The evolution of European Union criminal law (1957-2012)

Whilst the distinctive criteria of ‘criminal law’ is increasingly being identified with the
nature of the procedure and of the sanction, the ambit of what is identified with ‘criminal
law’ also provides some guidance as to what can be understood as ‘criminal law’. Here
differences between Anglo-Saxon and Continental European jurisdictions come to the
fore. As Lacey and Zedner outline, for Anglo-Saxon jurisdictions, ‘criminal law’
encompasses substantive rules of conduct, rules determining how liability should be
attributed and how breaches of criminal norms should be graded. Other aspects related
to ‘criminal law’ such as prosecution, trial procedure, sentencing, and punishment,
among others, tend to be dealt with by ‘criminal justice studies’. This separation
between ‘criminal law’, criminal procedure and sentencing, however, will not be found
as such in continental European jurisdictions. 32 Indeed, the latter often make a
distinction between ‘substantive criminal law’ 33 —which corresponds largely to the
Anglo-Saxon conception of ‘criminal law’—and ‘criminal law in a broad sense’, which
also includes the domains of criminal procedure, sentencing and sentence enforcement.
In the French system, for instance, ‘criminal law in a broad sense’ concerns itself with
the so-called ‘substantive criminal law’ and with ‘criminal procedure in a broad sense’
(i.e. norms which concern the penal procedure, rules on sentencing and punishment and
the rules of organisation of judicial institutions and their modes of intervention). 34
Similarly, in Portugal, for example, ‘criminal law in a broad sense’ concerns itself with
‘substantive criminal law’ (the rules which determine what is to be understood as a
wrongdoing, the rules of liability and the consequences of a crime); with procedural
criminal law, which concerns the realisation of the punitive power (namely,
investigation and judicial evaluation of the crime); and, finally, with sentencing and
sentence enforcement (so-called ‘executive’ penal law). 35
Regardless of these differences, some commonalities can be found across domestic legal
orders. In fact, the distinction between substantive criminal law, criminal procedure,
32 N. Lacey and L. Zedner, “Legal Constructions of Crime”, in M. Maguire, R. Morgan and R.
Reiner (eds) The Oxford Handbook of Criminology, 4 th Edition (Oxford: OUP, 2012, Fifth
edition) 159, 161; see also L. Zedner, Criminal Justice (Oxford: Oxford University Press, 2004)
63.
33 Often identified by ‘general penal law’ (‘droit pénal général’ or ‘parte geral do direito penal’,
respectively in French and Portuguese law, for instance).
34 In the concept of general criminal law, Pradel includes substantive criminal law, rules on
sentencing and punishment and criminal procedure (droit pénal général’; ‘droit pénal spécial’; ‘le
droit des infractions et sanctions’; la procedure pénal; le droit de l’exécution des peines), J.
Pradel, Droit Pénal Général (Paris: Éditions Cujas, 2006) 53-56; Similarly, Carbasse, for
instance, refers to ‘criminal law’ as incorporating substantive criminal law (“droit penal strictu
sensu”) and to the general norms of criminal procedure, including the judicial organisation and
the modes of intervention (“les grandes lignes de la procèdure penale (caracteres generaux de
l’organisation judiciaire et de ses modalités d’intervention”)). The author also remarks that these
distinctions between substantive criminal law and criminal procedure are relatively recent in the
historical development of the discipline and used to be integrated in a single unitary concept. J.M.
Carbasse, Histoire du droit penal et de la justice criminelle (Paris: Presses Universitaires de
France, 2009, 2ºEdition) 23.
35 J. Figueiredo Dias, Direito Penal, supra note 31, 6-7.
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