On the methodology of comparative criminal law research

A. General methodological principles

The most basic methodological principle in the comparative sciences, and a key element of the method ⁶ of functional legal comparison (funktionale Rechtsvergleichung), is that of functionality: ‘Incomparable things cannot usefully be compared, and in law the only things that are comparable are those that fulfil the same function’. ⁷ This means that research projects that adopt this method of functional comparison should not start out with specific legal problems, norms or concepts in concrete national or international legal systems. Instead, the main point of reference should be an overarching factual problem or social issue such as: the various types of responsibility in cases of self-defence, the criteria for the penalization and investigation of misconduct or the evidentiary search for the truth as a basic social problem in the ambit of criminal procedure. ⁸ Moreover, research questions in the context of functional comparisons should be stated without specific reference to the concepts and terminology of one’s own legal system. ⁹

Accordingly, by way of example, the analysis of Article 267 of the Treaty on the Functioning of the European Union (TFEU) on the preliminary rulings of the CJEU would be a less than ideal choice as the main topic for a research project in the field of European criminal law. Instead, this project should focus on exploring, in general, the new and evolving competences of the CJEU in criminal matters. Another (simplified) example may involve comparing particular aspects of national criminal justice systems: in line with the above thoughts, it would be inconclusive, in most cases, to structure the outline of a research project focusing on the basic principles of criminal responsibility in German and North American substantive criminal law exclusively around a comparative presentation of Section 15 of the German Penal Code (Strafprozessordnung) and Section 2 of the US Model Penal Code, both of which cover intent and negligence as requirements for criminal liability. This approach might risk overlooking the fact that although, unlike the Model Penal Code, the German Penal Code fails to provide any substantial definition of the terms intent and negligence, as these concepts have been defined by German case law and legal doctrine. Moreover, the Model Penal Code also defines the concept of recklessness, whereas the German legal system does not recognize this type of culpability. In any case, the German Penal Code is the main source of substantive criminal law in Germany; by way of contrast, the Model Penal Code has been a useful but legally non-binding tool for updating and standardizing the criminal laws of the individual states of the U.S. Hence, an approach that focuses on a direct comparison of such specific legal norms would undermine the coherent definition of the research aims, might lead to overlooking significant material differentiations or to misinterpret similarities between the legal traditions and systems, and could deprive the entire research project of much needed added value. Instead, in the above example, the starting point of research might involve the definition, elements, and, most importantly, the limits of culpability in different legal orders belonging to the Western legal tradition.

In sum, comparatists should design their studies with the objective of acquiring new knowledge, and, in order to do so, the object of comparison should primarily refer to the various solutions applied by different legal systems in order to tackle the factual problems under consideration. ¹⁰ The practical purposes of the functional comparison served by this approach are as follows:

to enable the use of uniform, value-free concepts and terms as a research compass;

B. Universal, functional and computer-based comparison: The Max Planck Information System for Comparative Criminal Law

In the field of criminal law in particular, the research method of functional comparison has been elaborated and implemented by several studies carried out by the Max Planck Institute for Foreign and International Criminal Law ¹¹ in Freiburg (Germany), and, most importantly, by the Max Planck Institute’s flagship comparative project in operation since 2004: the International Max Planck Information System for Comparative Criminal Law. ¹² This project focuses, for the time being, on the general principles and rules of substantive criminal law in a vast number of national legal systems, with many of them traditionally classified as belonging to different legal families. The idea behind this large-scale comparative project is to create a system for the study of national criminal laws and provide wide access to basic knowledge in a methodologically sound way. As the creators of the Max Planck Information System noted, ‘in order to take account of the changes to criminal law around the world, develop general legal principles, and shape criminal policy, there is a growing need for a comprehensive, systematic comparison of criminal law that encompasses numerous legal systems’. ¹³ As for the goals for such a ‘universal comparison of criminal law’ involving a multitude of highly diverse legal systems, they will be elaborated upon in the following paragraphs. ¹⁴

The first goal was to develop a universal meta-structure of criminal law, accommodated by a single research outline uniformly applied to all legal systems, while taking into account the diversity of criminal law traditions and legal concepts. A detailed outline such as this provides country reporters with a solid foundation for the organization and analysis of the research material. Moreover, it facilitates the direct and systematic study of the research outcome in line with the method of functional comparison, especially in terms of identifying the general principles of the national laws, along with the various approaches taken around the globe to shared legal problems, drafting international model codes and furthering, in general, the development of an international criminal law doctrine. This is why it was an important feature of the project’s structure to consider the distinctive national characteristics and frequently encountered scenarios in the field of criminal justice and, at the same time, overcome country-specific limits and possibly avoid the horizontal adoption of concepts and terms typically used in individual legal systems.

This explains why, in the course of its work, the competent research group of the Max Planck Institute for Criminal Law established a new design that is separate, detached and independent from domestic criminal law doctrine and the constraints of particular national systems. A prominent example is the analysis of the concept and the abstract definition of the criminal offence. In the Max Planck Information System, relevant discussions are not organized in terms of a tripartite offence system (objective and subjective constitutive elements of the crime, wrongfulness and blameworthiness) as is found in the German legal system, for example. Instead, the outline is based on a ‘common denominator’, in this case the almost ‘universal’ differentiation between the objective and subjective side of the criminal offence. Further, since in many systems the doctrine does not distinguish between justification and excuse, in order to facilitate comparability in the project’s outline, the respective scenarios are approached broadly and pragmatically from the perspective of the possible grounds for excluding criminal liability (for example, self-defence, state of emergency, coercion, and so on).

The second goal of the Max Planck Information System project was to provide access to the data gained from participating legal systems in the form of country reports authored by selected national experts and scientists on the basis of the aforementioned universal meta-structure and to publish the conclusions internationally in an open series format. ¹⁵ As such, the research outcome serves as a compendium of criminal law. Finally, the third goal involved creating an online platform to provide additional and free access to the basic information on criminal law referenced above. In the end, an internet-based information system was established that provides online access to the entire data set in a manner that enables direct comparisons and analysis of the various participating legal systems on every issue addressed in the project in accordance with the meta-structure and the common outline developed in the course of the project. ¹⁶

C. Application: The functional approach in the analysis of the CJEU’s Taricco judgment

The country reports prepared and published to date within the Max Planck Information System project share different structural levels. One of them involves an analysis of the grounds for excluding punishability, such as the limitation periods for the prosecution of criminal offences. The following analysis explores the example of limitation periods more specifically and describes, inter alia, the experience of using the online platform and the information provided in the database of the Max Planck Information System project for the purposes of a functional comparison, even in seemingly non-comparative studies.

The starting point is the judgment of the CJEU in the case of Taricco and Others. ¹⁷ Without going into too much detail, in its judgment of 8 September 2015, the CJEU delivered a preliminary ruling that for all intents and purposes goes beyond the interpretation of EU law and beyond ensuring a uniform application of the law in the legal systems of the Member States. The question that the CJEU was called upon to consider was whether EU law requires the courts of the Member States to refrain from applying certain provisions of their national law on the limitation periods applicable to the prosecution of criminal offences in order to guarantee the effective punishment of tax offences that affect the financial interests of the Union. ¹⁸

Specifically, the judgment under consideration was issued by the Grand Chamber of the CJEU upon a request for a preliminary ruling under Article 267 TFEU, submitted by the District Court of Cuneo in Italy (Tribunale di Cuneo) with respect to criminal proceedings brought by the Italian authorities against Mr Taricco and six other individuals. The (in 2017 still) pending national criminal proceedings involve value added tax (VAT) related offences committed between 2005 and 2009, specifically, VAT evasion amounting to several million euros. The referring Italian court estimated that, due to the complexity and duration of investigations and proceedings of this kind, the limitation period under Italian criminal law for the prosecution of the particular offences will expire in 2018, that is, before a final judgment can be delivered. According to the Italian court, the accused persons may therefore enjoy de facto impunity, a scenario that is the rule rather than the exception in Italy in these types of economic crime cases. The Italian court, by emphasizing the existence of a link between the charged tax evasion offences and the infringement of the EU’s financial interests, assumed in its request for a preliminary ruling that the provisions of the national law on short limitation periods – especially the fairly short extension of the limitation periods allowed in case they are interrupted due to the commencement of prosecution – may violate EU law, in particular the EU provisions regarding unfair competition (Article 101 TFEU), the prohibition of state aid in the form of favourable tax treatment of certain undertakings (Article 107 TFEU), the lawful VAT exemptions laid down in Article 158 of Directive 2006/112/EC ¹⁹ and the guiding principle that the EU Member States must ensure that their public finances are sound (Article 119 TFEU).

In answering such preliminary questions submitted by national courts, the CJEU has a very specific competence, namely to rule on the interpretation of the EU Treaties, as well as on the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union. Nevertheless, in the case at hand, the Grand Chamber of the CJEU strengthened the protection of the financial interests of the EU by emphasizing the immediate effect and precedence of primary EU law in criminal matters; at the same time, the CJEU (indirectly) adopted the role of a quasi-constitutional court in an area that was for years the exclusive focus of national regulation and doctrine. It did so by providing an explicit ruling on the manner in which a national court has to directly disapply national criminal law provisions – here: specific rules of the Italian legal system that provide for short limitation periods – in a specific pending case. This judgment raises many questions, some of which even touch on the evolution of a ‘constitutional’ connection between the EU judiciary and national criminal courts. ²⁰ Specific questions relating to dangers arising from the CJEU’s judgment concerning legality and legal certainty are also important. This is because the CJEU, in its Taricco judgment, considered limitation periods, and short limitation periods in particular, as obstacles to an effective prosecution of domestic crimes which affect the financial interests of the EU. In that respect, the CJEU requires that any national court immediately disapplies any national provision that is contrary to EU law; a prior legislative repeal of the provisions or domestic constitutional procedures at issue are not required in this regard, according to the CJEU. ²¹

That is why, when analysing the judgment of the CJEU in light of the guarantees of legality and legal certainty, it is important to carefully explore, among other things, the legal institution of limitation periods in different EU countries in order to establish whether they are commonly considered part of the substantive or procedural criminal law. This is important with regard to the question of whether, in a pending case, it is allowed to retroactively disapply provisions on limitation periods in malam partem, that is, a disapplication with an immediate negative impact on the result of the criminal trial concerning the status of the accused. As implied in the Taricco judgment, the principle of legality and the prohibition of retroactive (dis-)application of criminal law provisions in malam partem refer primarily to substantive criminal law (definition of crimes and punishments), and not to procedural law. ²²

A search of the online database of the Max Planck Information System using its comparison features quickly reveals that in some European legal systems, at least in Spain and Greece, limitation periods are considered an institution of substantive criminal law or, at least, to be of a mixed nature. Hence, the application of limitation periods falls within the scope of the principle of legality and of the prohibition of retroactive legislation in malam partem. ²³ In terms of Italian law, which was of particular importance in the case at hand, questions regarding the extent to which the retroactive annulment of limitation period provisions in malam partem could be considered a constitutional violation of the principle of legality have not yet been definitively answered by the Italian courts and doctrine – at present, proceedings on these matters are pending before the Italian Constitutional Court. Imperative for the purposes of the present study is the fact that although limitation periods and the principle of legality are fundamental elements of the criminal law traditions of the EU Member States, the judges of the CJEU did not trouble themselves with a detailed comparative analysis.

Instead, the CJEU chose only to make brief reference to the quasi-relevant judgments of the European Court of Human Rights (ECtHR) that has the power of autonomously interpreting Article 7 (principle of legality) of the European Convention on Human Rights (ECHR). ²⁴ Indeed, in the case law mentioned in the judgment of the CJEU, the ECtHR regards limitation periods as primarily an institution of procedural law and excludes them from the protective scope of the principle of legality and from the prohibition of retroactivity. However, there is a flaw, in particular a functionality flaw, in the CJEU’s approach of specifying judgments of the ECtHR in order to justify its own judgment in the Taricco case: on the one hand, there is the CJEU, which is of the opinion that the judicial disapplication of short limitation periods in pending criminal proceedings does not infringe the principle of legality as laid down in Article 49 of the Charter of Fundamental Rights of the EU or Article 7 of the ECHR.

On the other hand, there is the case law of the ECtHR, which refers only to the problem of retroactive application of ex post facto statutes of limitation – not of judicial decisions – and, generally, of procedural provisions to the detriment of the accused in pending proceedings. The rulings of the ECtHR are in large part based on the notion that legal certainty as well as accessibility and foreseeability regarding substantive criminal law are not jeopardized in case of the retroactivity of such (procedural) laws. At the same time, the ECtHR, even in the judgments cited by the CJEU, ²⁵ also sets strict limits on the (retroactive) interpretation of legislation by the courts regarding limitation periods. The ECtHR expressly rejects, for that matter, legally unfounded and unforeseeable judicial decisions. Indeed, such unfounded and unforeseeable decisions are exactly those that are possible to be produced if complying with the demands of the Taricco judgment for judicially annulling limitation period provisions in pending criminal cases without a prior legislative repeal and, thus, without providing a concrete answer regarding the issue of the law of limitation periods to be subsequently applied. Gaps in the law, legal uncertainty, or even the possibility of not applying any limitation periods at all in order to protect the financial interests of the EU is definitely not what the cited ECtHR case law was aiming at when it considered limitation periods as an institution of procedural law that are to be excluded from the protective scope of the prohibition of retroactive legislation.

A. The theory of ideal types

Ideal types may serve as a supporting tool in designing the initial framework for functional comparisons such as in the field of criminal procedure. The implementation of ideal types in modern scientific studies has its origins in the socio-philosophical teachings of Max Weber. With respect to the criminal law sciences, the theory has continued to evolve, particularly through the works of Mirjan Damaška on procedural and criminal justice models. Significant examples of familiar dichotomies, particularly models of procedure and justice administration, which constitute classic prototypes in this context, are: ²⁶ the ‘hierarchical v. the coordinate model’ (Mirjan Damaška), ²⁷ the ‘conflict-solving v. the policy-implementing model’ (Mirjan Damaška), ²⁸ the ‘family v. the battle model’ (John Griffiths), ²⁹ as well as the ‘parental v. the arm’s-length model’ (Karl Llewellyn), ³⁰ the ‘crime control v. the due process model’ (Herbert Packer) ³¹ and, of course, the ‘adversarial v. the inquisitorial model’. ³²

According to Max Weber, an ideal type is a construct, which

in itself is like a utopia which has been arrived at by the analytical accentuation of certain elements of reality. Its relationship to the empirical data consists solely in the fact that where (…) relationships of the type referred to by the abstract construct are discovered or suspected to exist in reality to some extent, we can make the characteristic features of this relationship pragmatically clear and understandable by reference to an ideal-type. This procedure can be indispensable for heuristic as well as expository purposes. The ideal typical concept will help to develop our skill in imputation in research: it is no ‘hypothesis’ but it offers guidance to the construction of hypotheses. It is not a description of reality but it aims to give unambiguous means of expression to such a description. (…) An ideal type is formed by the one-sided accentuation of one or more points of view and by the synthesis of a great many diffuse, discrete, more or less present and occasionally absent concrete individual phenomena, which are arranged according to those one-sidedly emphasized viewpoints into a unified analytical construct (Gedankenbild). In its conceptual purity, this mental construct (Gedankenbild) cannot be found empirically anywhere in reality. It is a utopia. Historical research faces the task of determining in each individual case, the extent to which this ideal-construct approximates to or diverges from reality (…). When carefully applied, those concepts are particularly useful in research and exposition. ³³

In order to gain the most from this complicated definition in terms of a correct application of the methodology of ideal types to concrete scientific studies, the first step is to assume the position of an observer and investigator of reality, for example a social scientist. The scientist observes certain elements of reality and uncovers a consistent explanation for their significant characteristics, in other words: the essential tendencies of diverse elements and their ‘meaningful interrelationships’ ³⁴ as defined by the problem at hand. The identification of a central idea expressed in these essential tendencies enables the scientist to emphasize the interconnection of these specific elements and phenomena in a consistent manner and to organize them in the form of a unified analytical construct according to their logical compatibility. Ultimately, the outcome should be a coherent whole. This process of selection and systematization occurs on the basis of the investigator’s own points of view. Only those aspects that are essential in terms of specific (theoretical) goals and interests may be selected for the construct. ³⁵

Max Weber uses, inter alia, the example of the city-economy. ³⁶ Let us just say that the elements selected for the ideal type of city-economy are the principles of the exchange economy, free competition and rigorously rational conduct. In itself, this construct is like a utopia. This abstract mental construct is conceptually pure, it cannot be found anywhere in reality. In general, according to Max Weber, no scientific system and mental construct is ever capable of reproducing concrete reality in its entirety due to the infinite diversity of particular phenomena. ³⁷ Hence, the city-economy that consists exclusively of the elements preselected by the social scientist in order to build its pure form does not really exist. Any relationship to empirical data exists only to the extent market-conditioned relationships of the type referred to by the abstract construct are discovered or suspected to exist in reality to some extent. As Max Weber suggests, ‘we can then make the characteristic elements of this relationship better understandable by reference to an ideal-type’. ³⁸ As a result, ideal types generate a standard against which real similarities and differences between phenomena can be measured. The purpose of an ideal type is to provide a clear and simple means of expression for the description of real phenomena and a means of comparison with concrete reality in order to reveal the significance of that reality. In terms of Max Weber’s example, it is ultimately for scientific research to determine the extent to which the economic structure of a certain city should be classified as a city-economy. Overall, according to Max Weber, ideal types are a technical aid – a tool – to facilitate clarity and terminology. ³⁹

Elaborating on Max Weber’s teachings, Mirjan Damaška has provided an alternative approach to procedural models. This approach

involves a search for ideas capable of linking procedural arrangements into recognizable patterns. Once obtained from the observation of real-life systems, these ideas are used as vehicles for organizing a whole range of procedural issues. The sum total of these issues, appearing now as entailed in the animating ideas, constitutes a procedural model in its “pure” or “ideal” form. Models so conceived, although fictitious creatures, seldom if ever encountered in reality, can be employed for a variety of purposes. Insights derived from them can be of help in spotting unsuspected connections among procedural forms. A debate about a procedural rule or institution can turn into a debate about the relative merits of ideas that animate pure models to which this rule or institution is related. Most clearly, however, pure models are useful for taxonomic purposes. Just as works of art can be recognized in terms of a particular style, so an existing procedure can be assigned to a particular model. And just as to classify a work of art as pertaining to a particular style, it is considered sufficient that the work encompass some, though not all, elements of a stylistic idea, so a particular procedure need not display all elements of a model to be assigned to it. Of course, a procedure can also be recognized as a combination of elements taken from pure models. ⁴⁰

B. Application: The ideal type in the examination of the role of the judge in adversarial and inquisitorial evidentiary proceedings

The methodological guidelines and principles presented above may indeed be helpful, for example in terms of designing pure extreme models ⁴¹ as the theoretical foundation for a systematic and comparative examination of traditional forms of (national and international) criminal procedure and, subsequently, for developing new conflict resolution mechanisms. To this end, it is necessary to compile models based on general observations and to uncover central ideas behind the structure and normative organization of various real procedural systems – especially of those that traditionally have considerable impact on other legal orders, such as the German, the French, the English and the North American systems. In line with the above analysis, these ideal types, which should include known (easily identifiable) procedural elements and goals, however, do not need to correspond to actual legal systems in all aspects. Rather, they should establish a purely theoretical framework of independent standards and hypotheses regarding the potential forms of procedure as well as the positions along a spectrum of procedural extremes that actual legal systems may adopt.