The substantive criminal law in European Union and harmonisation on the example of the law of the Republic of Serbia

Abstract

The paper analyzes the normative activities EU on the harmonization of the substantive criminal law, especially after the Treaty of Lisbon (2007–2009). The legal basis for EU competence in the field of substantive criminal law is Art. 83 of the Treaty on the Functioning of the EU (2016), but other legal bases are also used in practice. The result is the spontaneous development and expansion of the so-called secondary EU criminal law, which is decreasing only after 2017. The general part of EU criminal law has been developed only fragmentarily. Significant differences in ideology and criminal policy between the criminal legislations prevents complete harmonization with the EU law. Harmonization is vertical – the state is obliged to prescribe the minimal characteristics of a certain criminal offence (EU crime) and the corresponding sanctions. This compromises the criminal law’s coherence, especially in systems where a long legislative sentence is traditionally avoided. The example of the Republic of Serbia shows that in all legislative changes since 2009, have considered the need to harmonize with accepted international standards and the EU law, for example to prevent hate crimes, terrorism, human trafficking, corruption and economic crime. The author assesses that the change is conducted ad hoc, without the plan how to preserve the coherence of domestic criminal justice system and simultaneously provide for effective application of EU criminal law.