Principles of Criminal Law Lecture Notes PDF

PRINCIPLES OF CRIMINAL LAW a.a. 2024-5 Dr. Anna Costantini [email protected] INTRODUCTION TO THE COURSE  Criminal Law is the law governing CRIMES and W H AT I S their SANCTIONS. CRIMINAL LAW? involves punishment W H AT...

PRINCIPLES OF CRIMINAL LAW a.a. 2024-5 Dr. Anna Costantini [email protected] INTRODUCTION TO THE COURSE  Criminal Law is the law governing CRIMES and W H AT I S their SANCTIONS. CRIMINAL LAW? involves punishment W H AT I S A C R I M E ? Is there a «SUBSTANTIAL» NOTION of crime? no universally accepted substantial definition of «crime» Possible definition: an offence considered as public wrong (= an offence against the duties owed to society and that the society has the right and duty to punish) (difficult to establish once and for all what is public wrong…) Distinction between: «MALA IN SE» = «natural crimes», behaviours considered as crimes by everyone and in every jurisdiction (e.g. homicide, theft, …) «MALA QUIA PROHIBITA» = «artificial crimes», behaviours considered as crimes just because they are declared as such by a particular legislation (e.g. gambling, speeding,...) W H AT I S A C R I M E ? FORMAL NOTION Crimes are offences sanctioned with criminal sanctions (circular definition) What are CRIMINAL SANCTIONS? = sanctions involving PUNISHMENT  1. Punishment must be for breaking the law: it is A RESPONSE TO A CRIME 2. Punishment must be of a person for breaking the law (PERSONALITY of criminal liability) THE CONCEPT 3. Punishment must involve a loss (= infliction of pain) Punishment must be inflicted by the State or a public authority OF 4. « P U N I S H M E N T» PUNISHMENT = infliction of some degree of sufferance by the State as a reaction to the breaking of the law Punishment is NOT COMPENSATIVE in nature. THE «GLOBALIZATION» OF CRIMINAL LAW CRIMINAL LAW AS A “NATIONAL” LAW: But… The process of internationalization of it falls within the sovereignty of criminal law: the State 1) The INTERNATIONAL CRIMINAL LAW (ICL) system UE Law Human Rights Law 2) (indirect) IMPACT OF (e.g. - European Court of Human SUPRANATIONAL LEVEL ON NATIONAL Rights; - Inter-American Court of Human CRIMINAL SYSTEMS Rights; - African Court on Human and People’s Rights) THEORIES OF PUNISHMENT  Punishment is the strongest power of the THE State over individuals: it requires justification (→ we need to find a LIMIT to R A T IO N A L E S its expansion) FOR PUNISHMENT: Two possible approaches: W HY DO W E 1) ABSOLUTE THEORIES: punishment is justified in itself (punitur quia peccatum est) P U N IS H ? 2) RELATIVE THEORIES: punishment is justified in view of the purpose of preventing crimes (punitur ne peccetur)  PREVENTIVE RETRIBUTIONISM THEORIES vs (absolute theory) (relative theories) Backward-looking perspective (we Forward-looking perspective (we punish because a crime has been punish in order to avoid future committed) crimes) R E T R IB U T IO N VS P R E V E N T IO N  RETRIBUTIVISM (Also known as theory of «just desert») The offender deserves to be punished because he committed the crime Absolute theory: punishment is justified in itself Overcoming of private vengeance R E T R IB U T IO N  RETRIBUTIVE THEORIES (3 VARIATIONS) 1. DIVINE RETRIBUTION: the person who commits crimes also violates a superior law offending God, who therefore delegates judges on earth to restore the divine justice. 2. MORAL RETRIBUTION (Kant): punishment is a categorical imperative aimed at compensating the violation of an ethical principle caused by the crime. 3. LEGAL RETRIBUTION (Hegel): punishment aims at symbolically re- establishing the violated legal order. R E T R IB U T IO N  Arguments to explain retribution Free will: the offender is responsible for freely choosing to do wrong Debt «pay-back»: by committing the crime, the offender owns a debt to society and he has to repay it through punishment Unfair advantage: punishment removes the unfair advantage that the criminal has taken on the rest of the society R E T R IB U T IO N  Implications of retributivism (in terms of Limits to punishment) 1. PRINCIPLE OF PERSONALITY OF CRIMINAL LIABILITY: if we punish someone who deserves to be punished, we can punish only a person who committed the crime and who was blameworthy for it 2. PRINCIPLE OF PROPORTIONALITY: punishment should be proportionate to what the offender deserves (it must «fit the crime») R E T R IB U T IO N  CRITICISM Overlap between MORALITY and LAW Subjectivity of morality Does the State have the right to determine what is “wrong” and what is “right”? It would be contrary to the principle of laicity What is “just” (or proportionate) punishment? In a moral perspective: what about compassion, mercy, forgiveness? R E T R IB U T IO N  PREVENTIVE THEORIES Forward-looking: we punish to avoid future crimes Punishment is justified in view of a purpose (the prevention of crimes) General prevention = punishment is aimed at preventing all citizens from committing crimes Special prevention = punishment is aimed at preventing the wrongdoer from committing crimes again in the future PREVENTION  UTILITARIANISM Jeremy Bentham (1748-1832) and Ludwig Feuerbach (1804-1872) Bentham’s PRINCIPLE OF UTILITY The purpose of law is to «produce the greatest happiness to the greatest number» (that is: to provide a benefit for the community) Punishment is evil in itself (because it is a form of pain) Punishment can thus be justified as far as it promises to exclude a greater evil, that is, the crime. Punishment as a means to an end: the community protection by the prevention of crimes. PREVENTION  UTILITARIANISM How punishment can prevent the commission of crimes? According to Utilitarians, human beings are rational individuals: human behavior is driven by the pursuit of pleasure and the avoidance of pain. The decision to commit a crime is determined by a balance of benefits and costs (pleasures and pains): punishment is a form of pain (if greater than the “pleasure” of the crime, it will deter the individual from committing it) The function of punishment is thus DETERRENCE (or intimidation) Utilitarianism influenced Modern Economic Model of Crime (Becker and Posner) PREVENTION  DETERRENCE GENERAL DETERRENCE SPECIFIC (OR INDIVIDUAL) DETERRENCE PREVENTION  CRITICISM Kant’s MORAL OBJECTION: human beings should not be instrumentalised for preventive purposes (the human being is an “end” in him(her)self, he/she can never be manipulated merely as a “means” to the purposes of someone else) VIOLATION OF PROPORTIONALITY: general prevention leads to excessive increases in penalties EMPIRICAL OBJECTION: is punishment really effective as a deterrent? (As for individual deterrence) CRIMINOGENIC effect of incarceration (high recidivism rate) DETERRENCE  GENERAL PREVENTION: SPECIAL PREVENTION: 2 forms 2 forms NEGATIVE SPECIAL PREVENTION: NEGATIVE POSITIVE A) INDIVIDUAL DETERRENCE GENERAL GENERAL B) INCAPACITATION PREVENTION PREVENTION (general (cultural deterrence) orientation) POSITIVE SPECIAL PREVENTION: REHABILITATION PREVENTIVE THEORIE: THE OVERALL PICTURE  INCAPACITATION = neutralization of dangerousness of the criminal Punishments physically prevents dangerous persons from committing crimes N E G AT I V E S P E C I A L P R E V E N T I O N : I N CA PAC I TAT I O N  REHABILITATION Punishment as a means to reform the criminal so that he becomes a «good citizen» and does not commit other crimes in the future Punishment should involve positive steps (not only incarceration): educational and training programmes POSITIVE SPECIAL PREVENTION: R E H A B I L I TA R I O N  CRITICISM 1. INCAPACITATION: it can lead to indeterminate imprisonment (or disproportionate sentence) if the criminal is considered as a danger for society 2. INDIVIDUAL DETERRENCE: criminogenic effect of incarceration (see retro) 3. REHABILITATION: a) is it effective? b) is it just to impose rehabilitation? SPECIAL PREVENTION  RETRIBUTIONISM AND UTILITARIANISM Influence on the two main “schools” of criminal law (19th century), both in Germany and Italy Germany: Classical school (Binding) vs “progressive” school (Franz von Liszt) Italy: Classical school (Francesco Carrara) vs positive school (Cesare Lombroso) “Clashes” of Schools THEORIES OF PUNISHMENT « P O L I F U N C T I O N A L I T Y» O F P U N I S H M E N T A N D CONSTITUTIONAL PRINCIPLES COEXISTENCE OF THE DIFFERENT FUNCTIONS (RETRIBUTION, DETERRENCE, INCAPACITATION, REHABILITATION) Limit of proportionality Constitutional provisions on the purposes of punishment: re-education principle (e.g. Art. 27. 3 Italian Constitution; Art. 25.2 Spanish Constitution: “punishment shall aim at re-educating the convicted”) FUNCTIONS OF PUNISHMENT IN THE DIFFERENT STAGES OF THE PUNITIVE POWER 1. “Threat” stage (criminal provisions): general deterrence But with the limit of proportionality 2. Sentencing phase: General deterrence cannot be the main purpose (mainly) special prevention But with the limit of proportionality 3. Enforcement phase: special prevention Deterrence / principle of proportionality