Those principles that unite us –

By Juan Antonio Lascuraín

I simply completed studying the e book “General principles of Criminal Law of the European Union”(Edited by R. Sicurella, V. Mitsilegas, R. Parizot and A. Lucifora; BOE 2020). I touch upon it, I write this entry, as a result of it appears to me a wonderful e book, uniquely well timed, advisable studying for any jurist with prison or Europeanist issues.

This prior praise isn’t a courtesy system. Many of the authorized books usually are not excellent (which might be a contradiction like that of “privileges for all”). And many of the authorized books, written by professors, professionals with a sure tendency to summary from actuality, usually are not instantly helpful, or helpful for fixing related social conflicts within the brief time period, which is above all what we jurists are for.

I proceed to present you three the explanation why I discover this e book superb and really helpful. A previous motive for no less than approaching it’s its accessibility: It is published by the BOE in open mode on the network:

It is about ideas

The primary motive to learn it’s that it offers with ideas.

I used to be educated as a prison lawyer on the finish of the 80s. In these instances, from a sure perspective not so distant, I feel that within the academy, or within the academy that I knew, I used to be involved above all with refining and making the authorized concept of crime constant. That’s the reason we younger researchers went quasi-religiously to drink from the sources of refined German doctrine. Freiburg was our Jerusalem. We realized so much and did plenty of psychological gymnastics, though, regardless of the undoubted affect of the good Roxin, we didn’t at all times discover a sure sacralization of the weather of crime unrelated to its origin: we didn’t at all times discover {that a} crime was not per se an motion, typical, illegal and responsible, however ought to be primarily based on a sure conception of justice that ought to in flip be made specific. Nonetheless right this moment it’s stunning that some authors are involved in regards to the prison accountability of authorized individuals as a result of they lack motion, imputability or fraud, and never as a result of it’s unfair: as a result of it’s dangerous to the essential values ​​that our prison ideas embody. That well-known affirmation Enrique Aftalión isn’t so misguided that if the prison accountability of authorized individuals doesn’t match with the speculation of the crime, worse for the speculation of the crime.

I consider that instances have been altering for the higher within the coaching of our prison attorneys. And I feel thankfully increasingly more consideration is paid to prison coverage, to the axiological bases of prison legislation, to justice as a approach of understanding and bettering prison legislation. This consideration, with apparent fruit, is what the reader will discover within the e book I’m commenting on.

Studying about ideas has the allure of studying in regards to the values ​​that these ideas serve and that it’s (the values) that make up our concept of ​​justice. So this can be a e book a few sure very best of prison justice.

The values ​​which might be behind a democratic conception of the order are primarily freedom (private autonomy), equality, safety, human dignity. Professor Sicurella rightly provides the worth of belief as crucial for a territorially complicated democratic order such because the European Union (“Introduction. The creation of a European prison tradition: we belief in belief”). With out belief there is no such thing as a integration however not even good cooperation. And with out that cooperation, what suffers is prison justice, understood now as effectiveness in defending our fundamental freedoms.

I say this as a result of that belief is above all belief that we’re related in our imaginative and prescient of justice, that the identical different values ​​are shared; values ​​which might be manifested, above all, as we all know, in how and for what the State makes use of essentially the most drastic useful resource it has at its disposal, which is the penalty, that establishment “so formidable, intrusive and burdensome” (Von Hirsch). What’s protected with the penalty and the way it’s protected. And I say this as a result of these “Common Ideas”, with their informative arsenal of what’s criminally achieved within the European Union and within the States of the European Union – which, seen from the required distance, is kind of related -, will undoubtedly contribute to maintain nurturing that belief.

Trafficking within the European Union

Second motive to learn the e book: it offers with the European Union, which by the best way may be very helpful for Spanish prison attorneys, who proceed to be one of many authorized teams least attentive to Europe and with much less and fewer justification for this sure misunderstanding.

One of many impressions that the studying of the e book transmits is that, as I expressed a second in the past, we’re criminally far more related than we expect. That, for instance, as Professor Elholm (“Guilt / guilt”) exhibits, the popularity of the precept of guilt is a part of our widespread heritage primarily based on the worth of the dignity of the particular person. Or that, as Professor Nieto emphasizes (“The precept of proportionality”), there’s a sure settlement of deference within the necessities of proportionality to the legislator. (By the best way, we’re so related that generally we use the identical expressions to grasp the ideas: the precept of strict proportionality consists in Germany of “not killing sparrows with cannon pictures”; in Spain, which is much more graphic, it’s typical to elucidate it like not killing flies with such a forceful useful resource.)

Moreover, from the hand of the European Courtroom of Human Rights evidently even we’re in a position to converge to a sure extent with the Anglo-Saxon precept of legality, primarily based on the concept of ​​predictability: primarily based on the worth of authorized certainty (“The precept of legality”, by R. Sicurella and M. Costa). It is a good instance to throw away a few of our prejudices. On the one hand, the era of crimes by jurisprudence is not conceivable in the UK. Then again, in our exquisitely legal-based Felony Regulation, a very good a part of the definition of the essential standards for assigning prison accountability can also be jurisprudential – what’s authorship, when is a end result attributed to an motion, when to an omission, when does it start an try -, with out by the best way we’ve got neither the tradition nor the mechanisms to make judicial interpretation sufficiently predictable. A frequent nightmare of the nice authorized guide is that the consumer asks him about how the decide will remedy his case.

If we share values, we’ll share ideas. And if we share ideas we’ll find yourself converging on a standard concept of crime, as Professor Sicurella factors out. Nonetheless, what has struck me essentially the most is that we’ve got the identical complications associated to prison justice issues. I’ve allowed myself to pick this eleventh of shared open questions.

5 of prison legality:

  • the Nüremberg downside: can there be crimes “typified”, with many citation marks, by the final ideas acknowledged by the neighborhood of countries ?;
  • Ought to we demand that lex be it parliamentary legislation ?;
  • Ought to the analogy be used In good half as a requirement for justice ?;
  • Are the statute of limitations prison and topic to strict prison ensures ?;
  • Ought to we proceed to unfavorable non-retroactivity of judicial interpretations?

Three complications associated to the precept of guilt:

  • Can presumptions of guilt for preventive causes match ?;
  • Does it match – and, the place applicable, how – the prison legal responsibility of authorized individuals ?;
  • How is essentially the most severe recklessness totally different from the slightest intent?

And three proportionality issues:

  • What’s its construction ?; The German three-step check ?; The Spanish, who provides the evaluation of damage ?;
  • When are lengthy custodial sentences disproportionate ?;
  • Is there a precept of inverse proportionality, which requires extra penalties to guard advantageously higher, one thing that has been used in opposition to sure decriminalizations?

It offers with all Felony Regulation

The third motive to learn this e book is that offers with all prison ideas, and never simply nouns.

The Spanish reader is used to being informed about Felony Regulation or Felony Procedural Regulation, elsewhere and by totally different folks. This Hispanic anomaly, that some are devoted to half of Felony Regulation and others to the opposite half, is unreasonable and cuts the wings of our investigations. In a approach, the simile is price it, it’s as if for the examine of crime we determined that some would dedicate themselves to finding out the devaluation of motion and others the devaluation of end result.

You will not discover that sin right here. It is a e book on all prison ideas, and subsequently the reader will even discover wonderful contributions to the important ideas of protection (“Truthful course of and rights of protection”, by Thomas Wahl), of presumption of innocence (“Presumption of innocence” , by Raphaële Parizot) and judicial impartiality (“Truthful course of and efficient judicial safety”, by Joanna Mierzwinka -Lorencka and Celina Nowak).

The e book additionally dedicates a ultimate chapter to the prohibition of twice in the identical (V. Mitsilegas and F. Giuffrida), a precept that, regardless of its proclamation within the Constitution of Basic Rights of the European Union, I consider is present process a worrying course of of abrasion. It’s the final chapter and, by the best way, misplaced: after the examine of procedural ideas and never inside or following the precept of proportionality.

Ideas

Like good wines, like good items of music, the e book leaves you wanting extra, for an additional work or for brand spanking new editions. As a very good essay, it enriches and worries, feeds curiosity. Mine now refers to two ideas not addressed at work: the precept of equality, just lately resurrected in his downside as a consequence of inviolabilities and crimes of gender violence, and, above all, the prohibition of inhuman penalties, included or with the addition of the resocialization mandate.

Likewise, primarily based on the data supplied, it might be of nice curiosity to research how prison ideas, which are literally sanctioning ideas, have an effect on the sanctioning Administrative Regulation of the European Union and the states of the European Union, and take into consideration how This incidence is totally different, in its why, in itself it’s justified.

In brief, some strategies, questions, need for extra, that are meant to encourage us to proceed pondering and writing, and to proceed making others assume. Solely one of many nice sequence calls for a brand new season with enthusiasm.


Picture: JJBOSE

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