Wednesday, November 14, 2018
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Laura Zuñiga

​International judicial cooperation: criminal sovereignty as the last bastion of the nation-state

Professor of Criminal Law University of Salamanca

Getting round national territory barriers by modern criminality (organized crime, international terrorism, cyber-crimes, corruption, crimes from State apparatuses, and so on) is an empirically verifiable fact that contradicts a Criminal Law anchored in standards more appropriate to the emergence of eighteenth-century national states, in which their legitimacy could be explained in terms of giving security to the public at large themselves against the "external enemies" and, therefore, each State had sovereignty to decide what to punish, how to punish and who to punish. The scope of the criminal law and the monopoly of lus puniendi (the state's right to punish criminal offenses) were thus explained as a corollary of a system of thought in which each State "looks inward", organizing and managing its own territory, with a view to the other State doing its own thing. Likewise, the countries presented themselves as closed fortresses, protected by the principle of non-interference.


Cibercrimen Ciberseguridad


As is typical in this era of modernity, these agreements have been collapsing due to the dynamics of the interdependence of States, the fluidity of the media, the mobility of economic and migratory flows, in a nutshell, for what we now call globalisation. The capacity of countries to deal with the different illicit trafficking of goods, people and services, in which supply and demand occur in different countries, with national instruments designed on nineteenth-century principles constructed through the prism of its own national country and its consequent monopoly of criminal law, becomes obsolete, outdated and strongly diminished, given that in reality it is a different paradigm, a different phenomenology of action of the current criminal organisations that, in many cases, hardly corresponds to traditional notions, because they use organization.


Additionally, the possibility that those who have violated laws take refuge in other countries to avoid being judged, is streamlined with existing collaboration networks, the ease with which people can move and take advantage of regulatory differences to circumvent the action of Justice.


The shopping forum, legal havens and tax havens are backwater islands for those crime professionals who are committed to breaking the rules to achieve substantial economic benefits, which is really their main motivation.


ORGANIZED CRIME GOES BEYOND COUNTRIES' SOVEREIGNTY


Now, these criminal behaviours are usually carried out in normalized contexts, under the appearance of business activities, with the use of instrumental societies, offshore companies, frontmen, false invoices, financial engineering, with the collaboration of specialized professionals such as lawyers, financial advisers, notaries, accountants, and so on, who provide advice on how to escape punishment for these behaviours. 


The different forms of organized crime (classic, corruption, business, international terrorism), usually finally transcend national barriers, either to launder their illicitly obtained profits, seek collaboration with other criminal networks or to circumvent the action of justice in their country of origin.


In this scenario of organized crime in fact prevail over the sovereignty of counties, how can they achieve effective criminal prosecution?


This is one of modern Criminal Policy's main challenges. Given that national states have transferred much of their sovereignty to international organisations (IMF, OECD, and so on) or supranational bodies, as is the case with the European Union, however the last bastion is precisely the national occurrence of crimes and penalties, as well as its police and judicial apparatuses to apply its criminal laws. This last redoubt is both its greatness and its misery. Its greatness, because the last vestiges of the nation-state still conserve the capacity to decide on the most consubstantial aspects of human beings, the limits of their personal behaviour, all in all, their essential freedoms delimited by the barrier of criminality. However, it is also their misery because they can only apply their laws within their own national territory, with few exceptions and, as we have seen, modern crime far surpasses the territorial flanks.


Undoubtedly, globalisation has led to the emergence of criminal networks, collaboration between different forms of organized crime, facilitating criminals' illegal activity and particularly, making it more feasible to take advantage of illicitly obtained profits. Thus, for example, the extradition that was the traditional instrument available to bring fugitive criminals to justice in their own countries, has become an obsolete and cumbersome tool, confronted with the rapidity with which these criminal networks move.


COLLABORATION MECHANISMS HAVE BEEN FOSTERED


International and regional international organisations, aware of of these weaknesses of individual countries, have been fostering more modern and effective collaboration mechanisms. On the part of the United Nations, the most significant milestone was the 2000 Convention against Transnational Organized Crime, known as the Palermo Convention, where the signatory countries are committed to harmonize minimum rules (mainly participation in organised crime) and favour international judicial and police cooperation.


In the European Union, we can argue that these aspects have been implemented faster. Since the 1992 Maastricht Treaty, when borders between countries were opened, the concern for security and public resources struggle against the different forms of organized crime was a significant objective in the process of European integration. It was logical that, within the public space, similar rules had to exist in terms of prosecution of crimes that might threaten state structures, to avoid legal havens. However, it is with the 1997 Treaty of Amsterdam that a further step was taken with the development of the third pillar of the Union, dedicated to police and judicial cooperation. 


With the advent of this last treaty, the EU is committed to progressively building an area of freedom, security and common justice - the European Judicial Area. 


In line with police and judicial cooperation, Europol was created in 1995 and the European arrest warrant was approved in 2002 with the Framework Decision 2002/584/JAI of the Council of 13th June 2002 on the European arrest warrant and delivery procedures between Member States, undoubtedly the most significant mechanism to deal with the prosecution of the most serious crimes that can be carried out within public resources space. This last instrument has a closed list of crimes (32 crimes, including terrorism, trafficking in human beings, corruption, participation in a criminal organization, counterfeiting of currency, homicide, racism and xenophobia, rape, trafficking in stolen vehicles and fraud, and so on), for which the handing over of the requested person is automatic, bypassing the traditional principle of double criminality on which extradition is based. In addition, the procedure is agile, prevailing over of governmental authority intervention, regulating the principle of mutual recognition of judicial decisions.


A few months ago, the implementation of the European Arrest Warrant (EAW) was compromised by its possible application to Carles Puigdemont, requisited by the Spanish authorities for the crimes of embezzlement and rebellion when he was in German territory. 


The issue was that the crime of rebellion is not on the list of crimes in the EAW, so the German judge rejected the handover for this crime, since the counterpart crime, that of high treason, depends on an element of the use of violence, with the judge requiring high standards of proof, disregarding the facts that were the object of the judicial request.


The question that this affaire open up is: Can a judge within the EU review the legal qualifications of another judge from the same common space if we understand that the principle of mutual recognition takes precedence?


APPLICATION IS NOT AUTOMATIC


In the case of prosecutable facts within the list of crimes of the ODE there is no doubt that the answer is no, since application is automatic. To this end, it was agreed that those crimes considered more serious, usually of a cross-border nature, merit reinforced judicial and police cooperation. In the case of crimes that are not in the Euro-list is different, since apparently, agreements are not so common. Here there are two positions: in any case to hand over the required subject to be the disposal of the judge in accordance with the principle of trust that takes precedence within the EU, or to assess whether there is correspondence with a crime of the country itself and accept or not the handover order.


Now, the case history of reality is so varied, the complexity of some cases opens up a range of possibilities anyway, given that in difficult cases, that is, in those cases that go beyond the core of criminality, the judge does not make an automatic application of the law but rather an interpretation, subject to a series of assessments, even those of a political nature, cannot be ruled out.


In the future and for greater legal security, is it possible to unify criteria to avoid judicial disagreements? Furthermore, is it possible to contemplate a common European legislation? Neither of the two possibilities can be undertaken, neither in the short nor medium term because the greater complexity with which the cases occur implies greater difficulties of interpretation. 


The criminological reality always surpasses penal laws, so the judge is usually presented with difficult cases, instances that are difficult to fit into criminal rules and regulations.


In addition, as indicated above, the development of criminal laws and their application by national judges is the last bastion left to the nation-state. We need to make progress in the harmonization of laws, in judicial and police cooperation, even strengthening them, something that is increasingly perceived, particularly with Interpol and Europol, but it is not possible to think of common criminal codes or common criteria of application, because in each country there are cultural rules and regulations, conceptions about the different juridical goods at stake, and not in vain we are dealing with the last redoubt of their liberties.

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