HACIA UN PROYECTO DE DERECHO PENAL DEL MERCOSUR A PARTIR DE LA EXPERIENCIA DE ARMONIZACIÓN DEL DERECHO PENAL DE LA UNION EUROPEA

The harmonization of the law has been highlighted as one form of integration currently preferred by States not only to solve the problems of organized crime but also as a way to ensure the protection of human rights. The European Union has tried different ways to combat criminal problems arising from the integration process undertaken after World War II. Gradually, member States have accepted more penetrating obligations in their own elections of criminal and criminal procedural laws. With the Lisbon Treaty, the Union has reached an original supranational harmonization model in the field of criminal law. A model introduced during the European constitutional process consisting mainly of the recognition of different catalogs of fundamental rights and principles. But before coming to this model, the European Union has experienced several failures in attempts at harmonization of the laws and has had a sustained fight against the resistance of States to cede their criminal power. Indeed, the European Union needed to set up diverse flexibility mechanisms for those countries more resistant to cede part of their criminal power. Within the MERCOSUR regional scope, there are serious problems in fighting transnational crime and members share a common history of severe human rights violations. The harmonization of the laws seems to be the right path to strengthen regional integration and to resolve these problems. In MERCOSUR, criminal cooperation instruments already adopted are not enough and some disordered harmonization initiatives never managed to enter into force. Europe has always been a role model for South America given the historical cultural, social and legal ties. The study of the process of harmonization leads us to make valuable insights on how to take the path of criminal law harmonization in MERCOSUR and the “communitarisation” of the third pillar also helps us to identify the reforms to be made in the founding treaties in order to improve the effectiveness and legitimacy of the policy instruments of this process of integration. Given that the MERCOSUR now is part of the UNASUR, its experience of laws harmonization not only becomes crucial to fight new forms of criminality but also constitutes the first germ of what could be a process of criminal harmonization of all South America.