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Human Rights and European Criminal Law in Context

Vak
2019-2020

Entry requirements

Students who want to take this course need to be admitted to the master’s programme in Comparative Criminal Justice.

Course description

Traditionally, the criminal justice systems of European countries have always had their own specific and characteristic features. At their core, these systems are sometimes related, but have further developed in a long and dynamic national process. However, over the past few decades national criminal justice systems have increasingly been under an ever-growing influence of European and international developments.

The most important reasons for European and international influence on national criminal justice have been the growing importance of human rights as well as the changing nature and extent as well as cross-border impact of crime. With regard to human rights, as a Council of Europe (CoE) instrument, the European Convention on Human Rights (ECHR) has for quite some time been shaping the evolution of criminal justice systems – both through the direct application of Convention rights at the national level and through the case law of the European Court of Human Rights (ECtHR) in Strasbourg. Due to (constitutional, cultural, etc.) differences in national legal systems (particularly criminal justice systems) it may differ how, and to what extent, such Strasbourg norms impact upon national criminal justice.

In addition to the influence stemming from the ECHR, the European Union (EU) is now having a growing influence on national criminal justice systems too, not only by developing common instruments to combat crime, but also in the field of human rights. The most important instrument in this latter regard is the EU Charter of Fundamental Rights. It is not always very easy to understand the different ways in which the ECHR and the Charter impact upon national criminal law and criminal procedure, and why similar rights may have different scopes on the Strasbourg and the Luxembourg level, but one aspect that explains some of the differences relates to the fact that within the European Union internal border controls have largely been abolished. This has created a judicial area in which also crime and criminals easily move across the Member States’ border. Moreover, over the past few decades new forms of crime have come into existence some of which are trans-border by their very nature. For these reasons, EU competence in the area of justice and home affairs has been created in the 1990s. Such competence concerns cross-border cooperation mechanisms, but also the adoption of common minimum norms in the fields of criminal law and criminal procedural law. The adoption of such legislation is preceded by a law-making process in which both legal and criminological expertise is required.

The first aim of this course is to reflect on the meaning and scope of European influence (both CoE and EU) on national criminal justice systems. This (potential) influence will be illustrated with examples. All this will be put in the broader comparative perspective of differences between common law and civil law jurisdictions.

Course objectives

After completion of the course, students will be able to:

  1. Explain how different forms of criminality can be harmonized in the European Union and the Council of Europe framework and evaluate whether a given offence should be harmonized and to what extent, referring to subsidiarity and proportionality and by assessing the evidential basis for the proposed harmonized definitions of crime;
  2. Explain how a common systems of cooperation in criminal law enforcement developed within the European Union and Council of Europe frameworks and draw implications from this development for the various actors within this system;
  3. Compare the different sources of human rights and procedural rights, explain their meaning in relation to their legal context and indicate which (problematic) consequences result from a multiplicity of procedural rights sources;
  4. Evaluate the influence of human rights and fundamental freedoms, stemming from the ECHR and European Union law, on (parts of) national criminal justice systems;
  5. Understand and be able to navigate the complex interaction between national and European legal and policy dynamics in the criminal justice field
  6. Develop substantive and methodological comparative law knowledge and skills insights and deploy these in the context of multi-levelled, transnational European criminal justice frameworks.

Timetable

The timetable of this course can be found in uSis.

Mode of instruction

Part I: Europeanisation of Human Rights and Criminal Justice: Setting the scene
Lecture 1: Criminal Justice Systems across Europe
Lecture 2: The Emergence of Human Rights in Europe
Lecture 3: Europeanisation of Human Rights and Criminal Law: The Council of Europe
Lecture 4: Europeanisation of Human Rights and Criminal Law: The European Union
Lecture 5: Europeanisation of Human Rights and Criminal Law: Constitutional and Cultural Challenges in National Criminal Justice Systems
Lecture 6 + 7: The Why and How of Comparative Criminal Law in Europe (comparative legal research methods and case studies)
Lecture 8: European Courts and Comparative Law
Lecture 9: National Courts and Comparative Law

Part II: Towards a European Area of Justice and Rights: Current Issues
Lecture 10: Trust and Distrust in Cross-border Criminal Justice Cooperation
Lecture 11: Human Rights Protection in the Member States Beyond the European Minimum Standards: Consequences and Limits
Lecture 12: Judicial Dialogues on Human Rights: European Courts versus National Courts
Lecture 13: Judicial Dialogues on Human Rights: Strasbourg versus Luxembourg
Lecture 14: Substantive criminal law and human rights

Part III: Clinics
4 classes for presentations on a group assignment

Other methods of instruction
Weekly office hours during which the students can talk to the course coordinator. The office hours are not mandatory and students should send an email to the secretarial office (criminologie@law.leidenuniv.nl) at least one day (24 hours) prior in order to announce their wish to come to the office hours. Such requests should always include a short description of the reason for wanting to meet.

Assessment method

  • The final grade will be based on two components: a written exam, consisting of open questions (50%) and a group assignment (50%).

  • Each component has to be completed with a passing result (5,5) in order to complete the course successfully.

  • There will be a retake for the written exam. There will be a retake for the group assignment in the form of a possibility for improvement.

  • Depending on the number of participants, the course coordinator can decide that the retake for the written exam will take the form of an oral examination. In that case, students will be notified in time.

  • Partial exams for which the student received a pass grade, will be valid up to and until the academic year following the year in which the pass grade was received, with one exception: in the event of modifications to the objectives, content, design or assessment method of the course, the course coordinator can decide that the validity of the partial exam concerned will lapse based on didactic grounds. If so, this will be indicated in the course description of the academic year in which the modification(s) is/are made.

Regulation retake passed exams
In this course it is possible to retake an exam that has been passed (cf. art. 4.1.8.1 and further of the Course and Examination Regulations), on the condition that this course is included in the compulsory components of the degree programme. Students who have passed the exam may retake the final written assessment (test) of the course. Please contact the Student Administration Office (OIC) for more information.

Procedure for handing in your paper

  • The paper must be submitted via SafeAssign (Blackboard).

Blackboard

More information on this course is offered in Blackboard.

Reading list

  • V. Mitsilegas, EU Criminal Law after Lisbon. Rights, Trust and the Transformation of Justice in Europe, Hart Publishing 2016.

  • Assigned literature will be anounced through Blackboard and in the course guideline that will also be published on Blackboard.

Employability and career

The paper assignment aims to further improve students' writing skills because good writing skills are required for many criminal justice-related career paths.
A field trip to the Dutch Ministry of Foreign Affairs and/or the Dutch Ministry of Justice and Security in the Hague forms an other significant part of the course as it offers a first acquaintance with some of the political institutions and how they work in practice. Moreover, it provides an opportunity to orientate on potential career perspectives.

Registration

Students have to register for courses and exams through uSis.

Contact information

  • Coordinator: dr. A. Martufi

  • Availability: Monday till Friday, through the secretariat

  • Telephone: 071 – 527 74 62

  • E-mail: a.martufi@law.leidenuniv.nl

Institution/division

  • Institute: Criminal Law and Criminology

  • Department: Criminology

  • Opening hours: 09.00 to 12.30

  • Telephone secretariat: 071 – 527 74 62

  • E-mail: criminologie@law.leidenuniv.nl