conduct if this conduct is criminalised under welldefined written or unwritten norms of international law. In this respect, all sources of law of public international law mentioned in art. 38 (1) of the ICJ Statute14 can be taken into account.15 These are in particular: – International treaties, i. e. agreements between states or other international legal subjects based on corresponding declarations of intention governed by public international law, – Customary international law, forming the “evidence of a general practice accepted as law” (art. 38 (1) no. 2 of the ICJ Statute),16 – General principles of law (recognised by civilised nations), which are principles recognised by and utilised in (a large number of) national legal systems. From a domestic view on criminal law, the justification of individual criminal liability 6 on the basis of customary law may appear rather questionable. Most national legal systems demand a written law (lex scripta) as the exclusive basis for criminal punishment, which is a consequence of the principle of legality, guaranteed in most national constitutions. However, International Criminal Law is fundamentally different with regard to the requirement of a written law forming the basis of criminal punishment; the evolution of this field of criminal law could simply not be imagined without the application of customary law, essentially limiting the scope of the principle of legality on the international level (see also § 12 paras 26 et seqq.).

II. The Enforcement of International Criminal Law Generally, International Criminal Law can be enforced in different ways. Two main 7 separate models can be identified: the “Indirect Enforcement Model” and the “Direct Enforcement Model”.17 The Indirect Enforcement Model is applied when International Criminal Law is 8 enforced by national authorities.18 Following this model, criminal proceedings and convictions are based on national criminal provisions that were introduced by national legislators with the purpose to cover the specific legal wrong of international crimes (e. g. the German Code of Crimes against International Law [VStGB]19, which entered into force in 2002, see more in detail § 12 para. 31). The disadvantage of the Indirect 12

MK-Kreß, § 6 VStGB paras 4 et seq. On the peace-restoring function of International Criminal Law, see Safferling, Politische Studien, pp. 82 et seqq. 14 Published in the Federal Law Gazette (BGBl.) 1973 II, p. 505 (also in English and French as the authentic languages). 15 Cf Eisele, JA 2000, 424; Engelhart, Jura 2004, 734, 735; Damgaard, Individual Criminal Responsibility, p. 30; Cryer/Friman/Robinson/Wilmshurst, International Criminal Law, p. 6. It is generally acknowledged that International Criminal Law should take advantage of the sources of international law, cf ICTY, Prosecutor v. Kupresˇkic´ et al., Judgment, IT-95-16-T, 14th January 2000, paras 539 et seq. 16 Cf Schweitzer, Staatsrecht III, paras 109, 236, 258. 17 Cf Bassiouni, Introduction, pp. 333 et seq., 387 et seq. 18 In detail, see Roht-Arriaza, JICJ 11 (2013), 537 et seqq. 19 Federal Law Gazette (BGBl.) 2002 I, p. 2254; for a detailed analysis cf Satzger, NStZ 2002, 125 et seqq. 13

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Enforcement Model lies in the fact that international crimes will fall under various different substantive as well as procedural regulations depending on the respective national law,20 which disallows uniform punishment on a global level. Furthermore, implementing the Indirect Enforcement Model creates the risk of international crimes partially escaping prosecution and punishment, as there is always the possibility that states are not willing to (fully) implement the prohibition of international crimes into their national legal systems or, due to other reasons, are not able to genuinely carry out investigations and prosecutions of international crimes. Examples: Due to his function as a high ranking official in the German Security Main Office (Reichssicherheitshauptamt) during World War II, Adolf Eichmann was indicted and convicted by the District Court of Jerusalem inter alia of crimes against humanity and war crimes,21 confirmed by the Israeli Supreme Court.22 Klaus Barbie, the former chief of the German Secret State Police (Gestapo) in Lyon, was also charged with and convicted of crimes against humanity by the Cour d’assises du de´partement du Rhoˆne in France. The decision was confirmed by the Cour de Cassation.23 In February 1994, Dusˇko Tadic´ was arrested upon request by the German Federal Prosecutor General because he was suspected of having been engaged in the torturing and genocide of Bosnian Muslims in June 1992 in Prijedor and was charged with these crimes in Germany.24 In 1995, however, he was transferred to the International Criminal Tribunal for the former Yugoslavia (ICTY) on request of the Tribunal itself and was finally sentenced to a long prison term.25 In 2005, two former Afghani generals were sentenced in the Netherlands on account of torture during the Afghani Civil War; the conviction was confirmed by the Court of Appeals in 2007.26 In Germany, two of the last trials concerning the crimes committed during the National Socialist regime ended with verdicts of accessory to murder. Reinhold Hanning was sentenced to five years of imprisonment in July 2016 by the District Court of Detmold (Landgericht [LG] Detmold). One month later, Oskar Gröning was sentenced to four years of imprisonment. Rwandan citizen Onesphore Rwabukombe was sentenced to life imprisonment by the Higher Regional Court of Frankfurt (Oberlandesgericht [OLG] Frankfurt) in relation to the 1994 Rwandan genocide,27 following the revision of the German Court of Appeals in May 2015 stating that it was not a case of mere abetment, but rather the accused acted in complicity.28 As the acts in question were committed prior to the adoption of the German Code of Crimes against International Law (VStGB), the trial was based on the older provisions of the German Criminal Code (StGB). The first trial based on the VStGB took place at the Higher Regional Court of Stuttgart (Oberlandesgericht [OLG] Stuttgart) from May 2011 to September 2015. Rwandan citizens 20

Seidel/Stahn, Jura 1999, 14. District Court of Jerusalem, Attorney General v. Eichmann, Judgment, criminal case no. 40/61, 11th December 1961. For a thorough description and criticisms of the Eichmann trial, cf Arendt, Eichmann in Jerusalem. 22 Supreme Court of Israel, Attorney General v. Eichmann, Appeal no. 336/61, 29th May 1962 = ILR 36, 277 et seqq. 23 JCP 1988 II no. 21149; English Version in ILR 100, 330 et seqq.; cf also Ambos, Vo ¨ lkerstrafrecht AT, pp. 190 et seqq. 24 Wilkitzki, Zusammenarbeit ICTY, Einl. no. 2. 25 ICTY, Prosecutor v. Tadic ´, Judgment in Sentencing Appeals, IT-94-1-A and IT-94-1-Abis, 26th January 2000, para. 76. 26 For this case and others before courts in the Netherlands, cf van Sliedregt, LJIL 2007, 895 et seqq. 27 OLG Frankfurt a. M., Judgment of 29th December 2015, file no. 4-3 StE 4/10 – 4 – 1/15. 28 Cf BGH, Judgment of 21st May 2015, 3 StR 575/14 = HRRS 2015 Nr. 874. 21

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Ignace Murwanashyaka and Straton Musoni were accused of having committed crimes against humanity and war crimes in the Democratic Republic of the Congo relating to the so-called liability of superiors.29 Murwanashyaka was found guilty of accessory to war crimes as well as leadership of a foreign terrorist organisation and sentenced to thirteen years of imprisonment. Musoni was sentenced to eight years of imprisonment on account of leadership of a foreign terrorist organisation.30 The Direct Enforcement Model is characterised by an immediate enforcement of 9 International Criminal Law by international authorities. In these cases, criminal proceedings and convictions are not based on national norms, but on International Criminal Law itself. Even with the establishment of a permanent international criminal court in The Hague, the direct enforcement remains an exception.31 Most prominently, the following courts have hitherto undertaken the enforcement of International Criminal Law: – The International Military Tribunal (IMT) of Nuremberg (1945/1946), with which the major war criminals of Germany were prosecuted after World War II by the allied powers – The International Military Tribunal for the Far East (IMTFE) in Tokyo (1946– 1948), where the second trial against war criminals (Japanese generals and politicians) was carried out – The International Criminal Tribunal for the former Yugoslavia (ICTY, since 1993)32 in The Hague, which is preoccupied with international crimes committed since 1991 in the territory of former Yugoslavia – The International Criminal Tribunal for Rwanda (ICTR, since 1995)33 in Arusha (Tanzania) which was modelled after the ICTY and is commissioned to prosecute international crimes committed during the massacres of 1994 – The International Criminal Court (ICC), which commenced work on the 1st July 2002 in The Hague and has since convicted nine defendants (regarding the ICC, see in detail §§ 12 et seqq.) In the course of the implementation of the so-called “completion strategy” of the ad hoc tribunals (see § 11 para. 19), the indirect enforcement of International Criminal Law has again gained more importance, as less important cases are transferred back to national courts.34 However, the installation of a growing number of hybrid courts (see § 11 para. 31) is increasingly creating a blurred line between the Direct Enforcement and the Indirect Enforcement Models.

III. International Criminal Law and the Law of State Responsibility As mentioned above, International Criminal Law provides for individual criminal 10 responsibility for international crimes.35 The idea that certain conduct of an individual person should be prosecuted on an international level, however, is incompatible with the 29

See Safferling/Kirsch, JA 2012, 481, 485 et seq. OLG Stuttgart, Judgment of 28th September 2015, file no. 5-3 StE 6/10. 31 Ferdinandusse, Direct Application of International Criminal Law, p. 1. 32 UN Security Council Resolution, S/RES/827, 25th May 1993. 33 UN Security Council Resolution, S/RES/955, 8th November 1994. 34 For the transfer of international tribunals to national courts, see also Norris, Minnesota Journal of International Law 2010, pp. 201 et seqq. 35 The organisational crimes that had been indicted in Nuremberg as well, i. e. the punishment of the membership in an organisation that had been classified as being criminal by the IMT (art. 10 IMT Charter), turned out to be unsustainable. 30

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traditional view of international law.36 Traditionally, only states or international organisations are to be considered subjects of international law. Only these entities can be held responsible according to the law of state responsibility, if a breach of international law – even though committed by an individual person – can be imputed to them. According to this classical perspective, individual perpetrators do not appear on the level of international law; usually, they are considered to be represented by their respective home state.37 In essence, state responsibility and individual criminal responsibility pose two entirely different regimes that are only partially interrelated.38 11 Therefore, the law of state responsibility only forms the basis for the responsibility of subjects of international law for imputable breaches of international law. The legal consequence of state responsibility is that the responsible subject must restore the status conform to international law.39 In contrast, International Criminal Law prescribes individual criminal responsibility of the direct offender (a natural person) committing an international crime. He or she is subjected to criminal sanctions. A single act can – at least in theory – lead to sanctions under both (international) criminal law imposed against the perpetrator and state responsibility of the state to which the individual conduct can be imputed.40 The crime of aggression seems to essentially demand such a twofold responsibility.41

IV. Treaty Crimes 12

The so-called “treaty crimes” (also known as treaty based crimes or crimes of international concern) must be distinguished from International Criminal Law.42 Since the elements of an offence are not directly defined by a treaty under public international law, the expression of treaty crimes might be misunderstood. The term refers to provisions of national law which have their origin in an obligation imposed by an international treaty.43 Therefore, criminal proceedings and convictions are based on the provision of the corresponding national law, e. g. in the cases of terrorism, drug trafficking and piracy.44 The main purpose of treaty crimes consists of effectively fighting and prosecuting cross border criminality.45 In this context, the international treaties are not strictly limited to state obligations to create corresponding provisions of substantive criminal law; but also provisions to ensure effective criminal prosecutions, such as provisions on mutual legal assistance and common preventive measures.46 If treaty crimes serve as the protection of a common interest of the international community of states,47 and if there is a sufficient agreement upon this point within the treaty states, customary international law may eventually emerge from a treaty crime. In this case, treaty crimes can indeed be the origin of international criminal offences.48 36

Cf Werle/Jeßberger, Principles of International Criminal Law, para. 122. Lorenzmeier, Vo¨lkerrecht, p. 59; Schweitzer, Staatsrecht III, para. 533. 38 Bianchi in: Cassese et al. (eds), Companion, p. 18; Werle/Jeßberger, Vo ¨ lkerstrafrecht, para. 144. 39 Ipsen, in: Ipsen (ed.), Vo ¨ lkerrecht, § 39 para. 14. 40 Cf Cassese, Int. Criminal Law, pp. 7 et seq. 41 See, § 14 paras 76 et seqq. 42 Regarding the terminology, see Werle/Jeßberger, International Criminal Law, para. 126. 43 Boister, in: Cassese et al. (eds), Companion, pp. 540 et seqq. 44 For further examples, see Werle/Jeßberger, International Criminal Law, para. 126. 45 Werle/Jeßberger, International Criminal Law, para. 128. 46 Boister, in: Cassese et al. (eds), Companion, p. 541. 47 Werle/Jeßberger, International Criminal Law, paras 125. 48 E. g. the crime of genocide, acknowledged by customary international law and now enshrined in the Rome Statute, stems from an international treaty (the 1948 Genocide Convention), cf Boister, in: Cassese et al. (eds), Companion, p. 540. 37

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§ 11 History of International Criminal Law Contents I. Development until 1919. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Versailles and the Leipzig War Crime Trials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. The Treaty of Versailles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. The Leipzig War Crime Trials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. The International Military Tribunal in Nuremberg (IMT). . . . . . . . . . . . . . . . . . . 1. Structure of the International Military Tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Composition of the Tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Procedural Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Criticism of the Nuremberg Trials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. The International Military Tribunal for the Far East (IMTFE) . . . . . . . . . . . . . . V. Cold War Era . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VI. International Criminal Tribunal for the Former Yugoslavia (ICTY) . . . . . . . . 1. Structure of the Tribunal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Composition of the Tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c) Sanctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Crimes Falling under the Material Jurisdiction of the ICTY . . . . . . . . . . . . . . 3. Legitimacy of the Tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VII. The International Criminal Tribunal for Rwanda (ICTR) . . . . . . . . . . . . . . . . . . . VIII. Hybrid Courts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3 3 4 5 6 6 7 8 9 11 12 13 15 18 20 20 22 24 25 27 29 31

I. Development until 1919 International Criminal Law constitutes one of the youngest fields of international law. 1 Until the end of the 19th century, even the idea of creating a system of international criminal justice has not appeared on a broader academic or practical level.1 The main reason for the late occurrence of International Criminal Law is to be seen in state sovereignty concerns. The nation states were regarded as independent and sovereign entities; with criminal law being inherently linked to fundamental value decisions, it was unimaginable for the sovereign states to allow another state or an international institution to interfere with its own sovereignty by prosecuting their nationals for some sort of “international crimes”. Even today, sovereignty concerns are the basis for far-reaching criticisms of international criminal courts and tribunals. The first efforts towards the creation of an institutionalised system of international 2 criminal justice can be found in proposals made by Gustave Moynier. After the FrancoGerman war in 1870/1871, the President of the International Committee of the Red Cross (ICRC) demanded the creation of an international criminal court, which would have had authority to prosecute war crimes committed by both sides of the conflict. The jurisdiction of this court was to include the prosecution of violations of the principles that had been laid down in the Geneva Convention of 22nd August, 1864, concerning the protection of wounded people on the battlefield.

1

Cf Meron, AJIL 2006, 551 et seqq.

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With both sides accusing the other of having broken the laws of war, Moynier demanded a criminal rather than a merely moral sanction for individuals that bear responsibility for those violations. An international criminal court would have provided for the possibility of independent investigations and prosecutions of the individual perpetrators.2 However, Moynier‘s visionary but still rather rudimentary proposals did not gain the desired support on a political level. In the era of strong nation states, it still seemed unthinkable that actions of a sovereign state should lead to individual criminal liability. Nonetheless, Moynier‘s request marks the beginning of a long and persistent engagement of the ICRC for the creation of an international criminal court, a vision in which it was joined by numerous Non-Governmental Organisations (NGOs) throughout the following decades.3 This shows the great significance of the work of NGOs for International Criminal Law.

II. Versailles and the Leipzig War Crime Trials 1. The Treaty of Versailles 3

The horrors of World War I implying the massive breaches of the international laws of war, especially those of the Hague Convention respecting the Laws and Customs of War on Land (1899/1907), led to a revival of Moynier‘s idea of creating an international criminal court. According to art. 227 of the Treaty of Versailles signed on 28th June 1919,4 the German emperor, Wilhelm II, was to be charged with launching an aggressive war and war crimes before an international tribunal.5 However, according to art. 227 (3) of the Treaty of Versailles, the tribunal should not apply international law (of war), but simply act in accordance with the “highest motives of international policy”. The institution was thus designed more as a political instrument than a court of law. In the end, Wilhelm II escaped and went into exile in the Netherlands, which treated him as a political refugee and refused to extradite him. In consequence, a judicial proceeding could not be carried out.6 Additionally, art. 228 et seqq. of the Treaty of Versailles empowered the Allies and their associates to try German citizens for violation of the laws and customs of war before their respective military courts. For this purpose, art. 228 (2) imposed a duty on Germany to extradite those individuals. However, the application of art. 228 et seqq. failed in practice due to massive resistance across all social classes and political fractions in Germany. On the basis of art. 228 (2) of the Treaty of Versailles, the Allies had demanded the extradition of about 900 persons. This request was repeatedly turned down by the German government claiming that it was impossible to find authorities willing to execute the arrests and extraditions. This was probably true, as even liberal forces in Germany strictly opposed the idea of Germans being brought before an international or foreign court.7 Furthermore, the refusal of the German Government was also based on legal considerations; according to § 9 of the Criminal Code of the 2

Da¨ubler-Gmelin, in: Arnold et al. (eds): FS Eser, pp. 718 et seq. Many important NGOs (such as “Amnesty International” and “Human Rights Watch”) joined forces when the “Coalition for the International Criminal Court” was founded in 1995; nowadays it consists of around 2500 organisations in 150 states, see http://www.coalitionfortheicc.org (last visited July 2017). 4 Law Gazette of the German Reich (RGBl.) 1919, pp. 981–983; see also Ambos, Int. Strafrecht, 1st edn, § 6 paras 1 et seqq.; Engelhart, Jura 2004, 734 et seqq. 5 He was accused of having committed a “supreme offence against international morality and the sanctity of treaties”, which shows that the proceeding tended more towards a moral rather than a legal verdict, cf Bassiouni, Introduction, para. 91. 6 See also Bantekas/Nash, Int. Criminal Law, p. 496. 7 In detail von Selle, ZNR 1997, 193, 194. 3

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German Reich (RStGB), a German was not to be extradited to a foreign government for the purpose of prosecution or punishment.8 The Allies finally gave in to this enormous political pressure, the more so as the German Government had declared they would be willing to prosecute suspected war criminals before the Supreme Court of the German Reich (Reichsgericht). However, this drawback did not occur without the Allies’ announcement to come back to the implementation of art. 228 et seqq. of the Treaty of Versailles in case the German domestic trials turned out to be unsatisfactory.

2. The Leipzig War Crime Trials Even before the Allies abandoned the idea of criminal prosecution of alleged German 4 war criminals, the German parliament (Reichstag) had passed a bill on 18th December 1919, which in its § 1, provided for the jurisdiction of the Supreme Court of the German Reich (Reichsgericht) as simultaneous court of first and last instance for criminal acts that had allegedly been committed by Germans in the course of World War I.9 However, according to § 2 of this bill, individual acts should only be prosecuted if they had been criminalised under German domestic law. In spring 1921, 45 proceedings commenced in Leipzig; they were intended to prove the willingness of the German judiciary to prosecute German war criminals.10 Moreover, the Allies compiled a list that named 896 individuals to be tried in national proceedings. Another 837 proceedings were initiated by the German Office of the Attorney General (Reichsanwaltschaft) of its own accord.11 However, the vast majority of these investigations were rashly terminated. Therefore, criminal trials were only carried out in 17 cases, leading to ten convictions and seven acquittals.12 The respective prison sentences ranged from six months to five years,13 but they were only executed in part or even not at all.14 The German Supreme Court’s apparent unwillingness15 to carry out regular criminal proceedings led to the Allies’ renewed demand for extraditions, which was again persistently refused by the German government. However, the Allies did not enforce the extradition by military means, deciding to suspend the process without formally renouncing the extradition. In several cases, German defendants were convicted by French and Belgian courts in absentia; however, the execution of the imposed sentences was impossible due to the refusal of extradition by the German government.

III. The International Military Tribunal in Nuremberg (IMT) The unimaginable dimension and gravity of atrocities committed under the National 5 Socialist regime in World War II and particularly the Holocaust were to bring about a 8 For the validity of this legal argument, according to the position of § 9 RStGB in the legal order of the time, cf Hankel, Die Leipziger Prozesse, p. 51 et seq.; it was indeed another 80 years until the prohibition of extradition of German nationals was modified in the context of the implementation of the provisions of the Rome Statute. 9 Kriegsverbrecherverfolgungsgesetz, Law Gazette of the German Reich (RGBl.) 1919, pp. 2125 et seq. 10 Concerning the question of “justice of the losing party”, cf Mu ¨ ller, AVR 39 (2001), 202 et seqq. 11 Cf Ahlbrecht, Geschichte, p. 42; Hankel, Die Leipziger Prozesse; Wiggenhorn, Verliererjustiz. Die Leipziger Kriegsverbrecherprozesse nach dem Ersten Weltkrieg, 2005. 12 Ahlbrecht, Geschichte, p. 43; von Selle, ZNR 1997, 193, 196 et seqq. 13 Hankel, Die Leipziger Prozesse, pp. 71 et seq., 99 et seqq. 14 Cf Safferling, Int. Strafrecht, § 4 paras 22 et seq. 15 Briand, the French Prime Minister at the time branded the proceedings as “a comedy, a parody of justice and a scandal”, cited from von Selle, ZNR 1997, 193, 198.

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radical change concerning the development of International Criminal Law. Already during the war itself, the Allies had discussed how the individuals responsible for the crimes committed under the National Socialist regime should be dealt with. In the socalled “Moscow Declaration” of 1st November 1943, the United States, the United Kingdom and the Soviet Union generally agreed upon a judicial solution. This declaration could prevail against the demand of a “summary execution” of German political and military leaders that had been put forward in the meantime by Winston Churchill. On 8th August 1945, the London Agreement “for the Prosecution and Punishment of the Major War Criminals of the European Axis” and the annexed Charter of the International Military Tribunal (Charter of the International Military Tribunal – Annex to the Agreement for the prosecution and punishment of the major war criminals of the European Axis) were signed by the four victorious powers.16

1. Structure of the International Military Tribunal 6

a) Jurisdiction. According to art. 6 IMT Charter, the “Major War Criminals”17 of the European Axis were to be brought before the IMT. As the London Agreement generally recognised the domestic jurisdiction of those states on whose territory war crimes had been committed (principle of territoriality, see § 4 paras 6 et seqq.), the term “Major War Criminals” referred particularly to those individuals whose crimes did not fall under such domestic jurisdiction. The Charter did not explicitly contain a provision on jurisdiction ratione temporis. Nonetheless, due to the requirement of a connection to the war, only crimes that had been committed between 1939 and 1945 were actually brought to court.18 The jurisdiction ratione materiae included three main offences: crimes against peace, war crimes and crimes against humanity.19

7

b) Composition of the Tribunal. The IMT was jointly constituted by the four allied powers: France, the Soviet Union, the UK and the USA; other allied states joined the Agreement and the Charter after August 1945. Each of the four allied powers appointed a judge, an alternate judge and a member of the Office of the Prosecutor (art. 2 and 14 IMT Charter).

2. Procedural Law 8

Whilst the IMT’s procedural law was mainly based on the Anglo-American common law tradition, it also invoked certain legal features deriving from civil law jurisdictions, all the more so since many regulations of common law procedure could not be applied due to the absence of a jury. Therefore, the Tribunal was not obliged to hear all witnesses; it could resort to protocols of pre-trial interrogations of witnesses and informants submitted by the Prosecutor’s office. According to art. 24 IMT Charter, the Court ruled on the admissibility of evidence; thus being able to reject submitted pieces of evidence as non-substantial. Furthermore, art. 19 IMT Charter stated that the Court was not bound by the strict rules of evidence of the Anglo-American system. The IMT 16 For the documentation of the proceedings, see the website of the Higher Regional Court of Nuremberg (Oberlandesgericht [OLG] Nu¨rnberg), available under http://www.justiz.bayern.de/gericht/ olg/n/imt/ (last visited July 2017), and the Avalon-Project of the Yale Law School, available under http://avalon.law.yale.edu/subject_menus/imt.asp (last visited July 2017). 17 In this respect, the term “War Criminal” is to be understood in a non-technical way. Its range also contained offenders who had committed other crimes of the IMT Charter. 18 Cf Ahlbrecht, Geschichte, p. 69, draws the temporal line at the surrender of the Reich on 8th May 1995; Safferling, Int. Strafrecht, § 4 para. 30. 19 See art. 6 IMT Charter; on the account of conspiracy, see Safferling, KritV 2010, 65 et seqq.

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§ 11. History of International Criminal Law

was supposed to limit the trial to an accelerated main hearing (art. 18 IMT Charter). The defendants were allowed to choose their defence lawyers freely.20

3. Judgment Following ten months of trial proceedings, the judgment was pronounced on 30th 9 September and 1st October 1946. The potential legal sanctions provided for by art. 27 IMT Charter were the death penalty or any other punishment that seemed just to the Court. The Tribunal imposed the following sanctions: – Twelve death sentences21 – Three sentences to life imprisonment22 – Four sentences to long-term imprisonment23 – Three judgments of acquittal24 After the pronouncement of the sentences, the Court adjourned its work for an 10 indefinite period of time. Due to the Cold War era, there were no more proceedings before an internationally composed bench of judges dealing with crimes that had been committed in the course of World War II. The twelve so-called Subsequent Nuremberg Trials were held before US military courts that still regarded themselves as international courts, yet did not pass their verdicts based on the IMT Charter, but rather on Allied Control Council Law No. 10. Further proceedings were also carried out on this specific legal basis in the French, British and Soviet occupied zones. During the so-called Waldheim Trials that were carried out in the former German Democratic Republic more than 3300 individuals were sentenced to long-term prison sentences.25 Those trials have often been criticised for essentially disregarding central human rights standards.26

4. Criticism of the Nuremberg Trials The moral and legal legitimacy of the IMT has been challenged, labelling the 11 Nuremberg Trials with the rather indefinite attribute of victor’s justice (Siegerjustiz). The fact that no criminal proceedings had taken place concerning war crimes that had allegedly been committed by the Allies (e. g. the bombing of the city of Dresden that was [arguably] of no militarily necessary) provoked further criticism.27 Another claim has been that the bench of judges should not have exclusively represented the allied powers. Furthermore, the majority of judges had largely taken part in the conferences that worked out the IMT Charter, which some critics considered a threat to their impartiality and independence. The more so as the recusal of a judge on account of suspected

20 Ba ´ rd, in: Ba´rd/Soyer (eds), Internationale Strafgerichtsbarkeit, p. 53; see also Safferling, Int. Strafrecht, § 4 paras 32 et seq. 21 Against M. Bormann, H. Frank, W. Frick, H. Go ¨ ring, A. Jodl, E. Kaltenbrunner, W. Keitel, A. Rosenberg, F. Sauckel, A. Seyß-Inquart, J. Streicher and J. von Ribbentrop. 22 Against W. Funk, R. Heß and E. Raeder. 23 Against K. Do ¨ nitz, A. Speer, K. von Neurath and B. von Schirach. 24 In the cases of H. Fritzsche, H. Schacht and F. von Papen. 25 Cf Burchard, JICJ 2006, 800, 818 et seq. with further reference. 26 To these ends inter alia Werle, JZ 2012, 373, 374. 27 Concerning the general inadmissibility of this tu quoque-objection, cf ICTY, Prosecutor v. Kupresˇkic ´ et al., Decision on evidence of the good character of the Accused and the defence of tu quoque, IT-9516-T, 17th February 1999, recital 4.

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bias was generally not permitted.28 Furthermore, the Nuremberg Judgments were frequently presumed of having violated the prohibition of ex post facto criminal laws.29

5. Summary 12

The explicit goals of the trials before the IMT were, on the one hand, to exemplary punish those responsible for National Socialist crimes; on the other hand, to create a system of binding international criminal justice that would have a deterrent effect on every individual, including heads of states and other high government officials, in order to guarantee that such crimes would never be committed again.30 Moreover, it should be emphasised that the Nuremberg Trials – despite the high level of criticism they have received – formed the essential starting point for the emergence of International Criminal Law.31

IV. The International Military Tribunal for the Far East (IMTFE) Modelled after the IMT, the International Military Tribunal for the Far East (IMTFE) was established in Tokyo in order to guarantee the prosecution of the major Japanese war criminals. The IMTFE was based on a “Special Proclamation” made by General MacArthur, the commander-in-chief of the allied military forces. As such unilateral act is rather difficult to categorise in terms of international law,32 it was criticised for not providing a sufficient legal basis for the IMTFE’s work.33 14 On the whole, the IMTFE Charter correlates with the IMT Charter, rendering a more detailed analysis unnecessary at this point. The Tokyo trials led to the conviction of all defendants, there were no acquittals.34 13

V. Cold War Era 15

The principles of the IMT Charter and the judgment of the Nuremberg Tribunal were unanimously approved by the first conference of the General Assembly of the United Nations on 11th December 1946.35 Thereby, the General Assembly wanted to emphasise its support for the (legal) actions taken by the victorious powers. However, it was neither capable nor willing to create binding international (criminal) law.36 On 9th December 1948, the UN General Assembly adopted the Genocide Convention that came into force in 1951.37 The Genocide Convention declared genocide an international crime and obliged all signatory states to prevent and punish the crime of genocide. 28 Concerning these points of criticism, cf Burchard, JICJ 2006, 800 et seqq.; Tomuschat, JICJ 2006, 830 et seqq.; see also the clearly arranged compilation of the criticism against the IMT and its falsification by Ipsen, in: Ipsen (ed.), Vo¨lkerrecht, § 31 paras 22 et seqq. 29 For the relevance of this principle within International Criminal Law, see § 13 paras 13 et seq.; in more detail, cf Esser, Eur. und Int. Strafrecht, § 15 paras 17 et seqq. 30 Ostendorf, in: Lu ¨ derssen (ed.), Kriminalpolitik III, p. 185. 31 Werle, ZStW 109 (1997), 808, 809. 32 Ahlbrecht, Geschichte, p. 105. 33 Cf Ahlbrecht, Geschichte, pp. 105 et seq. 34 The IMTFE sentenced seven defendants to death, 16 defendants to life imprisonment and two defendants to fixed terms of imprisonment, cf Werle, Principles of International Criminal Law, para. 33. 35 UN General Assembly Resolution, Affirmation of the Principles of International Law recognized by the Charter of the Nu¨rnberg Tribunal, A/RES/95(I), 11th December 1946. 36 Jescheck, GA 1981, 49, 52. 37 UN General Assembly Resolution, Convention on the Prevention and Punishment of the Crime of Genocide, A/RES/3/260, 9th December 1948.

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Subsequently, the UN General Assembly commissioned the International Law Commission (ILC) to outline the principles of the jurisprudence of the Nuremberg Military Tribunal and to draft an international criminal code to enhance international peace and security thereupon. The codification of the Nuremberg Principles was completed in 1950.38 In addition, a Special Committee of the General Assembly had already completed a draft statute for an International Criminal Court, which was finally submitted to the General Assembly in 1954.39 In the following years, the Cold War blocked any substantial steps to the establish- 16 ment of an international criminal court, as most states were not willing to restrict their sovereignty in favour of such an international institution.40 In the historical context of the end of the Cold War and in light of increasing 17 international drug trafficking, the Gulf War, the Lockerbie bombing and most importantly the brutal conflicts in the former Yugoslavia and Rwanda, the international community became more and more aware of the disadvantages of the lack of an institution of international criminal justice. In a speech given before the UN General Assembly in 1989, Arthur Robinson, former Prime Minister of Trinidad and Tobago, asked for help in his efforts to reduce international drug trafficking. In reaction to this, the General Assembly commissioned the ILC to reconsider the question of the establishment of an international criminal court,41 a step which surprised many observers. Even though the resolution was limited to the problem of international drug trafficking,42 the commission developed its own dynamics leading to the ILC’s progressive report in 1990. In 1994, the ILC submitted the draft of a Statute for an International Criminal Court (ILC Draft Statute) to the General Assembly, whose subject matter jurisdiction went beyond the Nuremberg offences, also including the crime of terrorism and drugrelated crimes.43 Whilst the corresponding sub-committees made slow but steady progress, their preliminary work was overrun by current events in the former Yugoslavia and Rwanda, which demanded a quick reaction of the international community.44

38 Principles of International Law Recognized in the Charter of the Nu ¨ rnberg Tribunal and in the Judgment of the Tribunal, 29th July 1950, Yearbook of the International Law Commission, 1950, vol. II, pp. 374–378. 39 Draft Code of Offences against the Peace and Security of Mankind, 30th April 1954, Yearbook of the International Law Commission, 1954, vol. II, pp. 112–122. 40 Cassese, Int. Criminal Law, p. 258 et seq. 41 UN General Assembly Resolution, International criminal responsibility of individuals and entities engaged in illicit trafficking in narcotic drugs across national frontiers and other transnational criminal activities: establishment of an international criminal court with jurisdiction over such crimes, A/RES/44/39, 4th December 1989. 42 UN General Assembly Resolution, International criminal responsibility of individuals and entities engaged in illicit trafficking in narcotic drugs across national frontiers and other transnational criminal activities: establishment of an international criminal court with jurisdiction over such crimes, A/RES/44/39, 4th December 1989, para. 1. 43 Draft Statute for an International Criminal Court with commentaries, 22nd July 1994, Yearbook of the International Law Commission, 1994, vol. II, Part Two, pp. 26–74. 44 Cf also Bantekas/Nash, Int. Criminal Law, pp. 535 et seq.

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VI. International Criminal Tribunal for the Former Yugoslavia (ICTY)

Case 20

18

The ICTY indicted T for war crimes. T challenges the jurisdiction of the Tribunal. In his opinion, it is neither based on a treaty according to international law nor does the UN Charter contain a legal basis for the establishment of an international criminal tribunal. Did T raise valid objections to ICTY proceedings? (see para. 28) 19

As a reaction to the armed conflict in the former Yugoslavia, which was accompanied by massacres against the civilian population, the UN Security Council adopted Resolution 808 (1993)45 acting under Chapter VII of the UN Charter. The resolution established an international tribunal for the prosecution of serious war crimes in the territory of the former Yugoslavia (ICTY) as a subsidiary body to the Security Council.46 Subsequently, the Security Council adopted Resolution 827 (1993)47, which contained the Statute of the Tribunal. The establishment of an international tribunal by the UN Security Council was unprecedented at that time. By invoking originally judicial functions, the Security Council further extended its own constitutional and institutional competences within the UN system.48 On 17th November 1993, the Court assembled for its first time and has since then indicted 161 individuals.49 Due to the fact that the former Yugoslav states succeeded in re-establishing (partially still rather limited) functioning judicial systems, the judges of the ICTY prompted the so-called completion strategy, thereby initiating to conclude the work of the ICTY. The UN Security Council seized this notion by passing Resolutions 1503 (2003) and 1534 (2004).50 Hence, new investigations have not been undertaken since 2004. Subsequent proceedings have instead been carried out before the corresponding courts in the former constituent states of Yugoslavia. Even if all trial proceedings were originally supposed to be completed by the end of 2008 and all appellate proceedings by the end of 2010, both deadlines could not be met. This was mainly due to the late arrests of Radovan Karadzˇic´, former President of the Republic Srpska in 2008 and Ratko Mladic´, former Chief General of the “Army of the Republika Srpska”, as well as Goran Hadzˇic´51, former President of the so-called “Republic of Serbian Krajina” in 2011. On 24th March 2016, Karadzˇic´ was found guilty inter alia of having committed genocide and sentenced to 40 years of imprisonment. In July 2016, Karadzˇic´ and the Prosecution filed their motions for appeal before the residual mechanism (see below). In July 2016, the proceedings against Hadzˇic´ have been terminated. The trial judgment in the Mladic´ case is expected in November 2017, which will be the last judgment delivered by the ICTY. Finally, the Residual Mechanism for the International Criminal Tribunals (MICT) took up its work on 1st July 2012 for the ICTR’s and on 1st July 2013 for the ICTY’s

UN Security Council Resolution, S/RES/808, 22nd February 1993. For a critical discussion on the ICTY’s recent jurisprudence, see Schuster, ZIS 10 (2015), 248 et seq.; id., ZIS 10 (2015), 283 et seqq.; id., ZIS 10 (2015), 323 et seq. 47 UN Security Council Resolution, S/RES/827, 25th May 1993. 48 Hollweg, JZ 1993, 980, 981. 49 See http://www.icty.org/en/about/tribunal/achievements#bringing (last visited July 2017). 50 UN Security Council Resolutions, S/RES/1503, 28th August 2003 and S/RES/1534, 26th March 2004. 51 See e. g. http://www.guardian.co.uk/world/2011/jul/20/goran-hadzic-capture-war-crimes-milestone (last visited July 2017). 45 46

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residual functions.52 It constitutes a successor body to the ad hoc tribunals created by Security Council Resolution 1966 (2010).53 Its primary task is to conduct those proceedings that have not been completed by the ad hoc tribunals, excluding the cases against those defendants that had been arrested twelve months prior to the date on which the MICT commenced its work. The MICT is not competent to issue new indictments.54

1. Structure of the Tribunal a) Jurisdiction. The jurisdiction of the ICTY is limited with regard to its temporal, 20 personal, geographical and material outreach. The ICTY’s jurisdiction – ratione temporis only comprises criminal conduct committed after 1991, – ratione personae is limited to crimes committed by individual persons, – ratione loci is limited to crimes committed in the territory of the former Socialist Federal Republic of Yugoslavia, – ratione materiae is limited to the offences enshrined in art. 2–5 of the ICTY Statute, namely grave breaches of the Geneva Conventions,55 war crimes, crimes against humanity and genocide. The jurisdiction of the ICTY does not generally exclude domestic criminal jurisdic- 21 tion; however, according to art. 9 of the ICTY Statute, the ICTY can seize national proceedings and continue them on its own accord at any time. The ICTY exercised this right most prominently in ordering the transfer of its first defendant, the Bosnian Serb Dusˇko Tadic´, who had already been indicted before the (defunct) Bavarian High Court (Bayerisches Oberstes Landesgericht [BayObLG]).56 b) Composition of the Tribunal. The Tribunal consists of 16 permanent and nine ad 22 litem judges representing the main legal systems of the world. Additionally, there is an independent Office of the Prosecutor that has inter alia the competence to prepare international arrest warrants and extradition requests and to file the charges. The proceedings are held publicly at three Trial Chambers (TC). In principle, these 23 are composed of up to three permanent judges and up to six ad litem judges. However, the Chambers are commonly subdivided into benches of three judges. Apart from that, there is an Appeals Chamber (AC) that consists of five (permanent) judges. At present, Carmel Agius from Malta presides the ICTY; Serge Brammertz from Belgium is the current head of the Office of the Prosecutor (also called “the Prosecutor”). With respect to the tribunal’s procedural law, art. 21 et seq. of the ICTY Statute lives up to the general standards of international human rights law.57 c) Sanctions. The Statute provides for custodial sentences only; the death penalty is 24 excluded pursuant to art. 24 (1) of the ICTY Statute. 52 See http://unictr.unmict.org/en/tribunal (last visited July 2017); http://www.icty.org/en/press/me chanism-international-criminal-tribunals-mict-begins-work-hague (last visited July 2017). 53 UN Security Council Resolution, S/RES/1966, 22nd December 2010. 54 Regarding the residual mechanism, Acquaviva, JICJ 2011, 789 et seqq.; see http://www.icty.org/sid/ 10016 (last visited July 2017); regarding the “completion strategy” in general, see Dieckmann, ICLR 2008, 87 et seq.; and relating to referrals to national courts, Riznik, AVR 2009, 220 et seqq.; Schabas, Max Planck Yearbook of United Nations Law 2009, 29 et seqq.; William, CLF 2007, 177 et seqq.; as well as Lindemann, Referral of Cases from International to National Criminal Jurisdictions, 2013. 55 See § 14 para. 54. 56 See § 10 para. 8. 57 Art. 21 and 22 of the ICTY Statute are almost identical with art. 14 of the ICCPR, which regulates minimum standards of due process, cf Bair, The International Covenant, p. 56.

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2. Crimes Falling under the Material Jurisdiction of the ICTY 25

At the time of the establishment of the ICTY, there was no generally accepted, internationally binding criminal code. Therefore, the crimes that should fall under the material jurisdiction of the ICTY were determined by customary international law.58 Although international legal custom does regularly not comply with the principle of nullum crimen, nulla poena sine lege on a domestic level, it seems reasonable to limit the scope of the legality principle in international (criminal) law (see § 13 paras 13 et seq.). At that time, the following crimes that had in principle already appeared in the IMT Charter were recognised as customary international law: – Breaches of the laws and customs of war – Crimes against humanity – Genocide – Grave breaches of the Geneva Conventions of 1949

26

Grave breaches of the Geneva Conventions had obviously (due to their adoption in 1949) not been reflected in the Nuremberg Trials. Moreover, the ICTY Statute did not contain a provision on the crime against peace, as the international community had not yet been able to agree on a definition of a war of aggression.59 Since the adoption of the 1948 UN Genocide Convention, which was also joined by Yugoslavia as one of its first Member States, genocide has been accepted as an independent crime based on customary international law. Consequently, in contrast to the jurisprudence of the Nuremberg Trials, genocide was no longer treated as a sub-category of crimes against humanity.

3. Legitimacy of the Tribunal By adopting Resolutions 808 (1993) and 827 (1993) the Security Council diverged from the traditional view that the establishment of an international criminal tribunal necessarily required a treaty under international law. Criminalising individual conduct had been considered to fall under the very sovereign right of the nation states themselves, granting them the right to (abstractly) consent to international criminal proceedings. Accordingly, the legitimacy of the establishment of the ICTY was challenged by some nation states.60 It was (correctly) argued against these objections that any domestic jurisdiction for international crimes is only a substitute for a competent international jurisdiction. Only in the absence of a judicial authority under international law, national courts can take over the enforcement of International Criminal Law. If, however, such an international authority – like the ICTY – has been established, it may make use of its jurisdiction without violating state sovereignty. Therefore, there is no need for a waiver of sovereignty by an international treaty.61 28 The second objection also challenged the legal basis of the ad hoc tribunal. The UN Security Council had based the establishment of the ICTY on Chapter VII of the UN Charter, more precisely on art. 41 et seq. The Security Council reasoned that even 27

58 This is why, in his assignment to the working group that was to draft the ICTY Statute, the UN General Secretary demanded that only those offences that unquestionably formed part of customary international law should be included. 59 Regarding the Crime of Aggression, see § 14 paras 76 et seqq. 60 Graefrath, NJ 1993, 433. 61 Cf ICTY, Prosecutor v. Tadic ´, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, IT-94-1-A, 2nd October 1995, paras 28 et seqq., 50 et seqq., cf also Ko¨nig, Vo¨lkerrechtliche Legitimation der Strafgewalt internationaler Strafjustiz, pp. 28 et seqq.

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though the creation of a court was not explicitly enumerated, the prosecution of grave violations of international humanitarian law would contribute to “restore international peace and security” (see art. 39 UN Charter). Considering that Chapter VII of the UN Charter empowers the Security Council to implement severe measures to “restore international peace”, including the use of force, the creation of an ad hoc tribunal appears to be an intervention on a much lower scale. In line with the jurisprudence of various international courts, the ICTY declared itself competent to decide upon the legality of its own establishment.62 In the Tadic´ case, the Appeals Chamber pointed out that art. 41 UN Charter did not contain a conclusive enumeration of possible measures that the Security Council is allowed to implement.63 Furthermore, it considered the establishment of the ICTY an appropriate measure under art. 41 UN Charter, taking into account the legal practice of the Security Council.64 In case 20, the ICTY therefore has jurisdiction over the crimes committed by T. The objections against the legitimacy of an ad hoc tribunal created by the UN Security Council are unfounded. In the meantime, the jurisdiction of the ICTY for international crimes that had been committed in the former Yugoslavia has been generally acknowledged.

VII. The International Criminal Tribunal for Rwanda (ICTR) On 8th November 1994, the UN Security Council adopted Resolution 955 (1994) “to 29 establish an international tribunal for the sole purpose of prosecuting persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1st January 1994 and 31st December 1994” (ICTR).65 This poses the Security Council’s reaction to the barbaric massacres committed by the Rwandan ethnic majority group of Hutu against the ethnic minority of Tutsi, leading to the deaths of more than 800,000 people over a very short period of time. In accordance with Resolution 977 (1995)66, the ICTR was located in Arusha, Tanzania. The legal framework of the ICTR and the ICTY are congruent in most of their legal 30 provisions. Moreover, both tribunals share the same Appeals Chamber and during its first years also shared the same prosecutor. This far-reaching congruency was implemented to foster the consistent development of International Criminal Law.67 The legal basis for the creation of the ICTR can also be found in Chapter VII of the UN Charter. In contrast to the establishment of the ICTY, the Rwandan government had explicitly asked for the foundation of the ICTR and had, as a member of the Security Council, actively taken part in passing Resolution 955 (1994). Contrary to the legal regime of the ICTY, war crimes do not fall under the ICTR’s jurisdiction ratione materiae as the tribunal is only dealing with a non-international, domestic conflict. At that time, it had not been decided whether customary international law also allowed the application of 62 ICTY, Prosecutor v. Tadic ´, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, IT-94-1-A, 2nd October 1995, paras 14 et seqq. with further references. 63 ICTY, Prosecutor v. Tadic ´, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, IT-94-1-A, 2nd October 1995, paras 32 et seqq. 64 ICTY, Prosecutor v. Tadic ´, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, IT-94-1-A, 2nd October 1995, paras 28 et seqq. 65 UN Security Council Resolution, S/RES/955, 8th November 1994; For case-law, cf Schabas, Northwestern University Journal of International Human Rights 6 (2008), 382 et seqq.; Mugwanya, Northwestern University Journal of International Human Rights 6 (2008), 415 et seqq. 66 Cf UN Security Council Resolution, S/RES/977, 22nd February 1995. 67 Cassese, Int. Criminal Law, p. 261.

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the war crimes regime to crimes committed in a non-international conflict (see § 14 paras 59 et seq.). The “completion strategy”, already described in the context of the ICTY, was also introduced for the termination of the ICTR’s work. Similar to the ICTY, the individual deadlines for completing the remaining cases at the ICTR were not met. The international residual mechanism (MICT) commenced its work as the successor body of the ICTR as early as 1st July 2012 (see also para. 19). The ICTR concluded its work on 31st December 2015.

VIII. Hybrid Courts 31

Apart from the two aforementioned ad hoc tribunals, a number of so-called hybrid courts68 have been created over the last decades. Hybrid courts are based both on national and international law and are often constituted by benches of judges and prosecutor’s offices consisting of national and international legal professionals. Examples: In the course of rebuilding the justice system of East Timor by the UN transitory administration, “panels” within the capital’s district court were created to prosecute the most severe crimes, including among others genocide, war crimes, crimes against humanity, murder, and torture committed in the period between 1st January 1999 and 25th October 1999. These panels have already concluded their work.69 The Special Court for Sierra Leone (SCSL) was based on an international treaty between the United Nations and the government of Sierra Leone70 and served the purpose of criminal prosecution of “persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30th November 1996” (art. 1 of the Statute of the SCSL). The SCSL successfully concluded its work in December 2013 after eleven years, making it the first hybrid ad hoc tribunal to do so. A further residual mechanism was introduced by way of a treaty between Sierra Leone and the United Nations, in order to ensure the administrative work, particularly issues concerning witness protection and the storage of documents.71 In total, the SCSL sentenced nine individuals to 15–52 years of imprisonment. The trial against Charles Taylor, who had served as leader of the Liberian National Patriotic Front provoked the highest level of media attention. The trial was held at the ICC premises in The Hague due to security concerns. Moreover, the Taylor trial provoked substantial issues concerning the application of immunities in international criminal proceedings, which made the trial also of tremendous legal importance.72 On 26th April 2012 Taylor was found guilty of all eleven points he had been accused of and was 68 For these “mixed tribunals”, cf Linton, Criminal Law Forum 2001, 185 et seqq.; Dickinson, AJIL 2003, 295 et seqq.; Romano, Internationalized Criminal Courts; von Braun, Internationalisierte Strafgerichte; Nouwen, ‘Hybrid courts’ – The hybrid category of a new type of international courts, Utrecht L. Rev. 2 (2006), vol. 2, pp. 190 et seq. 69 For case-law, see Klip/Sluiter (eds), Annotated Leading Cases of International Tribunals, vol. 16. 70 Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, Freetown, 12th April 2002, United Nations Treaty Series, vol. 2178, No. 38342, p. 137; for the question of the admissibility of this approach, cf SCSL (AC), Prosecutor v. Fofana, Decision, SCSL-2004-14-PT, 25th May 2004, paras 12 et seqq.; for case-law, see Klip/Sluiter (eds), Annotated Leading Cases of International Tribunals, vol. 9. 71 For further information, see http://www.rscsl.org/index.html (last visited July 2017). 72 On this topic, cf commentary by Kreß, in: Klip/Sluiter (eds), Annotated Leading Cases of International Criminal Tribunals, vol. 9, pp. 202 et seqq.; SCSL (AC), Prosecutor v. Taylor, Decision on Immunity from Jurisdiction, SCSL-2003-01-I, 31st May 2004.

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sentenced to 50 years of imprisonment. Appellate proceedings motioned for by both the office of prosecution as well as the defence remained unsuccessful.73 The Extraordinary Chambers in the Courts of Cambodia (ECCC) were created by a bilateral agreement between Cambodia and the United Nations74 as part of the Cambodian national justice system in order to prosecute crimes (violations of national as well as International Criminal Law) that had been committed during the era of the Khmer Rouge (17th April 1975 until 6th January 1979). On 26th July 2010, Kaing Guek Eav (“Duch”), the first defendant at the ECCC, was sentenced to 35 years of imprisonment. The Appeal, that had been filed by both the defence as well as the prosecution, led to the sentence being extended to life imprisonment. In July 2012, the main trail against four further members of the Khmer Rouge commenced.75 Furthermore, the War Crimes Chamber (WCC) in Bosnia-Herzegovina76 constitutes another example for a “hybrid court”.77 In contrast to the courts mentioned above, the WCC forms completely part of the national justice system as it also serves the purpose of reinforcing the rule of law in Bosnia-Herzegovina.78 This specific function of the court is illustrated by the fact that the roles of international and national judges have been reversed. In the beginning, national judges constituted a minority in the WCC, which were made up of three judges; today, there are more Bosnian than international judges. Thus, the WCC is slowly shedding its hybrid nature. The Special Tribunal for Lebanon (STL) constitutes the second youngest hybrid court. Originally, it was supposed to be installed on the basis of an agreement between the UN and Lebanon.79 As this agreement and the underlying Statute were not ratified by the Lebanese parliament, the UN Security Council decided to nevertheless validate the failed agreement acting under Chapter VII of the UN Charter, adopting Resolution 1757 (2007).80 The tribunal was established to shed light on the assassination of former Lebanese Prime Minister Rafiq al-Hariri on 14th February 2005 and prosecute those responsible. The STL’s jurisdiction also covers other crimes that had been committed between 1st October 2004 and 31st December 2005, in so far as they are connected to assassination of al-Hariri. The STL, therefore, is the first tribunal that was mainly established for the prosecution of those responsible for a terrorist attack.81 On 3rd August 2015, the Government of Kosovo approved the creation of the Special Tribunal for Alleged Kosovo War Crimes through an amendment of the national constitution.82 The Kosovo Relocated Specialist Judicial Institution, which is located in The Hague, will try serious crimes allegedly committed in 1999–2000 by members 73

For details on the Taylor trial, see http://www.rscsl.org/Taylor.html (last visited July 2017). Agreement between the United Nations and the Royal Government of Cambodia concerning the prosecution under Cambodian law of crimes committed during the period of Democratic Kampuchea, Phnom Penh, 6th June 2003, United Nations Treaty Series, vol. 2329, No. 41723, p. 117. 75 In detail, see http://www.eccc.gov.kh/en (last visited July 2017). 76 See http://www.sudbih.gov.ba/?jezik=e (last visited July 2017). 77 See Garbett, Hum. R. Rev. 13 (2012), 65. 78 Cf von Braun, Internationalisierte Strafgerichte, pp. 341 et seq. 79 See http://www.stl-tsl.org/ (last visited July 2017); see also Mettraux, JICJ 2009, 911 et seq. 80 UN Security Council Resolution, S/RES/1757, 30th May 2007. 81 Even though the STL bases its substantive law on the national, Lebanese legal order, the Appeals Chamber explicitly referenced customary international law in order to enhance conformity of the national offence of terrorism with the international legal structure, cf STL, Prosecutor v. Ayyash et al., Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, STL-11-01/I/AC/R176bis, 16th February 2011, p. 3. In doing this, it stated terrorism as an international crime, which is strongly contested amongst scholars, cf generally Ventura, JICJ 2011, 1021 et seq. 82 Cf art. 162 of the Constitution of the Republic of Kosovo with amendment XXIV of 5th August 2015. 74

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of the Kosovo Liberation Army (KLA) against ethnic minorities and political opponents in the aftermath of the Kosovo War.83 Although consisting of international judges, the tribunal will be a Kosovar national court that administers justice outside Kosovo. Generally, the establishment of hybrid courts can take into account the needs of a specific political situation it is to deal with. Often, but not necessarily, they are located in the state in which the alleged crimes had been committed. Moreover, hybrid courts can either form part of the national justice system or constitute a separate institution. They are often not only dealing with the “core crimes” of International Criminal Law but also with other crimes prescribed under national law.84 83

See https://www.scp-ks.org/en (last visited July 2017). Concerning the question whether hybrid courts are useful for the objectives of International Criminal Law, see Mendez, Criminal Law Forum 2009, pp. 53 et seqq. 84

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§ 12 The International Criminal Court (ICC) Contents I. Structure of the Rome Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Object and Purpose of the ICC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Jurisdiction ratione personae. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Jurisdiction ratione materiae. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Jurisdiction ratione loci/“genuine link” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Jurisdiction ratione temporis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Trigger Mechanisms for the Court’s Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. State Referral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Proprio motu Investigations by the Prosecutor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Resolution of the UN Security Council . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Principle of Complementarity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. The Principle of Complementarity within the Legal System of the ICC . 2. Broader Impact on National Criminal Systems . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Direct Application of Customary International Law . . . . . . . . . . . . . . . . . . . b) Dynamic References to Customary International Law . . . . . . . . . . . . . . . . . c) Explicit References to the Rome Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . d) The Ordinary National Crime Solution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . e) The Specific National Crime Solution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Complementarity in Practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VI. Institutional Aspects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. The Judges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. The Registry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. The Prosecutor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Financing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VII. Procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Preliminary Investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Confirmation of Charges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Appeal and Revision. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Victims’ Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VIII. Sanctions and Their Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IX. Limitation and Finality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . X. The ICC and the World of Politics. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4 5 6 6 8 9 11 12 13 15 16 17 17 26 27 28 29 30 31 32 33 34 35 36 37 38 39 41 42 43 44 45 46 47 48

Case 21

1

G, a politically influential general of state M, which is a signatory state of the Rome Statute, is suspected of being responsible for committing crimes against humanity in his own country in 2003. a) Investigations against G are carried out – albeit rather hesitantly – by national law enforcement agencies. The ensuing five years allow no decisive outcome to be reached under the present framework. b) After a short domestic criminal trial in M, G is sentenced for his part in causing bodily harm and negligent manslaughter in the aforementioned incidents. Subsequent to preliminary investigations, the Prosecutor is convinced that (in both alternative cases) G is required to appear before the ICC. He wants to continue his investigations. Should he be permitted to do so? (see paras 25, 47).

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The Military Tribunals in Nuremberg and Tokyo were often criticised as being mere “victor’s justice” (see § 11 para. 11). Even the ad hoc tribunals that had been established by resolutions of the UN Security Council were not spared by the critics. In this respect, it was argued that, with the installation of ad hoc tribunals, the UN Security Council had acted ultra vires.1 It has been and still remains a point of criticism that international crimes have been prosecuted only very selectively at the ad hoc tribunals.2 Not least as a reaction to this criticism, the process of establishing a permanent International Criminal Court (ICC) in The Hague was accelerated. The ICC was intended to complement national criminal prosecution and to establish a permanent, effective and impartial institution of criminal justice at the international level. Ad hoc committees and preparatory committees were created to develop the “Draft Statute for the International Criminal Court”3 on the basis of the ILC-Draft Statute of 19944. In December 1997, following a longer period of deliberation and preparatory work within various ad hoc committees, the UN General Assembly decided to hold a Diplomatic Conference in Rome from 15th June to 17th July 19985. 160 states, 17 interstate organisations and 250 non-governmental organisations participated in this conference. After extremely intense and difficult negotiations, the Rome Statute of the International Criminal Court (Rome Statute) was adopted at the last minute, forming the foundation for the first independent, permanent criminal court of the international community as a whole. 120 states voted in favour of adopting the Statute, seven against, while 21 states abstained from voting6. The Statute was refused by a remarkable “coalition” of states consisting of China, Iraq, Israel, Libya, Qatar, Yemen and, notably, the USA. 3 In order for the Rome Statute to finally come into effect, it needed to be ratified by at least 60 states (art. 126 (1) of the Rome Statute). This was achieved – much earlier than expected – on 11th April 2002. As a result, the Rome Statue came into effect on 1st July 2002. After the disputed accession of the State of Palestine7 in 2015 and El Salvador in 2016, the Assembly of States Parties – acting as the legislative body of the ICC – currently consists of 124 Member States.8 2

I. Structure of the Rome Statute 4

The Rome Statute consists of a preamble and 13 parts with 128 articles on the whole. The following list gives an overview of its basic structure: 1st part: Establishment of the Court

(art. 1–4)

2nd part: Jurisdiction, Admissibility and Applicable Law

(art. 5–21)

1

Cf Alvarez, EJIL 7 (1996), 245; Cassese/Gaeta/Jones-Crawford, Rome Statute, p. 25. Cf Ahlbrecht, Geschichte, pp. 73 et seq.; 330 et seq. 3 Report of the Preparatory Committee on the Establishment of an International Criminal Court, Draft Statute for the International Criminal Court and Draft Final Act, UN Doc./A/CONF.183/2/Add.1, 14th April 1998; see § 11 para. 17. 4 Draft Statute for an International Criminal Court with commentaries, 22nd July 1994, Yearbook of the International Law Commission, 1994, vol. II, Part Two, pp. 26–74. 5 UN General Assembly Resolution, Establishment of an International Criminal Court, A/RES/52/160, 28th January 1998. 6 The majority of two thirds of the votes necessary according to art. 9 (2) VCLT was thus achieved. 7 Regarding the debate concerning the statehood of Palestine and its implications for the jurisdiction of the ICC, see Du¨rr/von Maltitz, ZStW 125 (2014), 907. 8 A list of the states parties is available under https://asp.icc-cpi.int/en_menus/asp/states%20parties/ Pages/the%20states%20parties%20to%20the%20rome%20statute.aspx (last visited July 2017). 2

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3rd part: General Principles of Criminal Law

(art. 22–33)

4th part: Composition and Administration of the Court

(art. 34–52)

5th part: Investigation and Prosecution

(art. 53–61)

6th part: The Trial

(art. 62–76)

7th part: Penalties

(art. 77–80)

8th

(art. 81–85)

part: Appeal and Revision

9th part: International Cooperation and Judicial Assistance

(art. 86–102)

10th part: Enforcement

(art. 103–111)

11th part: Assembly of States Parties

(art. 112)

12th part: Financing

(art. 113–118)

13th

(art. 119–128)

part: Final Clauses

II. Object and Purpose of the ICC The essential object and purpose of the ICC is to bring individuals to justice for 5 having committed serious crimes that affect not only the immediate victims, but also the international community as a whole.9 The question whether an individual person’s crime may also be imputed to a state, constituting a breach of international law at the interstate level (see § 10 paras 10 et seq.) does not fall within the competence of the ICC.10 Conflicts of international law and particularly state responsibility, fall into the competence of the International Court of Justice (ICJ) that has to be strictly distinguished from the ICC.

III. Jurisdiction 1. Jurisdiction ratione personae The Rome Statute merely regulates the criminal liability of individuals (jurisdiction 6 ratione personae), cf art. 25 (1) of the Rome Statute. The French proposal to include legal persons governed by private law as well as associations of individuals did not prevail. The responsibility of states, however, remains unaffected (cf art. 25 (4) of the Rome Statute) as seen above. According to art. 26 of the Rome Statute, the minimum age for being held criminally responsible under the Rome Statute is 18 years. Introducing such an age limit was not intended to establish a general minimum age for criminal responsibility under International Criminal Law, but to satisfy practical consideration, acknowledging that an agreement on creating a proper juvenile International Criminal Law seemed illusionary within the short time available at the Rome Conference.11 The 9 Cf para. 4 of the Preamble of the Rome Statute; Triffterer/Ambos-Triffterer/Bergsmo/Ambos, Rome Statute, preamble paras 12 et seq. 10 Seidel/Stahn, Jura 1999, 15. 11 Kreß, Humanita ¨res Vo¨lkerrecht – Informationsschriften 1999, 5.

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Rome Statute follows a rather clever solution by only restricting the jurisdiction of the Court to offenders of at least 18 years, whilst not excluding their criminal liability. 7 Domestic provisions guaranteeing personal or functional immunities (e. g. for members of parliament) do not bar the jurisdiction of the Court according to art. 27 of the Rome Statute. Therefore, the official position as head of state or government neither excludes a person from criminal liability nor leads to a mitigation of punishment as it is clearly expressed in art. 27 (1) of the Rome Statute.12

2. Jurisdiction ratione materiae 8

Generally, the jurisdiction ratione materiae of the ICC is limited to four core crimes that affect the international community as a whole: – Genocide – Crimes against humanity – War crimes – Crimes of aggression The Rome Statute subdivides the core crimes into almost 70 individual criminal offences. It has to be emphasised that the offences are defined for the purpose of jurisdiction only. This follows from art. 5 (1) of the Rome Statute, which extends the jurisdiction of the ICC as far as the above mentioned criminal offences.13 With respect to the crime of aggression, the ICC could not exercise its jurisdiction, as neither the definition of the crime nor the criteria of distinction with regard to the competencies of the UN Security Council concerning aggressions had been agreed upon at the 1998 Rome Conference. During the Review Conference held in Kampala (Uganda) from 31st May to 11th June 2010, the States Parties (after long and intense debates) agreed upon both a definition and a jurisdictional regime for the crime of aggression; the Court’s jurisdiction can, however, only be exercised no earlier than one year after the amendment has been ratified or accepted by 30 States Parties and after a positive decision by the Assembly of States Parties to be taken at the earliest on the 2nd January 2017 (for details, see § 14 para. 86). With the State of Palestine ratifying the Kampala amendments on the crime of aggression, the necessary quorum was reached on 26th June 2016.14

3. Jurisdiction ratione loci/“genuine link” 9

As international criminal prosecution of the core crimes protect legal interests of the international community as a whole, the logical connecting factor for the jurisdiction ratione loci would have been the implementation of the universality principle.15 However, introducing the universality principle would have meant, that the ICC would have been allowed to prosecute international crimes that had been committed on the territory of a Non-Member State by a citizen of a Non-Member State against a citizen of a Non-Member State. Such a consistent incorporation of the universality principle could – unfortunately – not prevail due to state sovereignty concerns. 12

On immunities, see § 13 paras 45 et seqq. See on the high standard applied to the jurisdiction ratione materiae, ICC (PTC II), Prosecutor v. Ruto, Kosgey and Sang, Dissenting opinion by Judge Hans-Peter Kaul to Pre-Trial Chamber II’s “Decision on the Prosecutor’s application for summons to appear for William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang”, ICC-01/09-01/11-2, 15th March 2011, para 6. 14 https://asp.icc-cpi.int/en_menus/asp/reviewconference/Pages/review%20conference.aspx (last visited July 2017). 15 For this and the other principles mentioned in the following, see § 4 paras 3 et seqq. 13

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§ 12. The International Criminal Court (ICC)

Under art. 12 (2) of the Rome Statute, the jurisdiction of the ICC includes solely offences that have occurred within the territory of a Member State (territorial principle) or that were committed by citizens of a Member State (nationality principle). An implementation of the passive personality principle was – alike the universality principle – not adopted at the Rome Conference. Nevertheless, the territorial principle also allows the prosecution of citizens of a Non-Member State acting on the territory of a Member State, a regulation that had been vehemently opposed by the US delegation.16 However, since only the active personality principle and the territoriality principle provide genuine links for international criminal jurisdiction, it follows that certain international crimes cannot be prosecuted, e. g. crimes committed by a regime in a Non-Member State against its own population. Additionally, art. 12 (3) of the Rome Statute allows Non-Member States to accept the 10 jurisdiction of the ICC on an ad hoc basis, without the obligation of becoming a Member State (so-called opt-in clause). Ad hoc declarations can be of particular significance, when a state overcomes an inhumane dictatorship whose leaders had refused to join the Statute and now seeks to stimulate international prosecutions of individuals responsible for past atrocities.17 In this case, an ordinary declaration of the state is sufficient to open the ICC’s jurisdiction ratione loci. The first ad hoc recognition was undertaken by Coˆte d’Ivoire on 18th April 2003.18

4. Jurisdiction ratione temporis The ICC’s jurisdiction ratione temporis is limited to offences that were committed 11 after the respective state’s ratification of the Rome Statute. For the founding Member States, this date is 1st July 2002. For those states that have acceded subsequently, the Statute came into effect on another date, so that crimes can only be prosecuted from this point onwards. A state may, however, waive this requirement by filing a declaration of acceptance, allowing the ICC to exercise its jurisdiction in relation to the Member State also with respect to earlier crimes (art. 11 (2), 12 (3) of the Rome Statute) however not prior to 1st July 2002.

IV. Trigger Mechanisms for the Court’s Activities Individual investigations of crimes are not initiated automatically by the Court’s mere 12 jurisdiction. Additionally, it is necessary that the jurisdiction is activated by one of the three trigger mechanisms mentioned in art. 13 of the Rome Statute.19 In contrast to national criminal systems, the ICC does not only investigate one or several acts or cases. The trigger mechanisms refer to the investigation of “situation(s)”. Situation in this context means the entirety of all legal and factual events in a country, which cause the suspicion (by the entity requesting action of the ICC) that a crime under the Rome Statute was committed. Once the ICC has started to investigate, these events are examined in further detail, geographically, temporally and personally, i. e.

16 On the general relationship between the ICC and the United States, see Amann/Sellers, Am. J. Int. L. 50, Supp. (2002), 381. 17 Cf Ntanda Nsereko, CLF 10 (1999), 87, 106. 18 http://www.icc-cpi.int/NR/rdonlyres/CBE1F16B-5712-4452-87E7-4FDDE5DD70D9/279779/ICDE.pdf (last visited July 2017); for further legal analysis of art. 12 (3) of the Rome Statute in context of Palestine’s ad hoc referrals, see Du¨rr/von Maltitz, ZStW 125 (2014), 907. 19 See for this topic also the detailed description by Ola ´ solo, Triggering Procedure of the ICC.

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regarding all potential perpetrators and victims.20 The investigations lead to one or indeed several individual cases each of which is adjudicated independently.21 In the appendix to this book, there is an overview of the situations that have been investigated to date, their factual background, the respective ways of how the ICC’s jurisdiction was triggered as well as the defendants and the current status of the individual proceedings.

1. State Referral 13

In the course of a state referral, a Member State submits a certain “situation” to the Prosecutor requesting him to investigate the situation in order to determine whether one or more specific persons should be charged with the commission of crimes that fall under the jurisdiction of the ICC (art. 13 (a), 14 of the Rome Statute). The danger of causing grave bilateral diplomatic conflicts that potentially accompany such procedure leads to a rare amount of state referrals in the practice of the ICC. This was shown not least by the experiences with similar instruments in the context of the European Union (cf art. 259 TFEU) or the European Convention of Human Rights (cf art. 33 ECHR) that were scarcely employed by the Member States.22 However, state referrals gain major importance in cases in which a Member State refers a situation within its own territory to the Prosecutor in order to trigger an investigation (so-called self-referrals). This possibility hardly played a role on the agenda of the Rome Conference during the negotiation of the Statute;23 in practice, however, this seems to be the most-frequented instrument for triggering ICC investigations.24 Examples: Self-referrals have led to the investigation of six situations at the ICC:25 Ugandan president Museveni was the first to apply the self-referral mechanism in December 2003,26 followed by the Democratic Republic of the Congo (DRC) in March 2004. The investigations of the situation of the DRC have led to three trial judgments so far. Thomas Lubanga Dyilo was sentenced to 14 years of imprisonment in March 2012,27 confirmed by the Appeals Chamber in December 201428. Germain Katanga received a

20 See also ICC (PTC I), Situation in the Democratic Republic of the Congo, Decision on the Applications for Participation in the Proceedings of VPRS-1, VPRS-2, VPRS-3, VPRS-4, VPRS-5, VPRS-6, ICC-01/04-101-tEN-Corr, 17th January 2006, para. 65. 21 See Ola ´ solo, ICLR 5 (2005), 121, 125 et seq.; Rastan, CLF 19 (2008), 435; in order to distinguish between “situation” and “case”, see also the differing terminology in art. 13 and 17 of the Rome Statute. 22 Hoffmeister/Knoke, Zao ¨ RV 1999, 793; for the minimal practical relevance of infringement procedures initiated by a EU Member State according to art. 227 EC, cf Streinz-Ehricke, Art. 259 AEUV para. 3; for the low significance of the state complaint (art. 33 EConvHR) in contrast to the individual complaint, see § 9 para. 99 and Peters/Altwicker, EMRK, § 36 paras 1 et seq. 23 Schabas, ICC, p. 164. 24 For the topic of self-referrals, cf Kreß, JICJ 2 (2004), 944; Schabas, ICC, pp. 164 et seq. 25 The situations and the resulting cases can be accessed via the ICC’s official website: http://www.icccpi.int/en_menus/icc/situations%20and%20cases/situations/Pages/situations%20index.aspx (last visited July 2017). 26 For the situation in Uganda, cf Apuuli, CLF 15 (2004), 391; Zeidy, ICLR 5 (2005), 83. 27 ICC (TC I), Prosecutor v. Lubanga, Judgment pursuant to article 74 of the Statute, ICC-01/04-01/062842, 14th March 2012 and ICC (TC I), Prosecutor v. Lubanga, Decision on sentence pursuant to article 76 of the Statute, ICC-01/04/-01/06-2901, 10th July 2012; see also Barthe, JZ 2013, 88. 28 ICC (AC), Prosecutor v. Lubanga, Judgment on the appeal of Mr Thomas Lubanga Dyilo against his conviction, ICC-01/04-01/06-3121-Red, 1st December 2014 and Judgment on the appeals of the Prosecutor and Mr Thomas Lubanga Dyilo against the “Decision on sentence pursuant to article 76 of the Statute”, ICC-01/01-01/06-3122, 1st December 2014; see von Maltitz, ORIL ICL 1653 (ICC 2014).

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sentence of 12 years of imprisonment in March 2014.29 Mathieu Ngudjolo Chui was acquitted of all charges in December 2012,30 confirmed by the Appeals Chamber in February 2015.31 Moreover, the Central African Republic (CAR) referred two separate situations in January 2005 and in May 2014. The investigation into the situation of CAR I resulted in the trial against Jean-Pierre Bemba Gombo, who was found guilty by the Trial Chamber in March 201632, sentenced to 18 years of imprisonment33. Moreover, Jean-Pierre Bemba Gombo, his former lead counsel Aime´ Kilolo Musamba, his former case manager Jean-Jacques Mangenda, Fidele Babala Wandu and Narcisse Arido were convicted in October 2016 for crimes against the administration of justice in the course of the main trial against Jean-Pierre Bemba Gombo.34 Furthermore, investigations into the situation of Mali, which was selfreferred by the Republic of Mali in July 2012, led to the prosecution, conviction and sentencing of Ahmad Al Faqi Al Mahdi to nine years of imprisonment in September 2016, following the first admission of guilt made before the ICC.35 The situation referred to the ICC by Comoros in May 2013 is particularly exceptional, as it relates to the extension of the ICC’s jurisdiction to parts of an aid-flotilla en route to the Gaza strip. As the situation did not confine itself to Comorian vessels, but also to ships sailing under Greek and Cambodian flags, the referral must be classified as only partially self-referral and partially regular state-referral. However, in November 2014, the Prosecutor decided not to open formal investigations into the situation, arguing that it lacked sufficient gravity.36 Subsequently, on the request of the government of Comoros, Pre-Trial Chamber I requested the Prosecutor to reconsider her decision.37 As the Rome Statute does not explicitly allow self-referrals, it was doubted whether 14 these were covered by art. 13 (a) of the Statute.38 It was argued against admitting selfreferrals that coming to terms with the past on a national level would strengthen the legal system of the submitting state at least as long as there is still a – more or less – functioning legal system. Moreover, there is the fear that states could “use” self-referrals to the ICC as a cheap and simple way to get rid of their own responsibility to prosecute 29 ICC (TC II), Prosecutor v. Katanga, Judgment pursuant to article 74 of the Statute, ICC-01/04-01/073436-tENG, 7th March 2014 and Decision on sentence pursuant to article 76 of the Statute, ICC-01/04-01/ 07-3484-tENG, 23rd May 2014; see also Stahn, JICJ 12 (2014), 809. 30 ICC (TC II), Prosecutor v. Ngudjolo, Judgment pursuant to article 74 of the Statute, ICC-01/04-02/ 12-3-tENG, 18th December 2012. 31 ICC (AC), Prosecutor v. Ngudjolo, Judgment on the Prosecutor’s appeal against the decision of Trial Chamber II entitled “Judgment pursuant to article 74 of the Statute”, ICC-01/04-02/12-271, 27th February 2015. 32 ICC (TC III), Prosecutor v. Bemba, Judgment pursuant to article 74 of the Statute, ICC-01/05-01/083343, 21st March 2016. 33 ICC (TC III), Prosecutor v. Bemba, Decision on sentence pursuant to article 76 of the Statute, ICC01/05-01/08-3399, 21st June 2016. 34 ICC (TC VII), Prosecutor v. Bemba et al., Judgment pursuant to article 74 of the Statute, ICC-01/0501/13-1989-Red, 19th October 2016; ICC (TC VII), Prosecutor v. Bemba et al., Decision on sentence pursuant to article 76 of the Statute, ICC-01/05-01/13-2123-Corr, 22nd March 2017. 35 ICC (TC VIII), Prosecutor v. Al Mahdi, Judgment and sentence, ICC-01/12-01/15-171, 27th September 2016. 36 ICC (OTP), Situation on the registered vessels of Comoros, Greece and Cambodia, Article 53 (1) Report, ICC-01/13-6-AnxA, 6th November 2014. 37 ICC (PTC I), Situation on the registered vessels of Comoros, Greece and Cambodia, Decision on the request of the Union of the Comoros to review the Prosecutor’s decision not to initiate an investigation, ICC-01/13-34, 16th July 2015; see also ICC (AC), Situation on the registered vessels of Comoros, Greece and Cambodia, Decision on the admissibility of the Prosecutor’s appeal against the “Decision on the request of the Union of the Comoros to review the Prosecutor’s decision not to initiate an investigation”, ICC-01/13-51, 6th November 2015. 38 Werle/Jeßberger, Principles of International Criminal Law, para. 298.

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international crimes.39 Nevertheless, the problem of self-referrals must be considered and solved in the context of the principle of complementarity, expressed in art. 17 of the Rome Statute: If the respective state is either unwilling or unable to prosecute the crimes at the domestic level the ICC has the right to exercise its jurisdiction.40 As a consequence the decision of Pre-Trial Chamber I that self-referrals are consistent with the Rome Statute41 is to be welcomed.

2. Proprio motu Investigations by the Prosecutor 15

Furthermore, the Prosecutor may initiate investigations proprio motu (= on his own initiative) under art. 13 (c), 15 (1) of the Rome Statute. In the course of the Rome Conference, the introduction of this trigger mechanism was able to prevail against strong political criticisms of those states, which were sceptical towards the creation of the Court. In return, proprio motu investigations were linked to a necessary approval by the Pre-Trial Chamber of the ICC: according to art. 15 (4) of the Rome Statute the Chamber determines whether there is a reasonable basis to proceed with an investigation and if the case appears to fall within the jurisdiction of the ICC. On 26th November 2009, former Prosecutor Luis Moreno Ocampo filed a request to open investigations into the situation of Kenya, dealing with electoral violence in the aftermath of the contested presidential elections in December 2007 and January 2008. Pre-Trial Chamber II granted the Prosecutor’s request, authorising formal investigations on 31st March 2010.42 Investigations into the situation of Kenya led particularly to two high profile cases that were conducted against, inter alia, Uhuru Muigai Kenyatta, currently serving as the president of Kenya and his deputy-president, William Samoei Ruto, former opponents who both came into office facing international criminal charges at the ICC.43 The Kenya cases were particularly troublesome for the ICC as they caused severe political reservations against the Court among African states. Moreover, both cases had to be terminated due to the lack of sufficient evidence brought forward by the Prosecutor,44 who herself claimed that Kenya’s unwillingness to fully cooperate was to be blamed for this development (see also para. 49).45

39

Cf Burke-White, Harv. Int. L. J. 49 (2008), 62. Schabas, ICC, p. 164; nevertheless, inconsistency is kept up at least in the case of unwillingness to carry out investigation or prosecution because a state referring a situation to the ICC actually expresses its support of criminal investigations, see Jurdi, ICLR 10 (2010), 73, 78 et seq. 41 ICC (PTC I), Prosecutor v. Lubanga, Decision concerning Pre-Trial Chamber I’s decision of 10th February 2006 and the incorporation of documents into the record of the case against Mr Thomas Lubanga Dyilo, ICC-01/04-01/06-8-Corr, 24th February 2006, para. 35. 42 ICC (PTC II), Situation in the Republic of Kenya, Decision Pursuant to art. 15 of the Rome Statute on the authorization of an investigation into the situation in the Republic of Kenya, ICC-01/09-19, 31st March 2010. 43 On the political background of the situation of Kenya, see Mueller, J. East. Afr. S. 8 (2014), 25. 44 On the withdrawal of charges in the Kenyatta case, see ICC (OTP), Prosecutor v. Kenyatta, Notice of withdrawal of the charges against Uhuru Muigai Kenyatta, ICC-01/09-02/11-983, 5th December 2014; ICC (TC Vb), Prosecutor v. Kenyatta, Decision on the withdrawal of charges against Mr Kenyatta, ICC01/09-02/11-1005, 13th March 2015; see for the termination of the Ruto and Sang case following the defendants’ “No Case to Answer” motion including references to “witness interference” and “political meddling”, ICC (TC Va), Prosecutor v. Ruto and Sang, Decision on the Defence applications for judgments of acquittal, ICC-01/09-02/11-2027-Red-Corr, 5th April 2016. 45 See the statement of the Prosecutor on the withdrawal of charges against Kenyatta, available under https://www.icc-cpi.int/Pages/item.aspx?name=otp-statement-05-12-2014-2 (last visited July 2017) and the statement on the termination of the Ruto and Sang case, available under https://www.icc-cpi.int/ Pages/item.aspx?name=otp-stat-160406 (last visited July 2017); for a detailed analysis of the Kenya cases, see Helfer/Showalter, JICJ 17 (2017), 1. 40

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§ 12. The International Criminal Court (ICC)

Moreover, former Prosecutor Ocampo initiated proprio motu investigations regarding the violent uprisings in the Republic of Coˆte d’Ivoire following the presidential elections at the end of 2010. The investigations were approved by Pre-Trial Chamber III on 3rd October 2011.46 Coˆte d’Ivoire had not been a Member State of the Statute at the time, but filed an ad hoc declaration in accordance with art. 12 (3) of the Rome Statute on 18th April 2003. In the meantime, Coˆte d’Ivoire has ratified the Rome Statute on 15th February 2013. The first trial in the situation of Coˆte d’Ivoire, conducted against former president Laurent Gbagbo and Ivorian youth leader Charles Ble´ Goude´, opened on 28th January 2016.47 Furthermore, on 27th January 2016, Pre-Trial Chamber I authorised the Prosecutor to initiate formal investigations into the situation of Georgia, following the escalation of violence in the de facto autonomous Georgian republics of South-Ossetia and Abkhazia in 2008. This is particularly remarkable, as the situation of Georgia thereby became the first situation outside of the African continent to be formally investigated by the ICC.48 From the outset, the Prosecutor had received numerous communications, i. e. letters by private persons and organisations, asking the Office of the Prosecutor to act with regard to different additional situations, for instance in Afghanistan, Colombia, Iraq, Palestine and Ukraine. Until now, the Prosecutor, however, refused to open formal investigations into those situations so far.49

3. Resolution of the UN Security Council Finally, the UN Security Council can trigger the investigation of a situation by a 16 resolution under Chapter VII of the UN Charter (art. 13 (b) of the Rome Statute).50 As a Security Council referral does not require the respective state on whose territory the situation occurred to be a member of the Rome Statute, this trigger mechanism is of great importance for the extension of the jurisdictional outreach of the Court.51 It has to be kept in mind, however, that especially the US and other permanent members of the Security Council, have held a rather sceptical and even hostile position towards the ICC.52 The relevance of Security Council referrals must therefore be put into perspective with regard to veto rights of the permanent members of the UN Security Council.53 Despite strong opposition, the situation of Darfur (Sudan) was submitted to the ICC on 31st March, 2005, by UN Security Council Resolution 1593 (2005)54 with the US abstaining55. It was decisive for the US not to veto the submission that the resolution contained a provision securing that Non-Member States of the Rome Statute (e. g. especially the US) do not have to fear prosecutions of their citizens by the ICC.56 46 ICC (PTC III), Situation in the Republic of Co ˆ te d’Ivoire, Decision pursuant to article 15 of the Rome Statute on the authorization of an investigation into the situation in the Republic of Coˆte d’Ivoire, ICC-02/11-14, 3rd October 2011. 47 See https://www.icc-cpi.int/Pages/item.aspx?name=pr1184 (last visited July 2017). 48 ICC (PTC I), Situation in Georgia, Decision on the Prosecutor’s request for authorization of an investigation, ICC-01/15-12, 27th January 2016. 49 ICC (OTP), Report on Preliminary Examination Activities, 14th November 2016, available under https://www.icc-cpi.int/pages/item.aspx?name=161114-otp-rep-PE (last visited July 2017). 50 Regarding the relationship between the Security Council and the ICC, see Trahan, CLF 24 (2013), 417. 51 Cf also Kaul, Humanita ¨res Vo¨lkerrecht – Informationsschriften 1998, 139. 52 For the position of the US towards the Court, cf Kindt, KritJ 2002, 427 et seq. and Ipsen, in: Ipsen (ed.), Vo¨lkerrecht, § 42 para. 29. 53 For the veto right of the permanent members of the UN Security Council, cf art. 27 (3) UN Charter. 54 Cf UN Security Council Resolution, S/RES/1593, 21st March 2005. 55 Cf Bassiouni, JICJ 4 (2006), 425. 56 UN Security Council Resolution, S/RES/1593, 21st March 2005, para. 6; cf Kurth, Das Verha ¨ltnis des Internationalen Strafgerichtshofs zum UN-Sicherheitsrat, pp. 73 et seq.

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Although this limitation was necessary to find a political compromise, it contradicts the ratio of art. 13 (b) of the Rome Statute and the general conception of the ICC. Meanwhile, the Prosecutor has gained worldwide attention by requesting an arrest warrant against the Sudanese President in office Omar Al Bashir in July 2008.57 Following this request, the Pre-Trial Chamber I issued the arrest warrant on 4th March 200958. A second arrest warrant was issued on 12th July 2010, based on the accusation of genocide.59 However, with the African Union strongly opposing the prosecutorial decision60, the arrest warrant has not been carried out so far, Al Bashir still acting as president of Sudan.61 On 26th February 2011, a second situation was referred to the ICC by the UN Security Council according to art. 13 (b) of the Rome Statute. With resolution 1970 (2011),62 the Security Council submitted the situation of Libya to the Prosecutor. The referral concerns violence against the civilian population in Libya in the wake of the democracy movement after 15th February 2011.63 It is noteworthy that the resolution was the first resolution that was adopted unanimously.64 Following an application of the Prosecutor on 27th June 2011, the Pre-Trial Chamber I issued arrest warrants against the former Libyan head of state Muammar Al-Gaddafi, his son Saif Al-Islam Gaddafi and his brother-in-law Abdullah Al-Senussi.65 After Muammar Al-Gaddafi had been killed under indistinct circumstances in October 2011, Pre-Trial Chamber I decided to terminate the proceedings against him on 22nd November 2011.66 Following the appeal of the Libyan government concerning possible proceedings against Saif Al-Islam Gaddafi and Abdullah Al-Senussi, due to concerns regarding the principle of complementarity (see paras 17 et seqq.), Pre-Trail Chamber I confirmed the admissibility of proceedings against Saif Al-Islam Gaddafi67, but denied the admissibility of proceedings

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For criticism, cf Nguyen, HRRS 2008, 368 et seq. ICC (PTC I), Prosecutor v. Al Bashir, Warrant of arrest for Omar Hassan Ahmad Al Bashir, ICC-02/ 05-01/09-1, 4th March 2009. 59 ICC (PTC I), Prosecutor v. Al Bashir, Second warrant of arrest for Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-95, 12th July 2010. 60 Cf the first resolution, which has since then been affirmed on a yearly basis; AU Assembly Decision, Decision on the application by the International Criminal Court (ICC) Prosecutor for the Indictment of the President of the Republic of the Sudan, Assembly/AU/Dec.221(XII), 1st – 3rd February 2009. 61 The question whether Al Bashir could be arrested on behalf of these arrest warrants is controversial since he is still in office, see Blommestijn/Ryngaert, ZIS 5 (2010), 428 et seq.; cf most prominently the refusal of the government of South Africa to capture and surrender Al Bashir in the context of a summit of the African Union in South Africa, disregarding the international arrest warrant and two orders of the South African Gauteng Division of the High Court, issued on 15th and 16th June 2015, cf Tladi, JICJ 13 (2015), 1027; ICC (PTC II), Prosecutor v. Al Bashir, Decision under article 87 (7) of the Rome Statute on the non-compliance by South Africa with the request by the Court for the arrest and surrender of Omar Al Bashir, ICC-02/05-01/09-302, 6th July 2017; in a recent decision, ICC Pre-Trial Chamber II confirmed South Africa’s obligation to arrest Al Bashir, however did not refer South Africa’s non-cooperation under art. 87 (7) of the Rome Statute to the Assembly of States Parties or the UN Security Council. 62 UN Security Council Resolution, S/RES/1970, 26th February 2011. 63 Details regarding the ICC’s position within the concept of the “Responsibility to Protect” with regard to Libya and Syria: Birdsall, CLF 26 (2015), 51; for further in-depth information on the referral by the Security Council in the case of Libya, see Bo, CLF 25 (2014), 505. 64 See http://www.un.org/News/Press/docs/2011/sc10187.doc.htm (last visited July 2017). 65 ICC (PTC I), Situation in the Libyan Arab Jamahiriya, Decision on the “Prosecutor’s application pursuant to article 58 as to Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi”, ICC-01/11-12, 27th June 2011. 66 ICC (PTC I), Prosecutor v. Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Decision to terminate the case against Muammar Mohammed Abu Minyar Gaddafi, ICC-01/11-01/11-28, 22nd November 2011. 67 ICC (PTC I), Prosecutor v. Saif Al-Islam Gaddafi and Al-Senussi, Decision on the admissibility of the case against Saif Al-Islam Gaddafi, ICC-01/11-01/11-344-Red, 31st May 2013. 58

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against Abdullah Al-Senussi68. These decisions have been confirmed by the Appeals Chamber. The Libyan government, however, continually refuses to transfer Saif AlIslam Gaddafi to the ICC.69 Contrary to criticisms, art. 13 (b) of the Rome Statute does not extend the competencies of the UN Security Council that would possibly have required a revision of the UN Charter. Rather, the Security Council is now allowed to submit situations to the ICC just as it could install ad hoc tribunals on the basis of Chapter VII of the UN Charter.70 This therefore avoids new ad hoc tribunals and the problems connected to such institutions (see § 11 paras 18 et seqq.) having to be installed in addition to the ICC. Even if the relationship between the UN Security Council and the ICC seems to have taken a turn for the better facing the referral of the situation of Darfur (Sudan) and especially the situation of Libya, the cooperation is still overly dependent on the political considerations of the permanent members of the Security Council. An example of this is the fact that the situation in Syria could not be referred to the ICC due to strict opposition of the veto powers China and Russia.71

V. Principle of Complementarity 1. The Principle of Complementarity within the Legal System of the ICC The Rome Statute stipulates priority of domestic criminal proceedings over proceed- 17 ings at the ICC. Therefore, the ICC is generally not allowed to exercise its jurisdiction, if domestic criminal proceedings are or have been carried out, even if there were crimes committed that fall under its jurisdiction. However, there are two exceptions to this principle: the ICC may exercise its jurisdiction if the state concerned is unwilling or unable to carry out the investigation or prosecution genuinely (art. 17 of the Rome Statute) or simply remains passive. This basic rule is called the principle of complementarity72. The complementarity rule is based on the distinction between the jurisdiction ratione materiae of the ICC (art. 5 of the Rome Statute) and the exercise of its jurisdiction (art. 12 of the Rome Statute). If the jurisdiction of both the national courts and the ICC is given the principle of complementarity decides whether the ICC is allowed to carry out the proceedings. The principle applies to each phase of the proceedings so that the 68 ICC (AC), Prosecutor v. Saif Al-Islam Gaddafi and Al-Senussi, Judgment on the appeal of Mr Abdullah Al-Senussi against the decision of Pre-Trial Chamber I of 11th October 2013 entitled “Decision on the admissibility of the case against Abdullah Al-Senussi”, ICC-01/01-01/11-565, 24th July 2014. 69 Disagreements had already escalated between the ICC and the Libyan government regarding the surrender of the accused, which even led to the temporary incarceration of four ICC-employees by the Libyan government in June 2012. Pre-Trial Chamber I ordered the immediate surrender of Al-Senussi to the ICC, see ICC (PTC), Prosecutor v. Saif Al-Islam Gaddafi and Al-Senussi, Decision on the “Urgent application on behalf of Abdullah Al-Senussi for Pre-Trail Chamber to order the Libyan Authorities to comply with their obligation and the orders of the ICC”, ICC-01/11-01/11-269, 6th February 2013; for further details concerning the Libyan situation, see Stahn, JICJ 10 (2012), 325, 332 et seq.; Redlefsen, JR 2012, 497 et seq. 70 Hoffmeister/Knoke, Zao ¨ RV 1999, 785, 789 et seq.; YBILC 1994, vol. II Part Two (A/49/10), II. Draft Code of Crimes against the Peace and Security of Mankind, art 23 para. 1; on the competence of the Security Council to create such tribunals, see ICTY, Prosecutor v. Tadic, Decision on the Defence motion for interlocutory appeal on jurisdiction, IT-94-1-AR72, 2nd October 1995. 71 See the rejected proposal in the Security Council, available under http://www.un.org/apps/news/ story.asp?NewsID=47860#.VdL1J5d8pSM (last visited July 2017). 72 For the principle of complementarity, see Ellis, Sovereignty and Justice; Lafleur, Grundsatz der Komplementarita¨t; Razesberger, The Principle of Complementarity.

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ICC must constantly ensure that it is still allowed to exercise its jurisdiction. If the ICC comes to the conclusion that the jurisdiction of a domestic court is or has been seriously administered, it has to terminate its own proceedings. The question, under which circumstances the ICC’s jurisdiction may be exercised remains to be of crucial importance. The most challenging upcoming aspect for practitioners will be to determine when a state is considered to be “unwilling or unable” to conduct “serious” investigations and prosecutions. 18 Under art. 17 of the Rome Statute, a state may be considered unwilling to carry out criminal proceedings, if it is initiating so-called sham proceedings. In these cases, the national law enforcement agencies are not truly interested in a fair conviction of the accused but in shielding him or her from ICC prosecutions. As the unwillingness of the respective state constitutes a subjective criterion, it is obviously not easy to be proven. Insufficient punishment may for example be taken into account in this respect. Eventually, some discretion will have to be granted to the states concerned regarding the appropriate punishment of the offender. A wide range of penalties provided for in domestic criminal law will be sufficient to satisfy the requirements of complementary, as long as the punishment is not clearly inappropriate due to a lack of gravity73. 19 The inability to carry out domestic proceedings requires that the state is in principle willing to bring the alleged offenders to court, but is ultimately hindered in doing so due to factual objective reasons, e. g. because of a collapse of the country’s legal system following a civil war.74 Example: Jean-Pierre Bemba Gombo (situation of the Central African Republic), who was charged with war crimes and crimes against humanity, sought dismissal of the trial referring to art. 17 of the Rome Statute, since a domestic criminal trial against him had been dismissed. When its revision got approved, the situation had already been sent to the ICC. On 24th June, 2010 the Trial Chamber approved the admissibility of the procedure according to all alternatives of art. 17 of the Rome Statute. Since no criminal prosecution had been carried out, the Central African Republic had to be considered unable to perform the prosecution. Moreover, there was no final judgment on the national level and the case was of sufficient gravity.75 Another interesting problem arises, when a state is lacking national criminal legislation that criminalises international crimes, although the domestic legal system is generally to be considered intact. In these cases, it seems problematic that a state has not implemented distinct provisions criminalising the core crimes that can be found in the Rome Statute. The state is therefore only capable to prosecute the respective conduct as an “ordinary crime” such as murder, rape or assault. If adequate sanctions can be and – actually – are imposed in these cases, one might argue against the exercise of jurisdiction by the ICC that the Rome Statute does not contain any obligation to implement the core crimes into national law76 but rather respects the national legal systems. On the other hand, and this is decisive, if a conduct falling under the international definition of e. g. a crime against humanity is “only” punished as e. g. rape, the conviction does not completely express the 73 This corresponds to the opinion expressed in the draft bill to the German VStGB; cf the reasons of the draft bill of the German Government, Bundesrat document 29/02, p. 38. 74 In favour of a clear distinction between physical and legal inability under art. 17 (3) of the Rome Statute, see Hassanein, ICLR 15 (2015), 101. 75 ICC (TC III), Prosecutor v. Bemba, Decision on the admissibility and abuse of process challenges, ICC-01/05-01/08-802, 24th June 2010. 76 Akhavan, JICJ 8 (2010), 1245.

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dimension of the specific legal harm resulting from the violation of a legal interest of the international community as a whole. In spite of a potentially adequate punishment, an appropriate legal qualification is therefore missing77. Example: Based on a similar argument, the transferral of Michel Bagaragaza, former General Director of the supervisory board of the Rwandan tea industry from the ICTR to a Norwegian court, was declined in 2006 as the Norwegian law at that time did not explicitly criminalise genocide as a domestic crime, so that the crime would only have been indicted as murder78. It may be called into question, whether the principle of complementarity provides 20 indirect protection for the defendant against violations of human rights during his trial in his home state. ICC procedures could be admissible, if it cannot be guaranteed that these rules will be abided by before national criminal courts. This very question was addressed by Pre-Trail Chamber I in the Al-Senussi case. The chamber ruled that potential procedural breaches do not per se indicate that a state is “unwilling or unable” to conduct serious investigations. However, a case may be admissible at the ICC if the potential procedural breaches are indicative of the fact that the state is not aiming for a fair ruling and that the trial cannot be conducted in an independent and neutral manner.79 Another criterion to be satisfied for the ICC to be allowed to exercise its jurisdiction 21 is the so-called minima-clause under art. 17 (1) (d) of the Rome Statute. The provision demands that a case needs to be of sufficient gravity to justify actions by the Court. The ICC case-law originally interpreted the gravity-threshold in a rather narrow sense, restricting its focus to “the most senior leaders suspected of being primarily responsible for the crimes within the jurisdiction of the Court”80. The Chambers’ interpretation of the minima-clause, however, has subsequently changed; so that the Court only analyses, whether there are indicators that the gravity-threshold is exceptionally not met.81 The principle of complementarity marks a far-reaching difference between the 22 structure of law enforcement by the ICC and its predecessor institutions of international criminal justice. Germany and Japan had absolutely no possibility to domestically prosecute the main war criminals of the Nuremberg and Tokyo trials and even the (subsequent) ad hoc tribunals took primacy over national jurisdiction. This principle of complementarity therefore underlines the unique role of the ICC being “a court of last resort”82. 77 Cf Lafleur, Der Grundsatz der Komplementarita ¨t, pp. 246 et seq.; this problem also arises with regard to the prohibition of double jeopardy as the wording of art. 20 of the Rome Statute is almost identical with that of art. 17 of the Rome Statute, cf Liu, Chinese Journal of International Law 2007, 789 et seq. 78 ICTR (TC), Prosecutor v. Bagaragaza, Decision on the prosecution motion for referral to the Kingdom of Norway, ICTR-2005-86-R11bis, 19th May 2006, para. 16. 79 ICC (PTC I), Prosecutor v. Saif Al-Islam Gaddafi and Al-Senussi, Decision on the admissibility of the case against Abdullah Al-Senussi, ICC-01/11-01/11-466-Red, 11th October 2013, para. 235; confirmed by ICC (AC), Prosecutor v. Saif Al-Islam Gaddafi and Al-Senussi, Judgment on the appeal of Mr Abdullah Al-Senussi against the decision of Pre-Trial Chamber I of 11th October 2013 entitled “Decision of the admissibility of the case against Abdullah Al-Senussi”, ICC-01/11-01/11-565, 24th July 2014, paras 220 et seq. 80 ICC (PTC I), Prosecutor v. Lubanga, Decision concerning Pre-Trial Chamber I’s decision of 10th February 2006 and the incorporation of documents into the record of the case against Mr Thomas Lubanga Dyilo, ICC-01/04-01/06-8-US-Corr, 24th February 2006, para. 50. 81 Cf for the first time ICC (AC), Prosecutor v. Lubanga, Judgment on the Prosecutor’s appeal against the decision of Pre-Trial Chamber I entitled “Decision on the Prosecutor’s application for warrants of arrest, article 58”, ICC-01/04-169, 13th July 2006, paras 36 et seq.; ICC (PTC I), Prosecutor v. Al Bashir, Warrant of Arrest for Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-1, 4th March 2009. 82 Philips, CLF 10 (1999), 61, 64.

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As it lies within the competence of the ICC itself to decide whether the criteria of art. 17 of the Rome Statute are fulfilled (see art. 18, 19 of the Rome Statute), the role of the Court should not be underestimated. In this regard, the ICC exercises a kind of Kompetenz-Kompetenz (the power to establish its own jurisdiction). 24 It has been disputed whether the principle of complementarity is also applicable if the ICC’s jurisdiction was triggered by a referral of the UN Security Council (see para. 16).83 Taking into account the wording of art. 53 (2) of the Rome Statute, the Statute seems to suggest that the principle of complementarity also applies to such proceedings, as it stipulates that the Prosecutor has to explain to the Security Council why he assumes that investigations into situation referred by the Security Council are not admissible under art. 17 of the Rome Statute.84 Moreover, in practice, the ICC seems inclined to apply the principle of complementarity to cases that are based on situations referred to it by the Security Council. This is distinctly demonstrated by the precise analysis of the question of complementarity in the cases of Saif Al-Islam Gaddafi and Al-Senussi. 25 In case 21a, the Prosecutor opened the situation proprio motu, which requires an authorisation of investigations by the Pre-Trial Chamber according to art. 15 (4) of the Rome Statute, based on an analysis, whether the Court has jurisdiction and the prerequisites of exercising the jurisdiction of the ICC are met. The latter leads to the analysis of the requirements of the principle of complementarity, asking, whether state M is unwilling or unable to genuinely carry out criminal proceedings. If an investigation is carried out hesitantly for more than five years without any specific results, the proceeding seems to be intended to solely protect G against the ICC’s intervention (so-called “sham-proceeding”). The state thus turns out to be unwilling to seriously prosecute the alleged international crimes of G. Therefore, as the jurisdiction of the ICC is given and the principle of complementary does not oppose further investigations, the Prosecutor may proceed with the prosecution of the case. 23

2. Broader Impact on National Criminal Systems 26

Limiting the analysis of the principle of complementarity to its implications on the framework of the ICC would however undervalue the indirect effect the principle has on the Member States of the Rome Statute. Although the Rome Statute does not expressly oblige its Member States to incorporate the core crimes into their national legal systems,85 in clause VI of its preamble it assumes that there is a “duty of every State to exercise its criminal jurisdiction over those responsible for international crimes” which derives from customary international law.86 Therefore, the Rome Statute is based on the premise that the enforcement of International Criminal Law is twofold: direct enforcement and indirect enforcement.87 The principle of complementarity connects both levels by exerting (political) pressure on the Member States to prosecute international crimes primarily on a national level. As already described, the ICC’ s exercise of jurisdiction is only admissible, if enforcement on the national level fails due to the unwillingness or inability of the competent Member State to genuinely investigate and prosecute the respective international criminal 83 Dismissive Philips, CLF 10 (1999), 61, 73; for a differing view, see Cassese, Int. Criminal Law, p. 298; Politi, in: Politi/Nesi (eds), Rome Statute, p. 13. 84 Kurth, Das Verha ¨ltnis des Internationalen Strafgerichtshofs zum UN-Sicherheitsrat, p. 62. 85 See, also Werle, JZ 2001, 886; Dietmeier, in: Graul et al. (eds), GS Meurer, 2002, p. 335; Kreicker, ICLR 2005, 314 et seq.; this does not apply to offences against the administration of justice, cf art. 70 (4) (a) of the Rome Statute. 86 See Kreß, Nutzen eines deutschen VStGB, p. 9; Wirth/Harder, ZRP 2000, 146; Lagodny, ZStW 113 (2001), 803. 87 See § 10 para 7 et seq.

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conduct. Therefore, any case in which the ICC declares international criminal proceedings admissible is linked to a judgment on the dysfunctionality of the national legal system and/or the (political) unwillingness to prosecute crimes, which the state itself had previously declared to constitute a concern to the international community as a whole. In order for a willing state to avoid such public shaming, it becomes necessary to amend its own legal system in order to cover those crimes falling under the material jurisdiction of the ICC. Consequently, the principle of complementarity does not entail a formal legal obligation, but a strong political incentive for Member States to incorporate the core crimes into their national legal systems.88 As the Rome Statute does however not give any specific guidance to its Member States in this regard, different ways of incorporation of international criminal norms into national legal systems have been developed, which will be illustrated in the following. a) Direct Application of Customary International Law. As all international crimes 27 falling under the material jurisdiction of the Rome Statute form part of customary international law,89 national jurisdictions could – first of all – directly apply those customary norms in order to punish international crimes within their legal systems. This way of incorporation would allow to cover precisely every conduct prohibited by the Rome Statute and thereby render an “inability judgment” most unlikely. However, this solution, although not in conflict with international law, would inevitably cause considerable infringements of the principle of legality respected by virtually all national legal systems. Customary law by its very nature can neither be found in any international nor in any national written norm. Therefore, this method would fundamentally contradict the (national) principles of lex certa and lex scripta, which are substantial corollaries of the principle of legality.90 Consequently, even common law jurisdictions, which generally accept a less strict interpretation of the principle of legality with regard to the principles of lex certa and lex scripta, did not choose this way of implementation.91 b) Dynamic References to Customary International Law. A second possibility of 28 incorporating international criminal norms into national legal systems is to introduce dynamic references to customary international law into national law.92 This approach reduces the infringements of the principle of legality, as the range of sentences to be applied to the individual criminal offences can be determined by national legal provisions. Dynamic references constitute an effective and rather convenient way of incorporation, as they are flexible in nature, automatically reflecting all developments and modifications of customary international law without any consecutive adoption of further legislation. Although dynamic references help to reduce the infringements of the legality principle, regarding the penal sanctions to be imposed, considerable doubts remain in view of the definition of the elements of the criminal offences.93 Using dynamic references entails that the individual has to explore the unwritten and often indeterminate realm of customary international law in order to know, which conduct will be 88

Cf Ambos, Int. Strafrecht, § 6 para 35. Kreicker, in: Eser et al. (eds), Nationale Strafverfolgung, vol. 7, p. 24; see also ICTY, Prosecutor v. Krstic´, Judgment, IT-98-33-T, 2nd August 2001, para 541. 90 Kreicker, in: Eser et al. (eds), Nationale Strafverfolgung, vol. 7, pp. 24 et seq. 91 Kreicker, in: Eser et al. (eds), Nationale Strafverfolgung, vol. 7, pp. 25 et seq. 92 Ambos, Int. Strafrecht, § 6 para 36. 93 Kreicker, in: Eser et al. (eds), Nationale Strafverfolgung, vol. 7, pp. 27 et seq. 89

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punishable under national law. This creates a troublesome degree of legal uncertainty, implying an intolerable burden upon the individual. Consequently, only few states have implemented this way of incorporation in a very restrictive way and mostly limited to the context of war crimes (e. g. Canada,94 Finland95 and Sweden96).97 29

c) Explicit References to the Rome Statute. Thirdly, some states have included explicit references to the Rome Statute in their national legal systems.98 This approach is particularly popular in English speaking states (e. g. England, Wales and Northern Ireland99, Scotland100 and New Zealand101), which have the possibility to refer directly to an authoritative text of the Rome Statute in their own official language (as English is one of the ICC’s official languages). Explicit references to the Rome Statute imply a greater problem for those states that do not share a similar language advantage, as their official language is not among the official languages of the ICC. Their judicial authorities would then be obliged to apply norms not available (without translation) in their own national language, which would inevitably be a source of legal uncertainty. The language barrier is, however, not the only deficit of this incorporation model. As seen above, the Rome Statute and its individual criminal offences are based on a unique compromise between the signatory states; therefore, the jurisdiction of the ICC does not cover all aspects of customary international law.102 Using explicit references to the Rome Statute, those deficits would be directly transferred into national legal systems, which would generally be willing and able to incorporate the higher requirements of customary international law.

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d) The Ordinary National Crime Solution. Fourthly, some states have refrained from incorporating (all) international crimes into their legal systems, therefore, (partly) relying on ordinary national criminal norms in order to investigate and prosecute international criminal conduct (e. g. Greece,103 Italy104 and Japan105). Compared to the other solutions described so far, this method guarantees the highest degree of legal certainty and therefore fully respects the principle of legality. Moreover, it is the most convenient way for national criminal courts and enforcement agencies, as pursuing this approach they are not obliged to refer to international law, but can rely on well-known norms already forming part of their own national legal systems. Despite those major advantages, the model is partly criticised, as simply applying “ordinary” national law cannot reflect the distinct blameworthiness of individual conduct constituting a crime under international law and does therefore not necessarily fully satisfy the main purpose 94 Canada uses broad dynamic references to international law in order to define all international crimes, see art. 4 (3) of the Canadian Crimes against Humanity and War Crimes Act, 29th June 2000. 95 See ch. 11 sec. 5 (2) of the Criminal Code of Finland, amended by Act 212/2008. 96 Cf the Swedish Act on Criminal Responsibility for Genocide, Crimes against Humanity and War Crimes, 28th May 2014. 97 Ambos, Int. Strafrecht, § 6 para 36. 98 Ambos, Int. Strafrecht, § 6 para 36. 99 International Criminal Court Act 2001, 11th May 2001. 100 International Criminal Court (Scotland) Act 2001, 24th September 2001. 101 International Crimes and International Criminal Court Act 2000, 6th September 2000. 102 Kreicker, in: Eser et al. (eds), vol. 7, Nationale Strafverfolgung, p. 29. 103 See on Greek criminal law and the incorporation of international crimes, Retalis, in: Eser et al. (eds), Nationale Strafverfolgung, vol. 5, pp. 195 et seqq. 104 On Italian criminal law and a proposal for the incorporation of international crimes, see Roscini, JICJ 5 (2007), 493 et seqq. 105 On Japanese criminal law and the incorporation of international crimes, see Sato ¯ , GoJIL 4 (2012), 765, 774; on Japanese criminal law and the ICC in general, see Arai/Mayama/Yoshida, JYIL 51 (2008), 359.

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of International Criminal Law, i. e. the protection of specific legal interests attributed to the international community as a whole.106 e) The Specific National Crime Solution.

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Lastly, multiple states have implemented a solution that seeks to fully incorporate international crimes into national law, protect the principle of legality and reflect the specific blameworthiness of international crimes. Such an approach can only be implemented by national legislators, passing criminal statutes or individual norms to incorporate international criminal offences into their national criminal law systems (e. g. Republic of Congo,107 Germany,108 the Netherlands,109 South Africa110 and South Korea111). This method of incorporation seems particularly favourable, as national legislators can decide whether they want to limit themselves to those criminal offences covered by the Rome Statute or to reflect possibly exceeding standards of customary international law.112 However, this solution entails also some disadvantages. First of all, it is static in nature, as it does not provide any mechanism to account for the ongoing development of International Criminal Law, particularly emerging customary international law based on the case-law of the ICC and other international criminal courts and tribunals. Moreover, it is difficult for any national legislator to fully cover the exact criminal offences enlisted in the Rome Statute, particularly as such method of incorporation will often require the translation of international criminal norms, which entails a risk of not covering the specific notions expressed or read into the international criminal norm. More importantly, however, national legislators are bound by national constitutional law and domestic principles of legality, which may hinder full incorporation of international criminal offences into national law in cases international norms lack sufficient clarity and certainty themselves. Some individual criminal offences falling under the material jurisdiction of the ICC cannot live up to national, stricter standards of the principle of legality, requiring national legislators to deviate from the interna106

Cf Kreicker, in: Eser et al. (eds), Nationale Strafverfolgung, vol. 7, pp. 30 et seq. Congolese Criminal Act on the prohibition of Genocide, War Crimes and Crimes against Humanity no. 8-98, 31st October 1998. 108 German Code of Crimes against International Law (VStGB), 26th June 2002; for a detailed overview, see Satzger, IntStr, § 17. 109 Dutch International Crimes Act, 19th June 2003. 110 See the South African Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002, 16th August 2002. 111 See the South Korean Act on the Punishment, etc. of Crimes within the Jurisdiction of the International Criminal Court, 21st December 2007. 112 See e. g. for the legislative intention for implementing the German VStGB, S/S-Eser/Hecker, Vor § 1 para. 23. 107

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tional norm in order to legally incorporate them into national law.113 This may be especially troublesome for willing national legislators, as they hereby consciously risk to be declared “unable” to prosecute international criminal conduct under certain circumstances, leading to the admissibility of a particular case under the complementarity principle. However, such “inability” will be rooted in the systematic protection of human rights and the principle of legality, reducing the shaming effect such “inability judgment” normally entails to the greatest possible extent.

3. Complementarity in Practice 32

All in all, the principle of complementarity constitutes a cleverly conceived mechanism to balance state sovereignty concerns against the need to end impunity of international crimes. It foresees a way to combine direct and indirect enforcement of International Criminal Law, granting the nation states the primary right to prosecute international criminal conduct on a national level, – an important feature, facing the generally limited (financial and personal) capacity of the ICC. Moreover, the principle of complementarity does not oblige its Member States to either amend their national legal orders to cover international criminal conduct or to prosecute such conduct in an individual case; however, it creates strong political incentives for a state to do so in order to prevent a shaming inability or unwillingness judgment. Respecting state sovereignty as far as possible, the Rome Statute does not give any binding directives as to how willing states should incorporate international crimes into their national systems and how national criminal proceedings should be carried out, as long as they are in conformity with internationally recognised human rights standards. However, elements of positive complementarity114 seem to be introduced in the legal practice of the ICC, offering such guidance to states asking for help to avoid criminal proceedings on the international level. Consequently, the principle of complementarity broadens the ICC’s outreach to form a far-reaching system of international criminal justice widely beyond the Court’s own courtrooms. At the same time it emphasises the ICC’s nature to be a “court of last resort”, respecting state sovereignty concerns as far as possible.

VI. Institutional Aspects 33

The ICC as a permanent institution of international criminal justice was established in The Hague, the Netherlands.115 In order to be able to fulfil its contractual obligations, it is provided with an own international legal personality according to art. 4 (1) of the Rome Statute. It thus acquired the legal capacity in the terms of international law that is necessary to perform its tasks and to fulfil its goals. Apart from the fact that the ICC is set up permanently, its legal personality clearly distinguishes the ICC from the ad hoc tribunals. The latter were created as subsidiary bodies of the UN Security Council and only for a limited period of time. The relation of the ICC to the UN is specified by a special agreement which emphasises the authority and the universal character of the Court.116 In spite of many differences, the 113

See for example on the German law Satzger, IntStr, § 17 paras 20 et seqq. On positive complementarity, see Burke-White, CLF 19 (2008), 59. 115 The city of Nuremberg had also shown some interest in becoming the host of the ICC, but The Hague, already being called the “international city of peace and justice” was eventually preferred. 116 Negotiated Relationship Agreement between the International Criminal Court and the United Nations, ICC-ASP/3/25, signed on 4th October 2004; Seidel/Stahn, Jura 1999, 15. 114

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structure of the Court strongly resembles the structure of the ICTY and the ICTR. According to art. 34 of the Rome Statute, the Court is composed of: – The Presidency, consisting of three judges – The Pre-Trial Division, with each Pre-Trial Chamber consisting of three judges – The Trial Division, with each Trial Chamber consisting of three judges – The Appeals Division, consisting of five judges – The Office of the Prosecutor – The Registry

1. The Judges According to art. 36 (1) of the Rome Statute the Chambers shall consist of 18 judges; 34 they must “possess the qualifications required in their respective States for appointment to the highest judicial offices” (art. 36 (3) (a) of the Rome Statute). The judges are nominated by the Member States and elected by the Assembly of States Parties by secret ballot. A balance of professionals and practitioners of both criminal law and international law (art. 36 (3) (b) of the Rome Statute) shall also be taken into account as (according to art. 36 (8) (a) of the Rome Statute) a representation of the principal legal systems of the world, an equitable geographical representation and a fair representation of male and female judges. The judges and the Office of the Prosecutor are independent and not subject to any directives (art. 40, 42 of the Rome Statute); they enjoy immunity before national courts with respect to their official work (art. 48 (2) of the Rome Statute). Silvia Ferna´ndez de Gurmendi from Argentina has taken office as president of the ICC in 2015 succeeding Philippe Kirsch (2003–2009) from Canada and Sang-Hyun Song (2009–2015) from South Korea. The judges’ regular term in office is nine years; reelection is excluded (art. 36 (9) of the Rome Statute) in order to secure the independence of the judges.117

2. The Registry The Registry of the ICC is responsible for the non-judicial aspects of the administra- 35 tion and servicing of the Court (art. 43 of the Rome Statute). The Registrar of the ICC is elected by the judges for a term of five years, eligible for re-election once. The Registry has a Victims and Witnesses Unit that shall provide “protective measures and security arrangements, counselling and other appropriate assistance for witnesses, victims who appear before the Court” (art. 43 (6) of the Rome Statute)118.

3. The Prosecutor The ICC’s Office of the Prosecutor is an independent body of the Court. The Prosecutor 36 is authorised to initiate investigations on his own account (propio motu – art. 13 (c), 15 of the Rome Statute), requesting the authorisation of the Pre-Trial Chamber119. The Assembly of States Parties elected the Argentinean Luis Moreno-Ocampo on 21st April 2003 to be the first Prosecutor of the ICC. He was succeeded by Fatou Bensouda from the Gambia on 16th December 2011. The Prosecutor‘s term in office is also nine years. The Prosecutor is not eligible for re-election pursuant to art. 42 (4) of the Rome Statute.

117

See also Cassese/Gaeta/Jones-Jones, Rome Statute, p. 246. For the situation of the victims before the ICC, see Abo Youssef, Die Stellung des Opfers im Vo¨lkerstrafrecht; Bock, ZStW 119 (2007), 664. 119 For the role of the Prosecutor, cf Rost/Ruegenberg, ZStW 111 (1999), 297 et seq. 118

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4. Financing 37

The Court is financed by the States Parties (art. 115 (a) of the Rome Statute), with Japan and Germany bearing the main financial burden. In addition, voluntary allowances by governments, international organisations, private persons and other entities are possible (art. 116 of the Rome Statute). Art. 115 (b) of the Rome Statute provides for financial assistance by the UN, particularly in relation to costs that arise from referrals of the Security Council. The Security Council however explicitly excluded the possibility of financial relief in its resolutions on the referral of Darfur (Sudan) and Libya,120 which has been heavily criticised.121

VII. Procedure 38

Compared to the usual standards of international treaties, the Rome Statute regulates the criminal procedure in a very detailed manner.122 Nevertheless, according to art. 51 of the Rome Statute, the Assembly of States Parties has adopted additional and independent Rules of Procedure and Evidence (RPE), the content of which extends the Rome Statute.

1. Preliminary Investigation 39

Following the referral of a “situation”123 under art. 13 of the Rome Statute, the Prosecutor evaluates the available information in order to determine whether there is a reasonable basis for the initiation of investigations (art. 53 of the Rome Statute). The Prosecutor examines whether the given information is sufficient for the assumption that an international crime has been committed and whether the principle of complementarity or the “interest of justice requirement” hinders the ICC from intervening in the respective situation. The “interest of justice requirement” allows the Prosecutor to refrain from investigations, if those would not serve the interest of justice (art. 53 (1) (c) of the Rome Statute). As the Prosecutor has not made any use of this provision so far, it is yet to be seen, which cases will be covered by the interest of justice criterion. However, the provision could play a major role in reconciling the Court’s work with other transitional justice mechanisms, such as Truth and Reconciliation Commissions.124 If the Prosecutor takes the initiative proprio motu, i. e. on his own account under art. 13 (c), 15 (1) of the Rome Statute, the formal initiation of the investigation has to be approved by the Pre-Trial Chamber (cf art. 15 (3) of the Rome Statute) as described above (see para. 15). This limitation of the independence of the Prosecutor is a concession to those states that had rejected the possibility of proprio motu investigations and far-reaching independence of the Prosecutor until the very end of the negotiations in Rome. 120 UN Security Council Resolutions, S/RES/1593, 31st March 2005, para. 7 and S/RES/1970, 26th February 2011, para. 8. 121 Schabas, Introduction, pp. 174 et seq. 122 For the procedural law, cf the foundational work of Safferling, International Criminal Procedure. 123 A “situation” is defined in a broad sense with regard to time, place, potential offenders and victims. The investigations might then lead to the identification of one or more specific cases which are indicted separately and which form separate procedural subjects, cf Ola´solo, ICLR 5 (2005), 121, 125 et seq.; Rastan, CLF 19 (2008), 435 et seq. 124 For this difficult question of differentiation, cf Maged, ICLR 6 (2006), 419, 424 et seq.; Rodman, LJIL 22 (2009), 99 et seq.; ICC (OTP), Policy Paper on the Interests of Justice, ICC-OTP-2007, September 2007, pp. 7 et seq. where these mechanisms are considered “complementary”.

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The Prosecutor has an obligation to carry out the investigations objectively, i. e. to investigate incriminating and exonerating circumstances equally. The Prosecutor is thereby obliged to determine the material truth (art. 54 (1) (a) of the Rome Statute). Even though this may seem self-evident from the point of view of continental criminal procedure, this provision deviates from the classical role of prosecutors in adversarial common law systems, who have a rather limited unilateral duty of investigations.125 Compulsory measures restricting fundamental rights of the suspects (e. g. arrest 40 warrants, search warrants and the summons to appear) can only be ordered by the Pre-Trial Chamber according to art. 58 of the Rome Statute. Less severe measures, however, can be taken by the Prosecutor himself, independent of any judicial decision (e. g. the collection of evidence, the seeking of cooperation with a state or the questioning of witnesses). In many ways, the Pre-Trial Chamber therefore resembles the German Ermittlungsrichter126, the Austrian Gericht im Ermittlungsverfahren127, the Swiss Zwangsmaßnahmegericht128, or the Italian giudice delle indagini prelimiari129.

2. Confirmation of Charges After the surrender of a person to the ICC or a voluntary appearance, the Pre-Trial 41 Chamber carries out a confirmation hearing. (art. 61 (11) of the Rome Statute) During this hearing the charges against the accused are examined. Even at this early stage, the Prosecutor and the accused can present or challenge evidence. The Pre-Trial Chamber decides according to its own discretion whether there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged, art. 61 (7) of the Rome Statute. If the charges are confirmed, a Trial Chamber is set up. If the charges are declined, the Prosecutor may submit additional evidence and subsequently once more ask for the confirmation of the charges (cf art. 61 (8) of the Rome Statute). The confirmation of charges decision cannot be appealed under art. 82 (1) (b) of the Rome Statute, but only under art. 82 (1) (d) of the Rome Statute if the additional requirements are satisfied.130 Finally, it remains possible to adjourn the hearing and request the Prosecutor to provide further evidence or to amend the charges.131

3. Trial After the confirmation of charges, a trial chamber is constituted, which is responsible 42 for the conduct of subsequent proceedings (art. 61 (11) of the Rome Statute). Pursuant to art. 64 (7) of the Rome Statute, international criminal trials at the ICC are carried out publicly and according to art. 69 (3) of the Rome Statute, the Chamber has “the authority to request the submission of all evidence that it considers necessary for the determination of the truth”. These provisions underline the strong influence of the continental legal system on ICC proceedings, which differs from the Anglo-American 125

Kirsch, ICLR 6 (2006), 275, 285 et seq.; Roxin, Strafverfahrensrecht, § 73 para. 7. Cf § 162 StPO. 127 §§ 104 et seq. StPO-Austria. 128 § 18 (1) StPO-Switzerland. 129 Cf Cassese, Int. Criminal Law, p. 374. 130 ICC (AC), Prosecutor v. Lubanga, Decision on the admissibility of the appeal of Mr Thomas Lubanga Dyilo against the decision of Pre-Trial Chamber I entitled “De´cision sur la confirmation des charges” of 29th January 2007, ICC-01/04-01/06-926, 13th June 2007. 131 ICC (PTC III), Prosecutor v. Bemba, Decision adjourning the hearing pursuant to article 61 (7) (c) (ii) of the Rome Statute, ICC-01/05-01/08, 3rd March 2009, para. 16; see also Triffterer/Ambos-Schabas/ Chaitidou/El Zeidy, Rome Statute, art. 61 para. 136. 126

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“common law”.132 In legal practice, however, the common law system remains very influential, e. g. concerning the structure of the trial proceedings as well as the practice of witness questioning.133 Those aspects are strongly influenced by the procedures of the ad hoc tribunals,134 which themselves are based largely on the common law tradition. Moreover, art. 65 (5) of the Rome Statute implicitly acknowledges the possibility of agreements between the Defence and the Prosecution, an idea that resembles the AngloAmerican “guilty plea”135. However, the same provision ascertains that such an agreement is not binding for the Trial Chamber, a limitation that is often to be found in civil law jurisdictions.136

4. Appeal and Revision 43

Both, the Prosecutor and the convicted person may appeal the Trial Chamber’s verdict according, claiming procedural errors, errors of fact or errors of law (art. 81 (1) of the Rome Statute). Additionally, the convicted person and the Prosecutor, but only on behalf of the convicted person, may base their appeal on any other ground that affects the fairness or reliability of the proceedings or decision (art. 81 (1) (b) (iv) of the Rome Statute). Furthermore, art. 84 of the Rome Statute guarantees the possibility of revision of conviction or sentence, for instance in the case where new pieces of evidence have been discovered, which had not been available at the time of the trial.

5. Victims’ Rights 44

The rights of victims enjoy special attention and importance within trials before the ICC.137 Victims have greater possibilities to actively engage in ICC proceedings than this was the case before the ad hoc tribunals. Before the ICC, the victims may introduce their “perspective and interests” in each stage of the trial even if they are not testifying as witnesses (art. 68 (3) of the Rome Statute). In order to be granted the role as a victim138 before the Court, individuals need to apply to the Registry for their admission. The responsible Chamber subsequently admits the applicant as a victim according to Rule 85 (a) RPE if he or she suffered damage in the course of an offence falling under the jurisdiction of the ICC.139 Individual and groups of victims can be represented by an independent counsel. In principle, the possibilities of participation exist in all stages of the procedure. Victims can take part in the preliminary investigation (art. 15 (3), (6) of

132

Cf Lagodny, ZStW 113 (2001), 800, 811. Regarding the hearings and questioning of witnesses, see Sluiter, Int. Crim. Porcedure, pp. 600 et seq., 607 et seq. 134 See Kirsch, ICLR 6 (2006), 275. 135 For plea bargains within International Criminal Law, cf Bulaty, Schweizerische Zeitschrift fu ¨r Strafrecht 2008, 214 et seq. 136 For the ICC’s first judgment based on the admission of guilt made by Al Mahdi in the situation of Mali, see ICC (TC VIII), Prosecutor v. Al Mahdi, Judgment and sentence, ICC-01/12-01/15-171, 27th September 2016; for a thorough analysis of plea agreements in German law, cf Satzger, in: Bockemu¨hl (ed.), Handbuch des Fachanwalts Strafrecht, pp. 1263 et seq. 137 For the situation of the victims before the ICC, see Abo Youssef, Die Stellung des Opfers im Vo¨lkerstrafrecht, pp. 103 et seq.; Bock, ZStW 119 (2007), 664 et seq.; for a critical reflection on the scope of the fair trial principle in art. 68 (3) of the Rome Statute, see Pues, JICJ 13 (2015), 951. 138 Rule 89 (1) RPE. 139 Legal entities can only exceptionally be admitted as victims according to Rule 89 (1) RPE. 133

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the Rome Statute)140, the pre-trial phase141, but also actively engage in the trial proceedings (art. 19 (3) and art. 68 (3) of the Rome Statute). They may present evidence, interrogate witnesses and contest the admissibility of evidence.142 Furthermore, they may participate in appellate and revision proceedings.143 It is not self-evident that such a wide-range of participatory rights is granted to the victims in ICC proceedings.144 To the contrary, Anglo-American procedural law and also the law of the ad hoc tribunals do not foresee victims’ participation, which exceeds the regular witness testimony. In these jurisdictions, it is simply assumed that the interests of the Prosecutor and the victim are basically identical and the prosecution therefore fully represents the victim’s interests in the proceedings.145 There is a general friction between the participatory rights of the victims and their general desire to be heard on the one side and the interest of the accused for expeditious and fair proceedings on the other side. The potential danger of victims’ participation for the rights of the accused is acknowledged in art. 68 (3) of the Rome Statute and resolved in favour of the accused. The specific extent to which a victim is allowed to participate in the proceedings must therefore be determined by the Chamber on a case-by-case basis in view of the protection of the rights of the accused.146 Granting the victims a wide range of participatory rights, their individual protection becomes of major importance in ICC proceedings. International criminal proceedings are highly selective, prosecuting often only a small amount of the individuals responsible for the crimes committed in a situation. Therefore, victims and witnesses are often subject to acts of retaliation, e. g. by co-offenders, who have not yet been apprehended or political supporters of an accused.147 Provisions concerning the protection of victims and witnesses can be found in art. 68 of the Rome Statute and particularly Rules 87 et seq. RPE. Thus, it is for example possible to exclude the public during the interrogation of the witness, to hide the witness’ identity or to use video links for the presentation of evidence (art. 68 (2) of the Rome Statute).148 Art. 75 of the Rome Statute provides for compensation for victims.149 Moreover, the Trust Fund for Victims (TFV) was installed at the Court in order to further support the victims’ interest. The TFV, which is not an organ of the Court, is responsible for organising compensatory payments to the respective victims. The possibility to grant compensations under art. 75 of the Rome Statute and the work of the TFV contribute essentially to fulfil central goals of transitional justice mechanisms, e. g. retribution and 140 In ICC (PTC I), Situation in the Democratic Republic of the Congo, Decision on the applications for participation in the proceedings of VPRS1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6, ICC-01/04101-tEN-Corr, 17th January 2006, the Court granted the victims the right to participate in the proceedings even before the arrest warrant had been filed. 141 Triffterer/Ambos-Bergsmo/Pejic/Zhu, art. 15 para. 37. 142 ICC (TC II), Prosecutor v. Katanga and Ngudjolo, Decision on the modalities of victim participation at trial, ICC-01/04-01/07-1788-tENG, 22nd January 2010; regarding the conflict between the victim’s interest to introduce incriminating evidence and the right on a fair trial of the accused, see ICC (AC), Prosecutor v. Katanga and Ngudjolo, Judgment on the appeal of Mr Katanga against the decision of Trial Chamber II of 22nd January 2010 entitled “Decision on the modalities of victim participation at trial”, ICC-01/04-01/07-2288, 16th July 2010. 143 ICC (AC), Prosecutor v. Lubanga, Decision on the participation of victims in the appeals, ICC-01/ 04-01/06-2168, 20th October 2009. 144 Cf Safferling, ZStW 122 (2010), 87, 105 who disapproves of further victims’ rights. 145 De Hemptinne, in: Cassese et al. (eds), Companion, pp. 562 et seq. 146 Cf Zappala ` , JICJ 8 (2010), 137. 147 Safferling, ZStW 122 (2010), 87, 105. 148 Cf Bock, ZStW 119 (2007), 678 et seq.; Triffterer/Ambos-Donat-Cattin, Rome Statute, art. 68 paras 19 et seqq. 149 Cf Bock, ZStW 119 (2007), 678 et seq.; Dwertmann, The Reparation System, with further references.

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compensation. Therefore, the ICC is the first international court that is able to oblige individual persons to pay compensation to other individuals or groups of individuals. However, it still remains unclear, whether the prosecution of individual criminal responsibility on the one hand and the compensation of victims on the other hand can both be effectively achieved at the level of the ICC.150

6. Summary 45

The ICC’s procedural law does not follow one of the traditional legal traditions. Quite unlike the ICTY and the ICTR, whose laws and rules are undoubtedly focussed on the Anglo-American legal tradition, the ICC’s procedural law is also strongly connected to traditional elements of the continental European legal tradition. Which of these two legal traditions will prevail and prove to be more influential is yet to be determined by the future practice of the Court. The most beneficial option seems to be to perceive the law of the ICC as sui generis and focus on the effective development of an independent and functional legal regime, rather than complicating the situation by allowing the differences in criminal legal traditions to inhibit the court’s effectiveness.

VIII. Sanctions and Their Enforcement 46

The individual criminal offences provided for in the Rome Statute do not contain any specification on the respective penalty to be imposed on the convicted person. A general range of penalties is included in art. 77 of the Rome Statute, mainly providing for imprisonment. Life imprisonment is admissible in cases in which this seems “justified by the extreme gravity of the crime and the individual circumstances of the convicted person” (art. 77 (1) (b) of the Rome Statute), in all other cases, the ICC may impose prison sentences up to a maximum of 30 years (art. 77 (1) (a) of the Rome Statute). The Rome Statute does not allow to impose the death penalty. In addition to imprisonment, the Chamber may impose a fine (art. 77 (2) (a) of the Rome Statute) and implement the forfeiture of “proceeds, property and assets derived directly or indirectly from that crime” (art. 77 (2) (b) of the Rome Statute). Furthermore, the Court may issue an order specifying “appropriate reparations” to victims or their family members, including “restitution, compensation and rehabilitation” (art. 75 of the Rome Statute).151 According to art. 106 of the Rome Statute, the prison sentences are enforced under the supervision of the ICC in countries that are willing to do so.

IX. Limitation and Finality 47

The crimes that may be prosecuted by the Court are not subject to any statute of limitations (art. 29 of the Rome Statute). Pursuant to art. 20 (1) and (2) of the Rome Statute, the ICC and national criminal courts are barred from prosecuting a crime for which that person has already been convicted or acquitted by the Court (ne bis in idem). In principle, a final judgment by national courts also inhibits the prosecution of the same conduct by the ICC. However, there are two essential exceptions to this rule, implementing the directives of the principle of complementarity:

150

Zegveld, JICJ 8 (2010), 79. Cf Safferling, ZStW 115 (2003), 379 et seq.; Henzelin/Heiskanen/Mettraux, CLF 17 (2006), 317, 321 et seqq. 151

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According to art. 20 (3) of the Rome Statute, the ICC may exercise its jurisdiction in spite of valid national verdicts, – if the national proceedings served the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the ICC or – if the national proceedings were not carried out independently or impartially in accordance with the norms of due process recognised by international law and were conducted in a manner which, regarding the particular circumstances, was inconsistent with an intent to bring the person concerned to justice. In case 21b the ICC has jurisdiction over the case. The remarkably lenient punishment of G by state M does not inhibit another criminal trial before the ICC for reasons of complementarity, as one can assume that – as in case 21a – the activities of national criminal law enforcement agencies were meant to protect G against international criminal responsibility in the context of art. 20 (3) (a) of the Rome Statute. The confirmation of further investigations by the Pre-Trial Chamber under art. 15 (4) of the Rome Statute would therefore be possible.

X. The ICC and the World of Politics By creating the ICC, the international community has set a clear and welcome signal 48 that it is no longer willing to accept the impunity of crimes of concern to the international community as a whole. The Court’s potential to have a deterrent effect on the commission of future crimes,152 is, however, greatly dependent on the effectiveness of its work. The ICC is particularly dependent on the cooperation of (Member) States and the UN Security Council. This holds especially true concerning the enforcement of arrest warrants, the gathering of evidence and the possibility of essential on-site investigations.153 Since the principle of complementarity only allows the Court to exercise its jurisdiction in cases in which states are unable or unwilling to carry out criminal prosecutions on a domestic level, it is particularly delicate for the Court to be often highly dependent on the cooperation of these exact same states. Consequently, collecting evidence to prove the accusation becomes predictably problematic. Furthermore it is imperative to keep in mind that the international investigation and prosecution of international criminal conduct of individuals may potentially endanger diplomatic efforts to improve the humanitarian and political situation in the affected states, facing for example in the case the arrest warrant against Sudan’s incumbent head of state Al Bashir (see para. 16). The Court was confronted with an array of extraordinary challenges over the last few 49 years. Particularly, the Darfur situation, which was imperiled by the uncooperative stance of the Sudanese government, but also the situation in Kenya posed serious political threats for the Court. Following the launch of proprio motu investigations of the Prosecutor into the situation of Kenya in 2010,154 Uhuru Kenyatta was elected president in April of 2013 and his former opponent William Ruto vice-president; both 152 Cf para. 5 of the preamble of the Rome Statute; Triffterer/Ambos-Triffterer/Bergsmo/Ambos, Rome Statute, preamble para. 15. 153 For example, this problem is illustrated by the lack of enforcement of the arrest warrants against Joseph Rao Kony in Uganda, Ali Muhammad Ali Abd-Al-Rahman and Ahmad Muhammad Harun in Sudan. 154 Confirmed by ICC (PTC II), Situation in the Republic of Kenya, Decision pursuant to article 15 of the Rome Statute on the authorization of an investigation into the situation in the Republic of Kenya, ICC-01/09-19, 31st March 2010.

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had already been first summoned as defendants in 2011.155 The election of Kenyatta and Ruto resulted in the Kenyan government directing its efforts to foster political opposition against the Court among fellow African states, particularly during meetings of the Assembly of States Parties.156 In December 2014, the Prosecutor had to drop the charges against Kenyatta due to lack of evidence,157 so that the proceedings had to be formally suspended in March 2015.158 In April 2016, the Trial Chamber terminated the case against Ruto, holding that the Prosecution did not present sufficient evidence on which a reasonable Trial Chamber could possibly convict the accused.159 In the context of the termination of the two Kenya cases, the Prosecutor raised fundamental accusations against the government of Kenya, pointing towards obstructionist efforts to undermine the criminal proceedings, particularly witness tampering and non-cooperation in the context of the gathering of evidence.160 However, many African states stood alongside the government of Kenya, denouncing the ICC’s activities an illegitimate interference with internal state affairs. 50 The political opposition to the ICC that surfaced in the context of the Darfur and the Kenya situations has, however, only been able to spread so quickly and strongly among African states, as the Court had already been confronted with strong criticism,161 accusing it of following a “neo-colonialist”162 agenda, effectively constituting a “Court for Africa”163. Although it is true that there had not been any formal investigation into any situation outside the African continent until 2016, these criticisms can be easily rebutted. Almost all African situations under formal investigation have been referred to the Prosecutor by the respective African state itself or by way of a UN Security Council resolution so that allegations of a structural bias of the Prosecutor against African states cannot be reasonably sustained.164 However, there is a legitimate concern that the Prosecutor seems to have been rather reluctant to make use of his or her discretionary power to open formal investigations proprio motu into situations, particularly outside the African continent.165 Such cautious policy may have proven convenient to gain some support for the ICC among the powerful states, which are often (in-)directly involved in most conflicts of crisis, and hence the Security Council; however, the Prosecutor should be aware of the consequences such approach has on the broader 155 ICC (PTC II), Prosecutor v. Muthaura, Kenyatta and Ali, Decision on the confirmation of charges pursuant to article 61 (7) (a) and (b) of the Rome Statute, ICC-01/09-02/11-382-Red, 23rd January 2012. 156 See https://www.amnesty.org/en/latest/news/2015/11/kenya-state-parties-run-dangerously-close-tointerfering-with-the-iccs-independence/ (last visited July 2017). 157 ICC (TC Vb), Prosecutor v. Kenyatta, Notice of withdrawal of the charges against Uhuru Muigai Kenyatta, ICC-01/09-02/11-983, 5th December 2014. 158 ICC (TC Vb), Prosecutor v. Kenyatta, Decision on the withdrawal of charges against Mr Kenyatta, ICC-01/09-02/11-1005, 13th March 2015. 159 ICC (TC Va), Prosecutor v. Ruto and Sang, Decision on Defence application for judgment of acquittal, ICC-01/09-01/11-2027-Red-Corr, 5th April 2016. 160 See the statement of the Prosecutor on the withdrawal of charges against Kenyatta, available under https://www.icc-cpi.int/Pages/item.aspx?name=otp-statement-05-12-2014-2 (last visited July 2017) and her statement on the termination of the Ruto and Sang case, available under https://www.icc-cpi.int/ Pages/item.aspx?name=otp-stat-160406 (last visited July 2017). 161 On the ICC’s general vulnerability to criticism, see Robinson, LJIL 28 (2015), 323; Schabas, JICJ 11 (2013), 545. 162 Cf Materu, in: Werle et al. (eds), Africa and the ICC, pp. 213, 221; Oette, JICJ 8 (2010), 345, 359; Werle et al., Africa and the ICC, p. 3; Oko, Fordham Int.L.J. 31 (2007–2008), 343, 355. 163 Batohi, in: Werle et al. (eds), Africa and the ICC, p. 55 is using the derogative term contrary to its original meaning in a positive way, pointing out that the ICC is supported by African states, prosecuting crimes committed against African citizens. 164 See also Ntanda Nsereko, CLF 22 (2011), 511, 517 et seq. 165 Critical with regard to the selection of situations Schabas, CLF 22 (2011), 493, 501 et seqq.

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§ 12. The International Criminal Court (ICC)

reputation of the Court particularly among African states. Instead of mainly focusing on self-referrals, it may well be a wise decision for the Prosecutor to put a special emphasis on proprio motu investigations in the future. Such selection policy may potentially risk the (ever-uncertain) support of some powerful states but guarantees (the semblance of) independence and fairness. The collapse of the Kenya cases and the Prosecutor’s decision to open formal 51 investigations into the situation of Georgia, confirmed by the Pre-Trial Chamber I on 27th January 2016,166 are expected to reduce African opposition towards the ICC. However, three states decided to withdraw from the ICC in October 2016: Burundi, the Gambia and South Africa, fueling fears of a collective “African exodus”.167 In the meantime, with a new, democratically elected government in power, the Gambia invalidated its withdrawal ascertaining its continued support for the ICC.168 Although South Africa also revoked its withdrawal,169 following the decision of a South African High Court which had declared it (formally) unconstitutional, it is, however, not predictable whether South Africa will start a second attempt to leave the Court by filing another withdrawal.170 All in all, the political dimension of the Court’s work is not to be underestimated. In 52 times when state politics seek to strengthen their own national sovereignty and independence, the ICC’s visionary goal to create a global system of justice will inevitably appear as a remote, idealist dream. Therefore, facing such troubling times, the ICC will necessarily suffer from backlashes, threats of non-cooperation and state interference. However, if the Court manages to pursue its legal mission in an effective and impartial manner, it will remain a highly influential institution of justice, a role model for national courts to live up to and an idealist pioneer of a constitutionalised global order yet to be established. 166 ICC (PTC I), Situation in Georgia, Decision on the Prosecutor’s request for authorization of an investigation, ICC-01/15-12, 27th January 2016. 167 See https://www.theguardian.com/world/2016/nov/18/african-exodus-international-criminal-courtkofi-annan (last visited July 2017). 168 See https://www.icc-cpi.int/Pages/item.aspx?name=PR1274 (last visited July 2017). 169 See https://www.icc-cpi.int/Pages/item.aspx?name=pr1285 (last visited July 2017). 170 See https://www.nytimes.com/2017/03/08/world/africa/south-africa-icc-withdrawal.html?_r=0 (last visited July 2017).

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§ 13 The General Part of International Criminal Law Contents I. Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. General Sources of International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Specific Sources of International Criminal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Rules of Interpretation and the Principle of nullum crimen, nulla poena sine lege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Interpretation of International Law in General. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Interpretation of International Criminal Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Individual Criminal Responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. The Structure of an International Criminal Law Offence. . . . . . . . . . . . . . . . . . . . 1. The Material Elements of International Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. The Mental Elements of International Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Grounds for Excluding Criminal Responsibility. . . . . . . . . . . . . . . . . . . . . . . . . . . a) Self-defence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Necessity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c) Superior Orders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . d) Mistake . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . e) Mental Incapacity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . f) Immunities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . g) Statute of Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . h) Unwritten Grounds for Excluding Criminal Responsibility. . . . . . . . . . . V. Individual Criminal Responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Perpetration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Direct Perpetration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Co-Perpetration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c) “Joint Criminal Enterprise” as Extension of Co-Perpetration? . . . . . . . d) Indirect Perpetration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Accessoryship. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Instigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Assistance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c) Contribution to a Group Crime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VI. Superior Responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VII. Attempt and Abandonment of the Attempt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VIII. Omission. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1

2 2 3 9 9 12 15 16 20 21 29 30 34 39 40 44 45 48 49 50 53 53 54 55 59 60 61 62 63 64 68 72

The Charters of the International Military Tribunal and the International Military Tribunal for the Far East as well as the Statutes of the ICTY and the ICTR included hardly any regulations on the general part of International Criminal Law. Provisions governing important subjects such as “intent”, “unlawfulness”, the “reasons for justification” and the “requirement of culpability”, akin to those written down explicitly in the general part of domestic criminal codes, were not to be found in those statutes. As the judges of the ad hoc tribunals were considered most experienced experts, this “loophole” was left on purpose; the judges were regarded as being capable of applying general rules on the basis of their rich experience within their own national legal systems. Moreover, one should take into account that all ad hoc tribunals were created under considerable time pressure, which made the development of a general part impossible. Therefore, judges at the ad hoc tribunals had a large margin of appreciation as to the application of general principles, which is considerably restricted within the Rome Statute. In its 3rd part, the Rome Statute provides the basis for a general part, the so-called “General Principles of Criminal Law” in art. 22–33. The following paragraph deals with these general principles of International 262

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§ 13. The General Part of International Criminal Law

Criminal Law, focusing especially on the provisions of the rather progressive Rome Statute. However, the general part of International Criminal Law is certainly far from being as dogmatically elaborated as the general part of national criminal law systems.1

I. Applicable Law 1. General Sources of International Law International Criminal Law forms part of public international law. As a consequence, 2 it is based on the general sources of international law. Laid out in art. 38 (1) of the ICJ Statute, those are international conventions, customary international law and the general principles of law recognised by civilised nations.2 These three sources of law are complemented by “subsidiary means for the determination of rules of law”, i. e. “judicial decisions and the teachings of the most highly qualified publicists of the various nations”. Judicial decisions are not limited to those of international courts; the decision of a national court applying international law can also form a subsidiary source for the determination of the law. Generally speaking, there is no hierarchy between the sources of international law. However, the case-law of international courts shows that the general principles of law are of comparatively little practical importance. This is due to the increasing density of regulations set up by international conventions and customary international law.3 In International Criminal Law, however, they have maintained a prevalent position, especially with regard to its general part. The borders of customary international law remain blurred in any case.4

2. Specific Sources of International Criminal Law As far as international conventions are concerned, the most influential sources of 3 International Criminal Law are the Charter of the Nuremberg Tribunal and – most importantly – the Rome Statute with its additional provisions to be found in the socalled Elements of Crimes and the Rules of Procedure and Evidence. The “Elements of Crimes” contain an extensive catalogue of detailed definitions describing the elements of the offences provided for in the Rome Statute. They shall assist the court in interpreting and applying the crimes laid down in art. 6 et seq. of the Rome Statute (art. 9 (1) of the Rome Statute). However, they constitute mere guidelines for interpretation, which means that in cases of conflict between the Elements of Crimes and the Rome Statute, the latter prevails (art. 9 (3) of the Rome Statute). Similarly, the “Rules of Procedure and Evidence” contain additional rules of procedure (art. 51 (4) of the Rome Statute), which are binding on the court and the Member States but lower in hierarchy compared to procedural provisions of the Statute. Apart from these two international treaties, the Charter of the International Military 4 Tribunal for the Far East and the Statutes of the ad hoc tribunals ICTY and ICTR are at least partially considered sources of International Criminal Law due to the fact that they are considered to largely reflect customary international law. The same applies to the contents of the Rome Statute: Beyond the binding effect of the Rome Statute as a treaty, most of the provisions also constitute international custom. Nevertheless, in 1 Cf Ambos, Vo ¨ lkerstrafrecht AT, § 1; Werle/Jeßberger, Principles of International Criminal Law, paras 428 et seqq. 2 On those sources of law, see § 10 para. 5. 3 Cf Heintschel v. Heinegg, in: Ipsen (ed.), Vo ¨ lkerrecht, § 18 para. 8. 4 Cf Werle/Jeßberger, Vo ¨ lkerstrafrecht, paras 161 et seq.

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D. International Criminal Law

some points the Rome Statute even goes further than current customary international law, while it lags behind in others.5 Insofar as the Statute provisions reflect customary law, they are also binding for Non-Member States. 5 Further sources of International Criminal Law based on international conventions, which also must be considered customary international law6, are the Hague Conventions of 1899 and 1907 respecting the Laws and Customs of War on Land7, the Geneva Conventions of 19498 with their two additional protocols of 19779, and the Genocide Convention adopted in 194810. 6 The decisions of other international criminal courts and tribunals (e. g. IMT, IMTFE, ICTY, ICTR) serve as important means for the interpretation of the applicable law.11 Moreover, the case-law of these courts can directly influence and accelerate the evolution of customary international law. Decisions of national courts prosecuting international crimes12 may also be regarded as means for the interpretation of the applicable law. Furthermore, national case-law may also contribute to the formation of customary international law or serve as a proof for general principles of law, constituting an expression of legal conviction and practice within the community of states.13 7 Art. 21 (1) (c) of the Rome Statute contains a particularity regarding the law to be applied by the ICC. If appropriate, the Court shall apply general principles derived from national laws, particularly of states which would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with the Statute and with international law as well as internationally recognised norms and standards. Consequently, the ICC has the power to apply different legal provisions depending on e. g. the territory where the criminal offence was committed. This may surely cause legal inconsistencies; however, this provision is the result of a compromise which was indispensable for the success of the Rome Conference.14 According to art. 21 (2) of the Rome Statute, the ICC may also apply principles and rules of law as interpreted in its earlier case-law. This is not a novelty, as case-law of international criminal courts and tribunals has always been a means for the interpretation of the applicable law (see para. 6). More remarkably, the wording of the provision 5 Especially with regard to the criminalisation of forbidden methods of warfare in non-international armed conflicts, see Werle/Jeßberger, Principles of International Criminal Law, para. 169. 6 This has explicitly been stated by the ICJ with respect to the Genocide Convention, cf ICJ, Reservations to the Convention on Genocide, Advisory Opinion, 28th May 1951, ICJ-Rep 1951, p. 15. 7 Hague Convention (II) on the Laws and Customs of War on Land, 29th July 1899; Hague Convention (IV) on War on Land and its Annexed Regulations, 18th October 1907. 8 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva, 12th August 1949; Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva, 12th August 1949; Geneva Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12th August 1949; Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12th August 1949. 9 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8th June 1977; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8th June 1977. 10 Convention on the Prevention and Punishment of the Crime of Genocide, New York, 9th December 1948, United Nations Treaty Series, vol. 78, No. 1021. 11 See on the ICC, Schabas, Commentary, pp. 529 et seq. 12 See on the “indirect enforcement model” § 10 para. 8. 13 Werle/Jeßberger, Principles of International Criminal Law, para. 185. 14 See also Triffterer/Ambos-de Guzman, Rome Statute, art. 21 para. 14, who identifies two competing lines of thought in respect to this issue: on the one hand those who consider national law to be applicable and on the other hand those who are in favour of a complete separation of the general principles from national legal systems.

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§ 13. The General Part of International Criminal Law

does not oblige the Court to apply those principles, making it a merely facultative option. Thus, the Court is not strictly bound by its former case-law, and is indeed able to deviate from it. Moreover, the ICC is obliged to abide by internationally recognised human rights standards in accordance with art. 21 (3) of the Rome Statute when applying and interpreting its legal framework. In this sense, art. 21 (3) of the Rome Statute promotes internationally recognised human rights standards to form something akin to “constitutional law”, which prevails over the application of the law as well as over the applicable norms themselves.15 In the past, art. 21 (3) of the Rome Statute has not only served as a means of interpretation for the applicable law, but also enabled the Court to amend the law as to encompass necessary human rights regimes such as the stay of proceedings due to severe procedural breaches.16 The following diagram shows the hierarchical order which the Rome Statute estab- 8 lishes with regard to the sources of law and the role of art. 21 (3) of the Rome Statute:

of the Rome Statute)

of the Rome Statute)

of the Rome Statute)

of the Rome Statute 15

Cf Cassese/Gaeta/Jones-Pellet, Rome Statute, p. 1081. See among others ICC (AC), Prosecutor v. Lubanga, Judgment on the appeal of Mr Thomas Lubanga Dyilo against the decision on the Defence challenge to the jurisdiction of the Court pursuant to article 19 (2) (a) of the Statute of 3 October 2006, ICC-01/04-01/06-772, 14th December 2006, paras 37, 39. 16

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D. International Criminal Law

II. Rules of Interpretation and the Principle of nullum crimen, nulla poena sine lege 1. Interpretation of International Law in General The interpretation of international treaties follows art. 31 et seq. of the Vienna Convention on the Law of Treaties (VCLT), which are binding on all states due to their nature as part of customary international law.17 Art. 31 (1) VCLT establishes the following general rule of interpretation: A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 10 Pursuant to this “objective approach”, the interpretation is based on the wording of the treaty, not on the original intent of the parties.18 As a first step, the ordinary meaning of the wording has to be considered, additionally, the systematic context of the treaty concerned is to be consulted. Finally, one must examine the object and purpose of the respective regulation (teleological interpretation).19 Besides these rules of interpretation that stem from the traditional canon of methods of interpretation in domestic law, the interpretation of the ICC’s legal framework is based on the principle of effet utile (principle of effectiveness), which can be considered part of teleological interpretation (see on this the section on European criminal law, § 7 para. 63). The principle demands that every provision needs to be interpreted in the light of the objectives of the treaty. If there are several possible interpretations of a particular provision, the one should prevail which best guarantees the effective achievement of those objectives.20 11 Due to the objective approach and in accordance with art. 32 VCLT, documents produced in the drafting process (so-called travaux pre´paratoires) and the drafting history in general are only of rather marginal importance (so-called “supplementary means of interpretation”). Supplementary means of interpretation may be taken into account only after the three primary rules of interpretation (art. 31 VCLT) have been applied and if a certain provision still remains ambiguous or obscure, or if the result of interpretation seems manifestly absurd or unreasonable. Nevertheless, the travaux pre´paratoires are often illuminating in interpreting International Criminal Law, as they reveal the basic concepts of criminal law and legal terminology that the drafters intended to employ.21 9

2. Interpretation of International Criminal Law 12

In principle, these general rules of interpretation are also applicable to treaties constituting International Criminal Law, especially to the Rome Statute.22 As part of the systematic interpretation of the latter, the Elements of Crimes (cf art. 9 (1) of the Rome Statute) are of particular importance. 17 ICJ, Case Concerning Kasikili/Sedudu Island (Botswana v. Namibia), Judgment, 13th December 1999, ICJ-Rep 1999, p. 1045 para. 18. 18 For details, see Heintschel v. Heinegg, in: Ipsen (ed.), Vo ¨ lkerrecht, § 12 paras 4 et seq. 19 Cf with regard to the interpretation of international treaties Do ¨ hering, Vo¨lkerrecht, paras 387 et seq. 20 Cf Werle/Jeßberger, Principles of International Criminal Law, para. 191. 21 Ambos, Vo ¨ lkerstrafrecht AT, p. 380. 22 ICC (AC), Situation in the Democratic Republic of the Congo, Judgment on the Prosecutor’s application for extraordinary review of Pre-Trial Chamber I’s 31 March 2006 decision denying leave to appeal, ICC-01/04-168, 13th July 2006, paras 6, 33, 40; even though the ICTY and the ICTR are not based upon an international treaty, the rules of interpretation of the VCLT are still applicable, cf ICTY, Prosecutor v. Tadic´, Judgment, IT-94-1-A, 15th July 1999, para. 295.

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§ 13. The General Part of International Criminal Law

The interpretation of International Criminal Law is restricted by the principle of 13 nullum crimen sine lege, which itself is anchored in customary international law. The principle implies that at the time the crime was committed, a written or unwritten law, which criminalised the respective conduct under international law, must have existed.23 Naturally, neither a written specification of the offence (lex scripta), nor a strict level of legal certainty (lex certa) can be requested for the formation of International Criminal Law. International criminal law originally stems from customary international law, which is still one of the most important sources in the field of international law (unlike in national law). Therefore, provisions of International Criminal Law were not created as a conceptual “masterpiece” of an imaginary legislator but in a continuous and dynamic (political) process. Consequently, the principle of nullum crimen applied in domestic criminal law systems needed some central modifications in order to fulfil the needs of international criminal justice.24 Nonetheless, the following consequences must be deduced from the international principle of legality: – Principle of legal certainty (lex certa): There must be a norm in International Criminal Law which criminalises the perpetrator’s conduct. Moreover, the scope of application of such a norm needs to be sufficiently determinable referring to the standards of international law.25 – Prohibition of application by analogy: If the perpetrator’s conduct does not fall within the definition of an international crime, the elements of an existing offence cannot be extended to similar cases by way of analogy to the detriment of the perpetrator. Moreover, art. 22 (2) of the Rome Statute introduces the principle of “favourable interpretation” relating to the definition of a crime, i. e. if there are remaining doubts as to the interpretation of the elements of the offence, the interpretation which is most favourable for the perpetrator shall be applied.26 Thus, the Rome Statute goes further than some national criminal systems which restrict the in dubio pro reo principle to remaining factual doubts but not to doubts as to the (interpretation of the) law.27 – Non-retroactivity of criminal law: The perpetrator’s conduct had to have been criminalised under international law at the point of time when the offence actually occurred. According to art. 24 of the Rome Statute, the Rome Statute is not applicable to criminal conduct that occurred before its entry into force. Although international crimes are mostly also criminalised under customary international law, generally allowing (international) prosecutions, the ICC is not allowed to apply the law of custom insofar. Furthermore, as is mentioned in art. 23 of the Rome Statute, the principle of nulla 14 poena sine lege is generally acknowledged in International Criminal Law.28 However, no 23 Werle/Jeßberger, Principles of International Criminal Law, paras 113 et seqq.; the principle of legality is not affected if the accused merely did not know that his country of origin joined the Rome Statute and therefore did not expect that the Statute is applicable to his conduct. Thus, the ICC (correctly) dismissed this objection brought forward by Lubanga’s defence in ICC (PTC I), Prosecutor v. Lubanga, Decision on the confirmation of charges, ICC-01/04-01/06-803-tEN, 29th January 2007, para. 302; see also Weigend, JICJ 6 (2008), 471, 474. 24 See in detail Satzger, JuS 2004, 943 et seq.; see also ICTY, Prosecutor v. Delalic ´ et al., Judgment, IT-96-21-T, 16th November 1998, paras 402 et seq., dealing with the restrictions and effluences of the principle of legality. 25 It is said that, for instance, an International Criminal Law prosecution of the genocide of the Armenians in 1915 failed because of the principle of legality under international (criminal) law, cf Kittichaisaree, Int. Criminal Law, pp. 15 et seq.; see also § 12 paras 26 et seqq. 26 On this Werle/Burghardt, ZIS 7 (2012), 271, 274 et seq. 27 On German law, see e. g. Wessels/Beulke/Satzger, para. 1118. 28 Werle/Jeßberger, Principles of International Criminal Law, paras 113 et seqq.; against the recognition of this principle e. g. Cassese, Int. Criminal Law, p. 51.

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D. International Criminal Law

strict standard of certainty should be applied to the sanctions imposed under International Criminal Law due to the same reasons mentioned in context of the certainty requirements regarding the elements of the offence. Consequently, it is harmless that art. 77 of the Rome Statute merely outlines a general range of sanctions, which are not specifically linked to the individual offences.

III. Individual Criminal Responsibility 15

As already mentioned above (§ 12 para. 6), the ICC was created to hold individuals accountable for international crimes; it has no jurisdiction over states or organisations. The notion of individual criminal responsibility forming part of international law is a rather young development, which can be traced back to the Nuremberg trials before the IMT. Undoubtedly, the principle of individual criminal responsibility is now recognised under customary international law, explicitly confirmed by art. 25 of the Rome Statute.

IV. The Structure of an International Criminal Law Offence

Case 22

16

As a consequence of a military conflict between the two neighbouring states A and B, which are both States Parties to the Rome Statute, the armed forces of state A occupy village V, which is located on the territory of B. In V, X – a member of state A’s army – intentionally shoots the civilian C, a citizen of state B, who was wearing a traditional dress and was about to open a can of Coca-Cola. From a distance, X assumed that C was pulling the safety pin of a hand grenade in order to throw it at X the next moment (see paras 20, 28, 31, 43). 17

In order to establish general structural elements common to all international criminal offences, one has to bear in mind that the ICC’s legal framework is mainly based on two major legal traditions, the continental European civil law and the Anglo-American common law. According to the civil law tradition, a crime consists of three basic elements: the (objective and subjective) legal elements of the offence,29 the unlawfulness of the conduct30 and the perpetrator’s individual culpability31. In contrast, common law systems, which are mainly to be found in England, the USA and most of the former British colonies, are essentially focused on case-law, the rule of precedent and thus on the procedural aspect of criminal law. Therefore, the common law entails a two-step approach in order to establish a broad structure of the crimes: – The “elements of the criminal offence”, i. e. those circumstances which have to be proven in order to establish that the accused person is criminally liable. Those circumstances can relate to the conduct and other external elements presupposed by the offence (so-called actus reus) or to the “guilty mind”, i. e. the internal or subjective and guilt-related elements of the crime (so-called mens rea). – The so-called “defences”, i.e. all reasons which may either exclude criminal liability or procedurally bar criminal proceedings, provided the accused brings them fourth (e. g. statute of limitation). 29

In German: Tatbestand; in Spanish: tipo. In German: Rechtswidrigkeit; in Spanish: antijuridicidad. 31 In German: Schuld; in Spanish: culpabilidad. 30

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This bipartite conception of the criminal offence influences particularly the burden of proof. Roughly speaking, the public prosecutor needs to show that an offence was committed, whereas the defence has to raise possible defences. Subsequently, the prosecution has to prove that there is no such defence.32 The legal frameworks of the ICTY and the ICTR were mainly based on the Anglo- 18 American (bipartite) understanding of the criminal offence.33 The Rome Statute, however, does not strictly follow one of the two legal traditions, but develops an autonomous concept of the international criminal offence. Therefore, the Rome Statute largely avoids using terms that derive from national law (e. g. actus reus34, mens rea35 or defences36). On the one hand, the Statute formally implements a broad division between circumstances establishing criminal liability and those excluding criminal liability. It does not differentiate “reasons for justification”37 from “excuses”38 and thereby follows the basic features of the common law tradition. On the other hand, however, the Statute does not draw the common law’s procedural conclusions from this bipartite structure, especially with respect to its evidentiary rules.39 In fact, the prosecutors and judges are bound by the principle of official investigation, which is well known in continental Europe.40 Accordingly, they have to investigate the facts ex officio in order to find out the material truth.41 All in all, the Rome Statute suggests a three tier structure42 of the elements of the 19 international criminal offence: 1. Material Elements 2. Mental Elements 3. Grounds for Excluding Criminal Responsibility

By introducing new legal terms, the authors of the Rome Statute wanted to avoid the linguistic approximation with similar but in the end not identical domestic legal concepts. Indeed, this was probably the only possible way to develop a coherent and independent theory on the structure and the elements of international crimes.

1. The Material Elements of International Crimes The material elements of criminal liability include all requirements dealing with the 20 external appearance of an international criminal offence.43 Most basically, the first requirement is that an individual conduct was carried out. Moreover, most criminal 32

In more detail Herring, Criminal Law, p. 117; Sprack, Emmins on Criminal Procedure, p. 244. Ambos, Vo¨lkerstrafrecht AT, p. 360. 34 See art. 30 (1) of the Rome Statute: “material elements”. 35 See art. 30 (1) of the Rome Statute: “mental elements”. 36 See art. 31 of the Rome Statute: “grounds for excluding criminal responsibility”. 37 In German: Rechtfertigungsgru ¨ nde; in Spanish: causas de justificacio´n. 38 In German: Entschuldigungsgru ¨ nde; in Spanish: causas de exculpacio´n. 39 See art. 54 (1) (a), 66 (2), 67 (1) (i) of the Rome Statute. 40 Kirsch, ICLR 6 (2006), 275 et seq.; Lagodny, ZStW 113 (2001), 800, 811. 41 Cf Beulke, StPO, para. 21. 42 See also Werle/Jeßberger, Vo ¨ lkerstrafrecht, paras 404 et seq.; Safferling, Int. StrafR, § 5 para. 12, on the other hand, proposes a bipartite structure, combining the material and mental elements. 43 Werle/Jeßberger, Principles of International Criminal Law, para. 452. 33

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offences require a particular consequence that has to ensue from this conduct. Such consequence may be found in an actual harm or at least in an essential danger for a protected interest (e. g. health hazards).44 According to customary international law, there must be a link of causation between the individual conduct and the occurred consequence. In this context, causation is mostly considered a purely scientific, i. e. empirical concept. However, the Rome Statute does not explicitly limit the causationtest45 to the so-called conditio sine qua non formula or “but-for-test”. To the contrary, the Statute is open for normative considerations like the concept of objective imputation originally developed in some domestic criminal law systems (especially in German legal theory – so-called objektive Zurechnung).46 Besides conduct and consequence, a third group of material elements can be identified, i. e. the contextual elements of the crimes. The contextual elements are of special importance for International Criminal Law as they are to be considered the decisive factor to differentiate between domestic and international crimes. Thus, certain domestic criminal offences (e. g. murder, rape) become crimes under international law if they are committed “as part of a widespread or systematic attack directed against any civilian population”, the respective contextual element for crimes against humanity.47

In case 22, X fulfils the objective elements of art. 8 (a) (i) of the Rome Statute by firing a shot using his weapon (“conduct”), which causes (“causation”) the death (“consequence”) of a civilian in the sphere of control of an occupying power, which is protected by the Geneva Convention (IV). Furthermore, the offence takes place in the context of an international armed conflict between state A and state B (“contextual element”).

2. The Mental Elements of International Crimes 21

Customary international law foresees that individual criminal liability always presupposes a certain mental attitude of the criminal offender towards the offence in terms of a subjective imputation.48 Individual criminal offences criminalised under international law have often provided specific subjective elements;49 however, a general regulation of the mental elements was missing until the adoption of the Rome Statute. There were major inconsistencies in the case-law of the international criminal tribunals 44

Cf art. 8 (2) (b) (x) of the Rome Statute. See on the other hand art. 30 of the Rome Statute, from which such a requirement can be deduced, cf Werle/Jeßberger, Principles of International Criminal Law, para. 456. 46 See art. 30 (2) (b), (3) of the Rome Statute, which, with regard to the subjective part, requires that “a circumstance exists or a consequence will occur in the ordinary course of events”; see Kreß, HuV-I 1999, 4, 5 et seq.; for a critical view, see Safferling, Int. StrafR, § 5 para. 15; see also the separate opinion of Judge Ferna´ndez de Gurmendi demanding a “normative and causal links” requirement in: ICC (AC), Prosecutor v. Mbarushimana, Judgment on the appeal of the Prosecutor against the decision of Pre-Trial Chamber I of 16th December 2011 entitled “Decision on the confirmation of charges”, ICC-01/04-01/10-514, 30th May 2012, para. 12; for further discussion of the matter, see von Maltitz, ORIL, ICL 1559 (ICC 2011). 47 Cf art. 7 (1), (2) (a) of the Rome Statute. 48 Werle/Jeßberger, Principles of International Criminal Law, paras 460 et seqq. 49 Cf art. 6 of the Rome Statute (“with intent to”) or art. 8 (2) (a) (i) of the Rome Statute (“wilful killing”) as well as art. 7 (1) (k) of the Rome Statute (“intentionally”). 45

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regarding the question whether the international criminal offence presupposes “intent” (in a final sense) or the lower standard of dolus eventualis (or even wilful negligence).50 Art. 30 of the Rome Statute attempts to close this conceptional gap by means of introducing a general legal definition of the subjective element of the crime, which is applicable by the ICC “unless otherwise provided”. However, art. 30 (1) of the Rome Statute is based on a political compromise found to 22 widely satisfy the concepts entailed in the common law as well as the civil law.51 Unfortunately, the compromise led to the result that the meaning of the norm hardly reveals itself to the reader. This becomes particularly obvious considering the wording of art. 30 (1) of the Rome Statute which requires that the material elements of the crime had to be committed “with intent and knowledge”. From the perspective of certain domestic criminal law systems, the requirement seems rather incoherent, as the term “intent” often implies a voluntary as well as a cognitive element; therefore, following this approach, knowledge would already be implied in the cognitive element of intent.52 Facing a variety of different legal approaches to determine the mental elements of a crime in domestic legal systems, it seems necessary that International Criminal Law develops an autonomous concept. In order to do so, legal practitioners and theorists need to abstain from using identical terms for seemingly similar notions in the national and international context.53 Furthermore, art. 30 (2) and (3) of the Rome Statute apply the general requirements 23 of art. 30 (1) of the Rome Statute to the different material elements of the criminal offence. This is illustrated by the following diagram:

50 In the case-law of the ICTY and the ICTR, it was assumed that dolus eventualis could suffice (see para. 27), cf ICTY, Prosecutor v. Blasˇkic´, Judgment, IT-95-14-A, 29th July 2004, para. 42: knowledge and probability of the conduct are required; ICTY, Prosecutor v. Stakic´, Judgment, IT-97-24-T, 31st July 2003, paras 587, 642: dolus eventualis shall be sufficient, recklessness in contrast is insufficient; ICTR, Prosecutor v. Musema, Judgment and Sentence, ICTR-96-13-A, 27th January 2000, para. 215: the knowledge of the probability that the conduct will occur is sufficient; ICTR, Prosecutor v. Kayishema and Ruzindana, ICTR-95-1-T, 21st May 1999, para. 146: even recklessness and gross recklessness are considered to be sufficient. 51 See Clark, ZStW 114 (2002), 372, 378; Satzger, NStZ 2002, 125, 128 with further references. 52 For details on German legal theory, see Roxin, AT I, § 12 para. 4; Satzger, Jura 2008, 112; Wessels/ Beulke/Satzger, para. 306. 53 Ambos, Vo ¨ lkerstrafrecht AT, p. 758; Werle/Jeßberger, Principles of International Criminal Law, para. 441.

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The diagram shows that it is only possible to determine the required specific mental elements in categorising the objective elements of the crime. The respective material elements have to be carefully differentiated: 24 – With regard to the conduct: “[T]he person means to engage in the conduct”, therefore the conduct only has to be carried out wilfully. An intention implying an element of finality with regard to the mere conduct is logically not conceivable.54 25 – With regard to the consequence: Here, the provision seems to imply some inconsistency, as both knowledge55 and intent require the same subjective criterion: the awareness that a circumstance exists or a consequence will occur in the ordinary course of events. On the one hand, the criminal offender fulfils the knowledge-based mental element of the criminal offence concerning the consequence of the offence if he or she acts although he or she (virtually) knows that the consequence will occur (this corresponds to the concept of dolus directus, 2nd degree to be found in many domestic legal systems). On the other hand, the intent-based element of art. 30 (2) of the Rome Statute requires that the person “means to cause the consequence”, which implies an intention to bring about the consequence (this corresponds to dolus directus, 1st degree in many domestic systems). The provision seems to be particularly peculiar, as in the latter case (intention to cause the consequence), the element of knowledge in the sense of art. 30 (3) of the Rome Statute must also cumulatively be fulfilled. Consequently, from a domestic perspective, the provision seems to demand a rather strange combination of dolus directus, 1st degree and dolus directus, 2nd degree.56 All in all, the Rome Statute implements a higher standard regarding the general mental element than most civil law systems, as it does not include the notion of dolus eventualis. Art. 30 of the Rome Statute requires (virtual) certainty concerning the occurrence of the consequence, which is not reconcilable with the lower standard of dolus eventualis.57 The Rome Statute thereby also lags behind most of the common law systems, as the standard of “recklessness” does not satisfy the mental elements of the crime. Recklessness can be considered an intermediate level between negligence and intent.58 However, in the Lubanga case, Pre-Trial Chamber I implemented an expansive view of the mental elements required by the Rome Statute, referring to the jurisprudence of the UN ad hoc tribunals (see para. 27). According to the Pre-Trial Chamber, art. 30 of the Rome Statute does not only cover dolus directus, 1st and 2nd degree, but also “situation[s] in which the suspect (a) is aware of the risk that the objective elements of the crime may result from his or her actions or omissions, and (b) accepts such an outcome by reconciling himself or herself with it or consenting to it”, a concept which is expressly marked as dolus eventualis (dol

54 Werle/Jeßberger, Principles of International Criminal Law, para. 474; in contrast to Ambos, Vo ¨ lkerstrafrecht AT, p. 767; stating the parallel restriction in German law: Satzger, Jura 2008, 112, 113. 55 Cassese, Int. Criminal Law, pp. 61 et seq., explains that only the criterion of “knowledge” is unknown as an own criterion to a Continental European lawyer, classifying dolus directus or dolus eventualis depending on the starting point; however, whether or not art. 30 of the Rome Statute also covers dolus eventualis (see para. 27) remains unsolved. 56 See correctly Ambos, Vo ¨ lkerstrafrecht AT, p. 770; for a critical view, see Safferling, Int. StrafR, § 5 para. 23. 57 See correctly Werle/Jeßberger, Principles of International Criminal Law, paras 475 et seqq.; furthermore e. g. Gropengießer, in: Eser/Kreicker, Nationale Strafverfolgung, p. 273 (offender has to assume a high probability of the conduct); see also Triffterer/Ambos-Piragoff/Robinson, Rome Statute, art. 30 para. 3, who explain that art. 30 should deliberately not include recklessness etc. 58 Ambos, Vo ¨ lkerstrafrecht AT, p. 771; Werle/Jeßberger, Principles of International Criminal Law, paras 476 et seqq.; for recklessness, see also § 14 para. 66.

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´eventuel).59 The Chamber further states that if there was a substantial risk of the occurrence of the consequence known to the accused, his or her consent could be presumed without further findings.60 In the case of a minor risk of the consequence occuring, dolus eventualis could be presumed if the criminal offender evidently or expressly accepted that his action could fall under the elements of a criminal offence. However, this interpetation of the Rome Statute is clearly not supported by the wording of art. 30 of the Rome Statute, which cannot be simply overridden by referring to the (also rather inconsistent) jurisprudence of the ad hoc tribunals.61 In the Bemba case, Pre-Trail Chamber II rejected the low standard of dolus eventualis, followed by Trial Chamber I in the Lubanga case and Trial Chamber II in the Katanga case.62 Meanwhile, the Appeals Chamber seems to have confirmed this restrictive approach,63 making it rather unlikely that the position favouring the notion of dolus eventualis, based on a corrective interpretation of the Rome Statute (to the detriment of the defendant!), will prevail in the practice of the ICC. However, the issue is still a matter of discussion among legal scholars and practitioners.64 – With regard to the contextual elements: The criminal offender has to be “aware” that 26 these contextual circumstances exist, which includes a notion of certainty that excludes the mere suspicion that a circumstance might exist based on probability considerations.65 The mental element covering contextual elements is of purely cognitive nature, as the existence of those circumstances is not linked to the intent of the offender.66 Whether e. g. a group of people attacked by a genocide offender is to be considered a religious group (cf art. 6 of the Rome Statute) is not dependent on the intent of the perpetrator. The fact that he or she knows of the religious nature of the group therefore suffices to fulfil the respective mental element required for the crime of genocide. Leaving aside Pre-Trial Chamber I’s corrective interpretation in the Lubanga case, the 27 wording of art. 30 of the Rome Statute presupposes an extremely high mental threshold (“means to cause”, “is aware”), particularly regarding the consequences of the crime. This raises the issue as to whether dolus eventualis or recklessness shall indeed never suffice to fulfil the mental elements of the crime. It is argued that the wording of art. 30 of the Rome Statute leaves a loophole allowing the implementation of a lower mental threshold. The provision only aims for establishing a general mental standard “unless otherwise provided”. On the one hand, it is argued that this opening clause only allows to take into account deviating provisions to be found in the Rome Statute itself, i. e. in 59 ICC (PTC I), Prosecutor v. Lubanga, Decision on the confirmation of charges, ICC-01/04-01/06-803tEN, 29th January 2007, paras 352 et seqq.; Triffterer/Ambos-Pigaroff/Robinson, Rome Statute, art. 30 para. 22. 60 ICC (PTC I), Prosecutor v. Lubanga, Decision on the confirmation of charges, ICC-01/04-01/06-803tEN, 29th January 2007, paras 352 et seq.; for a rather critical view, see Weigend, JICJ 6 (2008), 471, 474. 61 So correctly Werle/Jeßberger, Principles of International Criminal Law, para. 479. 62 ICC (TC II), Prosecutor v. Katanga, Judgment pursuant to article 74 of the Statute, ICC-01/04-01/073436-tENG, 7th March 2014, para. 777; ICC (TC I), Prosecutor v. Lubanga, Judgment pursuant to article 74 of the Statute, ICC-01/04-01/06-2842, 14th March 2012, para. 1011; ICC (PTC II), Prosecutor v. Bemba, Decision pursuant to article 61(7)(a) and (b) of the Rome Statute on the charges of the Prosecutor against Jean-Pierre Bemba, ICC-01/05-01/08-424, 15th June 2009, paras 360 et seq. 63 ICC (AC), Prosecutor v. Lubanga, Judgment on the appeal of Mr Thomas Lubanga Dyilo against his conviction, ICC-01/04-01/06-3121-Red, 1st December 2014, paras 449 et seqq. 64 For a critical view, see Jescheck, JICJ 2 (2004), 38, 45; Safferling, Int. StrafR, § 5 para. 27; Cassese, Int. Criminal Law, pp. 55 et seq., does not attempt to resolve the problem; see also Werle/Jeßberger, Principles of International Criminal Law, para. 476 with further references. 65 Similarly Triffterer/Ambos-Piragoff/Robinson, Rome Statute, art. 30 para. 26. 66 Cf also Werle/Jeßberger, Principles of International Criminal Law, paras 480 et seq.

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art. 6-8 thereof.67 On the other hand, it is, however, argued that the wording does not imply any such limitation, potentially allowing to take into account all relevant sources of law applicable under art. 21 of the Rome Statute. Thus, following the latter approach, modifications of the mental elements under art. 30 of the Rome Statute are possible (without contradicting the wording of the Rome Statute) by referring to e. g. the Elements of Crimes68 as well as customary international law. Moreover, applying the opening-clause in such far-reaching manner would even permit to take into account the case-law of the ad hoc tribunals69, which – yet inconsistently – applied lower mental standards than “awareness” and “intention”.70 Example: According to the case-law of the ICTY, a killing is to be considered a war crime if the perpetrator substantially injures the victim with the “intention […] to kill, or inflict serious injury in reckless disregard of human life”.71 In more recent cases, it was held to be sufficient for the offence of ordering an international crime in the sense of art. 7 (1) of the ICTY Statute that the criminal offender acted in awareness of a “substantial likelihood” that these crimes might be committed.72 28

Following a broad interpretation of the “opening clause” in art. 30 (1) of the Rome Statute in principle, it should be possible to include dolus eventualis and recklessness on a case-by-case basis.73 Nevertheless, at least at first sight, such result seems to contradict the spirit of art. 30 of the Rome Statute, which intentionally excludes lower forms of the mental elements of the crime;74 however, art. 30 of the Rome Statute does not seem to establish any coherent approach, so that it becomes necessary to take into account interpretations that might not have seemed obvious at the outset. Although, even if a broad interpretation of the opening clause may allow the Chambers to establish a more consistent theory of the mental elements of the crime, it has to be admitted that this interpretation of art. 30 of the Rome Statute leaves some doubt as to its compatibility with the principle of legality. All in all, it is submitted that the mental element of international crimes definitely needs further analysis and jurisprudence in order to satisfy the needs for a coherent legal system at the international level. In case 22, X fires the shot deliberately (intentional act), at the same time he is (virtually) sure that civilian C will die (intent regarding the consequence). He was also aware of the circumstances, which cause the required contextual elements in the form of an international armed conflict. Thus, C fulfils the subjective elements of the criminal offence required by art. 8 (2) (a) (i) in connection with art. 30 of the Rome Statute. 67

Ambos, Vo¨lkerstrafrecht AT, p. 789; Safferling, Int. StrafR, § 5 para. 20. This was held explicitly in ICC (PTC I), Prosecutor v. Lubanga, Decision on the confirmation of charges, ICC-01/04-01/06-803-tEN, 29th January 2007, para. 359: “As a result the ‘should have known’ requirement as provided for in the Elements of Crimes in relation to art. 8 (2) (b) (xxvi) and (2) (e) (vii) is an exception to the ‘intent and knowledge’ requirement in article 30 of the Statute”; a critical opinion on this is voiced by Ambos, Int. Strafrecht, § 7 para. 64 fn 331; consenting with the ICC, Werle/Jeßberger, Principles of International Criminal Law, paras 519 et seq.; cf also the illustration of the problems in Schabas, ICC, pp. 237 et seq.; for comments on the importance of the Lubanga decision in that regard, see also Weigend, JICJ 6 (2008), 471, 472 et seq. 69 So also Werle/Jeßberger, Principles of International Criminal Law, paras 532 et seqq. 70 For this, see the references in para. 21. 71 See inter alia ICTY, Prosecutor v. Mucic ´ et al., Judgment, IT-96-21-T, 16th November 1998, para. 439. 72 On this case-law, see Werle/Jeßberger, Principles of International Criminal Law, paras 492 et seq. with further references. 73 In favour of a reduction of the field of application of art. 30 of the Rome Statute as far as possible explicitly Werle/Jeßberger, Vo¨lkerstrafrecht, paras 505 et seqq. 74 Cf Triffterer/Ambos-Piragoff/Robinson, Rome Statute, art. 30 para. 3. 68

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3. Grounds for Excluding Criminal Responsibility As already mentioned above, the Rome Statute does not distinguish between “justifica- 29 tions” and “excuses”; it only takes into account whether there are facts of the case which constitute special circumstances necessarily excluding the offender from being punished.75 The explicit enumeration of potential “grounds for excluding criminal responsibility” is a novelty, which did not form part of the legal frameworks of former international criminal tribunals. This is hardly surprising, taking into account that the “general part” of criminal law had not been subject to differentiated legislation on the international level.76 Due to the special nature and gravity of international crimes, most of the grounds for excluding criminal responsibility will, if at all, become relevant in the field of war crimes. a) Self-defence. Art. 31 (1) (c) of the Rome Statute contains a regulation on self- 30 defence as a ground for excluding criminal responsibility. The second sentence clarifies that the fact that the person was involved in a defensive operation conducted by forces shall not per se constitute a ground for excluding criminal responsibility under this subparagraph. Obviously, this ground for excluding criminal responsibility is restricted to self- 31 defence situations. This means, in principle, that the acting person has to defend himself or herself or any other person against an “imminent and unlawful use of force”. Within the war crimes regime, self-defence may also be invoked in the case of an attack against property. In the latter case, the act in self-defence must, however, be essential for the person’s (or another person’s) survival or for accomplishing a military mission. Therefore, the range of interests which are protected by the provisions of self-defence is rather limited.77 Another restriction on the right to self-defence is introduced by the implementation of a strict time frame to which the provisions of self-defence are applicable. According to art. 31 (1) (c) of the Rome Statute the attack has to be “imminent”, which means that it is either about to be carried out or it just started or it is still ongoing.78 Moreover, the use of force has to be unlawful, which means that there are no reasons to exclude criminal liability in relation to the attack itself.79 Nevertheless, this does not necessarily imply that any ground excluding the attacker’s criminal liability will render self-defence against the attack impossible. Here the prerequisite of an “unlawful” attack obviously refers to the differentiation between “justifications” and “excuses” which is to be found in civil law jurisdictions. Following civil law legal theory, the unlawfulness of the attacker’s action is unaffected if the grounds which exclude his or her criminal responsibility are considered “excuses” (and not “justifications”); such excuses only exclude the culpability of the attacker but leave the unlawfulness of the attack unaltered. Thus, the attack is not in line with the relevant legal order (“unlawful”), but due to the excusing circumstances the attacker will not be personally reproached with this breach of law and eventually he will not be punished. As self-defence only requires an unlawful attack, it is e. g. admissible, if the attacker acts unlawfully but excusedly due to a lack of mental capacity described in art. 31 (1) (b) of the Rome Statute. Thus, the distinction between justifications and excuses is not of mere theoretical nature but highly relevant for the legal practice of the Court. 75

Stating the explanation of the equal treatment Gilbert, IJHR 10 (2006), 143, 145. In both the IMT Charter and the Control Council Act no. 10 only the act pursuant to a superior order was accepted – but only as a facultative ground for excluding criminal responsibility, cf Gilbert, IJHR 10 (2006), 143, 144; cf also Schabas, ICC, p. 239. 77 This is clearly different when compared to e. g. German law (cf § 32 StGB). 78 Cf Werle/Jeßberger, Principles of International Criminal Law, paras 622 et seqq. 79 Cassese, Int. Criminal Law, p. 211. 76

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In case 22, X wanted to protect himself from Z’s attack, but from an objective point of view, such attack never occurred. Therefore, X’s criminal liability is not excluded by self-defence as the objective prerequisites of a ground of excluding criminal responsibility were not met at any time. 32 The act of self-defence has to be “reasonable” and “proportionate” with regard to the degree of danger to the protected person or property. As the Rome Statute prescribes a general test of proportionality, it provides only for a limited right to self-defence, which may fall short of domestic legal provisions.80 33 Additionally, the person acting in self-defence must act with the intention of defending himself or another person (“The person acts […] to defend […]”).81 b) Necessity. Only a few grounds for excluding criminal responsibility have played a practical role in the case-law of the international criminal tribunals; “necessity” and “duress” are among them.82 Art. 31 (1) (d) of the Rome Statute contains a comprehensive regulation of necessity, which covers so-called “aggressive” and “defensive” necessity as well as duress.83 35 A situation of necessity requires a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person emanating from a person or constituted by other circumstances beyond that person’s control. A continuous threat, which can turn into an effective harm at any time, is thus included.84 According to the distinct wording of art. 31 (1) (d) of the Rome Statute, a threat to other legal interests than life and the physical integrity of the body (e. g. liberty and property) is not sufficient to cause a situation of necessity. 36 The act of necessity must be necessary (“the person acts necessarily”), i. e. it must be the most lenient yet suitable act of defence. Moreover, the act must stand a “proportionality test” (“the person acts […] reasonably”), taking into account the harm to be expected and the intent to save the legally protected interest. In the words of the Statute: The perpetrator must not intend to cause a greater harm than the one sought to be avoided. Despite its purely subjective wording, art. 31 (1) (d) of the Rome Statute requires an objective balancing of the legally protected interests involved.85 However, the standard is not very strict; the ground for excluding criminal responsibility may even apply if the interests on both sides are comparable. Therefore, art. 31 (1) (d) of the Rome Statute does not generally exclude the possibility that a person who killed another person may rely on necessity as a ground for excluding criminal liability. Such a result is in contradiction with the jurisprudence of the ICTY in the Erdemovic´ case86 and with the fundamental principles of the common law tradition.87 In this respect, the 34

80 Cf e. g. the rather extensive right of self-defence under German law, which does not provide for a proportionality element. Only extreme cases of self-defence are excluded due to an anti-abuse clause. Cf Wessels/Beulke/Satzger, paras 506 et seqq. 81 In agreement Werle/Jeßberger, Vo ¨ lkerstrafrecht, para. 596, whilst pointing to the French wording (“pour […] defender”); for a critical view, see Safferling, Int. StrafR, § 5 para. 46, who maintains that awareness of the situation of self-defence suffices, thereby relying on the English wording. 82 See also Werle/Jeßberger, Principles of International Criminal Law, para. 635; US-Military Tribunal, “Flick et al.”, in: Trials of War Criminals Before the Nuremberg Military Tribunal, vol. VI and LG Hamburg, “Veit Harlan”, file no. 14 Ks 8/49, 1 Js 4/48, decision of 29th April 1950, to mention some early cases. 83 Werle/Jeßberger, Principles of International Criminal Law, paras 632 et seqq. 84 Ambos, Vo ¨ lkerstrafrecht AT, p. 850. 85 See Kreß, HuV-I 1999, 4, 7; for a differing view, see Triffterer/Ambos-Eser, Rome Statute, art. 31 para. 60. 86 See ICTY, Prosecutor v. Erdemovic ´, Judgment, IT-96-22-A, 7th October 1997, para. 19; but also Ambos, Vo¨lkerstrafrecht AT, p. 859. 87 Cf Etzel, Notstand und Pflichtenkollision, pp. 101 et seq.; Janssen, ICLR 4 (2004), 83, 88 et seq.

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Rome Statute follows the civil law tradition, which widely accepts that under exceptional circumstances, necessity may exclude the penalisation of a person killing another person.88 Art. 31 (1) (d) (i) of the Rome Statute explicitly regulates the ground for excluding 37 criminal responsibility of duress, a special case of necessity in which the threat is caused by another person.89 Similar to self-defence, necessity also requires a subjective element. The person has to 38 act with the intention to avoid the threat. The purely subjective wording that is used to describe the interests to be considered for balancing (“[…] provided that the person does not intend to cause a greater harm that the one sought to be avoided […]”)90 clearly shows that the subjective element also extends to the balancing act itself. The ground for excluding criminal liability does not apply to cases of self-induced threats. There is no situation of necessity if the threat is caused by circumstances within the person’s control, art. 31 (1) (d) (ii) of the Rome Statute e contrario. However, in order to qualify a threat as being self-induced, it is not sufficient to establish a causal link between the perpetrator’s behaviour and the threat. Rather, an additional element of negligence needs to be satisfied in order to exclude necessity in those cases.91 c) Superior Orders. According to art. 33 (1) of the Rome Statute, a superior order 39 may under exceptional circumstances relieve the offender from criminal responsibility. The Rome Statute differs considerably from the legal regimes of all former international criminal tribunals, which considered the act pursuant to a superior order only as a circumstance allowing for the “mitigation of the sentence”.92 However, the prevailing importance of art. 33 (1) of the Rome Statute as a ground for excluding criminal liability is very limited: Criminal liability may only be excluded if (1) the perpetrator was under a legal obligation to obey orders of the government or the superior, (2) he or she was unaware of the unlawfulness of the order and (3) the order was not manifestly unlawful (principle of “manifest illegality”). The last restriction must be read in the light of the second paragraph of art. 33 of the Rome Statute. According to this provision, an order to commit genocide or a crime against humanity is generally considered “manifestly unlawful”. Consequently, an exemption from criminal responsibility due to a superior order is only conceivable in relation to war crimes. d) Mistake. Art. 32 of the Rome Statute distinguishes between mistakes of fact and 40 mistakes of law. A mistake of fact principally excludes personal criminal liability.93 Correctly interpreted, art. 32 (1) of the Rome Statute deals with the mistake as to descriptive objective elements, which is treated as a mistake of fact. 88

See also Janssen, ICLR 2004, 83, 88, 89. In German law it is highly disputed whether duress is a “justification” or an “excuse”, cf SSW-StGBRosenau, § 34 StGB para. 30 with further references. 90 For a critical view regarding the subjective definition, see Ambos, Vo ¨ lkerstrafrecht AT, pp. 852 et seq.; Werle/Jeßberger, Principles of International Criminal Law, para. 642, who does not see any secure basis in customary international law. 91 For a parallel interpretation of § 35 StGB, cf Wessels/Beulke/Satzger, para. 661; for International Criminal Law, see Ambos, Vo¨lkerstrafrecht AT, p. 856. 92 See art. 8 of the IMT Charter, art. 7 (4) of the ICTY Statute, art. 6 (4) of the ICTR Statute; cf ICTY (TC I), Prosecutor v. Mrd-a, IT-02-59-S, 31st March 2004, para. 67; ICTY, Prosecutor v. Erdemovic´, Sentencing Judgment, IT-96-22-T, 29th November 1996, paras 47 et seqq. 93 This results from the negatively formulated passage “[…] only if it negates […]”. 89

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A mistake of law is much less common in legal practice. It describes a mistake as to whether a particular type of conduct constitutes a crime. Generally, a mistake of law does not exclude criminal liability. However, if the objective elements of a crime contain a legal assessment, a mistake as to the result of this assessment may (exceptionally) be relevant and negate the mental element required by such a crime. Art. 32 (2) of the Rome Statute relates mainly to mistakes in relation to normative objective elements, which are treated as mistakes of law.94 Criminal responsibility is thus only excluded if the perpetrator is unable to perceive the basic social relevance of the element in question as a result of such a mistake.95 Example: A mistake concerning the requirements of the composition of a “regularly constituted court” in the sense of art. 8 (2) (c) (iv) of the Rome Statute (normative element) would therefore be considered an irrelevant mistake of law, as long as the perpetrator was aware of the facts and the social significance of the normative element.96

Moreover, a mistake of law may be applicable if its object is the (non-manifest) unlawfulness of an order in the sense of art. 33 (1) of the Rome Statute. 42 Correspondingly, the Statute does not recognise the (inevitable) mistake as to the prohibition as a ground for excluding criminal liability.97 This falls short of many domestic legal systems98 and is often strongly criticised in view of the principle of culpability.99 However, the practical importance of this discussion is admittedly rather limited. Considering the nature and severity of core crimes prescribed under international law, it is in most cases virtually inconceivable that the perpetrator could have come to the conclusion that his or her behaviour is not prohibited. The inevitability of a mistake requires that the person seriously reflected upon the issue of potential criminality. It seems, for example, unrealistic that a person who kills other human beings with the intention to destroy a religious group might seriously have come to the conclusion that such a behaviour was permitted. This might be substantially different in the field of war crimes, as the multitude of partly technical regulations may complicate the evaluation of right or wrong. An inevitable mistake as to the criminal prohibition is therefore imaginable.100 In order to respect the principle of culpability in these cases, a ground for excluding criminal responsibility should be applied by analogy to art. 32 (2) of the Rome Statute, or by consideration of art. 31 (3) of the Rome Statute (see para. 49). 43 The Statute also does not mention the mistake as to the existence of justifying circumstances. Such an error occurs if the offender is mistaken about the basis of his actions insofar as he or she wrongly assumes that the factual prerequisites of a ground for 94

Werle/Jeßberger, Vo¨lkerstrafrecht, para. 624. Cf ICC (PTC I), Prosecutor v. Lubanga, Decision on the confirmation of charges, ICC-01/04-01/06-803tEN, 29th January 2007, para. 316; Cassese/Gaeta/Jones-Eser, Rome Statute, p. 941; van Verseveld, Mistake of Law, pp. 83 et seqq.; Werle/Jeßberger, Principles of International Criminal Law, paras 653 et seqq. 96 An example following Triffterer/Ambos-Triffterer/Ohlin, Rome Statute, art. 32 para. 29. 97 An exception is the mistake of law in relation to the (non-manifest) unlawfulness of an order in terms of art. 33 (1) of the Rome Statute; see para. 39. 98 See for example the second sentence of § 17 StGB and art. 14 (3) of the Spanish Criminal Code. 99 Werle/Jeßberger, Principles of International Criminal Law, para. 654. Arguing in favour of the irrelevance of this mistake Ambos, Treatise, vol. 1, p. 371; for a differing view, see Cassese/Gaeta/JonesEser, Rome Statute, pp. 945 et seq. 100 The inevitability of a mistake is, however, only accepted in singular cases by the ICC; the ICC has stated in ICC (PTC I), Prosecutor v. Lubanga, Decision on the confirmation of charges, ICC-01/04-01/06803-tEN, 29th January 2007, paras 306, 312-314, that a regional political or military leader like Lubanga knows the valid regulations and that therefore an inevitable mistake cannot be assumed; cf also Weigend, JICJ 6 (2008), 471, 474. 95

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excluding criminal responsibility are given. In many civil law systems, it is accepted that such a mistake excludes criminal liability at least if it is related to a ground for justification (e. g. self-defence).101 By contrast, according to art. 31 (1) of the Rome Statute, a mistake of fact constitutes only a “ground for excluding criminal responsibility if it negates the mental element required by such a crime”. The mistake as to the existence of a ground for excluding criminal responsibility does not affect the mental element (intent, knowledge), but the elements of a justifying circumstance. Consequently, in strictly applying the wording of the Statute, a mistake as to the existence of circumstances necessary to invoke a ground for excluding criminal liability could not exempt the offender from punishment. In view of the principle of culpability, it is submitted that a different result should be reached by analogously applying art. 32 (1) of the Rome Statute on the basis that both errors relate to a mistake of fact and that both situations are comparable.102 This opinion is to be supported, at least in the context of such grounds for excluding criminal responsibility which constitute justifications under civil law doctrine. In case 22, X acted on the assumption of a factual situation that would, if his perception was correct, establish the situation of self-defence and thus exclude his criminal liability according to art. 31 (1) (c) of the Rome Statute. Therefore, X’s error constitutes a mistake in relation to the existence of “justifying circumstances”. Such an error should generally be treated as a ground for excluding criminal responsibility in analogy to art. 32 (1) of the Rome Statute – in case X respected the limitations of selfdefence (proportionality and reasonableness). e) Mental Incapacity. Art. 31 (1) (a) of the Rome Statute recognises non-transient 44 mental diseases or defects as a ground for excluding criminal responsibility. Generally, temporary mental incapacity caused by intoxication also excludes criminal liability according to art. 31 (1) (b) of the Rome Statute. However, the regulation contains a rule for the so-called actio libera in causa (alic), so that intoxication cannot exclude criminal responsibility if “the person has become voluntarily intoxicated under such circumstances that the person knew, or disregarded the risk that, as a result of the intoxication, he or she was likely to engage in conduct constituting a crime within the jurisdiction of the Court”.103 In the jurisprudence of the international criminal tribunals, persistent mental diseases or defects have never occurred so far.104 Therefore, art. 31 (1) (a) of the Rome Statute will probably also turn out to be of minor practical relevance. In contrast, the regulation of the actio libera in causa could indeed become of substantial importance in the legal practice of the ICC. f) Immunities. In order to guarantee the sovereign equality of states as well as to 45 facilitate international relations, international law recognises the principle of state immunity: No state shall sit in judgment on the acts of another state. As a necessary consequence, certain individuals may enjoy immunity from (foreign) domestic prosecu101 Such mistake is generally acknowledged in German criminal law; however, there are discussions among legal scholars as to its exact consequence; the majority favours the view that only the culpability element is excluded as far as it extends to intentional behavior; others hold that the perpetrator’s behavior is not unlawful or negate the mental element of the offender; cf Wessels/Beulke/Satzger, paras 693 et seqq.; see also the corresponding regulation in Austria, § 8 StGB-Austria. 102 Ambos, Vo ¨ lkerstrafrecht AT, pp. 808 et seq.; Cassese/Gaeta/Jones-Eser, Rome Statute, pp. 889, 945; Triffterer/Ambos-Eser, Rome Statute, art. 31 paras 14, 28; Satzger, NStZ 2002, 125, 128. 103 For details on the alic in German Law, cf Satzger, Jura 2006, 513 et seq.; Wessels/Beulke/Satzger, paras 633 et seqq. 104 Cf also Werle/Jeßberger, Principles of International Criminal Law, para. 672; and the rejection of the defence in ICTY, Prosecutor v. Delalic´ et al., Judgment, IT-96-21-A, 20th February 2001, paras 573 et seq.

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tions. Personal immunities cover particularly diplomats, whose immunity is based on international treaties105, as well as heads of state106 and other members of government representing a state abroad. It needs to be strictly distinguished between two forms of immunity from foreign (criminal) prosecutions, as they differ significantly in their characteristics: – Functional immunitiy (immunity ratione materiae) covers the performance of sovereign acts, which are exclusively attributed to the state. Criminal liability is excluded from the outset for conduct undertaken in an official capacity; this form of immunity also subsists after the period of office has ended. – Heads of state, heads of government and other members of government enjoy absolute immunity from (foreign) criminal prosecution restricted to the duration of their respective period of office. Their immunity applies anywhere abroad (and thus extends beyond the immunity of diplomats).107 Personal immunity (immunity ratione personae) is justified by the rationale that the offender is a member of a group of people whose freedom of action is of particular significance for international relations. In contrast to functional immunities, personal immunities do not generally exclude criminal liability under foreign law; they only constitute a procedural bar that is limited to the respective time of office.108 Both categories of immunities have lost their central importance in criminal proceedings before the ICC. Art. 27 (1) of the Rome Statute generally excludes functional immunities,109 art. 27 (2) of the Rome Statute establishes an exception from personal immunities, at least for heads of state and members of government of Member States.110 Other “international criminal courts” such as hybrid tribunals111 equally reject the applicability of immunities.112 47 However, immunities still enjoy a wide scope of application, even in the context of international crimes, concerning the prosecution of international crimes by domestic law enforcement agencies, based inter alia on the principle of universal jurisdiction. In order to safeguard the efficiency of international relations, the prevailing opinion still recognises personal immunities of representatives of states for their distinct period of office.113 By contrast, the prevailing opinion generally rejects the applicability of 46

105 See art. 31 of the Convention on Diplomatic Relations, Vienna, 18th April 1961, United Nations Treaty Series, vol. 500, pp. 95 et seqq. 106 Heads of state are also immune abroad if they are on private journeys, cf ICJ, Arrest Warrant of 11th April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, 14th February 2002, ICJ-Rep 2002, p. 3 paras 51 et seq.; Cassese, EJIL 13 (2002), 853, 864 et seq.; see also § 12 para. 7. 107 Triffterer/Ambos-Triffterer/Burchard, Rome Statute, art. 27 para. 3. 108 Cf Cassese, EJIL 13 (2002), 853, 864 et seq.; Werle/Jeßberger, Principles of International Criminal Law, para. 734. 109 See only Stern, in: Lattimer/Sands (eds), Justice for Crimes Against Humanity, pp. 86 et seq. 110 Considering the problem of the prosecution of heads of state and other members of government of Non-Member States, see Uerpmann-Wittzack, AVR 44 (2006), 33, 39; concerning the question of Omar Al Bashir’s immunity, see Akande, JICJ 7 (2009), 333; Gaeta, JICJ 7 (2009), 315; Papillon, ICLR 10 (2010), 275; Pedretti, Immunity of Heads of State and State Officials for International Crimes, p. 257 et seqq.; see also ICC (PTC II), Prosecutor v. Al Bashir, Decision under article 87 (7) of the Rome Statute on the noncompliance by South Africa with the request by the Court for the arrest and surrender of Omar Al Bashir, ICC-02/05-01/09-302, 6th July 2017. 111 See especially SCSL (AC), Prosecutor v. Taylor, Decision on immunity from jurisdiction, SCSL2003-01-I, 31st May 2004. 112 In general ICJ, Arrest Warrant of 11th April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, 14th February 2002, ICJ-Rep 2002, p. 3 para. 61; in detail Kreß, in: Klip/Sluiter (eds), Annotated Leading Cases of International Tribunals, vol. 9, pp. 187, 202 et seqq.; SCSL (AC), Prosecutor v. Taylor, Decision on immunity from jurisdiction, SCSL-2003-01-I, 31st May 2004. 113 Akande/Shah, EJIL 21 (2010), 815, 818.

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functional immunities to international crimes, arguing that international criminal conduct can never be considered an act of a sovereign state, therefore being always attributable to individual perpetrators.114 Others assume an exception of the concept of functional immunities in the context of international crimes, based on customary international law.115 g) Statute of Limitations. According to art. 29 of the Rome Statute, criminal offences 48 within the jurisdiction of the ICC are not subject to any statute of limitations.116 The lapse of time is therefore not to be considered as a ground for excluding criminal responsibility before the ICC.117 h) Unwritten Grounds for Excluding Criminal Responsibility. According to art. 31 49 (3) of the Rome Statute, judges may consider unwritten grounds for excluding criminal responsibility, as long as they evolve from the applicable sources of law (see paras 2 et seq.). This opening-clause, allowing to consider unwritten grounds for excluding criminal responsibility, is compatible with the principle of nullum crimen sine lege (art. 22 of the Rome Statute), as the result is only favourable to the accused.

V. Individual Criminal Responsibility Due to their structural nature, crimes prohibited under international law are rarely 50 committed by a single perpetrator. The specific legal wrong of these crimes rather implies that individual conduct fits into a general criminal pattern. This becomes especially clear with crimes against humanity, which require a “widespread or systematic attack directed against any civilian population” (cf art. 7 (1) of the Rome Statute, see § 14 para. 33). Forming cases of “macro-delinquency”, crimes against international law are furthermore typically committed by “desk murderers” who bear predominant responsibility for the crime whilst not “getting their hands dirty” on the ground themselves. These points illustrate the particular necessity for a differentiated system of the various forms of participation in International Criminal Law. Therefore, the general part must comprise rules of imputation that constitute criminal liability not only for the person who directly executes the offending conduct. In contrast to the unitary concept of perpetration prevailing within International 51 Criminal Law, which treated all participants in a crime as principal offenders, art. 25 (3) (a-c) of the Rome Statute clearly distinguishes between three different forms of participation in a crime.118 Firstly, direct and indirect forms of perpetration, as well as co-perpetration are mentioned. Moreover, according to the highly differentiated rules on accessoryship, a person shall be liable for punishment for a crime under the jurisdiction of the ICC if he or she “orders, solicits or induces” (art. 25 (3) (b) of the Rome Statute)119 or “aids, abets or otherwise assists” (in) such a crime (art. 25 (3) (c)). Art. 25 (3) (b) and (c) of the Rome Statute implements the principle of “accessoriness”, which means that the criminal liability of any accessory is dependent on the liability of 114 House of Lords, “Pinochet”, Judgment of 24th March, 1999, [2000] 1 A.C. 147, also available under http://www.publications.parliament.uk/pa/ld199899/ldjudgmt/jd990324/pino1.htm (last visited July 2017); see also Akande/Shah, EJIL 21 (2010), 815, 828; Sands, LJIL 16 (2003), 37, 45 et seq. 115 On the issue in general, see Ambos, Int. Strafrecht, § 7 paras 101 et seq. with further references; Kreicker, ZIS 7 (2012), 107, 117 et seqq. 116 Cf Safferling, Int. StrafR, § 5 para. 64; Schabas, ICC, pp. 492 et seqq. 117 Cf Kreicker, HuV-I 2007, 167 et seq. 118 See Ambos, Vo ¨ lkerstrafrecht AT, pp. 543 et seq. 119 For the special case of incitement to genocide according to art. 25 (3) (e) of the Rome Statute, see § 14 para. 9.

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the main perpetrator for a completed or at least attempted crime. This principle also applies to art. 25 (3) (d) of the Rome Statute, a provision which is generally difficult to comprehend and which establishes criminal liability for other contributions to the aforementioned crimes when committed by a “group acting with a common purpose” as the weakest form of accessoryship. Finally, art. 25 (3) (e) of the Rome Statute is a special provision which has its roots in the Genocide Convention and penalises incitement to commit genocide irrespective of whether or not the crime is actually committed (see § 14 para. 9).

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Art. 25 of the Rome Statute does not expressly prescribe different sanctions for the various forms of participation. However, the specific form of participation can be taken into account by the Court when determining the sentence under art. 78 (1) of the Rome Statute; this has been explicitly codified in Rule 145 (c) RPE.

1. Perpetration 53

a) Direct Perpetration. According to art. 25 (3) (a) alt. 1 of the Rome Statute, direct or immediate perpetration only covers cases of a person committing the crime as its sole perpetrator.

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b) Co-Perpetration. The basis of co-perpetration set out in art. 25 (3) (a) alt. 2 of the Rome Statute lies in a common plan of action, allowing to attribute the individual contributions to all perpetrators. It remains much debated whether the plan needs to extend to the conscious committing of an international crime or if simply any “element of criminality” suffices.120 Additionally, the majority opinion requires an objective element such as an “essential contribution”, implementing the “control theory” which was first developed in German legal doctrine, mainly stimulated by academic writings of Claus Roxin.121 120 The latter is supported by the ICC’s jurisprudence in the Lubanga case, cf ICC (PTC I), Prosecutor v. Lubanga, Decision on the confirmation of charges, ICC-01/04-01/06-803-tEN, 29th January 2007, 344; see also ICC (TC I), Prosecutor v. Lubanga, Judgment pursuant to article 74 of the Statute, ICC-01/04-01/ 06-2842, 14th March 2012, paras 984 et seqq., establishing the requirement of a sufficient risk that, under the usual course of events, a crime will be committed; ICC (TC II), Prosecutor v. Katanga, Judgment pursuant to article 74 of the Statute, ICC-01/04-01/07-3436-tENG, 7th March 2014, paras 1390 et seqq.; rejecting such risk element ICC (AC), Prosecutor v. Lubanga, Judgment on the appeal of Mr Thomas Lubanga Dyilo against his conviction, ICC-01/04-01/06-3121-Red, 1st December 2014, paras 445, 446, 451. 121 ICC (AC), Prosecutor v. Lubanga, Judgment on the appeal of Mr Thomas Lubanga Dyilo against his conviction, ICC-01/04-01/06-3121-Red, 1st December 2014, paras 468 et seqq.; ICC (TC II), Prosecutor v. Katanga, Judgment pursuant to article 74 of the Statute, ICC-01/04-01/07-3436-tENG, 7th March 2014, paras 1393 et seq.; ICC (PTC I), Prosecutor v. Lubanga, Judgment pursuant to article 74 of the Statute, ICC-01/04-01/06-2842, 14th March 2012 para. 999; ICC (PTC I), Prosecutor v. Lubanga, Decision on the

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c) “Joint Criminal Enterprise” as Extension of Co-Perpetration? The statutes of the 55 ad hoc tribunals lacked explicit regulations on co-perpetration similar to art. 25 (3) (a) of the Rome Statute. In cases with multiple participants, the tribunals employed the socalled Joint Criminal Enterprise doctrine (JCE) instead. JCE is a far-reaching model of imputation that was developed on the basis of (alleged) customary international law primarily by the ICTY in the Tadic´ case.122 The tribunals regarded JCE as an (unwritten but implied) subset of “commission” under art. 7 (1) of the ICTY Statute and art. 6 of the ICTR Statute respectively. This interpretation enableded them to convict participants of a joint enterprise as (co-)perpetrators of an international crime committed in the course of their enterprise.123 However, it seems problematic to impute certain acts to another person even though they were not covered by the common plan and therefore would have to be seen as “excesses”, as it is possible with the most extensive form of JCE (so-called JCE III). Whether the notion of a crime that one “commits jointly with another” person in the Rome Statute still leaves room for this model of imputation has not been finally resolved yet. However, the case-law of the ICC seemingly negates this point.124 The ad hoc tribunals125 distinguished between three categories of JCE. In any case, 56 three objective prerequisites for an imputation of contributions of co-perpetrators have to be fulfilled: – Several individuals, – A common plan or purpose including the commission of one or several international crimes, and – A contribution within the framework of this common plan, which, however, does not have to fulfil any special requirements (like e. g. being “essential” for the completion of the plan).126 The different types of JCE differ mainly in regard to their subjective requirements: 57 – In the basic form of JCE (so-called JCE I), all participants work together within the framework of a common criminal intent with each of them contributing with his or her conduct to the common plan. A mutual imputation of the respective contributions is justified because of the cooperative course of action or “division of labour”. It is submitted that this is only the case if one does not lower the standard for the contribution promoting the crime, but – being more restrictive than the ad hoc confirmation of charges, ICC-01/04-01/06-803-tEN, 29th January 2007, paras 342 et seq., 361 et seq.; opposing the implementation of the “control theory”, see Judge Fulford in his dissenting opinion to ICC (TC I), Prosecutor v. Lubanga, Judgment pursuant to article 74 of the Statute, ICC-01/04-01/06-2842, 14th March 2012, and ICC (TC II), Prosecutor v. Ngudjolo, Judgment pursuant to article 74 of the Statute – Concurring opinion of Judge Christine van den Wyngaert, ICC-01/04-02/12-4, 18th December 2012. 122 For the problems concerning this explanation cf Zahar/Sluiter, International Criminal Law, pp. 223 et seq. 123 For general reflections on joint criminal enterprise, see van der Wilt, JICJ 5 (2007), 91. 124 See ICC (AC), Prosecutor v. Lubanga, Judgment on the appeal of Mr Thomas Lubanga Dyilo against his conviction, ICC-01/04-01/06-3121-Red, 1st December 2014, paras 471 et seq.; ICC (TC II), Prosecutor v. Katanga, Judgment pursuant to article 74 of the Statute, ICC-01/04-01/07-3436-tENG, 7th March 2014, paras 1392 et seqq.; ICC (TC I), Prosecutor v. Lubanga, Judgment pursuant to article 74 of the Statute, ICC-01/04-01/06-2842, 14th March 2012, paras 999 et seqq.; ICC (PTC I), Prosecutor v. Lubanga, Decision on the confirmation of charges, ICC-01/04-01/06-803-tEN, 29th January 2007, paras 322 et seqq. 125 For the development of JCE in the case-law of the ICTY, see Haan, ICLR 5 (2005), 167 et seq.; cf ICC (TC II), Prosecutor v. Ngudjolo, Judgment pursuant to article 74 of the Statute – Concurring opinion of Judge Christine Van den Wyngaert, ICC-01/04-02/12-4, 18th December 2012. 126 ICTY, Prosecutor v. Kvoc ˇka et al., Judgment, IT-98-30/1-A, 28th February 2005, paras 97, 99, 112: it is not required that a participant fulfils an objective element of the crime, that he delivers an essential contribution to the crime or that he is present at the scene of crime; for the differing previous case-law, see Werle/Jeßberger, Principles of International Criminal Law, paras 528 et seqq. with further references.

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tribunals – does require some form of “essentiality”. For less important contributions, a classification as mere “assisting” a crime seems to be more appropriate. – The systemic form of JCE (JCE II) is designed to cover the so-called “concentration camp”-cases and is mostly considered a mere subset of the basic form.127 Compared to the basic form, JCE II differs in the fact that a specific intent of the participant concerning the committed crimes does not need to be proven. It is sufficient if the participant acts with knowledge of the nature of the system of cruelties and with the intent to further the commonly concerted design of this system.128 At times, the tribunals have inferred this intent from a participant’s position of authority within the system.129 – Lastly, the extended form of JCE (JCE III) relates to crimes of international law committed by single members of a group that were not covered by the common plan of action. With the application of JCE III as a model of imputation, these criminal excesses are to be considered as having been “committed” by all group members, even if they had no knowledge of these crimes at all and therefore did not make any objective contributions to them. In these cases, according to the case-law of the ICTY, the imputation (leading to the assumption of co-perpetration) requires that the participant acted with the intention “to further the criminal purposes of that enterprise”. Additionally, it is required that the excess crime was foreseeable to the participant and that he or she nevertheless “willingly took that risk”130. 58

JCE, as it has been applied by the ad hoc tribunals, does not seem to be particularly useful for the distinction between (principal) perpetrators and accessories. As shown above, the importance of the objective contribution to the crime has been of very little relevance in the case-law of the ad hoc tribunals. Perpetration has been assumed on the mere basis of a shared intent within a group to reach a certain criminal goal. Such a broad notion of perpetration renders a reasonable differentiation to accessoryship (as obviously demanded by the clear separation in art. 25 (3) of the Rome Statute) virtually impossible. On the basis of the “control theory”, which is guiding the jurisprudence of various chambers at the ICC131, the objective contribution to the crime plays the decisive role in defining the amount of control over the enterprise exercised by each participant. Furthermore, JCE and particularly its extended form has been rightly criticised as being a “novel category of imputation […] without any normative basis in art. 25”132. If actual dolus eventualis concerning the excess crime was required, one could no longer speak of an actual excess crime, which would make JCE III in fact 127 For the problems of too low standards concerning the gravity of contributions of participants, see Satzger, in: Hassemer et al. (eds), FS Volk, p. 592. 128 ICTY, Prosecutor v. Tadic ´, Judgment, IT-94-1-A, 15th July 1999, para. 220. 129 ICTY, Prosecutor v. Kvoc ˇka et al., Judgment, IT-98-30/1-A, 28th February 2005, para. 101; ICTY, Prosecutor v. Tadic´, Judgment, IT-94-1-A, 15th July 1999, para. 203; for criticism, see Ambos, Int. Strafrecht, § 7 para. 30 with further references. 130 ICTY, Prosecutor v. Tadic ´, Judgment, IT-94-1-A, 15th July 1999, para. 228. 131 ICC (AC), Prosecutor v. Lubanga, Judgment on the appeal of Mr Thomas Lubanga Dyilo against his conviction, ICC-01/04-01/06-3121-Red, 1st December 2014, paras 468 et seqq.; ICC (TC II), Prosecutor v. Katanga, Judgment pursuant to article 74 of the Statute, ICC-01/04-01/07-3436-tENG, 7th March 2014, paras 1393 et seq.; ICC (TC I), Prosecutor v. Lubanga, Judgment pursuant to article 74 of the Statute, ICC-01/04-01/06-2842, 14th March 2012, para. 999; ICC (PTC I), Prosecutor v. Lubanga, Decision on the confirmation of charges, ICC-01/04-01/06-803-tEN, 29th January 2007, paras 326 et seq.; ICC (PTC I), Prosecutor v. Katanga and Ngudjolo, Decision on the confirmation of charges, ICC-01/04-01/07-717, 30th September 2008, para. 486; cf ICC (TC II), Prosecutor v. Ngudjolo, Judgment pursuant to article 74 of the Statute – Concurring opinion of Judge Christine Van den Wyngaert, ICC-01/04-02/12-4, 18th December 2012; see also para. 54. 132 Ambos, Int. Strafrecht, § 7 para. 31; see also Satzger, in: Hassemer et al. (eds), FS Volk, p. 593.

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superfluous. The requirements concerning the mental element of the crime in the JCE case-law of the tribunals are, by contrast, minimal and do not even demand any specific link to the actual crime, but merely to the “risk” of the commission of future crimes. This is apparent if one takes into account that JCE III has been applied in the context of “vast enterprises” which are almost impossible to confine. The ICTR, for example, found it admissible to treat “eliminating the Tutsi population in Rwanda” as the relevant criminal enterprise and therefore imputed, in application of JCE III, any international crime which has been committed in this context to anyone who took part in this nationwide and hardly confineable enterprise. Each participant could thus be considered a co-perpetrator, as the commission of such crimes was foreseeable to him or her and he or she had willingly taken this risk.133 Beyond that, the use of JCE III is inacceptable from the outset where the doctrine is used to impute special mental elements, e. g. in particular the intention of destruction within the crime of genocide. In this way, the subjective “threshold” of criminal liability is drastically lowered. In the case of genocide as an excess crime, this had the consequence that the mere knowledge of the destructive intention of the excess offender was accepted as sufficient for the conviction of a group member as perpetrator of genocide.134 It is submitted that the Rome Statute does not provide for any legal basis for the adoption of the principles of JCE. Art. 25 (3) (a) alt. 2 of the Rome Statute contains a clear regulation for (co-)perpetration. Assistance in a crime committed by a group under art. 25 (3) (d) of the Rome Statute (which seems to come closest to the concept of JCE) is not listed as a form of perpetration, but rather as the weakest form of accessoryship135, which is in accordance with the principles of the “control theory”. Therefore, the ICC correctly held that a transfer of the JCE doctrine to the crimes under its jurisdiction was neither necessary nor legally permissible.136 Nevertheless, JCE remains of remarkable significance within the case-law of some hybrid courts.137 In its decision of 20th May 2010, the ECCC Pre-Trial Chamber, however, limited the applicability of JCE to its first two types. Thus, the ECCC considered the extended form of JCE (JCE III) inapplicable, opposing the ICTY’s jurisprudence in the Tadic´ case.138 d) Indirect Perpetration. Art. 25 (3) (a) alt. 3 of the Rome Statute also provides for 59 criminal liability for a person who commits a crime “through another person” (indirect perpetration). Art. 25 (3) (a) alt. 3 of the Rome Statute clearly states that the liability of the indirect perpetrator is independent of whether or not the person through whom the indirect perpetrator is supposed to have acted is criminally responsible. The Statute thus 133

See Satzger, in: Klip/Sluiter (eds), Annotated Leading Cases of the International Tribunals, vol. 24,

2009.

134 In this sense ICTY, Prosecutor v. Brd-anin, Decision on interlocutory appeal, IT-99-36-A, 19th March 2004, para. 6; for a differing view, see ICTY, Prosecutor v. Brd-anin, Decision on motion for acquittal pursuant to rule 98 bis, IT-99-36-T, 28th November 2003, para. 57; Ambos, Int. Strafrecht, § 7 para. 32; Satzger, in: Hassemer et al. (eds), FS Volk, pp. 594 et seq. with further references. 135 Cf Werle/Jeßberger, Vo ¨ lkerstrafrecht, para. 446. 136 Cf ICC (AC), Prosecutor v. Lubanga, Judgment on the appeal of Mr Thomas Lubanga Dyilo against his conviction, ICC-01/04-01/06-3121-Red, 1st December 2014; ICC (TC II), Prosecutor v. Katanga, Judgment pursuant to article 74 of the Statute, ICC-01/04-01/07-3436-tENG, 7th March 2014; ICC (TC I), Prosecutor v. Lubanga, Judgment pursuant to article 74 of the Statute, ICC-01/04-01/06-2842, 14th March 2012; ICC (PTC I), Prosecutor v. Lubanga, Decision on the confirmation of charges, ICC-01/04-01/06803-tEN, 29th January 2007; see also the analysis of the Lubanga decision by Weigend, JICJ 6 (2008), 471, 476 et seq. 137 Cf e. g. SCSL (TC I), Prosecutor v. Sesay, Kallon, Gbao, Judgment, SCSL-04-15-T, 2nd March 2009. 138 ECCC, Prosecutor v. Ieng et al., Decision on the appeals against the co-investigative Judges order on joint criminal enterprise (JCE), 002/19-09-2007-ECCC/OCIJ (PTC38), 20th May 2010; relating to the latter and regarding the meaning of JCE for the ECCC, see Gustafson, JICJ 8 (2010), 1323 et seq.

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acknowledges the idea of the “perpetrator behind the perpetrator” which was also developed by Claus Roxin.139 In the confirmation of charges decisions of the Court in the cases of Lubanga140, Katanga and Ngudjolo141 and Ble´ Goude´142 as well as in the arrest warrant against Al Bashir143, the summons decision against Ruto, Kosgey and Sang144 as well as the judgment against Katanga145, the ICC defined indirect perpetration in the aforementioned sense.146 Considering the nature of the cases brought to the ICC, indirect perpetration may very well become the most important form of perpetration under art. 25 (3) of the Rome Statute.147

2. Accessoryship 60

With respect to accessoryship, the Statute distinguishes between “ordering, soliciting or inducing the principal offence” on the one hand and “aiding, abetting and otherwise assisting” on the other.

61

a) Instigation. Art. 25 (3) (b) describes three different forms of accessorial liability which could be best subsumed under the term of instigation.148 Instigation requires that the instigator assigns the perpetrator to commit the crime by evoking his or her criminal intent,149 i. e. causing the commission of the offence by another.150 Sharing this common denominator, the three sub-categories of instigation, however, entail distinct modes of accessorial liability.

139 See – in the context of International Criminal Law – Roxin, GA 1963, 193 et seq.; concerning the role of German legal doctrine, in particular the concept of “perpetrator behind perpetrator”, in the caselaw of the ICC and regarding the criticism of this case-law, see Weigend, JICJ 9 (2011), 91 et seq. 140 ICC (PTC I), Prosecutor v. Lubanga, Decision on the confirmation of charges, ICC-01/04-01/06803, 29th January 2007, para. 318, confirmed by ICC (AC), Prosecutor v. Lubanga, Judgment on the appeal of Mr Thomas Lubanga Dyilo against his conviction, ICC-01/04-01/06-3121, 1st December 2014, para. 469. 141 ICC (PTC I), Prosecutor v. Katanga and Ngudjolo, Decision on the confirmation of charges, ICC01/04-01/07-717, 30th September 2008, para. 514. 142 ICC (PTC I), Prosecutor v. Ble ´ Goude´, Decision on the confirmation of charges against Charles Ble´ Goude´, ICC-02/11-02/11-186, 11th December 2014, para. 136. 143 ICC (PTC I), Prosecutor v. Al Bashir, Decision on the Prosecution’s application for a warrant of arrest against Omar Hassan Ahmad Al-Bashir, ICC-02/05-01/09-3, 4th March 2009, para. 216. 144 ICC (PTC II), Prosecutor v. Ruto, Kosgey and Sang, Decision on the Prosecutor’s application for summons to appear for William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, ICC-01/0901/11-01, 8th March 2011, paras 40 et seq. 145 ICC (TC II), Prosecutor v. Katanga, Judgment pursuant to article 74 of the Statute, ICC-01/04-01/ 07-3436-tENG, 7th March 2014, paras 1403 et seqq. 146 See also Roxin, ZIS 4 (2009), 565; regarding the prerequisites of an indirect (co-)perpetration, see ICC (PTC II), Prosecutor v. Ruto, Kosgey and Sang, Decision on the Prosecutor’s application for summons to appear for William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, ICC-01/ 09-01/11-01, 8th March 2011, para. 40; the Pre-Trial Chamber did not consider the prerequisites concerning the accused Sang as being fulfilled as it was not satisfied his contributions were essential. 147 On indirect perpetration in the jurisprudence of the ICC, cf Jeßberger/Geneuss, JICJ 6 (2008), 853 et seq.; Manacorda/Meloni, JCIJ 9 (2011), 159 et seq. compare the two models of perpetration, JCE and indirect perpetration by a perpetrator behind the perpetrator and underline that both share the goal of enabling the prosecution and conviction of high ranking persons bearing responsibility for international crimes. 148 ICC (PTC I), Prosecutor v. Gbagbo, Decision on the confirmation of charges against Laurent Gbagbo, ICC-02/11-01/11-656-Red, 12th June 2014, 243. 149 Cf Triffterer/Ambos-Ambos, Rome Statute, art. 25 para. 15. 150 ICC (TC VII), Prosecutor v. Bemba et al., Judgment pursuant to article 74 of the Statute, ICC-01/0501/13-1989-Red, 19th October 2016, para. 74.

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Inducement requires the exertion of influence over the physical perpetrator,151 “either by strong reasoning, persuasion or conduct implying the prompting of the commission of the offence”.152 The solicitation of a crime presupposes the individual to ask or urge the physical perpetrator to perform the criminal act. However, it does not require an element of exertion, which makes solicitation a weaker form of instigation than inducement.153 Ordering the commission of a crime requires a position of authority vis-a`-vis the perpetrator.154 This position implies a special relationship of subordination, which distinguishes the mode of ordering from inducement and solicitation of a crime, making it the strongest form of instigation.155 Ordering as a distinct mode of accessorial liability shall especially address orders within a military hierarchy.156 In a subjective sense, the instigator has to act with intent with respect to his or her own act and also to the commission of the principal offence (art. 30 of the Rome Statute).157 b) Assistance. Art. 25 (3) (c) of the Rome Statute introduces a further form of 62 accessorial liability; assistance in a crime provides the generic term, whereas “aiding”, “abetting” as well as “otherwise assisting” present sub-categories thereto.158 Aiding implies the provision of practical or material assistance, whereas abetting presupposes moral or psychological assistance to the perpetrator.159 Assistance covers all contributions that facilitate the commission of a crime or have some other substantial effect on the commission of the crime by the principal offender.160 Under certain circumstances, the encouragement to commit the crime or 151 ICC (PTC II), Prosecutor v. Ntaganda, Decision pursuant to article 61 (7) (a) and (b) of the Rome Statute on the charges of the Prosecutor against Bosco Ntaganda, ICC-01/04-02/06-309, 9th June 2014, para. 153. 152 ICC (TC VII), Prosecutor v. Bemba et al., Judgment pursuant to article 74 of the Statute, ICC-01/0501/13-1989-Red, 19th October 2016, para. 76. 153 Cf ICC (TC VII), Prosecutor v. Bemba et al., Judgment pursuant to article 74 of the Statute, ICC-01/ 05-01/13-1989-Red, 19th October 2016, para. 76. 154 ICC (PTC I), Prosecutor v. Gbagbo, Decision on the confirmation of charges against Laurent Gbagbo, ICC-02/11-01/11-656-Red, 12th June 2014, 243; ICC (PTC II), Prosecutor v. Ntaganda, Decision pursuant to article 61 (7) (a) and (b) of the Rome Statute on the charges of the Prosecutor against Bosco Ntaganda, ICC-01/04-02/06-309, 9th June 2014, paras 145, 153. 155 Cf ICC (TC VII), Prosecutor v. Bemba et al., Judgment pursuant to article 74 of the Statute, ICC-01/ 05-01/13-1989-Red, 19th October 2016, para. 77. 156 Triffterer/Ambos-Ambos, Rome Statute, art. 25 para. 14. 157 See also Cassese/Gaeta/Jones-Eser, Rome Statute, p. 797; slightly different Werle/Jeßberger, Principles of International Criminal Law, paras 566 et seq.; for the equivalent requirements in German law, cf Wessels/Beulke/Satzger, para. 809. 158 This approach correctly differentiates the ICC’s legal framework from the (inconsistent) jurisprudence of the ad hoc tribunals with regard to “aiding and abetting” as a unified concept, see ICC (TC VII), Prosecutor v. Bemba et al., Judgment pursuant to article 74 of the Statute, ICC-01/05-01/13-1989-Red, 19th October 2016, para. 87 with further references. 159 ICC (TC VII), Prosecutor v. Bemba et al., Judgment pursuant to article 74 of the Statute, ICC-01/0501/13-1989-Red, 19th October 2016, paras 88 et seq; for a similar approach, see also ICTY, Prosecutor v. Kvocˇka et al., Judgment, IT-98-30/1-T, 2nd November 2001, paras 253 et seq.; ICTR, Prosecutor v. Akayesu, Judgment, ICTR-96-4-T, 2nd September 1998, para. 484. 160 Cf ICC (TC I), Prosecutor v. Lubanga, Judgment pursuant to article 74 of the Statute, ICC-01/04-01/ 06-2842, 14th March 2012, para. 997; ICC (PTC I), Prosecutor v. Mbarushimana, Decision on the confirmation of charges, ICC-01/04-01/10-465, 16th December 2011, para. 279; cf also ICTY, Prosecutor v. Krnojelac, Judgment, IT-97-25-T, 15th March 2002, para. 88; some chambers have rejected the heightened threshold of a “substantial” contribution, favouring the implementation of a broader approach, accepting all effects on the commission of the principal’s offence, see ICC (TC VII), Prosecutor v. Bemba et al., Judgment pursuant to article 74 of the Statute, ICC-01/05-01/13-1989-Red, 19th October 2016, paras 90-93; ICC (PTC II), Prosecutor v. Bemba et al., Decision pursuant to article 61 (7) (a) and

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the mere fact of being present at the scene of the crime may be sufficient. The contribution of the assistant does not necessarily have to be a causal factor for a crime to occur.161 Concerning the subjective element, assistance requires a higher standard compared to art. 30 of the Rome Statute, as art. 25 (3) (c) of the Rome Statute demands that the assistance has to be conducted “for the purpose of facilitating the commission of the crime […]”. The accessory must therefore, on the one hand, act purposefully with respect to the facilitating effect of his contribution.162 As for the other elements of the crime, on the other hand, art. 30 of the Rome Statute is applicable in that the knowledge of these elements is sufficient. Depending on the interpretation of art. 30 of the Rome Statute, mere dolus eventualis may equally suffice (see paras 27 et seq.). Special intentions of the perpetrator do not have to be shared by the accessory.163 63

c) Contribution to a Group Crime. The contribution to a crime committed by a group of persons acting with a common purpose (art. 25 (3) (d) of the Rome Statute) is a new form of participation that stems from a provision within the International Convention on the Suppression of Terrorist Bombings of 15th December 1997.164 The provision was included in the Statute mainly due to controversies among the delegates of the Rome Conference on how to phrase the crime of “conspiracy”. Regarding the material element, it seems that the threshold is lower than for assistance, as it suffices that the person contributes “in any other way” to the commission of the crime. Any “significant contribution” that does not fall under another form of participation can thus be sufficient.165 As a counterweight, the mental requirements are at least in part stricter in comparison to those set out in art. 30 of the Rome Statute. The contribution to the crime must not only fulfil the general subjective elements of the respective criminal offence. Furthermore, it is necessary that the contribution is made with the aim of furthering the criminal activity or criminal purpose of the group or in the knowledge of the group’s intention to commit the crime.166 In its basic structure, the regulation resembles the model of JCE (see paras 55 et seqq.). However, the contribution to a group crime is clearly categorised as the weakest form of accessoryship, not as a mode of perpetration, as it is (or has been) the case with JCE.167 The regulation is rightly criticised for its vague phrasing, but also with respect to its doubtful practical (b) of the Rome Statute, ICC-01/05-01/13-749, 11th November 2014, para 35; ICC (PTC I), Decision on the confirmation of charges against Charles Ble´ Goude´, ICC-02/11-02/11-186, 11th December 2014, para 167. 161 ICC (TC VII), Prosecutor v. Bemba et al., Judgment pursuant to article 74 of the Statute, ICC-01/0501/13-1989-Red, 19th October 2016, para. 90; see also ICTY, Prosecutor v. Kvocˇka et al., Judgment, IT-9830/1-T, 2nd November 2001, para. 255; Triffterer/Ambos-Ambos, Rome Statute, art. 25 para. 23. 162 See also Cassese/Gaeta/Jones-Eser, Rome Statute, p. 801. 163 Cf Kittichaisaree, Int. Criminal Law, p. 244; cf also ICTY, Prosecutor v. Krstic ´, Judgment, IT-98-33A, 19th April 2004, para. 140 with further references. 164 See art. 2 (3) (c) of this Convention (UN Doc. A/RES/52/164). 165 ICC (TC II), Prosecutor v. Katanga, Judgment pursuant to article 74 of the Statute, ICC-01/04-01/ 07-3436-tENG, 7th March 2014, para. 1632; ICC (PTC I), Prosecutor v. Mbarushimana, Decision on the confirmation of charges, ICC-01/04-01/10-465, 16th December 2011, paras 283, 285; for further discussion of the decision and the significant contribution threshold, see von Maltitz, ORIL, ICL 1559 (ICC 2011). 166 Regarding the specific requirements, cf ICC (TC II), Prosecutor v. Katanga, Judgment pursuant to article 74 of the Statute, ICC-01/04-01/07-3436-tENG, 7th March 2014, para. 1638; ICC (PTC II), Prosecutor v. Ruto, Kosgey and Sang, Decision on the Prosecutor’s application for summons to appear for William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, ICC-01/09-01/11-01, 8th March 2011, para. 51; PTC II rejected the existence of an (indirect) co-perpetration of the defendant Sang due to lack of authority of action, instead recurring to art. 25 (3) (d). 167 Cf Werle/Jeßberger, Principles of International Criminal Law, para. 575.

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relevance alongside inducement and assistance as the “classic” forms of participation.168 The regulation seems to primarily aim at the trafficking of weapons as well as financial and other ways of indirect assistance in the commission of crimes.169

VI. Superior Responsibility Superior responsibility170 is another legal concept developed specifically in the 64 context of International Criminal Law. Its origins can be traced back to the Geneva Conventions (see § 14 para. 54). It is codified in art. 28 of the Rome Statute and its predecessor provisions are to be found in the Statutes of the ad hoc tribunals (art. 7 of the ICTY Statute, art. 6 of the ICTR Statute).171 With this model of imputation, a military commander or civilian superior can be held criminally liable for international crimes committed by his or her subordinates (so-called “base crimes”)172 if he or she has failed to exercise control properly. Being in a position of control, the superior is obliged to take necessary and appropriate counter-measures and can be punished for failure to comply with this duty. Art. 28 of the Rome Statute expressly creates a subsidiary form of participation sui generis which complements the other forms of participation codified in art. 25 (3) of the Rome Statute (“in addition to other grounds of criminal responsibility”).173 Therefore, as a first step, one has to determine whether a certain behaviour falls under art. 25 (3) of the Rome Statute, before art. 28 of the Rome Statute can be applied.174 Superior responsibility is subject to the following four material prerequisites: 65 – Firstly, a relationship between superior and subordinate has to be established. This is not limited to military personnel but also applies to civilian superiors within nonmilitary hierarchical structures (e. g. administration, trade unions, companies) who have similarly effective control (see art. 28 (b) of the Rome Statute).175 – Secondly, an effective command and control or effective authority and control by the superior is necessary.176 It is not necessary that the superior is legally in charge of exercising control. However, a mere factual possibility of control, independent of any organisational-hierarchical structures (e. g. on the basis of personal relations), is also not sufficient.177 With respect to civilian superiors, art. 28 (b) of the Rome Statute contains an additional limitation concerning actions for which the superior can be

168 Cf Cassese/Gaeta/Jones-Eser, Rome Statute, p. 803, who sees at least some symbolic value of the norm; Triffterer/Ambos-Ambos, Rome Statute, art. 25 para. 28. 169 Vogel, ZStW 114 (2002), 403, 421. 170 In respect to persons giving military orders, the (special) term of “command responsibility” is used; for terminological issues, see Werle/Jeßberger, Principles of International Criminal Law, para. 580; regarding the historical development, see Vogel, in: Jeßberger/Geneuss (eds), Vo¨lkerstrafgesetzbuch, p. 40 et seq. 171 See Burghardt, Die Vorgesetztenverantwortlichkeit; Weigend, in: Burchard et al. (eds), The Review Conference and the Future of the ICC, pp. 67 et seq. 172 Cf Ambos, Int. Strafrecht, § 7 para. 55. 173 ICC (TC III), Prosecutor v. Bemba, Judgment pursuant to article 74 of the Statute, ICC-01/05-01/ 08-3343, 21st March 2016, para. 174. 174 See also ICTY, Prosecutor v. Blasˇkic ´ , Judgment, IT-95-14-A, 29th July 2004, paras 91 et seq. 175 In lieu of a variety of decisions, see only ICTY, Prosecutor v. Delalic ´ et al., Judgment, IT-96-21-A, 20th February 2001, paras 193, 248 et seq.; ICC (TC III), Prosecutor v. Bemba, Judgment pursuant to article 74 of the Statute, ICC-01/05-01/08-3343, 21st March 2016, paras 176 et seqq. 176 ICC (TC III), Prosecutor v. Bemba, Judgment pursuant to article 74 of the Statute, ICC-01/05-01/ 08-3343, 21st March 2016, paras 180 et seqq. 177 Werle/Jeßberger, Principles of International Criminal Law, para. 590.

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held liable: They have to fall under his or her effective responsibility and control. That means that the position of a civilian superior is, unlike members of the military, rather restricted concerning place and time.178 – Thirdly, the crime of the subordinate has to be the consequence of a failure to exercise control properly.179 If this requires strict causation in terms of the but-fortest is controversially discussed in legal writings and deliberately left open in the Bemba trial judgment.180 Such an element has not been present in the case-law of the ad hoc tribunals.181 – Lastly, the superior must have failed to take all reasonable and necessary measures.182 If the international crime has not yet been committed, the measures have to aim at preventing the commission of the crime by the subordinate. If the crime has been committed (without an omission contrary to the duty of the superior), he has to “repress their commission or to submit the matter to the competent authorities for investigation and prosecution”. In doing so, the superior has to take all possible and (from an objective ex ante point of view183) necessary and reasonable measures. 66

In a subjective sense, art. 28 of the Rome Statute distinguishes between requirements for military and non-military superiors: – Military superiors (see art. 28 (a) (i) of the Rome Statute) are criminally liable if they knew about the “base crime” or if they should have known about it, meaning that they would have gained knowledge of the commission of the crime if they had properly exercised their duty of control.184 – Civilian superiors are also criminally liable if they have knowledge of the commission of the crime. However, lack of knowledge contrary to their duty does not suffice. It is rather required that the superior “consciously disregarded information which clearly indicated that the subordinates were committing or about to commit such crimes”, which implies an increased level of negligence. In this respect, the distinction between military and civilian superiors is of central importance; in its first decision concerning art. 28 of the Rome Statute, the ICC indicated the standards it is going to apply in future jurisprudence:185 Apart from the superior de jure, persons can be seen as de facto superiors according to art. 28 (a) of the 178 This may lead to a limitation of superior responsibility, e. g. only for the duration of his working hours, cf Werle/Jeßberger, Principles of International Criminal Law, para. 594. 179 ICC (TC III), Prosecutor v. Bemba, Judgment pursuant to article 74 of the Statute, ICC-01/05-01/ 08-3343, 21st March 2016, paras 210 et seqq. 180 ICC (TC III), Prosecutor v. Bemba, Judgment pursuant to article 74 of the Statute, ICC-01/05-01/ 08-3343, 21st March 2016, para. 213; in favour ICC (PTC II), Prosecutor v. Bemba, Decision pursuant to article 61 (7) (a) and (b) of the Rome Statute on the charges of the Prosecutor against Jean-Pierre Bemba, ICC-01/05-01/08-424, 15th June 2009, para. 423; for a critical view, see Vogel, in: Jeßberger/Geneuss (eds), Vo¨lkerstrafgesetzbuch, p. 51; Triffterer/Ambos-Triffterer/Arnold, Rome Statute, art. 28 para. 109. 181 ICTY, Prosecutor v. Delalic ´ et al., Judgment, IT-96-21-T, 16th November 1998, paras 398 et seq.; more nuanced Safferling, Int. StrafR, § 5 para. 101; Ambos, Vo¨lkerstrafrecht AT, pp. 686 et seq., argues in favour of a connection between protection and fulfilment of dangers for reasons of criminal culpability. 182 ICC (TC III), Prosecutor v. Bemba, Judgment pursuant to article 74 of the Statute, ICC-01/05-01/ 08-3343, 21st March 2016, paras 197 et seqq. 183 See also Werle/Jeßberger, Principles of International Criminal Law, para. 606. 184 Werle/Jeßberger, Principles of International Criminal Law, para. 598: in contrast to the opinion of the ad hoc tribunals (e. g. ICTR, Prosecutor v. Bagilishema, Judgment, ICTR-95-1A-A, 3rd July 2002, paras 34 et seq.), this standard clearly constitutes a form of negligence; see also Meloni, JICJ 5 (2007), 619, 634 et seq.; Triffterer, in: Prittwitz et al. (eds), FS Lu¨derssen, p. 452. 185 ICC (PTC II), Prosecutor v. Bemba, Decision pursuant to article 61 (7) (a) and (b) of the Rome Statute on the charges of the Prosecutor against Jean-Pierre Bemba, ICC-01/05-01/08-424, 15th June 2009, paras 407 et seq.; for this distinction, see also Karsten, JICJ 7 (2009), 983 et seq.

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Rome Statute if they have command over troops which are organised in some form of hierarchy, even if it is a rebel group. If superior responsibility is approved, the superior will be criminally liable for 67 international crimes of his subordinates as a perpetrator.186 With respect to the subjective requirements mentioned above, this means that the superior would be held liable for a crime committed with intent even if the superior had only acted negligently. This is rightly criticised as a normative contradiction which cannot be resolved de lege lata.187

VII. Attempt and Abandonment of the Attempt For the first time in the history of International Criminal Law, art. 25 (3) (f) of the Rome Statute contains a distinct written regulation of attempt and abandonment of the attempt (in order to avoid punishment). The attempt of any crime within the jurisdiction of the ICC is explicitly penalised. This corresponds to the standard established in customary international law.188 Pursuant to art. 25 (3) (f) of the Rome Statute, the primary requirement for attempt liability is that the crime has not been completed or did not occur. A mental element is not expressly mentioned within art. 25 (3) (f) of the Rome Statute. However, considering the negative phrasing of the provision requiring that the crime was not completed “because of circumstances independent of the person’s intentions”, one can infer that all mental elements of the crime have to be fulfilled. Turning to the material side, art. 25 (3) (f) of the Rome Statute defines the beginning of the attempt of a crime as “taking action that commences its execution by means of a substantial step”. Unfortunately, this seems to be a combination of two criteria for determining the beginning of an attempt originating from French and US-American law usually treated as alternatives: i. e. the “beginning of the execution” on the one hand and the “substantial step” to committing the crime on the other. In the end, it is submitted that the Statute does not draw the line between preparatory acts which are not punished and criminal attempts much to the contrary of corresponding approaches in national legal systems.189 Art. 25 (3) (f) of the Rome Statute also contains a regulation of the abandonment of the criminal attempt. In particular, a “voluntary” action is required, whereas the standard for determining this element is indistinct. Additionally, art. 25 (3) (f) of the Rome Statute contains two possibilities: An abandonment is possible if the perpetrator “abandons the effort to commit the crime” or if he or she “otherwise prevents the completion of the crime”. This structure is very similar to the distinction of complete or incomplete attempts known from German law and therefore suggests to determine the necessary conduct for the abandonment of the attempt in a similar manner as in § 24 (1) StGB.190 Accordingly, an attempt is complete if everything necessary for realising all 186 ICC (TC III), Prosecutor v. Bemba, Judgment pursuant to article 74 of the Statute, ICC-01/05-01/ 08-3343, 21st March 2016, para. 173. 187 On this account, the German legislator, when enacting §§ 4, 13 VStGB, deliberately (and with good reason, cf Satzger, NStZ 2002, 125, 129) deviated from the standards of art. 28 of the Rome Statute. 188 Werle/Jeßberger, Principles of International Criminal Law, paras 702 et seqq. 189 See Cassese/Gaeta/Jones-Eser, Rome Statute, p. 812; Triffterer/Ambos-Ambos, Rome Statute, art. 25 para. 41, pointing inter alia to the Spanish version of the Statute; in German law, § 22 StGB regulates that the offender who takes an immediate step towards the realisation of the elements of the offence starts the attempt, cf Ku¨hl, Strafrecht AT, § 15 et seq.; Roxin, AT II, § 29 paras 97 et seq.; Wessels/Beulke/Satzger, paras 848 et seqq. 190 Cf Cassese/Gaeta/Jones-Eser, Rome Statute, pp. 815 et seq.

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elements of the offence is done based on the perpetrator’s conception to bring about the result. If the perpetrator believes that there is still more to do in order to fulfil the elements of the offence, then the attempt is incomplete and can thus be abandoned by mere cessation.191 Due to the fact that the rules on attempt and abandonment were included into the Statute “at the last minute”, they are somewhat rudimentary and will have to be further developed in the ICC’s legal practice.

VIII. Omission 72

The Statute does not contain a general regulation on the commission of crimes by omission, as can be found in national legal systems (e. g. § 13 StGB). However, in the context of superior responsibility art. 28 of the Rome Statute criminalises genuine features of omission. Apart from this, the delegates to the Rome Conference could not agree on criminal liability for crimes of omission.192 The reason may lie in the fact that such criminal liability is not universally acknowledged by all national legal orders (in France, for example, such a regulation is considered unconstitutional). 191 On the prerequisites of abandonment in German law, see Ku ¨ hl, Strafrecht AT, § 16 paras 9 et seq.; Wessels/Beulke/Satzger, paras 868 et seqq. and the detailed account in Roxin, AT II, § 30 paras 33 et seq. 192 Cf Cassese/Gaeta/Jones-Eser, Rome Statute, p. 819.

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§ 14 Special Part of International Criminal Law Contents I. Genocide. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. History. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Protected Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Structure of the Crime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. The Material Elements of Genocide in General . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. The Mental Elements of Genocide in General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. Individual Genocidal Acts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Killing Members of the Group . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Causing Serious Bodily or Mental Harm to Members of the Group. . c) Deliberately Inflicting on the Group Conditions of Life Calculated to Bring about Its Physical Destruction in Whole or in Part . . . . . . . . . . . . . d) Imposing Measures Intended to Prevent Births within the Group. . . . e) Forcibly Transferring Children of the Group to Another Group . . . . . II. Crimes against Humanity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. History. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Protected Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Structure of the Crime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. The Chapeau Element . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Mental Elements in Respect of the Chapeau . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. Individual Acts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Murder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Extermination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c) Enslavement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . d) Deportation or Forcible Transfer of Population . . . . . . . . . . . . . . . . . . . . . . . . e) Imprisonment or Other Severe Deprivation of Physical Liberty . . . . . . f) Torture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . g) Sexual Violence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . h) Persecution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i) Enforced Disappearance of Persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . j) Apartheid . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . k) Other Inhumane Acts of a Similar Character . . . . . . . . . . . . . . . . . . . . . . . . . . . III. War Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. History. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Protected Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Elements of the Offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Objective Requirements of an Armed Conflict. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Subjective Requirement of an Armed Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. Categories of the Individual Acts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Material and Mental Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Grave Breaches of the Geneva Conventions of 12th August 1949 in relation to an International Armed Conflict (art. 8 (2) (a) of the Rome Statute). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c) Other Serious Violations of the Laws and Customs Applicable in International Armed Conflict (art. 8 (2) (b) of the Rome Statute) . . . . d) Serious Violations of art. 3 Common to the Four Geneva Conventions of 12th August 1949 in an Armed Conflict not of an International Character (art. 8 (2) (c) of the Rome Statute) . . . . . . . . . . . e) Other Serious Violations of the Laws and Customs Applicable in Armed Conflicts not of an International Character (art. 8 (2) (e) of the Rome Statute) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Aggression. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. The Crime of Aggression under Customary International Law. . . . . . . . . . . 2. The Crime of Aggression in the Rome Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2 3 7 8 10 15 18 19 20 21 22 23 25 26 32 33 34 39 41 41 42 43 44 45 46 47 48 49 50 51 52 53 57 58 61 65 66 66 67 70 74 75 76 77 80

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1

Elements of the Criminal Offence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Trigger Mechanism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Coming into Force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

83 85 86 87

The following section of this textbook shall illustrate the main elements of the criminal offences falling under the material jurisdiction of the ICC. Generally speaking, the Rome Statute codifies customary international law; however, the latter sometimes exceeds or falls short of the standards implemented by the Rome Statute, which will be indicated carefully. The Rome Statute provides for four core crimes: genocide, crimes against humanity, war crimes and the crime of aggression. The specific crimes that have been investigated by the ICC so far are outlined in the appendix to this textbook.

I. Genocide

Case 23

2

During the Rwandan Civil War in 1994, several hundreds of thousands of the members of the Tutsi ethnicity were systematically killed by the Hutu, who form the majority of the population. Even high-ranking politicians called for the eradication of the Tutsi tribe and officially declared that future generations of Hutu should only know the Tutsi people from their history books. The dead bodies of the Tutsi were frequently thrown into a tributary of the Nile in order to “send them back to their place of origin”. On several occasions, Hutu H argued in public for a country without any Tutsi. He subsequently killed a Tutsi and threw the dead body into the Nile. Did H commit genocide (see paras 12, 17, 19)?

1. History Genocide appears first on the list of international crimes enshrined in the Rome Statute. In accordance with its central position, the ICTR describes genocide as “the crime of crimes”1. However, the Statute deliberately does not propose any formal hierarchy among the four categories of crimes.2 4 The term “genocide” is a fabricated expression which was coined by Raphael Lemkin to describe the crimes committed under the National Socialist regime in Germany. The expression derives from the Greek word gLnoB (genos), for race or nation, and the Latin verb caedere, for killing.3 However, neither the Charter of the Nuremberg Tribunal nor the Charter of the IMTFE envisaged genocide as an autonomous crime, even though the prosecutors of the Nuremberg Tribunal already used the term “genocide” in their indictment. Criminal conduct that may now be subsumed under the crime of genocide had been classified as a sub-category of crimes against humanity.4 5 During the Nuremberg Trial against the Major War Criminals that took place in 1946, the United Nations General Assembly announced genocide an international crime.5 The 3

1 See ICTR, Prosecutor v. Serushago, Judgment, ICTR-98-39-S, 5th February 1999, para. 15 ICTR, Prosecutor v. Kambanda, Judgment, ICTR-97-23-S, 4th September 1998, para. 16. 2 Schabas, ICC, p. 9487. 3 Lemkin, Axis Rule in Occupied Europe, p. 79. 4 Gropengießer, ICLR 5 (2005), 329. 5 UN General Assembly Resolution, The Crime of Genocide, A/RES/96(I), 11th December 1946.

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first legally binding definition of genocide was established after the Second World War in 1948 by the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention).6 To date, 147 states have ratified the Genocide Convention.7 In its Advisory Opinion of 1951 the International Court of Justice held that genocide is a crime under customary international law and thus binding even on those states that have not ratified the Genocide Convention.8 Furthermore, the crime of genocide forms part of ius cogens9, thus it is recognised as being “a norm accepted and recognised by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character” (art. 53 VCLT). Consequently, ius cogens has a higher status than other norms of customary international law and international treaties.10 The definition of genocide laid down in art. 2 of the Genocide Convention was also 6 adopted in art. 4 of the ICTY Statute and art. 2 of the ICTR Statute and can be found verbatim in art. 6 of the Rome Statute. The crime of genocide has been accorded a position of high symbolic value. At the negotiations on the Rome Statute, the majority of delegates agreed without hesitation upon the word-for-word adoption of the definition established by the Genocide Convention, whereas the definition of crimes against humanity was heavily disputed.11

2. Protected Interests It is not obvious which legal interests are distinctly protected by art. 6 of the Rome 7 Statute.12 In the first instance, the criminalisation of genocide seeks to protect collective legal interests, namely the physical and social13 existence of a national, racial, religious or ethnic group. Additionally, individual legal interests, in particular the life and human dignity of the individual group members, are also encompassed by the scope of protection. However, such individual interests are only included due to the individual’s group membership, which clearly forms the primary reason for protection.14

6 UN General Assembly Resolution, Convention on the Prevention and Punishment of the Crime of Genocide, A/RES/260(III), 9th December 1948; in the Federal Republic of Germany the Convention came into force on 22nd February 1955 (Federal Law Gazette [BGBl.] 1954 II, p. 730). 7 Cf the state of ratifications, available under https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-1&chapter=4&clang=_en (last visited July 2017). 8 ICJ, Reservations to the Convention of the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, 28th May 1951, ICJ-Rep 1951, pp. 15, 23; for a differing view, see Safferling, Int. StrafR, § 6 para. 6. 9 See ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), 11th July 1996, Preliminary Objections, Judgment, ICJ-Rep 1996, pp. 595 et seq.; see also Cassese, Int. Criminal Law, p. 98; Selbmann, Tatbestand des Genozids, p. 148. 10 Cf Lorenzmeier, Vo ¨ lkerrecht, p. 11. 11 Triffterer/Ambos-Schabas, Rome Statute, art. 6 para. 2. 12 Gropengießer, ICLR 5 (2005), 329, 333. 13 See Vest, ZStW 113 (2001), 476; for § 220 a StGB o.v., cf BGH, Judgment of 23rd October 1981, StB 45/81 = BGHSt 45, 81; BVerfG, Judgment of 12th December 2000, 2 BvR 1290/99 = NJW 2001, 1848; for a different view, see – with reference to nullum crimen sine lege – ICTY, Prosecutor v. Krstic´, Judgment, IT98-33-T, 2nd August 2001, paras 574 et seq. 14 MK-Kreß, § 220 a StGB/§ 6 VStGB paras 1 et seq. who considers international peace the third protected interest; Werle/Jeßberger, Principles of International Criminal Law, para. 784; likewise Safferling, Int. StrafR, § 6 paras 9 et seq. and Esser, Eur. und Int. StrafR, § 20 para. 6. For a different view, see BGH, judgement of 30th April 1999, 3 StR 215/98 = NStZ 1999, 396, 401, arguing that the offence is not intended to protect legal interests of individuals at all.

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3. Structure of the Crime 8

The material elements of the crime require the commission of one of the specified acts directed against members of one of the groups mentioned in art. 6 of the Rome Statute (individual act). With regard to the subjective elements, the individual act has to be performed with intent and knowledge. Furthermore, the perpetrator has to act with the specific intent to destroy in whole or in part the targeted group as such. Due to this specific intent requirement, genocide is considered to be a so-called crime with an extended mental element,15 meaning that an additional subjective element is required which does not correspond to any objective element of the crime.

9

Additionally, art. 25 (3) (e) of the Rome Statute provides for the separate offence of “incitement to commit genocide”. This special mode of accessory liability was adopted verbatim from the Genocide Convention.16

4. The Material Elements of Genocide in General The particular individual acts (see paras 18 et seqq.) must target members of a national, ethnic, racial or religious group. A group is a multitude of persons sharing certain permanent distinctive features and therefore standing out from the rest of the population.17 The restriction of the protection of to these four types of groups has been criticised, particularly for not covering political or social groups. During the negotiations on the Statute, efforts were made to include additional groups; however, such attempts were deliberately frustrated by the majority of delegates.18 11 This was particularly done to preserve the notion of a group to cover only stable groups. Stable groups are characterised by a membership usually determined by birth. The crucial criterion within the four types of groups is that membership in such groups is (at least normally) not subject to the choice of its members who, automatically belong to it in a continuous and often unalterable manner. The ICTR strove to include any stable and permanent group, granting protection to further groups not expressly mentioned.19 A broad interpretation like this, however, contradicts the wording of the Statutes of the ICTR and the ICC and is therefore incompatible with the principle of 10

15 According to German terminology this is known as u ¨ berschießende Innentendenz, cf Wessels/Beulke/ Satzger, para. 197; Roxin, AT I, § 109 para. 84. 16 For details, see Werle/Jeßberger, Principles of International Criminal Law, paras 854 et seq. 17 LK-Ja ¨ hnke, 11th edn 2005, § 220 a StGB para. 9; for details on the protected groups, see Schabas, Genozid, pp. 139 et seq.; for details on the problem of identifying a group, see May in: May/Hoskins (eds), International Criminal Law and Philosophy, pp. 91 et seq. 18 Cf Werle/Jeßberger, Principles of International Criminal Law, para. 780. 19 See ICTR, Prosecutor v. Akayesu, Judgment, ICTR-96-4-T, 2nd September 1998, para. 516.

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legality, a principle likewise recognised under International Criminal Law. There are, however, several states that have incorporated a much broader approach in their respective domestic legal systems, thus enabling other groups to be protected by the prohibition of genocide.20 – A national group can be defined as a number of people who are perceived as sharing a legal bond of common citizenship.21 Instead of accepting this rather clear formal criterion some scholars refer to the group’s “common historical and cultural destiny”22. This is not very helpful as – for no apparent reason – a rather clear term is replaced by a vague expression, which does not even fit the ordinary meaning of “nationality”. Moreover, sticking to the formal definition does not even create any legal gaps since groups with common historical and cultural destiny that do not share a common citizenship regularly constitute “ethnic groups”. – An ethnic group is characterised by a common culture and language.23 – The conventional definition of a racial group is based on the hereditary physical traits which are often associated with a certain geographic region, irrespective of linguistic, cultural, national or religious factors.24 – Religious groups share the same religion, denomination or mode of worship. Atheistic groups are not included, since otherwise the distinction from non-included political, cultural and other groups would become impossible.25 Furthermore, the inclusion of atheistic groups cannot be justified as such extensive interpretation would violate the principle of legality accepted by international law (nullum crimen sine lege).26 Both the ICTY and the ICTR classify a particular group not only by objective criteria; 12 in fact, the affiliation with a particular group also depends on the self-identification of the group as well as its perception by others.27 Thus the objective elements, such as common language, customs or religion, also include a subjective element. The Tribunals have rightly taken into account that the perception of groups is the result of a process of social attribution.28 The question of how to identify a particular group played a major role in Ruanda and thus in case 23: Hutu and Tutsi shared the same nationality, religion, culture, language and lived in the same country. Yet, Rwandan identity cards at the time clearly indicated the card holder’s respective ethnic group. Furthermore, the witnesses heard by the Trial Chamber invariably answered spontaneously, and without hesitation, questions concerning their ethnic identity.29 Thus Hutu and Tutsi could be classified as ethnic groups referring to a combination of objective and subjective criteria of attribution. However, finding a clear distinction between the various groups regularly seems to be 13 a rather difficult task. 20 See art. 238 of the Portuguese Criminal Court and art. 129 of the Peruvian Criminal Court, which include political and social groups. In France art. 211-1 Code Pe´nal simply requires that the targeted group is connected through a characteristic feature distinguishing it from other groups. 21 See ICTR, Prosecutor v. Akayesu, Judgment, ICTR-96-4-T, 2nd September 1998, para. 512. 22 Safferling, JuS 2001, 738; see also Selbmann, Tatbestand des Genozids, p. 171: “gemeinsame nationale Abstammung” (“common national descent”). 23 See ICTR, Prosecutor v. Akayesu, Judgment, ICTR-96-4-T, 2nd September 1998, para. 513. 24 See ICTR, Prosecutor v. Akayesu, Judgment, ICTR-96-4-T, 2nd September 1998, para. 514. 25 See also Werle/Jeßberger, Principles of International Criminal Law, para. 802; for a different view, see ICTR, Prosecutor v. Akayesu, Judgment, ICTR-96-4-T, 2nd September 1998, para. 515; Safferling, JuS 2001, 738. 26 Selbmann, Tatbestand des Genozids, p. 175. 27 See ICTY, Prosecutor v. Jelisic ´, Judgment, IT-95-10-T, 14th December 1999, para. 70. 28 Correctly also Werle/Jeßberger, Principles of International Criminal Law, para. 794. 29 See ICTR, Prosecutor v. Akayesu, Judgment, ICTR-96-4-T, 2nd September 1998, para. 702.

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Example: Regarding the massacre of Srebrenica the question arose, which of the various groups was targeted by the destructive attacks: the group of the Muslim population of the Former Republic of Yugoslavia, the group of Bosnian Muslims or the group of Bosnian Muslims of Srebrenica. The ICTY found the group of Bosnian Muslims to be the relevant group, and that the Bosnian Muslims of Srebrenica were part of this protected group.30 14

Unlike the legal regime of crimes against humanity, genocide does not require the individual act to be part of a widespread or systematic attack directed against the civilian population.31 Yet apart from rare individual cases it seems difficult to prove the mental elements of the criminal offence (see paras 15 et seqq.) if the offender is acting as a lone ge´nocidaire (i. e. as an isolated perpetrator). The Elements of Crimes for art. 6 of the Rome Statute, however, seem to require “that the conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction”. However, the actual total or partial destruction of the group is clearly neither required by the wording of the Statute nor under customary international law. Thus the Elements of Crimes cannot constitute a limitation of the criminal liability of the perpetrator; the narrow definition in the Elements of Crimes may at most be understood as a restraint on the Court’s jurisdiction.32 Furthermore, the offence does not require a connection between the commission of genocide and an international or non-international armed conflict. Hence genocide can also be committed in times of peace.

5. The Mental Elements of Genocide in General 15

The mental elements of the crime of genocide particularly requires that the conduct is committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such. This specific intent or dolus specialis is required in addition to the regular mental element of intent and knowledge (art. 30 of the Rome Statute; see § 13 paras 21 et seqq.). Dolus specialis requires the perpetrator to have had a particular state of mind that motivated the commission of the act. In relation to genocide the perpetrator must clearly seek to bring about the destruction of the group.33 This specific intent constitutes the dimension of the legal wrong of genocide; the crime is not mainly characterised by its objective elements such as the individual acts (e. g. bodily harm), but rather by the perpetrator’s intention to eliminate the group, which also distinguishes the crime of genocide from other crimes, such as crimes against humanity and war crimes. In the case that it was established that an act was committed with the intent to physically or biologically eradicate a particular group, the specific intent can rather easily be affirmed. However, it will be much more difficult to prove a specific genocidal intent, if the perpetrator just intends to destroy the protected group’s distinct cultural or social character. The German Federal Court of Justice (BGH) for example held that the destruction of the group does not need to extend to its physical or biological extermination. The court argued that it is sufficient if the perpetrator intends to destroy the social existence of the group, i. e. if he or she wants to eliminate the group as a social entity with all its specific characteristics and the existing communal bond between its See ICTY, Prosecutor v. Krstic´, Judgment, IT-98-33-A, 19th April 2004, para. 15. See ICTY, Prosecutor v. Jelisic´, Judgment, IT-95-10-T, 14th December 1999, para. 100. 32 In that sense Werle/Jeßberger, Principles of International Criminal Law, para. 833. 33 Selbmann, Tatbestand des Genozids, p. 166; Gropengießer, ICLR 5 (2005), 338; see ICTR, Prosecutor v. Akayesu, Judgment, ICTR-96-4-T, 2nd September 1998, para. 498; for a different view, see Greenawalt, Columbia Law Review 99 (1999), 2259 et seq. 30 31

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members.34 With recourse to the protected interest of the crime, which emphasises the collective interest in the physical and social existence of the groups, this interpretation deserves full approval. In either case, the perpetrator’s intention to destroy must target the group in whole or 16 in part. In this context “in part” requires at least the destruction of a substantial part of the group.35 There are two forms of “partial destruction” that are conceivable: On the one hand, the perpetrator may desire to exterminate a very large number of the members of the group; this can be called the intention of destruction en masse. On the other hand, he or she may intend to destroy a more limited number of persons selected for the impact that their disappearance would have upon the survival of the group as such. Such an intention of “selective destruction” may for example be manifested by selectively killing political leaders of the group.36 Proving a defendant’s genocidal intent, however, can turn out to be extremely 17 difficult. If the accused does not admit his or her intentions, the judges can only rely on circumstantial evidence. The following factors have for example been relied on to prove genocidal intent:37 – Gravity of the discriminatory conduct38 – Existence of a concept behind the acts39 – Existence of a plan or a policy to exterminate a group40 – Relevant statements of the accused41 – The fact that only members of a particular group were attacked whilst members of other groups were spared42 – Choice of victims (e. g. population of reproductive age or group leaders)43 – Other meaningful actions (e. g. the destruction of churches, desecration of graveyards, disfigurement of dead bodies etc.)44 In case 23 the genocidal intent cannot only be inferred from the overall context in which H’s actions took place, namely the planned and large-scale extermination of the Tutsi, but also from his statements made in public and from the highly symbolic way of the “disposal” of the corpse.

6. Individual Genocidal Acts Moreover, it needs to be established that the perpetrator committed one of the acts 18 exhaustively listed in art. 6 of the Rome Statute. The principle of legality prohibits taking into account other acts that may be of similarly grave nature. BGH, Judgment of 30th April 1999, 3 StR 215/98 = NStZ 1999, 401. ICTR, Prosecutor v. Kayishema and Ruzindana, Judgment, ICTR-95-1-T, 21st May 1999, paras 96 et seq. 36 On both forms of an intention to destroy the group in part, see ICTY, Prosecutor v. Jelisic ´, Judgment, IT-95-10-T, 14th December 1999, para. 82; ICTR, Prosecutor v. Kayishema and Ruzindana, Judgment, ICTR-95-1-T, 21st May 1999, paras 96 et seq. 37 On the problems concerning evidence, cf Werle/Jeßberger, Principles of International Criminal Law, para. 852; Ambos, Int. Strafrecht, § 7 para. 148. 38 Cf ICTR, Prosecutor v. Kayishema and Ruzindana, Judgment, ICTR-95-1-A, 1st June 2001, para. 160. 39 See ICTY, Prosecutor v. Popovic ´ et al., Judgment, IT-05-88-T, 10th June 2010, paras 1175 et seq. 40 See ICTY, Prosecutor v. Jelisic ´, Judgment, IT-95-10-A, 5th July 2001, paras 47 et seq. 41 See ICTY, Prosecutor v. Popovic ´ et al., Judgment, IT-05-88-T, 10th June 2010, paras 1311 et seq. 42 But the fact that people not belonging to the protected group were found among the victims does not in itself rule out an intent to destroy, see ICTR, Prosecutor v. Ntabakuze, Judgment, ICTR-98-41A-A, 8th May 2012, para. 237. 43 See ICTY, Prosecutor v. Jelisic ´, Judgment, IT-95-10-T, 14th December 1999, para. 82; See ICTY, Prosecutor v. Krstic´, Judgment, IT-98-33-T, 2nd August 2001, paras 595 et seqq.; ICTR, Prosecutor v. Akayesu, Judgment, ICTR-96-4-T, 2nd September 1998, paras 731 et seqq. 44 See ICTY, Prosecutor v. Krstic ´, Judgment, IT-98-33-A, 19th April 2004, para. 33. 34 35

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“Ethnic cleansing”, i. e. a policy to forcefully relocate members of particular groups from certain areas to another, which was e. g. pursued in the former Yugoslavia, does not automatically constitute the crime of genocide. Such policy may only be classified as genocide if the expulsion is linked to one of the five individual acts specified in art. 6 and if it is committed with genocidal intent.45 19

a) Killing Members of the Group. According to the legal interest of the offence, the conduct of “killing” refers only to the intentional killing of another person.46 The wording of the Rome Statute requires the killing of members of the group, which could be understood to require at least two immediate victims. However, according to art. 6 (8) (a) of the Elements of Crimes, the killing of one single group member is sufficient to constitute the crime of genocide. Although not obvious at first sight, it is submitted that this interpretation is consistent with the wording of the Rome Statute; the general prohibition of killing other persons can linguistically be framed by using either the singular (you must not kill another person) or the plural (you must not kill other persons) without any difference in meaning.47 Even though H killed only one member of the group in case 23, he nevertheless committed genocide and thus can be convicted of this crime.

20

b) Causing Serious Bodily or Mental Harm to Members of the Group. The ICTR interprets serious bodily harm as creating harm that seriously injures the health, causes disfigurement or any serious injury to the external or internal organs or the senses. However, the harm does not need to be permanent or irreversible in nature.48 Causing serious mental harm requires more than minor or temporary impairment of mental faculties.49 It must constitute harm that results in a grave and long-term disadvantage to a person’s ability to lead a normal and constructive life.50 Rape and sexual violence also constitute infliction of serious bodily and mental harm on the victims.51 This is particularly important for the classification of so-called systematic rapes, often used as “weapons” in the context of the conflicts in the former Yugoslavia and Rwanda.

21

c) Deliberately Inflicting on the Group Conditions of Life Calculated to Bring about Its Physical Destruction in Whole or in Part. This criterion comprises methods of destruction which can be described as so-called “slow death measures”.52 It includes starving the targeted group, depriving the group of proper housing or systematic expulsion from homes, compelling the group to do excessive work or undergo excessive physical exertion, subjecting the group to a subsistence diet and the reduction of 45 Also referring to the particular case: BGH, Judgment of 30th April 1999, 3 StR 215/98 = NStZ 1999, 402; BGH, Judgment of 21st February 2001, 3 StR 244/00 = NJW 2001, 2733 (in each case for § 220 a StGB o.v.); more extensive BVerfG, Judgment of 12th December 2000, 2 BvR 1290/99 = EuGRZ 2001, 79 et seq.; for details, see Selbmann, Tatbestand des Genozids, pp. 210 et seq. with further references. 46 Triffterer/Ambos-Schabas, Rome Statute, art. 6 para. 22. 47 See also Selbmann, Tatbestand des Genozids, p. 158; Schabas, Genozid, pp. 210 et seq.; for a different view, see Cassese, Int. Criminal Law, p. 117; Ambos, Int. Strafrecht, § 7 para. 130; ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, 3rd February 2015, ICJ-Rep 2015, para. 139. 48 ICTR, Prosecutor v. Kayishema and Ruzindana, Judgment, ICTR-95-1-T, 21st May 1999, paras 108 et seq. 49 ICTR, Prosecutor v. Kayishema and Ruzindana, Judgment, ICTR-95-1-T, 21st May 1999, para. 110. 50 ICTY, Prosecutor v. Krstic ´, Judgment, IT-98-33-T, 2nd August 2001, para. 513. 51 ICTR, Prosecutor v. Akayesu, Judgment, ICTR-96-4-T, 2nd September 1998, para. 731; affirmed by ICTY, Prosecutor v. Furundzˇija, Judgment, IT-95-17/1-T, 10th December 1998, para. 126; see also Kittichaisaree, Int. Criminal Law, p. 78. 52 Nsereko, in: Kirk McDonald/Swaak-Goldman (eds), Substantive and Procedural Aspects, p. 129.

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essential medical services below minimum requirements.53 The establishment and subsequent use of concentration camps also fall within the scope of the prohibition.54 The individual act must be intended to destroy the group in whole or in part; in principle, it must therefore be suitable for the destruction of (parts of) the group. Nevertheless, the actual death of members of the group is not required.55 Thus, the mental element of the crime of genocide also only refers to the qualification of the individual act as being potentially destructive to the group.56 It could be argued that the potential for physical destruction constitutes a mere subjective element. From this point of view it suffices if the perpetrator intends to physically destroy the group, irrespective of the objective suitability of his or her actions to reach this goal.57 This interpretation seems to be supported by the English wording of the provision (“calculated to”). However, if interpreted in such a way, the necessary intention to physically destroy the group would be completely absorbed in the specific genocidal intent, rendering the criterion almost superfluous. d) Imposing Measures Intended to Prevent Births within the Group. The criterion 22 of taking measures to prevent births within the group includes sexual mutilation, the practice of sterilisation, forced birth control and the separation of the sexes as well as prohibitions of marriage.58 Furthermore, the provision encompasses the deliberate and forced impregnation of a woman. This seems rather contradictory at first sight, given that the provision prohibits measures to prevent births. Following the ICTR judgment in the Akayesu case the inclusion of this type of offence was supported by referring to the fact that in patriarchal societies, where membership of a group is determined by the identity of the father, a child which is created by forced impregnation will be rejected by the mother’s group.59 Such teleological interpretation seems hardly compatible with the principle of legality so that forced impregnation should at least not generally constitute the objective requirement of the crime of genocide. However, it seems correct to include those cases of forced impregnation in which the raped woman is thereby traumatised and hence temporarily or permanently unable to procreate60 or if the woman is regarded as untouchable by her group and consequently not able to bear children as descendants of her group.61 The implementation of laws allowing women to wilfully have an abortion cannot constitute the crime of genocide.62 e) Forcibly Transferring Children of the Group to Another Group. Children are 23 transferred to another group if they are permanently abducted from their group and

53 ICTR, Prosecutor v. Kayishema and Ruzindana, Judgment, ICTR-95-1-T, 21st May 1999, paras 115 et seq.; cf Kittichaisaree, Int. Criminal Law, p. 79. 54 Fronza, in: Lattanzi (ed.), Essays, p. 125. 55 Cf the wording of art. 6 (1) (c) of the Rome Statute, “calculated to bring about its physical destruction” and Gropengießer, in: Eser/Kreicker (eds), Nationale Strafverfolgung, pp. 102 et seq.; also ICTY, Prosecutor v. Brd-anin, Judgment, IT-99-36-T, 1st September 2004, para. 691. 56 Cf Ambos, Int. Strafrecht, § 7 para. 134. 57 See for example Gropengießer, in: Eser/Kreicker (eds), Nationale Strafverfolgung, p. 103. 58 Cf travaux pre ´paratoires of art. II lit. d of the Genocide Convention. 59 ICTR, Prosecutor v. Akayesu, Judgment, ICTR-96-4-T, 2nd September 1998, para. 507; Kittichaisaree, Int. Criminal Law, p. 81. 60 See also ICTR, Prosecutor v. Akayesu, Judgment, ICTR-96-4-T, 2nd September 1998, para. 508; Gropengießer, in: Eser/Kreicker (eds), Nationale Strafverfolgung, p. 104; for a differing view, see Safferling, Int. StrafR, § 6 para. 27. 61 Cf Piccolo, Rape and International Criminal Law, Den Haag 2013, p. 66. 62 In agreement, Werle/Jeßberger, Principles of International Criminal Law, para. 817.

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subsequently alienated from it. Such policy endangers the social as well as the biological existence of the group. The term “forcibly” is not limited to the use of physical force, but may also include threats of force.63 24 According to the Elements of Crimes to art. 6 (e) of the Rome Statute, children are human beings under the age of 18. This interpretation is based on the UN Convention on the Rights of the Child which contains an identical age limit in its art. 1.64

II. Crimes against Humanity

Case 24

25

The government of state A pursues a rigid anti-communist policy. It prohibits communist parties, puts members and sympathisers of such parties in special prisons and deprives them of sufficient food and medicine. Most of the prisoners die of malnutrition and diseases. E, an employee of the agency in charge of the internments, committed numerous persons to such special prisons, where – as foreseen by E – almost all of them died. Can E be convicted of a crime against humanity (see paras 38, 40, 42)?

1. History The term crimes against humanity was first used in a declaration by the French, British and Russian governments of 28th May 1915, in order to describe the mass killing of Armenians in the Ottoman Empire. However, the announcement of prosecution in this declaration has never been put into effect.65 After the First World War, it was held that the indictment and conviction of individuals that had allegedly committed crimes against humanity might have violated the principle of legality.66 At that time the Allies considered an exact definition of the “laws of humanity” impossible. Therefore, the Charter of the International Military Tribunal in Nuremberg was the first instrument to codify the concept of crimes against humanity. According to art. 6 (c) of the Charter, the following acts fell under the jurisdiction of the Tribunal: “[…] crimes against humanity: namely murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.” 27 The establishment of the provision was based on the view that both the existing international law as well as national criminal law was not sufficiently equipped to deal with the immeasurable wrong implied by the crimes committed under National Socialist government in Germany.67 Whilst criminal liability for war crimes had already been acknowledged by international law,68 the persecution of Jews, social democrats, com26

63

Cf Kittichaisaree, Int. Criminal Law, p. 82. UN General Assembly Resolution, Convention on the Rights of the Child, A/RES/44/25, 20th September 1989. 65 See Kittichaisaree, Int. Criminal Law, pp. 85 et seq. 66 For a critical view, see Schabas, Introduction, p. 107. 67 Cf Safferling, Int. StrafR, § 6 para. 46. 68 On the legal basis for war crimes, see § 16 paras 53 et seqq.; on the concept of ius in bello, which can be traced back to ancient times, cf Werle/Jeßberger, Vo¨lkerstrafrecht, paras 1085 et seqq. 64

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munists and other religious or political groups within the perpetrator’s own countries had neither been prohibited nor criminalised under international law.69 Some of the atrocities that had been committed, in particular the Holocaust, constitute the crime of genocide.70 However, it is worthwhile to recall that the Nuremberg Charter did not envisage genocide as an autonomous crime, but merely as a subcategory of crimes against humanity (see para. 4). Introducing crimes against humanity as an international crime allowed the punish- 28 ment of mass crimes that targeted the civilian population. The Nuremberg Charter, however, did not constitute an autonomous category of crimes against humanity under international law. In fact, it required that crimes against humanity were connected with one of the other crimes established in the Nuremberg Charter, namely war crimes or crimes against peace (“in execution of or in connection with any crime within the jurisdiction of the Tribunal”). Thus the IMT Charter closely linked crimes against humanity to other international crimes, making them dependent on the context of an international armed conflict.71 However, the significance of the definition established in the Nuremberg Charter should not be underestimated, as it marks the beginning of the subsequent development of an autonomous legal regime of crimes against humanity in international (criminal) law. The Allied Control Council Law No. 10 was established to prosecute crimes com- 29 mitted during the government of the National Socialist regime before Allied and German courts subsequent to the trial against the Major War Criminals (see para. 4). The Control Council Law abandoned the link between crimes against humanity and the other international crimes enshrined in the Nuremberg Charter.72 Consequently, crimes committed by German perpetrators within the German territory against German civilians could be tried as crimes against humanity. The legal regime of crimes against humanity as an independent category of international crimes was affirmed by the UN General Assembly on 11th December 1946, and by the International Law Commission, adopting the so-called Nuremberg Principles.73 Meanwhile, it is recognised under customary international law that crimes against humanity entail individual criminal responsibility under international law.74 Both the ICTY Statute (art. 5) and the ICTR Statute (art. 3) prescribed individual 30 criminal responsibility for crimes against humanity. The respective provisions abandoned the link to other crimes within the tribunals’ material jurisdiction; however, the ICTY Statute still required a connection between crimes against humanity and an armed conflict. The last crucial step towards completely separating crimes against humanity from other crimes under international law was taken by the Rome Conference, drafting the 69 On this also Robert H. Jackson, Report of United States Representative to the International Conference on Military Trials, 1947, pp. 331 et seqq., on the negotiations of the London Statute, whereby the international legal principle of non-intervention in the domestic issues of a state prohibits the prosecution of foreign crimes – even in the case of grave crimes committed by a government against its own population –, as long as there was no link to an armed conflict. 70 On the relationship between the two international crimes today, see Cassese, Int. Criminal Law, pp. 127 et seqq. 71 Mesecke, Verbrechen gegen die Menschlichkeit, p. 20. 72 Cf Ahlbrecht, Geschichte, p. 96. 73 UN General Assembly Resolution, Affirmation of the Principles of International Law recognized by the Charter of the Nurnberg Tribunal, A/RES/95(I), 10th December 1946 and Principle VI. C of the Principles of International Law Recognised in the Judgment of the Tribunal (“Nuremberg Principles”), Yearbook of the International Law Commission, 1950, vol. II, 374-378. 74 Regarding the customary status of crimes against humanity, see Werle/Jeßberger, Vo ¨ lkerstrafrecht, para. 915; Cassese, Int. Criminal Law, p. 90.

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Statute of the International Criminal Court. Long-lasting and tedious negotiations finally led to the abandonment of the nexus requirement (however containing a restriction concerning the offence of persecution, see para. 48). Art. 7 of the Rome Statute neither require the nexus of crimes against humanity with an armed conflict nor the link to any other crime within the material jurisdiction of the ICC. Unlike the crime of genocide, which was already precisely defined in the Genocide Convention, the distinct regime of crimes against humanity to be encompassed in the Rome Statute was strongly disputed.75 Compared to the provisions of the Nuremberg Charter and the Statutes of the ICTY and the ICTR, the Rome Statute extended the individual offences falling under the term crimes against humanity. In particular, the Statute included specific conduct that had already been prohibited by international treaties, e. g. the crime of apartheid (art. 7 (1) (j) of the Rome Statute) which was unknown when the Nuremberg Charter was established, or the crime of enforced disappearance of persons (art. 7 (1) (i) of the Rome Statute), particularly occurring in the context of South American dictatorships. Furthermore, the Rome Statute included so-called “gender crimes”, granting specific forms of sexual violence the status of a crime against humanity. 31 It was argued that by including new classes of offences under the regime of crimes against humanity, the Rome Statute established new law that went beyond customary international law.76 However, since all the previous formulations of crimes against humanity contained an opening clause to encompass “other inhumane acts”, this criticism seems rather unfounded. The explicit inclusion of new classes of offences is nothing but a suitable attempt to clarify the meaning and extent of “other inhumane acts”.77 Thus, the Rome Statute does not exceed existing customary international law in this regard.

2. Protected Interests 32

Although there is no doubt that crimes against humanity directly affect individuals, their international prosecution protects the individual only secondarily. The crime obtains its international dimension only by being committed as part of a widespread or systematic attack directed against any civilian population. In this respect the individual act is more than the violation of individual rights; it far more endangers the minimum standard of the basic principles of human coexistence.78 Therefore, the primary purpose of the international legal regime of crimes against humanity is to protect the very nature of the international community as a whole.79

3. Structure of the Crime 33

The material elements of crimes against humanity require the commission of (at least) one of the individual acts listed in art. 7 (1) of the Rome Statute. Moreover, this individual act must be committed “as part of a widespread or systematic attack directed against any civilian population” (so-called chapeau element). Art. 7 (2) of the Rome Statute contains a list of definitions for the terms used in paragraph 1. The mental 75

Cf Sunga, EJCCLCJ 6 (1998), 60, 64; Blanke/Molitor, AVR 2001, 142, 153. From the point of view of the Chinese delegation art. 7 (1) of the Rome Statute was an “old bottle that holds new liquor” (according to Robinson, in: Lattanzi (ed.), Essays, p. 168). 77 Robinson, in: Lattanzi (ed.), Essays, p. 166. 78 For a solid analysis of the theoretical foundations of crimes against humanity, see van der Wilt, in: van Beers et al. (eds), Humanity Across International Law and Biolaw, p. 25. 79 See also Meseke, Verbrechen gegen die Menschlichkeit, pp. 118 et seq.; for a different view, see Gropengießer, in: Eser/Kreicker (eds), Nationale Strafverfolgung, pp. 116 et seq. 76

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elements of the crime require intent and knowledge in respect of the individual act. Furthermore art. 7 (1) explicitly clarifies that the perpetrator must commit the crime with knowledge of the attack and thus with knowledge of the contextual element.

4. The Chapeau Element Art. 7 (2) (a) of the Rome Statute defines an attack on a civilian population as “a 34 course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack”. According to the provision’s correct interpretation, the policy requirement requests the organisation to possess – at least up to a certain extent – features of statehood, particularly in the sense of “a collectivity of persons, which was established and acts for a common purpose over a prolonged period of time and which is under responsible command or adopted a certain degree of hierarchical structure, including, as a minimum, some kind of policy level, with the capacity to impose the policy on its members and to sanction them” as well as having “the capacity and means available to attack any civilian population on a large scale.”80 The requirement of “multiple commission” demands more than one single act; however, these acts, do not necessarily need to be committed by the same perpetrator. Thus a single act of killing (art. 7 (1) (a) of the Rome Statute) would for example not meet the objective element of the offence. However, a single act of killing committed by only one perpetrator can represent a crime against humanity if it forms part of a widespread or systematic attack.81 The state or organisational policy, required by the definition of attack, does not need to be formalised and can be deduced from the way in which the acts occur. In particular, acts that “occur on a widespread or systematic basis” demonstrate such a policy.82 The commission of a crime against humanity alternatively requires a widespread or 35 systematic attack. The terms widespread and systematic describe a quantitative and qualitative threshold as to the significance of the individual act under International Criminal Law. The threshold only partly exceeds the requirements of the detailed definition of the expression “attack”. 80 Proposed by Judge Kaul, in: ICC (PTC II), Prosecutor v. Ruto, Kosgey, Sang, Dissenting opinion on the Court’s decision on the Prosecutor’s application for summons to appear, ICC-01/09-01/11-2, 15th March 2011, para. 12. According to him, the network created by the three accused in the situation Kenya does not reach the level which is required by art. 7 (2) (a) of the Rome Statute. Thus, in his opinion the ICC does not have jurisdiction, para. 45; generally approving Kreß, LJIL 23 (2010), 855. 81 ICTY, Prosecutor v. Kunarac et al., Judgment, IT-96-23 & IT-96-23/1-A, 12th June 2002, para. 96. 82 ICTY, Prosecutor v. Tadic ´, Judgment, IT-94-1-T, 7th May 1997, para. 653.

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“Widespread” on the one hand is a quantitative criterion referring to the number of victims.83 The required minimum number of victims, however, remains unclear. Besides, there is an overlap with the definition of “attack”, as the multiple commission requirement already seems to imply a high number of victims.84 In addition to the number of victims, the term “widespread” can also refer to the geographical dimension of a specific attack.85 The criterion of a “systematic” attack on the other hand describes a qualitative element, which requires a certain organisation of the modus operandi, excluding the possibility of pure coincidence,86 demanding that the attack is based on a plan, a policy or an ideology in the broadest sense. However, as the definition of “attack” in art. 7 (2) (a) already demands that the crime must be “pursuant to or in furtherance of a State or organisational policy to commit such attack”, the autonomous relevance of the criterion of a “systematic” attack is rather limited. 36 According to the primarily collective character of the interests protected by the crimes against humanity regime, only a civilian population can be the relevant object of the attack; isolated attacks against individuals are not covered. The term civilian population encompasses anyone who does not actively participate in hostilities. The definition does not only protect civilians, but also combatants who have laid down their arms or those that are hors de combat, for example if they are wounded and therefore incapable of performing their military function.87 Neither the victims’ nor the perpetrators’ nationality is of any significance, meaning that crimes against humanity include attacks against (parts of) the civilian population of the perpetrator’s own state. However, the civilian status of the victims is only relevant for the determination of whether the chapeau requirement of art. 5 of the Rome Statute is fulfilled. Therefore, the individual criminal acts constituting crimes against humanity can also be directed against combatants, as long as the “widespread or systematic attack” is directed against the civilian population.88 In contrast to the war crimes regime, crimes against humanity are not inherently linked to an (non-)international armed conflict; therefore, a specific criminal act often constitutes a war crime and a crime against humanity at the same time.89 37 According to the explicit wording of art. 7 (2) (a) of the Rome Statute, the attack does not necessarily need to be military in nature. Furthermore, the participation of governmental authorities is not required, although they will be involved in most cases. In fact, crimes against humanity can also be committed in execution of, for example, policies of separatist organisations. Thus, not only members of government or soldiers, but also members of paramilitary groups may be potential perpetrators. 83 ICTY, Prosecutor v. Tadic ´, Judgment, IT-94-1-T, 7th May 1997, para. 648; Werle/Jeßberger, Principles of International Criminal Law, para. 895 who note that the widespread nature of the attack can also be derived from its extension over a broad geographic area. 84 Similarly also Schabas, ICC, pp. 110 et seq. 85 ICC (PTC II), Prosecutor v. Bemba, Decision pursuant to article 61 (7) (a) and (b) of the Rome Statute on the charges of the Prosecutor against Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424, 15th June 2009, para. 83; ICC (PTC I), Prosecutor v. Katanga and Ngudjolo, Decision on the confirmation of charges, ICC-01/04-01/07-717, 30th September 2008, para. 395; in agreement Werle/Jeßberger, Vo¨lkerstrafrecht, para. 936. 86 ICC (PTC I), Prosecutor v. Katanga and Ngudjolo, Decision on the confirmation of charges, ICC-01/ 04-01/07-717, 30th September 2008, para. 394; ICC (PTC I), Prosecutor v. Gbagbo, Decision on the confirmation of charges against Laurent Gbagbo, ICC-02/11-01/11-656-Red, 12th June 2014, para. 223. 87 Dixon/Khan/May, Archbold, § 12 para. 16. 88 ICTY, Prosecutor v. Mrksˇic ´ and Sˇljivancˇanin, Judgment, IT-95-13/1-A, 5th May 2009, paras 28 et seq.; ICTY, Prosecutor v. Martic´, Judgment, IT-95-11-A, 8th October 2008, paras 307, 311, 313. 89 Werle/Jeßberger, Principles of International Criminal Law, para. 1024.

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The methodical and comprehensive persecution of communists, described in case 24, 38 constitutes a widespread and systematic attack directed against the civilian population. It is irrelevant for criminal liability under art. 7 of the Rome Statute that the government mainly attacks members of its own population.

5. Mental Elements in Respect of the Chapeau According to art. 7 (1) of the Rome Statute, the perpetrator must act with knowledge 39 of the attack and thus with knowledge of the contextual element. This can also be deduced from the general requirements under Art. 30 (3) of the Rome Statute, which demands the perpetrator’s knowledge of “circumstances” such as an attack against any civilian population. Thus the perpetrator must know that there is an attack on the civilian population and that his acts form part of this attack. However, it is questionable whether it suffices that the perpetrator only considered the existence of such an attack possible. Implementing such a low standard of “knowledge” seems to be contrary to the explicit wording of art. 6 of the Rome Statute, even if the general – and in this respect subsidiary – provision of art. 30 (1) of the Rome Statute is to be interpreted in a broad sense (see § 13 para. 25). It is extremely problematic, however, to exactly determine how detailed the knowledge of the “ordinary citizen” or the “common soldier” in respect of the dimension of the attack must be in legal practice. Rather strict requirements would lead to insurmountable problems of proving the “knowledge” requirement. Following Albin Eser, it would therefore be sufficient for the perpetrator to be aware that his or her actions form part of an inhuman policy. Further knowledge of the attack’s features or the precise details of the plan or policy should not be required.90 In contrast to the crime of genocide, art. 7 of the Rome Statute does not require the 40 perpetrator to act with any specific intent. Whereas art. 3 of the ICTR Statute demands the perpetrator to act out of national, ethnical or religious reasons; the Rome Statute does not require any discriminatory motives. The inclusion of the additional subjective requirement in the ICTR Statute can be explained by the fact that the Statute was drafted within the specific context of the situation in Rwanda, where basically all crimes were guided by such discriminatory motives.91 In case 24 it is sufficient to fulfil the mental elements that E is aware of the governmental persecution policy; it is not required that E has any further knowledge of precise details of the attack.

6. Individual Acts a) Murder. The crime of murder appears first on the list of individual acts enumer- 41 ated in art. 7 (1) of the Rome Statute. According to the Elements of Crimes, murder encompasses the intentional causation of death of another person.92 b) Extermination. Furthermore, art. 7 (1) of the Rome Statute lists the crime of 42 extermination. According to art. 7 (2) (b), “extermination includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population”. In contrast to the 90 Eser, in: Courakis (ed.), FS Spinellis, p. 351; see also the Elements of Crimes for art. 7 of the Rome Statute, Introduction. See also ICTY, Prosecutor v. Tadic´, Judgment, IT-94-I-T, 7th May 1997, para. 659. 91 Cf Ahlbrecht, Geschichte, p. 312. 92 Elements of Crimes for art. 7 (1) (a) of the Rome Statute (para. 1); see also ICC (PTC II), Prosecutor v. Bemba, Decision pursuant to article 61 (7) (a) and (b) of the Rome Statute on the charges of the Prosecutor against Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424, 15th June 2009, para. 132.

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wording of art. 7 (2) (b), the Elements of Crimes are more restrictive. They require that the perpetrator killed one or more persons and that this conduct takes place as part of a mass killing of members of a civilian population.93 Unlike the respective material element of the crime of genocide, the targeted population does not necessarily have to constitute a specific group.94 Given that a conviction for genocide fails because no genocidal intent could be demonstrated, the perpetrator can still be convicted of a crime against humanity.95 In case 24 E cannot be convicted of genocide – irrespective of the existence of genocidal intent – as the act committed by him targets a political group. However, the extermination meets the material requirements of a crime against humanity. By imprisoning a large group of people under life-threatening conditions, E caused the death of several people. Such cases of “indirectly” causing the death of another person (in contrast to the direct killing of a person) are covered by the crime of extermination. Furthermore, E’s conduct forms part of a mass killing. E is aware of the circumstances that constitute the existence of a mass killing and therefore meets the prerequisites of the mental element. He acts with the required intent and knowledge (art. 30 of the Rome Statute) with respect to the death of the imprisoned group of people. Thus, E committed a crime against humanity. 43

c) Enslavement. Art. 7 (1) (c) of the Rome Statute provides for the crime of enslavement, which is defined as “the exercise of any or all of the powers attaching to the right of ownership over a person”. Due to their global abolition, traditional forms of slavery rarely occur today. However, the “objectification” of human beings still persists;96 modern forms of enslavement can range from human trafficking, economic exploitation through forced labour to restriction of free movement accompanied by continuous rape.97

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d) Deportation or Forcible Transfer of Population. Art. 7 (2) of the of the Rome Statute defines deportation or forcible transfer of population as “forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law”. According to the corresponding Elements of Crimes even the transfer of a single person can constitute a crime against humanity.98 On the subjective side, it only requires intent to the degree outlined in art. 30 of the Rome Statute; with recourse to the wording of the Rome Statute, a more extensive form of intent, e. g. including the desire to permanently expel the victims from their original territory is not generally required.99 93

Elements of Crimes for art. 7 (1) (b) of the Rome Statute (paras 1 and 2). Selbmann, Tatbestand des Genozids, p. 201; ICTY, Prosecutor v. Krstic´, Judgment, IT-98-33-T, 2nd August 2001, para. 500. 95 Cf ICTY, Prosecutor v. Krstic ´, Judgment, IT-98-33-T, 2nd August 2001, para. 500. 96 Becker, Der Tatbestand des Verbrechens gegen die Menschlichkeit, pp. 192 et seq. 97 ICTY, Prosecutor v. Kunarac et al., Judgment, IT-96-23-T & IT-96-23/1-T, 22nd February 2001, paras 515 et seq.; see also Werle/Jeßberger, Principles of International Criminal Law, paras 931 et seq. 98 Confirmed by the ICTY in ICTY, Prosecutor v. Krajisˇnik, Judgment, IT-00-39-A, 17th March 2009, para. 309. For the parallel question in respect of “killing” constituting the crime of genocide according to art. 6 lit. a of the Rome Statute, see para. 19. 99 ICTY, Prosecutor v. Stakic ´, Judgment, IT-92-24-A, 22nd March 2006, paras 278, 304 et seqq., 317; ICTY, Prosecutor v. Brd-anin, Judgment, IT-99-36-A, 3rd April 2007, para. 206; ICTY, Prosecutor v. Krajisˇnik, Judgment, IT-00-39-A, 17th March 2009, para. 304; ICTY, Prosecutor v. Popovic et al., Judgment, IT-05-88-T, 10th June 2010, para. 905; Ambos, Int. Strafrecht, § 7 para. 205; Safferling, Int. StrafR, § 6 para. 77; for an older, diverging jurisprudence, see e. g. ICTY, Prosecutor v. Simic et al., Judgment, IT-95-9-T, 17th October 2003, para. 134; ICTY, Prosecutor v. Stakic´, Judgment, IT-97-24-T, 31st July 2003, para. 687; see also Werle/Jeßberger, Völkerstrafrecht, para. 991. 94

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e) Imprisonment or Other Severe Deprivation of Physical Liberty. There is no legal 45 definition for this individual act listed in art. 7 (1) (e) of the Rome Statute. The Elements of Crimes require that the perpetrator imprisons or otherwise severely deprives one or more persons of physical liberty. Furthermore, the imprisonment must violate fundamental rules of international law. With recourse to the definition set out in the Rome Statute, the Yugoslavia Tribunal pointed out that the crucial element of imprisonment is a notion of arbitrariness,100 i. e. the deprivation of liberty without due process of law. f) Torture. Art. 7 (1) (f) of the Rome Statute governs the crime of torture. According 46 to art. 7 (2) (e), “torture” describes the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused. Compared to the definition of the UN Torture Convention of 1984,101 the scope of art. 7 (1) (f) of the Rome Statute is considerably broader. Therefore, neither the involvement or participation of a person acting in an official capacity nor the infliction of pain for a specific purpose is required to constitute torture under the legal regime of the Rome Statute.102 g) Sexual Violence. In addition to the crime of rape, which had already been 47 explicitly covered by the Statutes of the ICTY and the ICTR103, art. 7 (1) (g) of the Rome Statute encompasses sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, and any other form of sexual acts of comparable gravity, which may include various other forms of sexual violence of comparable gravity.104 The crime of forced pregnancy was first formulated in the Rome Statute.105 At the Rome Conference this inclusion was subject to considerable debate. According to the legal definition to be found in art. 7 (2) (f) of the Rome Statute, enforced pregnancy encompasses the unlawful confinement of a woman forcibly made pregnant (not necessarily by the perpetrator himself), with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. As some states worried about possible conflicts with national prohibitions of abortion, the definition makes clear that it “shall not in any way be interpreted as affecting national laws relating to pregnancy”.106 h) Persecution. Art. 7 (1) (h) of the Rome Statute furthermore includes the “persecu- 48 tion against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognised as impermissible under international law”. Art. 7 (2) (g) of the Statute defines persecution as the “intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity”. It is irrelevant whether the loss of rights is the result of judicial, physical or economic (domestic) acts.107 100 ICTY, Prosecutor v. Kordic ˇ erkez, Judgment, IT-95-14/2-T, 26th March 2001, para. 302; ICTY ´ and C Prosecutor v. Krnojelac, Judgment, IT-97-25-T, 15th March 2002, para. 110. 101 UN General Assembly Resolution, Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment, A/RES/39/46, 10th December 1984. 102 Cf the case-law of the ad hoc tribunals as presented by Burchard, JICJ 6 (2008), 159 et seq. as well as the notion of torture in the light of art. 3 ECHR (see § 9 para. 35). 103 Cf art. 5 (g) of the ICTY Statute, art. 3 (g) of the ICTR Statute. 104 Extensively Ambos, ZIS 6 (2011), 287, 289 et seqq. 105 See para. 22. 106 Cf Meseke, Verbrechen gegen die Menschlichkeit, p. 227. 107 ICTY, Prosecutor v. Tadic ´, Judgment, IT-94-1-T, 7th May 1997, para. 710.

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According to art. 7 (1) (h) of the Rome Statute, the applicability of the crime of persecution is however restricted, as it must be linked to any other act (enumerated as crimes against humanity in art. 7 (1) of the Rome Statute) or any other crime within the material jurisdiction of the ICC. Furthermore, the crime of persecution differs from all other crimes against humanity in respect of its mental elements. In addition to the general requirements laid down in art. 30 of the Rome Statute, the crime of persecution must be committed with the specific intent to cause injury to a human being for belonging to a particular group or community.108 As long as there is clear evidence of the specific intent, even a single act may constitute the crime of persecution;109 thus the nature of the crime of persecution is very similar to the crime of genocide. 49

i) Enforced Disappearance of Persons. According to art. 7 (2) (i) of the Rome Statute “enforced disappearance of persons” means “the arrest, detention or abduction of persons by, or with the authorisation, support or acquiescence of a state or a political organisation which is followed by a refusal to acknowledge this deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time”. The idea to introduce the crime of enforced disappearance as a sub-category of crimes against humanity is mainly based on the demand of the Latin American states, as the disappearance of persons was used to terrorise the population during the period of the Argentinean and the Chilean military dictatorships.110 In addition to the general mental elements enshrined in art. 30 of the Rome Statute, the crime of enforced disappearance of persons also requires a specific intent, namely the intention of removing the person from the protection of the law for a long period of time.111

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j) Apartheid. Art. 7 (2) (h) of the Rome Statute defines the crime of apartheid as inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalised regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime. The definition is largely based on the UN General Assembly Apartheid Convention of 30th November 1973.112 South Africa proposed to introduce the crime of apartheid as an international crime under the jurisdiction of the ICC.

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k) Other Inhumane Acts of a Similar Character. Art. 7 (1) (k) of the Rome Statute contains an opening clause, covering all other inhumane acts of a similar character. Such opening clause can also be found in the statutes of the UN ad hoc tribunals.113 However, the ICTY and the ICTR were facing enormous problems in applying the opening clause, as that there is no legal indication for what has to be subsumed under such indeterminate criterion. The question is particularly significant in respect of the principle of legality and particularly the lex certa requirement. The ad hoc tribunals’ 108 ICTY, Prosecutor v. Blasˇkic ´ , Judgment, IT-95-14-T, 3rd March 2000, para. 235; cf also Triffterer/ Ambos-Hall, Rome Statute, art. 7 paras 142 et seq. 109 ICTY, Prosecutor v. Kupresˇkic ´ et al., Judgment, IT-95-16-T, 14th February 2000, para. 624. 110 Cf also Safferling, Int. StrafR, p. 204 who refers to “quasi-state inflicted terror” in South American states. 111 For details, see Grammer, Tatbestand des Verschwindenlassens einer Person, pp. 224 et seq. 112 UN General Assembly Resolution, International Convention on the Suppression and Punishment of the Crime of Apartheid, A/RES/3068(XXVIII), 30th November 1973. 113 Cf also Safferling, Int. StrafR, § 6 para. 100.

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interpretation of the opening clause assumed that under certain circumstances violations of internationally recognised human rights enshrined in universal conventions, such as the Universal Declaration of Human Rights114 of 1948 and the International Covenant on Civil and Political Rights115 of 1966 fall under the opening clause.116 The Rome Statute, however, provides greater detail; only conduct causing great suffering, or serious injury to body, mental or physical health constitute other inhumane acts.117 Furthermore, according to the Elements of Crimes for art. 7 (1) (k), this conduct must be of a character similar to any other act referred to in art. 7 (1) of the of the Rome Statute.118

III. War Crimes

Case 25

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During a war between the states A and B, officer S of A’s army used so-called “dumdum bullets” (expanding bullets). These bullets easily expand or compress within the human body and may cause grave injury. Did S commit a war crime? (see para. 71).

1. History In times of war, fundamental rules of human coexistence cease to be valid. In 53 particular, the prohibition of killing other persons is suspended if the conduct is committed in connection with armed conflicts and in accordance with international law.119 It is nevertheless globally acknowledged that even war cannot create a legal vacuum. The laws of war (ius in bello120) must be obeyed in order to avoid those wartime atrocities that are not necessary for achieving the military aim of weakening the enemy’s forces.121 The laws of war still seek to protect humanity within armed conflicts as far as possible. Therefore, this body of law is also called “international humanitarian law”. Not every crime committed in the course of a war can be subsumed under the definition of a war crime. In fact, a war crime is legally defined as a violation of international humanitarian law that creates direct criminal responsibility under international law.122 Thus a violation of international humanitarian law is a requirement for (the constitution of) a war crime. 114 UN General Assembly Resolution, Universal Declaration of Human Rights, A/RES/217(III)A, 10th December 1948. 115 International Covenant on Civil and Political Rights, New York, 19th December 1966, United Nations Treaty Series, vol. 999, no. 14668, p. 171. 116 See ICTY, Prosecutor v. Kupresˇkic ´ et al., Judgment, IT-95-16-T, 14th January 2000, paras 565 et seq.; see also Kittichaisaree, Int. Criminal Law, p. 127. 117 Diverging in this aspect from previous judgments rendered by the ad hoc tribunals ICC (PTC I), Prosecutor v. Katanga and Ngudjolo, Decision on the confirmation of charges, ICC-01/04-01/07-717, 30th September 2008, para. 450. 118 Cf ICTY, Prosecutor v. Karadz ˇic´, Decision, IT-95-5/18-PT, 28th April 2009, para. 42. 119 Werle/Jeßbeger, Principles of International Criminal Law, para. 1031; Ipsen, in: Fleck (ed.), Handbuch, para. 301; Safferling, Int. StrafR, § 6 para. 111. 120 The laws of war (ius in bello) – in contrast to the right to war (ius ad bellum), which refers to acceptable justifications for resorting to means of military warfare. 121 Dixon/Khan/May, Archbold, § 11 para. 9. 122 Werle/Jeßberger, Principles of International Criminal Law, para. 1029.

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According to its history, a distinction is made between two different regimes of international humanitarian law: – Geneva Law: The primary purpose of the Geneva law is to protect casualties of war, namely members of the armed forces put hors de combat, and non-combatants, particularly civilians. The establishment of this part of international humanitarian law is based on Conventions that were all adopted in the city of Geneva. Initially, the Conventions only targeted the protection of sick and wounded combatants and regulated the treatment of prisoners of war (Geneva Conventions of 1864 and 1929). Later the protection was extended to the civilian population in general (Geneva Conventions I-IV of 1949).123 – The Hague Law: The Hague Law mainly seeks the protection of soldiers and prohibits means and methods of warfare that are particularly cruel or dangerous (e. g. the use of poisoned weapons). The basic principles of this part of international humanitarian law were negotiated at conferences in The Hague (1899, 1907), where, in particular, the so-called “The Hague Convention with respect to the Laws and Customs of War on Land” was established.124

Meanwhile, the strict distinction between Geneva Law and The Hague Law has become less important, in particular since the adoption of the Additional Protocol I in 1977, which can be regarded as a first attempt to unite the two parts of international humanitarian law.125 Nevertheless, the distinction is still useful for the comprehension of the laws of war. 55 Initially, the significance of criminal law for preventing violations of international humanitarian law was demonstrated on a national level. A number of states criminalised such conduct under their national law (e. g. in military criminal codes); moreover, the Geneva Conventions of 1949 obliged the signatory states to criminalise “grave breaches” of the Conventions under national law and to either ensure prosecution or hand over the perpetrator to another state at its request.126 The universality principle is applicable for such grave breaches, giving any state the right to prosecute such conduct under national criminal law.127 56 The first international criminal tribunal that tried war criminals under International Criminal Law was the Nuremberg IMT. War crimes listed in art. 6 (b) of the Nuremberg Charter were based on both The Hague Regulations Respecting the Laws and Customs of War on Land and the 1929 Geneva Convention. Individual criminal responsibility had already been acknowledged at that time, though it had not been applied in practice (see § 11 paras 1 et seqq.). 123 Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva, 12th August 1949, United Nations Treaty Series, vol. 75, No. 970, p. 31; Convention for the amelioration of the condition of the wounded, sick and shipwrecked members of the armed forces at sea, Geneva, 12th August 1949, United Nations Treaty Series, vol. 75, No. 971, p. 85; Convention relative to the treatment of prisoners of war, Geneva, 12th August 1949, United Nations Treaty Series, vol. 75, No. 972, p. 136; Convention relative to the protection of civilian persons in time of war, Geneva, 12th August 1949, United Nations Treaty Series, vol. 75, No. 973, p. 288. 124 Convention (II) with Respect to the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, The Hague, 29th July 1899; Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, The Hague, 18th October 1907. 125 Cassese, Int. Criminal Law, pp. 66 et seqq. 126 Cf art. 50 of Geneva Convention I; art. 51 of Geneva Convention II; art. 130 of Geneva Convention III and art. 147 Geneva Convention IV. 127 Cf O’Keefe, JICJ 7 (2009), 811 et seq.; Werle/Jeßberger, Principles of International Criminal Law, paras 212 et seqq.

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After a long standstill period, the establishment of the International Criminal Tribunal for ex-Yugoslavia and the International Criminal Tribunal for Rwanda strengthened the idea of direct enforcement of International Criminal Law. The ICTY Statute criminalises the grave breaches pursuant to its art. 2. Furthermore, art. 3 of the ICTY Statute prescribes individual criminal liability for serious violations of laws and customs of war. The enumeration of laws and customs of war in the ICTY Statute is not exclusive, but rather exemplary. According to art. 4 of the ICTR Statute, however, only grave breaches of the common art. 3 of the Geneva Conventions of 1949 and the Additional Protocol II of 1977 fall within the material jurisdiction of the Tribunal. Thus only war crimes committed in connection with a non-international conflict are comprised by the ICTR Statute (see para. 59), taking into account the fact that this Tribunal only had to deal with a conflict of domestic character. Art. 8 of the Rome Statute establishes the jurisdiction of the International Criminal Court for war crimes. The definitions of the individual offences take into account all previous developments of the international war crimes regime.

2. Protected Interests The purpose of prosecuting war crimes on an international level is to safeguard 57 fundamental individual rights in armed conflicts. This protection is twofold: on the one hand particular groups of persons are protected against the specific dangers created by the state of war (Geneva Law); on the other hand certain means and methods of warfare are prohibited in order to avoid unnecessary violations of protected interests of the individual (The Hague Law). Moreover the law of war crimes seeks to protect world peace – a (collective) legal interest that transcends individual rights. Peace shall be created by containing disturbances which have already commenced and restoring peace after the termination of the conflict.128

3. Elements of the Offence The structure of the war crimes regime is similar to the way crimes against humanity 58 are structured under International Criminal Law. A particular individual act constitutes a war crime only if there is a functional link with an armed conflict. The conflict can either be of international and non-international nature, though not every heinous act committed in these types of conflicts is equally criminalised under International Criminal Law.

128

Werle/Jeßberger, Principles of International Criminal Law, para. 1074.

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Accordingly, art. 8 (2) of the Rome Statute distinguishes between different categories of criminal acts committed on the one hand in the course of an international armed conflict and on the other hand those committed in connection with a non-international armed conflicts. In doing so, the Rome Statute adheres to the traditional so-called “two box approach”.129 a) Crimes committed in connection with an international armed conflict: – Grave breaches of the Geneva Conventions of 12th August 1949 – art. 8 (2) (a) – Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law – art. 8 (2) (b) b) Crimes committed in connection with a non-international armed conflict: – Serious violations of art. 3 common to the four Geneva Conventions of 12th August 1949 – art. 8 (2) (c) – Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law – art. 8 (2) (e)

60

The fundamental distinction between armed conflicts of an international character and those of a non-international character stems from the origins of international humanitarian law. Given that the rules applicable to international and non-international conflicts have meanwhile increasingly converged, this distinction is hardly maintainable. Moderate amendments to art. 8 of the Rome Statute (see para. 75) agreed upon at the conference of Kampala also indicate the tendency to approximate both kinds of conflicts.130

4. Objective Requirements of an Armed Conflict 61

All war crimes share the common requirement of the existence of an armed conflict (comparable to the prerequisite of a “widespread or systematic attack” in art. 7 of the Rome Statute). Moreover, there must be a link or “nexus” between the individual criminal conduct and the armed conflict in order to classify the individual act as an international crime. According to the jurisprudence of the ICC and the ad hoc tribunals, “an armed conflict exists whenever there is a resort to armed force between states or protracted armed violence between governmental authorities and organised armed groups or between such groups within a state.”131 Non-international armed conflicts do explicitly not cover situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature (cf art. 8 (2) (d), (f) of the Rome Statute), as the application of international humanitarian law requires that the conflicts are of some sort of continuous intensity, with the opposing parties showing a certain degree of organisation.132

129

Ambos, Int. StrafR, § 7 para. 232. Alamuddin/Webb, JICJ 8 (2010), 1219 et seq.; concerning the distinction between international and non-international armed conflict, see also Neumann, ZStW 128 (2016), 998. 131 Cf ICC (TC I), Prosecutor v. Lubanga, Judgment pursuant to article 74 of the Statute, ICC-01/04-01/ 06-2842, 14th March 2012, para. 533; ICTY, Prosecutor v. Tadic´, Judgment, IT-94-1-T, 7th May 1997, para. 561; Steiger/Ba¨umler, AVR 2010, 189, 192 et seq. 132 Cf art. 8 (2) (f) of the Rome Statute; ICTY, Prosecutor v. Tadic ´, Judgment, IT-94-1-T, 7th May, 1997, paras 561 et seq.; see also Ambos, Int. StrafR, § 7 para. 239 who extracts a further distinction between “protracted” and “ordinary” non-international armed conflicts from the differences in the wordings of art. 8 (2) (d) and (f). 130

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Example: The classification of the armed conflict in Afghanistan under the leadership of the USA133, so-called “Operation Enduring Freedom” which persists since October 2001, may serve as an example to differentiate international from non-international armed conflicts. Until the armed operations were formally approved by the newly established government led by Hamid Karzai in June 2002, the conflict had to be classified as constituting an international armed conflict between Afghanistan and the intervening states.134 By formally approving of the operations, all state actors involved are now allied in the armed operations and the conflict itself must therefore be classified as being of a non-international nature.135 As Afghanistan ratified the Rome Statute in February of 2003, a possible investigation of a situation in Afghanistan may only be based on war crimes committed in a non-international conflict.136 International humanitarian law applies from the initiation of an armed conflict and 62 extends beyond the cessation of hostilities until a peace agreement is reached; or, in the case of internal conflicts, until a peaceful settlement is achieved.137 Thus the perpetrator’s criminal conduct need not be committed during actual hostilities to be covered by art. 7 of the Rome Statute. To the contrary, as long as the warring parties are bound by provisions to be found in international humanitarian law, war crimes can still be committed even when the hostilities are suspended or have been brought to an end (e. g. regarding the treatment of prisoners of war).138 Thus, international humanitarian law even governs situations of long-term occupation.139 The required link or “nexus” between the individual act and the armed conflict is 63 given if the conduct is and can only be committed in the course of the conflict, e. g. if the crime is facilitated or enabled by the conflict.140 Furthermore, the necessary connection to the armed conflict exists if the conduct can be ascribed to one of the parties involved in the conflict.141 An individual act committed merely on the occasion of the armed conflict cannot constitute a war crime.142 According to art. 8 (1) of the Rome Statute, the ICC shall have jurisdiction in respect 64 of war crimes “in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes”. The wording of the provision is based on a compromise found at the Rome Conference, which should not introduce an autonomous (restrictive) element of the crime.143

133 For didactic purposes, the situation in Afghanistan as well as the ensuing international legal questions are extremely simplified in this overview. For a more detailed analysis, see Hampson, in: Wilmshurst (ed.), International Law and the Classification of Conflicts, pp. 242 et seqq. 134 Cf Murphy, in: Schmitt/Pejic (eds), International Law and Armed Conflict, p. 213. 135 See Duffy, The ‘War on Terror’, p. 406. 136 ICC (OTP), Report on Preliminary Examination Activities 2016, paras 197 et seq. 137 ICTY, Prosecutor v. Tadic ´, Judgment, IT-95-16-T, 2nd October 1995, para. 70; cf also Kreß, EuGRZ 1996, pp. 644 et seq. 138 See Triffterer/Ambos – Cottier, art. 8 paras 29 et seqq.; cf the reasoning accompanying the German government draft (Entwurf eines Gesetzes zur Einfu¨hrung des Vo¨lkerstrafgesetzbuches) of 22nd June 2001, p. 25; available under http://dipbt.bundestag.de/dip21/btd/14/085/1408524.pdf (last visited July 2017). 139 Koutroulis, IRRC 94 (2012), 165, 168 et seq.; cf ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9th July 2004, ICJ-Rep 2004, p. 136 paras 89 et seqq. 140 Cf ICTY, Prosecutor v. Kunarac et al., Judgment, IT-96-23 & IT-96-23/1-A, 12th June 2002, para. 58 et seq. 141 For details, see Werle/Jeßberger, Principles of International Criminal Law, paras 1109 et seqq. 142 Generally on the “nexus” element, see van der Wilt, JICJ 10 (2012), 1113 et seq. 143 Triffterer/Ambos-Do ¨ rmann, Rome Statute, art. 8 paras 53 et seqq.

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5. Subjective Requirement of an Armed Conflict 65

The perpetrator must only be aware of the factual circumstances that establish the existence of an armed conflict. There is no requirement for a legal evaluation by the perpetrator as to the existence of an armed conflict or its respective character as international or non-international.

6. Categories of the Individual Acts 66

a) Material and Mental Elements. Art. 8 of the Rome Statute distinguishes between two categories of war crimes: those committed in international armed conflicts and those committed in non-international armed conflicts. Moreover, it is not only the material but also the mental elements of the individual offences which need to be demonstrated to establish individual criminal liability. Generally, art. 30 of the Rome Statute applies to the war crimes listed in art. 8 of the Rome Statute (see § 13 paras 21 et seqq.). Some individual offences, however, only require “wilfulness”,144 which demands less than “intent and knowledge” and includes the concept of recklessness which is well known in common law jurisdictions.145 Although it is difficult to find an equivalent to recklessness in civil law terminology, it can probably best described as a combination of gross negligence and dolus eventualis.146 Example: Art. 8 (2) (a) (i) of the Rome Statute criminalises the conduct of “wilful killing”. If the perpetrator foresees the death of his or her victims as a definite consequence of his conduct, he or she committed the war crime with intent and knowledge pursuant to art. 30 of the Rome Statute. However, if the perpetrator only anticipates the possibility of the death of his victims but still decides to act, e. g. by inflicting grievous bodily harm, the perpetrator’s intent and knowledge cannot simply be assumed. However, his or her conduct may be “wilful”; according to the ICTY’s definition. Wilful killing presupposes at least that the perpetrator intends to cause serious/grievous bodily harm and is reasonably aware that death is a likely consequence of his or her actions.147

67

b) Grave Breaches of the Geneva Conventions of 12th August 1949 in relation to an International Armed Conflict (art. 8 (2) (a) of the Rome Statute). Art. 8 (2) (a) of the Rome Statute refers to “grave breaches” of the Geneva Conventions. Each of the four Geneva Conventions guarantees the protection of different groups of persons in international armed conflicts, irrespective of the intensity of the conflicts. However, all groups protected by the Conventions have in common that – from the perspective of the perpetrator – they are closely associated with the hostile state, but do not or no longer take part in hostilities and thus are exposed to arbitrary violation of their human rights by the hostile armed forces.148 144

Cf especially art. 8 (2) (a) (i), (iii), (vi) of the Rome Statute. Cf Cassese/Gaeta/Jones-Bothe, Rome Statute, p. 392. 146 With a slightly diverging explanation Werle/Jeßberger, Vo ¨ lkerstrafrecht, para. 1173 who refer to “heightened negligence” and Safferling, Int. StrafR, § 6 para. 158 who essentially equates “recklessness” with dolus eventualis. 147 Cf e. g. ICTY, Prosecutor v. Kordic ˇ erkez, Judgment, IT-95-14/2-A, 17th December 2004, ´ and C para. 36; Triffterer/Ambos-Do¨rmann, Rome Statute, art. 8 para. 83. 148 Triffterer, in: Hankel/Stuby (eds), Strafgerichte gegen Menschheitsverbrechen, p. 179. 145

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The following four groups fall within the scope of protection of the four Geneva 68 Conventions: – Wounded, sick, medical and religious personnel on the field (Geneva Convention I) – Wounded, sick, shipwrecked, medical, religious personnel on the high seas (Geneva Convention II) – Prisoners of war (Geneva Convention III) – Civilians, who at a given moment and in any manner whatsoever, find themselves, in the case of a conflict or occupation, in the hands of a party to the conflict or occupying power of which they are not nationals (Geneva Convention IV) In addition to the definitions of the protected groups of persons, the Conventions 69 include a definition for “grave breaches”.149 This definition is referred to by art. 8 (2) (a) of the Rome Statute. In order to apply the law one has to consider whether the relevant conduct constitutes a grave breach of one of the four Conventions. A central requirement for such a violation of international humanitarian law is that the victim of the offence belongs to one of the groups protected by the Conventions. Example: Unlawful confinement (vii) constitutes a grave breach of Geneva Convention IV, if committed against a civilian. However, in respect of a prisoner of war, who is protected by Geneva Convention II, the same offence does not constitute a grave breach and is therefore not a crime pursuant to art. 8 (2) (a) of the Rome Statute. c) Other Serious Violations of the Laws and Customs Applicable in International 70 Armed Conflict (art. 8 (2) (b) of the Rome Statute). Art. 8 (2) (b) of the Rome Statute enumerates further acts that constitute serious violations of the laws and customs applicable in international armed conflicts. These war crimes are based on different sources of law, either customary international law or international conventions.150 By prohibiting certain means and methods of warfare, art. 8 (2) (b) of the Rome 71 Statute encompasses violations of The Hague Law. Examples of prohibited methods of warfare: intentionally directing attacks against the civilian population and against civilian objects (i, ii); attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended (v); using human shields (xxiii); intentionally using starvation of civilians as a method of warfare (xxv). Examples of prohibited means of warfare: employing poison or poisoned weapons (xvii); employing asphyxiating, poisonous or other gases (xviii); weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering (xx). By using “dum-dum bullets” in case 25, S satisfies the elements of art. 8 (2) (b) (xix) of the Rome Statute. “Dum-dum bullets” cause unnecessary suffering and are therefore prohibited. The conduct of S occurs in connection with an international armed conflict. It may be assumed that he was aware of the prohibition of using such bullets; likewise he was aware of the existence of an international armed conflict. The circumstance of

149 Art. 50 Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field; art. 51 Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea; art. 130 Convention (III) relative to the Treatment of Prisoners of War; art. 147 Convention (IV) relative to the Protection of Civilian Persons in Time of War. 150 Triffterer/Ambos-Do ¨ rmann, Rome Statute, art. 8 paras 180 et seq.

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whether a person is wounded or killed by the bullet is irrelevant for the question of S’s criminal liability as the latter only depends on the “abstract danger” caused by the use of such bullets.151 72 Art. 8 (2) (b) of the Rome Statute comprises further war crimes, such as the use of child soldiers, namely the conscripting or enlisting of children under the age of fifteen years into the national armed forces (xxvi), humiliating and degrading treatment (xxi) or – and this is a novelty – the commission of rape or any other form of sexual violence (xxii). Prior to the establishment of the ICC international treaties had not explicitly enumerated crimes of sexual violence. In March 2016, Bemba was convicted of rape both as a war crime and a crime against humanity, thus being the first defendant to be found guilty of charges of sexual violence as a war crime before the ICC.152 73 Despite the detailed enumeration of individual acts, a few – but decisive – loopholes can still be found in art. 8 (2) (b) of the Rome Statute. The delegates at the Rome Conference could not agree upon the inclusion of the use of land mines, biological warfare agents, incendiary weapons, laser weapons that may cause blindness or the development, creation and use of chemical warfare agents, despite the fact that the prohibition on the above mentioned conduct is already covered by international conventions.153 Unsurprisingly, the Rome Statute does not criminalise the use of nuclear weapons, as such provision would have been strongly opposed by the current nuclear powers.154 Art. 8 (2) (b) (xx) of the Rome Statute opens up the possibility of including further kinds of weapons as an annex-provision to the Statute; however, such an amendment of the Statute must be approved by a two-thirds majority of the States parties (cf art. 121 (3) of the Rome Statute). 74

d) Serious Violations of art. 3 Common to the Four Geneva Conventions of 12th August 1949 in an Armed Conflict not of an International Character (art. 8 (2) (c) of the Rome Statute). In contrast to offences committed in connection with international armed conflicts, art. 8 (2) (c) of the Rome Statute only refers to serious violations of a minimum standard guaranteed by international humanitarian law. This is established by article 3 common to the four Geneva Conventions and applies to all conflicts of a non-international character. The provision shall only protect persons who are not actively taking part in the hostilities. Art. 8 (2) (c) of the Rome Statute covers the following acts: attacks endangering life or physical condition, interferences with personal dignity, taking of hostages and the passing of sentences and the carrying out of executions without due process of law. The enumeration of offences is exclusive.155 Regardless of the existence of a long-standing conflict, the provision is applicable to all non-international conflicts as a “minimum-guarantee”.156 151

Werle/Jeßberger, Vo¨lkerstrafrecht, para. 1435. ICC (TC III), Prosecutor v. Bemba, Judgment pursuant to article 74 of the Statute, ICC-01/05-01/ 08-3343, 21st March 2016. 153 The Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects, Geneva, 10th November 1980, United Nations Treaty Series, vol. 1342, No. 22495, p. 163 restricts the utilisation of landmines in protocol II as well as prohibits the usage of incendiary weapons in protocol III and the usage of blinding laser weapons in protocol IV. Furthermore, chemical warfare agents have been banned by the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, Geneva, 3rd September 1992, United Nations Treaty Series, vol. 1974, No. 33757, p. 470. 154 With the exception of India; the Indian delegation vehemently advocated the inclusion of the use of nuclear weaponry in art. 8 of the Rome Statute. India is, however, not yet a state party to the Rome Statute. 155 Triffterer/Ambos-A. Zimmermann/Geiß, Rome Statute, art. 8 para. 887. 156 Safferling, Int. StrafR, § 6 para. 141. 152

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e) Other Serious Violations of the Laws and Customs Applicable in Armed 75 Conflicts not of an International Character (art. 8 (2) (e) of the Rome Statute). A particular achievement of the Rome Statute is the fact that war crimes committed in connection with a non-international armed conflict are not limited to serious violations of art. 3 of the Geneva Conventions. The Statute rather draws a parallel between art. 8 (2) (e) and art. 8 (2) (b) of the Rome Statute, revealing the common development in International Criminal Law to abandon the distinction between international and noninternational armed conflicts. This is the case in as far as there is a “longstanding armed conflict” pursuant to art. 8 (2) (f) (2), i. e. an conflict not of an international character which is outwardly comparable to an international conflict.157 Thus, in essence, the Rome Statute differentiates between two types of non-international conflicts: on the one hand the long-standing armed conflict pursuant to art. 8 (2) (e) (f) of the Rome Statute and on the other hand other non-international armed conflicts covered only by art. 8 (2) (c), (d). Even though the question remains, whether such a crucial differentiation may be made solely with regard to the duration of the conflict,158 the clear wording of art. 8 (2) (f) (2) may not be simply disregarded.159 Also with regard to longstanding non-international armed conflicts, the delegates of the Rome Conference could not agree upon the complete adoption of the provision for international armed conflicts. Thus, the prohibition of certain weapons was not included in art. 8 (2) (e) of the Rome Statute. According to the Kampala Amendments to article 8 of the Rome Statute – which according to art. 121 (5) of the Rome Statute come into force for each ratifying Member State individually – a further approximation of both groups of offences is achieved: The use of poison or poisoned weapons or similar gases, all analogous liquids, materials or devices and the use of bullets which expand or flatten easily inside the human body will be punishable even in noninternational armed conflicts.160

IV. Aggression

Case 26

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In the context of a so-called “humanitarian intervention” the territory of the former Socialist Federal Republic of Yugoslavia was bombed by some NATO states from March to June 1999. The NATO states sought to put an end to the enduring and grave violations of human rights in Kosovo, a part of the Republic. Did the individuals responsible for the “intervention” commit a crime of aggression? (see para. 78)

157

Safferling, Int. StrafR, § 6 para. 138. Cf MK-Ambos, Vor §§ 8 et seqq. VStGB para. 25 who consequently argues in favour of a restrictive interpretation. The ICC however identified a duration of 5 months as “long standing”, cf ICC (PTC II), Prosecutor v. Bemba, Decision pursuant to article 61 (7) (a) and (b) of the Rome Statute, ICC-01/05-01/ 08-424, 15th September 2009, para. 255. 159 However, Werle/Jeßberger, Vo ¨ lkerstrafrecht, para. 1153 argues in favour of transferring the requirements of art. 8 (2) (f) (2) of the Rome Statute to conflicts falling under art. 8 (2) (c) of the Rome Statute. 160 Assembly of States Parties Resolution, Review Conference, Amendments to article 8 of the Rome Statute, RC/Res. 5, 10th June 2010, Annex I, paras 13-15; until now, 33 Member States have ratified this part of the Kampala Amendments, see https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_ no=XVIII-10-a&chapter=18&clang=_en (last visited July 2017); on this part of the decision of Kampala, see in detail Alamuddin/Webb, JICJ 8 (2010), 1219 et seq. 158

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1. The Crime of Aggression under Customary International Law Since the general prohibition of the use of force was laid down in art. 2 (4) of the UN Charter, war can no longer be seen as a legitimate means of politics. However, at the present state of international law, not every violation of the prohibition of the use of force constitutes a crime under international law. The provisions of crimes against peace encompassed by art. 6 (a) of the Nuremberg Charter and art. 5 (a) of the IMTFE Charter as well as the jurisprudence of the Nuremberg and Tokyo Tribunals provided for a basis for further differentiation of the criminalisation of planning, preparing, initiating or waging a war of aggression.161 Generally, this conduct leading to aggressive war is now criminalised under customary international law; however, other aggressive acts prohibited under international law, which do not reach the heightened level of intensity of an aggressive war do not lead to direct criminal liability under customary international law. Consequently, individual criminal responsibility under customary international law does not cover all violations of international law prohibiting the use of force but only grave and obvious forms of aggression.162 78 The war of aggression is a war that violates international law. Those forms of the use of force which are exceptionally allowed under international law, e. g. acts of individual or collective self-defence (art. 51 of the UN Charter) or measures taken by the Security Council acting under Chapter VII of the UN Charter, do not constitute a war of aggression. The criminalisation of aggressive war, however, does not only require the violation of international law. Furthermore, the attacking state must pursue a particularly aggressive goal, such as the annexation or subjugation of another state. The “humanitarian intervention” described in case 26 does not constitute a war of aggression, though it is highly disputed whether such an act is legal under international law.163 The intervention was intended to protect the Kosovo Albanians against grave violations of their human rights.164 Thus it did not pursue an aggressive goal. Furthermore, the use of force must attain a certain scale and intensity in order to constitute a war of aggression.165 Preparatory acts and minor hostile conduct (for example a skirmish at the border) are therefore not included in the definition of the crime. 79 The crime of aggression can solely be committed by a member of a military or political leadership, who is in a position of effective control. The crime of aggression can be described as an offence demanding a special status of the perpetrator, a so-called “leadership crime”.166 The mental element of the crime requires the awareness of the aggressive goals of the war; a higher degree of intent on the part of the perpetrator, however, is not required.167 77

2. The Crime of Aggression in the Rome Statute 80

According to art. 5 (1) (d) of the Rome Statute, the crime of aggression falls within the jurisdiction ratione materiae of the ICC. However, the original and now deleted 161 For details on aggression as a crime under customary international law, see Werle/Jeßberger, Principles of International Criminal Law, paras 1444 et seq. 162 Werle/Jeßberger, Principles of International Criminal Law, para. 1444. 163 See Deiseroth, NJW 1999, 3084. 164 Cf e. g. Kreß, NJW 1999, 3081. 165 Cf Ambos, Int. StrafR, 2nd edn, § 7 para. 255. 166 See Cryer/Friman/Robinson/Wilmshurst, International Criminal Law, p. 313. 167 Werle/Jeßberger, Principles of International Criminal Law, para. 1464.

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wording of art. 5 (2) of the Rome Statute had declared that the Court could not exercise its jurisdiction until an amending provision was adopted by a review conference (in accordance with articles 121 and 123) defining the crime and setting out the conditions under which the Court shall exercise its jurisdiction with respect to this crime. While the need to include the crime of aggression in art. 5 (1) of the Rome Statute was generally approved by the majority of the members of the Rome Conference, the modalities of the prosecution and the elements of the offence remained highly disputed. In order to guarantee the success of the negotiations, a compromise was found in adopting a “placeholder” provision (formerly art. 5 (2) of the Rome Statute) that should enable the Assembly of States Parties to find a solution on a later date.168 The main controversy concerning the crime of aggression had especially focused on 81 the relationship between the ICC and the UN Security Council, the latter bearing the primary responsibility for the maintenance of international peace and security (art. 24 (1) of the UN Charter).169 According to the draft dealt with at the Rome Conference, the ICC should only have been allowed to prosecute the crime of aggression if the Security Council had determined that a war of aggression had occurred. This was opposed by many states, arguing that the UN Security Council would then be in a position to (politically) decide on the criminality of individual conduct, thereby indirectly determining the perpetrator’s individual criminal responsibility. It was brought forward that such far-reaching power of the Security Council (particularly with regard of the veto power of its five permanent Member States) would undermine and the independence and objectivity of the ICC as a legal rather than a political institution.170 Finally, the Rome Conference authorised a Preparatory Commission to draft a proposal 82 for the definition of the crime of aggression. A special working group was formed to continue the work of the Preparatory Commission by discussing the most important issues in this context.171 In addition to the unsolved question of the role of the Security Council, the scope of the future provision of the crime of aggression was subject to controversial discussions. Several states held the view that the crime of aggression should exceed current customary international law by including other aggressive acts of similar intensity.172 According to art. 121 (1) of the Rome Statute, Liechtenstein introduced the final draft agreed upon by the Special Working Group as a proposal for the Review Conference173 which took place in Kampala from 31st May 2010 until 11th June 2010. During the Kampala Conference174 the Member States were able to agree on a definition of the crime of aggression incorporated in the newly created art. 8 bis of the Rome Statute175, which clearly constituted a great success in the development of the crime of aggression. 168

Irmscher, KritJ 1998, 472, 477. See also Politi, JICJ 10 (2012), 267, 272 et seqq. 170 See Irmscher, KritJ 1998, 472, 478; Triffterer/Ambos-A. Zimmermann, Rome Statute, art. 5 paras 32 et seqq.; May, Aggression and Crimes against Peace, pp. 207 et seq. 171 Cf the overview in the Report of the Preparatory Commission for the International Criminal Court, UN – Doc. PCNICC/2002/2/Add.2. 172 For a critical view on exceeding customary international law, see for example Werle, Principles of International Criminal Law, 1st edn, para. 1187. 173 Regarding the additional temporal requirement of the Rome Statute (seven years after coming into force), see art. 123 (1) of the Rome Statute. 174 Concerning the schedule of the conference in detail Schmalenbach, JZ 2010, 745 et seq. and Kreß/ von Holtzendorff, JICJ 8 (2010), 1201 et seq.; regarding the further changes of the of the Rome Statute based on the Kampala Conference, see Maschner/Olma, ZIS 5 (2010), 533 et seq. 175 Assembly of States Parties Resolution, Review Conference, The Crime of Aggression, RC/Res. 6, 11th June 2010. 169

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a) Elements of the Criminal Offence. According to art. 8 bis (1), the crime of aggression encompasses the planning, preparation, initiation or execution of an act of aggression, which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations. In light of the principle of legality, art. 8 bis (2) of the Rome Statute conclusively defines those acts of aggression that fall within the competence of the ICC. By restricting the elements of the criminal offence to manifest violations of the Charter of the United Nations,176 the provision avoids the extension of the ICC’s jurisdiction to each and every case of interstate violence.177 According to the prevailing opinion among international scholars, the threshold-requirements must be objectively met.178 Some guiding directions on how to interpret the new provision are given in the so-called “understandings”, which were annexed to the Kampala Amendment.179 Those require a cumulative presence of three components, i. e. character, gravity and scale that need to be sufficiently met to establish a “manifest” violation of the Charter.180 Therefore, the threshold-element cannot be met by an isolated consideration of one of the three factors. The provision constitutes a minimum requirement which has a considerable adverse effect on the legal certainty of the provision. It is quite doubtful whether it is still foreseeable for the potential perpetrator of the crime of aggression whether his or her behaviour fulfils the elements of the criminal offence.181 Consequently, art. 22 (2) of the Rome Statute, which requires the Court to choose the interpretation of a provision most favourable to the defendant, should be taken into account when applying the new provision.182 84 Only individuals who have (indirect) effective control over a state’s military or political actions are in a position to be potential perpetrators of the crime of aggression. As the criminal offence is only directed to cover such individuals bearing that particular position, the newly drafted art. 25 (3) bis of the Rome Statute excludes the criminal liability of subordinates both as perpetrators and as accessories to the crime of aggression.183 The application of art. 25 in context of the crime of aggression is thus limited to those individuals described in art 8 bis (1) of the Rome Statute.184 However, individuals who have de facto effective control over the political or military actions of a state that do not belong to the official state leadership are also potential addressees of the provisions governing the crime of aggression. Thus leaders of paramilitary groups or leading figures of economy or religion can potentially be held responsible for a crime of aggression under the Rome Statute.185 As to the mental element art. 8 bis does not contain any special requirements; therefore, art. 30 of the Rome Statute is applicable to the crime of aggression.186 83

176 According to the “understandings” also resolved at Kampala (Assembly of States Parties Resolution, Review Conference, The Crime of Aggression, RC/Res. 6, 11th June 2010, Annex III), the three criteria of “character”, “gravity” and “scale” of the violation of the Charter have to be fulfilled cumulatively; an isolated finding cannot lead to a fulfilment of the elements of the crime. 177 See also Ambos, ZIS 5 (2010), 656. 178 See Schabas, Commentary, p. 312; regarding the debatable efforts towards the establishment of a further restrictive criterion, cf Kreß, EJIL 20 (2009), 1129, 1139. 179 Cf Assembly of States Parties Resolution, Review Conference, The Crime of Aggression, RC/Res. 6, 11th June 2010, Annex III. 180 Cf Assembly of States Parties Resolution, Review Conference, The Crime of Aggression, RC/Res. 6, 11th June 2010, Annex III, para. 7. 181 See also Schmalenbach, JZ 2010, 747; Ambos seems to hold the opinion that a more precise wording of the elements of the crime is not possible and therefore pleads for a restriction on the subjective level Ambos, ZIS 5 (2010), 655 et seq. 182 Ambos, ZIS 5 (2010), 663; Schmalenbach, JZ 2010, 749. 183 Cf Werle/Jeßberger, Principles of International Criminal Law, para. 1478. 184 Criticised by Ambos, ZIS 5 (2010), 659 et seq. 185 Also Ambos, German Yearbook of International Law 53 (2012), 463, 490. 186 Safferling, Int. StrafR, § 6 paras 186 et seq.

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§ 14. Special Part of International Criminal Law

b) Trigger Mechanism. The Kampala Amendments on the crime of aggression 85 distinguish between the three regular mechanisms that may trigger the exercise of the ICC’s jurisdiction (see § 12 paras 12 et seqq.). Concerning Security Council referrals, there are no differences between the crime of aggression and the other core crimes (art. 15 ter of the Rome Statute). Additionally, art. 15 bis of the Rome Statute principally also recognises state referrals as well as proprio motu investigations initiated by the ICC Prosecutor. However, the latter two trigger mechanisms have to fulfil a higher standard than required for triggering the exercise of the Court’s jurisdiction regarding the other core crimes (cf art. 15 bis (4) – (8)). In the case of state referrals and proprio motu investigations, the Court’s exercise of jurisdiction depends either on the determination of an act of aggression by the Security Council, or – if there is no such determination within six months – a judicial authorisation. This authorisation – functioning as an “enhanced internal filter” – is not granted by the responsible Pre-Trial Chamber, as it is the case in the context of art. 15 of the Rome Statute – but by the whole Pre-Trial Division according to art. 39 of the Rome Statute, which consists of a minimum of 6 judges. It is quite remarkable that state referrals and proprio motu investigations into crimes of aggression are not always made dependent on the UN Security Council’s determination of an act of aggression (according to art. 15 bis of the Rome Statute). Generally, this is to be considered a tremendous success for guaranteeing the independence and objectivity of the ICC.187 However, according to art. 15 bis (6) and (7) of the Rome Statute the Security Council has still some influence on the ICC’s activity, which should not be underestimated: “(6) Where the Prosecutor concludes that there is a reasonable basis to proceed with an investigation in respect of a crime of aggression, he or she shall first ascertain whether the Security Council has made a determination of an act of aggression committed by the State concerned. The Prosecutor shall notify the Secretary-General of the United Nations of the situation before the Court, including any relevant information and documents. (7) Where the Security Council has made such a determination, the Prosecutor may proceed with the investigation in respect of a crime of aggression.” Thus, the Prosecutor has to take into account a (potential) Security Council resolution at the initial stage of investigation. At this point the Security Council may only cause a delay of six months if – after notification of the Prosecutor – no such determination is made by the Security Council. Thereafter, the Prosecutor may proceed with the investigation, given that the Pre-Trial Division has authorised the investigations in respect of a crime of aggression in accordance with the procedure contained in article 15188. Moreover, art. 15 bis (8) explicitly refers to art. 16 of the Rome Statute, which recognises the Security Council’s power to defer a situation by adopting a resolution acting under Chapter VII of the UN Charter. Taking into account severe sovereignty concerns of Non-Member States, art. 15 bis (5) limits the ICC’s exercise of jurisdiction in context of the crime of aggression. Restricting the scope of art. 12 (2) (a) and (b), the provision states that the ICC cannot exercise its jurisdiction if the perpetrator of the crime of aggression is a citizen of a NonMember State or if the crime in question was committed on the territory of a NonMember State. The power of the UN Security Council to extend the ICC’s limited 187

Politi, JICJ 10 (2012), 267, 287. Cf art. 15 bis (8) of the Rome Statute: “Where no such determination is made within six months after the date of notification, the Prosecutor may proceed with the investigation in respect of a crime of aggression, provided that the Pre-Trial Division has authorized the commencement of the investigation in respect of a crime of aggression in accordance with the procedure contained in article 15 and the Security Council has not decided otherwise in accordance with article 16.” 188

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D. International Criminal Law

(exercise of) jurisdiction by referring a situations to the Court acting under Chapter VII of the UN Charter nevertheless remains intact.189 Moreover, the States Parties themselves also have a possibility to avoid the jurisdiction of the ICC regarding the crime of aggression. Art. 15 bis (4) contains an “opt-outclause”, enabling the Member States to (abstractly) object to the jurisdiction of the Court before investigations are initiated.190 This right may seem surprising at first sight; however, the inclusion of such an opt-out clause seemed vitally necessary to find an agreement at the Kampala Conference.191 Due to the multiple different provisions, which contain exceptions and re-exceptions for the (exercise) of jurisdiction in the context of the crime of aggression, it will be rather difficult to predict, whether the ICC will be involved in a particular case.192 86

c) Coming into Force. Although a consensus could be reached at the Kampala Conference, the amendments will not come into force without some extra (political) steps to be taken. Firstly, the Court’s potential exercise of jurisdiction needs to be confirmed by a two thirds majority of the Assembly of States Parties; a decision which could not be taken before 2nd January 2017 (art. 15 bis and ter (3) of the Rome Statute). Secondly art. 15 bis (2) and ter (2) of the Rome Statute limits the exercise of jurisdiction of the ICC temporally to crimes of aggression committed one year after the submission of the 30th ratification document.193 With the State of Palestine ratifying the Kampala Amendments on the crime of aggression, the necessary quorum was reached on 26th June 2016.194

87

d) Conclusion. Regarding the difficult negotiations at Rome and Kampala, it has to be regarded as a considerable success that the States Parties were able to positively agree on a definition of the crime of aggression.195 Moreover, the provisions establishing the applicable trigger mechanisms also contain a well-balanced compromise solving the conflict between the Security Council’s central position in maintaining peace and justice on the one hand and the independence and objectivity of the ICC on the other hand.196 However, the enacted provisions also show essential weaknesses: Firstly, the wording of the elements of the criminal offence is rather vague, which gives reason for the provisions compatibility with the legality principle. In any case, the ICC will have to put a considerable amount of deliberate work into further developing and concretising the legal provision governing the crime of aggression.197 Simultaneously, the elements of the criminal offence are quite narrow, being limited to acts of states; the issue of nongovernmental use of force, e. g. terrorist attacks, remains uncovered.198 Additionally, the 189

Kreß/von Holtzendorff, JICJ 8 (2010), 211. Regarding the legal nature of the “opt-out-clause”, see Schmalenbach, JZ 2010, 750. 191 Marschner/Olma, ZIS 5 (2010), 534. 192 Regarding the different thinkable constellations Stahn, LJIL 23 (2010), 878 et seq. 193 According to this interpretation, jurisdiction could theoretically also have been established for crimes which occurred before 2nd January 2017. This contradicts the interpretation agreement laid down in Assembly of States Parties Resolution, Review Conference, The Crime of Aggression, RC/Res. 6, 11th June 2010, Annex III, according to which the ICC may exercise its jurisdiction only on such crimes of aggression, which were either committed one year after the submission of the ratification document or after the activation decision, whereas the later of both times would be decisive. It is unpredictable how this contradiction will be handled since it depends on when the particular events (activation decision, submission of the 30th ratification document, crime of aggression) take place. See Schmalenbach, JZ 2010, 752; A. Zimmermann, AJIL Unbound 109 (2015), 240, 241 et seq. 194 See http://crimeofaggression.info/the-role-of-states/status-of-ratification-and-implementation/ (information as of 23rd September 2016; last visited July 2017). 195 See also Schmalenbach, JZ 2010, 745; Barriga, ZIS 5 (2010), 647 et seq. 196 Cf Werle/Jeßberger, Principles of International Criminal Law, para. 1481. 197 Politi, JICJ 10 (2012), 267, 283 et seq. 198 In detail, see Ambos, ZIS 5 (2010), 658. 190

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§ 14. Special Part of International Criminal Law

concrete effects of the “opt-out-clause” are not predictable,199 as it is still unforeseeable if political pressure among the international community of states and particularly members of the Assembly of States Parties will be sufficient to prevent states from the widespread use of this clause. Although one of the major barriers for the Amendments to come into force has already been taken by their 30th ratification, the Assembly of States Parties still needs to confirm the exercise of jurisdiction by a two-third majority. The outcome of this political decision will determine, if the crime of aggression will finally become an essential part in the law and practice of international criminal justice. 199

Criticising the reach of the compromise in general Scheffer, LJIL 23 (2010), 903 et seq.

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Annex Situations and Cases at the International Criminal Court

Situation

Formal investigations triggered pursuant to art. 13 lit. a, 14 * (“Self-referral”) Crimes since 1st July 2002

Formal investigations triggered pursuant to art. 13 lit. a, 14 (“Self-referral”) Crimes since 1st July 2002

Background

Defendants

Civil war especially in northern regions (notably the “LRA-conflict” since 1987) Conflicts involving the insurgent group “Lord’s Resistance Army” (LRA) founded in 1987 and lead by Joseph Kony and government forces of President Yoweri Museveni. Encroachments on civilians especially on behalf of the LRA. LRA-Conflict still persists. The conflict has however shifted to neighbouring countries following a ceasefire agreement in 2008. ICC investigations since 29th July 2004 concerning crimes against humanity (art. 7) and war crimes (art. 8).

Dominic Ongwen Arrest warrant (2005); surrendered to the Court (2015); trial commenced on 6th December 2016, proceedings ongoing Joseph Kony Arrest warrant (2005); fugitive Vincent Otti Arrest warrant (2005); fugitive Okot Odhiambo Arrest warrant (2005); deceased (2013) proceedings discontinued Raska Lukwiya Arrest warrant (2005); deceased (2006); proceedings discontinued

Second Congo War (1998– 2003) Conflict between the Congolese government administered by President Joseph Kabila (received notable military support by Angola, Namibia and Zimbabwe) and numerous rivalling rebel groups (supported by Ruanda, Uganda and Burundi). “Ituri-Conflict” in the context of the second Congo war Conflict between the hostile ethnic groups of the Hema and the Lendu; especially involving the Hema-militia “Union des Patriotes Congolais” (UPC) lead by Thomas Lubanga Dyilo. Official cessation of the second Congo war following the signing of the peace agreement of Pretoria by Kabila (Democratic Republic of the Congo) and Paul Kagame (Ruanda) on 30th July 2002. However, ongoing conflicts in eastern regions of the country. ICC investigations since 23rd June 2004 concerning crimes against humanity (art. 7) and war crimes (art. 8).

Thomas Lubanga Dyilo Arrest warrant (2006); surrendered to the Court (2006); trial commenced on 26th January 2009; convicted on 14th March 2012 for having committed as a co-perpetrator [art. 25 (3) (a)] the war crime of conscripting and enlisting children under the age of 15 into armed forces [art. 8 (2) (e) (vii)]; sentenced to 14 years of imprisonment (2012); trial judgment confirmed by Appeals Chamber (2014) Germain Katanga Arrest warrant (2007); surrendered to the Court (2007); trial commenced on 24th November 2009; convicted on 7th March 2014 for having contributed [art. 25 (3) (d)] to the commission of the crimes of murder as a crime against humanity [art. 7 (1) (a)] and as a war crime [art. 8 (2) (c) (i)] as well as attacks against the civilian population [art. 8 (2) (e) (i)], destruction of enemy property [art. 8 (2) (e) (xii)] and pillaging [art. 8 (2) (e) (v)] as war

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Annex Situation

Background

Defendants crimes; sentenced to 12 years of imprisonment (2015); trial judgment final after the withdrawal of the appeal by both Prosecution and Defence (2014) Bosco Ntaganda Arrest warrants (2008; 2012); voluntary appearance before the Court (2013); trial commenced on 2nd September 2015; proceedings ongoing Callixte Mbarushimana Arrest warrant (2010); surrendered to the Court (2011); charges dismissed (2011); released from custody (2011) Mathieu Ngudjolo Chui Arrest warrant (2008); surrendered to the Court (2008); trial commenced on 24th November 2009; acquitted and released from custody on 18th December 2012; acquittal confirmed by Appeals Chamber (2015) Sylvestre Mudacumura Arrest warrant (2012); fugitive

Formal investigations triggered pursuant to art. 13 lit. a, 14 (“Self-referral”) Crimes since 1st July 2002

328

Attempted coup d’e´tat against President Patasse´ and ensuing conflict (especially October 2002 – March 2003) Conflict between government forces and insurgent groups brought about by attempted overthrow of President AngeFe´lix Patasse´. Fight against insurgent forces lead by Jean-Pierre Bemba Gombo’s rebel group “Mouvement de Libe´ration du Congo” (MLC) and Libyan troops and supported by President Patasse´; encroachments of civilian population, most notably by Bemba’s MLC-militias as a result. Conflict came to an end following the overthrow of President Patasse´ in March 2003 and the victory of François Bozize´ in the May 2005 presidential elections. ICC investigations since 22nd May 2007 concerning crimes against humanity (art. 7), war crimes (art. 8) and offences against the administration of justice (art. 70).

Jean-Pierre Bemba Gombo Arrest warrant (2008); surrendered to the Court (2008); trials commenced in the “Bemba” case on 22nd November 2010; convicted on 21st March 2016 as a person acting as a military commander [art. 28 (a)] for the crimes of murder as a crime against humanity [art. 7 (1) (a)] and as a war crime [art. 8 (2) (c) (i)], rape as a crime against humanity [art. 7 (1) (g)] and as a war crime [art. 8 (2) (e) (vi)] as well as pillaging [art. 8 (2) (e) (v)] as a war crime; sentenced to 18 years of imprisonment (2016); appeals judgment pending; trials commenced in the “Bemba et al.” case on 29th September 2015; convicted on 19th October 2016 for having committed as a co-perpetrator [art. 25 (3) (a)] crimes against the administration of justice [art. 70 (1) (b), (c)] and having solicited [art. 25 (3) (b)] the commission of crimes against the administration of justice

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Annex Situation

Background

Defendants

Partition of the situation “Central African Republic I” into the “Bemba” case (crimes against humanity and war crimes) and the “Bemba et al.” case (offences against the administration of justice committed in the “Bemba” case).

[art. 70 (1) (a)]; sentenced to one additional year of imprisonment and a fine of 300,000 Euros (2017); appeals judgment pending Aime´ Kilolo Musamba Arrest warrant (2013); surrendered to the Court (2013); trials commenced in the “Bemba et al.” case on 29th September 2015; convicted on 19th October 2016 for having committed as a co-perpetrator [art. 25 (3) (a)] crimes against the administration of justice [art. 70 (1) (b), (c)] and having induced [art. 25 (3) (b)] the commission of crimes against the administration of justice [art. 70 (1) (a)]; sentenced to two years and six months of imprisonment and a fine of 30,000 Euros (2017); appeals judgment pending Jean-Jacques Mangenda Kabongo Arrest warrant (2013); surrendered to the Court (2013); trials commenced in the “Bemba et al.” case on 29th September 2015; convicted on 19th October 2016 for having committed as a co-perpetrator [art. 25 (3) (a)] crimes against the administration of justice [art. 70 (1) (b), (c)] and having aided and abetted [art. 25 (3) (c)] in the commission of crimes against the administration of justice [art. 70 (1) (a)]; sentenced to two years of imprisonment (2017), appeals judgment pending Fide`le Babala Wandu Arrest warrant (2013); surrendered to the Court (2013); trials commenced in the “Bemba et al.” case on 29th September 2015; convicted on 19th October 2016 for having aided [art. 25 (3) (c)] in the commission of crimes against the administration of justice [art. 70 (1) (c)]; sentenced to six months of imprisonment (2017); appeals judgment pending

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Annex Situation

Background

Defendants Narcisse Arido Arrest warrant (2013); surrendered to the Court (2014); trials commenced in the “Bemba et al.” case on 29th September 2015; convicted on 19th October 2016 for having committed [art. 70 (1) (a)] crimes against the administration of justice [art. 70 (1) (c)]; sentenced to 11 months of imprisonment; appeals judgment pending

Formal investigations triggered pursuant to art. 13 lit. b (UN-Security Council Resolution 1593 [2005]) Crimes since 1st July 2002

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Darfur-Conflict (since 2003) Initial situation: Competition between sedentary African tribes and Arab nomads for resources in Darfur in western Sudan. Tensions escalated between rebel organisations founded in 2003 and the Sudanese government under President Omar Al Bashir; arming of the Arab tribal militia Janjaweed against rebel groups by the Sudanese government; brutal encroachments of the civilian population, especially by the Janjaweed-militia lead by Ali Kushayb, but also by other rebel groups. Conflict continues after signing of Darfur-peace treaty on 5th May 2006, however, situation has calmed down compared to 2003–2005. ICC investigations since 6th June 2005 concerning genocide (art. 6), crimes against humanity (art. 7) and war crimes (art. 8).

Bahar Idriss Abu Garda Summons and voluntary appearance before the Court (2009); charges rejected (2010); rejection of the charges confirmed by the Appeals Chamber (2010) Saleh Mohammed Jerbo Jamus Summons and voluntary appearance before the Court (2010); supposedly deceased (2013); trial discontinued (2013) Abdallah Banda Abakaer Nourain Summons and voluntary appearance before the Court (2010); arrest warrant (2014); fugitive Ahmad Muhammad Harun Arrest warrant (2007); fugitive Ali Muhammad Ali Abd-AlRahman (“Ali Kushayb”) Arrest warrant (2007); fugitive Omar Hassan Ahmad Al Bashir Arrest warrants (2009; 2010); fugitive Abdel Raheem Muhammad Hussein Arrest warrant (2012); fugitive

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Annex Situation

Formal investigations triggered pursuant to art. 13 lit. c, 15 (Proprio motu) Crimes committed between 1st June 2005 and 26th November 2009

Formal investigations triggered pursuant to art. 13 lit. b (UN-Security Council Resolution 1970 [2011]) Crimes since 15th February 2011

Background

Defendants

Unrest following the 2007 presidential election Unrest was triggered by internationally challenged declaration of victory by reigning President Mwai Kibaki on 27th December 2007 against earlier predictions that favoured opposition leader Raila Odinga. Protests started on 30th December 2007 and developed into a conflict between various ethnic groups; notably encroachments on Kibaki’s ethnic group, the Kikuya, in the south of the Rift Valley province. The situation was settled by both parties’ agreement to form a coalition on 28th February 2008. ICC investigations since 31st March 2010 concerning crimes against humanity (art. 7) and offences against the administration of justice (art. 70).

William Samoei Ruto Summons and voluntary appearance before the Court (2011); trial commenced on 10th September 2013; trial stayed due to lack of evidence (2016) Joshua Arap Sang Summons and voluntary appearance before the Court (2011); trial commenced on 10th September 2013; trial stayed due to lack of evidence (2016) Uhuru Muigai Kenyatta Summons and voluntary appearance before the Court (2011); charges withdrawn (2014); trial stayed (2015) Walter Osapiri Barasa Arrest warrant (2013); fugitive Paul Gicheru Arrest warrant (2015); fugitive Philip Kipkoech Bett Arrest warrant (2015); fugitive

Civil war in Libya/Libyan Revolution (2011) Conflict arisen from protests during the “Arab spring” involving Libyan troops under the command of Muammar Gaddafi and the “National Transitional Council” formed by the rebel forces; rebel forces received military support by NATO member states in order to ensure the protection of the civilian population. Civil war ceased after rebel forces captured the city of Sirte and the death of Gaddafi on 20th October 2011; the conflict between the “National Transitional Council” and other rebel groups however continued, leading to a second civil war starting in 2014 and continuing to this day. ICC investigations since 3rd March 2011 concerning crimes against humanity (art. 7).

Saif Al-Islam Gaddafi Arrest warrant (2011); appeal of the legitimacy of the proceedings in accordance with art. 19 (2) (b) by the Libyan government (2012); appeal rejected (2013); rejection of the appeal confirmed by the Appeals Chamber (2014); fugitive Muammar Mohammed Abu Minyar Gaddafi Arrest warrant (2011); deceased (2011); proceedings discontinued (2011) Abdullah Al-Senussi Arrest warrant (2011); appeal of the admissibility of the proceedings in accordance with art. 19 (2) lit. b by the Libyan government (2013); proceedings found to be inadmissible pursuant to art. 17 (1) (a) (2013); declaration of inadmissibility confirmed by the Appeals Chamber (2014); proceedings discontinued (2014) Al-Tuhamy Mohamed Khaled Arrest warrant (2013); fugitive

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Annex Situation

Formal investigations triggered pursuant to art. 13 lit. c, 15 (Proprio motu) Crimes since 28th November 2010; extended to crimes committed since 19th September 2002

Formal investigations triggered pursuant to art. 13 lit. a, 14 (“Self-referral”) Crimes since 1st January 2012

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Background

Defendants

Ivorian Civil War (2002– 2007) Conflict between the rebel-controlled north, which is home to a large immigrant population, and the government-controlled south following a military uprising on 19th September 2002. Conflict ceased on 30th July 2007 following a declaration by provisional President Laurent Gbagbo and rebel leader Guillaume Soro. Governmental crisis following the presidential elections in 2010 Forceful confrontation between the acting President Gbagbo from the south and opposition leader Alassane Ouattara from the north. Both claimed to have won the run-off election on 28th November 2010. Supported by UN and French forces, the crisis was concluded with the arrest of Gbagbo on 11th April 2011 following heavy fighting in Abidjan. ICC investigations since 3rd October 2011 concerning crimes against humanity (art. 7).

Laurent Gbagbo Arrest warrant (2011); surrendered to the Court (2011); trial commenced on 28th January 2016; proceedings ongoing Charles Ble´ Goude´ Arrest warrant (2013); surrendered to the Court (2014); trial commenced on 28th January 2016; proceedings ongoing Simone Gbagbo Arrest warrant (2012); appeal of the admissibility of the proceedings in accordance with art. 19 (2) (b) by the government of Coˆte d’Ivoire (2013); appeal rejected (2014); appeal proceedings concerning the rejection pending

Conflict in Northern Mali (since 2012) The situation is made up of various smaller conflicts; Tuareg rebellion leading to declaration of independence of Azawad in northern Mali by the “Mouvement National pour la Libe´ration de l’Azawad” (MNLA); coup d’e´tat against President Amadou Toure´; conflict between MNLA and various Islamist groups (notably “Ansar Dine”) following forced application of sharia law in Azawad; actions taken by Dioncounda Traore´’s provisional government (with the support of French and Chadic troops) against Islamist groups in the south of the country. Peace treaty of Ouagadougou between the provisional government and MNLA and holding of elections in the summer

Ahmad Al Faqi Al Mahdi Arrest warrant (2015); surrendered to the Court (2015); trial commenced on 22nd August 2016; following an admission of guilt convicted and sentenced to 9 years of imprisonment on 27th September 2016 for having committed as a coperpetrator [art. 25 (3) (a)] the war crime of attacking protected objects [art. 8 (2) (e) (iv)]

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Annex Situation

Background

Defendants

of 2013, however, the conflicts persist. ICC investigations since 16th January 2013 concerning war crimes (art. 8).

Formal investigations triggered pursuant to art. 13 lit. a, 14 (“Self-referral”) Crimes since 1st August 2012

Formal investigations triggered pursuant to art. 13 lit. c, 15 (Proprio motu) Crimes between 1st July 2008 and 10th October 2008

Inter-religious conflict in the Central African Republic (since 2012) Initial situation: Longstanding tensions between sedentary Christian farmers and Arabic nomads. After the overthrow of President François Bozize´ in August 2012 by the Muslim rebel group “Se´le´ka”, a conflict between the “Se´le´ka” and the Christian counter-rebel group “Anti-Balaka” has arisen. Conflict persists even after the Muslim provisional President Michel Djotodia stepped down and the election of Catherine Samba-Panza as new provisional President in January 2014. ICC investigations since 24th September 2014 concerning crimes against humanity (art. 7) and war crimes (art. 8).

No specific case has been formally opened.

Russo-Georgian War (2008) International armed conflict on Georgian territory involving Georgia and the Russianbacked, internationally not recognised, but de-facto autonomous republics of South-Ossetia and Abkhazia; the longstanding conflict escalated in August 2008 following open combat operations involving the Georgian army and SouthOssetian militias since July 2008. Military activity ceased after the signing of the so-called six-point-plan by Georgia, South-Ossetia, Abkhazia and Russia between 14th and 16th of August 2008; mediated by the President of the European Council. ICC investigations since 27th January 2016 concerning crimes against humanity (art. 7) and war crimes (art. 8).

No specific case has been formally opened.

* All referenced norms are provisions of the Rome Statue.

graphics: www.icc-cpi.int

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Index A Abandonment (of the criminal attempt) – in international criminal law 13 71 Accessoryship – in international criminal law 13 51, 58, 60 et seq. Actio libera in causa – in international criminal law 13 44 Admissibility of evidence 8 22 et seqq., 92, 9 34, 71 et seq., 11 8, 12 44 Admissibility of extradition 8 37 Aggression 14 76 et seqq. – in the ICC-Statute 14 80 et seqq. – under customary international law 14 77 et seq. Agreements in criminal proceedings, 9 91 Allied Control Council Law No. 10 11 10, 14 29 Annex competence 6 29, 7 31, 38 et seqq., 54 Apartheid 14 30, 50 Armed conflict 14 58 et seqq. – international 14 59 et seqq., 67 et seqq. – non-international 14 59 et seqq., 74 et seqq. – objective requirements 14 61 et seqq. – subjective requirements 14 65 Arrest warrant, European see: European arrest warrant Assistance – in international criminal law 13 58, 62 et seqq. Assistance in the enforcement of decisions – in the law of mutual legal assistance 2 5 – regarding enforcement of penalties in the EU 8 55 et seqq. Attempt – in international criminal law 13 68 et seqq. “Auschwitz Lie” 7 7 Availability of information in the EU – principle of ~ 8 86 et seqq. B Betting see: gambling and betting C Charter of Fundamental Rights (CFR) of the European Union 3 6, 5 10 et seqq., 7 55, 75, 8 64 et seq., 9 15 et seq. – based on case law 5 10 – Justice 5 11 – Catalogue of general fundamental rights 5 13 – Importance to the EU legislator 5 18 – Ne bis in idem 10 56 net seq. Chapeau 14 33 et seqq. Children 14 72 – within the elements of international criminal offences 14 24 – transfer of ~ 14 23

Child Soldiers 14 72 Civilian population – attack directed against civilian population 14 34 Civil law 4 12 et seq., 15 et seq., 18 et seqq., 23 et seq., 28 et seq., 32 et seqq., 12 39, 42, 45, 13 17, 22, 25, 31, 38, 43 Cold War 11 15 et seqq. Commander, see: Superior responsibility Common foreign and security policy (CFSP) 5 6 Common law 4 12, 15 et seq., 21, 25, 27, 38 et seq., 42, 9 84, 11 8, 27, 39, 42, 44 et seq., 13 17 et seq., 22, 25, 36 Compensation of an ECHR-violation 9 22, 39, 56, 66, 75, 77 Competence – ~ of the EU for approximation of national criminal law 5 8, 7 31 et seqq. – European ~ provisions for adopting criminal law provisions 5 8, 6 18 et seqq. – flexibility clause 6 19 Competence for approximation/harmonisation 7 31 et seqq. Competence structure – dynamic 7 2 – static 7 3 Competence to prosecute 3 2 Competition law 6 2 Complementarity – model of ~ 8 24 (see also: Principle of complementarity) Completion strategy 11 19 Composite supranational criminal offence 6 12 et seqq. Comprehensive clause 7 106 Conferral of competences 6 18(see also: Principle of distribution of competences) Conflict between European law and domestic/national law – actual ~ 7 78, 79 et seqq., 83 et seqq. – apparent (virtual) ~ 7 78, 86 Conflicts of jurisdiction 8 13, 62 Conspiracy 13 63 Constitution of Europe 5 7 Consumer concept, European 7 104 Contextual element(s) 13 20, 26, 28, 14 33, 39, 58, 61 – of crimes against humanity 14 33, 34, 39 et seq. Convention Implementing the Schengen Agreement 3 6, 8 63 et seqq. Coordination of national jurisdictions 3 9 Co-perpetration – in international criminal law 13 54 et seqq. Core crimes 10 3, 12 8 et seq., 19, 26

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Index Corpus Juris – for the protection of the financial interests of the EU 6 33 et seqq., 38, 8 21 Corruption, fight against 7 33, 8 5, 18 Council of Europe 9 2 et seq. – Organs 9 3 et seq. – role in criminal law 9 6 Country of origin principle 4 10 Crime – organised ~ 7 33 et seq., 8 5 Crimes against humanity 10 3 et seq., 14 25 et seqq. – history 14 26 et seqq. – individual acts 14 41 et seqq. – protected interests 14 32 – structure 14 33 Criminal blanket laws 7 56 et seqq. Criminal charge 6 5, 9 59 Criminal jurisdiction 2 4 et seqq. Criminal law – applicable ~ 3 3 et seqq. – blanket ~ 7 60 et seqq. – European ~ 2 3, 6 9 – exceptional position of ~ 7 7 et seqq. – interlocal ~ 2 4 – supranational ~ 2 3, 6 10 et seqq., 18 et seqq. – transnational ~ 3 3, 4 1 et seqq., 8 62 Criminal policy – European ~ 7 34, 54 et seq., 8 89, 101 – of the Member States 7 9 Criminal procedural law 5 3, 8 1 et seqq., 101 Criminal prosecution – cross-border 6 38, 8 1 et seqq. – multiple 3 6 et seqq. (see also: double jeopardy) Cross-reference(es) 7 70 et seq. Customary law 2 4 Customary international law 4 36, 38, 9 12, 19, 10 5 et seq., 12, 11 25 et seq., 30, 12 26 et seqq., 31, 13 2, 4 et seqq., 9, 13, 15, 20 et seq., 27, 47, 55, 68, 14 1, 5, 14, 29, 31, 70, 77, 82 – direct application of ~ 12 27 – dynamic references to ~ 12 28 D Death penalty, compatibility with the ECHR 9 30 et seq., 47 Decisions rendered in absentia, mutual recognition in the EU 5 22, 8 96 Defence Community, European 6 21 Defences in international criminal law 13 17 et seq., 29 et seqq. Definition of waste – ~ in European law 7 105 Deportation or forcible transfer of population 14 44 Direct enforcement model 10 9, 12 26, 32 Directives 5 3 et seqq., 7 31 et seqq., 58 Disappearance, see: Enforced disappearance of persons Discretion 6 14 et seq., 7 12, 17, 81, 109 et seq., 8 37, 41 et seq., 47, 58, 9 61, 92, 12 18, 41, 50

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Discrimination – ~ against citizens (reverse discrimination) 7 84 – principle of non- ~ 7 2, 18, 21, 84, 8 39 Distribution of competences – between the EU and Member States 2 4, 6 18, 7 2 – in the Geman constitution regarding criminal law 7 3 – principle 4 4, 43 Domicile principle 4 16 Double criminality 4 15, 42, 8 37 et seqq., 44 et seqq., 53, 55, 58, 84 Double jeopardy/dual punishment 3 6 et seqq., 4 34 – prohibition/danger of ~ 3 6 et seqq., 4 34, 8 51 et seqq., 9 96 et seq. Duty of care 7 106 et seqq. Duty of loyalty – of the EU towards the Member States 7 9 – of the Member States towards the EU 6 15, 7 12, 26 et seqq., 89, 95 E East Timor Panels 11 31 ECJ – Statute 6 11 et seqq. E-Commerce-Directive 4 10 ECSC 6 21 EEC 6 21 Effet utile 7 38 et seqq., 63, 8 60, 13 10 EJN 8 12 Elements of Crimes (source of law) 13 3, 8, 12 Elements of criminal offences – conflicting with European law 7 13 et seqq., 79 – minimum harmonisation concerning ~ 7 43 Emergency brake 7 31, 40, 47 et seqq., 51 et seqq., 8 34, 100 – application to approximation competences outside art. 83 TFEU 7 51 et seqq. – application with respect to approximation of criminal procedure law 8 100 – fundamental aspects of the criminal justice system 7 47 et seqq., 52 – judicial review by the ECJ 7 48 – regarding harmonisation of criminal law 7 47 et seq. Emetic, use of – compatibility with the ECHR 9 41 et seqq. Enforced disappearance of persons 14 30, 49 Enforcement of international criminal law 10 7 et seqq., 12 26 et seqq., 14 56 Enforcement order, European 8 56 Enslavement 14 43 Environmental criminal law – influence of EU law on ~ 7 102, 105 Euratom 6 21 Euratom Treaty 6 16 Eurojust 8 2, 11 et seqq. – competences of ~ 8 14 – function of ~ 8 13, 17 – future of ~ 8 17 Eurojust-Gesetz (Eurojust Act Germany) 8 16

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Index Europa¨isches Haftbefehlgesetz (EuHbG, German Act on the European arrest warrant) 8 41 et seqq. European Anti-Fraud Office 8 18 et seqq. – competences 8 19 et seq. – task 8 18 European arrest warrant 8 37 et seqq. – catalogue offences 8 38 – freedom from extradition 8 42 – grounds for non-execution 8 40 – new German implementation act (EuHbG) 8 43 – unconstitutionality of the first German implementation act (EuHbG) 8 41 et seq. European Criminal Law 2 3, 5 1 et seqq. – future projects 6 32 et seqq. – in a broader sense 5 3, 6 5 et seqq., 9 1 – in a stricter sense 6 17 European Commission 6, 8 18 European Commission of Human Rights 9 99 European Committee on Crime Problems (CDPC) 96 European Convention on Human Rights (ECHR) 5 3, 9 1 et seq. – accession of the EU, 9 7a, 14 – compensation of a violation 9 23, 41, 66, 76, 86, 88 – diverging interpretations of the ECHR by the ECJ and the ECtHR, 9 18 – ECHR rights relevant for criminal law 9 27 et seq. – indirect effect (on individuals) 9 25, 33, 38 – interpretation of the ~ 9 20 – legal status in the Member States 9 9 et seq. – principle of minimum standard 9 10 – relevance for EU law 9 15 et seq. – scope of application 9 24 et seq. European Court of Human Rights (ECtHR) – as an organ of the ECHR 9 6, 115 et seq. – criminal sanction 6 5 – declaratory nature, 9 120 – effect of judgments in the Member States 9 121 et seq. – individual applications 9 117 – inter-state cases 9 119 – just satisfaction, award of 9 120 – limited standard of scrutiny, 9 22 – organisation 9 116 European Criminal Code 5 2 European Defence Community 6 21 European enforcement order 8 56 European evidence warrant 8 48 et seqq. European judicial network (EJN) 8 12 European law – ~ and application of domestic substantive criminal law 7 76 et seqq. – conflicts of legal consequences with ~ 7 17 et seqq., 83 et seqq. – elements of a criminal offence conflicting ~ 7 14 et seqq. – influence of ~ on domestic substantive criminal law 7 1 et seqq.

– influence on the interpretation of specific elements of national criminal provisions 7 102 et seq. – limits for the establishment of national criminal law by ~ 7 10 et seqq. – serving as lower limit for national criminal law 7 25 et seqq. – serving as upper limit for national criminal law 7 11 et seqq. – supremacy of ~ 7 63, 78 et seqq. European Public Prosecutor’s Office 5 18, 6 30, 38, 8 17, 21 et seqq., 92 – competence of the ~ 8 et seq. – criticism 8 24 et seq. – fair trial 8 25 – forum-shopping 8 25 – institutional dual nature 8 22 et seq. – proposal for a regulation 8 22 et seq. European supervision order 8 46 Europeanisation – of law enforcement service 8 1 et seqq. – of national criminal law 2 3, 5 3 et seq., 7 1 et seqq., 57, 76, 89 et seq. Europol 8 3 et seqq. – automated system of information 8 7 – competence 8 5 – Convention 8 3 – ~ decision 8 3 – future of ~ 8 17 – immunity 8 10 – joint supervisory body 8 9 – legal issues in connection with ~ 8 8 et seqq. – Legal protection 8 10 – main organs of ~ 8 4 – operative compentences 8 10 – tasks of ~ 8 6 Europol Liaison Officers 8 6 Evidence warrant, European 8 48 et seqq. Extermination 14 42 Extradition 2 5, 4 15, 17 et seq., 21, 28, 36, 42, 8 26, 28 et seqq., 37 et seqq., 40 et seqq., 47, 95, 9 6, 45, 49b, 102, 11 3 Extraordinary Chambers in the Courts of Cambodia 11 31 F Fair trial, right to a – art. 6 (1) and (5) ECHR 9 67 et seq. – adversarial proceedings, right to 9 85 – agent provocateur 9 90 – criminal charge (notion) 9 69 et seq. – excessive length of a proceeding 9 74 – equality of arms 9 80 – fair hearing, right to 9 83 – overall examination of the case 9 79 et seq. – principle of public trial 9 73 – requirements concerning criminal proceedings 9 71 et seq. – right of access to courts 9 72 Finality – of judgments of the ICC 12 47 Fines 6 2, 6

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Index Flag principle 4 3, 11, 13 Foreign law, application of ~ by national judges 3 5 Forfeiture of a deposit 6 3 Framework decision 5 6, 7 33, 39, 111, 8 28 et seqq. Fraud – combating by the EU 6 25, 31, 7 30, 50, 8 2, 18 et seqq. – interpretation of § 263 StGB in the light of EU law 7 104 Freedom of establishment 7 21 et seqq., 80 Freedom of movement 8 71, 83 – limitation of ~ 7 5 Freedom to provide and receive services 7 22 et seqq., 80 et seqq. Free movement of goods 7 2, 16, 80, 104 Forum-shopping 3 7a, 8 25 Fundamental freedoms 7 18, 20 et seqq., 80 et seq. G Gambling and betting 7 81 et seq. GDR 2 4 General part – Corpus Juris 6 35 – European offences (“Europa-Delikte”) 6 37 – for the sanctions of the EU 6 7 – harmonisation of the ~ of national criminal law 7 44 – of European criminal law (in a broader sense) 6 27 – of international criminal law 13 Geneva Convention(s) 11 2, 13 5, 20, 64, 14 54 et seqq., 59, 67 et seqq., 74 et seq. Genocide 10 3 et seq., 8, 12 16, 14 2 et seqq. – general material elements 14 10 et seqq. – general mental elements 14 15 et seqq. – genocidal acts 14 18 et seqq. – history 14 3 et seqq. – in comparison to crimes against humanity 14 27 – protected interests 14 7 – structure 14 8 et seq. – term 14 4 Genocide Convention 10 3, 11 15, 26, 13 5, 51, 14 5 et seq., 9, 29 et seq. Genuine link 4 2, 9, 17, 23, 26, 30, 40, 12 9 Grave breaches (of the Geneva Conventions) 14 55 et seq., 59, 67 et seqq. Greek maize scandal 7 28 Green Paper – on criminal law protection of the financial interests of the Community and the establishment of a European Prosecutor 6 38, 8 21 Grounds for excluding criminal responsibility 13 19 et seqq., 44 – unwritten 13 49 Group – within the meaning of the offence of genocide 14 10 et seqq.

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Group crime – assistance in a ~ 13 63 H Harmonisation of laws – combating fraud 7 50 – competence for ~ 7 34 et seqq., 38 et seqq., 8 90 et seqq. – criminal proceedings 8 90 et seqq. – extension clause 7 35 – evidence 8 92 – rights of individuals 8 93 et seqq. – suspects 8 93 et seq. – victim 8 98 – witness 8 97 Holocaust 11 5, 14 3, 27 Hors de combat 14 36, 54 Hybrid Courts 11 31 I ICC 10 3 et seq., 9, 12 – criticism 12 50 – function 12 5 – judges 12 34 – jurisdiction 12 6 et seqq. – non-cooperation 12 49 – political dimension 12 48 et seqq. – procedure before the ~ 12 38 et seqq. – prosecutor 12 36 – registry 12 35 – sanctions 12 46 – withdrawal 12 51 ICC Statute,see: Rome Statute ICCPR 9 109, 14 51 ICTR 10 9, 11 29 et seq. ICTY 10 8 et seq., 11 18 et seqq. – composition 11 22 et seq. – criminal offences adjudicated upon by the ~ 11 25 et seq. – jurisdiction 11 20 et seq. – legitimacy 11 27 et seq. – sanctions 11 24 – statute 11 20 et seq., 13 4 Immigration, illegal 6 26 Immunity – in international criminal law 13 45 et seqq. Implementing Union law – art. 51 (1) 1 CFR 5 19 Imprisonment 6 9 – as a crime against humanity 14 45 – requirements of the ECHR 9 53 et seq. IMT 10 3, 9, 11 6 et seqq., 12 2, 22 – composition of the Tribunal 11 7 – criticism 11 11 – judgment 11 9 et seq. – jurisdiction 11 6 – procedural Law 11 8 IMTFE 10 9, 11 13 et seq., 12 2, 22 Indirect enforcement model 10 8, 12 26, 32 Individual applications to the ECtHR 9 117 Indirect perpetration – in international criminal law 13 59

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Index Inducement – in international criminal law 13 61 Integrationsverantwortungsgesetz (German act, IntVG) 7 35 Intent – in international criminal law 13 21 et seqq. International armed conflict, see: armed conflict, international International criminal law – development 11 1 et seqq. – general part 13 1 et seqq. – ~ in a broader sense 2 1 – implementation in national criminal law 12 26 et seq. – municipal ~ 2 2 – term/definition 2 1, 10 1 et seq. – sources of law 13 2 et seqq. – specific part 14 International criminal law offence – structure of the ~ 13 16 et seqq. International humanitarian law – two columns/axes of ~ 14 54 International treaties 10 5, 12 – in international criminal law in general 13 9 et seqq. Internet 4 9 et seq. – Deterritorialisation of law by ~ 4 9 Interpretation – criteria of ~ 7 89, 95 et seqq. – in conformity with the ECHR 9 14, 20 – in international law 13 9 et seqq. – in the light of the constitution ~ 7 88 – in the light of a directive ~ 7 89 – ~ in the light of European law in general 4 44, 6 15, 25, 7 76, 78, 82, 84, 87 et seqq. – ~ in the light of framework decisions 7 111 – limits of ~ in the light of European law 7 90 – principles of ~ of the European Law 7 63 – reference to European law 7 67 IRG 2 5, 8 41 et seqq. Ius cogens 14 5 J Joint criminal enterprise (JCE) 13 55 et seqq. Jurisdiction 63 K Kampala, conference of 10 3, 12 8, 14 60, 75, 82 et seqq. Knowledge – as a form of mens rea in international criminal law 13 22, 25 Kompetenz-Kompetenz 12 23 Kosovo 11 31, 14 76, 78 Kosovo Relocated Specialist Judicial Institution 11 31 L Law enforcement institutions within the EU 8 2 et seqq. Law of Geneva 14 54 et seqq., 59, 67 et seqq., 74 et seq.

Law of The Hague 14 54, 56 et seq., 71 Legal interests – of the EU 7 26 et seq., 95 et seqq. – of the international community 10 2 et seqq., 7 – protection of foreign ~ by national criminal provisions 3 10 et seqq. – public ~ 3 10 – purpose of protecting ~ 10 2 et seqq. Legal consequence (of a national provision) – ~ conflicting with European law 7 17 et seqq. – Minimum harmonisation concerning ~ 7 45 Leipzig War Crime Trials 11 4 Lex certa requirement 7 64 et seqq., 91, 12 27, 13 13 Lex mitior,see: Principle of lex mitior M Macro-delinquency 10 13, 50 2 Manifesto on European Criminal Policy 7 34, 54 et seq. Margin of discretion (of the Member States) 6 14 et seq., 7 12, 81 Meaningful link 4 2, 9, 16, 26, 39 Measures intended to prevent birth 14 22 Measures, administrative (as sanctions under EU law) 6 7 et seq. Mental incapacity – in international criminal law 13 44 Minimally invasive treatment of criminal law, Principle of 7 9, 27, 8, 90 Minimum harmonisation 7 34, 38, 42 et seq., 8 79 Minimum-maximum penalties 7 45 Mistake as to the existence of justifying circumstances – in international criminal law 13 43 Mistake as to the prohibition – in international criminal law 13 42 Mistakes – in international criminal law 13 40 et seqq. – ~ of fact (in international criminal law) 13 40 – ~ of law (in international criminal law) 13 41 Money laundering 5 6, 6 34, 7 33 Moynier, Gustave 11 2 et seq. Murder – as a crime against humanity 14 41 – as an element of the offence of genocide 14 19 Mutual legal assistance – Eurojust 8 11 et seqq. – law of ~ 2 5 Mutual recognition, principle of, see: Principle of mutual recognition N Nationality principle 4 15 et seqq., 12 9 Ne bis in idem – according to the ECHR 5 11, 9 108 et seq. – amnesties and pardons 8 84 – CFR 8 65 et seqq. – cumulative sanctions 8 71 – decision finally disposing of the trial 8 72, 77 – enforcement elements enshrined in art. 54 CISA 8 65 et seqq., 80 et seqq.

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Index – in Europe 8 59 et seqq. – interrelations with national rules on the spacial scope of criminal law 3 6, 8 62 – punitive effect of the initial decision 8 73 – ”the same acts” in art. 54 CISA 8 79 et seq. Necessity – in international criminal law 13 34 et seqq. Negligence 7 106 et seqq. Nemo tenetur se ipsum accusare, see: Self-incrimination Neutralising domestic law – European law ~ 7 77 et seqq., 110 et seq. Non-international armed conflict, see: armed conflict, non-international Non-retroactivity 7 74, 90 et seqq. – in international criminal law 13 13 – under the ECHR 9 94, 98 et seq. Nulla poena sine lege 9 94 et seq., 13 14 (see also: Principle of legality) Nullum crimen sine lege 8 45, 13 13, 49, 14 11 (see also: Principle of legality) Nuremberg Principles 11 15 Nuremberg trials, see: IMT O Office of the Prosecutor, see: ICC, Prosecutor Omission – in international criminal law 13 72 Order – as a form of inducement 13 61 – as a defence (act pursuant to a superior order) 13 39 Ordre public – clauses 7 80 – reservation 8 27 P Passive personality principle 4 26 et seqq. Penalty, in the ECHR 9 95 Perpetration and accessoryship – in international criminal law 13 50 et seqq. – joint criminal enterprise 13 55 et seqq. Persecution 14 48 PIF-Convention 7 33 PIF-Directive 7 41, 8 22 et seq. Police and Judical Cooperation in Criminal Matters 5 6 et seq., 7 31, 8 11 et seq., 24 Preliminary references 8 70 Presumption of innocence (in dubio pro reo) – art 6 (2) ECHR 9 92 – art. 47 (2) 2 und art. 48 (2) CFR 5 11 Primary norm 7 14 et seqq. Primary Law (EU) 5 4, 6 11, 7 10 et seqq., 8 66 Principle of assimilation 7 27 Principle of Coherence 7 55 Principle of definiteness, see: Lex certa requirement Principle of complementarity 12 14, 17 et seq., 20, 22, 24 et seqq., 31 et seq., 39, 47 et seq. – conflict between the ~ and national constitutional law 12 31

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Principle of distribution of competences 4 4, 43 (see also: Conferral of competences; Distribution of competences) Principle of guilt 7 55 Principle of legality 5 12, 7 55, 90 et seq., 8 45, 9 93 et seq., 10 5, 12 27 et seq., 30 et seq., 13 13, 14 11, 18, 22, 26, 51, 83 (see also: nullum crimen sine lege, nulla poena sine lege) Principle of lex mitior 4 19, 28, 42, 5 12, 7 72 et seqq., 86 Principle of minimally invasive treatment of criminal law 7 9, 27 Principle of mutual recognition – codification 8 32 – differentiation from approximation measures 8 53 et seq. – evidence 8 47 et seqq. – European evidence arrest warrant 8 50 et seqq. – European protection order 8 51 et seqq. – legislative acts 8 37 et seqq. – ordre public 8 27 et seqq. – Patchwork-Proceeding 8 47 (see also: waiverconcept) Principle of protection of European Union interests 4 4, 33, 44 Principle of subsidiarity 6 28, 31, 7 36 et seq., 55, 9 21, 41 Principles of law, general 10 5, 13 2, 6 Priority of application 5 23 Private international law 3 3 et seqq. Probation decisions, mutual recognition in the EU 8 49 Procedural bar/bar to proceedings 3 2, 12, 4 36, 8 93, 9 90, 13 17, 45 Professionals, criminal provisions directed specifically at ~ 7 65, 69 Prohibition on the use of force (in international relations) 14 77 Prohibition of analogy – in international criminal law 13 13 – in the ECHR 9 97 Prohibition of torture – art. 3 ECHR 9 35 et seq. – deportation and extradition 9 47 et seq. – indirect effect 9 38 – inhuman or degrading treatment or punishment (term/notion) 9 35 – limitations or exceptions, lack of 9 36 – threat of torture 9 40 et seq. – torture (term/notion) 9 35 Prohibition of torture – art. 4 CFR 5 13 Proportionality 7 18, 21, 55, 84, 8 60, 9 27, 32 et seq., 46, 72, 112, 13 32 – principle of ~ 5 12, 6 28, 31, 7 18, 21, 55, 84, 8 6 Proprio motu investigations 12 15, 25, 39, 49 et seq.

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Index Prosecutor (of the ICC) 12 13, 15 et seq., 24 et seq., 33 et seq., 36, 39 et seqq., 49 et seqq., 14 85 – independent investigations, see: Proprio motu investigations Protection of European Union interests, principle of 4 4, 44 Protection of privacy 8 8, 15 Protective principle (stricto sensu) 4 23 et seqq. Protocol on subsidiarity 6 28 Pru¨m Convention 8 87 Public lotteries 7 81 Public official 7 99 Purpose, legislative 7 90 R Recklessness 13 25, 27 et seq., 14 66 Recognition, principle of mutual, see: Principle of mutual recognition Reference 7 56 et seqq. – cross-~ 7 71 et seq. – dynamic ~ 7 68 et seq., 72, 74, 12 28 – explicit ~ 12 29 – interpretation of ~ 7 60 et seqq. – static ~ 7 68, 72 et seq. Regulations 5 4, 8, 7 59 Representation principle 4 4, 17 et seq., 34, 40 et seq. Requirement of a Legitimate Purpose 7 55 Residual Mechanism for the International Criminal Tribunals (MICT) 11 19 Respect for private and family life – in ECHR 9 103 et seqq., 118 Reverse discrimination 7 84 Review Conference 12 8, 14 80, 82 Right to a fair trial, see: fair trial, Right to a Right to appeal in criminal matters – art. 2 (1) Additional Protocol No. 7 9 107 Right of defence – art. 47 (2) 2 und art. 48 (2) CFR 5 11 Right to life – art. 2 ECHR 5 13, 9 29 et seq. – as a restriction to the right of self-defence 9 33 – death penalty 9 31 – euthanasia 9 30 – suicide 9 30 – unborn life 9 30 Right to liberty and security – art. 6 CFR 5 13 Right to physical and mental integrity – art. 3 CFR 5 13 Risk, permissible 7 106 Rome Conference 10 3 Rome Statute 12 2 et seqq., 13 1 et seqq., 8, 14 1 et seqq. – implementation techniques 12 29 – structure 12 4 Rules of interpretation – in EU law 7 61 et seqq. – of the ICC 13 9 et seqq. Rules of Procedure and Evidence 12 38, 13 3, 8

S Safety of toys – directive on ~ 7 108 Sanctions – administrative penalties 6 8 – effective, proportionate and dissuasive ~ 7 27 – financial ~ 6 3 – other financial ~ 6 3 Schengen Information System 8 86 Schengen-Protocol 8 69 Scope of protection – ~ of elements of an offence 3 10 et seqq. Secondary norm 7, 14, 58 Secondary law (notion) 5 4 Self-defence – as a defence in international criminal law 13 30 et seqq. – collective ~ 14 78 – limitations on ~ under art. 2 ECHR 9 33 et seq. – under the UN Charter 14 78 Self-incrimination, privilege against ~ 9 78 et seq. Self-referral 12 13 et seq., 50 Sentencing – consequences of European law for ~ 7 110 – influence of excessive length of a proceeding on ~ 9 76 – influence of provocation of criminal acts by police officers on ~ 9 90 Severity of sanction – ~ in conflict with European law 7 17 et seqq. Sexual violence 14 20, 30, 47, 72 – as a crime against humanity 14 47 Sham proceedings 12 18, 25 Situation (at the ICC) 12 13 Solicitation 13 61 Sources of law – hierarchy 13 8 – in international (criminal) law 13 2 et seqq. Sovereign equality of states 4 6, 13 45 Special Court for Sierra Leone 11 31 Special Tribunal for Lebanon 11 31 Sports betting 7 81 et seq. State Complaint – before the ECtHR, see: European Court of Human Rights, inter-state cases – before the ICC 12 13 et seq. State referral 12 13, 14 85 State responsibility under international law 10 10 et seq. Statute of limitation – in international criminal law 12 47, 13 48 Stockholm Programme 7 54, 8 95 Subjective elements of international criminal law offences 13 21 et seqq. Subjects of international law 10 1, 10 et seq. Subsequent Nuremberg Trials 11 10 Subsidies 6 4 Superior Responsibility – in the ICC-Statute 13 64 et seqq. Supervision order, European 8 46, 57 Supranationalsiation (transfer of competences on the supranational level) 7 32

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Index Supremacy of EU law 7 63, 76 et seqq., 86 T Territorial principle 4 6 et seqq., 12 9 Termination of the proceeding (without judgment) – ~ as an act finally disposing of the trial 8 70, 77 Terrorism 7 33 et seq. The Hague Convention respecting the Laws and Customs of War on Land 11 3, 13 5, 14 54 (see also: Law of The Hague) Theory of ubiquity, see: Ubiquity, theory of Torture – as crime against humanity 14 46 – under the ECHR, see: Prohibition of torture Trafficking in persons/human beings 5 6, 6 26, 7 33 et seq., 46, 50, 8 5, 98, 14 43 Transport policy, common ~ 6 19 Treaty Crimes 10 12 Treaty of Amsterdam 5 6, 6 22 et seq., 8 69 Treaty of Lisbon 5 7, 6 20 et seq., 24, 27, 32, 7 30 et seqq., 69, 8 11, 32, 36, 70, 9 15 et seq. – Breakthrough for European criminal law 6 27 – BVerfG-decision 7 7, 35 et seq., 38, 41, 49 Treaty of Maastricht 5 6, 8 3 Treaty of Nice 8 3, 96 Treaty of Versailles 11 3 Trigger mechanisms 12 12 et seq., 14 85, 87 Trust Fund for Victims 12 44 Type of sanction – ~ in conflict with European Law 7 17, 22 U Ubiquity, theroy of 4 7, 13 et seq.

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UCLAF 8 18 Ultima ratio 6 28, 7 37, 55, 8 90 UN Charter 11 18 et seq., 28 et seqq., 12 16, 14 77 et seq., 81, 85 UN Security Council 11 19, 27 et seqq., 12 2, 8, 16, 14 78, 81 et seq., 85, 87 UN Torture Convention 14 46 Unite´ de Coordination pour la Lutte Anti-Fraud 8 18 Universal Declaration of Human Rights 9 7, 14 51 Universality principle 4 30 et seqq., 12 9 V Victim – framework decision on legal protection and representation of ~s 8 98 – participation in the proceeding before the ICC 12 44 Violation of an oath, before the ECJ 6 11, 15 Vo¨lkerstrafgesetzbuch (VStGB, German Code of Crimes against International Law) 12 31 W Waiver-concept (of mutual recognition) 8 28 et seqq., 65, 85 War crimes 10 3 et seq., 8, 14 52 et seqq., 12 28 – categories 14 66 et seqq. – elements of the offence (structure) 14 58 et seqq. – history 14 53 et seqq. – protected interests 14 57 War Crimes Chamber in Bosnia-Herzegovina 11 31 War of aggression 14 77