Criminal Justice in Europe: A Comparative Study

By Phil Fennell; Christopher Harding et al. | Go to book overview
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5
Intergovernmental Co-operation in the Field of Criminal Law

CHRISTOPHER HARDING AND BERT SWART


INTRODUCTION

Traditionally criminal law and its enforcement have been a part of the legal system jealously preserved within the area of sovereign competence of states, and moves towards co-operation and the pooling of resources and powers have met with both political and constitutional resistance. As McClean comments: 'In criminal matters . . . the traditional stance of states can only be described as one of non-co-operation . . . the general practice . . . remains coloured by the position that no country win enforce the penal law of a foreign state."1 This situation has arisen in part from the inevitable relation between the need for state security and the protection of other important national interests and the availability of criminal law as an obvious means of guaranteeing such interests; in part from the culturally specific character of some crime and the nationally specific thrust of much policy formulated to deal with crime problems. In contrast, for instance, to a field such as commercial law, where there have been cogent arguments and strong economic pressure for co-operation and harmonization at the international level, the internationalization of criminal law at a general level has remained to a large extent a speculative and utopian programme.2

But this general observation should be made with some qualification. To be sure, harmonization of substantive criminal law--except for very special topics--is likely to remain an uncertain subject for future action. But as regards some issues of procedure and enforcement, co-operative efforts have been made both bilaterally and (increasingly in regional contexts, in the latter half of the twentieth century) also on a multilateral basis. A classic example of bilateral co-operation is the extradition treaty,

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1
David McClean, "'Mutual Assistance in Criminal Matters: The Commonwealth Scheme'", ( 1988) 37 ICLQ 177, at 178. Heike Jung has commented: 'traditionally criminal law and criminal justice are symbols of state sovereignty, so to speak its very core and centrepiece', in "'Criminal Justice: a European Perspective'", [ 1993] CrimLRev.237.
2
See for instance the project undertaken by M. Cherif Bassiouni in International Criminal Law: A Draft Criminal Code (Alphen aan den Rijn; Sijthoff and Noordhoff 1980).

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