Scarica Menghini lecture notes e più Appunti in PDF di Diritto Penale solo su Docsity! Criminal Law Menghini 1 ⚠ Criminal Law Menghini 23/02/22 Syllabus https://s3-us-west-2.amazonaws.com/secure.notion-static.com/f53aacfb-64a3-49f3-b91a-80dc0a8db2e5/ criminal_law_syllabus.pdf PPT Menghini https://s3-us-west-2.amazonaws.com/secure.notion-static.com/5a06e5aa-e109-411b-a802-6c2e7ce37c9 e/Theories_of_punishment.pptx If someone breaks the law , he or she has to be punished, but why do we punish criminals? There is a fundamental distinction between absolute and relative theories: Absolute theories are those looking backwords: offenders are punished “quiia peccatum est”, because they committed a crime. “Tot crimina, tot poena”, which is the biblical Law of Talion (eye for an eye). Accordng to these theories punishment is based on an avengance instinct, on an innate wish for revenge. Relative theories look forward: punishemnt has a specific goal: the offender is punished “ne peccetur”, i.e. to prevent future crimes. Punishment is a means to end crimes and its goal is to reduce the number of future crimes. There are three fundamental theories: Retribution (absolute theory) → employs the principle of proportionality General prevention (relative theory) → deterrence for all the citizens Special prevention → (relative theory) re-education (according to the Italian Constitution this is the one and only purpose of punishment) Justice → In a modern view restorative justice is a kind of dialogical justice where the offender and victim are put on the same level. From a classical point of view of justice, the system is vertical where the state is on top and the offender is a passive subject to whom the penalty must be imposed. In the new approach the offender and victim come together and find their own way of reaching a solution. The recent reform of justice aimed to regulate restorative justice at every stage of the penal proceeding, even if the case is carried out in prison. In this last case restorative justice is just a path the victim and offender can take additionally to the common procedure. Retribution Retribution is an absolute theory that, historically, we find in three different forms: Criminal Law Menghini 2 1. Divine retribution → when a person commits a crime they violates a superior law, and by doing so they offend who made the law, so God himself. God then delegates men to punish the offender for the violation. In this form, punishemnt is seen as a cathartic (= providing psychological relief through the open expression of strong emotions) path for the offender, he has to recognize what he did wrong, ask for forgiveness and promise he will comply with the law in the future. 2. Moral retribution→ based on the theoretical approach by immanual kant. In Kant’s philosophy criminal law is conceived as part of the cathegorical imperative (Kant defines categorical imperatives as commands or moral laws all persons must follow, regardless of their desires and circumstances. As morals, these imperatives are binding on everyone) where the use of punishment is an end in itself. Another fundamental principle is the one that states the fundamental value of human being: “ men should not use as a means to an end”. Justification for punishment is given by the principle of justice as the theory of the moral laws or laws of freedom that place limits on people's external actions, limits that can be coercively enforced. The basis of this theory is the universal principle of right, which is derived from the cathegorical imperative. In Kantian philosophy harm inflicted by punishment should find its equivalent in the harm inflicted by him on the victim. Justice says the measures should be chosen by the principle of retaliation (eye for an eye). In this theory punishment has no specific goal, it’s a mere response to the desire for revenge. The offender is punished because he must be on the basis of avengence instict and to follow the reasoning “good with good, evil with evil”. 3. Legal retribution → based on the hegelian dialectic approach. Punishment is studied under the utilitarian doctrine it’s a tool to restore the law violated by the crime and restore social order. It’s a kind of sillogism = “if crime is conceived as delegation of law, punishment is considered the negation of the crime and thus the tool to restore the law and social order”. This approach is much more modern and helps us desrcibe the fundamental characteristcics fo punishment Fundamental characteristics of punishment Legal retribution is much more modern and it describes the fundamental characteristics of punishment: Proportionality = must be proportionate, must be appropriate to the gravity of the crime. Certainty = must be certain, the citizen should be able to know in advance the consequences of their bahavior anf guide their conducts. Personal = must be the expression of the principle of personal liability. There is a strict prohibition of taking liability for other people’s wrongdoings (article 27.1 IC, “criminal responsability is personal”). Necessaryness = must be necessary, there shouldn’t be any other sanctions other than criminal civil, administrative or disciplinary sanctions capable of achieving the same result. “Extrema ratio” of criminal law: to use criminal law only when it is the only possible solution. Effectiveness = punishment must be sure. The sentence imposed by the judge must always be carried out, and that doesn’t mean the only acceptable punishments are prison penalties, in fact any punishment at any level of harshness has to be carried out. There is a sub principle of the principle of re-education that concerns the of flexibility of penalties. According to this principle how to execute the penalty depends on the progression in the rehabilitation treatment made by the offendor during the course of the penalty in prison. Cesare Beccaria During the 19th century legislators tried to find a balance between retributivist approach and preventive apporach (rehabilitiation vs deterrence), and they enacted some mechanisms that permitted to not carry out sentences. In Italy we developed the “suspended sentence”, according to which the convicted doesn’t go to prison and doesn’t serve the sentence, this period of suspension can last up to 5 years and is better explained in article 163 of the italian criminal code: if the convicted is not considered socially dangerous (the judge needs a negative prognosis of social Criminal Law Menghini 5 “can” questions: given the diversity of european legal cultures, is harmonization achievable? “ought” questions: if it is achievable, is it desirable, given the virtues and vices of harmonization on the one hand, and diversity on the other? “how” questions: if harmonization is both achievable and desirable, how may it be pursued while also respecting diversity? Colson & Field speak of “intrinsic difficulties” in this regard. The concept of legal families “The typification of legal sytems (in a broad sense) into bigger entities according to their general characteristics and legal histories” (Jaako Husa, 2016) “The undenying idea that laws of different states, regions, nations, peoples, or cultures can be categorized and generalized into neatly organized theoretical constructs is widespread within the academic study of law” (ibid) “neatly organized theoretical constructs”: classification/taxonomy of major legal families (but there are various taxonomies in existence) Can national legal systems really be grouped into major families? covergence of legal systems legal pluralism 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”. National criminal justice systems Common law/civil law refers to ideal types types of legal families, accusatorial (or adversarial) Accusatorial (or adversarial)/inquisitorial refers to ideal types of criminal justice systems/procedural models/modes of investigation and adjudication (more about “ideal types” later, but note that ideal types of criminal justice systems are not limited to adversarial/inquisitorial). There is a partial “overlap” though: the most common law countries use an adversarial model; most civil law countries use an inquisitorial model Significant differences between national criminal justice systems, some of which can be explained to some extent by reference to the adversarial /inquisitorial “dichotomy” historical development key actors and their roles Criminal Law Menghini 6 the position of the suspect or accused key principles the nature and objectives of evidence courtroom designs Accusatorial/inquisitorial “dichotomy”: a useful analytical tool (Spencer:”there are unquestionably two different traditions”), but not without limitations/dangers: oversimplifies matters (pure systems do not 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” Other dichotomies: “due process” v. “crime control” (liberties and guarantees, Sanders & Young); “hierarchical model” v. “coordinate model” (models of governmental authority, Damaska). Models ae not static, mutual influence (see later) and top-down inputs from international and supranational law may have systems transform/converge. 02/03/2022 Menghini Antonia PPT Criminal Law Menghini 7 https://s3-us-west-2.amazonaws.com/secure.notion-static.com/c70abaa0-c209-458a-a105-548ff999c387/ Security_Measures_(1).pdf Security Measures The judge can apply a Security Measure in case of: An offender totally capable of thinking and willing = imputability → punishment will be penalty + security measure An offender totally incapable of thinking and willing = absence of imputability→ punishment will be only security measure Another criteria for security measures is the founding by the judge of social dangerousness, meaning there is an high risk for the wrongdoer of re-offending. A security measure may be applied to both imputable - able of thinking and willing - and imputable - unable of thinking and willing - offenders, but in different ways: an imputable offender may receive as punishment both a penalty and a security measure, while a non-imputable offender may only recieve a security measure. 💡 Imputability is the quality by which an act may be ascribed to a person as its author or owner. It implies that the act committed has been freely and consciously done and may, therefore, be put down to the doer as his very own. Example of security measures for offenders totally incapable of thinking and willing As we said preconditions for security measures are absence of imputability and the pronouncement of social dangerousness by the judge. These are examples of cases in which the offnder is non-imputable: In case of mental illnes/ Insanity > OPG (ospedale psichiatrico giudiziario), nowadays REMS (Residenza per l'Esecuzione delle Misure di Sicurezza) In case of crimes committed by children under the age of 14 (according to the Italian Criminal Code) > Reformatory = an institution to which young offenders are sent as an alternative to prison. The italian code asks for an absolute presumption of thinking and willing, but what is an absolute presumption? It means it’s impossible to provide evidence for the contrary. In these two cases there is an absence of this presumption, so the two kinds of people mentioned wouldn’t be considered imputable. General theory of the crime Tripartite System, a fact is considered a crime (in Italian law), only if all the pillars are present: 1. Typicity 2. Unlawfulness 3. Culpability So, if the fact is typical + unlawful, it is illegal, but still it isn’t a proper crime. If the fact is just typical, but the offender is acting in self defence, the fact is nor a crime nor an illegal fact, it becames legal! Imputable people → there isn’t proper crime. The offender could conduct a behavior that is typical - meaning that it complies with all the elements provided by the law to an actus reus - and that is unlawful - there is no Criminal Law Menghini 10 could be “good deterrence”, so a higher number of people would purchase the ticket in fear of being fined, but in reality the increase of fees would cause a huge expense reduction and as a result there would be much less controllers. The situation would see less people being punished. The principles of economic law aren’t directly applicable in criminal law since the pre-conditions of the two subjects are miles away. In this case we would ask ourselves what about retribution? We’ve seen that Carrara imposes the importance of the proportionality principle. The increase of the fines would be considered unfair. General prevention The recipient of punishment should be the whole of society. According to general prevention, the sentence should have a deterrent effect on society a sa whole. At the basis of general prevention, there was the theory of the "psychological compulsion” (a member of society doesn’t commit a crime if the sanction is afflictive enough to restrain people from commiting the crime), between costs (penalty) and benfits(profit of the avoidance of people committing the crime). If the penalty is high enough and fair the system is a good one from a general preventive point of view. 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. Presentazione Chiara Maciariello: Beccarias On Crimes Punishments - A Mirror on the History of the Foundation of Modern Criminal Law https://s3-us-west-2.amazonaws.com/secure.notion-static.com/c9b2c019-90ee-4d64-920c-6dc62253f73 0/Beccarias_On_Crimes__Punishments_-_A_Mirror_on_the_History_of_the_Foundation_of_Modern_ Criminal_Law.Maciariello_(2).pptx Presentazione Colombano Giulia: Kant and Capital Punishment https://s3-us-west-2.amazonaws.com/secure.notion-static.com/b2f8772f-8fed-49fa-8aea-a08faaa34e01/ Kant_and_Capital_Punishment_Today_Colombano.pptx https://s3-us-west-2.amazonaws.com/secure.notion-static.com/6b799ae8-98e6-4c2e-9279-fb68a5beba26/2.K ant_and_Capital_Punishment_Today_notes.pdf 07/03/22 Negative General prevention General prevention in the sentencing phase should have a marginal role, or no role at all. Culpability is the foundation of criminal liability and it’s also its limit. The risk to apply the negative general prevention approach in the second or third phase would be the exploitation of the offender. The offender would be instrumentalized for keeping the citizens from committing crimes. Criminal Law Menghini 11 Feuerbach, Kant’s student, theorized the concept of negative general prevention. So, historically, there were two forms of negative general prevention: negative general prevention > deterrence. general prevention obtained through example. Related to the stage of execution, the enforcement stage. Today it’s not taken into consideration. Several criticisms regarding negative general prevention: Carrara was totally against the third form of general prevention. it does not take into consideration motivational pressure,just based on the balance between costs and benefits and so not all crimes can be the subject of a costs-benefits analysis. General prevention in its negative form has to be recognized in the precept phase, but always together with the idea of proportion. Positive General prevention There is a second form of general prevention, positive general-prevention. This also has two different forms: Positive general prevention in the strict sense. The relevant phase is the threat phase, the first one. Punishment has a role of educating citizens, the aim is the individual identification in the values of the system. Integrative positive general prevention. Relevant to the third phase, mechanisms of collective psychology to reach conformity behavior. Criminal law is a tool to control society Special Prevention This goal of punishment is the only one provided by the Italian Constitution, in Art. 27 par. 3 that is “penalty should lead to re-education”. Art. 27 comma 3: “Punishment cannot consist in inhuman treatment and must aim at the rehabilitation of the convicted person”. Throughout history we can see different developments of the idea of special prevention: Negative special prevention: confinement of the offender (neutralization) need to neutralize, confine and incapacitate the offender. Idea to put offenders in jail and throw away the key. Grolman: right of defense. According to this theory, neutralization of the offender is justified as a legitimate reaction against an unfair offense, following the idea of selfdefense. Limitations: avoiding an inhuman and cruel repression priciple of strict necessity or subsidiarity principle of ciminal law In this doctrine, nevertheless, special prevention is still understood in its negative form. Positive special prevention: special prevention in its positive form was theorized by Krause in its “Emenda” Theory. The goal of punishment is thus a real re-education. The main idea is that normally the convicted is a desocialized person who needs to be re-educated. Along with re-education there needs to b a chnage in the environment context. This anticipates the concept developed by the positive school. According to him there is a double need: 1. need to isolate the offender 2. need for rehabilitation and re-education, achieved to a moral rehabilitation. Criminal Law Menghini 12 This should lead to a rehumanization but it could also lead to the opposite extreme. In cases where rehabilitation is deemed as impossibile, it’s possible to enact “sine die”. The Zanardelli code (1889) established a solitary confinement (day and night) for the first seven years of life imprisonment, it was still considered liberal because it didn’t comprehend the death penalty. The Rocco code, the current one, provides solitary confinement for a maximum of 6 years and some months but only in cases in which the effender is convicted for multiple crimes, each of which is punished with life imprisonment. Special prevention was then expanded by the theory of Von Liszt. The German criminologist added to the idea of neutralization and re-education, the concept of resocialization. Different approach from Carrara. Punishemnt has the goal of intimidation, aiming at re-educating and preventing new crimes. Scholars started mentioning alternative measures such as home detention and day releases. Punishment is a tool to achieve a goal that is differentiated depending on the classification of the offender. Theories of punishment in the Positive School Classical school maxims are culpability and free will /= For positivist scholars the offender is led to commit a crime not by free will but by a law of “natural causation”. This law leads a person to commit a crime and the main principle is the one of social dangerousness. Lombroso’s theory is based on “biological determinismus”. What he gave us was an identikit of the criminal type he crafted by studying dead criminals. He stiled a description for both male and female effenders and pointed out specific physical features that distinguished offendors from others. Surprisingly, these books had big success. Nowadays this same study is done by neuroscience and in a way it’s considered the evolution of positivistic approach. Garofalo’s theory is not based on physical factors, in his opinion individuals commit crimes for psychological facts. Ferri is the leading figure of the positive school and gives value to the social and economic environent. He gave value to all the aspects underlined by his colleagues, and identified the three factors that lead a person to commit a crime: Physical factors → marginal role Psychological factors Social context/environment → fundamental role Social background is the most important aspect. His thought is interesting because while being based on Von Listz’s doctrine, he anticipates principles such as “law of criminal saturization”(legge di saturazione criminosa), according to which the committing of a crime is determied by the condition of social environent. In addition to his theory, he states that criminal sanction is not sufficient to prevent the crime from being committed. Ferri also developed a second and very current theory: the theory of the “sostitutivi penali” > principle of the extrema ratio of criminal law, according to which criminal sanctions should be combined with social reforms to modify the external context. With regards to civil law many reforms were necessary (divorce, domestic violence, homicides) e.g. unworthyness to inherit → it would have lowered homicides, but in reality this idea was impossible, as it was too expensive and demanding. Ferri’s classification of penalty: Also Ferri, as von Liszt, proposed a classification based on the type of offender and not on the type of punishment or sanction: Mad offenders (criminal asylum); Known incorrigible offenders (delinquenti noti incorreggibili) → positive schools have different ideas: Ferri proposed perpetual deportation or deprivation of liberty, Garofalo proposed death penalty and others proposed Criminal Law Menghini 15 https://s3-us-west-2.amazonaws.com/secure.notion-static.com/23d0fb08-805b-4298-a614-acd38b7eaac a/Classification_of_crimes_and_Penalties_in_Italy_(1).pdf We a division between: Crimes Contraventions / misdemeanurs / infringements The criteria of distinction of crimes, from a formal point of view, is based on the type of penalties provided by the law, in fact the punishments and sanctions are the same - difference of length of duration and place of performance of the penalty - but they are called with two different names: privation of liberty as a consequence for crimes is referred as “imprisonment” privation of liberty as a consequence for contraventions is referred as “arrest” Article 23 of ICC frames a minimum and a maximum for both imprisonments and arrests. In both cases of arrest and imprisonment the place of performance of the sentence is prison, there isn’t a prison for arrests and one for imprisonments, so the difference in place of performance of the snetence is ideal, not real. Another criteria of distinction of crimes csn be found from a substantive point of view, so basing our reasoning solely on the seriousness of the offense committed. The ICC distinguishes different categories of punishment: principle punishments ancillary/accessory punishment alternative measures security measures Principle punishments and penalties (article 17 penal code) Life imprisonment The code privides for the common life imprisonment, conformant to article 22 of the ICC. A common life imprisonment consists in a custodial sentence of an indefinite duration of time BUT only on paper. For this kind of sentence it’s possible to enact alternative measures on specific conditions: Conditional release → after serving 26 years Temporary release or Semiliberty → after 20 years Special release or Temporary leave → after 10 years. Allows to spend short periods of time outside the prison for no more than 15 days, and for a maximum of 45 days per year. This measure is solely granted for family, work and study needs. Italian penitentiary law provides for a mechanism that applies to all custodial sentences in prison, something called early release. This measure consists in a penalty discount of 45 days each semester, only if the offender actively participates to the re-educational treatment e.g. he attends work and school activities in prison and has good relationships with both inmates and the staff. To grant this benefit it’s necessary to be evaluated, and in general there has to be proof that the offender had a good behavior. Criminal Law Menghini 16 This implies that a lifer (offender condemned with life imprisonment) who recieves every single release opportnity, as a consequence of good behavior, can be considered for conditional release after not less than 21 years, and for semiliberty after not less than 15 years. The early release benefit is very important for inmates because it makes faster the access to alternative measures that otherwise provide a minimum of a certain amount of residual penalty as a precondition e.g. to be a assigned to the probation service in social servies the residual penalty must not exceed four years (article 47 of PL). The alternative measures are decided by the surveillant judge along with other 3 judges in the surveillance court. There is a different form of life imprisonment called perpetual life imprisonment, conformant to article 4 bis of PL. This form is a much stricter punishment that can be the consequence of crimes such as mafia asssociation, terrorism and subversion of the constitutional order. This sentence is based on the absolute presumption (impossible to demostrate the contrary) of social dangerousness if the offender refuses to collaborate with justice and it doesn’t provide the possibility to assign alterntive measures. This provision has been decalred unconstitutional by the Constitutional Court, assuming a violation of the principle of equality (article 3 of the IC). In fact not only the offender doesn’t get a chance to have an education (impossibility for him to ask for alternative measures because he refuses to participate), but also the court judges the offender on the basis of the crime, not on the basis of his whole person (the crime doesn’t make the person who committed it) so it cannot retain the offender’s right to be treated equally by the law. According to article 17 on the deprivation of liberty the imprisonment should last between 15 days and 24 years, with the only exception for “express exceptions” e.g. Kidnapping for extorsion, the kidnapped dies, sentence is 30 years of imprisonment. We have to remember that life sentence represents the most severe sentence, replacing the death penalty provided by code Rocco enacted in 1930, and abolished in 1994 with respect to the military penal code applied in war times. Pecuniary sentences At the beginning pecuniary sentences in our system were largely ineffective (huge problem of ineffectiveness) and in order to prevent their failure, the ICC introduced the “principle of conversion”: if the offender cannot pay or doesn’t want to pay it was possible, according to the orginial version of the provision, to convert the fine into a custodial sentence in prison. This lasted up until 1989, when the CC declared unconstitutional the provison, on the basis of a violation of the principle of equality stated in article 3. Nowadays the provision is still valid, in fact it possible to convert a pecuniary sentence in either unpaid social work or in a measure called “controlled freedom”. According to the updated provision, only if there is a violation of the requirements of these two measures, these will be converted to a custodial sentence in prison. Basically it was declared unfair to go directly from lack of payment to custodial sentence, especially because not all people had the sufficient financial resources. Article 133 bis of the CP refers to the economical condition of the offender. Ancillary or accessory punishments and penalties Ancillary penalties are automatically inflicted as a consequence of the sentence depending on type of crime and on the amount of penalty fixed by the judge. The list of accessory punishments is provied by article 19 of the ICC and they are divided between crimes sand contraventions. Alternative measures The common precondition is a negative prognosis of social dangrousness, meaning there isn’t a risk of re-offending e.g assignement to probation service in UK and Italy, the legal nature is different. In Italy the assignment of an altenative measures can be granated only after the final judgement by the surveillance court and the surveillance judge is obviously a different judge form the one that convicted the offender. Contrarily in the UK, probation is a Criminal Law Menghini 17 principle sentence, part of the “community sentences”. This staus of principle sentence entails that it can be granted only by the cognition judge, so the one that condmened the offender of the crime. Another difference between the two systems is that in Ialty the probation service can be granted only if the sentence is within 4 years of its end, even residual e.g. if a sentence lasts 10, after 6 years the probation service can be asked to the surveillant judge. The task of the surveillant judge and the only requirement for granting the probation service is the positive evaluation of social dangerousness of the offender. Another possible precondition could be the positive critical review, conceived as the confirmation that the offender is following the right path undertanding the wrongdoing, the harm caused to the victim and the values violated with the illegal conduct. Other examples of alternative measures can be home detention, day release or semi-liberty and early release (as mentioned before it’s the discount of 45 days each semester for participating to the re-educative treatment for work, study or family needs). Presentazione Laura Catarinella: rehabilitation role of punishment in prisons in Italy Didattica OnLine - Login https://didatticaonline.unitn.it/dol/pluginfile.php/1574604/mod_folder/content/0/rehabi litation%20role%20of%20punishment%20in%20prisons%20in%20italy%20-%20Catarinel la.ppsx?forcedownload=1 14/03/22 Guest lecture Gianluca Brol The elements of a crime Unlawful actions entail administrative (fines), civil (compensation) or criminal responsability (compensation or punishment). There is a difference between civil wrong and criminal offense, the first one happens when there are no consequences outside the damage of goods, the latter one entails the consequences of a criminal action. The choice to criminalize a behavior is made by the parliament, the representative of legislative power. Limitations on the parliament’s power are the constitution and the principle of extrema ratio. A crime is: result of a human action the legisaltive power decides to punish strictly and exhaustedly outlined by statutory law ( principles of legality, legal certainty, well-defined, equality, deterrence) evaluation of which does not depend on the moral standards of the judge offends some interests and values enshrined in our constitution, in so undermining the well-being of society Article 25 IC = no one shall be punished except on the basis of a law already in force before the offence was committed. From a juridical and analytical perspective, a crime consists in: Actus reus → physical element, it must be designed by law = act + harmful result + causation. It can consist in either an action or an omission of action. Unlawfulness Mens Rea → article 27 italian constitution, criminal responsibility is personal and punishment must aim at rehabilitating the offender. The two requirements for the competence to stand trial are cases of young age and Criminal Law Menghini 20 2. wether the allocation of personal space below the minum requirement leads to a violation of article 3 3. what factors could compensate for the scarse allocation of personal space. In the same ruling the court gives a picture of the evolution of case law about these three issues. The lack of space isn’t the only problem in prison life, prisons often experience shortages of food and lack of relations with the outside world. Another big problem is the burden of humiliation that goes attached to being convicted for committing a crime. The state has a positive duty to ensure that a person is detained in conditions compatible with the offender’s human dignity and to not make him suffer more than what he already experiences with being condemned. Presentazione Amir Janyan: Vinter v UK https://s3-us-west-2.amazonaws.com/secure.notion-static.com/bdd0daba-f0c5-4e10-af5e-b5824b973ae2/ vinter_v_uk._Amirjanyan.pptx 6. Presentazione Eleasa Fieldman: Vinterothers v UK Grand chamber https://s3-us-west-2.amazonaws.com/secure.notion-static.com/b116248d-eb69-4928-b32c-5b39360f8f8 c/Vinterothers_v._UK_Grand_Chamber_EF.Feldman.pptx https://s3-us-west-2.amazonaws.com/secure.notion-static.com/47b88b0c-a8ae-4732-b613-68913511bc2f/5._ Vinter_V_UK_Grand_Chamber.pdf Presentazione Lidwina Chieregato: Viola Case https://s3-us-west-2.amazonaws.com/secure.notion-static.com/2c1a550a-2635-4478-b5c8-1a04deb0018 0/Viola_Case__Chieregato_(1).pptx https://s3-us-west-2.amazonaws.com/secure.notion-static.com/22fdd857-8312-44cb-9496-34e613fc0f4d/6.Vi ola_v_Italy.pdf 17/03/22 Guest Lecture Elena Macular The general part of criminal law in common law systems PPT Criminal Law Menghini 21 https://s3-us-west-2.amazonaws.com/secure.notion-static.com/4790c905-baea-4586-b1b8-84723eba2e9 0/E.Maculan_The_General_Part_of_Criminal_Law_in_Common_Law_Systems.pdf Preliminary remarks Differerent view of the principle of legality: non written sources, jurisprudence as a legal source, binding precedent. There is no separation between substantive and procedural criminal law. It’s a case-based criminal system (less theorisation). There are almost no “general principles”. There is no separation between the “general part” and the “special part”. Criminal law as a “fabric” (Horder, 2019, 4) “Fabric” in the sense that different principles, standards, patterns are all set down in statutes and cases, creating different patterns. There is also a wide possibility for discretion, especially in procedural matters, general principles matters and in sentencing. Current situation Inherently, new approaches have been used through a progressive reapproachment: initially there was a growing number of matters ruled by statutory law, then 1962 the model penal code was introduced in the USA , that was followed by the 1989 draft criminal code in the UK. These codes serve as points of reference for specific issue, they aren’t legally binding. In practice, there are similar outcomes. Main trends Very little theorisation and more case to case approach (issue of causations, omissions,...), concerns about some fundamental principles: culpability, taxativity and legality, harm principle (strict liability, responsability detached from a harm), a call for the elaboration of general principles Structure of the crime → actus reus/mens rea. It’s a bipartite structure: actus reus corresponds to the conduct, it’s the prohibited behavior or conduct + consequences arising therefrom + causation, it corresponds to an offence. Mens rea corresponds to fault, it’s the mental element in relation to the conduct + the elements of intention, knowledge and recklessness, it corresponds to a defence. Cases in which the element are absent: in cases of lack of conduct we have fault, bot no engagement in criminal conducts; while in cases of lack of fault, we encounter strict liability offences. This approach is very different from the structure of the offence in continental legal systems, where we have a pyramidal structure: from bottom to top we have the elements of Action or omission (casuality), tipicity, unlawfulness, culpability and punishability. On these elements there is an ongoing debate. The conditions of criminal liability in common law systems are: act ad causation, absence of permission, capacity and fault requirements and excusatory defences. Act and causation: ACT First of all we have to point out the difference between act and automatism: an act is voluntary and is the ground for criminal responsibility, while an atomatism refers to movements of the body which occurred thought the agent had no reason for moving the body in that way (Hart), examples of automatisms are convulsions, muscle spasms, reflex actions and an epilectic fit. Another difference to point out is the one between automatism and insanity, employed as defences. For automatisms the burden of proof lies on the prosecutor and they have no criminal consequences unless there was prior fault. For insanity the burden of proof lies on the defendant and it can imply a possible imposition of a security measure (hospital, supervision order, absolute discharge), unless there was a prior consideration of social defence. The external criterion is applied in cases of hypoglicemis episodes, sonnambulism as an internal cause and dissociation as an internal cause. If the involuntariness is a consequence of intoxication, the intoxication doctrine applies. Outiside these cases, there are three more situations in which people can be excused for liability not based on acts: state affairs (wrong place, wrong time), offences of possession and offences of ommission. Omissions: through a linguistic approach we observe that some verbs imply action, for example the verb “to kill”. Regarding omissions there are speculations on the redefination of damage offences (”causing death”) and judicial extension of statutory wording v principle of legality. There is no theorisation on the ground of liability for omission, nor a general clause for considering it as an equivalent of act. CAUSATION is a minimum condition of criminal liability and it can be direct (observed or scientifically proven facts) or indirect (putting somebody in a situation in which the result is expected to follow in the ordinary course of events, it’s also Criminal Law Menghini 22 called “expectation prnciple). Causation is excluded by events that could not be expected (e.g. an earthquake) and morally autonomous acts. The criteria to establish causation are: “Intended consequences are never too remote”, where evidences show that there was either intent or knowing risk of causing the result: it is irrelevant how likely the result was, or otherwise “what the minimum connection is needed”, if the result would have not occured but for the defendant’s conduct (not unanimous in case law), the limits are only the operating clauses, not the remote ones, and draft criminal code and model penal coe envisage a provision setting criterion as its limit (”more than a negligible contribution”). Things are different with the intervention of later human acts and things change in cases of non- voluntary conduct of a third party, conduct of doctors (when medical attention is given to a victim) and conduct or condition of the victim has an impact on the occurence of a situation (”things come” principle applies). Absence of permissions We have to point out the difference between offence and defence. An offence is a criminal conduct, a defense is a criminal conduct witht he permissions of self defence, permissible force and necessity. Self defence as a permission is justified by common law rules and statutory provisions. Elements of self defence are necessity and proportionality. Necessity as permission is justified by the necessity or duress of the offence, by judicial development of permissions and by statutory recognition of purpose based permissions. Consent: for some offences, it might negate the existence of an “act” at all, since the absence of consent is a required element (sexual offences), for some others defence can happen even if a harm is imposed. Capacity, mens rea and fault Capacity is based on moral autonomy and this is regulated with a minimum age, insanity defence and corporate liability.