Criminal law (Antonia Menghini and Clara Rigoni lectures), Sbobinature di Diritto internazionale penale

Scarica Criminal law (Antonia Menghini and Clara Rigoni lectures) e più Sbobinature in PDF di Diritto internazionale penale solo su Docsity! 1 Criminal law Antonia Menghini, Clara Rigoni INDEX INTRODUCTION ......................................................................................................................................................... 3 Legal diversity, judicial interaction and the methods of comparative criminal law ..................................... 3 THEORIES OF PUNISHMENT ...................................................................................................................................... 9 Retribution theory ...................................................................................................................................... 10 General prevention theory ......................................................................................................................... 12 Special prevention theory ........................................................................................................................... 13 Kant and Capital punishment today ....................................................................................................... 26 Criticism of retribution in general ............................................................................................................... 28 General prevention in depth ...................................................................................................................... 31 Special prevention in depth ........................................................................................................................ 33 General preventive effects of punishment ............................................................................................. 36 PRINCIPLE OF LEGALITY ........................................................................................................................................... 38 Theoretical foundations .......................................................................................................................... 39 Philosophical foundation of the legality principle .................................................................................. 39 Italian criminl law ................................................................................................................................... 41 Principle of statutory reservation ............................................................................................................... 42 The principle of certainty ............................................................................................................................ 44 The principle of prohibition of analogy ...................................................................................................... 47 The principle of non retroactivity and the succession of statutes .............................................................. 48 The ECHR on the issue of the principle of non-retroactivity ................................................................... 51 CLASSIFICATION OF CRIMES AND PENALTIES ........................................................................................................... 52 Principal punishments ................................................................................................................................ 52 Ancillary fines .............................................................................................................................................. 54 Alternative measures .................................................................................................................................. 54 Security measures ....................................................................................................................................... 54 GENERAL THEORY OF CRIME ................................................................................................................................... 56 General theory of the crime according to the Italian criminal Code .......................................................... 62 AN INTRODUCTION TO CRIMINAL LAW IN COMMON LAW SYSTEMS ....................................................................... 70 BRIEF HISTORY OF INTERNATIONAL CRIMINAL COURT ............................................................................................ 71 The ICTY ...................................................................................................................................................... 74 The ICTR ...................................................................................................................................................... 74 INTERNATIONAL AND EUROPEAN CRIMINAL LAW ................................................................................................... 81 Principles of jurisdiction ............................................................................................................................. 81 2 The Territorial Principle .......................................................................................................................... 81 Nationality principle ............................................................................................................................... 83 Protective principle(s) ............................................................................................................................. 84 Universality principle .............................................................................................................................. 85 Representation principle ........................................................................................................................ 86 THE ORIGINS OF INTERNATIONAL CRIMINAL LAW AND THE NUREMBERG TRIAL ..................................................... 87 International criminal law ........................................................................................................................... 87 The origins of international criminal law .................................................................................................... 87 The Nuremberg International Military Tribunal ..................................................................................... 88 ELEMENTS OF CRIME AND CRIMINAL RESPONSIBILITY IN INTERNATIONAL CRIMINAL LAW ..................................... 96 INTERNATIONAL CORE CRIMES ............................................................................................................................. 107 Genocide ................................................................................................................................................... 107 Sources of the crime of genocide ......................................................................................................... 109 The Genocide Convention .................................................................................................................... 110 Crimes against Humanity .......................................................................................................................... 117 Specific part on Conducts ..................................................................................................................... 122 War Crimes ............................................................................................................................................... 128 War crimes in international armed conflicts ........................................................................................ 131 War Crimes in Non-International Armed Conflicts ............................................................................... 132 Mental element ........................................................................................................................................ 133 Crime of agression .................................................................................................................................... 133 THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA .......................................................... 136 Contributions of the ICTY to International Humanitarian Law and International Criminal Law ............... 143 THE RWANDAN GENOCIDE: BETWEEN INTERNATIONAL AND LOCAL JUSTICE ........................................................ 145 Chuckie taylor case ................................................................................................................................... 151 The Prosecutor vs Jean-Paul Akayesu ....................................................................................................... 152 Colombia ................................................................................................................................................... 153 THE INTERNATIONAL CRIMINAL COURT ................................................................................................................ 154 The prosecution ........................................................................................................................................ 158 THE EVOLUTION OF EUROPEAN UNION CRIMINAL LAW ........................................................................................ 161 Fundamental concepts of EU criminal law/policy .................................................................................... 164 Competences of the EU ........................................................................................................................ 164 Other principles .................................................................................................................................... 165 Evolution of the protection of human rights in Europe ............................................................................ 166 EU initiatives in the area of Human Rights ............................................................................................... 167 Charter of Fundamental Rights in the EU ............................................................................................. 167 Legislative and judicial developments in the area of Human Rights .................................................... 167 EU accession to ECHR: main advantages and main problems to the accession ................................... 169 5 different levels within them, and we have to face legal pluralism, i.e., multilayered jurisdiction of law not just in federal states. Comparative criminal law should advance knowledge, which may justify legal classification; the step forward would be harmonisation. Husa (ibid): ‘despite the evident shortcomings, the [legal family] classification does not seem to disappear’; there is a role for the concept of legal families (and the concept of legal cultures and of criminal justice systems), but taxonomic categorisation should not be an end in itself. The main difference in criminal justice systems revolves around the accusatorial (adversarial) and inquisitorial models. They refer to specific sectors of criminal procedure, namely modes of investigation and adjudication. Not all common law jurisdictions are adversarial and civil law ones inquisitorial, ref. Spencer. There is trend towards approximation between the two models, inquisitorial models especially are incorporating adversarial models due to the development of HR, nevertheless there are still differences, such as (1) historical development, (2) key actors and their role, (3) position of the accused, (4) key principles – e.g., legality in CL, nulla poena sine legem –, (5) nature and objectives of evidence and (6) courtroom design – the way in which trial hearings are held, even from architectural point of view. The public prosecutor in the courtroom design in the inquisitorial model shows physical proximity to the judge but also legal proximity, and that reflects public prosecutors as members of judiciary (which they are in most continental systems), legacy of what used to be the judicial authority in the investigation of cases. The guarantee that rights will be respected comes from the public prosecutors, as they are there to represent the interests of the state. The dichotomy between inquisitorial and adversarial model is a useful analytical tool (Spencer: “there are unquestionably two different traditions”) but not without limitations/dangers: • oversimplifies matters (pure systems do no exist); • potential for labels to “live a life of their own” (leading to the exaggeration of differences and/or to differences being explained only in terms of labels); • potential obstacle to looking to other national criminal justice systems for ideas and inspiration; • political “hijacking” > (see, examples from the UK pre- and post-Brexit -> continental law is inquisitorial and, thus illiberal, e.g. contrary to British legal traditions/constitutional principles 6 There are also other ways of categorising criminal justice systems, e.g., division between the focus on due process and concern in crime control (prioritize conviction of victim, running the risk of convicting many innocents, taking the stand that individual rights and procedural guarantees that belong to the concept of due process can be easily sacrificed for the conviction). Another division depends on the relationship that exists between individual and government, and is between hierarchical model (importance and certainty of decision-making – continental system) and coordinate model (caselaw as source of criminal law, more freedom for legal officials to achieve outcome that is just and fair). Another distinction can be made on the base of elements of two-tier/three-tier analysis of criminal liability: • Two-tier model: actus reus and mens rea -> UK, US, common law • Three-step model (Straftatsystem): satisfying requirements of the statutory offence (‘typicity’) - > Germany, other civil law jurisdictions But: • Convergence (US model penal code) and interaction (through cooperation) • An unsatisfactory dichotomy, see France (as a two-tier model) Another element of distinction/analysis: The justification of criminal law (and the nature thereof): • The prevention of harm to others (Anglo-American tradition) • The protection of individual legal goods/interests (Rechtsgüter, beni giuridici, bienes juridicos) These models are not static, mutual influence and top-down inputs from international and supranational law may have systems converge or at least transform. Interaction that results form judges cooperating with each other and institutionalised dialogue, legal aid in criminal justice is the main way courts talk to each other in different countries > the inputs that each jurisdiction increasingly receives from supranational and international dimension (e.g., HR conventions). In the context of Human Rights Law and European criminal law (ECL), harmonization versus diversity is an ongoing dilemma; An important question in this regard is whether and to what extent harmonization is achievable/possible (given also the need to respect diversity). Convergence is a prerequisite for harmonization and the effective implementation of supranational law, including HRL and ECL; and that Interaction between national criminal justice systems is both a prerequisite for, and important indicator of, convergence. Interaction can be said to ‘take place’ on two levels, in abstracto and in concreto. Studying the interaction between national criminal justice systems in abstracto means studying how they relate to one another. Studying how national criminal justice systems relate to one another entails the comparison of such systems and comparative legal research. 7 Interaction in abstracto, i.e. comparison, is inherent in interaction in concreto (i.e. the use of foreign or supranational law by national courts in practice). Put differently, interaction in concreto implies interaction in abstracto. Billis on the relationship between harmonization, convergence and comparative legal research: ‘Comparative legal research aims at identifying modern trends in, and searching for convergences and divergences between more than one legal system. Any meaningful implementation of elements of foreign legal systems at the national level and the smooth realization of the objectives of international and supranational justice presuppose a reciprocal understanding between legal orders that adhere to different traditions in terms of their normative foundations’. Thereefore, it is important to define the aim(s) and methods of research > Convergence and divergence are not mutually exclusive and must be taken together. Macro versus micro-comparison: ‘In a micro-comparison, the objects of research are normally individual legal rules, judgments, or individual legal institutions. In macro-comparative law, comparison is done between legal systems or legal cultures. Typically, macro-comparisons deal with higher abstractions than micro-comparison. For instance, a micro-comparatist may ask what constitutes a legally binding contract, whereas a macro-comparatist may ask whether the rules of contract are based on statutory law or case law. Commonly, macro-comparative law is practiced by academics and theoreticians, whereas micro-comparatists tend to hold interest in more practical- natured legal questions.’ (Jaakko Husa 2016) But in how far are the macro- and micro-comparisons research methods between which we can legitimately choose? Billis: ‘an approach that focuses on a direct comparison of such specific legal norms would undermine the coherent definition of the research aims, might lead to overlooking significant material differentiations or to misinterpret similarities between the legal traditions and systems, and could deprive the entire research project of much needed added value. Instead, in the above example, the starting point of research might involve the definition, elements, and, most importantly, the limits of culpability in different legal orders belonging to the Western legal tradition.’ Merryman: ‘A focus on rules limits the attention to only one kind of difference and equates “legal system” with “legal rules.” A more adequate definition of a legal system, however, would include a number of additional components: legal extension, legal penetration, legal culture, legal structures, legal actors, and legal processes.’ But there are difficulties involved in macro-comparison > Merryman: ‘In brief, an adequate examination of convergence of the Common Law and the Civil Law requires attention to all dimensions of the legal system and a concomitant distrust of rules of law. This is particularly disagreeable because rules are so easy to find and to read, while it is very difficult to find reliable information about legal extension, legal penetration, the legal culture, and the structure, composition and operation of the law machine in law libraries.’ 10 home detention and day release in the Italian legal system). Restorative justice is different to the normal idea of justice, and it adds to it, it is a new way to find a restoration between the victim and the offenders. Important because we take into consideration the dignity of not only the victim but also the offender. • Dignity in a static way> law must assure fundamnetal rights even to worst criminals. • Dignity in a dynamic way> you can even lose it when you commit a crime because is a relational concept, dignity in the eyes of the society. The fundamental theories on why we punish criminals are: Retribution theory It is an absolute theory > just desert or even principle of proportion or proportionality. From the prospective of the retributive theory, it has been possible to extract two indispensable concepts for criminal law: the idea of culpability and the principle of proportion as just mentioned. Ø il giusto contrappeso rispetto all’azione che si compie. La finalità retributiva è l’unica ad essere assoluta. Non è una finalità relativa perché non si pone delle domande che guardano in avanti, non ci si domanda su quelli che sono concretamente gli scopi per cui si va a punire: la punizione trova una giustificazione in sé. Bettiol, un penalista di tempo relativamente recente si è fatto fedele difensore dell’idea retributiva. Egli affermava come la pena traesse la sua forza etica e la sua giustificazione dal fatto di essere espressione di quella esigenza naturale viva nel cuore di ogni uomo, e operante in tutti i settori della vita morale: al bene deve seguire il bene e al male deve seguire il male. Rispondo al male con il male. Non ho bisogno di cercare altre giustificazioni, non mi devo preoccupare del condannato o di ciò che faranno gli altri cittadini. Bisogna punire perché è giusto farlo; la pena è un bene in sé, non ha bisogno di altra giustificazione. Historically, we have three forms of retribution: 1. Divine retribution: according to this approach the person who commit crimes also violate a superior law, offending God, and therefore he delegates judges on earth to restore justice -> punishment seen as a cathartic path for the offender = he has to understand his crime, redime and to promise he will respect the law in the future 2. Moral retribution: it is based on the theoretical and philosophical Kantian doctrine -> Justice and criminal law is conceived as a part of the so called categorical imperative = a completely unconditional imperative which means that punishment is an end in itself, no goal at all. The theory was developed by Kant from the principle of fundamental value of the man and human beings -> men are not to be used as a means to an end and neither to keep the other members of the community away from the community nor from committing new crimes. Kant tells us that punishment finds its justification only in the principle of justice = the harm done by the offender should find its equivalent in the harm inflicted on him through the sentence. At the beginning the theory was interpreted in the way that the principle of justice should be determined by the 11 principle of retaliation but nowadays there has to be proportion between the crime and the kind and duration of the penalty. According to this theory, punishment doesn't have a specific goal but it is a response to evil with evil/to the desire of revenge and vengeance. This way of thinking is hard to eliminate and still present -> nowadays we are characterised by a strong sense of "throwing away the key of the prisoners" and by the strong need for social order and public security. The need for revenge and an exemplary penalty is just related to the ignorance of what really means to be deprived of freedom. It is important to read a fundamental wor of Kant entitled METHAPHYSIC OF MORAL (a piece related to Island): “Even if a civil society were to be dissolved by the consent of all its members (i.e. if a people inhabiting an island decided to separate and disperse throughout the world), the last murderer remaining in prison would first have to be executed, so that each has done to him what his deeds deserve and blood guilt does not cling to the people for not having insisted upon this punishment; for otherwise the people can be regarded as collaborators in his public violation of justice” > it shows how there is no social utilit in executing the prisoners. 3. Legal or juridical retribution: it is based on the Hegelian dialectics -> under the utilitarian doctrine, punishment was seen as a tool to restore the social order/the law violated by the crime -> the dialectical approach works in this way (kind of syllogism) = if crime is conceived as the violation/negation of the law, punishment shall be conceived as the negation of the crime and therefore as a tool to restore the law. This theory is much more modern than the other two and it describes the fundamental characteristics of punishment: a. Proportionality = punishment should be appropriate to the seriousness of the crime; b. Certainty = the citizens should be able to know in advance the consequences of his behaviour in order to guide consciously their conduct; c. Principle of Personal Liability / Personality = it states the prohibition of liability for other people's actions and this principle is provided for by article 27 para 1 of the IT Constitution > “criminal liability is personal”; d. Necessary = there should be any other civil or administrative sanction capable of achieving the same result. If the result is the same, the least afflictive sanction must be used: is the idea of the extrema ratio of criminal law; e. Effectiveness: the punishment should be effective meaning that punishment should be sure (it will take place). The sentence imposed by the judge must be carried out; this does not mean that the only way to serve a sentence is in prison. Certainty and effectiveness are used as synonyms, but this is not true. There are 2 subprinciples of re-education: i. Frexibility of the penalty ii. Gradual reintegration: it states that the way employed to execute the penalty should depends on the progression in the treatment made by the offender during the execution of the sentence in prison. In other words and in addition, the retributive theory can be read in an objective and in a subjective way: • In an objective way > legal/juridical retribution > La sanzione punitiva si giustifica come necessità logico-giuridica. È l’inevitabile conseguenza della volontà legislativa. Se non ci fosse la pena 12 l’autorità che è insita nella legge verrebbe vanificata (se è previsto un precetto ma ad esso non si fa conseguire alcuna conseguenza in caso di violazione, allora il precetto perde il suo valore). Non esiste e non può esistere un precetto senza sanzione, essa è necessaria. • In a subjective way > the retributive theory is linked with the free will > Il soggetto si merita una sanzione, in quanto colpevole autore della violazione della norma. Alla base delle riflessioni che sono più esplicative dell’idea retributiva è particolarmente influente la filosofia idealistica. Kant ed Hegel, propongono un'idea di giustizia penale fondata sulla logica strettamente retributiva. Nella metafisica dei costumi Kant ci descrive l’ipotesi in cui vi sia l’ultimo condannato in una società che, in mutuo consenso, decide di dissolversi e ancora l’ipotesi dello stesso soggetto colpevole che si trova solo su un’isola deserta; quel soggetto dovrebbe essere giustiziato ugualmente perché i suoi atti meritano quel tipo di trattamento. Non conta che egli non sia un esempio per altri o che possa o non possa delinquere e quindi ulteriormente mettere in pericolo i beni giuridici. Quel soggetto merita quel tipo di sanzione per il solo fatto che ha commesso un delitto. Hegel, in maniera più logica- schematica, parla della pena come la negazione della negazione del diritto: se il reato è la negazione del diritto, la pena deve essere la negazione della negazione del diritto e si torna in chiave positiva a riaffermare il diritto stesso. Entrambe queste riflessioni tipiche della filosofia idealistica mostrano una delle fondamenta più solide che la filosofia ha definito per la prospettiva retributiva. Both two fundamental concepts derived from the retributive theory in criminal law (culpability and proportionality) can be considered constitutional principles: the principe of culpability is enshrined directly in article 27 para 1 of the IT Constitution (“La responsabilità penale è personale”) whereas the principle of proportionality is linked with articles 117.1 IT Constitution and article 49.3 ECHR (“Le pene inflitte non devono essere sproporzionate rispetto al reato”). General prevention theory It is a relative theory also called deterrence when considered in its negative form; Platone faceva dire a Protagora: “Chi voglia saggiamente punire non può infliggere una pena come retribuzione (perché non potrà mai annullare ciò che è successo) Chi voglia saggiamente punire lo può fare e lo deve fare solo pensando all’avvenire (prospettiva utilitaristica) la pena è un esempio; la pena è un ammonimento". Seneca, non diversamente, affermava che: “ Nemo prudens punit quia peccatum est, sed ne peccetur” -> “Nessun uomo avveduto punisce perché si è peccato, ma perché non si pecchi”. The general prevention theory has two faces: a) Una declinazione negativa rimanda alla logica della deterrenza/intimidazione. La pena è irrogata così che i cittadini non pensino in futuro di delinquere. Questa teoria era stata esposta anche da Feuerbach nel 1800, il quale affermava che: “La minaccia di pena per il caso di commissione di un reato può funzionare a condizione che il male minacciato sia così grande che il timore di esso superi il desiderio di quell’atto, che la rappresentazione del male superi quella 15 ordinare che l'esecuzione della pena detentiva rimanga sospesa(2). Se il reato è stato commesso da un minore degli anni diciotto, la sospensione può essere ordinata quando si infligga una pena restrittiva della libertà personale non superiore a tre anni, ovvero una pena pecuniaria che, sola o congiunta alla pena detentiva e ragguagliata a norma dell'articolo 135, sia equivalente ad una pena privativa della libertà personale per un tempo non superiore, nel complesso, a tre anni. In caso di sentenza di condanna a pena pecuniaria congiunta a pena detentiva non superiore a tre anni, quando la pena nel complesso, ragguagliata a norma dell'articolo 135, sia superiore a tre anni, il giudice può ordinare che l'esecuzione della pena detentiva rimanga sospesa. Se il reato è stato commesso da persona di età superiore agli anni diciotto ma inferiore agli anni ventuno o da chi ha compiuto gli anni settanta, la sospensione può essere ordinata quando si infligga una pena restrittiva della libertà personale non superiore a due anni e sei mesi ovvero una pena pecuniaria che, sola o congiunta alla pena detentiva e ragguagliata a norma dell'articolo 135, sia equivalente ad una pena privativa della libertà personale per un tempo non superiore a due anni e sei mesi ovvero una pena pecuniaria che, sola o congiunta alla pena detentiva e ragguagliata a norma dell'articolo 135, sia equivalente ad una pena privativa della libertà personale per un tempo non superiore, nel complesso, a due anni e sei mesi. In caso di sentenza di condanna a pena pecuniaria congiunta a pena detentiva non superiore a due anni e sei mesi, quando la pena nel complesso, ragguagliata a norma dell'articolo 135, sia superiore a due anni e sei mesi, il giudice può ordinare che l'esecuzione della pena detentiva rimanga sospesa. Qualora la pena inflitta non sia superiore ad un anno e sia stato riparato interamente il danno, prima che sia stata pronunciata la sentenza di primo grado, mediante il risarcimento di esso e, quando sia possibile, mediante le restituzioni, nonché qualora il colpevole, entro lo stesso termine e fuori del caso previsto nel quarto comma dell'articolo 56, si sia adoperato spontaneamente ed efficacemente per elidere o attenuare le conseguenze dannose o pericolose del reato da lui eliminabili nonché qualora il colpevole, entro lo stesso termine, abbia partecipato a un programma di giustizia riparativa concluso con un esito riparativo, il giudice può ordinare che l'esecuzione della pena, determinata nel caso di pena pecuniaria ragguagliandola a norma dell'articolo 135, rimanga sospesa per il termine di un anno(3). (2) Viene qui richiamo l'istituto della sospensione condizionale della pena. Si tratta di una causa estintiva del reato, cosiddetta sui generis, in quanto determina una sospensione integrale, ma provvisoria dell'esecuzione della pena. Questa può poi risolversi alternativamente nell'estinzione del reato e della pena oppure nella revoca del beneficio concesso, nei casi in cui non vi è stato adempimento degli obblighi imposti o nelle ipotesi di reiterazione dell'attività criminale. Ovviamente il beneficio della sospensione condizionale della pena richiede come presupposto necessario che la pena debba essere ancora, in tutto o in parte, da espiare, diversamente l'eventuale concessione del beneficio deve considerarsi illegittima, e che sia disposta dal giudice. Deve quindi intendersi che il potere di applicazione di tale beneficio è rimesso ad una sua valutazione discrezionale, che deve tenere conto sia del ravvedimento dell'imputato condannato, che della gravità del reato. (3) Comma modificato dal D. Lgs. 10 ottobre 2022 n. 150 (c.d. "Riforma Cartabia"). Offences are divided between crimes and contraventions, in other countries, i.e. France, tripartite systems of contraventions, délits and crimes. In Italy, the retributive theory was supported by the "Classic School” and by Professor Francesco Carrara-> at the basis of retribution, there was the need of social stabilization in order to restore a peaceful climate in society. He expresses the fear that crime commission could encourage other people to do the same. Carrara was the leading jurist: punishment is a factor of “social stabilization”: “punishment serves thus to restore a peaceful climate in society, avoiding citizens to choose between 16 violent private reactions and abandoning a society that is not able to protect them". The whole theory is based on the idea of Social Contract, developed by J.J.Rousseaux -> each citizen renounces to a part of his freedom that makes the power of punishment which belongs to state, in order to guarantee peace and tranquillity in society. So punishment is a tool to enforce the social contract. In addition, in his Criminal law handbook, Carrara asserted that punishment should be: • Exemplary or public = Carrara also underlined that making an example of the offender should never prevail over the correct proportion of punishment. Proportion becomes the limit to deterrence -> it has to be a deterrent, this is the core of general prevention = to keep the member of society from committing crimes, but Carrara underlines that making an examplary punishment (an example of the punishment) to the offender should never prevail over the proportionality of punishment = proportion becomes the limit to deterrence and retribution. So exemplary? Yes, but always in proportion to the crime committed. • Certain = citizens should be albe to know in advance the consequences of their illegal behaviour • Fast = the idea is the importance of a fast process and that the penalty should be executed as soon as possible. The person can change his/her attitude during the time and there is no point on serving a thing form many years before. • Imposed in a way that does not corrupt the offender = it should not dissocialize = criminogenic effect of the prison environment on the inmate behavior. “Even if the exhibition is a good one, the need for re-education should never be carried out to the detriment of retribution and deterrence”. It is a mixed up ideas of the purposes of punishment and all play an important role: general prevention with limits of retribution and right proportion and special prevention but without desocialization so in a strict sense. Therefore the penalty not only should it be proportionate (idea of retribution) he also accepted that punishment should be oriented towards prevention. Punishment should also be imposed in a way that does not corrupt the offender, this is interpreted in a strict sense, not in the sense of rehabilitation but as a no further de-socialisation. So the purpose of punishment is many: retribution in the right proportion and special prevention in the strict sense. 23/02 Carrara classified punishments into four classes: 1. Capital punishment a. Carrara shares the ideas of Beccaria considering earth penalty. Carrara played a vital role in drafting the Zanardelli Code (1889) which is a good expression of the ideas of the Enlightenment which did not provide for the death penalty. 2. Coercive punishments > further divided into: a. Positive > Ø Erasable ones i.e. wiping or flogging and all those are corporal punishment Ø Permanent i.e. such as mark and mutilation and Carrara did not agree with these latter as they were inhuman and irreparable b. Negative ones > these are those punishments that deprive the offender of liberty (detention or exile) > according to Carrara, detention perfectly reflects the idea of 17 proportion as evolved during the Enlightment and the basic idea that penalty should be reparable (if the judge sentence anyone to three years of detention and after these the offender is found out innocent the judge can just release the offender and in the same way if the sentence is of exile the judge can simply let the offender come back (REPARABILITY of the penalty) 3. Dishonourable punishments > those are punishments that insult honour and the traditional one is the public blame (in Latin period it was named piacolum) and at the time of Carrara there was the BAND whereas nowadays we have a category in our Italian penal code (ancillary punishment or accessory punishments (pene accessorie) which are applied buy the judge together with principle penalties (of course there are preconditions set by the law but if those are met the judge does not have any discretion on applying the ancillary penalties)). Carrara was against these penalties as these are unequal (subjective perception of the offender) i.e. the wave of the right to vote that implies a subjective perception of the equity of the penalty and So this is a punishment which is perceived differently depending on the subject. In the Italian Penal Code, in defining the class of the ancillary penalties these are in strict connection with the description of the conduct of the offence. One of the preconditions provided by the law to apply those penalties is the conduct of violation of duty or abuse of power. An example could be the connection between the violation of duty and the interdiction from that profession as a punishment. Carrara was against this class of punishments because there was no connection between the conduct of the criminal and the sentence of the interdiction. 4. Pecuniary punishments or fines. Carrara classified these into: a. Pecuniary punishments in the strict sense > fines b. Pecuniary punishments broadly speaking: confiscations which is considered in Italy a “security measure” and it affects all the goods (omiorum bonorum) but in Carrara thought the confiscation affects also others related to the same goods (i.e. the family) and therefore it is contrast with the principle of personal penal liability. Ø criticized by Carrara because different people attach different values to different events or they can have different economic conditions. In Europe we have the day-tax system = the judge evaluates the seriousness of the offense and fixes the number of the tax based on the seriousness of the act. Then we have a second moment in which the judge, considering the economic situation of the convicted person, fixes the amount of the Day Tax between a minimum and a maximum amount given by the law -> first moment of setting the compensation and then, considering the economic situation of the convicted, a certain maximum and minimum is set by the law. Fifty years before Carrara’s thought, Beccaria (1774, “On crimes and punishments”) wrote that punishment should be public, speedy, necessary, the minimum possible in given circumstances, proportionate to the crime and determined by the law (“ in order that punishment should not be an act of violence perpetrated by one or many upon a private citizen…”). With these words Beccaria closed Dei delitti e delle pene, a concise treatise that would become the crown jewel of the Italian Enlightenment and a classic text of modern penality (+ judicial torture to extract confessions, against the use of secret evidence and sealed accusations, against sentencing 20 Capital punishment > the basic idea is quite straightforward: Since individuals only give the slightest bit of freedom to the sovereign in order to achieve security, this could never include the right of the sovereign to kill a subject. Life is the greatest good of all, not some small measure of freedom. It would make no sense to give this right to the sovereign. Men do not even have the right to commit suicide, Beccaria suggested, how could they give to another the right to punish them with death? The death penalty, according to Beccaria, did not fall in the domain of the right and just, but in the realm of war, but even in that realm, though, capital punishment was neither necessary nor useful. Not necessary because long-draw-out punishments, such as penal servitude or slavery for life, are more effective and fear-inducing than the fleeting shock of death, “which men always regard as vague and distant”; Not useful because capital punishment has a brutalizing effect on society, ‘because of the example of savagery it gives to men.’ Beccaria’s argument attracted the criticism of both Kant and Hegel. • Kant mainly defended the right to capital punishment as a core pillar of his retributive theory of punishment and the idea of lex talionis. • Hegel attacked Beccaria’s conception of the sovereign state and its purpose. For him the state was not a contract and its purpose is not the unconditional protection and guarantee of the life and property of the individuals. On the contrary, it is a higher entity which lays claim to life, property and demands sacrifice.’ (Despite this disagreement, though, Hegel applauded Beccaria for focusing attention on the death penalty and for helping to bring about a more rational appreciation of this extreme punishment.) Modern Appropriations of Beccaria > The author of the essay tells us that Beccaria’s theoretical approach would shape the sensibilities of modern economic theory. It would be helpful to draw a line between two possible perspectives of analysis on Beccaria's work, economic on one side and humanitarian on the other. On the economic side, which is the most prominent for this section, Beccaria had (first) a fundamental role regarding the use of mathematics. He is perhaps the first to ever have deployed mathematical modeling to analyze criminality and Joseph Schumpeter even recognized him among the three precursors to modern econometrics. (Schumpeter in fact called Beccaria “the Italian A. Smith,” and Adam Smith “the Scottish Beccaria”.) Second, and at a more general level, Beccaria heavily influenced the theoretical framework of the modern economic approach to crime and punishment pioneered by scholars such as Gary Becker and Richard Posner at the University of Chicago. for example, Becker’s economic model of crime followed the idea, developed by Beccaria and Bentham, that criminal behavior is influenced by calculation of the costs and benefits of committing 21 crime → so the modern economic model assumes that an individual—any one of us—would engage in illegal activity as long as the benefits outweigh the costs. Overall, Beccaria believed that the logic of economics could tame and civilize society, could guide policy in the social domain, determine right from wrong, just from unjust punishment. But there is one crucial difference that sets Beccaria apart from contemporary liberals economists: the economic rationality that Beccaria promoted was not the self-regulating, free market system, but instead, what is referred to as cameralism: the intense administration of markets and commerce. it was the economics of how to maximize the "prince’s" wealth using all the tools of state intervention es. taxation. In this sense, Beccaria was in no way a precursor of liberal economic thought. Beccaria and the Physiocrats > Beccaria’s views on policing caught the attention of the Physiocrats— a group of French thinkers that opposed the circle of Philosophes. One of them, Dupont, praised Beccaria for being one of the first recognized economists, but at the same time, he heavily criticised him, primarily on the question of the right to property, suggesting that Beccaria had not properly recognized the importance of that right. He also criticised Beccaria’s method, which, starts with the particular instead of beginning with general principles and first truths. He also criticized his policy proposals, suggesting that they inevitably will lead to an impoverished nation. For Dupont, Beccaria was threatening because he promoted a different brand of economics, by trying to integrate and harmonize commercial regulation with the penal sphere. Foucault’s Beccaria > On Crimes and Punishment served also as basis for the genealogy of discipline and prison in Discipline and Punish by Foucault, both implicitly and explicitly. Foucault, in his 1978 lectures, illustrated three different approaches to governing —the juridical, the disciplinary, and the security modes —and, by means of the example of the policing of the grain markets, he analysed the characteristics of discipline, which was very much resemblant of the regulatory mechanisms that Beccaria had espoused with his concept of discipline—all this without directly mentioning Beccaria. On the other hand, Foucault explicitly referred to Beccaria as the key reformer who, drawing on Enlightenment ideas, as well as utilitarian principles of prevention and correction, helped imagine a system of proportional and signifying penalties that would communicate the proper values and simultaneously educate the citizenry. The problem was not that the brutal punishments of the Ancien régime were too savage, he argued, rather it was that they did not function properly anymore as a result of changing social and political circumstances. Beccaria’s writings evinced ‘the emergence of a new strategy for the exercise of the power to punish’ with the primary objective ‘not to punish less, but to punish better,’ with ‘more universality and necessity.’ 22 In the penultimate paragraph of the treatise Beccaria writes: I conclude with a final reflection that the severity of punishments ought to be relative to the state of the nation itself. … But as souls become softened by society, sensitivity grows. And as it does so, the severity of punishments ought to diminish, if the relation between the object and the sensation is to remain constant. Kant Kant’s thought was of the idea that punishment was a categorical imperative. Key Points: Ø Kant’s Theory of Punishment: Retributivism Ø General (Grundlegung) vs Specific (Recht) Categorical Imperative Ø Equality and Law of Retribution (lex talionis) Ø The right to punish and concern for offender’s perspective Ø Degree of punishment: too much/too little Ø Qualitatively appropriate punishment Ø Possible exceptions to Kant’s theory What justifies criminal punishments? There are many different theories but Kant holds a retributivist theory of punishment. Retributivism is a theory based on the position that offenders must be punished in proportion to the offence committed. Many proponents of this theory reinforce their point of view by referring to heinous crimes such as murder in order to illustrate the desire for retribution due to an emotional response of anger or resentment. However, Kant has a different approach - he is not concerned with the emotional component but rather in finding a ‘rational basis for the idea of retribution and to relate it closely to the root ideas of his moral philosophy: specifically the categorical imperative, and the idea of respect for persons.” What is the categorical imperative? In Kant's Groundwork of the Metaphysics of Morals (1785), he refers to the categorical imperative as a principle whereby one should: "Act only on that maxim through which you can at the same time will that it should be a universal law” So this quote represents the general or foundational concept of the categorical imperative and based on this we can see that when Kant says that the principle of punishment is a categorical imperative he is telling us that this principle (a) makes an unconditional moral demand, not one that may be altered for the sake of someone's convenience or preference, and (b) that it can be derived from some version of the categorical imperative. This means that punishment is an unconditional moral obligation which does not imply any further goal because it is derived from the categorical imperative itself. The quotation above refers to the the principle of punishment or law of retribution, and Kant identifies this concept as Lex talionis, which is perceived to be similar to the concepts derived from Mosaic law such as an eye for an eye. Specific categorical imperative : more specifically, in regard to Kant’s theory of punishment, he discusses this in his 1797 Rechtslehre in which he applies a more restrictive notion of the categorical imperative which is appropriate for what Kant calls “The Universal Principle of Law (Recht)”: 25 expression theorist. While this conception is not present in Kant’s passage, we can see its relevance in the act punishment as an act of denunciation of the crime, and thus a reassurance of the innocence of the victim and validity of the rule. Despite these perspectives offered later by other authors, it is apparent that Kant views, the fact that punishment shall be carried out as a duty to oneself because to fail to punish to the proper degree is to fail to have an adequate hatred of criminal conduct. In this regard, we can attest again the strong link between this theory of punishment and the grander scope of Kant’s categorical imperative. Contrary to the opinion of such authors, for Kant the lex talionis is derived from the categorical imperative itself, and for this reason includes the idea of respect for persons, including the person to be punished. Qualitatively appropriate punishments: A possible problem of this retributivist theory, which Kant himself addresses, is the difficulty to enforce qualitatively appropriate punishments for all crimes. While in cases of murder, for example, the appropriate punishment is evident (at least for Kant), he provides the problematic example of theft and suggests the imposition of forced labour as a fit punishment. The reason is that by stealing, the thief deprived everyone of security of property and therefore must provide himself by working for the state for free. However, this proposed solution does not fix the problem as there are many other questions left unanswered such as how long of a period, will the answer depend on the amount stolen and so on. Other crimes remain problematic, for example drug dealing, tax evasion, and perjury. In these situations, finding a mirror-image punishment is complex as there may be more than one victim. The only solution is loosening slightly the ties between crime and punishment which was proposed by Gross whereby the scale of crimes is arranged and opposite it is a scale of punishments. Thus, we must try to arrange a scale of possible punishments in a scale of severity. Possible exceptions to Kant’s theory: As we discussed earlier, Kant’s theory is open to possible exceptions to full proportionality and in his writing he seems particularly interested in class distinctions which he thinks will make a difference in determining appropriate punishment. Even though he strongly advocates for the death penalty, he presents a couple of examples that could constitute justified exceptions to this rule. The first example is of a mother murdering her illegitimate child and the second is of a soldier killing another soldier in a duel. In both cases, the killing has been motivated by a sense of honor, which would suggest a lighter penalty. However, at any rate, Kant still thinks that death still remains the objectively appropriate penalty for such crimes. Potter taker a critical approach in regard to the fact that punishment must be perfectly matched to the crime, both quantitatively and qualitatively - in his view, Kant’s abstract theory of punishment sets a very high ideal because there is a suggestion that there should be zero tolerance, in the sense that we should be able to specify precisely what the appropriate punishment is and such precision can be argued to be out of human capability. Another example of the categorical imperative applied to the realm of Recht is the requirement of advance consent, which is an idea that Kant describes as "a mere idea of reason, one, however, that 26 has practical reality.” The idea of advance consent means that there is an obligation for legislators to formulate laws in a manner that could have sprung from the unified will of the entire people in order for it to be just. To illustrate this point, he applies this particular theory to the privileges of the Nobel class and states that they are to be refused because they could not have been agreed upon by the entirety of society, but only by the ruling class. This is another example of a universal law that is found in many formulations of the categorical imperative. However, we must be reminded that this is a theoretical exercise in order to establish the normativity of an already existing law and not something that happens in practice (at least in the time of Kant). In my opinion, nowadays this idea does not seem so far out of reach due to the mechanisms such as the judicial review of legislation which can be seen to share this idea by Kant. In sum, Kant’s theory of punishment as a categorical imperative centres around the idea of equality and fairness not only for the victim, but also the offender. As we have seen in multiple aspects, the retributivism of Kant is fully and strongly linked to his grander philosophical framework and his moral theory. Despite the fact that Kant is perceived by Potter as a partial retributivist, his writings indicate that he is a full retributivist and while this attitude might seem harsh to the modern perspective, Kant’s theory is particularly interesting because of the effort in rationalizing the value of retribution instead of relying on the emotional arguments that are often present in common discourse. Kant and Capital punishment today Immanuel Kant was emphatically in favor of the death penalty for the crime of murder: “Even if a civil society were to be dissolved by the consent of all its mem- bers (e.g., if a people inhabiting an island decided to separate and disperse throughout the world), the last murderer remaining in the prison would first have to be executed, so that each has done to him what his deeds de- serve and blood guilt does not cling to the people for not having insisted upon this punishment; for otherwise the people can be regarded as collab- orators in this public violation of justice.” This position is understood in the paradigm of retributivism > In Kant’s day, capital punishment was used for a variety of crimes through- out Europe and the new world, though Kant expressly argues in favor of it only for the crime of murder. Nowadays only authoritarian states, countries such as China, Iran, Iraq, Nigeria, and Sudan, make use of it with the big exception of the USA being a powerful industrial democracy. We will consider alternative ways that Kant’s philosophical views on ethics generally and on punishment more particularly could be brought into harmony with the present near consensus of opposition to the death penalty. 27 Recap: Kant > moral retributivism > categorical imperative: it is our moral obligation/duty derived from pure reason. It differs from Hypothetical Imperatives. It has two formulations: 1. The principle of universality > replacing “do unto others as you would have done unto you” 2. The principe of humanity > replacing “love thy neighbour” and universal love. People as ends in themselves since they are autonomous, and thus moral worth/selfhood. The penal law is a categorical imperative; [...] Juridical punishment can never be administered merely as a means for promoting another good, either with regard to the criminal himself or to civil society, but must in all cases be imposed only because the individual on whom it is inflicted has committed a crime. For one man ought never to be dealt with merely as a means subservient to the purpose of another, nor be mixed up with the subjects of real right. Against such treatment his inborn personality has a right to protect him, even although he may be condemned to lose his civil personality. Kant’ she retributivism argument for the Death Penalty: P1 Some criminal punishment is justified if and only if the punishment serves as retribution of the criminal’s behavior. P2 Some punishment can serve as retribution for the criminal’s behavior if and only if that punishment treats the criminal in a way that is sufficiently serious to match the severity of the criminal’s wrongdoing. ( > PRINCIPLE OF RETRIBUTIVE EQUALITY) C1 THUS: Some criminal punishment is justified if and only if that punishment treats the criminal in a way that is sufficiently serious to match the severity of the criminal’s wrongdoing. P3 The death penalty is the only punishment that is sufficiently serious to match the severity of the crime of murder. C2 THUS: The only justified punishment for a murderer is the death penalty. "Whoever has committed a murder, must die”. 30 Objective dimension of the crime (type of offence committed and the seriousness of the harm conceived as a potential damage or a simple endangerment of the legal good). Example of crime of damage: life in murder; example of crime of endangerment art. 439 which sentences the conduct of water poisoning before these are drawn or distributed without causing the direct damage. The third reference is to the subjective dimension of the crime, culpability or mens rea > seriousness of the intent, dolus and the degree of the fault or negligence (grado della colpa e intensità del dolo). Culpability provided by this paragraph is considered to be the foundation and limit of criminal liability. In this sense the role of proportion is a safeguard for the offender: if the punishment is not considered proportional to the seriousness of the offend, the sanction can be conceived as unfair; the premises for a path of rehabilitation are undermined. Culpability is not only the basis the foundation of the criminal liability at the pillar of the general theory of the crime but plays a crucial role in limiting the criminal sanction. According to paragraph 2 provides about the so-called capacity of the offender to commit a crime > close to the idea of social dangerousness of the offender (likelihood of reoffending). Is based on different criteria: the offender’s reasons for committing crime, his/her criminal records and social condition and his/her behavior before and after committing the crime and during the trial. The point here is that according to paragraph 2, which of course evokes the idea of special prevention and reeducation, only a reduction of a sentence determined by the seriousness of the offend based on para 1 is only allowed. l giudice deve tener conto, altresì, della capacità a delinquere del colpevole, desunta: • dai motivi a delinquere e dal carattere del reo; • dai precedenti penali e giudiziari e, in genere, dalla condotta e dalla vita del reo, antecedenti al reato; • dalla condotta contemporanea o susseguente al reato; • dalle condizioni di vita individuale, famigliare e sociale del reo Seriousness of the offend and culpability fix the limit of criminal liability. Instances of the second paragraph can only allow for reduction of penalty i.e. if for first paragraph is 3 year, a specific social condition can only reduce the penalty. If it was not so, the offender wouldn’t perceive the sanction as fair and will never begin a path of reeducation. Retribution is the fundamental purpose but also special prevention plays an important role in reducing the sentence. Provision of article 133 IT Penal Code is also important for the sentencing in Italy: -> in common law system the trial is divided in two parts, the second one being the sentence. in Italy, and in civil law countries, it is different = there’s only one part but in our code (Art. 132 – 133) there are some criteria which guide judicial discretion. It allows the judge to determine the sentence within the limit provided by the law -> he's bound by the law and his power is not absolute. fortemente dibattuto. Secondo un'interpretazione costituzionalmente orientata, la soluzione starebbe nei binomi retribuzione-gravità del reato e specialprevenzione-capacità criminale. 31 è Art. 132 = Duty of motivation regarding in particular the amount of penalty è Art. 133 = Establishes criteria a. Paragraph 1: is about the seriousness of the offence, taking in consideration seve ral different factors: § The type of offence committed § The seriousness of the harm caused/the seriousness of the threat posed § The level of guilt/the seriousness of wilfulness and the level of fault (mens rea) b. Paragraph 2: is about the capacity of the offender to commit an offence, basing itself on: § The offender’s reasons for committing the crime § His/her precedents and social conditions § His/her behaviour before committing the offence With regard to fines Art. 133bis adds also the criterion of economic condition of the offender. There is no provision in all the Italian penal code about the purposes of punishment, but we could see the purpose of fair proportion in the first paragraph of Art.133 and the special prevention purpose in the second paragraph. After the Italian consitution was enacted in 1948, the scholars and case law of the consitutional court supported the polyfunctional theory about the purposes of punishment according to which there are different goals for penalties and all are equivalent: no one has prevalence on the others. Soon after, a dialectical approach was chosen: the goal of punishment can be analyzed in three phases in which, in each, the punishment has different goals: • Precept/threat phase> legislative power of the State, have to choose which act to criminalize and punish, is both a criminal law and political choice. Main theory is general prevention (deterrence is important) and also proportion • Sentencing phase> determination of the sentence, in this phase the judge decides and fixes the right amount of punishment between the sentence frameworks. Special prevention (eventually reducing the penalty) and retribution (proportion) • Enforcement phase> sentence has to be carried out. Special prevention (re-education, rehabilitation, re socialization). According with the dialogical approach in each phase the purpose has different importance. General prevention in depth According to general prevention, the recipient of punishment should be the whole of society, not the single offender. According to general prevention, the sentence should have a deterrent effect on society. At the basis of general prevention, there was the theory of the "psychological compulsion" = a member of society as an individual doesn't commit a crime if the sentence promise a big 32 punishment. It's a checks and balances system between costs and benefits -> costs are the amount of penalty, on the other side we have the profit from the crime, the advantages. The legal provision can have the deterrent effect only if it is clear, precise and intelligible. So, there is a strict connection with the legality principle -> and in particular between the subprinciple of precision and the purpose of general negative prevention. General prevention in its negative form and its legality principle -> legality principle is the tool to achieve deterrence -> originated and evolved in the same historical period, the Enlightenment. It was Feuerbach, Kant’s student, that theorized the concept of negative general prevention. In his opinion it has a fundamental role in the first phase but also in the enforcement phase. On the other hand, nowadays, there's the claim that the thrid phase should have a marginal role since the risk of exploitation of the offender could occur > in general, general prevention for the last two phases is avoided, as applying general prevention approach in the second or third phase would bring the risk of the exploitation of the offender (strumentalizzazione del reo) in keeping the citizens from committing crimes. So, historically, there were two forms of general prevention: 1. Negative general prevention -> prevention/deterrence is ensured by the legal threat = still valid nowadays 2. General prevention obtained through example -> prevention ensured in the third phase. Carrara was totally against this second form because “the exploitation has to be criticized not only for the risks of punishment to be excessive but also because of the exploitation in itself and the risk to condemn someone that is innocent”. Several criticisms regarding negative general prevention: 1. It does not take into consideration motivational pressure -> it reduce the evaluation at a cost-benefit scheme so the subjects choices are under control but sometimes choices are irrational and therefore.. (see the following point) 2. Not all crimes can be the subject of a costs-benefits analysis -> since the motive (movente) can be a determine factor in committing crime, general prevention must be balanced with proportional principle.. 3. General prevention in its negative form has to be recognized in the precept phase, but always together with the idea of proportion. There is a second form of general prevention, positive general-prevention. This also has two different forms: • Positive general prevention in the strict sense -> relevant phase is the first one (threat phase) = according to this theory punishment has a role of educating citizens and of ensuring individuals identification with the values of the legal system = If we live in a certain society we must follow all the prohibition and commands of its criminal law system, must recognize 35 Lombroso, leading figure, based his theory on biological determinism, analyses the dead bodies of offenders and gave identikit of the type just considering physical factors as determinant. At his times Lombroso had success. The same approach is taken by neuroscience: synapse movement to predict behaviors. A different approach by Garofalo in his criminology textbook > individuals are lead to crime by psychological factors and not physical one. Ferri can be considered the leading figure who has an even different approach: gave value to all the aspects underlined by the others enhancing a different factor, social and economical context/environment. In his theory there are 3 factors that lead a person to commit a crime: • Physical factors (limited) • Psychological factors • Economic and social context with a fundamental role He underlined the importance of the social background but even though his doctrine is clearly inspired by Von Listz, Ferri anticipated principles that nowadays have much importance. He theorizes the legge della saturazione criminosa, law of criminal saturation > the committing of a crime is determined by the condition of the social environment. Crimes are seen as product of innate predisposition given by the social and economical condition. Consequentially, notwithstanding the law of prevention, some people will commit a crime anyway > criminal sanction is not sufficient to prevent the crime to be committed. Limited preventive effect of criminal law > if it works crimes would not be committed. Ferri also developed a second doctrine called the theory of the sostitutivi penali, theory of criminal substituted > criminal sanctions are only one of the tools of criminal prevention, they should be combined with social reforms to modify the social context (not a completely ex ante “re-education”, as an ex post phase is still present). Ferri gave examples: with regard to civil law, many reforms were deemed necessary i.e., law for divorce would have reduced domestic violence and homicides. He later admitted that his theory was impossible to be carried out: it was too expensive and demanding a lot of time “legislator would take into consideration the possibility of systematic reform” > but still fundamental, he theorizes the exrema ratio in Italy. Criminal law is part of criminal sociology, is just one of the means to intervene in the crime. Ferri, as Von Liszt, proposed a classification of penalties based on the type of offender and not on the type of punishment or sanction (different from Carrara's one): Mad offenders for which he proposed the criminal asylum 36 Known incorrigible offenders (delinquenti noti incorreggibili)> death penalty or imprisonment (deprivation of liberty for undetermined time). Other scholars proposed punishments based on the law of retaliation with invading sanctions i.e., castrations. neutralization of the offender Impetus offenders (offenders acting on impulse or passion = delinquenti per impeto o per passione)> he believed that in this case the sanction is totally useless since there are no possibility to improve the social context. Thus he proposed compensation for the victim and removal of the offender for limited period of time but only if the material object of the crime is a person (i.e. personal injury). Occasional offender > prevention has to prevail over repression, thus prevalence of positive special prevention. The goal is that of re-education, proposes the surrogate penalty (pene surrogatorie) pretty close to alternative measures nowadays. In this moment the struggle against short prison sentence arises due to the criminogenic effect of the prison environment on inmates behavior. General preventive effects of punishment In continental theoes of crime a basic distinction is made between the effects of punishment on the offender (special prevention) and the effects of punishment upon the memebrs of the society as a whole (general prevention). The characteristics of special prevention are termed "deterrence," "reformation" and "incapacitation," and these terms have meanings similar to their meanings in the English speaking world whereas general prevention may be described as the restraining/limitating influences emanating from criminal law and its machinery on the society (in order to not commit a crime). While the effects of special prevention depend upon how the law is implemented in each individual case, general prevention occurs as a result of an interplay between the provisions of the law and its enforcement in specific cases > traditionally the punishment was public as to secure the deterrence effect on those who were looking in the forum whereas today it is customary to emphasize the threat of punishment as such. It is not correct to regard general prevention and deterrence as one and the same thing. The concept of general prevention also includes the moral or socio-pedagogicalinfluence of punishment. General retention is in writings of Beccaria, Bentham and Feuerbach. According to Feuerbach, for example, the function of punishment is to create a "psychological coercion" among the citizens. The threat of penalty, consequently, had to be specified so that, in the mind of thre potential malefactor, the fear of punishment carried more weight than did the sacrifice involved in refraining from the offence. Basic observations about general prevention: 1. Differences between types of offences > The effect of criminal law on the motivation of individuals is likely to vary substantially, depending on the character of the norm being 37 protected. Criminal law theory has for ages distinguished between actions which are immoral in their own right, maa per se, and actions which are illegal merely because they are prohibited by law, mala quia prohibita. In the case of mala per se, the law supports the moral codes of society. If the threats of legal punishment were removed, moral feelings and the fear of public judgment would remain as powerful crime prevention forces, at least for a limited period. In the case of mala quia prohibita, the law stands alone; conformity is essentially a matter of effective legal sanctions. Any realistic discussion of general prevention must be based on a distinction between various types of norms and on an analysis of the circumstances motivating transgression in each particular type. This is a fact easily overlooked, and authors often discuss general prevention as if all norms were the same. 2. Difference between persons > Citizens are not equally re- ceptive to the general preventive effects of the penal system. 3. Differences between societies > The criminal laws do not operate in a cultural vacuum. Their functions and importance vary radically according to the kind of society which they serve. Crime can be combatted by both threat of punishment and various social measures. In recent years an enormous interest in the effects of crime prevention programs has developed in the United States, in the field of juvenile delinquency. The major objective of the Cambridge Somerville youth study was to test the hypothesis that delinquency can be prevented by the presence of an adult friend who will stand by the boy and offer him the opportunities and moral guidance normally supplied by parents. This research is faced with the difficult task of assessing changes in criminality and if such changes are found to exist of judging whether the change relates to the innovation. Such programs often are made up of a whole series of different activities so that even when we succeed in verifying that a change has resulted, we cannot know what parts of the program are instrumental in producing the effects. However, it seems clear that at present, there is definitely more proof of the efficacy of repressive measures than of those crime preventing measures that have a different theoretical basis. Without a police force guidance experts would have few opportunities to do their jobs. The use of any coercive measure raises ethical problems, the question is to what extent are we justified in imposing upon someone a cure which he does not desire? This question exists in criminal justice and assumes special proportions in connection with general prevention. It has often been said that punishment in this context is used not to prevent future violations but to instill lawful behavior in others. The individual criminal is an instrument and that goes contrary to our ethical principles. The ethical questions come to a head when individual penalty is decided by general prevention considerations, in other words exemplary penalties. Usually exemplary or heavier penalties are given to sentences that are subjected to more publicity and the general preventive effects will be stronger. But is it fair and defensible for the judge to pass heavy judgments in sentences that are likely to gain more publicity and to give merely a warning in less spread sentences? For ethical reasons this approach is only acceptable within very narrow limits. 40 committed whilst it was in force even after it ceases to be in force. This does not apply to the extent that a law provides otherwise.was committed o Spain art 1 and 9: (1) No action or omission that is not defined as a felony or misdemeanour by Law prior to it being committed shall be punishable. (9) The provisions of this Title shall be applied to the felonies and misdemeanours that are punishable by special laws. The remaining provisions of this Code shall be applied to supplement everything not specifically foreseen therein. o France art 111-2, 112-1: (111-2) Criminal offences are categorised as according to their seriousness as felonies, misdemeanours or petty offences. (112-1) Conduct is punishable only where it constituted a criminal offence at the time when it took place. Only those penalties legally applicable at the same date may be imposed. However, new provisions are applicable to offences committed before their coming into force and which have not led to a res judicata conviction, when they are less severe than the previous provisions. • Constitutions: o Italy article 25 o Germany article 103: In the courts every person shall be entitled to a hearing in accordance with law.An act may be punished only if it was defined by a law as a criminal offence before the act was committed.No person may be punished for the same act more than once under the general criminal laws. o Spain article 25: No one may be convicted or sentenced for actions or omissions which when committed did not constitute a criminal offence, misdemeanour or administrative offence under the law then in force. Punishments entailing imprisonment and security measures shall be aimed at reeducation and social rehabilitation and may not involve forced labour. The person sentenced to prison shall enjoy, during the imprisonment, the fundamental rights contained in this Chapter except those expressly restricted by the content of the sentence, the purpose of the punishment and the penitentiary law. In any case, he or she shall be entitled to paid work and to the appropriate Social Security benefits, as well as to access to cultural opportunities and the overall development of his or her personality. The Civil Administration may not impose penalties which directly of indirectly imply deprivation of freedom. o French declaration art 8 • International and EU law: o article 7 ECHR: No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations. o article 49(2) CFREU: No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national law or international law at the time when it was committed. Nor shall a heavier penalty be 41 imposed than the one that was applicable at the time the criminal offence was committed. If, subsequent to the commission of a criminal offence, the law provides for a lighter penalty, that penalty shall be applicable. 2.This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles recognised by the community of nations. The severity of penalties must not be disproportionate to the criminal offence. o article 22 and 24 ICC: (22) A person shall not be criminally responsible under this Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court. 2. The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted. 3. This article shall not affect the characterization of any conduct as criminal under international law independently of this Statute. (24) No person shall be criminally responsible under this Statute for conduct prior to the entry into force of the Statute. 2. In the event of a change in the law applicable to a given case prior to a final judgement, the law more favourable to the person being investigated, prosecuted or convicted shall apply o article 9 American convention of Human rights: No one shall be convicted of any act or omission that did not constitute a criminal offense, under the applicable law, at the time it was committed. A heavier penalty shall not be imposed than the one that was applicable at the time the criminal offense was committed. If subsequent to the commission of the offense the law provides for the imposition of a lighter punishment, the guilty person shall benefit therefrom. Italian criminl law Main sources: • art 25.2 constitution • 1-2 criminal code: (1) Nessuno può essere punito per un fatto che non sia espressamente preveduto come reato dalla legge, né con pene che non siano da essa stabilite. (2) Nessuno può essere punito per un fatto che, secondo la legge del tempo in cui fu commesso, non costituiva reato.Nessuno può essere punito per un fatto che, secondo una legge posteriore, non costituisce reato; e, se vi è stata condanna, ne cessano l'esecuzione e gli effetti penali. • articles 199-200 cp and 25.3 constitution (for security measures) o Sottoposizione a misure di sicurezza: disposizione espressa di legge.>Nessuno può essere sottoposto a misure di sicurezza che non siano espressamente stabilite dalla legge e fuori dei casi dalla legge stessa preveduti o Applicabilità delle misure di sicurezza rispetto al tempo, al territorio e alle persone> Le misure di sicurezza sono regolate dalla legge in vigore al tempo della loro applicazione. Se la legge del tempo in cui deve eseguirsi la misura di sicurezza è diversa, si applica la legge in vigore al tempo dell'esecuzione. Le misure di sicurezza si applicano anche agli stranieri, che si trovano nel territorio dello 42 Stato.Tuttavia l'applicazione di misure di sicurezza allo straniero non impedisce l'espulsione di lui dal territorio dello Stato, a norma delle leggi di pubblica sicurezza. Principle of statutory reservation In italy we have a system of statutory reservation enshrined in 25.2 and 1 of the criminal code. article 25 says that the law is the only source of criminal provisions. But what is a law? With regards to statutory reservations, we have big differences between civil law and common law countries (no statutory reservations most of the times, law is judge made). For us statutory reservation is essential; it is crucial to establish what law means when speaking of the criminal law system. Most of the timesl we can say that law is the parliamentary law, the ordinary law. The main goals of the statutory reservation are the following: • giving the parliament, the most representative body, the power to issue laws means to safeguard the minorities. • the parliament is the best instituion to grant collective interests> dialogue in the parliament is the best way to have a broader scenario, to broaden the itnerests of the law. Thus, the legislator must be the parliament and not the executive; but this is ideal, there are instances for which this does not apply, often we have legislatvie decrees issued by the government in the criminal law field. Ideally only ordinary laws can define criminal offences and penalities but a broader pricutre is needed. 2 questions on statutory reservation may be important: • whether is an absolute or relative reservation o if absolute only primary sources can define offecense and penalties and therefore only those sources that has the same statue as parliametnary role are to be considered for crimianl proceedings. o if we accept the relative statutory reservation also secondary rules can issue cirminal law and thus secondary sources play a role i.e., governmental issues, below ordinary law. Generally there were some contrary vires on the point, we now tend to adopt an absolute vision to the statutory reservation, only primary sources are in the place to issue criminal law. Secondary sources have a place in criminal law but is limited to a so called technical contribution; a good example are the drug trafficking regualations where we have laws steaming from the ministry of Health which gives definitions of soft drugs, hard drugs and their use. In this case, it is a tecnical contribution; we can accept secondary rules but these do not define the criminal offence or the penalty. 45 Therefore the principle of certainty is primarily directed towards the legislative power regarding the definition of criminal offences and penalties. Regarding the definition of criminal offence, it must be defined in a clear and precise way in order for the individual to understand its meaning. The IT constitutional court is not always very keen on declaring the constitutional violation of the principle of legality under the respect of precision with regards to Italian criminal norms. In a very important judgement (96/1981) the court declared inconsistent with the constitution the offence punished at article 603 of the IT criminal code (plagium). Plagium according to the It constitutional court was not a clear concept in the criminal law as well as in medical terms as well as in common knowledge terms. Therefore plagium considered as the subjection of a person to the power of another was an unclear concept. This was one of the few cases where the IT constitutional port sanctioned the legislator for its lack of clarity in drafting criminal provision. Regarding the penalties, the clarity and precision of penalties is to be assessed by looking at the boundaries within which the judge has the power to decide to apply a certain penalty. In the Italian criminal system, the judge is not free to decide whatever penalty he wants but the legislators does and has to establish the clear limits in the minimum and in the maximum amount of penalty that the judge can impose. In the Italian criminal system there is a specific provision in this sense (article 132 which states about the necessity of motivation regarding the amount of penalty and also refers to the minimum and maximum provided for by the legislator for each penalty and crime). 132. Potere discrezionale del giudice nell'applicazione della pena: limiti. Nei limiti fissati dalla legge10, il giudice applica la pena discrezionalmente11; esso deve indicare i motivi che giustificano l'uso di tal potere discrezionale12. 10 La disposizione in esame, al suo primo comma, indica le tre regole fondamentali relative all'applicazione della pena, cui il giudice deve attenersi: tenersi nei limiti fissati dalla legge, applicare discrezionalmente la pena e indicare i motivi che lo hanno portato alla commisurazione della stessa. Per quanto attiene al primo aspetto, l'espressione "nei limiti fissati dalla legge" prevede che non possa essere irrogata una pena superiore/minore al massimo/minimo edittale. Questi possono subire delle variazioni, solo quando è la legge stessa a prevederlo,secondo quanto previsto dal secondo comma di questo articolo. 11 In secondo luogo, nell'applicazione della pena, il giudice è chiamato ad agire discrezionalmente. Ciò non significa che questi può agire arbitrariamente, quanto che dovrà attenersi a criteri legalmente predeterminati (si parla dunque di discrezionalità vincolata), ravvisabili nei limiti esterni, ovvero il c.d. spazio edittale: minimi e massimi di pena, e in quelli interni, rinvenibili nell'art. 133 e sintetizzati nelle formule della retribuzione (gravità complessiva del fatto) e prevenzione speciale (capacità a delinquere). 12 Infine, il giudice deve motivare le proprie scelte, in attuazione del principio costituzionale di motivazione obbligatoria dei provvedimenti giurisdizionali (art. 111Cost.), in modo da garantire un uso corretto e regolamentato del proprio potere discrezionale, nonché la congruità della pena inflitta al reo. Si ricordi che tale dovere non si considera assolto in presenza di motivazioni implicite o stereotipate, in quanto deve consentirsi un controllo effettivo sull'operato del giudice. 46 Nell'aumento o nella diminuzione della pena non si possono oltrepassare i limiti stabiliti per ciascuna specie di pena, salvo i casi espressamente determinati dalla legge13. 133. Gravità del reato: valutazione agli effetti della pena. Nell'esercizio del potere discrezionale indicato nell'articolo precedente, il giudice deve tener conto della gravità del reato, desunta: 1. dalla natura, dalla specie, dai mezzi, dall'oggetto, dal tempo, dal luogo e da ogni altra modalità dell'azione; 2. dalla gravità del danno o del pericolo cagionato alla persona offesa dal reato; 3. dalla intensità del dolo o dal grado della colpa. Il giudice deve tener conto, altresì, della capacità a delinquere del colpevole, desunta: 1. dai motivi a delinquere e dal carattere del reo; 2. dai precedenti penali e giudiziari e, in ge-nere, dalla condotta e dalla vita del reo, antecedenti al reato; 3. dalla condotta contemporanea o susseguente al reato; 4. dalle condizioni di vita individuale, familiare e sociale del reo. In France for example there is no minimum penalty but only a maximum but of course it is not a big issue as it is self-evident that the judge and the system provide for a certain reasonableness in this case. What is really important is the provision of the maximum penalty. Article 25(2) IT Constitution > no punishment may be inflicted except by virtue of a law in force at the time the offence was committed. Article 1 IT Criminal Code > no one may be punished for an act expressly provided as a criminal offence by the law, nor with penalties not provided for by the law. • sufficient definiteness of the criminal law: quality of the law • Safeguard against abuses of judicial power • It enables individuals to know the law in force • Primarily directed towards the legislative power o Definition of criminal offences (ex.plagium) o Penalties 13 Ratio Legis è La norma trova chiaramente il proprio fondamento nell'impossibilità di prevedere a carico del giudice un libero ed arbitrario potere nella commisurazione della pena, che quindi necessariamente deve essere limitato da precise regole di comportamento, atte a svolgere una funzione garantista. Il collegamento tra l'art. 132 e l'art. 133 c.p. evidenzia il conferimento al giudice di un potere discrezionale nella quantificazione della sanzione il cui uso è corretto e legittimo se garantito da una motivazione da cui risulti che i parametri stabiliti dall'art. 133 c.p. siano stati sostanzialmente ed in concreto presi in esame e valutati, quale che sia la misura della sanzione inflitta. 47 The principle of prohibition of analogy The provision against analogy which is very important (one of the most widespread principles that is cross border and usually accepted everywhere in the criminal systems). Analogy is a kind of interpretation (now the reference made is to the judge) and the prohibition of analogy is not expression stated in article 25 of the IT constitution but is considered under its protection. Whereas, if we want to have a provision looking at analogy, we have to look at article 14 of the so called “pre-leggi” of the IT Civil code > both criminal laws and exceptional laws shall not be applied in analogy so outside the cases that the law already foresaw at the beginning. It can happen that the judge encounters a gap in the legislation and the prohibition of analogy forbids to fill this gap applying an already existing statute beyond its wording to cases that have a similar rationale when it is done in malam partem (so in detriment of the accused). The only thing the judge can do is applying the law extensively to cases that can be considered included in the wording of the law. He cannot apply the law analogically to similar cases but which are not linked to the wording of the law. Therefore in criminal law extensive interpretation is allowed. Example: vehicular/street omicide provided for by article 589bis of the IT Criminal Code introduced in 2016. The provision refers in para 2 as a possible offender to drunk subjects driving a motor vehicle. So applying the provision to subjects driving a simple bicycle would be an interpretation in analogy done in malam partem as this would lead to widening the scope of application of the provision (which is forbidden by the Italian Criminal system). On the contrary, applying the provision to a subject driving a so called electric bicycle would just be an extensive interpretation allowed by the system even if this is done in malam partem. 589-bis. Omicidio stradale. Chiunque cagioni per colpa la morte di una persona con violazione delle norme sulla disciplina della circolazione stradale è punito con la reclusione da due a sette anni. Chiunque, ponendosi alla guida di un veicolo a motore in stato di ebbrezza alcolica o di alterazione psico-fisica conseguente all'assunzione di sostanze stupefacenti o psicotrope ai sensi rispettivamente degli articoli 186, comma 2, lettera c), e 187 del decreto legislativo 30 aprile 1992, n. 285, cagioni per colpa la morte di una persona, è punito con la reclusione da otto a dodici anni. La stessa pena si applica al conducente di un veicolo a motore di cui all'articolo 186-bis, comma 1, lettere b), c) e d), del decreto legislativo 30 aprile 1992, n. 285, il quale, in stato di ebbrezza alcolica ai sensi dell'articolo 186, comma 2, lettera b), del medesimo decreto legislativo n. 285 del 1992, cagioni per colpa la morte di una persona. Salvo quanto previsto dal terzo comma, chiunque, ponendosi alla guida di un veicolo a motore in stato di ebbrezza alcolica ai sensi dell'articolo 186, comma 2, lettera b), del decreto legislativo 30 aprile 1992, n. 285, cagioni per colpa la morte di una persona, è punito con la reclusione da cinque a dieci anni. La pena di cui al comma precedente si applica altresì: 50 On the other side, para 4 of article 2 rules the retroactivity of more lenient criminal provisions. So not the case of an abolition of the criminal relevance of the act but just a more lenient criminal law. For example: criminal offense punished with a penalty within two and ten years but then a new law enters into force that punished the same conduct only with a penalty from one to five years and the codes says that if the statute in force at the time an offense was committed and the subsequent statutes are different, that statute shall be applied whose provisions are more favorable to the accused (unless a final judgement has been issued). With regard to the principle of retroactivity of more lenient criminal provisions, res iudicata is the limit to apply para 4 in Italy. But this is not the case in Spain or in Germany where every time a law is more lenient, its effects go beyond res iudicata and therefore in those states there is general validity of more lenient criminal law without restrictions. The provision of para 4 of article 2 could be in breach (depending on the circumstances) with article 3 of our constitution (the principle of equality). A convicted couldn’t benefit of a more lenient provision depending on totally arbitrary elements capable of affecting the time for the final judgment of the sentence (such as the loci commissi delicti or the skills of the lawyers). In 2006 the Italian legislator changed article 2 thereby introducing a new para 3: if there has been a sentence of imprisonment and a later law only provides for fines, imprisonment is immediately converted into the correspondent fine even though the judgment was final. So summing up, there are only two hypothesis in which the final judgment is not a limit (para 2 ruling the abolitio criminis and para 3). Para 5 and 6 of article 2 of the IT Criminal Code. Para 5 says that the provisions of article 2 shall not be applied to exceptional and temporary statutes and the reason is self-evident. Para 6 is a very strange and difficult provision to understand because the discipline of law decrease has been changed and the provision has also been declared in part inconsistent with the Italian Constitution (in particular with article 77 of the IT CONS). It says that the previous provisions of article 2 shall be applied in case of relinquishment, absence of ratification of a law decree and in case of non-converted law decree. So it seems to say that in all the cases provided for by the norm, a law decree according to para 6 shall be subject to the provisions of article 2 but if we think to the rationale of a law decree in the Italian constitutional system, it make absolutely no sense. There is a reason indeed as the Italian criminal code was issued in 1930 so the constitution we know today was not in force and a law decree at that time was a provision that, if not transposed into law, loosed its effects ex nunc (so it was still valid for the 60 days it has been in forced). On the contrary, in the Italian constitutional system, the law decree, if not transposed into law, loses its effects ex tunc (practically as it was non-existing during those 60 days meaning that there cannot exist a succession of statutes). 51 What if the law decree introduced a more favorable criminal provision? What would be the situation of those people who committed the offense during the 60 days of validity of a non-converted law decree? It seems that, applying the principle of irretroactivity, the non-converted law decree should be applied everytime it imposes a more lenient provision. As we already said, the IT Constitutional Court in judgement 51/1985 declared this para inconsistent with article 77 of the IT CONS where it provided to apply its second and fourth para (concerning the abolitio criminis and the succession of statutes in the case of a non-converted law decree providing a more favorable criminal law meaning a repeal (abrogation) or a more lenient provision. Apparently the IT Constitutional court is telling us something quite strange: a person committing a crime offense within the 60 days of validity of the law decree not transposed providing a more favorable provision, shall be subject to a detrimental law according to the Constitutional court which is the one re-entered into force after the non-ratification of the law decree and this is of course unacceptable. If we look deeper into the reasoning of the constitutional court, it is only referring to those offenses committed before the entering into force of the law decree and this make sense. For the actions committed before the entering into force the law decree, if the decree which provides more favorable provisions is not transposed into law, the only provision will be applied whereas for acts committed within the 60 days of validity and effectiveness of the law decree and if the provisions are favorable to the accused, these favorable provisions will apply. The ECHR on the issue of the principle of non-retroactivity Article 7 provides for the principle of non-retroactivity but specifications are needed as we have seen the definition of law in the European convention is an autonomous one as it includes both statutory law and case law. Therefore also the principle of non retroactivity applies to both sets of law. This means that according to the ECHR case law cannot provide a detrimental regulation of the criminal law retroactively. This makes sense as in the system of the Council of Europe there are both common law and civil law states. In common law states case law could in abstract introduce a new principle in detriment of the accused that could be applied retroactively (case of the UK where we have the binding precedent system so retroactive effect of case law). On the other side, the USA have a sort of solution to this problem of case law as there is the principle of prospective overruling according to which the law declared by the court applies only to the cases arisen in the future. So a detrimental overruling is applied only for in the future and it is not applied in the case under the judge scrutiny. The problem is that the ECtHR also applies the principle to civil law countries and often the judges in civil jurisdiction have introduced detrimental interpretation of a provision and thus the ECtHR has often declare the violation of article 7 even in civil law countries such as Italy France or Spain when the judges have applied a detrimental interpretation of criminal law which was not 52 foreseeable by the individual (i.e. the Rio Prada v Spain > the ECtHR condemned Spain for violation of article 7 for having applied retroactively a most severe jurisprudence interpretation (paro doctrine about the early release)). Another principle affirmed by the ECtHR is the principle of retroactivity of a more lenient criminal law. Even article 7 does not provide expressly for this principle, but in the very important judgment Scoppola v Italy of 2009 the ECtHR has acknowledged this principle as implicitly entailed in article 7 and this was also the consequence of the affirmation of this principle at EU level as in 2005 the ECJ had affirmed the principle of retroactivity of more lenient criminal law with regard to the Berlusconi v Italy. So the ECtHR affirmed that this principle was part of the common constitutional tradition of the Member States. According to Scoppola v Italy but also to international provisions such as article 15 of the ICCPR and article 49 para 2 of the Charter of FR of the EU, the ECtHR decided to acknowledged this principle at the Council of Europe level as well. This judgment at the european level has also stimulated the IT constitutional court to give constitutional protections and acknowledge to the principle (today in fact the principle is considered part of the Italian constitutional protection according to article 3 of IT constitution and to article 117 read in conjunction with article 7 of the ECHR > effective dialogue between these courts). Another curiosity about article 7 of the ECHR: it has a para 2 which seems to foresee an exception to the principle of irretroactivity > it provides that article 7 shall not prejudice the trial and punishment of any person for any act or omission which at the time it was committed was criminal according to the general principles of law recognised by civilized nations. Classification of crimes and penalties In Italy crimes are divided in two groups: (1) crimes – crimini, e.g., robbery or murder and (2) misdemeanours – contravvenzioni, i.e., serious offences. The distinction is made then on the severity of the punishment, e.g., deprivation of liberty = reclusione v arresto: the content of deprivation of liberty is the same, the difference lies in the timeframe and the place in which it will take place. the Code provides a frame of min/max of both imprisonment and arrest. Another difference on a substantive viewpoint is based on the seriousness of the offence. The Italian criminal code distinguishes different categories of punishment: 1. Principal punishments 2. Ancillary punishments (pene accessorie) 3. Alternative measures 4. Security measures Principal punishments In the italian penal code those are regulated under article 17 of the Italian criminal code which deals with deprivation of liberty and fines or pecuniary penalties. Between the penalties of deprivation of liberty we can distinguish: 55 community on social security. Another precondition of alternative measures is disvalore penale del fatto. The judge can apply a Security Measure in case of: § mental insanity if an offender totally capable of thinking and willing or socially dangerous (meaning there is a risk of reoffense). Here the judge has to prove the state of mental illness and the incapacity. § a child under 14 years if there is an absolute presumption (that it cannot be rebutted, so it cannot be provided proof for the contrary). Children under 14 are considered totally incapable of thinking and willing and when the child is considered socially dangerous the judge can grant a security measure. Here it is the law that imposes an absolute presumption so the judge does not have to prove anything. § offenders considered by judges totally capable of thinking and willing: here we have a double sanction on the one hand the penalty and if the person is socially dangerous we can also have a security measure. If the judge considers the offender incapable, the only sanction that can be given is the security measure. Ex: in case of an offender incapable of thinking and willing, there will be no crime, and no penalty: • The fact is typical > coincidence between the fact as described in the law and what really happens • Also unlawful But not blameworthy • Culpability is missing! Because the capacity of thinking and willing is the precondition for reproach • But, if the Offender is considered socially dangerous, there will be a security measure This theory of crime structured in three pillars allows to answer to the question ‘’when do we have a crime?’’ A crime occurs when: 1. The fact is typical which means that it complies with all the elements provided by law. 2. Then we have to prove that this fact is also unlawful, that is to say it is not excusable. If the fat is typical and unlawful that fact is considered illegal. If there is self-defence, the fact is still typical but not unlawful so it becomes legal. 3. Culpability : this considers the difference between the two hypothesis considered above: o offender capable of thinking and willing: this capacity is considered part of the pillar of culpability so it is a precondition of the reproach. On the contrary, in the case of an offender capable of Thinking and Willing, there will be a crime and a penalty. If he is found also socially dangerous, there will be also a Security Measure o offender incapable of thinking and willing: e.g. the child is not considered blameworthy because he is not capable of thinking and willing so he is not aware of what he is doing. Furthermore it is impossible for him to be aware of the criminal position. 56 Culpability is based on dolo so we cannot prove mens rea. Example of Security Measures for Offenders incapable of thinking and willing: • Total mental incapacitation (Mental Illness) > OPG, Nowadays REMS • Child under the Age of 14 (in the Italian Criminal Code) > Reformatory GENERAL THEORY OF CRIME When can we say that a crime has been committed? The general theory of the crime provides the answer to this complicated question. First of all, a crime offence is defined as a typical, wrongful, blameworthy and punishable act or human fact. In other words, a crime is a fact forbidden by the law through the provisions of a criminal sanction; such a sanction implies an effective or a potential deprivation of personal freedom. According to the tripartite system of the crime, which is nowadays the most supported theory by Italian scholars, a behaviour, in order to be considered as a crime, shall possess 3 fundamental elements: 1. Typical character: the conduct shall be typical, meaning that all the constitutive elements of the offence provided by the legislator should be met. 2. Wrongfulness: it should be proven, meaning there should not be any cause of justification, for instance, self-defence, state of necessity etc. 3. Culpability (or blameworthiness or mens rea): this element is constituted by all the criteria for the person to be considered guilty. Under Italian law, the fact has a primacy over the perpetrator and the victim, because the criminal offence is a considered as an attack to a protected legal interest (bene giuridico), namely an attack that affects society as a whole. The notion of culpability allows us to link such a fact with the subjective side of individual liability. An offender should be sentenced because of what he/she did, and not for what he/she is. 1/03 Thus a crime is an occurrence or a fact which is a result of a human action, which the legislative power decides to punish and is thus strictly and exhaustively outlined by statutory law, under the principle of legality (thus legal certainty, well-definition and transparency); the evaluation of those acts does not depend on the moral standards of the judge and the act offends some interests and values enshrined in our constitution, in so undermining the «well-being» of society. According to Article 25 of the Italian Constitution – no one shall be punished except on the basis of a law already in force before the offence was committed; thus, no retroactivity in criminal law > principle of legality = nullum crimen sine poena. Also the ECHR (article 7) demands that legal provisions are clear and accessible to people. Components of the crime: 57 • Principle of legality: a guarantee for the freedoms and rights of there citizens and it is also supposed to maintain the rule of law > from it can be derived (riserva di legge) = statutory regulation; • Principle of well definition > clear; • Principle of non retroactiveness of criminal law > essential guarantee for the freedom of the offender; • Principle of prohibition of interpretation by analogy > not allowed in criminal law > it is used rather a sensive interpretation; On a legal and juridical level, the crime is composed by 3 different elements: • Typical fact (fatto tipico) > actus reus • Unlawfulness (antigiuridicità) • Culpability (colpevolezza) > mens rea Actus reus/Typical fact: It is the objective element of the crime, it must be designed by law (cogitationis poenam nemo patitur) – principle of legality. A criminal conduct is tangible, physical so requires an action – principle of materiality. An act is criminal only if someone gets harmed as a consequence, only if the action is capable of endangering some values – principle of harmfulness. Not all values which the constitution wants to protect have the same importance, in fact the are some offences which are punishable because a certain event has occurred, regardless of the manner in which they have been perpetrated (reati a forma libera) as the legislators want to protect the values themselves, e.g., right to life. On the other hand, there are some offences, the gravity of which lies in the manner they have been committed (reati a forma vincolata), e.g., tricking someone shows a criminal potential thus will be sanctioned. The actus reus does not just refer to an active action but also to omissions, e.g., parent liability if their child commits an offence, or medical responsibility when a doctor’s omission causes someone’s death. So an actus reus is defined both by a positive action, i.e., a harm that has occurred due to the conduct of the accused or an omission, i.e., a harm that may have been avoided if the accused had not illegally refrained from acting. The wrongful behaviour kept by the defendant has altered the world around him/her, thus causing a perceivable modification in reality, although the event can be ideal (e.g. slander or libel). The law punishes the conduct itself regardless of its hypothetical consequences, so not only if the event has occurred but also when the conduct was premeditated but has not taken place, as the object of protection is nonetheless endangered (reati a consumazione anticipata). Another category of crimes involve a sanction if their perpetration consists in the causation of an event (reati di evento or result crimes). Some elements are always preset in the crime: the active subject (perpetrator), the conduct and the passive subject whose legal interest is protected by the provision. 60 There are exceptions to illegal acts: Necessitas non habet legem, meaning when you commit a crime in order to save a life and in order to do so you infringe some other values, then there won’t be a criminal sanction (if you are not the cause of the first situation of course). Vim vi repellere licet, meaning there are some situations in which there is the need of immediate reaction, and if harm is caused to protect yourself there won’t be criminal sanction if the response is proportionate. Another defence is consent (volenti et consentienti non fit iniuria), meaning if you consented to the harm, there won’t be sanction, e.g., tattoo or surgery. Mens rea/causation/culpability/blameworthiness: the third element of a crime is causation. According Art.27 IT Constitution, criminal responsibility is personal. To assess and to establish causation the conditio sine qua non rule is employed, although a consequential link must be established (scientific rule). Under this last pillar, we find all the criteria for the individual to be considered guilty. The offender can be subjectively blamed for committing a wrongful offence. There are 2 different interpretations of this pillar: a. Normative → someone has to be considered guilty if he/she is blameworthy, meaning he/she hasn’t followed the behaviour provided by the law as possible for him/her. Culpability is the reproach of an offender due to not having conformed his/her behaviour to the command of the criminal provision. b. Descriptive → mens rea refers simply to a state of consciousness and is made of a single subjective element, which is intention, negligence, recklessness, depending on the system we are referring to. The normative view is the most supported by scholars, according to whom, within the third pillar, there are several elements: (1) mental capacity, which refers to the capacity to understand and to want, as provided for by Art.85 c.p. (imputabilità). This a precondition for culpability: we could never blame someone for not having conformed his/her behaviour to that provided for by the law if this person is unable to understand the command of the law. If the offender has a mental illness, the third pillar of the general theory the crime is missing, meaning that we don’t have a crime at all. Only if the offender has mental capacity, we can check the existence of the other 3 elements of blameworthiness, which are (2) dolus (intentional misconduct) / culpa (fault); (3) effective or potential knowledge of the criminal norm: we can blame someone even though he/she doesn’t know the norm, only if he/she could have known the law using normal diligence. This also depends on the clarity of the criminal provision. Art 5 c.p. prescribes that the ignorance of the law does not excuse; the Italian Constitutional Court later asserted that the ignorance can be excused if it is due to an avoidable error. If the lack of clarity of the law prevents the citizens from understanding the law, the citizen cannot be blamed. (4) Absence of excuses that are anomalous circumstances which influence the will in an inevitable way, making it impossible for the offender to have a different behaviour (duress): Art.384 c.p. is a good example, which provides, in case of crime against the administration of justice, a proper excuse when a crime of false declaration is committed because of the need to save himself or a member of his family from serious harm. If the fact is typical and 61 also wrongful but the prosecutor cannot prove the culpability, there is no proper crime. The fact is still unlawful however, therefore, we could have administrative or civil consequences. Mens rea is the psychological link to the crime, a pre-requirement set forth by the constitution, which states there is not point in sanctioning someone not aware of their actions; imposition of punishment only on sane people who have the capacity to understand their actions and their consequences. The requirements of mens rea are (1) competence to stand trial (imputabilità), the offenders have to be capable of free determining their actions. The law requires that because of the harshness of the penal sanctions, the penalty is aimed at rehabilitation whereas an insane needs treatment or a child needs support and also because of normative standard and the possibility to reproach somebody for their conduct. Scientific research plays a role in establishing the capacity of thinking and willing of the offenders, although there is no degree of certainty yet, as subjective evaluation of the psychiatrist is not clear enough. Mental insanity refers to psychosis and not to mental illnesses that do not exclude the capability of free determining their actions (e.g., depression, anxiety, ...). The second requirement of mens rea is (2) guilty mind, i.e., intent or negligence. Intent is the deliberate pursuit of a certain result, even though if the action is perceived justified by the offender, as criminal law does not require the offender to be aware of the social morality behind the wrongdoing (not at conscience but at intention) – ignorantia legis non excusat. Different forms of intent (dolo) can be identified: § Impetus § Purpose or forethought Recklessness is at the border between intent and negligence, a reckless behaviour could be e.g., off- track skying causes avalanche that kills some people, in this case did the skier act wilfully or negligently, need to analyse the subjective element that supports the action. Although acted consciously, there was no intent of killing those people. The offender can be charged of intentional crime if s/he balanced the risks and still acted wrongfully. Negligence can be found e.g., in criminal liability of doctors. Look at the way the crime has been committed and at the circumstances of the situation, then understand if the person acted intentionally. Negligence arises when a person has not complied with a cautionary rule which is aimed at foreseeing and avoiding damage, e.g., driving too fast is breaching a cautionary rule as there are signals of not driving too fast. Mens rea is a difficult component to assess, as we do not possess any instrument to scan someone’s mind, and that makes it the most difficult component of a crime to prove. MENS REA: § Prerequisites o Imputabilità 62 o Guilty mind § Degrees o Intent (dolo) → impetus or forethought o Recklessness o Negligence o (Strict liability) Some scholars argue a quadripartite structure of a crime instead of this tripartite system, including punishability (punibilità) as component of a crime. E.g., incest is punished under Italian law with an imprisonment of five years, although only if some public scandal arises. Another example are crimes committed by diplomatic representatives of a state, who will not be sanctioned in the state they committed the crime because of immunity. A criminal trial interrupts with the death of the wrongdoer, but that doesn’t count for civil trial, which goes on to their successors. Within this category, there are 2 kinds of condition that might exclude punishment, although the fact is typical, wrongful and blameworthy: § Conditions which needed to exist in order for the fact to be punishable (condizioni obiettive di punibilità). These are not part of the description of the offense, they merely express an evaluation of the opportunity to punish. E.g., the crime of drunkenness requires being in a public place to be convicted. § Conditions which exclude punishment, which are divided into 3 different subgroups: o Conditions which might take place at the same time of the fact, generally related to the personal relationship between the offender and the victim. For instance, theft when the injured party is a family member. o Conditions connected to the subsequent behaviour of the offender. For instance, withdrawal in a false testimony. o Subsequent legal events which occur independently from the behaviour of the offender. For instance, death of the offender. Lezione sovrannumero General theory of the crime according to the Italian criminal Code “When can we say that a crime has been committed?” > definition of crime: according to the tripartite system, a criminal offence is a typical, wrongful, blameworthy and also punishable act or human fact. A crime is a fact forbidden by the law through the provision of a criminal sanction, hence an effective or a potential deprivation of personal freedom. According to the tripartite system of the crime, the most supported by most of the Italian scholars, in order to be considered a crime the behaviour shall have 3 fundamental elements: when there is a typical, wrongful and blameworthy act, we can say that a crime has been committed. The conduct has to be typical, meaning that all the so called constitutive elements of the offence, provided by the legislator, should be met. • The wrongfulness or unlawfulness of that conduct should be proven, meaning that there should not be any cause of justification (e.g. self-defence, necessity). 65 Harm crimes are those in which the conduct compromises the integrity or existence of the legal interest. Danger crimes are those in which the legislator anticipates the protection criminalizing fact that could affect the existence or the integrity of the legal interest, A good examples for both are: • Harm crime: murder is also a good example of harm crime > the death of the human being is a real damage to the legal interest (life) protected by the provision. • Danger crimes: poisoning the public water. The offender is convicted no matter if someone has been poisoned. If the conduct causes the death of someone, the offender will be sentenced to a higher penalty. Other examples of dangerous crimes are arson (art. 433 c.p.) and massacre (422 c.p.). Here we have the criminalization of certain behavior which puts an indeterminate number of people in danger. The public interest protected by the law is public safety and security. The legislator does not ask for prejudice of the integrity or existence of the legal interest. The provision which criminalizes arson: “anyone who causes an arson or sets a fighter is punished.” There is a sentence for arson, although if anyone is hurt by that. Setting an arson puts in danger the public safety and security. Hence, we can say that all crimes have a juridical result, some of them have also a naturalistic result. It is possible to structure a crime of a naturalistic result crime, still conceiving it as a danger crime. A good example is the crime of arson, consider as a danger one but structured as a naturalistic result crime. NECESSITY AND ACCIDENTAL ELEMENTS: The active subject, the conduct, the result, but only in the strict legal sense (juridical sense), the passive subject are necessary elements of all crimes. On the contrary, naturalistic result and causation are not always present in the description of the offence. On this basis, the italian system knows the distinction between: A) Mere conduct crimes is which there is any naturalistic result and any causal link > ex. Bad treatment of family members in Art. 572 c.p. - Crimes of pure omission also known as proper omission, meaning the failure to rescue someone in danger provided by Art.593 c.p. B) Result crimes which the provision criminalizes a certain event or result, and the prosecutor has to prove the link between conduct and the result. with a general conduct (murder) and b. with a specific conduct (fraud) The Italian criminal system makes a distinction within naturalistic result crime: result crime with a general conduct and with a specific conduct. According to the former one, murder can be considered an example, the legislator does not specify any particular conduct but it is provided that: “Anyone who causes the death of a human being”. It is not important how the death has been caused, whereas it is only important to protect the legal interest - in this case it is life. On the other hand, fraud provided by the Italian penal code in Art. 640 is a good example of result crime with a specific conduct. According to the provision: “A person commits the offence of fraud when he or she, by means of artifice or deception and by misleading someone, procures for him/herself or others an unjust profit to the detriment of others”. 66 CAUSATION: I can be held resonsible only for the actions that i have caused (art 27, conditio sine qua non rule → it applies both to positive action and omissions) 1. positive action: if A shoots B, B dies. the judge has to mentally remove the shooting and see whther B would still be alive or not 2. omission: A is drowning, B doesnt rescue him, A dies → the safeguard didnt follow the law. there is causation bc B would be alive 2. Second pillar: wrongfulness This category expresses a contradiction between the fact and the legal system as a whole. Such a contradiction disappears when a norm allows or imposes the fact. If there is a justification for the conduct, then that fact is justified in each branch of the legal system, meaning that there are not any civil or administrative consequences. Hence the fact becomes lawful. An example is provided by self-defence: causing a death of a human being in self-defence is still murder, but by being caused in self-defence implies that the typical fact becomes lawful. The fact is still typical, but the existence of a justification makes the fact lawful. • necessity (when you have to rescue your life or avoid harm to physical integrity, of yourself or of someone else, you can harm soemnone else) • self-defense: if you are attacked, you can counteract, but ther must be proportion and you can react only when you are being offended, not after and not preventively • exercise of a right: if i am a journalist and im talkin gabout a scandal involving a politician, it is not slander but freedom of press/ right to information, but within some limits!! → the news must be true, there must be public interest and it cant be said in an offensive way • consent es. if you consent to a medical procedure and you are informed, you cant counteract saying for example that the doctor is hurting you. In most countries, you cant consent to procedures that severly affect your physical integrity es. Amputate an arm (unless necessary) 3. Third pillar: culpability or blameworthiness Under the third pillar, we find all the criteria that allow us to consider the individual guilty, meaning the offender can be subjectively blamed for committing a wrongful offence. → it refers to a subjective state of mind, which is guilty/culpable. Art 27 IC provides the principle of personal ciminal resoposibility,emaing that of course you cant be punished for the cirms of someone else, but also that you should be culpable = detach form the normative standards set by law. + possibility to reproach someone for their conduct. It is also connected to the principle of rehabilitation. → structure of culpability = capacity of thinking and willing + intent/negligence + excuses 67 The capacity of thinking and willingis translate with imputabilità. A person is considered capable unless for - Mental insanity - Child under 14 (choice of the lawmaker) - Chronic Alcohol and drug intoxication (voluntary!) →A person can be reproached for their actions only if they were capable to understand the meaning of their actions, otherwise punishment would be pointless. It’s a very difficult thing to assess, there is uncertianty. There are 2 approaches to medical insanity: - «Medical» approach Psychosis that have pathological characters - In recent case law → Personality disorders: Paranoid, Schizoid, Schizotypal, Borderline, Narcissistic personality disorder, … The difference is that a eprson who suffers from psychosis loses toch with reality and perceives reality in different way, while someone who suffers from a eorsonality disorder has trouble perceiveing and relating to situaitons and people, but their vision is not “distorted”. The latter approach is more respectful of the principle of culpability. However, the presence of a mental illness alone is not suffieicent to exclude men rea: The judge has to verify if the type of mental illness the accused one suffers from, has affected their capacity of thinking and willing in committing that specific crime es. Murder by kleptomaniac → no correlation Intent/dolus is the general rule: you will be punished if you act deliberately, you wanted the consequences of your actions. There is more than one kind: Ø Impetus = for example, you commit a crime after an argument out of anger. You didnt plan it, but it was a conscious reaction Ø Purpose forethought = intentionally plan in advance the crime Ø Recklessness = it lies in between intent and negligence. Es. there is a municipal warning that says you cant go out in the snow but you do it anyway, cause a valanga and kill people; or you know you have HIV an you have sexual intercourse with someone. → it is consciously accepting an illict risk Dolo intenzionale, diretto (=you dont want to commit a crime but you are sure that if you do that thing you will eventually commit a crime), eventuale → the judge will consider the level of intent in his decision Negligence on the other hand is exceptional, because usually you don't punish a negligent offender, but only when provided by a specific provision in specific cases (art 518 ICrC). Its a political choice of the lawmaker to criminalize negligence. Negligence = you commit a crime by fault. It comes form a negative defition, the lack of intention. The probelm is establishing negligence. In some ases the offender didint want to commit a crime but actually broke a precautionary rule/ standard of behviour and failed in foreseeing and avoiding an harmful result. Es. a doctor is treating a patient who dies during the operartion. How can we assess the responsibulty of the doctor? He could have broken a precautionary rule (es. He left a bandage in) or, in a simpler way we could see whether the act would have happened anyway without the intervention of the doctor. 70 An introduction to criminal law in common law systems Criminal law in common law system and in continental systems = comparison > structural differences. The formal or democratic dimension of the principle of legality is prope of the continental system > in these systems the crime and respective penalty have to be prescribed in a law passed by the legislative power (legitimacy of the provision) > crimes and penalties can be legitimately imposed only if they are envisaged in a statutory law passed by the Parliament. This means that case law (and interpretation by analogy which is prohibited in criminal law) is not a source of criminal law itself (although some trends have been recognised towards this common law attitude). In continental systems, citizens have the rigth to know with a certain degree of certainty and in advance the consequences of their conducts > from the principle of legality we can derive the sub- principles of i.e. non-retroactivity; taxativity-precision; prohibition of analogy; (so material and legal certainty safeguards of the principle of legality). In common law systems we can only find the material dimension of the principle of legality whereas in continent both the material and legal dimension of safeguards are envisaged: in fact there is a high judicial discretion (but binding precedent to grant legal certainty). In common law systems therefore there is NO formal dimension (both statutory and case law are legal sources); retroactivity and high judicial discretion (but binding precedent rule to grant a minimu degree of legal certainty). The current analysis shows that these systems have an inherently different approach but there is also a progressive rapprochement constituted by (a) a growing number of matters rules by statutory laws, (b) attempts to fix general principles and statutory laws (1962 Model Penal Code in the USA, 1989 Draft Criminal Code in the UK), (c) and similar outcomes in practice. Regarding the structure of the crime: in common law systems we have a bipartite structure constituted by: 71 • Actus reus (conduct) o The prohibited behaviour or conduct + consequences arising therefrom + causation o This constitute the offence • Mens rea (fault) o Mental element in relation to the conduct o Intention / knowledge / recklessness o This might constitute the defence The offence in the continental legal systems is structured: And the conditions for criminal liability are: 1. Act and causation; 2. Absence of permission: a. Self defence; b. Necessity; c. Consent sometimes; 3. Capacity and fault requirements: a. Minimum age; b. No insanity; c. Mens rea; 4. Excusatory defences: a. Duress; b. Intoxication sometimes; 6/03 Brief history of International Criminal Court Before the “birth” of the International Criminal Court: • International Humanitarian Law (Lieber Military Code 1863, The Hague Conventions 1899 and 1907) • After WWI: The attempt to prosecute Kaiser Wilhelm II: "The Allied Powers publicly arraign William II of Hohenzollern, formerly German Emperor, for a supreme offence against international morality and the sanctity of treaties. A special tribunal will be constituted to try the accused, thereby assuring him the guarantees essential to the right of defence. It will be composed of five judges, one appointed by each of the following Powers: namely, the United States of America, Great Britain, France, Italy and Japan. In its decision the tribunal will be guided by the highest motives of international policy, with a view to vindicating the solemn obligations of international undertakings and the validity of international morality. It will be its duty to fix the punishment which it considers should be imposed. The Allied and Associated Powers will address a request to the Government of the Netherlands for the surrender to them of the ex- Emperor in order that he may be put on trial". (Article 227, Peace Treaty with Germany, Versailles 1919) 72 • Leipzig trials; Istanbul trials • International military tribunal (Nuremberg Tribunal) > Charter of the International Military Tribunal (annexed to the London Agreement of 8 August 1945) o crimes against peace (aggression) o war crimes o crimes against humanity Trial of the Major War Criminals (20 November 1945 – 1 October 1946) > 12 sentenced to death, 3 to life imprisonment, 4 to prison terms of between 10 and 20 years, 3 acquitted. 3 groups declared to be criminal organizations. Each of the four Allied countries provided one judge and an alternative, as well as a prosecutor. Problems: victorious powers’ justice over the defeated? What about the retroactivity? The main aim/achievement was that the criminalization of worst violations of human rights became part of international legal system. The established principles (still valid today) were: Ø Individual criminal responsibility for international crimes Ø Individual criminal responsibility does not depend on wheter the act violates the law of the country in which it was committed Ø Acting upon superior’s order does not exclude punishment (can almost mitigate it) Ø Acting as a head of state or government does not exclude punishment Ø Every accused has the right to a fair trial Then the next step was the creation of International military tribunal for the far east - IMTFE (Tokyo Tribunal) > Established by a special proclamation of General Douglas MacArthur (19 January 1946; on the same day he adopted the Charter of the IMTFE, following the model set by the Nuremberg trials). Operated from 1946 until 1948 > All 28 defendants were convicted (7 death sentences). Subsequent Nuremberg Trials: Not before an international tribunal, but before the Allies’ respective military tribunals. Basis: Control Council Law N. 10 of 20 December 1945. For crimes against humanity CCL N. 10 included an improvement that permanently affected ICL: the nexus to war crimes or to crimes against peace required by the Nuremberg Charter was eliminated. Most important: 12 trials before US military tribunals (1946-1949). There can be distinguished three phases: 1. After WWII: the IMT and IMTFE; 2. The age of codification (i.e. 4 Geneva Conventions 1949 and 2 additional Protocols 1977, Convention on the Prevention and Punishment of the Crime of Genocide 1948, Convention on the non-applicability of statutory limitation to war crimes and crimes against humanity 1968 …) > a. Report of the International Law Commission on the ‘Nuremberg Principles’ 1947 b. 4 Geneva Conventions 1949 and 2 additional Protocols 1977 c. Convention on the Prevention and Punishment of the Crime of Genocide 1948 d. Convention on the non-applicability of statutory limitation to war crimes and crimes against humanity 1948 75 The ICC has been successful in contexts where it operated with the support of governments. It has struggled to pursue cases challenging the authority of recalcitrant regimes (e.g. Sudan, Kenya). Investigations limited to easy targets: non-Western powers or non-armed groups (criticisms that the Court is too consensual) > moreover criticisms of colonialism and hypocrisy. Struggle for funding. Cooperation and Complementarity are the key elements of the ICC > South Africa started proceeding to withdraw from the ICC Statute for refusing to arrest Sudan’s President Omar al-Bashir who is wanted by the ICC on charges of genocide a d war crimes — allegations he denied — . Burundi is the First Nation to leave the ICC. An African alternative to the ICC? The African Court of Justice and Human Rights. It was founded in 2004 by the African Union by a merger of the African Court on Human and People’s Rights and the Court of Justice of the African Union (the latter never operated). The minimum number of ratification hasn’t been reached yet. Amendment to the Protocol on the Statute of the African Court of Justice and Human Rights African Union (2014) > Art. 46 a bis (IMMUNITIES): “no charges shall be commenced or continued before the Court against any serving AU Head of State or government, or anybody acting or entitled to act in such capacity, or any other state officials based on their functions, during the tenure of office.” What are the “functions” then? What does “during the tenure” mean? Has the word politics lost interest in the ICC? I.e. US sanctions on the ICC. Nonetheless the ICC has been a revolution: • Established voluntarily through a treaty (Not only a court, but a system of justice. By ratifying the Statute, a State acknowledges that crimes within the jurisdiction of the Court shall, in principle, either be investigated or prosecuted by a domestic jurisdiction or by the Court itself) • Permantent o Potentially universal o Not an ex post facto court o Application of basic principles of criminal law: nullum crimen sine lege and nulla poena sine lege, irretroactivity o Sanctions determined in the Statute o Participation of victims o Complementarity 18 judges chosen for nine years. All judges must be nationals of the states parties to the Rome Statute, and there cannot be two judges who are nationals of the same state. They must be "persons of high moral character, impartiality and integrity who possess the required qualifications in their respective states for the highest judicial offices," and must have excellent knowledge and fluency in at least one of the working languages of the Court. " > English and French. 76 27 cases before the ICCourts > 15 suspects at large. 4 people sentenced for international crimes: Thomas Lubanga Dyilo, Germain Katanga, Ahmad Al Faqi Al Mahdi, Bosco Ntaganda (3 final). 2 people acquitted (Mathieu Ngudjolo Chuii, Jean-Pierre Bemba Gombo) and 2 “no case to answer” (Laurent Gbagbo, Charles Blé Goudé) (2 final). Is this a Failure or success? The jurisdiction of the ICC > three requirements: • Jurisdiction Ratione materiae (Article 5) o In the Preamble “the most serious crimes of concern to the international community as a whole” o Article 5: «The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes: a) The crime of genocide; b) Crimes against humanity; c) War crimes; d) The crime of aggression.» o Definition of international crimes = conduct + contextual element • Jurisdiction Ratione temporis (Article 11) o Article 11: «1. The Court has jurisdiction only with respect to crimes committed after the entry into force of this Statute. [1 July 2002] 2. If a State becomes a Party to this Statute after its entry into force, the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State, unless that State has made a declaration under article 12, paragraph 3» (Philippines and many others) o Article 12 paragraph 3: «If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question» (eg. Palestine accepted the ICC jurisdiction in 2014 and became State Party in 2016; Ukraine… debated) • Jurisdiction Ratione loci /personae (Article 12) o Article 12 (2): «In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3: a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft; [no matter the nationality of the perpetrators] b) The State of which the person accused of the crime is a national.» [very controversial in the Rome conference, eg. Usa] The trigger mechanism (article 13): 1. Referral of a situation by a State party 77 o Article 14. «A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes. 2. As far as possible, a referral shall specify the relevant circumstances and be accompanied by such supporting documentation as is available to the State referring the situation.» 2. Proprio motu o Article 15: «1. The Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court. 2. The Prosecutor shall analyse the seriousness of the information received. For this purpose, he or she may seek additional information from States, organs of the United Nations, intergovernmental or non-governmental organizations, or other reliable sources that he or she deems appropriate, and may receive written or oral testimony at the seat of the Court. 3. If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation, together with any supporting material collected. Victims may make representations to the Pre-Trial Chamber, in accordance with the Rules of Procedure and Evidence. 4. If the Pre-Trial Chamber, upon examination of the request and the supporting material, considers that there is a reasonable basis to proceed with an investigation, and that the case appears to fall within the jurisdiction of the Court, it shall authorize the commencement of the investigation, without prejudice to subsequent determinations by the Court with regard to the jurisdiction and admissibility of a case. 5. The refusal of the Pre-Trial Chamber to authorize the investigation shall not preclude the presentation of a subsequent request by the Prosecutor based on new facts or evidence regarding the same situation. Rome Statute of the International Criminal Court 12. 6. If, after the preliminary examination referred to in paragraphs 1 and 2, the Prosecutor concludes that the information provided does not constitute a reasonable basis for an investigation, he or she shall inform those who provided the information. This shall not preclude the Prosecutor from considering further information submitted to him or her regarding the same situation in the light of new facts or evidence.» o This decision has enormous conceptual significance. It means that the authority to investigate and prosecute international crimes is no longer exclusively triggered by states. The Prosecutor is de facto a representative of a broader jus puniendi of international society. o The main caveat is that proprio motu action by the Prosecutor requires additional judicial control, namely authorization by Pre-Trial judges. 3. Referral of a situation by the Security Council o Article 13 (b): «A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations» [ACTION WITH RESPECT TO THREATS TO THE PEACE, BREACHES OF THE PEACE, AND ACTS OF AGGRESSION] 80 3. (a) At the request of the State making a referral under article 14 or the Security Council under article 13, paragraph (b), the Pre-Trial Chamber may review a decision of the Prosecutor under paragraph 1 or 2 not to proceed and mayrequest the Prosecutor to reconsider that decision. (b) In addition, the Pre-Trial Chamber may, on its own initiative, review a decision of the Prosecutor not to proceed if it is based solely on paragraph 1 (c) or 2 (c). In such a case, the decision of the Prosecutor shall be effective only if confirmed by the Pre-Trial Chamber. 4. The Prosecutor may, at any time, reconsider a decision whether to initiate an investigation or prosecution based on new facts or information. The admissibility issue: article 17 > the general rule is that «the Court shall determine that a case is inadmissible where: a) The case is being investigated or prosecuted by a State which has jurisdiction over it […] b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned […] c) The person concerned has already been tried for conduct which is the subject of the complaint […]» But there are exceptions to the general rule: «The case is (or has) being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;» The state is unwilling when: (a) The national proceedings were made for the purpose of shielding the person concerned from criminal responsibility; (b) There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice; (c) The proceedings were not conducted independently or impartially. The state is unable when: Due to a total or substantial collapse or unavailability of its national judicial system (factual or judicial incapacity), the State is unable to: obtain the accused; obtain or the necessary evidence and testimony; otherwise carry out its proceedings. The challenge of admissibility > article 19. It serves 2 functions: • Protects State’s sovereignity • Protetects the individual right → ne bis in idem «Challenges to the admissibility of a case on the grounds referred to in article 17 or challenges to the jurisdiction of the Court may be made by: (a) An accused or a person for whom a warrant of arrest or a summons to appear has been issued under article 58; (b) A State which has jurisdiction over a case, on the ground that it is investigating or prosecuting the case or has investigated or prosecuted; or (c) A State from which acceptance of jurisdiction is required under article 12.» The decision is case by case and related to that specific moment. 13/03 81 International and European Criminal Law Principles of jurisdiction Traditionally, criminal law is a national discipline and is very hard for states to give away competences and jurisdiction in this field (this difficulties are reflected in the Statute of rome of the ICC process of ratification). This branch is very much linked to the concept of sovereignty and the national values (national and cultural identities). Criminal law is also linked with the history of the particular state (i.e. provision on holocaust in Germany). Nevertheless, the increase globalisation, migration and the diversity/pluralist imposition upon Nation States brought two components to the forum: • Transnational crimes: crimes that affect several countries consequently to the highly liberalised free movement of people > joint investigation, multiple overlapping jurisdiction, eurocrimes… • International crimes (stricto sensu): war crimes, crimes against humanity, genocide, crime of aggression (international liability) > these are so serious that the international community takes responsibility for these crimes (universal jurisdiction); The principles of jurisdiction help us to know which rules are applicable to transnational and international crimes > resolve conflict of jurisdictions but also to remove/eliminate impunity. The aim of these rules is to remove double jeopardy/double punishment (violation of the principle ne bis in eadem) but also to avoid forum shopping or even impunity. How are applicable laws identified at international level? It may happen that different States are interested in applying their laws in an international context or even that no State has jurisdiction to intervene. E.g. A German person attacks a Belgian person in Italy. We need to avoid impunity, double jeopardy, forum shopping. What is the criteria of assessment? > meaningful and genuine link between crime and state that starts investigating. The international community has established some principles as guidance: The Territorial Principle A state is entitled to claim criminal jurisdiction over those crimes that have happened within its national territories (locus commissi delicti must fall within its domestic boundaries) > the explanation is based on sovereignty. Rationale: domestic criminal law must be applicable to every person present in the country without any distinction. So, territorial sovereignty, independence and principle of non-intervention by other states: states are quite jealous of their sovereignty and do not allow (unless in special cases) other states to intervene in their affairs. This of course responds also to a practical need: if a crime has been committed on a certain territory, it is also more likely that the investigation of that crime will be easier in the same territory where it has been perpetrated. It is the principle with the widest acceptance in the international community but it is also very narrow as it does not cover crimes 82 committed abroad. In fact the definition of locus commissi delicti can vary in order to cover or not certain crimes. The implementation of the territoriality principle into national law requires the national legal system to answer two questions: • What is the locus commissi delicti? a. Where the perpetrator acted (conduct): especially in those crimes that are defined conduct crimes. b. Where the result of the offense occurred: this may be valid for result crimes, but not always. In some cases, a State can decide also that the locus commissi delicti is the place when the conduct that achieved that particular result took place. This overcome the narrowness of the principe in order to cover also crimes that were committed abroad but that however produced a certain effect on the territory of the State in question (effects doctrine); c. Principle of ubiquity: certain States adopt this principle, i.e. they look at both the place of the conduct and at the place of the result. d. Preparatory acts theory: some states also anticipate the punishment to so- called preparatory acts, and they look also at the place in which a person sort of prepares himself/herself to act. i. What about cyber crime? Usually the theory of “location of the result” is employed = place where the incriminated content was accessed or even where the mere possibility of access existed. This approach, however, can easily amount to a violation of the principle of non-intervention under international law since a “meaningful link” to domestic territory is difficult to establish in such circumstances as the internet deterritorialises the law. 1. Therefore additional requirements have to be met in order to apply the principle of territoriality to internet cases such as de lege ferenda > explicit statutory provisions on internet cases are desirable; 2. Within the EU, an interesting approach to internet cases can be found in the E-Commerce-Directive (2000) which introduced the country of origin principle for commercial teleservices (centred around the idea that a tele services provider would have to adhere only to regulations of the Member State he is established in (designed to increase legal certainty for the service provider). However the principle does not apply to non- commercially provided services which are probably the most relevant for criminal law cases. • What is the national territory (notion of national territory)? a. Criminal lawyers rely on international rules defining the concept of territory, meaning that they refer to the territory of a state as the one defined by its borders b. Crimes committed on board of ships or aircraft > flag principle (however limited in recent times); 85 of law” into a different sovereign legal system). In the passive personality principle instead, the “meaningful link” cannot be established by the seriousness of the crime itself as it is not direct against a domestic legal interest per se. Thus for the application of it in accordance with international law, it is rightly demanded that the act should also be criminalised under the law of the state of commission. An absolute application of the passive personality principle without any limitations is inadmissible under public international law. The principle is much more common in the civil law countries (common law > Cutting case) however with limiting criteria concerning: a. The requirement that the act must be punishable also under lex loci commissi delicti; b. Gravity of the crime: (not necessarily the lex mitior) the crime should be serious enough or pertain to certain categories of offences (e.g. terrorism, parental abduction of children-see forced marriages); Universality principle Very important for international criminal law: according to it, every state is entitled to exercise jurisdiction over certain offenses without regard to the location of the offence, the nationality or domicile of the perpetrator or nationality of the victim becasue of the seriousness of the crime. The doctrine of universal jurisdiction asserts that some crimes are so heinous that their perpetrators should not escape justice by invoking doctrines of sovereign immunity or the sacrosanct nature of national frontiers. This principle was contested at the beginning because of the lack of a meaningful link, but it is a principle that responds to the need of the international community to defend certain common interest and to make sure that certain very serious crimes will not go unpunished and are fought together at a global level. So, if a state that would have jurisdiction under all the other principles above does not take action to prosecute one of these crimes, then every other state can claim jurisdiction over that crime. Universal jurisdiction can only be justified where either common security interests of all states are concerned (i.e. case of piracy or terrorism) or the legal interest endangered or infringed by the crime is of a global character itself. The aim is to avoid the risk of impunity (becasue of the high number of perpetrators, state officials…) First case that revived the universality principle: judge Garzòn issued a warrant to arrest Chilian former president Pinochet (arrested in London in 1998). The case did not go to court but the symbolic meaning that revitalised the priniple of universal jurisdiction has been more important. It is up to states to decide how to implement the universality principle in their own criminal legal system (some allows the exercise of universal jurisdiction when the suspect is present in their territory (or they might start procedure in absentia for investigations)) but this however presupposes the establishment of a common values throughout the international community (too ambitious task but the crimes enshrined in the Statute of the ICC can be seen as having such broad international acceptance). In implementing the principle, national legislations of civil jurisdiction generally use one of two regulatory systems: either the offences to which the principle shall apply 86 are enumerated exhaustively or there is a sweeping clause describing the offences in their general characteristics. Representation principle It entitles states that have no genuine link to the case to exercise criminal jurisdiction, on behalf of another state that is incapable of prosecuting it. It applies where the suspect is seized in a state and for legal or factual reasons cannot be extradited for the state that would be competent to adjudicate it under other criteria (e.g. because he is a political refugee): when the state that would have competence under other principles is considered unsafe so that the person cannot be safely surrendered to that state, then the prosecution can be carried out by another state that represents the unsafe state. Therefore it can be seen as an alternative to extradition, in line with the maxim aut dedere aut iudicare. The rationale is both solidarity and subsidiarity to avoid impunity. Since the application of domestic criminal law in these cases occurs only in representation of the originally competent state, it is a crucial requirement of the principle that the act must be a criminal offence according to the lex loci > practical problems when it requires judges to rule on a question as to whether an act is criminal under foreign law. Restriction: lex mitior - the punishment imposed in the representing state cannot be much higher than the one which would have been imposed in the competent state. So, we said that each state adopts certain principles of jurisdiction independently from other states. Thus, conflicts of jurisdiction can still happen. The EU has not adopted any measures or guidelines in order to decide which principle of jurisdiction to adopt and to prevent conflict of jurisdiction. However, article 82 TFEU encourages the European Parliament and the Council to adopt measures to avoid conflicts of jurisdiction and certain acts of the EU contain already provisions that aim to solve such conflicts (harmonisation). There are actually certain acts (on eurocrimes) mainly in directives. For now, the general rule is contained in art. 54 Convention on Implementation of the Schengen Agreement (Schengen Convention): A person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party. This is a restatement of the ne bis in idem principle, but there is also a “first come, first served” rule: the first country that starts the prosecutions will be the one who has jurisdiction on the case. There is, however, a preference among European states for the territorial principle of jurisdiction. To conclude, the principles of jurisdiction and the need to coordinate proceedings are paramount of several reasons: • First of all, to facilitate and coordinate the investigation of transnational crimes and their prosecution • To avoid impunity, but at the same time 87 • To minimize the risk of double jeopardy • Finally, to reach legal certainty 15/03 The origins of international criminal law and the Nuremberg trial International criminal law International criminal law is a new paradigm (hybrid) which sees a fusion between international law, which is traditionally concerned with the rights and responsibilities of states and criminal law, which is instead concerned with conducts that are punishable by the state. So, international criminal law is something new that tries to merge these two disciplines and tries to impose responsibility on individuals through international law instruments. International crimes are categorized under the mala in se: they are crimes that affect the values protected by the international community and that threaten the peace, security and wellbeing of the world thus internationally recognised as prohibited conducts. What are the sources of international criminal law? • Treaties (especially the Rome Statute (1998, entered into force in 2001)) • Customary law (practice + opinio iuris) • General principles of law è These two sources are particularly problematic because they are not written, so this may be a hardship for the respect of the nullum crimen sine lege principle. We will see how international criminal law has tried to overcome this problem (in particular in the Nuremberg Trials) as these are well established principles and rules in the international community • National and international judicial decisions (system of precedents but NO stare decisis – no obligation to follow precedents) and opinion of scholars These sources are also contained in art. 38 ICJ. So, the sources of international criminal law are very similar to the sources of international law. The origins of international criminal law At the end of WWII, Germany was defeated, and the Allied forces were the main global forces. There were some attempts to establish a system on international criminal law. The first attempt was after the Franco-German war in the 19th century (Attempt to prosecute Kaiser Wilhelm II (Article 227, Peace Treaty with Germany, Versailles 1919)), a second attempt was made after WWI with the Treaty of Versailles and also with some domestic trials such as the Leipzig trials 1921 (12 people tried, considered as a failure (Also: Istanbul Trials)), but none of them actually ever materialized in a concrete attempt to punish those crimes committed during the wars. 90 Leaders, organisers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan. → this joint responsibility will be covered more in detail when we approach individual responsibility in criminal law, which differs form responsibility in domestic criminal law. As known the crime of genocide was not yet in the list but it was included after. As for the ratione temporis, the tribunal was only responsible for crimes that happened during the War, so from 1939 to 1945 due to the requirement of a connection to the war, even though the charter did not contain explicit provision on the matter. Following ten moths of trial, the judgement was pronounced on 30th September and 1st October 1946. The figures of the Nuremberg Trial: • 24 indictments • 22 prosecutions o 3 judgements of acquittal; o 12 death sentences (abolished by future tribunals); o 3 life imprisonment sentences; o 4 long-term prison sentences (10-20 years); The actors that were judged were actually only the key actors (the “big fish”). The other people were (or were supposed to) be judged by domestic courts. Of course, not everybody can and should be judged at an international level: we will also see how this coordination between international and national tribunals developed. What international criminal law is often criticized for is the fact that it only judges the “big fish”, although we will see this is not always the case. It was pretty easy to find evidence during the Nuremberg trail. Much evidence was available due to the fact that the Nazi regime was very organized, and they documented all or most of their activities within their camps: strategies, structures and hierarchy were all documented. This made it much easier for prosecutors and judges to run trials. The trial was of course a one-sided trial. This is one of the reasons why the Nuremberg trial was criticized. All defendants were German, and none of the allies was indicted, not even for serious crimes such as the bombing of Dresden. The judges also and the prosecutors all represented the allied powers, so their impartiality and independence of these judges was not so obvious (reference to preamble of article 6 of the Nuremberg Charter). What was the defendants’ main argument? 1. First of all, they did not recognize the validity of the tribunal itself because of the principle of non- retroactivity (breach of the principle of legality); 2. Secondly, the main defence strategy was the reference to a “superior order” and “state obedience” justifications (i.e. “i was just following orders”). a. This did NOT annul liability, but it might have at best mitigated the judgement 91 What was opposed to the defendants’ arguments? The obligation to exercise moral judgement and the duty to disobey an immoral orders (appropriately enacted and socially effective norms lose their legal character or their legal validity when they are extremely unjust) > The Radbruch Formula: When a conflict between law and justice sparks, the justice must prevail on law if the latter is ‘evidently unendurable’. This is a restatement of the obligation to disobey manifestly unjust law. Major criticism of the Nuremberg trials: • The breach of the principle of legality (irretroactivity principle > prohibition of ex post facto criminal laws): Nazi were prosecuted and judged according to the Nuremberg Charter, which was enacted after the commission of those acts. However, the international community said that the content of the Charter was simply a formalization of the general principles that were already embedded in international customary law • It was criticized for being victors’ justice: only Germans were tried and none of the Allies (i.e bombing of Dresden thta was arguably of no military necessity) • The rules of procedure were scarce: the Nuremberg Charter was a very brief document which contained only the major rules. There was not the possibility to appeal the decisions. • The use of death penalty: this aspect actually never happened again in the history of international criminal law The legacy of Nuremberg: in the immediacy of the Nuremberg trials, a number of conventions protecting human rights and criminalizing the breaches of such rights were approved and enacted by the international community. • Nuremberg Principles > approved in 1950 by the General Assembly. They are principle of international law recognized in the Nuremberg Charter and in the judgements. • Universal Declarations of Human Rights • Genocide Convention • Geneva Conventions • Other conventions and the development of international criminal law Principle I Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment > principle of individual criminal responsibility. Principle II The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law. Principle III 92 The fact that a person who committed an act which constitutes a crime under international law, acted as Head of State or responsible government official, does not relieve him from responsibility under international law > immunity for international crime does not apply. Principle IV The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him > example of distress which provide a ground for exception from responsibility. Principle V Any person charged with a crime under international law has the right to a fair trial on the facts and law. Principle VI The crimes hereinafter set out are punishable as crimes under international law: a) Crimes against peace: i. Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances; ii. Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i). b) War crimes: Violations of the laws or customs of war which include, but are not limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory; murder or ill-treatment of prisoners of war or persons on the Seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity. c) Crimes against humanity: Murder, extermination, enslavement, deportation and other inhumane acts done against any civilian population, or persecutions on political, racial, or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connection with any crime against peace or any war crime. Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan. Principle VII Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principle VI is a crime under international law. Established Principles (still valid today) • Individual criminal responsibility for international crimes 95 o Domestic justice, local and restorative justice o “Pragmatic” idea of the rule of law: tension between punishment and amnesty but also reconciliation/reparation (emergence of multiple conceptions of justice) o Search for truth: truth commissions aimed at rebuilding peace (Argentina, South Africa, etc.) o Communitarian conception of justice o Involvement of non-state actors (NGOs, private citizens, civil society, etc.) o However, see also ICTY and ICTR • Phase III: Contemporary situation of persistent conflict o End of the 20th century o Globalisation and legal pluralism o National and international factors become interdipendent o Blurring of sovereignty, principle of jurisdiction etc. o Constant political instability and violence: § Political fragmentation § Weak states § Small wars § Terrorism § Etc. o Influence of Phase I: § Establishment of the centralised International Criminal Court (ICC), preceded by the two ad hoc international tribunals § Expansion of the law of war/humanitarian law also in peacetime contexts (ICTY war crimes punishable also in peaceful time) § “Normalization of transitional justice” Examples • Hybrid tribunals (Special Court for Sierra Leone - SCSL, East Timor Special Panel for Serious Crimes - SPSC, Extraordinary Chambers in the Courts of Cambodia – ECCC, Extraordinary African Chambers) • Other: War Crimes Chamber of State Court of Bosnia and Herzegovina, Kosovo Relocated Specialist Judicial Institution, Special Tribunal for Lebanon – STL The goals of transitional justice: (1) re-establish the rule of law; (2) find individual and collective truth (recall the memory of the country); (3) justice and (4) peace (reconciliations and rebuild a functional society; Mechanisms of Transitional Justice: 1. Prosecutions 2. Reparations 3. Truth commissions 96 4. Amnesties 5. Vetting and dismissals 6. Institutional reforms Holistic approaches Elements of crime and criminal responsibility in international criminal law Domestically, crime is usually composed of • material o actus reus > conduct and consequences with the link of causation that need to be proved) and contextual elements (chapeau elements) of the crime (e.g. “as part of a widespread or systematic attack directed against any civilian population” CAH): these elements distinguish international from domestic crimes • mental elements o mens rea > is contained in article 30 of the Rome Statute and it is generally stated that “Unless otherwise provided” liability only with intent and knowledge § intent highest form of mental element § o Volitional element & cognitive element Need for an autonomous definition Article 30 ICC Statute: “1. Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge. 2. For the purposes of this article, a person has intent where: (a) In relation to conduct, that person means to engage in the conduct; (b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events. 3. For the purposes of this article, "knowledge" means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. "Know" and "knowingly" shall be construed accordingly.” This article has been contested for not being very clear. The reason for this is again that MS of the ICC tried to bring together elements from civil law systems on the one hand and common law systems on the other hand. This is why intent and knowledge are sometimes required simultaneously, while we know that intent presupposes knowledge. So, basically there is a volitional element (intent) and a cognitive element (knowledge). However, what scholars have stated, is that an autonomous definition of the mental element should exist, independent form domestic categories such as intent and knowledge. Subjective elements 1. Regarding the conduct, when nothing else is specified, we need intent. 2. As for the consequences/results of the conduct, we need knowledge (awareness that a consequence will occur in the ordinary course of events) AND intent (that a person means 97 to cause that consequence or is aware that it will occur in the ordinary course of events). These two go often hand in hand. 3. As for the circumstances, we simply need awareness (so, knowledge) that these circumstances exist. E.g. I know that I am performing a killing as part of a widespread or systematic attack. When the Statute talks about intent, it is usually interpreted as direct intent, so not lesser forms such as recklessness or dolus eventualis, so risk taking is usually not enough in order to convict a person. However, this was actually recognized in certain judgements of the ICC, e.g. in Lubanga and Katanga, decisions that were also criticized by commentators, because when in doubt, the Court should decide in favor of the accused (principle of favor rei). The Court seemed to have a comeback in Bemba, where it adopted a stricter approach and stated that recklessness is not sufficient, unless specifically provided by the Statute. Exceptions: article 30 starts with a residual clause “Unless otherwise provided, ...”, meaning that the Statute can always provide higher/lower levels of culpability, e.g. in the case of command responsibility: article 28 sets a lower standard, because commanders are not held responsible for something they committed with intent, but with negligence, so they need a lower level of culpability to be convicted. On the other hand, the crime of genocide requires specific intent (higher threshold). General principles of International Criminal Law: In the international context, problems often arise in regards of two principles: 1. The principle of legality: it especially came up in Nuremberg, but the issue was solved later thanks to the recognition of those crimes as part of customary international law. In the ICC Statute, the principle of legality is also stated: a. Art. 22: nullum crimen sine lege i. 1. A person shall not be criminally responsible under this Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court. 2. The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted. (In dubio pro reo) 3. This article shall not affect the characterization of any conduct as criminal under international law independently of this Statute. b. Art. 23: nulla poena sine lege i. A peron convicted by the Court may be punished only in accordance with this Statute. c. Art. 24: non-retroactivity ratione personae (+ principle of favor rei) i. 1. No person shall be criminally responsible under this Statute for conduct prior to the entry into force of the Statute. 2. In the event of a change in the law applicable to a given case prior to a final judgement, the law more favourable to the person being investigated, prosecuted or convicted shall apply (again in dubio pro reo)