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The Conference organized by Queen Mary University, the Max Planck Institute for Foreign and International Criminal Law (Freiburg) and the Institute of European and International Criminal Law (Athens) took place with great success on 26 and 27 January at the Middle Temple in London with subject: Alternative, informal and transitional forms of criminal justice and the legalization of new types of sanctions in a globalized risk society, with the scientific supervision of Ulrich Sieber, Director of the Max Planck Institute (Freiburg), Valsamis Mitsilegas, Professor of Law at the University of Queen Mary (London), Christos Mylonopoulos, President of the European & International Criminal Law Institute (Athens), Emmanuel Billis, Senior Researcher at the Max Planck Institute for  Foreign and International Criminal Law and Nandor Knust, as well as Senior Researcher at the same Institute. The excellent preparation of the conference was contributed, among others, by Mrs. Niovi Vavoula and Mrs. Phoebe Mouzakitis. They took part a.o. the Deputy Prosecutor at the Criminal Court of Hague, Mr. James Stewart, the President of the International Criminal Law Society, Professor Mr. John Vervaele, Mr. Rudi Fortson QC, Barrister, Visiting Professor at Queen Mary University, the Criminal Law Professor at Computense University of Madrid Mrs. Lorena Bachmaier-Winter, Mrs. Saskia Hufnagel Professor at the University of London, Mr. Philipp Ambach, responsible for involvement matters of the victims at the International Criminal Court in Hague, Mrs. Chrisje Brants, Professor at the University of Utrecht, Mr. Thierry Delpeuch of the French Scientific Center (Grenoble, France), Mr. Florian Jeßberger, Professor at the University of Hamburg, Mrs. Susanne Karstedt, Professor at the Griffith University of Australia, Mrs. Jacqueline Ross, Professor at the University of Illinois, Mr. Stephen Thaman, Professor at the University of Saint Louis (USA), Mr. Nikolaos Theodorakis, Lecturer at the University of Oxford, , while the Greek element was also intense with Ms. Dayanda, Prosecutor of the Court of Appeal, Mr. Nikolopoulos, Judge of the Court of Appeal in Athens, Ms. Panagiota Panteleakou, Attorney at Law in Athens, Mr. Stylianos Papageorgiou Gonatas, Professor at the University of DUTH, Mr. Haris Papacharalambous, Professor at the University of Cyprus, as well as many Greek postgraduate students from Greece and England. It was decided the continuation of cooperation of the three institutes in June this year in Freiburg and then in November 2018 in Athens on "cybercrime".

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Information Note

2^nd Conference of the European and International Criminal Law Institute:

“ANTIQUITIES AND INTERNATIONAL CRIMINAL LAW. THE JUDICIAL PROTECTION OF CULTURAL HERITAGE WITH INTERNATIONAL DIMENSIONS”

By Evangelia Sclavolia

Translation: Foivi Mouzakiti

In the “Giannis Kranidiotis” Chamber of the Ministry of the Exterior and in the presence of eminent representatives of the political and academic circles, as well as judges, prosecutors, legal experts and young scientists, the Institute of European and International Criminal Law hosted its 2^nd Conference, entitled “Antiquities and International Criminal Law: the judicial protection of cultural heritage with international dimensions” on the 17^th of December, 2015. The proceedings of the conference revealed burning issues revolving around the criminal protection of antiquities, a theme that poses a few of the most timely and controversial problems, concerning not only our country, but also the international arena. The apt choice of the topic under discussion was dictated by the undeniable fact that, over time, the illegal trafficking of cultural heritage goods has been a vital concern for criminal justice, a conclusion that is constantly reinforced by the available statistics. It is sufficient for someone to take under consideration that, alongside the illegal trafficking of drugs and guns, the illegal trafficking in cultural heritage goods represents one of the largest criminal enterprises, with an annual turnover that exceeds the amount of 3 billion dollars!

The different themes of the Conference were developed extensively by the following speakers: Mr. Christos Mylonopoulos, President of the Institute and Professor of the University of Athens, Mr. Andrea Castaldo, Professor of the University of Salerno, Mr. Ioannis Androulakis, Lecturer of the University of Athens, as well as Mr. Ioannis Morozinis and Georgios Bourmas, both PhDs and Lawyers. The event was chaired by the prosecutor of the Supreme Court, Mrs Ephterpi Koutzamani, who, after welcoming our speakers, continued her contribution by offering enlightening comments on their presentations. The event was greeted by the Minister of Justice, Transparency and Human Rights, Mr. Nikos Paraskevopoulos, whose speech placed emphasis on the importance of combating illegal trafficking in cultural heritage goods both at a national and at an international level.

Professor Christos Mylonopoulos’ presentation was entitled “Cultural nationalism and cultural internationalism”. He analyzed the criminal dimension of the Parthenon Marbles case and he attempted to demonstrate that, even according to the arguments of those opposed to the return of the Parthenon Marbles, their possession by the British Museum is reprehensible. Starting his reasoning from the premise that, according to the criminal rules on antiquities applicable in Greece, but also according to other countries’ respective rules, the protected legal right (with the exception of cultural environment and ownership) is cultural heritage, he noted that the latter consists of the cultural and historical identity of a nation and that the historical identity is already being protected at an international level by the UNESCO Declaration of 2003, whereas the ownership, understood as the State’s right to dispose of its antiquities according to its will, is bent not only by national, but also by international legislation, which limits the State’s sovereign rights in this matter to a drastic extent. According to developments in international law, the possession of the Marbles constitutes a crime by omission, since the integrity of the fragmented monument is not being restored, as dictated by an existing international legal obligation. In addition, it should be examined if the Marbles consist a proceed of crime, under the relevant legislation applicable in the United Kingdom (Proceeds of Crime Act), since they represent a bribe offered to the Ottoman Kaymakam by Elgin. In any event, from the beginning of the 21^st century, the incidents of repatriation of antiquities have multiplied.

Subsequently, Andrea Castaldo, professor of Criminal Law of the University of Salerno, presented the Italian legal framework on cultural goods. From the very beginning, he expressed the view that, notwithstanding the enhanced protection afforded to national cultural goods by the Italian legislation, art crime and the proceeds obtained from the illicit trafficking in art continue to increase. This phenomenon called for the strengthening of the criminal legislation, which was realized with the entry into force of Decree No. 42/2004, which incorporates a multitude of criminal law provisions on crimes against cultural goods. Then, he proceeded to an exhaustive presentation of the art crimes unfolded by the aforementioned Decree as well as by the Italian Penal Code. He also emphasized the creation of the Carabinieri Department for the Protection of Cultural Heritage (CCTPC), a specialized police department established pursuant to a relevant recommendation by the UNESCO, which is entrusted with the tasks of protecting antiquities, investigating art crimes, detecting illegally exported Italian works of art and ensuring their return to Italy, raising public awareness and promoting collaboration with international bodies. Special reference was made to the ratification of International Conventions by Italy, Conventions that contribute significantly towards the prevention and the fight against art crime. The first, entitled “Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property” was ratified by Italy in 1978. However, it remains quite unpopular among European states, possibly due to their inability to define the objects that constitute cultural heritage. The second, UNIDROIT Convention, is part of Italy’s national law since 1999 and gives the possibility to the state and to its citizens to request the return of stolen or illegally exported cultural goods. Subsequently, he suggested measures that should be adopted in order to combat this phenomenon, such as encouraging collaboration among states, filling the gaps in criminal legislation and raising the public’s awareness on antiquities.

The Lecturer of the University of Athens, Ioannis Androulakis, examined the criminal law issues arising from the international trafficking of cultural goods and the illegal export and import of such goods and antiquities in particular. After presenting the international legal framework, he placed emphasis on the inadequacies of the existing Conventions, which in turn compel countries to combat the phenomenon by relying mostly on their own, autonomous rules. Taking this statement as a starting point, he continued with an analysis of the separate offences unfolded by Law No. 3028/2002, offences which target the illicit trafficking of cultural goods between states, while at the same time observing that the protection of Greek cultural goods, despite the strictness of the national rules, cannot be considered satisfactory. This fact can be closely linked to the aforementioned diversity of national rules, combined with the lack of consensus on policy development in this area. In support of this argument, he mentioned the precondition of double criminality and the hindrances that it creates for judicial cooperation, the lack of punishment of illegal trafficking of Greek cultural goods to third countries by certain Member States of the EU, as well as the failure of certain states to incorporate the offence of illegal import of cultural goods in their criminal legislation.

Mr. Ioannis Morozinis, PhD and lawyer, analyzed extensively the issue of deceit regarding the disposal of antiquities from an international criminal law perspective. According to his analysis, pursuant to article 13§4 of Law 3658/2008, the international jurisdiction of Greek criminal courts is established pursuant to the principle of global justice for the «crimes unfolded by the criminal provisions of Law 3028/2002». The scope of application of article 55 of Law 3028/2002, which provides for a distinct case of acceptance of proceeds of crime and constitutes the main provision targeting the illicit trafficking of Greek antiquities to foreign countries, indirectly affects the scope of the Greek courts’ international jurisdiction, since article 13§4 of Law 3658/2008 does not cover the cases that are subject to the main offence of article 394 of the Penal Code. The intent of the aggravated acceptance as provided by article 55 in relation to the criminal origin of the antiquity presupposes a certain knowledge of a complex of legal value concepts, which have been formed pursuant to the Greek understanding of antiquities, according to which they consist of ex lege public property, belonging to the Greek public sector. He came to the conclusion, however, that in other countries, especially EU countries, there exists a long tradition according to which cultural goods are being treated as commodities. These different conceptions may lead to an error of fact, if the alien offender does not realize via “a simultaneous assessment in the folk sphere” that the Greek antiquities belong, as a rule, to the Greek public sector and that they are inalienable (res extra commercium). Thus, he concluded that the criteria of good faith, as incorporated in the UNIDROIT Convention, are indicators specifically oriented towards an assessment of the intent of acceptance of antiquities that are the proceeds of a criminal act.

Finally, Mr. Georgios Bourmas, PhD and Lawyer, analyzed the matter of illegal possession of a monument, pursuant to article 59 of Law 3028/2002, as well as the geographical boundaries of national criminal legislation. Considering that the aforementioned provision does not expressly specify the geographical boundaries of its application, he concluded that as far as the article in question is concerned, the general principles of International Criminal Law are applicable (Article 5 et seq. of the Criminal Code). As part of this reasoning and taking into consideration the priority of the territoriality principle (article 5 of the Criminal Code), he proceeded to a detailed analysis of the legal elements of illegal possession of cultural goods as well as of the dogmatic features of the crime. Subsequently, he touched upon several issues of applicability of Greek Criminal Law in similar cases with foreign elements, both in relation to the principal’s act and the aiders’ or abettors’ act, in all stages of their execution, while he examined related issues, using as a solution criterion the specific assumptions of the active personality principle (article 6 of the Criminal Code), of the passive personality principle (article 7 of the Criminal Code), as well as of the principle of global justice (article 8.ia of the Criminal Code).

Following the aforementioned presentations, the speakers engaged with the attendees in a vivid discussion, which revealed not only an imperative need for raising the awareness of the public and that of the competent bodies in tackling the phenomenon, but also a need for courageous legislative initiatives and a more rational protection of cultural goods. At the end of the discussion, the President of the Institute announced that an additional Conference will be held in March of 2016, dedicated to the European Public Prosecutor, as well as an International Conference, which will host distinguished participants from European, American and Asian universities that will elaborate over a wide range of themes. The International Conference is scheduled to take place from the 3^rd to the 5^th of June of 2016.

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Poster

Information Note

THE EUROPEAN AND INTERNATIONAL CRIMINAL LAW INSTITUTE’ S

INAUGURAL CONFERENCE

“Economic Crimes and International Criminal Law”

(AS PUBLISHED IN Poinika Chronika NOE 2015)

By Foteini P. Dimopoulou

Translaion: Anastasia Sotiropoulou

            The Inaugural Conference of the newly established European and International Criminal Law Institute successfully took place on June 4^th, 2015 at the amphitheater of the Ministry of Foreign Affairs “Giannos Kranidiotis”. The Conference, whose turnout was massive, had as its subject “Economic Crimes and International Criminal Law” and was chaired by Professor Christos Mylonopoulos with the following speakers, namely, Emeritus Professor at the University of Munich Bernd Schünemann, Assistant Professors at the Law School of Athens Dimitrios Kioupis and Georgios Triantafyllou and Dr. Stephanos Stanellos, lawyer.

            The Conference was greeted by the Honorary Prosecutor of the Supreme Court and former National Coordinator Against Corruption Dr. Ioannis Tentes, who welcomed the establishment of the Institute, the participation of distinguished judges and young scholars and the choice of such a current topic. The Honorary Prosecutor proceeded in making the logical and legal connection of International Criminal Law with economic crimes related to corruption and tax evasion and expressed his wish that the Institute will contribute in the National Action Plan Against Corruption and Fraud which refers to issues of European and International Criminal Law in various ways.

            In his opening speech, Professor Christos Mylonopoulos highlighted the importance of the Institute’s establishment as a need to align the Greek criminal justice with the rapid development of criminal laws on international level following the Treaty of Lisbon, the possibility of submitting the ruling of the Court of Justice of the European Union to the judicial review of the European Court of Human Rights and the establishment of the European ne bis in idem. The aforementioned developments are accompanied by thorny issues that alter and threaten – even through adulteration – the physiognomy of criminal law as a field that protects and guarantees civil liberties. Professor Mylonopoulos emphasized that the fight against crime at any price and the pursuit of security within the states, without the support of a generally approved theory that would provide legal safety and would harmonize the international rules with the general principles of law of each state, reflects the principle of anarchy in the field of international criminal law and hampers its rational development. At the end of his speech, he determined the Institute’s dual purpose, on the one hand to cultivate international criminal law and on the other hand to serve as a point of reference and progress for young jurists.

            Subsequently, Emeritus Professor at the University of Munich Bernd Schünemann analyzed the minimum defense requirements under European Criminal Law and referred to the so called “defendant’s procedural rights definitive package” recognized by the E.U. that includes the presumption of innocence, the right to remain silent and the right to be present. Professor Schünemann pointed out that up to now, the European legislation essentially aims at the transfer of the European Court of Human Rights case-law to the law of the European Union without undertaking any innovative solutions that would reinforce the rule of law. In addition, Professor Schünemann criticized the decline in effective defense in international criminal proceedings due to the replacement of double criminality and the principle of the maximum possible benefit with the principle of mutual recognition and the reinforcement of the law enforcement bodies through Eurojust and the European Prosecutor, without the corresponding reinforcement of the defense side, not even by the single E.U. legislative instruments. He also stressed the imperative need for guaranteeing an effective cross-border defense in order to ensure a transnational equilibrium, as the one that was presented in 2006 at the “EU Action Plan for Criminal Justice” through an institutional counterbalance that would consist of the limitation of mutual recognition, the intra-European concentration of jurisdiction solely on an investigative process and the dual institution of the European Defense Agency.

            The Assistant Professor at the University of Athens Dimitrios Kioupis analyzed the European Procedural framework on economic crime. Through the use of typical examples, he raised the issue of international cross-border crime, that occurs within the area of security, freedom and justice by explaining four basic questions: who prosecutes the criminal act, who investigates it, who rules on it and who executes it. The analysis focused on the formation of a procedural framework within which the issue of simultaneous or consecutive prosecution, investigation, trial and execution by multiple authorities of member – states would be solved satisfactorily, with the aim of discovering the substantial truth, achieving justice and protecting the rights of the defendant, given that the broad harmonization of criminal law cannot be placed at the beginning of the political integration process but at its end. The speaker reminded, that the court which first issues a final decision on a case produces a res judicata for the parties involved, while he pointed out the importance of the criteria for the choice of forum, the role of Eurojust and the role of the defendant.

            Assistant Professor Georgios Triantafyllou developed the issue of money laundering with international aspects through the lens of international criminal law. He referred to the regional limits of Greek criminal laws when the laundering takes place abroad but also to the possibility of committing money laundering on national level when the predicate offense has been committed abroad. The speaker reviewed the existing legislation, raised the lack of legislative progress commensurable with the principles of international criminal law and the unjustifiable expansion of Greek criminal jurisdiction as a result of the fragmentary character of provisions and their severance from the general part of the criminal code. He also developed the case of committing the predicate offense abroad and referred to double criminality, pointing out that due to the dependent nature of money laundering, the act cannot by itself exist, if it abided by the laws of the country where it took place, as well as in cases of different legal definitions or procedural specificities among jurisdictions.

Finally, Dr. Stefanos Stanellos, lawyer, discussed the relationship between prohibitions of the use of evidence and judicial cooperation in tax crimes, using as his starting point the Council of Europe Convention on Mutual Assistance in Criminal Matters signed in Strasbourg on 20.04.1959 and entered into force in 1962. Judicial cooperation raises the issue of the permissibility of evidence that has been illegally acquired, given that the absolute prohibition provided in article 177 paragraph 2 of the Greek Code of Criminal Procedure is not accepted as a rule on international level. It is, however, common ground that the state which requests mutual assistance needs to take into consideration potential clauses that the requested state could use and that article 2a of the above mentioned Convention leaves open the possibility of refusal in tax crimes. In the case of illegally obtained evidence, the requesting party’s assistance in obtaining the evidence is crucial; if the evidence was unlawfully obtained with the initiative and responsibility of a private party it could taken into consideration.

The above raised thorny issues demonstrate the need for the Institute’s establishment and the role it is called to play within the much-tested Greek society and the constantly changing international field. In December 2015, another event will take place on the topic of the protection of antiquities within international criminal law and the issue of their repatriation. In April 2016, the Institute will hold a meeting on the role of the European Prosecutor while from 3 to 5 June 2016 it will organize an International Conference on various current topics.

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