Contributo selezionato da Filodiritto tra quelli pubblicati nei Proceedings “6th International Conference Multidisciplinary Perspectives in the Quasi-Coercive Treatment of Offenders - SPECTO 2017”
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Contribution selected by Filodiritto among those published in the Proceedings “6th International Conference Multidisciplinary Perspectives in the Quasi-Coercive Treatment of Offenders - SPECTO 2017”
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The reaction of our society against any harmful acts is a necessity dictated by the need to safeguard the social order, the fundamental values protected by the Rule of Law. New social phenomena such as massive migration, refugee crisis, terrorist attacks or organized crime request proportional reactions of the State authorities, reactions which aim to protect in the first place the security of innocent population, and on the second place, that aim to ensure the proportional sanctioning for the harms against social values protected by criminal means.
In this complex social context, we can observe an increased preoccupation for new techniques and instruments to provide social control, and a dramatic trend that leads to the modification of the current criminal and criminal procedure legislation. The criminal policy of the states, both legal and judicial, is shaped by the legislator in order to provide social security and to minimize the risk of criminality of a specific nature (terrorism, organized crime etc.) The concrete way to provide such organized reactions by the special bodies with specific features in the field of criminal repression generates fierce controversy both in the doctrine, society and public perception.
In this complex and scary social context, the criminal law needs to adapt to the new forms of crime, needs to find new proper ways to react to specific criminal deeds and needs to intervene from the very beginning of iter criminis, even in the phase of preparatory acts.
We need new principles – such as the principle of prevention and the principle of precaution – and rules that can create the specific frame in order to achieve the desideratum of security because the old ones proved to be insufficient or outdated.
Thus, if a certain human activity is risky or potentially harmful, and there is no certainty about the magnitude of its effects or causality, then a proactive action is needed in order to avoid injury.
In the same time, in the field of criminal procedure law, the vast majority of special methods of surveillance or investigation is ordered by the judge of rights and freedoms as a guarantee of the rights of the person under investigation but the conditions in which such measures may be imposed are likely to raise serious questions about the role of criminal law as a whole and about the limits of interference of the state bodies who may slightly commit abuses under the cosy umbrella of fighting against crime desiderate.
Is it worth it to sacrifice personal freedoms and rights for a higher purpose of general security? Or is just another failure of the human thoughts which will lead to a bigger problem? Is overprotection of the society a safe solution for our future?
During our everyday existence, we can see all kinds of human conduct. Sometimes we feel obliged to characterize them, sometimes we just ignore them. For example, when we see a mother overprotecting her child, exaggerating with the measures of protection, not allowing the child to explore or to get in contact with other children because she fears her child might be injured, or might get some disease, then this umbrella that she tries to place over her child might be ruined at the first serious storm. Why? It is very simple: if you do not allow a child to develop his/her own protection skills, the final result, even if not intended, will be a disaster. The child will be not able to choose properly and safely for herself/himself in a limit/dangerous social context, will catch a disease very easily because his/her immune system is not trained to fight with germs and will give up at the first challenge. So, we can conclude that the child is not prepared neither physically, not psychologically to face real life. And seeing this, his/her mother will blame herself for not doing the right thing; in the same time, those people who were around and who saw the mother overprotecting her child would blame themselves for not explaining the mother she was wrong at the right time. So, in the situation presented, all parties are to blame while the victim is unique: the weakened child.
If we try to make an analogy attributing the society the role of the child, we must be aware that, if we tend to be overprotective, even with the aim of public security, the result could be the opposite with the one intended.
The theories of social control are, with little exception, all converging to one idea: the social relations need to be regulated by an increased number of rules that tend to limit different areas of human conduct .
Noting that the “the old fashion sovereign state can deliver punishment, but not security”  Garland also notes that “the new crime control arrangements do however involve social costs that are, over a long term, less easily accommodated” . We can make an exercise of imagination in order to identify what these social costs could be: the restraint of right and freedoms of the citizens who can be convinced to allow the state bodies to apply specific measures in order to prevent crime.
But, as showed before, and also stated by Simon, this approach would allow the elites to “govern through crime” . It was also stated that “technologies, discourses and metaphors of crime and criminal justice have become more visible features of all kinds of institutions, where they can easily gravitate into new opportunities for governance. In this way, it is not a great jump to go from (a) concerns about juvenile crime through (b) measures in schools that treat students primarily as potential criminals or victims and (c) later still, to attacks on academic failure as kind of crime someone must be held accountable for, whether it be the student (…), teachers (…) or whole schools (…)” (Simon, 2009, p.5). The ratio made by Simon can be applied to our study on fighting against any severe form of crime (terrorism, trafficking in human beings, drug trafficking, organized crime etc.) and we shall find out soon that those punished in the end are not the criminals, but the innocent citizens. This is in fact the “governing through crime” paradigm showed by Simon. And the answer to our concerns sits in the results of the USA post 9/11 terror with President Bush invoking a “solemn obligation to protect people” .
All the measures and techniques applied to control crime are part of the criminal policy of the states, but the social status quo has changed after 9/11 worldwide and this has led to a changing paradigm of criminal repression. Before 9/11 the process of fighting against crime was: 1 – crime; 2
– organized reaction to crime. After 9/11 the paradigm has changed: 1. proaction/prevention before crime; 2. crime; 3. reaction to crime. And the real problem in this changed paradigm is the first stage
– proaction/prevention of crime, that is we need to be vigilant in order to efficiently prevent crime.
And how can we do that in a social and political context pointing out to rights and freedoms of the citizens? How deep can we interfere with these rights and freedoms in order to prevent crime, and not transform the beneficiaries of this fight in real victims. If we do not pay attention to this issue, the innocent citizens will be treated in mass as potential criminals, as Simon observed.
Criminal law is no longer a repressive, punitive instrument to being a primarily preventive tool designed to minimize dangers and risks.
In the same time, a corresponding preventive aspect of criminal law can also be found in the field of criminal procedure: many clandestine powers for secret surveillance in police law and intelligence law are now also used in criminal procedure or law enforcement. These powers represent the procedural equivalent to preparatory inchoate offenses in substantive criminal law as they facilitate the investigation of activities in this preparatory phase .
So, following prof. Sieber, who talks about a new branch – the security law – with a specific role in the fight against crime, we must wonder ourselves if this new security law (an important part of the changing criminal policy of the states) has been created on a solid ground. And this ground, in our opinion is represented by the general principles of criminal law. Can these principles as they managed to pass the time properly response to the new face of crime? Or something has to be done from the first place in this area, and only after we rethink the principles according to the evolution of society and crime, modify other elements of the criminal policy?
If the foundation is solid, then the building will be solid, secure and durable. The principles of criminal law are, mainly, the principle of legality (nulum crimen sine lege, nulla poena sine lege), the principle of culpability (nulla poena sine culpa), the principle of personal criminal liability, the principle of proportionality, and the principle of unique criminal liability for the crime (non bis in idem) . Doctrine  indicates more principles of criminal law, but, in our opinion, these are the most important and worldwide accepted in substantial criminal law field.
In a previous study, we proposed a wider system of principles of criminal law, more adapted to a society facing the new crime era by adding three new principles in the criminal law field: the principle of social peril, the principle of prevention and the precautionary principle .
The principle of social peril is necessary because the new preventive criminal law about professor Ulrich Sieber used to argue cannot be conceived without the social peril idea. We cannot accept the intervention of the State and of the judicial bodies that could lead to the restrictions in the field of personal rights and liberties if there isn’t any social peril of the act committed with disrespect of the criminal rule, even if the idea of social peril is quite old, being arbitrary and often used in the communist era.
But the principle of social peril helps us to offer the fundament for the principle of prevention. If there wasn’t a specific threat for a criminal protected social value and if that threat was not of a specific importance quantified in the possible harm that could have been caused by the criminal deed, then we cannot accept the early intervention of the State .
The principle of social peril is to be analysed in relation with the notion of “public order” seen as a condition characterized by the absence of widespread criminal and political violence . To be recognized as public policy, rules must meet two criteria, the first being that “it must address a real and severe enough danger and not just any violation of a rule, and the second that the goal of the public policy rule must be to protect a fundamental interest of the society concerned . So, in order to justify the intervention of the State in the area of personal freedoms, the conduct of a person should qualify as a serious threat for the society. But the serious threat cannot be circumcised in the absence of the social peril criteria. Another approach points that the term “penal” no longer has an appropriate or even useful place in our culture. “Let us have a civilized Code of Correction; and let us devise some sort of legislative mechanism to ensure its continuing revision in the light of continuing reporting and appraisal of operations” says a scholar. In means that we need to focus on the preventive idea and drop the punitive actions that no longer suit our society. I find that quite dangerous.
The second principle – principle of prevention – we proposed, has to do with the paradigm shift in the global risk society – from criminal law to global security law, prof. Sieber spoke about. He stated that this paradigm shift is based on the one hand, on objective changes such as emergence of new threats and new types of complex crime, and on the other hand on the changes in people’s subjective levels of well-being: objective changes lead to greater fear of crime . But, as the risk prevention tends to become a real dogma of the modern society, we must focus on the fact that by accepting this principle of prevention in the criminal law field contributes to a more efficient crime control and improves security. But it would be unfair for the scientific approach to minimize or to reduce to silence some negative aspects of the preventive principle: public order, security and social risks are notions very difficult to define, and by interpretation we can easily push the limits beyond the common sense and civil liberties become secondary interests for the State which will only act focusing on social security and public order .
The last principle is the precautionary principle. Supporters see the precautionary principle as one of the fundamental principles that protect human society in all its dimensions, while skeptics argue that its popularity is due precisely to its ambiguity – this principle stands up mainly by its inability to establish an actual obligation for anyone or solve any dilemma of our contemporary social policy .
Statements about precautionary principle found in international doctrine are far from being uniform, but we can distinguish a number of common elements: (a) potential harm/injury; (b) scientific uncertainty regarding the impact and causality; (c) response/cautious action . Thus, if a human activity is risky or potentially harmful, and there is no certainty about the magnitude of its effects or causality, then it takes a proactive action that serves to avoid injury. The precautionary principle is very famous in environmental law, being borrowed also in the field of human activities involving bioethical issues. I stated, with another ocasion the need for adopting this principle in the field of bioethic criminal law . We also proposed that the precautionary principle must be borrowed in the field of criminal law, but mostly in the field of criminal procedure and security law, in order to help the legal thinking in finding the best legal solutions for minimizing the breach of civil freedoms and personal privacy. That means the adoption of every new legal rule to allow State interference in the legal rights and private area of individuals on the purpose of combating the crime phenomenon should be censored under these three elements: Is it necessary? What are the short term, mid-term and long-term consequences of that measure? Is it worth it? .
In the criminal procedure field, the resonable suspicion related to the preparation or commission of an offense seems to be the philosopher's stone. As if it is not enough that law refers to a reasonable suspicion and not to a certainty, the procedural rules allow an early intervention of the public organs and judicial bodies even if the crime/offense is suspected to be prepared, and not committed yet. There are a lot of provisions in the Criminal Procedure Code of Romania (RCPC) – Law no. 135/2010, published in Official Monitor no. 486/15.07.2010, which entered into force on the 1st of February 2014 – art. 139 par. 1 and 4, art. 142 par. 5, art. 147 par. 1 and 2, art. 148, art. 150, art. 154, art. 170, art. 223 – all referring to the possibility of using specific technical surveillance and investigation methods or to the possibility of arresting a person (art. 223 par. 1 let. d) in case of reasonable suspicion, the person prepares the commission of a crime or of an offense .
Also, in case of authorized participation of undercover agents in certain activities (art. 150 RCPC), the infiltration of undercover investigators is allowed up to the point where they can commit activities that are similar to the actus reus of a corruption offense. Then, according to let. b, paragraph 1 of art. 150 precited, the prosecutor, using this technique, must ensure that the measure is proportional to the limitation of fundamental rights and freedoms, given the particularities of the case, the importance of the information or evidence to be obtained or the gravity of the offense . So, the prosecutor could authorize the participation in certain activities, even when a simple information is needed, not necessarily an evidence. This means that the prosecutor has increased powers in the criminal procedure and little censure against the arbitrary of his/her acts. The procedural rights of the suspect are diluted while the abuse of the prosecutor in the criminal trial is an easy task.
So, to return to those outlined in the introduction to the study, it seems that the legal standards of limiting the intervention of the public organs in the area of rights and freedoms of the citizens had become only a declarative desiderate. The common sense tells us that the dictatorship of crime and the fear of crime had generated a dictatorship of governance through crime. Only if we change our vision on fighting against crime and on what proactive intervention should mean, we would be able to be efficient in this task and protect in the same efficient way our citizens, their rights and freedoms.
Only if we notice that the paradigm shift that we created after 9/11 had not lead to a decrease of the serious crime phenomenon, only then we will find the real Philosopher’s Stone.
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