Velké oblasti harmonizace trestního práva – základy srovnání
Authors: Tomášek Michal 
Published: January 2025

The presence of fifty-two separate criminal processes in the United States would be much less significant if those processes all were subject to a single law that mandated an exclusive comprehensive regulation for all fifty-two jurisdictions. The U.S. Constitution is not such a law. It is only source of substantial legal regulation that is applicable to all fifty-two jurisdictions. It locks those fifty-two jurisdictions into a basic procedural structure that guarantees a commonality in most overarching principles reflected in the fifty-two different processes. In Australia there are nine different sets of criminal laws operating. Each of the six states, the two territories and the federal jurisdiction has its own criminal laws. Each state or territory has control over crimes occurring with its borders and a corresponding duty not to interfere with the affairs of other jurisdictions. Criminal Codes do not supersede the system of precedent as the provisions are not free of all ambiguity and need to be interpreted.
Such a situation is quite similar to the European Union where separate twenty-seven jurisdictions reflect different systems of criminal procedure based on exclusive rights of each Member State to perform criminal justice on its own territory. Nevertheless the process of “europeisation” of criminal law launched after the ratification of EU Treaty in 1993 and in particular after its amendment through Amsterdam Treaty in 1999 opened a bulk of theoretical problems in this area.
The criminal law in the U.S. is not a subject as to which there is a natural pressure to achieve uniformity. One factor said to lead to individuality in each state's criminal law is the diversity from state to state of the administrative environments in which that law is applied. Such differences exist in the EU as well but in general administrative a judiciary structure of European states does not differ that much as this is the case among some states in the U.S. In Australia the traditional territorial theory has been challenged by the rise of international offences. There are many offences where federal, state and territory legislatures have exercised their sovereign powers to apply the criminal law beyond their territories. There is as well a growing global interest in expanding the ambit of what are known as extraterritorial offences to include crimes against human rights such as torture, terrorism and sexual trafficking in women and children.
There can be found other factors that encourage lawmakers of the different states to look to common sources in shaping criminal procedure of their individual state. All U.S. or Australian states started with the common heritage of the English common law. This is obviously not the case for Europe where we have a heritage of continental criminal procedure and English common law tradition. The American or Australian criminal Jaw thus has more common principles for its jurisdictions than we can find for twenty-seven jurisdictions in Europe.
Concerning the instruments of criminal law harmonisation in Europe we definitely have a more formalised system (EC directives, EU framework decisions) than in the U.S. The American or Australian systems seem to be more voluntary for individual states to adopt common principles but less burdensome as to its effects.