Fostering a European criminal law culture
| DOI | 10.1177/2032284418801561 |
| Author | Rosaria Sicurella |
| Published date | 01 September 2018 |
| Date | 01 September 2018 |
| Subject Matter | Articles |
Article
Fostering a European criminal
law culture: In trust we trust
Rosaria Sicurella
Department of Law, University of Catania, Italy
Abstract
‘‘Trust’’ is currently a crucial concept in the political and legislative discourse of European
institutions, as well as in some of the most notable decisions of the Court of Justice.
However, unlike mutual recognition, trust is not in itself enshrined in the treaty. Indeed,
mutual trust is an essential element of the European construction. The Luxembourg Court
took a quite radical position on presumed mutualtrust.However,amoresubstantial
understanding ofmutualtrustasthe coreobjectiveand,at thesametime, thefoundation of
European Union’s criminal justice policy is required, essentially based on the idea of devel-
oping a shared legal culture while maintaining (at least in part) national diversity in criminal
law. This article aims at showing that fostering mutual trust requires that the latter is not
approached only as a legal concept but rather as a notion resting also on an inherent sub-
jective dimension. This calls for non-legal forms of trust building aimed at enhancing aware-
ness of other Member States’ legal systems and commonalities. In particular, attaining a
deeper knowledge of these differing systems and thereby enhancing mutual understanding is
essential in order both to nurture the belief that other Member States are reliable and
trustworthy and to instill an attitude of ‘‘openess to others’ vision’’ that is expected to
improve judicial cooperation, and more generally integration of Member States’ legal systems,
and a true dialogue among legal practitioners and criminal law scholars. Indeed, developing
such a shared vision of criminal justice will presumably lead to the progressive definition and
development of common legal concepts as the basic contents for a European legal theory of
criminal law.
Keywords
mutual trust, shared criminal law cul ture, general principles of crimi nal law responsibility, ius
commune
Corresponding author:
Rosaria Sicurella, Department of Law, University of Catania, via Gallo 24, Catania, 95124, Italy.
E-mail: rsicurella@lex.unict.it
New Journal of European Criminal Law
2018, Vol. 9(3) 308–325
ªThe Author(s) 2018
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DOI: 10.1177/2032284418801561
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Preliminary remarks
‘‘Trust’’ is currently a crucial concept in the political and legislative discourse of European
institutions, as well as in some of the most notable decisions of the European Court of Justice
(ECJ). This is mainly down to the debate provoked by the practical enforcement of legal instru-
ments implementing the principle of mutual recognition which, having earned political endorse-
ment in the Council of Tampere in October 1999, has become established in the Treaty of Lisbon as
the leading principle in the field of judicial cooperation in criminal matters.
However, unlike mutual recognition, trust is not in itself enshrined in the treaty.
1
According to
the Commission,
2
and above all the Court of Justice, there is a
necessary implication that Member States have mutual trust in their criminal justice system and that
each of them recognizes the criminal law in force in the other Member States even when the outcome
would be different if its own national law were applied.
3
Consequently, trust does not need to be established by law but it is presumed, relying on the idea
that all the Member States’ criminal justice systems are sufficiently equivalent. Thus, mutual
recognition is premised on a belief both in the existence in the European Union (EU) of a broadly
equivalent protection of individual rights—intended in their broader sense as not limited to the
existing set of fundamental rights in the EU Charter or European Convention for the protection of
Human Rights (ECHR) but as a synonym of fundamental guarantees relevant when dealing with
criminal law responsibility of the individual
4
—and also in the widespread trust that should follow
among the Member States.
Indeed, generally speaking, trust is at the very basis of the European integration process itself, at
the heart of the progressive creation of ‘‘an ever closer union among the peoples of Europe’’
(Article 1 TEU), which
shall offer its citizen an area of freedom, security and justice without internal frontiers, in which the
free movement of persons is ensured in conjunction with appropriate measures with respect to external
controls, asylum, immigration and the prevention and combating of crime. (Article 3.2 TEU)
More precisely, the very close relationship and the interdependence between the Member States
resulting from the integration process, and especially the development of the EU as a borderless
area, would be inconceivable in the absence of a basic trust among the Member States. This trust
rests essentially on the fact the all the Member States share the same common values, as now
formally established by the provision in Article 2 TEU. These values are among the constituent
1. Article I-42 of the Treaty establishing a constitution for Europe referred to the engagement of the EU in ‘‘promoting
mutual confidence between the competent authorities of the Member States [ ...].’’ However, this provision was not
included in the text of the Treaty of Lisbon.
2. Communication on Mutual Recognition of Final Decisions in Criminal Matters, COM (2000) 495 final, para 3.1.
3. ECJ 11-2-2003, Go¨zu¨tok and Brugge, C-187/01 and C-385/01, EU: C:2003:87, para 33.
4. The ECJ itself has recently adopted a wider approach to the conditionality of mutual trust extending the reference to
fundamental rights to include the respect of other fundamental values pertaining to the respect of the rule of law, and in
particular the respect of separation of powers; ECJ 10-11-2016, Poltorak, C-452/16 PPU, EU: C:2016:858, para 35; ECJ
10-11-2016, Kovalkovas, C- 477/16 PPU, EU: C:2016:861, para 36.
Sicurella 309
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