Minimum Criminal Penalties in the European Union: In Search of a Credible Justification

Abstract

The EU has recently mooted the possibility of harmonising minimum penalties. ‘Minimum criminal penalties’ refers to the lowest sanction available for a judge in a concrete case. Calculating the actual penalty involves legal mechanisms that might mitigate that penalty. Comparative analysis reveals that a distinction needs to be made between minimum penalties included in national criminal codes (in abstracto penalty) and the lowest penalty that might be imposed (in concreto penalty). Although in abstracto minimum penalties are found in the criminal codes of most Member States, they are fiercely opposed in others. In concreto minimum penalties that constitute an absolute limit to the discretion of a judge are even more controversial. Against that background, this contribution reviews whether or not the EU should force the Member States to impose absolute, in concreto minimum criminal penalties. It examines the justifications presented in recent proposals in light of legal and criminological research.

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“…Analysing the heterogeneity of penalties both minimums and maximums has a twofold relevance. On one hand, these differences can lead to forum shopping across the member states which means that criminals may choose to focus their activities in member states with the least severe sanctions (Bondt and Miettinen, 2015) and criminals may not only choose for different locations but they can also exploit the differences in legal systems to their advantage (Arnone and Borlini, 2010). On the other hand, these differences can also signal the seriousness given to these crimes across member states as a result of political, historical or economic reasons.…”

“…Analyzing penalties is relevant for three reasons. First, variations between countries can cause forum shopping across EU Member States, suggesting criminals can focus their activities in countries with less severe (expected) sanctions (Bondt and Miettinen, 2015). Criminals might not solely choose different locations but rather conjointly exploit the variations in legal systems to their advantage (Arnone and Borlini, 2010).…”