Fostering a European criminal law culture

Abstract

“Trust” is currently a crucial concept in the political and legislative discourse of European institutions, as well as in some of the most notable decisions of the Court of Justice. However, unlike mutual recognition, trust is not in itself enshrined in the treaty. Indeed, mutual trust is an essential element of the European construction. The Luxembourg Court took a quite radical position on presumed mutual trust. However, a more substantial understanding of mutual trust as the core objective and, at the same time, the foundation of European Union’s criminal justice policy is required, essentially based on the idea of developing a shared legal culture while maintaining (at least in part) national diversity in criminal law. This article aims at showing that fostering mutual trust requires that the latter is not approached only as a legal concept but rather as a notion resting also on an inherent subjective dimension. This calls for non-legal forms of trust building aimed at enhancing awareness of other Member States’ legal systems and commonalities. In particular, attaining a deeper knowledge of these differing systems and thereby enhancing mutual understanding is essential in order both to nurture the belief that other Member States are reliable and trustworthy and to instill an attitude of “openess to others’ vision” that is expected to improve judicial cooperation, and more generally integration of Member States’ legal systems, and a true dialogue among legal practitioners and criminal law scholars. Indeed, developing such a shared vision of criminal justice will presumably lead to the progressive definition and development of common legal concepts as the basic contents for a European legal theory of criminal law.