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Criminal Law and Sovereignty: Dual Criminality - An Anachronism?

Final Activity Report Summary - DUAL CRIMINALITY (Criminal law and sovereignty: Dual criminality - an anachronism?)

When international criminal cases and related international cooperation of state authorities are the subject of political and legal discussion, the overall concern today is that differences in substantive law may hamper the exercise of extraterritorial jurisdiction or impede co-operation among the various authorities. Two alternative approaches are being promoted to address these problems: the harmonisation of criminal law and the abolition of the dual criminality requirement. In order to provide a sophisticated answer to the crucial questions of what the function of the dual criminality requirement is and how the requirement should be designed so that the defined function can be achieved, the research analyses the underlying fundamental theoretical concepts of sovereignty, national Statehood, power to punish, culture, and globalisation of law. In doing so, a criminal law point of view was adopted by considering the impact of criminal law theories, theories of territorial and extraterritorial jurisdiction, as well as the relationship between substantive and procedural criminal law norms.

Starting from the traditional differentiation between jurisdiction to prescribe and jurisdiction to enforce, the various elements of jurisdictional "power to punish" are being further developed. The result is a comprehensive concept of criminal jurisdiction in which criminal investigations retain a significant role, particularly when investigative criminal jurisdiction is not used with regard to the enforcement of the State's own power to punish but with regard to horizontal cooperation between States in the form of extradition or other acts of assistance (secondary mutual legal assistance). Most notably, the role of substantive criminal norms as leading and legitimating criminal investigations from the beginning to the end, i.e. the judgment, leads to the question of whether the substitutional use of elements of the "power to punish" when providing secondary mutual legal assistance must be based on the State's own substantive criminal law in order to be legitimate or whether the existence of a substantive criminal law basis within the requesting State conducting the criminal procedure will suffice. After concluding that also in this case criminal jurisdiction must be executed within the boundaries of the State's own substantive criminal law in order to be legitimate, the capacity of the dual criminality requirement to fulfil this function was scrutinised and finally admitted.

The special challenge of the project was to analyse thoroughly a topic that has been neglected by criminal law scientists but that has, in practice, been modified dramatically in recent decades. Consequently, it was necessary for the researcher - in addition to studying and incorporating an enormous amount of literature and searching for relevant court decisions from the last 200 years - to stay abreast of current developments.

The research undertaken here contains useful information as well as new doctrinal insights. It is therefore of great interest to politicians and their expert advisers. Because of its detailed analysis, the analyses based on concrete cases, and the consideration given to the practice of various courts, the research will be of practical use for courts and lawyers when they are confronted with criminal cases with transnational dimensions and human rights aspects.

It offers useful fundamental insights regarding relationship between States, their power to punish and their ability to cooperate in criminal matters. The original theoretical framework developed by the researcher allows for the evolution of new arguments that challenge various aspects of traditional doctrine and case law regarding extradition and other acts of assistance (secondary mutual legal assistance), especially with regard to the requirement of dual criminality. In this sense, it is a new and original contribution to the academic discussion in this field.