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1st International Conference of the Institute, Athens June 3-5, 2016

Scientific movement
First conference on "International criminal law and contemporary reality: Challenges and Perspectives"
European & International Criminal Law Institute E&ICLI

The 1st International Conference of Criminal law, under the auspices of H.E. the President of the Hellenic Republic Mr. Prokopios Pavlopoulos, titled "International Criminal Law and Modern Reality: Challenges and Opportunities" was completed with great success. The conference was organized by the European & International Criminal Law Institute (E&ICLI) from the 3rd to 5th of June 2016, and it took place in the general meetings room of the Bank of Greece. The purpose of this conference was to inform the participants on the latest developments in the field of International Economic Criminal Law, the crime of corruption, the European Criminal Law and the Law of International Crimes. The conference was attended by a significant number of representatives from the legal sector and judiciary, as well as academics and young legal professionals from Greece and abroad.

The President of the Institute, who is also the head of the organization committee and a member of the European Academy of Science and Arts, Professor Christos Mylonopoulos, emphasized in his welcome speech that the purpose of the Institute is not only the promotion of criminal law but also the encouragement of an extroverted stance for Greek criminal science, along with the enhancement of an approach oriented towards a mutual understanding of different legal systems. Furthermore, he eminently referred to young people in the hope to attract them to the profession.
Welcome speeches have also been addressed by Minister of Justice and Professor Nikos Paraskevopoulos, the Prosecutor of the Supreme Court Efi Koutzamani, the General Secretary of the Institute and Prosecutor at the Court of Appeals, Asprogerakas Dimitrios and on behalf of the Governor of the Bank of Greece, while Lloyd Weinreb, Professor at the University of Harvard, also welcomed the conference via a written address.

The first section, entitled "General Principles and Modern Developments of International Criminal Law", was carried out under the presidency of the hon. Professor of the University of Athens and member of the Athens Academy, Nikos Androulakis. It started with the speech of the hon. Professor of the University of Munich and indisputable "patriarch" of German Criminal Science, Claus Roxin, who focused on the "perpetration via the organized apparatus of power". The speech of Professor Roxin, whose presence was a great honour for the conference of the newly founded Institution, addressed the need to deal with criminal violations by representatives of the organized apparatus of power on an international level. This position was adopted numerous times by the International Criminal Court (ICC) with further reference on the "domination over the act" as a requirement of the perpetration.

Professor Roxin was followed by Ulrich Sieber, Professor at the University of Freiburg and Director of the internationally recognized Institute Max Planck for the International and Foreign Criminal Law, who addressed the topic "Paradigm shift from criminal law to the law of security: Changes in Laws and Limits of Crime Control". The subject of his research is the internationally observed, increasing development of the traditional suppressive criminal law which forms a part of a general "ensurance" law, consisting not only of preventive criminal law, but also of police law, the law of secrete services, the law of war and the administrative, civil and private legal entities which compose a construction protecting public safety, in the framework of a global, increasing "society of endangerment" (Risikogesellschaft), with the aim of ensuring the greatest possible safety against prominent dangers along with the undisputable respect of individual freedoms.

The next speaker was Ulfrid Neumann, Professor at the Goethe University in Frankfurt, who addressed the topic of "International Criminal Jurisdiction between Law and Politics." His main preoccupation concerned the observation of a particular political selectivity regarding the initiation of international criminal proceedings, in relation to the frequent contention that international criminal justice, as represented by the ICC, is selectively biased due to political factors, in such a way that it tends to focus on the conviction of African dictators, leaving the crimes of other medium and big powers untouched.

The first section concluded with the speech of Professor Christos Mylonopoulos, addressing the topic "The need for a General Theory of Criminal Law as prerequisite for effectiveness and justice in International Criminal Law." The spectacular development of International Criminal Law (ICL) in the broad sense, within an international and regional level, leads to: a. The relativization of legality principle b. The progressive decline of national sovereignty of each state due to the desire of an effective law enforcement against the crimes with international aspects. c. The need for an autonomous legitimacy regarding the operation of sentencing in the field of ICL. d. The distinction between crime and administrative offence to eliminate the deviation of the jurisprudence between the ECtHR and the ECJ. e. Matters of modes of liability, mens rea, responsibility and local limits of the criminal power of each state.

It is demonstrated, in such a way, that there is a need to form a new general theory, via the decisive role of the Criminal Dogmatic, as it is formed by the European criminal science and it is already exploited by the criminal theory of common law.

The second day started with the "European Criminal Law," under the presidency of the hon. President of the Conseil d’ Etat-former Prime Minister of Greece, Panagiotis Pikramenos. Ηans Heiner Kühne, Professor at the university of Trier, discussed the topic “Police operations in Europe - Freedom of control in a state of justice?”. The decisive role of police with regards to the enforcement and the protection of legally protected rights in every democratic state, the possibility of grounds of exclusion of police officers (EUROPOL and OLAF) from individual responsibility on European level in a categorical manner which goes against the traditional laws of member states, as well as the possibility of control mechanisms which can restrain the above immunity, bear out that the need for transferring criminal prosecution from a national to a European level does not have the power to displace the grantees of legal protection granted by the European and the national constitutions.

Helmut Satzger, Professor at the Munich University of Ludwig-Maximilian, addressed the topic "What is the extent that the approximation of European legislations can and should reach? - The issue of harmonization of general principles and criminal penalties.” The process of European integration includes, inter alia, the criminal law in the form of: a. The consistency of interpretation with the EU law. b. The free rein in the convergence of the national criminal laws with EU Regulations. c. The legislative acts which harmonize the criminal legal systems. Although there is a clear tendency towards harmonization (up to a certain level) there are still very few theories and especially as far as the field of general part is concerned, as well as a lack of a coherent and convincing line followed by the EU legislature, which would facilitate the development of a transnational criminal dogmatic in the field of EU.

Important observations for the character of modern European law were made by Maria Kaifa Gbanti, Professor at the Aristotle University of Thessaloniki, in her speech: ”Criminal law in the era of globalization: fundamental questions in a comparative approach of the US and EU Criminal Law.” She addressed specifically the basic characteristics of the perpetual internationalization of criminal law, and especially the modern tendency of "centralism" in its production, particularly linked with the globalization of the economy and the ensuing overdetermination of politics and law, comparing the criminal law of EU with the federal criminal law of US as a double-level system of law, by pointing to the following aspects: a. the competence of a central or overlying level (of the federal state or supranational organization) for the institutionalization of criminal law b. The role of selected fundamental principles of criminal law in the framework of the central or overlying level of their institutionalization. She also addressed the need for important improvements within EU criminal law.

Valsamis Μitsilegas, Professor at the Queen Mary University of London, analyzed the subject of "Mutual Recognition, Mutual Trust and Fundamental Rights after Lisbon." The framework decision with regards to the EU arrest warrant, the first and the most important provision of mutual recognition (the elimination of double jeopardy is a typical characteristic) constitutes a flagship as far as the application of the principle of mutual recognition in the field of criminal law is concerned, and it has been applied fully and in detail up until today. It was, however, a "maximalist" approach to the mutual recognition leading to the research of practical ways of its mitigation in the legislations of member-states (with reference to the principle of proportionality). In particular, the speaker dealt with the relationship between: a. the mutual trust between member-states and b. the appeal to the fundamental rights before the ECJ, concluding that there is a "convergeance of a mutual recognition and harmonization"George Triantafyllou, Assistant Professor at the National and Κaposdistrian University of Athens, took the floor and dealt with “The rights of defence in the transnational procedure of collecting evidence” indicating that both national and international law do not guarantee, to a sufficient degree, the right of parties to evidence and particularly the right to apply themselves for mutual assistance or to be able to apply for similar issues via national authorities, while the transposition of the Directive regarding the European Investigation Order in criminal matters (Directive 2014/41/EU) is not expected to improve the situation. He also referred to the means of defence available to the person who is affected by the execution of requests for mutual assistance. He also presented the model adopted by the above directive, emphasising, in particular, the oppositions against the adaption and the oppositions against the execution of it.

The second section was completed with the presentation of Ioannis Morosinis, Doctor of the University of Munich and Emmanuel Billis, Doctor of the University of Freiburg, regarding the goals and activities of the European and International Criminal Law Institute as well as the opportunities for co-operation with the Research School for Comparative Criminal Law of the Max Planck Institute for Foreign and International Criminal Law in Freiburg.

The highlight of the Conference was the announcement made by the director of the Max Planck Institute, Professor Ulrich Sieber, regarding the beginning of a formal co-operation between the two Institutes. As the President of the E&ICLI, Professor Christos Mylonopoulos stated that "the co-operation of a giant, like the Institute Max Planck with the newly established Institute of Athens, is a sign of the appreciation and trust that German colleagues show to Greek legal professionals, who, regardless of the lack of material resources, are in a position to contribute greatly to the promotion of the science". 

The presidency of the third section, with the subject "International Economic Criminal Law-Corruption," was held by the General Prosecutor of the Supreme Court hon. Ioannis Tentes, who invited Professor Genlin Liang to examine the topic "Chinese Anti-Bribery Law and Anti-Corruption Convention: A Comparative Study.” The current Chinese criminal system for the fight against bribery is, essentially, harmonized with the United Nations Convention against Corruption (UNCAC), while in the current criminal code of 1997, as currently amended, the crimes of corruption are divided into: a. Passive bribery b. Active bribery c. Bribery through mediation. Note that the legal entity can be, in general, liable for active or passive bribery. The Chinese criminal law condones many cases of bribery which fall into the protective field of UNCAC, given that active bribery is prosecuted if the amount exceeds 10,000 Yuan; passive bribery, on the other hand, is prosecuted whether it exceeds the 10,000 Yuan or not, if it is committed under serious conditions. 

Brigitte Tag, Professor at the University of Zurich and Vice President of the European Academy of Sciences and Arts, focused on “The evolution of transplantation medicine. Its legal and moral consequences especially with regards to international criminal law.” Medically assisted reproduction gradually acquires, in the European and non-European states, a more important meaning due to the progress in the different ways of its application e.g. the artificial insemination through sperm donation, ova, embryos and surrogacy. The speaker pointed, inter alia, that the permissible level of different procedures of reproductive medicine, in different states, may display variations due to mobility of the interested couples, which frequently causes international law issues. 

Frank Saliger, Professor at the Ludwig Maximilian University of Munich , discussed the issue of corruption in “The need for integration of European law on national Anti-Corruption Criminal law.” Germany today is facing an historically unprecedented criminalization wave of corruption. After the comprehensive law of November 2015, special laws followed against corruption in the fields of health and sports. It concerns the transposition of international texts into domestic law, ending in legislative redundancies and frictions with the pre-existing criminal provisions. The quality of legislative hyperactivity is affected by the ambiguity of its meaning, while the criminal law of corruption is not defined as a bilateral relationship between the "giver" and receiver, but as a tripartite relationship including the relationship between the "giver," the "receiver" and the "supervisor". 

Theocharis Dalakouras, Professor at the Demokritos University of Thrace, analyzed the procedural aspect of anti-corruption measures in: "Investigation procedure in Corruption cases. The limits of the human rights violations under the ECHR." Recent developments with regards to the law enforcement procedural arrangements for corruption require the strengthening of value structures, under the guarantee and procedural context and within the meaning of ECHR. The evaluation of current European and national legal frameworks pointed towards the following observations: a. Ways of promoting the investigative research b. a Further definition regarding the assets’ control of those involved c. The need for the development, through the rule of law, of special investigative acts, evidentiary proven behaviours of corruption with the provision of measures seeking the protection of witnesses, and upgrading of the international judicial co-operation in an investigative level.

Nikolaos Pantelis, Substitute General Prosecutor at the Supreme Court, Dr. Camelia Bogdan, Judge at the Court of Appeals of Bucharest/Rumania and Panagiotis Athanassiou, Prosecutor at the Court of Appeals for Financial Crimes, followed on with a: “Round table: Asset recovery of transborder and international crimes.” 

The forth and last section, under the presidency of Athanasios Koutromanos, hon. President of the Supreme Court of Greece, was titled "The Law of International crimes" and was opened by Professor Francisco Muñoz-Conde from the Pablo de Olavide University of Seville, with a contribution on the “Indirect Perpetration by means of an organizational mechanism of power as a means of treating the past in the Case Law of Latin America.” Based on the theory of Professor Roxin, adopted by Article 25 of the Rome Statute of the ICC, and by the Special International Criminal Tribunals, he indicated that based upon this theory the leaders of an organized apparatus of power as well as the middle levels of hierarchy, can be held criminally responsible as indirect perpetrators. However, this theory is inappropriate to cover all its members, because otherwise it would affect the meaning of the "domination over the act." In the case of the leaders who exercise power from higher levels of hierarchy, we can talk about "indirect co-perpetration"; this doctrine combines characteristics of a vertical hierarchical relationship and interchangeability of the physical perpetrator with that of a horizontal co-perpetration. 

Jesús-Maria Silva Sanchez, Professor at the Pompeu Fabra University of Barcelona, dealt with “Targeted killings", which the legitimate state power uses against its dangerous enemies. These killings become a problem when they take place during times of peace or even in times of war, provided that they target citizens who do not directly take part in hostilities. According to the rules of International Human Rights Law, these killings are illegal, with the most serious problem being the targeted killings of terrorists, who either have not yet attempted to commit a terrorist attack (it is, however imminent) or they have already committed it. It is difficult to justify this practice, regardless of the attempts to justify it, especially in the US and Israel. 

Angelos Constantinidis, Professor at the Democritus University of Thrace, discussed the topic “The Universality Principle. Contemporary issues (Drugs-Money Laundering-Terrorism)”. He demonstrated that the legitimizing basis of universal principle is the specific gravity and seriousness of the relevant crimes of which the punishment is of an international (universal) significance. After the Lisbon Convention, the principle "ne bis in idem" was applied to them. He also analyzed the application of the Convention in different international crimes, i.e. the illegal trade of drugs and terrorism while the designation of money laundry as an international crime was reasonably blocked. 

An interesting argument in relation to “Odious and Illegal Public Debt as a State Crime,” had been developed by Ilias Bandekas, Professor at the Brunel University of London, proposing the expansion of crimes against humanity in such a way so as to include behaviours which, even though are not directly violent against a person, they nevertheless may end up, after a period of time, in a severe deterioration of living conditions of the urban population. The value can be found in the enjoyment of fundamental socio-economic rights which are deprived by the general population and the protection of which is granted through the crime of State's Responsibility. 

Dimitris Kioupis, Assistant Professor at the National and Κapodistrian University of Athens, discussed the topic “Local borders of Criminal Law and Cybercrime,” which focused on the question of which state has the power to prosecute cybercrime. He also demonstrated that the central role of the principle of locality is restricted gradually because of the expanded application of the principles of active or passive personality and of the universal justice, whereas in practice its application meets difficulties because cybercrime refines or exceeds the traditional beliefs on ethics and natural territorial presence. The final answer to the question is related to: a. The nature of specific criminal behaviour b. The specific technical characteristics of the utilized, in each case, online communication.

The last contribution to the conference was made by the Major General of the Hellenic Police, Emmanuel Sfakianakis, who analyzed “Cybercrime as a universal phenomenon. Legislative shortfalls at national and international level.” Following the definition of basic concepts, he presented the consequences of technological developments, the penetration of digital media and the internet in different forms of criminality, highlighting the difficulties related to these changes, especially with regards to the place of the crime, the increased speed of its commission, and the technical knowledge required for the discovery of perpetrator. Through specific, real examples, (fraud, money laundry, interception / alteration of personal data, child pornography, terrorism) he referred to the lack of international co-operation and national legislation. 

The conference was completed with a closing speech by the President, amid general emotion and expectation for the publication of the minutes.

Foteini Dimopoulou Lawyer, LLM Criminal Law
Translation : Christina Karayanni, LLM Criminal Law