The Importance of Core Principles of Substantive Criminal Law for a European Criminal Policy Respecting Fundamental Rights and the Rule of Law

Abstract

The article discusses the conditions on which a rule-of-law abiding criminal policy may be exercised on a European level. The analysis is premised on the understanding that criminal law fulfils a dual role: on the one hand, it protects fundamental interests; on the other, it constitutes a yardstick of civil liberties. Hence, the very identity of substantive criminal law cannot allow it to be reduced to a mere procedural mechanism coordinating various legal orders of EU member States. The main part of the presentation is dedicated to affirming this position by transposing fundamental principles of criminal law traced in domestic legal orders to a broader European environment. The principles examined in this light are: the requirement of a fundamental interest worthy of protection; the ultima ratio principle; the principle of legality; the requirement of law enacted by Parliament; the lex certa requirement; and the principle of guilt. Each one among these principles is applied with a view to restraining counter-crime policy in a manner that respects civil liberties. Accordingly, it is shown that respect for these principles would effectively associate the nascent 'European criminal law' with the constitutional traditions of EU Member States, thus ensuring its compliance with the rule of law.