Ana Bobić is the Principal Investigator of the DFG-funded project Judicial Conflict in the Reconfiguration of control in the EU Constitutional Order. Before starting the project, she worked for three years at the Court of Justice for Advocate General Ćapeta. Kristina Hatas is a research associate on the project as well as a PhD researcher at the Hertie School within the Centre for Fundamental Rights, where she focuses on the human rights impacts of digital technologies.
Q: What is your research project about?
Ana Bobić: The project basically starts from a common intuition in EU studies: When the EU starts regulating something that is a core state power – something that we associate strongly with state sovereignty – we expect national courts to reject it and push back on such EU regulation. What interests us in this project are two things. First, we want to learn about national diversity in criminal law: How have the histories and socio-economic philosophies of the different member states influenced and shaped their criminal laws. And second: If the EU does want to intervene meaningfully in this area, what should conversations about and the management of this diversity look like?
Q: What makes the justification of punishment in different EU countries so interesting to you?
Ana Bobić: Our intuition as EU lawyers is to ask: Should the EU do this? Is this within EU's competences or is the EU constantly creeping outside of it? The EU always talks about being “united in diversity”, but I think that EU lawyers rarely engage with that diversity. We pay a lot of lip service to it and the legislative process assumes that simply harmonising national laws is a value in and of itself. But we don't really take this diversity seriously.
Kristina Hatas: There are two things that stand out about this project: I've been delving into the criminal law literature from certain jurisdictions and certain member states of the EU. While many of the authors noted that the EU and the organisation of criminal law play an important role, there seems to be rather little engagement with it. Perhaps something that we can do is to invite a conversation between these disciplines.
The second thing that stands out for me is how we talk about criminal or punitive systems. There's a lot of talk about imprisonment rates, about the punitiveness of a certain system: Is it rather lenient or more severe? What are the motivations? But there isn't a lot of comparison in between these logics of punishment. Why does the state punish? What is the objective of, for example, imposing a fine or sending somebody to jail?
Q: What surprised you the most in your research so far?
Kristina Hatas: Since I've been looking more into member states and comparing the national criminal systems, I've had a couple of surprises that I hadn't seen coming. One thing that shocked me – I must add that I am Czech, so I know the country fairly well – was that the Czech Republic is one of the very few states worldwide and, to my knowledge, the only state in the EU that still practises surgical castration on sex offenders. This is not without conflict with some bodies of the Council of Europe, and there is some movement going on. This was something that quite knocked the breath out of me.
Another thing that surprised me was this externalisation of punishment, namely prisons. In Sweden, for example, there is an ongoing political process that would entail renting prison spaces in Estonia, so that certain prisoners would serve their sentences in Estonia rather than in Sweden. I was quite surprised that this isn't a bigger part of the European conversation. What happens when we not only recognise arrest warrants or punishments in other countries, but we start shipping prisoners between member states. What would this mean for things like reintegration or rehabilitation?
Q: What impact do you hope your project might have?
Ana Bobić: What we see is how the EU's very existence – not necessarily the EU's regulation of criminal law, but the EU's migration policy and so on – affects criminal law. For example, Sweden – which was traditionally a country with low punitiveness, a focus on rehabilitation and reintegrating the individual – is now going back to increasing punitiveness with the rise of migration. The very pressures of European integration, the pressures on the welfare state, simply the change of the demographic makeup of societies, changes the philosophies of punishment.
The EU doesn't have a coherent vision of why criminal law is important beyond functionally ensuring other EU aims. There's nothing wrong with harmonising areas of criminal law, but acknowledging the diversity that exists out there, that is something that our project aims at.
Q: What relevance does the Jacques Delors Centre have in your research?
Ana Bobić: I have two answers. The first answer is that the JDC is currently the ‘Reconfiguring Europe’ hub. The second thing is, if we want to become policy relevant and at a certain point need access to policy makers, the JDC really is the place to be, thanks to their connections and their policy work.
Kristina Hatas: This is what really stands out about the Hertie School, both as a university and as an institution: This collaboration between disciplines and across disciplines. Myself being a Hertie alumna and having studied both political science and law, I particularly appreciate that there isn't this rigid structure which prevents cross-fertilisation across disciplines, but rather that we can draw from different areas of scholarship. This is also very emblematic for the project that we're working on.