Criminal law and human rights - some examples from the emergence of European criminal law
Assessment of the influence of Enlightenment thinkers on the humanization of European law. The emergence of the doctrine of human rights in the criminal legislation of Russia. Determination of the criteria for the criminalization of acts and punishment.
| Рубрика | Государство и право |
| Вид | статья |
| Язык | английский |
| Дата добавления | 15.07.2021 |
| Размер файла | 37,5 K |
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Simultaneously, a deportation order was adopted by the Prefect of Val-de-Marne and served on Mr. Achughbabian. Police custody was permitted only for 48 hours so that the authorities applied to the juge des libertes et de la detention of the Tribunal de grande instancede Creteilfor anex- tension of the detention period beyond 48 hours. Mr. Achughbababian appealed and the Courd' appel de Paris decided to stay the proceedings and ask the CJEU for a preliminary ruling.
The case is different from El Dridi because the criminal sanction was threatened prima facie for past behaviour, i.e. the illegal stay in the country, and unrelated to the return procedure started simultaneously. However, the Court insisted that in order to give the return decision based on Article 8 (1) Return Directive practical meaning the Member state is under an obligation to take all measures necessary to carry out the removal. Holding the third-country resident criminally liable for his stay and sanctioning him with one year of imprisonment would manifestly frustrate the goal of the Return Directive. Therefore, the relevant provision of the French Law on Foreigners and Asylum had to be disapplied.
A final case that extended the El Dridi rationale concerned the issue of illegal entry. In Selina Affum v Prefet du Pas-de-Calais, Procureur general de la courd'appel de Douai, a Grand Chamber judgement of the CJEU of 7 June 2016 Case C-47/15 : Judgment of the court (Grand Chamber) of 7 June 2016 // InfoCuria. Case-law. URL: http://curia.europa.eu/juris/document/document. jsf?docid=179662&doclang=EN., the Court affirmed there is no principled difference between a criminal sanction provided for illegal stay, as in the case of Achughbabian, and illegal entry. In both cases, the speedy removal of the third-country national must not be frustrated by a criminal sanction, imposing imprisonment.
Conclusion. Reminiscent of its earlier effet utile jurisprudence in cases concerning the common market, the CJEU has again taken the lead to promote a common EU policy against “protectionist” aspirations of EU Member states. But unlike the earlier free flow of goods, services, capital etc., this new “free flow of returnees” is not so much motivated by human rights concerns, but by the attempt to reign in the punitive instincts of Member states. It is therefore technically a victory for human rights law over excessive criminalization, but in practice this policy is hardly interested in promoting the human rights of those sent back to their home countries.
The CJEU, in pre-empting criticism from Member states, has always been careful to point out that it is not depriving Member states of their power to enact criminal law per se. Its reassuring mantra is that the Return Directive “[...] does not exclude the right of the Member States to adopt or maintain provisions, which maybe of a criminal nature, governing, in accordance with the principles of that directive and its objective, the situation in which coercive measures have not made it possible for the removal of an illegally staying third-country national to be effected” El Dridi (ibid.) paras 52 and 60; Achughbabian (ibid.) para 46..
In the Court's view, there is room for national criminal law measures when the third-country national has absconded or where his or her return is impossible due to practical (e.g. lack of documents, unwillingness of the home country to receive its national) or legal (non-refoulement) reasons. However, such explanations have hardly been convincing to Member states as they continue to search for loopholes to use criminal law as a deterrent against third-country nationals. It is probably the Achilles heel of the CJEU's approach that it chose to address the criminal sanction of imprisonment from a human rights point of view (deprivation of liberty). It overlooked that there are other criminal sanctions, most importantly fines that can be levied on irregular migrants. In practice, hardly any irregular migrant is able to pay a fine so that conversion of the criminal fine into a custodial sentence becomes the next challenge.
It is here where we stop in order not to delve ever more deeply into migration law and its interplay with criminal law. Suffice it to say that what has technically been a bold move of the CJEU to curtail the punitive instincts of Member states and to force them to accept limitations on their criminal law has not been driven by concern over human rights in the first place, but rather by the need to establish and defend a common EU policy. Human rights have served as an important stepping stone in this argument, but the outcome has hardly been more humane.
Overall conclusions
Criminal law is by no means static, and behind the many legislative initiatives that we see on the national level there is often not just a change in values, but also in sensibilities for human rights. Still, the punitive instincts of legislators, motivated by rhetorics of “acting tough”, are often stronger than compassionate and humane impulses that societies also harbor. It is therefore up to every single country and its politicians to find the fitting answers.
The goal of this paper has been to show, using the example of European criminal law, that human rights can work “both ways”: they can inform criminalization as well as de-criminalization. European criminal law as an emerging field of law is quite suitable to demonstrate these dynamics in a particular clear light. However, the examples are made more complicated by the ingredient of the issue of competences which is one of the major themes of European integration.
The area of freedom, justice and security is one of shared competences, and while Article 79 TFEU empowers the EU to develop a common immigration policy, the antidote is Article 72 TFEU according to which the area of freedom, justice and security “shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security”. While all sides share both a legal as well as a moral commitment to human rights, the lack of solidarity in implementing common policies remains an ongoing threat.
What can be learned from the emergence of European criminal law in a national context is that human rights law becomes a powerful argument when there are diverging interests and strong courts. Usually all sides subscribe to human rights and, indeed, it is difficult to argue that one is against human rights. Still, when there is a political and / or legal struggle, human rights help to create forceful arguments that are capable of “working both ways”, i.e. promoting criminalization and decriminalization.
For Russia, the Federal Constitution has been quite amenable to the wishes of the ruling class and there appears to be no real competition of political viewpoints. For doctrinal criminal law, it remains to be seen how the sweeping announcements in the country's basic law will be translated into criminal law and whether arguments based on human rights law will have the power to resist the impetus of criminalization.
References
1. Tulkens F. The Paradoxical Relationship Between Criminal Law and Human Rights. Journal of International Criminal Justice, 2011, vol. 9, iss. 3, pp. 577-595.
2. Van Kempen P.H. Criminal Law and Human Rights. London, Routledge, 2014. 490 p.
3. Lobba P. Punishing Denialism Beyond Holocaust Denial: EU Framework Decision 2008/913/JHA and other Expansive Trends. New Journal of European Criminal Law, 2014, vol. 5, iss. 1, pp. 58-77.
4. Buzan B., Wffiver O., Wilde J. de. Security: A New Framework for Analysis. Boulder, Lynne Rienner Publishers, 1998. 239 p.
5. Afia Kramo Y. The European Union's Response to Irregular Migration and the Problem of Criminalisation. New Journal of European Criminal Law, 2014, vol. 5, iss. 1, pp. 26-57.
6. Mitsilegas V. The Criminalisation of Migration in Europe. Cham, Springer, 2015. 110 p.
7. Joao Guia M., Woude M. van der, Leun J. van der. Social Control and Justice. Crimmigration in the Age of Fear. The Hague, Eleven International Publishing, 2013. 340 p.
8. Acosta D. The Good, the Bad and the Ugly in EU Migration Law: Is the European Parliament Becoming Bad and Ugly? European Journal of Migration & Law, 2009, vol. 11, iss. 1, pp. 19-39.
9. Baldaccini A. The Return and Removal of Irregular Migrants under EU Law: An Analysis of the Returns Directive. European Journal of Migration & Law, 2009, vol. 11, iss. 1, pp. 1-17.
10. Baldaccini A. The EU Directive on Return: Principles and Protests. Refugee Survey Quarterly, 2009, vol. 28, iss. 4, pp. 114-138.
11. Mitsilegas V. The Changing Landscape of the Criminalisation of Migration in Europe: The Protective Function of European Union Law. In Joao Guia M., Woude M. van der, Leun J. van der (eds.). Social Control and Justice: Crimmigration in the Age of Fear. The Hague, Eleven International Publishing, 2013, pp. 87-114.
12. Annoni A. Reshaping Criminalisation of Irregular Migration in Italy: The Impact of EU Law Beyond the El Dridi Judgement. In Mitsilegas V., Martino A. di, Mancano L. (eds.). The Court of Justice and European Criminal Law. Leading Cases in a Contextual Analysis. Oxford, Hart Publishing, 2019, pp. 290-304.
13. Raffaelli R. The Returns Directive in Light of the El Dridi Judgement. Perspectives on Federalism, 2011, vol. 3, iss. 1, pp. 32-45.
14. Vavoula N. The Interplay between EU Immigration Law and National Criminal Law: The Case of the Return Directive. In Mitsilegas V., Bergstrom M., Konstantinides Th. (eds.). Research Handbook on European Criminal Law. Cheltenham, Edward Elgar, 2016, pp. 294-314.
15. Vavoula N. Criminalisation of Irregular Migration in the EU: The Impact of El Dridi. In Mitsilegas V., Martino A. di, Mancano L. (eds.). The Court of Justice and European Criminal Law. Leading Cases in a Contextual Analysis. Oxford, Hart Publishing, 2019, pp. 273-289.
16. Raffaelli R. Case Note: The Achughbabian Case. Impact of the Return Directive on National Criminal Legislation. Diritto Penale Contemporaneo, 2012, vol. 1, pp. 176-183.
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