If a member state’s criminal law or a constitutional provision conflicts with the Charter, the national law must yield, and several member states’ laws may need review. This also applies to Danish criminal law, which may conflict with the Charter.
Read attorney Hans Sønderby Christensen’s article published on Tuesday, May 29, 2018, on Jyllands-Posten’s website here or download it as a PDF here.
In EU law, the EU Charter of Fundamental Rights plays an increasingly important role in legal development. Not only has the Charter made the fundamental rights applicable in the EU more visible and easily accessible to individuals and businesses in the EU, but it has also created a better basis for strengthening their rights protection.
Fundamental freedoms and human rights are otherwise associated with the member states’ constitutions and the European Convention on Human Rights. However, with the entry into force of the Lisbon Treaty in 2009, the Charter achieved the same legal status as the EU treaties and has since taken precedence over national constitutions. The Charter contains a firm protection of individuals’ and businesses’ fundamental rights, often to a greater extent than is known from national constitutions. It is therefore essential for both individuals and businesses in Denmark and the rest of the EU to know the Charter’s proper scope.
Initially, a number of EU member states, led by Sweden and Denmark, assumed that the Charter had only a narrow scope. The wording might suggest that. However, based on a Swedish case (the Fransson case), the EU Court of Justice ruled in 2013 that the Charter can be used wherever EU law is applicable. The application of EU law thus also implies the application of the fundamental freedoms and human rights guaranteed by the Charter. The effect is that in all cases where EU law applies, member states, as a result of the primacy of EU law, must not apply national rules that conflict with the Charter.
To a large extent, the fundamental rights in the Charter correspond to those already known from the European Convention on Human Rights. The Charter ensures at least as good protection of rights as under the Convention. However, the Charter may also grant a higher level of protection than corresponding provisions in the Convention. There are also examples of the European Court of Human Rights having granted provisions in the Convention a higher protection than before the Charter.
Before the Charter acquired the same legal value as the EU treaties in 2009, the Human Rights Court had for many years followed a fixed practice, according to which the accused in a criminal case should be judged according to the criminal rules of the time of the offense. According to the then-current practice, no importance was attached if the rules had subsequently been made more lenient at the time of the judgment.
However, this practice changed in a landmark case from 2009 (the Scoppola case). Here, the Human Rights Court, based on the Charter, ruled that the accused must be judged according to the criminal rules of the time of the offense and the time of the judgment that are the most lenient, and that a corresponding right can be derived from the Convention. This was established despite its previous practice and despite the fact that the wording of the Convention did not contain a clear provision on this. The Human Rights Court explicitly referred to the Charter as a reason for granting the private party better protection than before under the Convention.
According to international rules as they apply today, both under the Charter and the Convention, it is a fundamental right that the accused must be judged according to the most lenient criminal rules of the time of the offense and the time of the judgment. Until the Charter acquired the same legal value as the EU treaties and the judgment in the Scoppola case, the Convention had otherwise provided less protection for the accused in such situations.
In the Danish Criminal Code, there is a provision that is very similar to the Charter’s. As a general rule, it also ensures the accused’s right to be judged according to the most lenient criminal rules of the time of the offense and the time of the judgment. It has been used in several cases. This was the case, among other things, in a case concerning the VAT Act. A person had thus been charged with violating the law in connection with the sale of used caravans. However, at the time of the judgment, the rules for calculating VAT on trade in used goods had been changed. This was partly due to the harmonisation of the EU member states’ VAT rules, and partly because the previous rules were not considered reasonable, as they led to distortion of competition and double taxation. The High Court ruled that, on that basis, the accused should be judged according to the more lenient rules of the time of the judgment.
However, according to the Danish Criminal Code, there is an exception which means that the accused is still not guaranteed to be judged according to the more lenient rules of the time of the judgment. The exception refers to situations where there are »external circumstances unrelated to criminal guilt«. In other words, where the leniency is justified by something other than a desire to de- or decriminalise, for example a technically-oriented adjustment.
The scope of the Danish exception therefore seems, in the opinion of leading criminal law jurists, to be broader than the exception that follows from the Charter and the Convention, which exclusively aims at crimes against humanity, where the stricter rules of the time of the offense are thus maintained. In Danish criminal law literature, doubts have thus been raised as to whether the Danish exception is compatible with Denmark’s obligations under the Charter. In the book Kommenteret Straffelov – Almindelig del from 2013 by Vagn Greve, Poul Dahl Jensen and Gorm Toftegaard Nielsen, the leading Danish criminal law authors state that the Criminal Code can hardly be maintained on this point with the practice that applies after the Charter has acquired the same value as the EU treaties. The Danish exception, they argue, is too broad.
Much suggests that this criticism is justified from an EU perspective. Denmark’s Criminal Code – and certainly also other member states’ legislation – could need a review in light of the internationally applicable legal situation after the Charter has acquired the same legal value as the EU treaties.
Last year, Morgenavisen Jyllands-Posten revealed how more lenient transport rules had not found their way to the courts and the public in the form of law or order. This created unrest in the industry among companies with pending criminal cases and criticism from leading lawyers. The example shows the need to ensure companies solid protection on the way towards benefiting from decided leniency. With international practice behind them, companies in such a situation stand with arguments worthy of recognition.
After a difficult birth with only little recognition, both the Human Rights Court and the EU Court of Justice show that it must be taken seriously in the member states that the Charter now has the same legal value as the EU treaties. A good place to start in Denmark would be to take the leading criminal law jurists’ EU criticism of the Danish Criminal Code seriously enough to comply with the Charter with a view to sharper protection of individuals and businesses.