Sovereignty and Criminal Law: The Dual Criminality Requirement in International Mutual Legal Assistance in Criminal Matters
Since its beginnings in the 19th century, interstate legal assistance has undergone constant change, a development that accelerated tremendously after World War II, especially in Europe. In the course of these changes, many traditional principles of mutual legal assistance have been abolished, among them the dual criminality requirement.
|Project category:||Research project|
|Organizational status:||Individual project|
|Project time frame:||Project commences: 2007
Project ends: 2009
|Legal system(s):||Switzerland; European law; other international criminal law; mutual legal assistance in criminal matters|
As the relationships between sovereignty and criminal law and between culture and criminal law (conflict of culture or Kulturkonflikt) come into focus in the context of mutual legal assistance in criminal matters, this study deals in its first part with these fundamental factors. In a second part, the relationship between substantive and procedural law is scrutinized, and in a third part, the dual criminality requirement is examined in detail.
A conclusion of this study is that this requirement is an indispensable instrument of a cooperative, internationally-oriented criminal justice. This cooperative design is of great importance for a proper understanding of criminal justice as currently practiced, as the idea of a nationally isolated, impermeable power to redress crime – a notion that is still prevalent in academia and practice today – is a fiction that is becoming less tenable by the day. It is a fact and a historical necessity that sovereignty evolves dynamically at all times and that each entity with the power to redress crime is and must be permeable and open to international developments.
According to autarkic concepts developed in the 19th century, however, sovereign power to redress crime can only be exercised within national borders; hence, legal assistance provided to a foreign sovereign with the power to redress crime can only be administrative in nature and may not exhibit characteristics of criminal justice. From an administrative law perspective such as this, it is clear that making mutual legal assistance dependent on dual criminality is obsolete. This view also garners support from the prevailing trend in criminal law science to reduce the sovereign power to redress crime to the act of punishment itself and to ignore the entire process of legislative criminalization and criminal investigation that precedes the judicial conviction. In contrast, the conclusion reached in this study is that the power to redress crime should be viewed in a more nuanced way, especially as far as the question of sovereignty and the territorial area of application is concerned.
Thus, the dual criminality requirement continues to be important – but not for the purpose of isolating nation states and not because criminal law should be associated with one fixed cultural environment and for this purpose kept separate from other cultures. Rather, the requirement is significant because it helps to put into practice the rule-of-law concept that each legal system must have for its criminal offenses a kaleidoscope clearly defined by the legislature – and can only provide legal assistance for this defined kaleidoscope of offenses. The rapprochement of the states and the corresponding approximation of their common efforts to carry out law enforcement transnationally, therefore, require substantive scrutiny of existing differences among the various systems of criminal law. It is the dual criminality requirement that demands this examination, and it is the dual criminality requirement that by so doing fosters true harmonization.