Appunti di criminal law and international law, Appunti di Diritto Penale

Scarica Appunti di criminal law and international law e più Appunti in PDF di Diritto Penale solo su Docsity! International and transnational criminal justice 03/10/2022 - Introduction of the program till November CRIMINAL LAW has to do with subject. Differences between a crime and a thought. How to define that a conduct is a crime? A crime can have 3 elements: 1. Actus reus: This term refers to the part of the definition of the offence which relates to the actions of the defendant and their consequences. Conduct (an action or a mission) in a materialistic point of view: causal relation between the conduct and the result. The act of shooting will lead to the death of a person but the causal relation between the act and the result has to be proven by the judge. A good starting point is the principle that the defendant can be said to have caused a result only if ‘but for’ his or her act the harm would not have happened. This is sometimes known as factual causation. For example: - One case (White) a defendant poisoned his elderly mother’s tea. Before she took a sip she suffered a heart attack. The medical evidence showed that her heart attack was unrelated to the poisoning. In other words, she would have died in exactly the same way and at exactly the same time had she not drunk the poison. The result was that he could not be said to have caused her death. However, he could be charged with attempted murder. The courts have held that the defendant will have caused a result if his or her act was an operating and substantial cause of the death. His principle has been of particular relevance in cases where a defendant has injured the victim, who is taken to hospital, where the treatment the victim receives is negligent. The courts have tended to say that the defendant’s acts are still an operating cause. After all, but for his or her actions, the victim would not have been suffering injuries that required him or her to go to hospital in the first place. A basic principle underpinning the law in this area is that a person is responsible for their actions and no one else. Sometimes the courts and commentators have talked in terms of a ‘chain of causation’. A defendant is responsible for the events that follow from his or her action (the chain) unless someone else intervenes in the chain of causation. - “Thin skull” rule: A well known rule of the law of causation is that the defendant must ‘take his victim as he finds him’. This means that if a defendant pushes someone over and because they have a thin skull they crack their head and die, the defendant will be liable for causing their death - Omission: Generally in English criminal law you are not liable for an omission. That is, however, subject to one important exception, and that is where the defendant is under a duty to act. A duty to act can arise in a number of situations, including: if you’re the nanny of a baby who’s drowning, if you’re the baby’s parent. In this regard English law is out of step with many other countries in Europe. Many of them have ‘Bad Samaritan’ laws, these are laws which punish people who see another person is in danger but walk on by without offering them any help but some lawyers think that you should also be free to mind your business, without hurting anyone, and so you shouldn’t face prosecution. 
 2. Mens rea (mental element of offense) : The Latin term “mens rea” is loosely translated as “guilty mind”. - Internal elements: will (believe it would happen); foresee a risk it might happen. If offences focus only on the conduct of the accused, they would be rather blunt weapons. Before we can properly blame D for what she has done, it is necessary to know whether she meant to do it; knew the risk ecc; Voluntary act requirement when identifying the mens rea of an offence, we are generally looking to find which mens rea term (intention, recklessness, negligence and so on) is required of D in relation to each element of the actus reus; Strict liability: actus reus with no corresponding mens rea. RESPONSABILITA’ OGGETTIVA. Selling defective products. They are criticized as lacking respect for the principle of autonomy. Drive beyond speed limit or beyond alcohol rate admitted. This expression defines the psychological element. We are humans and then the psychological element has to me 1 considered, If that person acted with dolus (intention) is more harmful than negligence. If has to be proven the awareness of the person in committing the crime. What distinguishes an accident from an attack is the mental element involved. For nearly all serious criminal offenses a mental state must be proved, for such crimes it is necessary to prove only that the defendant acted in a particular way. However, the ‘principle of mens rea’ is not an absolute principle. There are some crimes which require proof of no mental state. These are known as offenses of strict liability (minor such as parking offenses or concern the regulation of businesses e.g. pollution offenses); fair labelling principle means that the name given to the offence should match the definition of the offense. Crimes of partial strict liability require a mental element to be found in some aspects of the conduct but not in relation to other parts. An example of a strict liability offence would be speeding. A person will be guilty of the offence of driving in excess of the speed limit even if they were not aware of the speed limit or the speed they were traveling at. The example of speeding is a good example of why strict liability offences are necessary. (1) It would be impossible for the prosecution to demonstrate in speeding cases that the driver knew what speed they were traveling at. (2) The offence is relatively minor in the sense that no great stigma is attached to a conviction for speeding, therefore less wrong is done to the morally innocent person who is convicted. (3) A cautious driver can ensure without great effort that they are lawful. An important case in this issue was R v G, where a young man was told by a girl that she was fifteen when in fact she was twelve. They had sexual relations together. He was charged with the offence of rape of a girl under thirteen. His defense that he believed her to be fifteen was held not to be effective because the offence was one of strict liability as regards the age of the victim. All that needed to be shown was he intended to sexually penetrate the victim. Mental element —> intention, reckless and negligence. • Intention: Intention is the most serious standard of mens rea, demonstrating the greatest culpability and the greatest blameworthiness. Generally speaking, to intend a result is to act with the aim or purpose of producing that result. Generally speaking, to intend a result is to act with the aim or purpose of producing that result. The core definition of intention, is that it was the defendant’s purpose in committing an action. Intention is something distinct form motive or desire. Ex. mercy killings (good motive: to put an end to the victim’s pain and suffering).  - Direct intention: D intends something in law if she acts with a purpose or aim towards it. If a defendant points a gun at the victim’s head and pulls the trigger, the jury will have the follow convincement: the only purpose the defendant would have in pulling the trigger would be the intention to kill or cause serious injury to the victim.  - Special intent :(dolus specialis). Ex. Genocide “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”. It is required a special intent; even if the intention does not need to be concretely realized In case of murder, in Anglo-American criminal law, the difference between intention and recklessness marks the fundamental difference between murder and manslaughter. In other Countries, this difference influence the measure of punishment. There are cases less straightforward. There are cases where the defendant claims to have been acting for one purpose, but another is very likely to occur.  An oft-quoted example is of a person who puts a bomb on an aircraft with the purpose of collecting insurance money from the goods on board which will be blow up. Although his purpose is only to blow up the goods, he is aware that pilot’s death is effective inevitable.  - Oblique intention: There is intention if the result was virtually certain to occur as a consequence of the defendant’s action and the defendant realised it.  R. v. Woollin. The appellant was charged with the murder of his baby son, who has died of head injuries. Foresight of virtual certainty test: it must be shown that death or serious injury was virtually certain and that the defendant realized that this was so. The problem for juries, of course, is that it is impossible to know exactly what is going on inside a person’s head. The jury will have to use their common sense to ascertain the person’s state of mind when they committed their crime. In many cases they are unlikely to have any problems. If a defendant points a gun at the victim’s head and pulls the trigger, the 2 unavoidable error iuris (the offender committed an actus reus but he/she didn’t know it was a crime, law doesn’t admit ignorance but in some circumstances where the person is excusable, was the ignorance inevitabile?) —> MENTAL ELEMENTS excuse the conduct. This is an eccezione quindi va dimostrato. We can distinguish two types of circustances of avoidavility (inevitabile vuol dire che si può scusare): - Objective parameter —> the crime was, from an objective point of view, not clear. The person had not the possibly to know the crime from an objective point of vie. i.g taxes crime, law is unclear so the crime wasn’t understandable. - Subjective parameter—> lack of socialization, integration. i.g an immigrant, and I recently moved from another country so I’m not familiar with the local law. We have to evaluate many factors: time (how long have you been in Italy? The longer, the more possibilities you had to learn about local law). The difference between justification and excuses is practical significance of the difference: l) Accessories. If a third party assists someone who is acting in a justified way, he or she is not guilty of any crime. In case of justification we have the exclusion of all the persons involved II) Nature of the legal test. Progression. III) Strict liable offence. Justifications are available to any crime. 4. The principle of clarity: It is generally agreed that it is very important that criminal offenses are drafted with clarity so that people know what they can and cannot do What kind of conduct should be criminalized? It’s possibile to criminalized conducts that are harmful for others. Why do we punish? The aim of punishment (In Italy we have a reform about it) is to restore the harm through a dialogue among stakeholders (mediator or facilitator or members of the community), the victim and the offender and then the judge will consider the agreement they found. In Europe, in 2018, it started to promote this kind or resolution (it will be explained why and how). One issue is whether criminalizing behaviour is seen as something undesirable which requires a strong justification or whether criminalizing behaviour is not in itself necessarily bad. Why might someone take the view that criminalization should be regarded as a ‘last resort’? A popular reason is that we prize autonomy, that is, the freedom to live our lives as we wish. The government should restrict what we do only if there is a very good reason for doing so. The criminal law with its risk of imprisonment and its condemnatory message is a particularly serious intervention in our freedom and should be used only if absolutely necessary. But there are some who do not accept these points. They argue that criminal law should not be regarded in a negative light, to them criminal law can provide an important structure for society to operate within, to protect vulnerable members of society and to enable us to live together in communities. Indeed, the criminal law protects us from harm inflicted by others and so in a sense enhances our autonomy. Seen in this more positive light, criminal laws do not require a particularly strong justification, only evidence that they contribute to the general well-being of society. Legality/Law —> protect victim, society… how? —> “we” are exercising power against a person who committed a crime so it’s important to understand the limits in exercising this power. In criminal law there are two aspects: - Protection of the society and the victim with rules - To contrast the power of the state, there are principles to protect the offender INTERNATIONAL CRIMINAL LAW has to do with States, (we are talking about people who committed a crime on behalf of a State, other times autonomously but in a group such as the Ruanda genocide where there were two groups involved. There are common crimes (omicide, rape) that are committed towards multiple persons (war crimes, crimes against humanity, genocides, crimes against peace). ICC has a jurisdiction for these crimes considering also the political point of view. 5 Program from November till the end of the course: TRANSNATIONAL CRIMINAL LAW: crimes that are committed in more than one State and it’s difficult to contrast, borders are part of the problem (traffic of human being, mafia organizations). Concerning human trafficking, it will be studied art. 4 ECHR on HBT. 04/10/2022 - basic concepts THE HARM PRINCIPLE: J. S. Mill, states that behavior should not be criminal unless the behavior causes harm to another person. This means that behavior which is not harmful should not be made criminal, even if other people might believe that the behavior is immoral. 1. What is a crime? You should consider the differences between a crime and other actions that create injustices. It is important distinguish criminal offense from any civil law tort that is similar. FORMAL DEFINITION: Broadly speaking, a crime is an event that is prohibited by law, one which can be followed by a prosecution in criminal proceeding (there’s a judge) and, thereafter by punishment (imprigionare)  on conviction.  Criminal law is the variety of law that prohibits such crimes. It’s formal because we consider the name “crime”. SUBSTANTIAL DEFINITION: Wrong doing: security and well-being of society —> Duty to protect: it is not safe to leave it redressable only by compensation of the party injured. in public law, if I break a contract I pay to compensate; In a murder the state has the interest to intervene. - Prospettive about a) subject; b) proof A. Subject: • (PL) in tort, monetary compensations.  • (CL) Criminal cases represent an action by the state (as prosecutor) against the defendant, with a successful prosecution leading to the punishment. The criminal law’s focus on the wrongful conduct of D, as opposed to the compensation of V. The nature of criminal law shows that crimes are regarded as essentially wrongs in which the state has an interest or which the state is properly involved in bringing proceedings. B. Proof: • (PL) V must prove her case on the balance of probabilities (the civil standard of proof).  • (CL) The State must prove its case against D “beyond reasonable doubt” (the criminal standard of proof). THE PRESUMPTION OF INNOCENCE. One of the fundamental principles of English criminal law is that a person is presumed innocent, unless they are proved guilty. Hence a jury can convict a defendant only if they are persuaded that beyond all reasonable doubt the defendant is innocent. What the principle does mean is that even if the jury think it more likely than not that the defendant committed the crime, they should not convict if they still have some genuine doubts over his or her guilt. The principle that a defendant is innocent until proved guilty is a recognition of the severity of a conviction and punishment for a crime. In effect it involves acceptance that it is preferable for some guilty people to go free than for some innocent people to be convicted. Indeed, the European Convention on Human Rights found, in Article 6(2): Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to the law. It would be wrong, however, to think that this presumption applies to all aspects of every criminal offence. There are some crimes where the burden lies on the defendant to prove that one of the elements does not exist. This applies particularly in relation to minor offenses where it is easy for the defendant to prove they are innocent. An example would be offense which involve doing an activity without a license from the government. For these sometimes the burden is on the defendant to prove he did have a license. The argument being that it is very easy for defendants to prove their innocence in such a case: they just need to produce their license. 6 The aim of the result of civil proceedings and criminal proceedings are different. The aim of civil proceedings is to compensate the victim for their loss; the aim of the criminal punishment is to mark society’s disapproval of the behaviour and to deter similar conduct in the future. This means that civil proceedings can lead to an award of damages, even if the defendant was not morally blameworthy. While normally a criminal conviction is appropriate only where there is blame. It is commonly argued that a criminal conviction carries a censure for what the defendant has done. The same degree of censure is not attached to an order that a person must pay damages to another. In a criminal trial there is an important distinction between the role played by the judge and that played by a jury. It is the role of the judge to tell the jury what the law is and the job of the jury to decide what the facts of the case are. The jury will be directed on the law by the judge and must determine whether, in accordance with the direction given by the judge, the facts apply to the law. That is what is meant to happen. There have been cases where it seems the jury are not convinced that the law is right and even though the evidence appears to point to a clear case for a conviction they have acquitted. Indeed, some lawyers have argued that this is one of the strengths of the legal system. The jury provide a bastion for a citizen against an absurd law. However, technically the jury will have acted improperly because it is their job to determine the facts and apply them to the law, not to decide what the law should be. The judge has a duty to ensure that the trial is conducted according to the rules of procedure and evidence, a large subject in itself. The judge’s function is to explain the law to the jury: this is a very important part of the judge’s summing-up, in which she addresses the jury before they retire to consider their verdict. If any questions of law are raised during the trial, by the prosecution, the defense or by the judge herself, it is the judge who must give a ruling on the point. The jury are bound to take the law from the judge. It may be possible for the defendant to challenge the judge’s ruling on the law by appealing to a higher court after the verdict. The jury are to consider only whether the defendant committed the offence with which he is charged. For example, if the defendant is charged with stabbing the victim and during his evidence the defendant admits stealing from the victim, but denies stabbing him, the jury cannot return a verdict of guilty of theft, as they are allowed to consider only the offence with which the defendant was charged. That said, sometimes the jury can return a verdict of guilty to a lesser crime if the defendant is charged with a serious offence the elements of which include the lesser offence. For example, if the defendant is charged with murder, the jury could convict him of manslaughter if the jury decided that it had not been shown that he intended to kill or cause serious injury. The judge will inform a jury if this may be possible. THE RULE AGAINST RETROSPECTIVE LEGISLATION There is a general principle that criminal laws must not be retrospective and not operate backwards, and indeed this is reflected in the European Convention on Human Rights. Law had to adapt to changes in society and the essence of the offence of rape had not been altered by their decision. Sometimes reference is made to the ‘thin ice’ principle, which argues that if a defendant is engaging in behaviour which is of dubious legality he can hardly complain if the courts decide that the behaviour is indeed illegal. The husband in the rape case must have known that what he was doing could well be regarded as illegal. There is a tension here within the role of the judge. On the one hand a judge is meant to interpret the law rather than create it. It is the job of Parliament to change the law if required or to enact new legislation. However, sometimes Parliament has neglected to change the law, or it has been too busy with other matters. Some judges feel bolder than others in changing the law to ensure fairness is achieved 2. What conduct should be criminalized? As an exercise of state power, the decision to criminalize is object to general principle of constitutional law. The harm principle tells us what conduct should not be criminalized, It’s like a doorkeeper. It is natural to question the basis upon which certain conduct is criminalized and other conduct is not. We may ask why certain conduct is criminalized and other conduct is not. Two main types of criteria: 7 Euthanasia: consensual homicide - assisted suicide —> good death, it’s a mercy killing. There are philosophical/ethical issued to consider such as the importance of life. Our criminal code was created during 1933 and it’s called Codice Rocco. Italian criminal code: - art. 579 c.p. —> Consensual homicide: The conduct is committed by the offender (the third person). Whoever causes the death of a man, with his consent, is punished with imprisonment from six to fifteen years. - art.580 c.p. —> Assisted suicide: Encouraging a suicide/facilitating a suicide: The conduct is committed by the victim. Anyone who causes others to commit suicide or reinforces another's intention to commit suicide or in any way facilitates its execution, is punished, if the suicide occurs, with imprisonment from five to twelve years.  If the suicide does not occur, it is punishable with imprisonment from one to five years, provided that the attempted suicide results in a serious or very serious personal injury. - Active euthanasia: Active euthanasia refers to direct medical intervention aimed at procuring or hastening death through the use of lethal drugs. NL and Belgium allow it more, also for minors and also for psychological diseases. - Passive euthanasia: In the case of passive euthanasia, the doctor refrains from performing further interventions or administering treatment directed at keeping the patient alive (turn of machines). Other countries such as Austria, Finland, and Norway allow passive euthanasia under strict circumstances, where those suffering from an incurable disease can decide not to be administered life-prolonging treatments, such as artificial nutrition or hydration. It's important not to confuse passive euthanasia with withdrawing life-sustaining treatment in the person's best interests. The latter can be part of palliative care and is not necessarily euthanasia. This kind of intervention is paternalistic —> harm to self —> individual doesn’t want to harm anyone else. In Switzerland it’s allowed assisted suicide so not the active one; Spain, Germany have introduced a legislation about euthanasia. Portugal is different because it’s a catholic country but they’re trying to introduce a legislation; France in which there’s a debate about approving a legislation about it. Progressive acceptance and legal recognition of some forms of passive euthanasia. Now, in case of the patient suffering, it is possible to stop the medical treatment. - art. 32 of Italian constitution —>The Republic protects health as a fundamental right of the individual and the interest of the community, and guarantees free medical care to the indigent. Nobody can be obliged to a specific health treatment except by law.  The law cannot in any case violate the limits imposed by respect for the human person. Case law: Eluana Englaro, Piergiorgio Welby (the doctor was accused of consensual homocide but the court decided that the consent of the patient was sufficient to let the doctor free). Law on living will (2017) An individual, in full possession of the mental faculty, communicates his or her decision on the treatment he prefers to receive if he were to be unconscious. Crime of Facilitation of an assisted suicide. Is it constitutional or not What kind of legal good is protected? The case of Dj Fabo. Italian constitutional court (l) 2018 and (ll) 2019. Partial unconstitutionality of art. 580 c.p.: - Self determination - Life - Human dignity: it’s not the legal good but it’s used by constitutional law to justify the criminal conduct. The human dignity of the patient justifies his will to end his/her own life - Protection of vulnerable people Self determination and human dignity —> Justify the conduct of the third person. 10 10/10/2022 Condition of legitimacy of an assisted suicide: 1. Irreversible pathology 2. Unbearable psychological or physical suffering 3. Person kept alive by life-sustaining tools (such as an artificial respirator) 4. Person fully capable of making free and informed decisions The assessment of condition —> New cases on living will: 1) Medical evaluation through a public structure of the National Health Service; 2) Territorially competent ethics committees —> Previous cases: equivalent guarantees: Verification by the judge of the following conditions: 1. Medical assessment of the person's pathology (irreversible pathology; intolerable suffering; need for life-sustaining treatments). 2. Clear and unambiguous Will to die 3. Patient informed about end-of-life care, alternative solutions, palliative care and deep sedation Case studies: Trentini/Cappato - Welby Trentini was not kept alive by life-sustaining tools, but by pain-relieving pharmacological aids. The paralysis of the musculature had created chronic constipation. Only with manual evacuation interventions could survival be guaranteed. Different patterns of solution by constitutional courts —> German Constitutional Court (2020), many NGOs are in favor of euthanasia, there was a movement supporting in. This support were considered a problem by the German constitution so the legislator introduced a specific legislation —> Total unconstitutionality § 217 StGB (help to a suicide), entered into forced in the 2015. There’s a legislation for evaluating the values (self determination and right to live) Self-determination (it’s prevalent) – Life – Human Dignity – Protection of vulnerable people §§ 1 and 2 German Constitution: Dignity; free exercise of the personality Psichological and social enforcement of the person. Proposal for an abrogative referendum in Italy 2021 —> Reform of the art. 579 criminal code (consensual homicide)? The Proposal: (new art. 579 criminal code) "Anyone who causes the death of a man, with his consent, is punished with the provisions relating to murder if the fact is committed: 1. Against a person under the age of eighteen; 2. Against a mentally ill person, or who is in conditions of mental deficiency, due to another infirmity or the abuse of alcohol or drugs; 3. Against a person whose consent has been extorted by the guilty with violence, threat or suggestion, or stolen with deception ». The Italian Constitutional Court declared the referendum inadmissible. The passage of the referendum would have made it lawful to murder anyone who validly consented to it, regardless of the grounds on which consent is given, the forms in which it is expressed, the quality of the perpetrator, and the manner in which death is caused. As a result of the repeal, the "constitutionally necessary minimum protection of human life, in general, and with particular reference to weak and vulnerable persons," would be lost "the freedom of self-determination can never unconditionally prevail over the reasons for the protection of the same good, being, on the contrary, always constitutionally necessary a balancing act that ensures its minimum protection." Legislation such as Article 579 of the Criminal Code can therefore be amended and replaced by the legislator, but not purely and simply repealed, without compromising the minimum level of protection of human life required by the Constitution. 11 Euthanasia in Europe: Euthanasia is legal in five countries in Europe: Belgium, the Netherlands, Luxembourg, and more recently Germany and Spain. The former two countries even recognize requests from minors under strict circumstances. ECtHR, 4 October 2022, Mortier c. Belgium (case Godelieva de Troyer) The European Court of Human Rights ruled in favor of Tom Mortier, son of Godelieva de Troyer, who died by lethal injection in 2012, aged 64. Her euthanasia was conducted on the basis of a diagnosis of “incurable depression”. In the case of Mortier v. Belgium, the Court found that Belgium violated the European Convention on Human Rights when it failed to properly examine the alarming circumstances leading to her euthanasia. The Court held that there was a violation of Article 2 of the European Convention on Human Rights (the aim of this article is to protect human life) that everyone’s right to life shall be protected by law. This judgment was with regard to the way in which the facts surrounding de Troyer’s euthanasia were handled by Belgium’s Federal Commission for the Control and Evaluation of Euthanasia and the promptness of a criminal trial following de Troyer’s death. It did not, however, rule that there was any violation of Belgium’s legislative framework for the practice of euthanasia. - Objective perspective: life is not just yours but it’s determinate according to your beliefs - Subjective point of view lll) What is punishment? Why do we punish criminals? Which is the purpose of punishment? The power of State in limit freedom. Death penalty is the most coercive measure of punishment, it’s not legal in Europe. Criminal law (more focused on the phenomena of criminality) / Penal law—> law of punishment, that’s distinguish this type of law from others. The purpose of punishment —> if you were a victim, what kind of reaction would you expect from the State? Pre-modern (before 17th century) criminal law —> Vengeance, law of retaliation that is an equivalent suffering, It’s a limit because in the past the reaction would be worse than the actual aggression. States control the reaction with the aim of controlling society. We can distinguish two theories: - Moral theories: Retribution (Compensation)—> I’ll pay for that, I created a suffering and I’ll pay for it with lack of freedom. You have to suffer because you created suffering: doubling the suffering. - Consequentialist uses of punishment: Enlightenment thinkers —> benefits of punishment. Prevention: • General prevention: we punish because of the message we launch to society. Prevention to and for the society. Negative prevention (deterrence) that is a potential threat that is the punishment and positive means that we are sharing some values such as the protection of property or life • Special prevention: prevention is not for society but for the criminal. Negative special prevention means that applying a special punishment we want to neutralize the conduct; Positive special prevention that means the rehabilitation of the offender, offering him a path. We have to combine these functions, we should mix. 11/10/2022 Rehabilitation —> it’a process to change in a direction to the legal/social values. It’s a positive idea of human being, all the human beings are capable to change their attitude. It’a proposal of the State. Death penalty is in contrast with rehabilitation. Art 27 of Italian Constitution: punishment tends to the rehabilitation —> “Tends” because we’re not sure about the result, it depends on the person, some people haven't the interest in rehabilitation. In authoritarian State (i.g. fascist/communist regimes), rehabilitation is not a choice, it’s an obligation. But in the liberal states, even the worst criminal has the choice to follow the social values. 12 In private law there is the obligation to have some kind of communication, while in criminal law RJ is always voluntary meaning that victims and offenders decide freely to take part in RJ programs; an important requirement is that the offender has to recognize the basic facts of the crime= if I committed as rape against someone I can't take part in a RJ process without recognizing the basic facts of the crime. Usually member states have different methods to apply RJ and to conduct their practices; in Spain f.i. we have the forbidden use of restorative justice for domestic issues etc in Italy, we have an experimental application of RJ especially for minors justice over the last 30 years; but recently for the first time we've had the approbation of the institution of a RJ criminal legal system. 1) Principe of legality: The principle of legality assures that the defendant can’t be punished arbitrarily or retroactively by the state.  It’s identified with the principle of “nulla poena sine preavia et certa lege penali”: - Law (lex): what is law? We have civil law and common law. The latter: custom and traditions not codified and relied on recognition and enforcement through the court directly. Through the courts, and the system of precedent, these customs-turned-laws created a body of rules known as common law. Even today, it is a basis of criminal law in England and Wales. Despite the common law system, it is now firmly accepted that courts are no longer at liberty to create new offences or defence. Anyway, the relevant rules are not all defined in statute. Also in common law, most of the substantive criminal laws are now set out in statutory form, the principal binding source of criminal law; Civil law uses the statue that must be clearly communicated, the statue/civil law has two main benefits: democratically accountable process and it’s more accessible. European Convention on Human Rights, European Union, International law —> no new crime, influence, indirect sources and duty to criminalize - Non retroactivity of law (preavia): This means that a person cannot be convicted of a crime that has never been publicly announced, nor by a law that is excessively unclear, nor by a penal law that is passed retroactively to criminalize an action that was not criminal at the time it occurred. In the past there were some problems were discussed during the Nazis\Nuremberg trial= after the IIWW some Nazis (generals etc) were condemned for certains crimes against humanity, which at the time were not specified by the law; so it is possible to punish crimes that are not included in the legal corpus? The person has the right to be persecuted only for matters that were already considered as crimes before; otherwise persecution can only occur in the future. They are very important principles in criminal law, that aim is to limit the power of the State in criminalize a conduct. It means that we need to have some criteria met in order to be able to criminalize a certain conduct.In criminal matters, which is different from private law matters, is combined with a lot of sub-principles; It's impossible to apply a punishment without a law before the act and also to punish a conduct that has no law regulating it up until that point = principle of non retroactivity of law. STATUTE IS ONLY VALID IN THE FUTURE; Hidden retroactivity of the law= not only the crime but also its consequences should be foreseen for the offender. - Fair warning and not vagueness of the law (certa): this law must be detailed without any loopholes and without any kind of vagueness. This principle requires clear communication of the law to the public. Implicit assessment: public awareness of the law is at the first place: to be guided by it; or to deserve punishment for choosing to break it.Fair warning: how offences should be codified. On the one hand, offenses must be sufficiently detailed to allow public to know what exactly is being criminalized. On the other hand, offences should avoid being overly complex. Principle of fair labelling: accurate correlation between the name of an offence and the conduct it criminalizes: 1) «Every behavior against revolutionary principle is punished. The quantity of punishment is freely determined by the judge». 2) Anyone who commits a fact that the law declares punishable or that deserves to be punished according to the fundamental idea of a criminal law and according to healthy popular sentiment is punished 2) PRINCIPE OF CULPABILITY Principle of minimum criminalization. Promotion of choice as an essential ingredient of both moral and legal blame. Double edge sword: power and state criminalize a conduct, on the other end criminal law protects the offendant from the power of the state. In criminal law, the censuring 15 function plays a crucial role. Defendants should be found guilty of a crime only when they truly deserve the stigma of a criminal sanction. i) We should not criminalise conduct that D cannot avoid: ACTUS RESUS; ii) MENS REA. “The criminal responsibility is personal” In criminal law, blameworthiness, to blame means that the person should be blamed from a personal point of view. Blameworthiness is linked to punishment. The concept of blameworthiness is dived into three points: - Capacity of make decisions: coercizione. Drug addiction or alcohol addiction is not the case, they doesn’t allow the person to fully understand the conduct but they’re in a position of negligence, they can be blame because they choose to take these sostanze. - Negligence/Intention - Possibility to be aware of the violation: when the offender is not consapevole di commettere un reato —> principle of capability, art 27 of the constitution. Structure of crime, when the judge has to analyze a criminal conduct, there’s three elements of a crime: - Actus reus: the relation between the conduct and the result —> causal relation - Mens rea: blameworthiness of the offendant - Lack of defenses. CAUSATION There’re two types of offence: - result crimes —> omicidi, there’s a conduct and as a consequences there’s a harm. The temporal gap is the problem, is my conduct the cause of death? In other crimes, like rape, there isn’t temporal gap The conduct was the cause of the result “Condicio sine qua non” or “but for” test. It poses a counterfactual conditional question: what would have happened if X were absent? Would Y have happened anyway? It must be proved that, but for D’s conduct element, the result would not have come about. If Bill’s death would have occurred regardless of Alice’s action, then we cannot say that Alice caused the death. «But for test»: adaptations; corrective solutions - Versus Far-flung effect: Salience (Crimes that are salient for the examination).  Hic et nunc. Suppose that D is driving to work at a speed in excess to the speed limit. He slows to the correct speed in advance of an intersection, but is involved in an accident on the intersection with another car, If he had not been speeding, he would not have arrived at the intersection when he did, and the accident would not have occurred, but his speeding is not a cause of accident.  It is not significant hic et nunc (here, now) - Versus Alternative sufficient causes: Proximity cause (accelerating the result) The operating and substantial cause test. There may be several operating cause of a result (death). It does not need to be shown that the action was the sole cause of an event, as long as what was done was an operating cause of the event (death).  A significant cause of the event. It is enough that the actus reus or consequences can be attributed to the defendant’s conduct as a, not the, cause. It is enough that the conduct plays a part which is not “minute or negligible”, not insignificant. Some causal factors can operate in tandem with D’s conduct to bring about the prohibited harm. - Intervening causes: chain of causation. Sometimes D’s contribution is followed by an action by someone else, or a coincidental event, that is more immediate – proximate – cause of the event and which displaces D’s causal responsibility for the actus reus. Break in the chain of causation? Multiple conduct that we have to consider:  Action or event which “intervenes” to “break the causal chain” leading from D to the eventual harm. A defendant is responsible for the events that follow from his or her action (the chain), unless someone else intervenes in the chain of causation, when there is a break in the chain of causation (novus actus interveniens). Kinds of “novus actus interveniens”: 1) Acts of third person; 2) Act and omission of the victim; 3) Natural events. 16 Cases 1, 2 and 4 —> negligent medical treatment that is considered as a break of causation just in some cases where negligence was not predictable and is huge. The case of the scarlet fever was not predictable. A normal negligence is really common so it’s not a break of causation. Causes 3, 5 —> act of the victim would be a break of causation, it’s not possibile to predict the result of the conduct. Thin skull rule. In some cases the conduct would have unexpected consequences. According to some courts, the dealer is guilty of the death if he knows that the victim is in a condition of risk/pain. In case of religious beliefs, it’s the same. It’s applied more in the UK than in Europe. A conduct can be also an omission, not just an act. How is it possible to criminalized something that the person didn’t do? - it’s important to find the relation between the omission and the result —> action that the person should have followed. In addressing the relevance of omission, it is helpful to distinguish between omission offenses that are explicitly defined as omissions and offenses that are defined as active behavior (such as, for instance, “to kill a person”). - Direct omission offenses: Type of offense in the “special part” of a criminal code. “Crime of homocide” described in an active form, the conduct of causing the death of a person Is criminalized with imprisonment; In some parts it is possible to find: the most hotly disputed form of failure offense is the failure to render aid at the scene of an accident. Failure is the essence of this crime. —> failure to rescue/to act. English criminal law is out of step with many other countries in Europe: famous textbooks example of the bystander who can save a drowning child but decides not rescue him. His passivity is considered an omission. In English criminal law, if you see a baby drowning in a lake, you are entitled to walk on past (passare davanti senza fermarsi), whistling as you go and there will be no offense committed. Many European States have “Good Samaritan’s laws” (biblical parable) : these are laws which punish people who see another person is in danger but walk on by without offering them any help. The German duty-to-aid statute (§ 323c) in particular has a checkered history; it was introduced in 1935. One can debate whether (and to what degree) duties of compassion and solidarity exist between citizens, and whether the state should punish their violation. There is no need for further consequences. It poses no problem of legality, but for some Scholars pose a problem of intruding too much upon our liberties. English lawyers think that you should be free to mind your own business and as long as you don’t harm anyone you should not face prosecution. General criminal duty-to-aid statutes are rare in the United States and in UK. However, also in England law omission can be a source of criminal responsibility. It occurs where the defendant is under a “duty to act”. In Italy, France and Germany la pena è bassa (1 anno di reclusione o to pay the bail. The aim is to send a message to society) - Indirect omission offenses: Indirect omission. Second type of omission offenses, which focus on certain harmful results. This kind of offense exist both in civil law and in common law. The relevant provisions in criminal codes typically describe affirmative acts liability requires the existence of a duty to act, external to the definition of the offense. Indirect” omission liability attaches to offenses that are defined in terms of an act, rather than a failure to act. When you have a duty to act but you don’t, the person should have intervened but she/he didn’t —> it was a duty to intervene. Indirect omission liability thus has the effect of dramatically expanding the scope of criminal liability. A person who does nothing can thus “commit” homicide “by omission,” assuming a duty required him or her to avoid the death. • Duty to act = • Where you are under a contract to act. So if in our example you were employed as the baby’s nanny you could be under a duty to act • Where you are in a close relationship (according to the law) with the victim: baby’s parent • If you created a dangerous situation for the victim In law responsibility for the consequences of omission involves a twofold test. D is normally held legally responsible for the consequences of an omission when: • He has the duty to prevent those consequences from occurring; a source is the contract between the lifeguard and the contract. • His omission to intervene made a difference: that is, if he had intervened, his intervention would have made a difference. Causality relation has to be proved according to probability factors, criminal law is not a scientific science. Part II is the causal test. 17 19th century, Rousseau and other filosofi expressed the principle of distinction, even when people are in a conflict we should still follow the concept of human rights. These rules are the International Humanitarian Law (IHL) —> it’s a package of connections that protect people during war: Geneva convection ecc. Not all the weapons are consider as legal in a war. The principle of distinction: - military forces who are taking part in the hostilities; - civilian population or militaries who are not able to fight because prisoners, ill or wounded. Military forces have to distinguish people who can fight and people who can’t. During war, kill is considered legal but in some cases, also for military forces, this concept is not applied. International crimes are grave breaches of IHL. IHL is a specific sector on International law that is created by conventions; International crimes instead are crimes committed by individual that committed an extreme violation of IHL. International crime —> COMMON CRIME (murder, sexual violence) + CONTEXTUAL ELEMENT (this element distinguish a common crime to an international crime) 4 types of International crimes - War crimes —> contextual element —> war - Crime against humanity —> contextual element —> crime committed as a part of a bigger plan against population, if I attack an hospital as a strategy during war. - Crime against peace that is now called aggression - Genocide—> contextual element —> subjective point of view, the person has the goal to destroy a cultural group. CRIMES AGAINST THE BASIC PRINCIPLES OF HUMANITY ARE NOTHING NEW TO THE HISTORY OF MANKIND The Crusades of the 11th century may be considered as forms of genocide. Other famous examples are the Spanish and Portuguese “Conquista” (conquest) of the Americas accompanied by the extermination of great numbers of the native population. In all these cases, investigations never took place and criminal sentences were never passed on the responsible persons. First effort to establish a “law of war” - The first effort can be traced back to the middle of the 19th century, focusing primarily on the humanization of war, first with regard to the admissible means and methods of warfare (so-called ‘Hague Law’) and then later increasingly with regard to the protection of the victims of armed conflict (so-called ‘Geneva Law). While the Hague and Geneva laws regulate the situation of an armed conflict, that is the IUS IN BELLO (principle to regulate the attack of another country), laws governing the resort to force are called IUS AD BELLUM (law regulates the act committed during war —> ad bellum means “to attack”) . The Geneva Law was inspired by the battle of Solferino and Henry Dunant’s moving portrayal of the suffering of war and emerged from the GCs of 1864, 1906, 1929, and 1949 - On 2 December 1914, Turkey joined World War I (WWI). In April 1915, Turkey organized homicide of 600 intellectuals: “GENOCIDE OF THE ARMENIANS” (event currently denied by the Turkish authorities). The atrocities committed led to a joint declaration of France, Britain, and Russia on 24 May 1915, asserting that all members of the Ottoman government and those of its agents found to be involved in those massacres would be held personally responsible for the crimes. Although the Turkish authorities arrested and detained a couple of their leaders due to the Allies’ pressure, many were later released as a result of public demonstrations and other internal pressure. Sometimes there’s a difference between the concezione of a crime internationally and internally. - Versailles Peace Treaty (1919) established a new policy of prosecuting war criminals of the aggressor state after the end of hostilities. The legal basis of that policy was laid down in 1919 in the Paris Peace Treaties concluded by the victorious Allies (Britain, France, Russia, Italy, the USA, and Japan) and the Central Powers (Germany, Austria, Bulgaria, Hungary, and Turkey). Groups of offences were created: crimes against the sanctity of the treaties, crimes against the international moral—which were deliberately not defined more precisely—war crimes in a narrow 20 sense’ (i.e., ‘violation of the laws and customs of war’ according to ARTICLE 228 OF THE VERSAILLES TREATY).  At the same time, it was further recognized that such responsibility had no limits of rank or position. Thus, the Allies accused the former German emperor, William II of Hohenzollern, of a supreme offence against international morality and the sanctity of the treaties. However, Emperor William II found refuge in the Netherlands and was never extradited. - (1921) Germany, which had previously passed a national law to implement Articles 228, introduced new legislation to be able to prosecute German suspects before its own Supreme Court sitting at Leipzig. But in fact, only twelve Germans were prosecuted before the German Supreme Court for war crimes. In Germany, some of them were considered as national heroes. Thus, the SO-CALLED LEIPZIG TRIALS were widely criticized for the German unwillingness to seriously prosecute the war criminals. First case in which military forces were accused. Up to this moment, international crimes were recognized as hard punishable conducts, but the jurisdiction for their criminalization was only a national jurisdiction. This jurisdictional power was rarely exercised. THE FIRST AD HOC TRIBUNALS—> after the WW2 —> Nuremberg and Tokyo: During World War II (WWII), the prosecution of ‘war crimes’ became a primary objective. Finally, the ‘Declaration of London’ of 8 August 1945—concluded by the governments of Britain, USA, France, and Soviet Union (USSR)—gave birth to the International Military Tribunal (IMT). The Nuremberg Charter contained three categories of offences: crimes against peace, war crimes and crimes against humanity ( Norimberga —> gli ebrei erano cittadini tedeschi quindi questo crimine è stato commesso contro la popolazione tedesca) As to the defences, Article 7 purposefully omitted official position and Article 8 superior orders as grounds for excluding responsibility. I trial. 24 accused. Death penalty (hanging); life imprisonment. Forced labour. Suicide in prison. The Tokyo Trials were based on the Charter for the Far East, or ‘Tokyo Charter’, which was proclaimed on 19 January 1946 by the Supreme Commander of the Allied Powers, General Douglas MacArthur. Hans Kelsen —> ex post facto law jurisdiction —> according to the international law, the tribunal should be ex ante but in this case was ex post. —> Victor’s Justice or one-off (una tantum) justice? (The winners created this tribunal) —> Violation of principle of legality: not retroactivity of law? (The crime against humanity was created during the processo di Norimberga, from a legal point of view this is a violation of the retroactive law) DOCTRINE OF NATUAL LAW —> the level of atrocity committed by the regime, these crimes where against the natural law, all the people involved in the trial were aware of the violation of human rights, they were aware of the atrocity of the crimes they were committed. As was famously declared by the judges of the Tribunal in its Judgement, “[c]rimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.” Nuremberg is the turning point, it’s the first case of an International tribunal created to judge people acting on behalf of the State. International jurisdiction. What happened after? The Nuremberg and Tokyo Trials were followed by a second series of prosecutions (internally) of Nazi leaders, pursuant to Control Council Law (CCL). Apart from these rather well-documented cases, there were other national prosecutions in the immediate aftermath of the war both in the occupation zones and in the territory of the Allied countries. During the Cold War, there wasn’t an International tribunal but we still had international crimes. How can we judge this conducts? INTERNALLY. Probably, the most famous case on the basis of universal jurisdiction was the trial of Adolf Eichmann. 21 Eichmann was the head of the section IV B 4 of the Reichssicherheitshauptamt. Eichmann organized and coordinated the deportation of Jews to the concentration camps. On 12 December 1961, he was found responsible for the implementation of the ‘final solution’ of the Jewish question, which fulfilled the requirements of genocide and crimes against humanity. Eichmann was sentenced to death by the District Court of Jerusalem on 15 December of the same year COLD WAR —> Political difficulties to find an agreement to improve the jurisdiction in IHL. (The end of the Cold War conventionally made to coincide with the fall of the Berlin Wall). Despite the political impediments to creating an international jurisdiction to suppress international crimes, nevertheless, the content of humanitarian law has evolved over time thanks to the enactment of some international conventions, during the Nuremberg trial and the Berlin Wall. UN Conventions to develop IHL (1948) Based on thoughts by Rafael Lemkin, a draft resolution on genocide was discussed in 1946 and finally, on 11 December 1946, Resolution 9658 was adopted by the UN GA. 1965. Convention against racial discrimination 1973. Apartheid. 1979. Women and gender discrimination. 1984. Torture. During cold war it was difficult for countries to find an agreement. THE UN AD HOC TRIBUNALS —> LATE 80’s and 90’s, important shifts in International politics and serious mass crimes - The international criminal tribunals for the former Yogoslavia In Europe, WWII was followed by a long and stable period of peace that was interrupted by massive violations of IHL and human rights in the Former Yugoslavia beginning in 1991. After the death of Tito, collapse of a regime. - Hard conflict between Croatian, Serbians and Bosnian. - SREBRENICA UN created tribunals to condemn these crimes. Libro: “la figlia” di clara - The International Criminal Tribunal for Rwanda Genocide of Tutsi committed by hutu. The International Criminal Tribunal for Rwanda (ICTR) was established by SC Resolution 955 of 8 November 1994.  The competence of the ICTR embraces the prosecution of serious IHL violations committed in the territory of Rwanda and by Rwandan citizens in the territory of neighbouring states between 1 January 1994 and 31 December 1994. One of the first genocide cases was the case of Jean Paul Akayesu,  politician and mayor of Taba. The Tribunal considered that Akayesu, in his specific function, must have known about the crimes. United Nations tribunals —> ICTY/ICTR - Ad hoc; United Nations (not Victor’s Justice) - Principle of legality and not retroactivity of law. - Nonetheless, ex post facto jurisdiction, the tribunal was implemented/created after the crime was committed. It important to have a permanent jurisdiction created BEFORE the future crimes. —> Cross-fertilzation jurisprudence on ICL: both the two tribunals express some principle to apply rules on criminal jurisdiction and international crimes. There was a debate to implement the International court so it was implemented a permanent international jurisdiction: THE INTERNATIONAL CRIMINAL COURT (ICC) In 1994 the UN GA referred the International Law Commission Draft Statute to the ‘Ad Hoc Committee on the Establishment of an ICC’. The conference was not only open to states but also to nongovernmental organizations (NGOs). It began on 15 June 1998 (treaty was signed in Rome) and ended on 17 July 1998 with the adoption of the ICC Statute. 22 PRINCIPLE OF COMPLEMENTARITY (art 17, issues of admissibility): The ICC is intended to complement, not to replace, national criminal systems. It prosecutes cases only when States do not are unwilling or unable to do so genuinely —> last resource jurisdiction. The Prosecutor shall notify all States Parties and those States which, taking into account the information available, would normally exercise jurisdiction over the crimes concerned. Composition and administration of the Court: - The judges: The ICC's 18 judges are elected by the Assembly of States Parties for their qualifications, impartiality and integrity, and serve 9-year, non-renewable terms.  - The Office of the Prosecutor (OTP): The OTP shall act independently and as a separate organ of the Court. The head of the office is elected by the Assembly of States Parties. Its first head was the Argentinean Luis Moreno-Ocampo. Prosecutor Bensouda was elected unanimously as his successor on 2012. In 2021 Karim A. A. Khan was elected. - Investigation offices Investigation and prosecution —> Phases of procedure - Preliminary examinations: First formal moment, before an investigation can begin, the Office of the Prosecutor (OTP) conducts a preliminary examination to decide whether there is enough information on crimes of sufficient gravity, providing a reasonable basis to open an investigation. - Situation under investigation: After the confirmation, upon referrals by States Parties or by the UNSC, or on its own initiative and with the judges' authorization, the Office of the Prosecutor (OTP) conducts investigations by gathering and examining evidence, questioning persons under investigation and questioning victims and witnesses, for the purpose of finding evidence of a suspect's innocence or guilt. OTP must investigate incriminating and exonerating circumstances equally. OTP requests cooperation and assistance from States and international organizations, and also sends investigators to areas where the alleged crimes occurred to gather evidence. - Case: After gathering evidence and identifying a suspect, the Prosecution requests ICC judges to issue: • An arrest warrant: the ICC relies on countries to make arrests and transfer suspects to the ICC or • A summons to appear: suspects appear voluntarily (if not, an arrest warrant may be issued).  - Pre-Trial stage: • Initial appearance: Three Pre-Trial judges confirm suspect's identity and ensure suspect understands the charges. • Confirmation of charges hearings: After hearing the Prosecution, the Defense, and the Legal representative of victims, the judges decide (usually within 60 days) if there is enough evidence for the case to go to trial. - Trial stage: Before three Trial judges, the Prosecution must prove beyond reasonable doubt the guilt of the accused.Judges consider all evidence, then issue a verdict and, when there is a verdict of guilt, issue a sentence. The judges can sentence a person to up to 30 years of imprisonment, and under exceptional circumstances, a life sentence. Judges can also order reparations for the victims. Verdicts are subject to appeal by the Defense and by the Prosecutor. There’re States that give specific fund for the victims (TFV —> look at the slide). Through these funds is possible to risarcire victims. The ICC has the jurisdiction power but the judgment should be sustained by the State - Appeals stage: Both the Prosecutor and the Defence have the right to appeal a Trial Chamber's decision on the verdict (decision on guilt or innocence of the accused) and the sentence. The victims and the convicted person may appeal an order for reparations. Five judges of the Appeals Chamber, who are never the same judges as those who gave the original verdict, decide an appeal. The Appeals Chamber decides whether to uphold the appealed decision, amend it, or reverse it. This is thus the final judgment, unless the Appeals Chamber orders a re-trial before the Trial Chamber. - Enforcement of sentence: Sentences are served in countries that have agreed to enforce ICC sentences: PENALTIES Article 77 Applicable penalties 25 1. (a) Imprisonment for a specified number of years, which may not exceed a maximum of 30 years; or (b) A term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person. 2. In addition to imprisonment, the Court may order: (a) A fine under the criteria provided for in the Rules of Procedure and Evidence; (b) A forfeiture of proceeds, property and assets derived directly or indirectly from that crime, without prejudice to the rights of bona fide third parties.   (Slide 12) If we’re using chimica weapons we’re committing a crime, there’a a catalogue of weapons there’re admissible or not. We should minimize the harm, even in a war, the attack should be proportionated to the result. If an attack a population that is not involved in the military strategy, it should be considered a violation of humanitarian law. It is difficult to apply it in practice because there’s opposition from the military forces, the court can struggle to distinguish it. The attack to the population or in a hospital is strategical or not? The crime will be judged by the court when committed as a part of a plan, a policy… A war crime can be prosecuted only in these conditions. - Crimes against peace: (look at the slide) - Crimes against humanity —> contextual element is that these crimes are part of a widespread or systematic attacks directed against any civilian population with knowledge of the attack - Genocide —> subjective point of view, the crime is characterized by the specific intent to destroy a national ethnic/religious ecc group. Also rape could be use as a strategy to destroy a group because newborn would have created a new mixed population. - Crime of aggression —> Political crime, the use of armed force by a State against the sovereignty, integrity or independence of another state. 26