Criminal Law Reform: Continental Europe

The process of European unification, which started after World War II and reached new dimensions after the end of the political partition of the continent in the 1990s, has extended to criminal law, though not as extensively as to private law.

The Council of Europe, of which almost all European states are members, has played an important role in setting common standards for criminal justice and in simplifying cooperation in transnational prosecutions. The most important European instrument in this area is the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), which has been signed and ratified by all member states of the Council of Europe. The Convention guarantees citizens a number of important basic rights, several pertaining specifically to the criminal process and—like the prohibition of torture and cruel punishment in art. 3 ECHR—to criminal sanctioning. The European Court of Human Rights in Strasbourg is the guardian of human rights under the Convention, and any citizen can, after exhausting the legal remedies of domestic law, bring a complaint against the state that has allegedly violated one of the rights guaranteed by the Convention. The decisions of the court have had considerable influence on the laws of the member states (Bengoetxea and Jung). The Council of Europe has also been the source of many recommendations on criminal policy and of several conventions on cooperation in the prosecution of offenders and the execution of sentences.

The European Union has until the end of the twentieth century not been given a clear competence for criminal legislation. The 1997 version of the European Community Treaty does provide for the Council to prescribe sanctions for violations of the Union's economic interests (EC treaty art. 280 sec. 4), but the application of penal law is left to the member states (see Deutscher). It is nevertheless obvious that the European Union is moving toward an assimilation and perhaps even unification of some parts of the criminal law, especially those relevant to economic and environmental issues central to the European unification movement. There exists a draft code for European economic criminal law (Delmas-Marty and Vervaele), and some authors have even suggested that a European Model Penal Code should be drafted to speed up the unification process (Sieber). Although it seems unlikely that a unitary European law might in the near future supersede national criminal codes, criminal law reform in Europe will probably be more and more a matter for continental rather than national policymaking.