2000 Crime, Punishment and Fundamental Rights

Ari-Matti Nuutila:  Crime, Punishment, and Fundamental RightsTurku Law Journal 1/2000, s. 1-18.



  CRIME, PUNISHMENT, AND FUNDAMENTAL RIGHTS

Ari-Matti Nuutila*

 

 

 I Constitutionality of Criminal Law


In traditional constitutional theory, decisions about what conduct should be criminal should be made by the legislature. These decisions should then be applied to individual cases by the courts, whose decisions are then implemented by the executive. This is the core idea of the principle of legality and the division of constitutional powers as understood especially in the continental European countries. According to this school of thought, the principle of legality and other constitutional aspects of criminal law mainly bind the courts. The legislator would be free in evaluating the need for criminal provisions.

The constitutionality of criminal legislation, however, is gradually assuming in several countries, including Finland, a much more significant role. Especially in modern constitutional theory and the judicature of the European Court of Human Rights, the substantial limits of criminal law have been questioned. The main idea is that Parliament does not have an inherent power of criminalizing whatever conduct considered to be immoral or mischievous. Instead, all criminal legislation needs constitutional justification.

This development has rapidly taken place in Finland. The Bill of Rights in Chapter II of the Finnish Constitution of 1919 remained unchanged for more than seventy years. The competence of the Parliament to enact criminal legislation was not restricted by coherent principles. The most important background ideology for criminal legislation was the so-called Nordic neoclassical criminal policy, in which several principles and policies had been developed for the requirements of legislative activities. These principles were, however, flawed and could be easily displaced by offensive criminal policy needs.

This lack of constitutional safeguards in criminal legislation could also be seen in parliamentary procedures. Normally criminal legislation was submitted in Parliament to the Legal Affairs Committee only, whose task was then to give a report on the plenary handling of the bill. The proposals were not sent to the Committee of Constitutional Law.1 Criminal provisions were seldom considered to be constitutional problems.

The need for a reform concerning fundamental rights was already recognised in 1974 when the Constitution Act Committee sugges­ted a total reform of fundamental rights provisions. The catalogue of rights was to be broadened by adding the funda­mental rights of the second and third generation. It was also required that the relevance of funda­mental rights both in legislati­ve work and in court proceedings be reconsidered. Also the ratification of the European Convention of Human Rights (hereinafter ECHR) in 1990 emphasized the need for constitutional reform in Finland, although the International Covenant on Civil and Political Rights (hereinafter CCPR) had already been ratified in 1976. In the scholarly discussi­on, the role and function of fundamen­tal rights had been one of the core issues of constitu­tional law in the 1990s. Especially Robert Alexy’s theory of fundamental rights had an important impact on the discussion. Also criminal legislation is legislation, which must conform to the requirements of the constitution.

The Finnish Constitution was reformed in 1999 and it comes into force in March 2000. Chapter 2 concerning fundamental rights had already been reformed in 1995. The catalogue of fundamental rights was broadened, but from our point of view the most important changes took place in the relevan­ce of fundamental rights to criminal legislation. On the one hand, the State must respect the fundamental rights of individuals, and therefore Parliament is not allowed to enact criminal legislation which is not in accordance with the provisions of the Constitution. But on the other hand, the State is also obliged to protect and ensure the fundamental rights of both the offenders and the victims. In this way, the doctrine of fundamental rights offers an important supplement to the principles developed for criminal policy.

Accordingly, the proposals concerning the Penal Code are nowadays very often sent from the Legal Affairs Committee to the Com­mittee of Constitu­tional Law for its opinion, which is then given to the Legal Affairs Committee2. This has proven to be a very important change in parliamentary procedure concerning criminal legislation. The constitutionality of the Penal Code is given a totally new relevance. Although the criminal provision would be justified with general prevention and it would probably have a preventive effect, the constitutional limits have to be taken into account.


II The Why and How Questions of Criminal Law


Fundamental rights operate in the criminal justice system in several different ways. The purpose of this article is to separate different justificatory questions belonging to different levels of the legal system from each other. If these questions are not sufficiently analysed, the constitutional discussion of criminal law can end up in a monistic theory which obfuscated the criminal law theory discussion until the 1960s. The main problem of the traditional discussion about the purposes and justification of punishment was that the complexity of the issues was often overlooked. The theories attempted to postulate one purpose or value for the fulfilment of which, all aspects of the criminal justice system should have been tailored. In an earlier discussion those who participated in the discussion offered solutions which did not provide answers to the same questions. Even the elementary distinction between the purposes of prohibitions and orders in the Penal Law and the purposes of sentencing were often overlooked.

In the 1970s the situation changed. H. L. A. Hart3 developed the analytically oriented argumentation, which has been continued in the Nordic countries in an especially fruitful way by Alf Ross4, Nils Jareborg5 and Tapio Lappi-Seppälä6. In England the contemporary discussion has been developed further by Andrew Ashworth7, who has continued the tradition begun by Hart. Although the discussion has concerned itself with the philosophical and criminal policy justification of the criminal justice system8, the same analysis can also be used with respect to the constitutionality of criminal law.

The discussion of retribution or just deserts refers mainly to the distribution of punishment following the conviction of an offender in court because of an offence already committed. Principles relating to fairness and justice concern themselves in the first place with the scope and conditions of criminal liability and not the range of offences. General prevention, on the other hand, refers primarily to the existence of a penal system and to the work of the legislator aiming at steering the society. The general justifying aim of punishment should be separated from the questions concerning the distribution of punishment. A third question, which is often left outside the theoretical discussion, is concerned with the position of criminal law in the judicial system as a whole and the alternative ways of steering the society, which could and ought to be used instead of the criminal justice system.

Besides these three questions, other questions relating to an acceptable system of execution of punishments have their own special features which often emphasize the individual preventive effects of the punishment.

Furthermore, the distinction between the philosophical justification of punishment and the limits of the use of criminal law is normally ignored. It is one thing to ask why we use criminal legislation and another to ask which conditions limit the use of the criminal justice system even if criminal law as such would be justified. Although the state may have an obligation to create tolerable social conditions even through coercive legislation, the threat and conviction of punishment needs its own justification. An acceptable criminal justice system has to take into account not only the preventive needs of the society, but also a range of restrictions belonging to the use of coercive measures in a state governed by the rule of law (Rechtsstaat). In such a state the criminal policy is always to some extent defensive, not offensive.

On this basis we can distinguish between two questions. The societal justification of criminal law answers the why-question. These answers only explain why we use criminal law in societies and what are the minimum ideological requirements for its use.9 The how-question relates to the constitutional limits of the criminal justice system as regards both criminal legislation, the scope and conditions of criminal liability, as well as the execution of punishments.


An Outline of Different Justificatory Questions of Criminal Law

 

 

Why?

How?

Range of offences

III (a)

III (b)

Criminal legislation instead of other methods of social control

III (c)

III (c)

Scope and conditions of criminal liability

IV

IV

Execution of punishment

IV

IV


It is crucial to note that although the range of offences would be acceptable, the sanctions used to support the penal provisions must be given separate justification. Good intentions do not justify all means of achieving acceptable goals. However, the constitutional questions relating to the penal system will not be handled in this article.10


III Criminal Legislation  


(a) The Justifying Aim


It is sometimes said that the function of criminal law should be to prevent criminality. This is of course false; criminal law itself creates the criminality it is supposed to prevent.11 There is no such thing as a "natural" concept of crime. Instead the purpose of criminal law is general prevention12 — to suppress by the threat of punishment certain types of action or enforce their omission.13

In the history of legal philosophy, criminal legislation has also been justified by employing the principle of retribution, especially in German metaphysical criminal law theory in the 19th century. As Jareborg14 points out, it would be, however, foolish to think that the purpose of criminal law is to respond to evil with another evil. The theories of retribution meet overwhelming problems if they are referred to as the general justifying aim of criminal law.15 Retribution can function as the justifying aim of criminal law only if one takes for granted a higher level of criminal law, ­based on a god or on natural law.

It would be also bizarre to claim that the justifying aim of criminal law should be individual prevention. The general threat of punishment is not modelled according to the need for warning, rehabilitation, or incapacitation for those already committing crimes.16 The chain of justification is, of course, the other way round. First, we must attempt to justify criminal law and only after that the use of sanctions supporting the general threats of punishment. Sanctions simply cannot justify criminal law. Instead, individual prevention can have importance in individual sentencing and in the execution of punishment.17

The only logically plausible general justifying aim of criminal law is general prevention.18 The overall or justifying aim of criminal legislation is to induce people by means of the orders and prohibitions of the Penal Code and the threats of punishment supporting them not to cause certain kinds of harms. The very point of criminal law is to make people abstain from doing certain things. The idea of general prevention is inextrica­bly connected with criminal law.19

This requirement of general prevention raises the question of whether we should always require some evidence of the preventive effect of criminal legislation before enacting it. Some claim that the preventive effect of specific prohibitions and orders in the Penal Code is not necessary as long as the system as a whole or in part has some preventive effect. According to this idea, the symbolic functions of criminal law would already be sufficient for its justification. The message of the Penal Code itself would reveal a graded disapproval of those committing offences. This function should, however, be secondary to the function of general prevention.20 The main rule is clear. One should not criminalize a type of behaviour, when one knows that the prohibition or order of the Penal Code will be ineffective and will serve only as an expression of official disapproval. A symbolic criminal legislation, which does not have preventive effects, will not make the society safer for anyone.

To put it another way, only such criminal provisions that have preventive effects can be necessary in the protection of the fundamental rights of citizens. The very point of threatening someone with punishment would be lost if one did not presuppose that the threat has some general preventi­ve effect. In the argumentation of the Committee of Constitutional Law, this is expressed by demanding that each criminal provision must be necessary and based on compelling public interest. Furthermore, each criminal provision should be inevitable in order to achieve an acceptable goal.


(b) The Constitutional Limits of Provisions Concerning Crimes and Punishments


Some of the constitutional limitations of criminal law can be described as absolute prohibitions.21 These limitations are also written in the interna­tional human rights conventions and cannot therefore be violated under any circums­tances. The most obvious of these limitations is the rule, according to which no one shall be sentenced to death, tortured or otherwise treated in a manner violating human dignity (Section 7(2) of the Constitution).22

The prohibition of the death sentence is not a problem in Finland, where the last execution during time of peace took place in 1827. As far as I know, all the European countries practised the death penalty later in the 19th century23 and still today Protocol No. 6 to the ECHR concerning the abolition of the death penalty has not been ratified by all member states. Also, in Finnish legislation the death penalty was abolished completely  — also during war time — as late as 1972. The other elements of Section 7(2) are left outside this article since they refer mostly to the execution of punishment.

Another absolute prohibition, which may not be violated under any circumstances, is the principle of legality. According to Section 8 of the Constitution, no one shall be found guilty of a criminal offence or be sentenced to a punishment on the basis of an act which had not been punishable at the time of commission. The penalty imposed for an offence shall not be more severe than that provided by law at the time of commission. The same principle is to be found in the ECHR, Article 7(1), and the CCPR, Article 15(1). The principle has been customary law in Finland for a long time, but it was written in the Constitution as late as in 1995.

The legislator is bound by the sub principles nullum crimen, nulla poena sine lege praevia and certa.24 Only the law can define a crime and prescribe a penalty. The former sub-principle is known as the non retroactivity principle, the essence of which is that a person may not be convicted or punished without previously committing an offence and without an appropriate punishment according to the law.25 The latter is called in England the principle of maximum certainty26, according to which criminal legislati­on should be enacted as clearly and precisely as possible.27 This condition is fulfilled when the individual can know from the wording of the relevant provision what acts and omissions will make him criminally liable.28

The respect for human dignity (Section 1(2) of the Constitution) can be understood as prohibiting the use of strict liability in criminal cases. For example, in Germany the principle of guilt is seen in connection with the respect for human dignity.29 A criminal justice system which does not respect the principle of mens rea would not respect the members of the community as individuals capable of making decisions concerning right and wrong behaviour. In this way the Constitution gives support to the Nordic principle of conformity, which requires intentionality or at least negligence (if so enacted) as the basis of culpability.

Third, most liberal fundamental rights have a certain essence, the use of which cannot be criminalized at all30 without depriving the fundamental right of meaning and relevance. For example, a criminal provision, which would require official revision of publications in advance, would mean cen­sorship, which is prohibited both in the Finnish Constitution — since 1905 — and in international human rights conventions. Also, legislation criminalizing voluntary homosexual acts can constitute interference in the individual's right to conduct his private life as he/she sees fit (see ECHR, Article 8 and the Finnish Constitution, Section 10).31

In practice the most difficult questions concern the protection of fundamental rights through criminal legislation. Traditionally, this doctrine contains several theories about the protection of interests, Rechtsgüter, but these theories have displayed several weaknesses.32 The catalogues of interests that are protected by the threat of punishment, have been far too vague and have covered, for example, “public morals”, “public order”, and other similar "interests". Second, it is preferable for the list of protected values and interests and their mutual relations to be discussed in the democratically elected Parliament rather than only in the offices of researchers.33

The acceptable goals of criminal provisions can normally be derived either directly or indirectly from the fundamental rights. The prohibition of murder and manslaughter protect human life and that of theft protects property rights. If the criminal provision does not protect directly or indirectly any fundamental rights, criminal legislation should not be enacted. For example, the "moral wrongfulness" of a behaviour is not a sufficient reason for criminalizing it.34 Especially in the realm of sexual morality and pornography there are even today vigorous debates about the proper ambit of criminal law.

There are also some collective interests, which have traditionally been protected by the Penal Code. For example, internal and external national security, the public order, as well as the activities of courts and other state officials, are protected by criminal law. Also, road traffic security is sometimes understood as an independent interest protected by criminal law. In most cases, however, these interests are indirectly relevant to personal security. Road traffic offences protect human life and health35 and the criminal provisions concerning treason and high treason protect citizens from terrorism and violent revolutions.

The scope of protection given to fundamental rights varies. According to the Committee of Constitutional Law, the scope of criminal provisions should be in the right proportion to the interest protected and the restrictive effects of the criminal provision on individual freedoms. In the first place criminal law ­ought to be restricted to the intentional and immediate causing of harm to fundamental rights. There are, however, two dimensions of the seriousness of the offence, apart from the intrinsic value of the fundamental right protected. One is the degree of remoteness from the infliction of the harm and the other is the degree of culpability required by the criminal provision­.

Many types of offences are linked indirectly to the preservation of human life and health. Some of these offences are based on the concrete endangering of some­one’s life and health. In many cases the occurrence of the harm is not subject to the control of the offender and depends more on chance. Usually these criminal provisions are employed only to protect life and health.36 On the other hand, a concrete endangering of very important property values can also be criminalized.37

The following step is to criminalize the abstract dangerousness of the act. This possibility is used, for example, in road-traffic offences, in which the penalties for infringing the rules are designed to criminalize those who create a risk to other individuals’ life or health.38 The third option is to criminalize an act as such because it is presumed to be dange­rous. In these cases the inherent dangerousness of the act is not required in individual cases. The examples of this option in criminal legislation vary from drunken driving39 to safety at work40.

It is obvious that abstract dangerousness should be used as the basis for criminal legislation ­only to protect the most important fundamental rights, i.e. to protect individual life and health. Furthermore, the criminal provision ought to have some real relevance in protecting the life and health of individuals. The criminal provisions based on presumed danger ought to be used even more carefully. For example, gun control, which is based on an obligation to obtain a permit from the police to carry a gun, is well founded, while free possession without control would probably lead to increased violent criminality. There are, however, examples of criminal regulations in Finnish law based on presumed danger, which are problematic from the point of view of the protection of fundamental rights.

In practice the offences based on dangerousness are also exceptions with respect to the culpability requirement. Most of them require only gross negligence or even standard negligence instead of intentionality. From the point of view of fundamental rights, what was said of the endangering element also applies here. The required culpability can be low if the protected fundamental rights are vital, with the result that criminal regulation probably will protect fundamental rights in an effective way.

This principle can also be applied to the policies of the scales of punishment. The wider the scope of protected interests and the lower the level of required culpability, the lower the scale of punishment should also be. The negligent causing of abstract danger to someone’s health in road traffic requires a much more lenient scale of punishment than, for example, intentional assault.

Above all, a criminal regulation, which directly interferes with practising a fundamental right, should have a preventive effect. The starting point has to be the following: how can fundamental rights be protected in an optimal way without restricting an individual’s fundamental rights more than is absolute­ly necessary? For example, the law on restraining orders, which was passed in Finland in 1998, requires that the restrictions ordered by court are necessary for the protection of a person being threatened by another. Further, the restrictions of the court order must be in a reasonable proportion to the applicant’s need of protection and the rights of the person, whose freedom is restricted.

Legal systems also have paternalistic offences which protect citizens from themselves. Notably such legislation protects children, the young, and those persons that are in a clearly subordinate position to others. These groups are also specifically protected by the ECHR, the CCPR and the Finnish Constitution.

However, many offences cast their net much further, with various offences tailored to protect adults from themselves. High among these are drug offences and alcohol offences. It is obvious that the Penal Code provisions prohibiting drug offences41 preserve life and health and prevent the addictive and potentially destructive nature of narcotics, connected perhaps with the social consequences of their wide use. On the other hand, Finnish legislation prohibiting the retail-sales of alcohol from sellers other than the state monopoly seems to be based not on the protection of individual health, but rather on state financial interests. Among other offences in this category are those involving the failure to wear a seatbelt in a car or a crash-helmet when riding a motorcycle or moped.

The starting point is also clear in these cases. Paternalistic criminal legislation should be restricted to those in obvious need of protection. Only if the state can effectively prevent serious harm through relatively mild coercion, may the criminal law be regarded as well founded.42


(c) Alternatives to Criminal Law


The legislator must also take into account that the total benefits of the criminal regulation should override its total societal costs and other disadvantages. All criminal legislation ­should benefit the society more than it harms it. An often cited example of this principle is the Alcohol Prohibition Act, which was in effect in the USA, Norway and Finland for several years at the end of the 1920s and the beginning of the 1930s43. The total prohibition of alcohol produced an increase in smuggling and other organized crime to combat the prohibition. Furthermore, during the Prohibition Act the manslaughter rates were higher than ever in Finland. The benefits to individual health were rather modest.

During the 1970s the theoretical framework of Finnish criminal policy adopted the slogan that "criminal policy is an inseparable part of general social-developmental policy." The aims of criminal policy were to be defined in accordance with the aims of general social policy. The arsenal of means of criminal policy was enlarged beyond the traditional repressive and rehabilitative system of sanctions. From then onward, the aims of criminal policy have been expressed by means of a twofold formula. First, the costs and harmful effects of crime and crime control should be minimized. Second, these costs have to be distributed in a fair way between the offender, society, and the victim.44 As a consequence, the role of punishment has been reduced to only one among many responses to criminality.

This type of criminal policy poses the more general question of the alternatives to criminal law. When considering the use of criminal legislation, we should always ask whether we could employ other societal means instead of criminal law. In terms of prevention, more can usually be achieved by changing social structures and conditions conductive to crime, as well as developing educational measures, using welfare state policies and reducing the opportunities to commit a crime. The criminal justice system is not the only, or even the most important, system of controlling behaviour.

The ambit of criminal law should be kept to a minimum. According to the classical principle, criminal law ought to be the ultima ratio, employed only if nothing else works in a reasonably cheap and effective way. Arguments in favour of this principle are maximizing the freedom of choice and the contention that since criminal law is society's strongest response to wrongdoing, it should not be used excessively. The criminal justice system always involves ethical problems which should not be overlooked.

In practice, Parliament allows the ultima ratio principle to be outweighed by conflicting policies based on cost and convenience. Criminal law does not cost anything, at least in principle, while effective societal policies require substantial public financing. Societal policies are, for example, with respect to the problem of drunken driving, much more effective than criminal law. The relevance of the ultima ratio principle is essentially dependent on the way the obligations of the state are understood in the society. In a welfare state the state is constitutionally responsible for carrying out supporting systems which are essential for a successful criminal policy. In a society where active social policies are not understood as the obligations of the state but rather as voluntary beneficence, the situation is clearly different.


IV Conviction and Criminal Liability


The only institutional reason for the court to pass sentence on the offender is the fact that legislation requires it. The reason for sentencing is simply that an act has violated criminal law.45 Individual cases very seldom can have any preventive effects. If they had such effects because of the publicity of the case, a warning of the public by giving the offender an excep­tionally severe sentence­ would contradict the principle of equality and proportionality. From the preventive point of view, the function of the penalties is to make the system credible: the system should show that it functions, at least in some way.

This starting point allows the scope and conditions of criminal liability and the sanctioning system to be tailored in a rather flexible and lenient way. The positive fault requirements, justifications, and excuses can be rather wide-ranging, allowing the maximum legal safeguards for the offender. In the sanctioning system, petty offences can be left without prosecuting or punishing. Different kinds of mediating systems between the offender and the victim can be developed, e.g., an agreement between the offender and the victim can be encouraged with the possibility of non prosecution.

There are be numerous other examples of the same approach. I only want to point out that as the general rules of criminal law have on the whole a preventive relevance, restrictions of criminal liability based on principles of justice and fairness and applied to individual cases do not normally endanger the societal functions of criminal law. Sometimes it is claimed that the rights of the victim would require a severe punishment for a severe crime. However, after the offence is committed, the rights of the victim require in the first place sufficient legal safeguards and possibilities of obtaining financial compensation for the harm inflicted from state funds.46

In the previous chapter the principle of legality was discussed from the legislator’s point of view. This principle has great importance for the courts as well. Nullum crimen, nulla poena sine lege scripta means that the court may not base its conviction or sentencing on anything else than a parliamentary law. The principle nullum crimen, nulla poena sine lege stricta, in turn, means that the court is not allowed to go beyond the wording of the legislation to the disadvantage of the ac­cused.47 Criminal law may not be construed to the detriment of the accused by analogy. Obviously, the sub-principle nullum crimen, nulla poena sine praevia also binds the courts. The criminal court may not apply criminal legislation in a retroactive manner to the detriment of the accused. These are internationally well known elements of the principle of legality and do not need to be analysed here further.

Another question relevant for the criminal courts is the application of criminal law in a manner that violates the individual's human rights. Usually the European Court on Human Rights has not declared the criminal provisions to contradict the ECHR. Much more common is that the application of these in abstracto acceptable criminal provisions can violate in the specific case the human rights of the accused. One obvious example is the judicature on defamation and invasion of privacy. If the limits of an allowed critique and public discussion are drawn too narrowly, the conviction of a journalist can mean a violation of ECHR Article 10.48


V Summary


We can summarize the main constitutional questions discussed above in the following manner. It should be, however, noted that the constitutional questions concerning the execution of punishment have been left aside.


The use of a criminal law, instead of other societal regulation, requires that

(1) an important societal need requires the use of criminal law,

(2) the total benefits of the criminal legislation override its total societal costs, and

(3) no alternative way of responding that would be morally acceptable would correspond in its preventive effect with criminal law and would not be very expensive.


The penal provision is acceptable only if

(4) it can be thought of as having a preventive effect;

(5) it is not retroactive to the detriment of the accused;

(6) it is clearly defined in a law of Parliament;

(7) it doesn’t include strict liability;

(8) it protects either directly or indirectly an individual’s fundamental rights or exactly defined public interests;

(9) it does not prohibit the use of the core of a fundamental right of an individual;

(10) endangering and negligence are used only to protect directly or indirectly the most vital interests with good preventive reasons, and

(11) also, otherwise, the restrictions implied by the criminal legislation must be acceptable, required by compelling public interests, and must be in a reasonable proportion to the interest protected and to the restrictive effects of the criminal legislation on individual freedoms.


 The scale of sanctions in a criminal provision

(12) may not include the death penalty or mean torture or inhuman or degrading treatment or punishment,

(13) must be enacted in a law of Parliament, and

(14) has to be in the right proportion to the vitality of the interest protected and the scope of application of the provision.


The sentencing requires that

(15) the Penal Code has been violated,

(16) the law has not been applied by analogy or otherwise in contradiction to the wording of the provisions to the detriment of the accused,

(17) the law is not applied retrospectively to the detriment of the accused,

(18) the fundamental rights of all persons involved have been taken into account in the application of law, and

(19) if the application of the criminal provision leads to a clear contradiction with the fundamental rights of the accused, the provision is not applied.

 

 Outlines of the Constitutionality of Criminal Law and Sentencing in a Court of Law

 

 

The societal justification

The constitutional limits of the criminal law system






Range of offences

* Affecting peoples’ behaviour; general pre­vention

* Compelling public interest; the expected preventive effect

* The prohibition of the death sentence, torture and treatment violating human dignity

* Nulla poena, nullum crimen sine lege praevia and certa

* The prohibition of strict liability

* The principle of autonomy and the requirement of mens rea

* The use of the core of the human rights of individuals cannot be criminalized

* The protection of fundamental rights and clearly defined public interests

* The proportionality of the criminal provisions (range of prohibitions, severity of sanctions)

Criminal legislation instead of other methods of social cont­rol

* Important so­cietal need re­quires criminal legislation

* The total benefits of criminal legislation should override its total costs

* The ultima ratio principle

Scope and conditions of criminal liability

* The criminal law has been violated

* The principles of justice and fairness

* Nulla poena, nullum crimen sine lege scrip­ta, stric­ta and praevia

* The application of criminal law taking into account fundamental rights


*****



* LL.D., Professor of Law at the University of Turku.

1 Legislative decisions in the Finnish Parliament are based on committee work. After the Government’s legislative proposal, the Commit­tees of the Parliament are required to study and report on all proposals on which Parliament will finally decide. Each proposal is sent to one reporting committee for study.

2 The task of the Committee of Consti­tutional Law is to decide whether a bill is in harmony with  constitutional principles or whether there is a discrepan­cy between the Constituti­on and the bill.

3 H. L. A. Hart, Punishment and Responsibility (1968) esp. p. 1 pp., 159 pp. and p. 210 pp.

4 See esp. Alf Ross, On Guilt, Responsibility and Punishment (1975) p. 43 pp.

5 See Nils Jareborg, Straffrättsideologiska fragment (1992) p. 135 pp. and Nils Jareborg, Straffrät­tens ansvarslära (1994) p. 323 pp. See in English Nils Jareborg, Essays in Criminal Law (1988) p. 105 pp.

6 In Finnish see Tapio Lappi-Seppälä, Rangaistuksen määräämisestä I (1987) p. 125 pp. and Tapio Lappi-Seppälä, Miksi rikosoikeus?, in Hirvonen (ed.): Kohti 2000-luvun rikosoikeutta (1994) p. 19 pp. In English see Tapio Lappi-Seppälä, Finland, in Eser/Walther (Hrsg./eds): Wiedergutmachung im Kriminalrecht. Internationale Perspektiven. Reparation in Criminal Law. International Perspectives. Band/Volume 1 (1996) p. 317 pp.

7 Andrew Ashworth, Principles of Criminal Law, 2nd ed. (1995) p. 1 pp.

8 The theories of punishment are normally divided into the retributive and preventive (or deterrence) theories. Retributive theories seek the meaning of punishment from the offence already committed. These theories have lost — for good reasons — their importance in the Nordic countries during the 1900s. Preventive theories, on the other hand, are based on the general or individual preventive effects of the criminal justice system. According to these theories, the justification of the criminal justice system is not in the past, but on the supposed impact the system has on the future behaviour of the offender and the people in general. In Finland, the criminal policy has been based on general prevention, which emphasizes the impact the system has on people in general. The special preventive effects on the offenders are given secondary relevance.

9 There are many different kinds of why-questions. Ross supra note 6, on p. 43 pp., distinguishes between causal, final (or finalistic) and justificatory explanations. A causal explanation can be, for example, political or social. We prohibit, because our tolerance and our sense of societal security are low. Here I refer to final explanations: we prohibit in order to encourage people to perform certain behaviour. The justificatory explanation combines criminal law with acceptable values in the society. The criminal justice system may be accepted as the only justifiable means of upholding certain social practices as necessary for "the general good".

10 I shall mention only a few examples here. All the regulations concerning the execution of punishment, which are relevant from the point of view of fundamental rights, should be enacted in parliamentary law. There are several fundamental rights issues which concern the prisoners. For example, the juvenile prisoners should be kept apart from adult prisoners, prisoners on remand must be treated according to the presumption of innocence as not guilty of the offence. Furthermore, the personal integrity and privacy of the prisoner must be guaranteed to some extent.

11 Jareborg (1992) supra note 5, on p. 136.

12 I shall use here the concepts of general and individual prevention instead of general and individual deterrence. Deterrence refers to the "negative" preventive effects, consisting of the fear of punishment on the general level (the “public”) and the warning, rehabilitation, and incapacitation on the individual level (the offender). The "positive" preventive effects have to do with both the (public and the offender’s) "internalization" of the norms of the criminal law and other motivating measures.

13 Western legal systems have concentrated on the former: Prima facie one only prohibits someone from performing a certain action; only in exceptional cases are omissions criminali­zed.

14 Jareborg (1988) supra note 5, on p. 109.

15 In fact the retributive theory of Immanuel Kant also deals with the sanctioning level, although Kant is regularly accused of a general and unanalyzed theory of retribution. Kant's main philosophical issue was the breaking of moral rules. The legal rules are enacted because of the preventive needs of the society and there are only a few principles which govern the justification of the contents of the legal system. The question of deserving punishment is relevant only when a member of society decides to violate common rules to his advantage. See Immanuel Kant, Lectures on Ethics (1979) p. 56.

16 This is sometimes claimed in the criticism of criminal justice systems. In theories of criminal justice, however, I have not found clear evidence of this line of thinking. The Marburg program of Franz von Liszt from 1882 tailored the use of punishments according to the personality of the offender. It must, however, be emphasized that von Liszt clearly separated acts prohibited by the Penal Code from the general principles of criminal law and the sanctions system. The two former ones were to be based on the principle of the rule of law (Rechtsstaat); the third one on the principle of special deterrence. Precisely this is the meaning of von Liszt's demand for criminal law to become "the Magna Charta of the offender". See Franz von Liszt, Strafrecht­liche Aufsätze und Vorträge. Zweiter Band. 1892 bis 1904. Nach­druck (1970), p. 80.

17 In Finland, however, the sanctions system is also based from the 1970s onwards clearly on the principle of general prevention.

18 Jareborg (1988) supra note 5, on p. 137 and Ashworth supra note 7, on p. 15. See also Hart supra note 3, on p. 9.

19 Jareborg (1988) supra note 5, on p. 107 and Jareborg (1992) supra note 5, on p. 137.

20 Jareborg (1988) supra note 5, on p. 112.

21 Here I shall refer only to absolute prohibitions of criminal law and leave questions relating to criminal procedure aside. Of course, for example, a penalty involving deprivation of liberty may be imposed only by a court of law (Section 7(3) of the Constitution). The lawfulness of other cases of deprivation of liberty (for example, on the basis of mental illness) may be submitted for review by a court of law. Also, for example, the presumption of innocence (see ECHR Art. 6) is left outside this article, because it is concerned more with criminal procedure than with criminal law.

22 The sections referred to are from the new Constitution of Finland, which goes into effect 1.3.2000. See also the ECHR, Art. 3, and the CCPR, Art. 7.

23 Also, in Finland, however, the history of the death sentence during the civil war and during the Second World War was not so flattering.

24 The other two sub-principles inherent in the principle of legality concern the courts' task of interpreting legislation and will be discussed later.

25 As can be seen, this principle binds both the legislator and the courts.

26 Ashworth supra note 7 on p. 73.

27 Here it must be noted that according to the Finnish doctrine a court cannot declare criminal legislation — as in the USA — unconstitutional if it is unduly vague. A vague law may in practice operate retroactively, if no one can be quite sure whether a given conduct is within or outside the rule. These situations can, however, be dealt within the doctrine of ignorance of law. The principle does not, therefore, apply directly to court decision-making.

28 See the European Court of Human Rights, Kokkinakis v. Greece (25.5.1993; 260-A).

29  See Jürgen Wolter, Menschenrechte und Rechtsgüterschutz in einem europäischen Strafrechtssystem, in Schünemann/Dias (Hrsg.): Bausteine des europäischen Strafrecht. Coimbra-Symposium für Claus Roxin (1995), on p. 3 pp. and Klaus Tiedemann, Verfassungsrecht und Strafrecht (1991), p. 4 pp.

30 See (in Finnish) Veli-Pekka Viljanen, Perusoikeudet ja rikoslainsäädäntö, in Länsineva/Viljanen (eds): Perusoikeuspuheenvuoroja (1998), p. 288.

31 See European Court on Human Rights, Dudgeon v. United Kingdom (22.8.1981; A-45).

32 See Ari-Matti Nuutila, Rikoslain yleinen osa (1997), p. 40 pp.

33 In Germany the same argument is presented by Claus Roxin. See Claus Roxin, Strafrecht. Allgemeiner Teil. Band I. Grundlagen. Der Aufbau der Verbrechenslehre. 3. Aufl. (1997), p. 11 pp.

34 See Lappi-Seppälä (1994) supra note 6, p. 47 pp. and Ari-Matti Nuutila, Rikosoikeudellinen huolimattomuus (1996), p. 80. For the English discussion, see Ashworth supra note 7, on p. 25 pp.

35 Some claim that one purpose of road-traffic offences should be to create an orderly flow of traffic, but if considered rationally, this kind of "interest" can hardly serve as an interest which can be protected by criminal law.

36 In Finland there is a criminal provision for "causing danger" in the chapter protecting life and health (Penal Code Ch. 21, Sect. 13) for situations where a person causes a concrete danger to someone’s life or health through gross negligence. The section is applied, for example, in cases, in which someone fires a weapon on a street, where there are several people in the danger zone of the firing, although no one is hurt.

37 In Finland the offence of sabotage is based either on a general and abstract dangerousness of the fire or explosion to someone's life or health, or a concrete endangering of very important property values. See Penal Code Ch. 34 Sect. 1.

38 See Penal Code Ch. 23, Sect. 1.

39 See Penal Code Ch. 23, Sect. 3.

40 See Penal Code Ch. 47, Sect. 1.

41 See Penal Code Ch. 50, Sect. 1-2.

42 See also Jareborg (1994) supra note 5, on p. 332.

43 In Finland the first referendum between parliamentary elections was held in 1932 on the abolition of the Prohibition Act. As a result, the prohibition was lifted and the state alcohol monopoly was established.

44 See Lappi-Seppälä (1996) supra note 6, p. 330.

45 Jareborg (1988) supra note 5, on p. 107.

46 Finland was among the first countries to pass the State Compensation Act in 1974. Its scope of application is also large today, compared with most western countries which have similar laws. The ideology has been so defined that in a welfare state the fair distribution of the costs of criminality requires the State to be primarily responsible for the covering of the damages of the offence to the victim.

47 The details of this principle, which is also called the principle of strict construction, are not clear. Especially the limit between (allowed) interpretation and (forbidden) analogy of criminal legislation is somewhat vague.

48 See European Court of Human Rights, Lingens v. Austria (8.7.1986, A 103), Oberschlich v. Austria (23.5.1991, A 204), Castells v. Spain (23.4.1992, A 236) and Oberschlick v. Austria (No. 2) (1.7.1997).

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