Comparative Criminal Law2

Offences04.02.2013

Content

1. Criminal and other responsibility.2. Classification of breaches of peace based on structure of state and gravity of punishment. Felony, misdemeanour, etc. 3. Actus reus. Act and omission, commission of offence by omission.

1. Criminal and other responsibility

Conviction -> penal responsibilityCivil liability - rights to obtain redress from another person e.g. the ability to sue for damages for personal injury. There is also the right to obtain an injunction. For there to be an award of damages, the injured party has to have suffered an actual loss, be it personal injury, damage to property, or financial loss. The burden of proof is the balance of probability which is much lower than for criminal matters. www.rsc.org/images/2_Difference_tcm18-17644.pdf

Administrative / Civil penalty - an alternative to prosecution; a financial penalty imposed by a government agency as restitution for wrongdoing. The civil fine is not a criminal punishment, because it is primarily sought in order to compensate the state for harm done. The state need not meet a burden of proof that is beyond a reasonable doubt; because the action is brought by the government, and some civil penalties can be really high, it would be uncomfortable to subject citizens to them by a burden of proof that is merely a preponderance of the evidence. The assessment of civil penalties requires a finding of clear and convincing evidence.

1. Criminal and other responsibility

Disciplinary liability - reinforces internal discipline and accountability for wrongdoing and poor performance and helps ensure that its agents will comply with their obligations Francisco Cardona: LIABILITIES AND DISCIPLINE OF CIVIL SERVANTS (OECD 2003), www.oecd.org/site/sigma/publicationsdocuments/37890790.pdf.

Administrative / State liability - the tortious liability of public bodies. A public body which acts ultra vires is liable just like any individual would be.Konrad Schiemann: The State’s Liability in Damages for Administrative Action. Fordham International Law Journal, Volume 33, Issue 5 2011, ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2214&context=ilj

State responsibility (international law) - principles governing when and how a state is held responsible for a breach of an international obligation.Draft Articles on the Responsibility of States for Internationally Wrongful Acts, Report of the ILC on the Work of its Fifty-third Session, UN GAOR, 56th Sess, Supp No 10, p 43, UN Doc A/56/10 (2001), www.un.org/ga/search/view_doc.asp?symbol=A/56/10%28SUPP%29.

Professional responsibility

1. Criminal and other responsibility

Political responsibilityCollective responsibility - individuals are to be held responsible for other people's actions by tolerating, ignoring, or harboring them, without actively collaborating in these actions.

Ethical / Moral responsibilitySocial responsibility - an entity has an obligation to act to benefit society at

large;Media responsibility

Supernatural responsibility

Kristina Janušauskaite: Civil, administrative, criminal liability & sanctions: Distinction in view of Lithuanian IP legislation & practice. www.atrip.tf.vu.lt/docs/Presentation_Janusauskaite.pdf.

Antonios Sifakis: Environmental Liability From Penal, Civil And Administrative Law Point Of View. greeklawdigest.gr/topics/environment/item/102-environmental-liability-from-penal-civil-and-administrative-law-point-of-view.

1. Responsibility as...

Wesley Newcomb Hohfeld (1879-1918)

W. N. Hohfeld: Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale L.J. 16 (1913), www.hiit.fi/files/ns/Herkko/SOME%20FUNDAMENTAL%20LEGAL%20CONCEPTIONS%20AS%20APPLIED%20IN%20JUDICIAL%20REASONING.pdfAlbert Kocourek: The Hohfeld System of Fundamental Legal Concepts (1920), en.wikisource.org/wiki/The_Hohfeld_System_of_Fundamental_Legal_ConceptsArthur Corbin: Jural Relations and Their Classification (1921), digitalcommons.law.yale.edu/fss_papers/2873University of Rijeka. Hohfeld's Scheme of Jural Relations, www.pravri.hr/hr/savjetovanja/jurihohfelds.pdf

1. Forms of responsibility

Culpable responsibility - mens rea:degrees of blameworthiness (e.g. purposely, knowingly, recklessly,

negligently).

Strict liability a person is legally responsible for the damage and loss caused by his acts and omissions regardless of culpability. The accused can raise the defence of due diligence (duty of care, standard of care, audits etc).

Absolute liability if the accused can not exculpate himself even by showing that he was free of fault. E.g., a mistake of fact is not a defence.

Vicarious liabilitythe responsibility of the superior for the acts of their subordinate (respondeat superior), or, in a broader sense, the responsibility of any third party that had the "right, ability or duty to control" the activities of a violator. Cf. command responsibility; personal liablity; limited liability.

1. Breaches of the peace (England) All criminal offences cognizable by English law involve "a breach of the Queen's peace". Historically it represents the last trace of the process by which the royal courts assume jurisdiction over all offences, and gradually eroded the jurisdiction of sheriffs and lords, making crime a matter of national concern as distinguished from civil wrongs or infractions of the rights of local magnates. The completion of this process is marked by the institution of the office of Justice of the Peace (1361 J.-s o.t.P. Act). Breach of the peace is not an offence. Constables (or citizens) are permitted to arrest a person to "prevent a further breach of the peace", before a breach of the peace has occurred. This is permitted when it is reasonable to believe should the person remain, that they would continue with their course of conduct and that a Breach of the Peace would occur. The only immediate sanction that can be imposed by a court for breach of the peace is to bind over the offender to keep the peace: justices of the peace can require a person to enter into a recognizance to keep the peace. The binding over itself does not amount to a conviction but any following behaviour causing loss of the surety might well result in conviction for an associated offence. A failure to enter into a recognizance may of itself lead to a person being committed to custody.

1. Breaches of the peace (Scotland)Breach of the peace is a specific criminal offence in Scotland prosecuted in the Sheriff Courts and due to its common law definition it can be applied to a number of scenarios. The maximum punishment if a case is remitted to the High Court remains imprisonment for life. The Scots Law definition of a breach of the peace is "conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community."A constable may arrest any person, without warrant, who commits a breach of the peace. A member of the public may not arrest a person for behaviour which amounts to no more than a breach of the peace. Breach of the peace can include, but is not limited to, any riotous or disorderly behaviour. This behaviour doesn't have to be noisy but still of a nature that would cause concern to other people. To prove a Breach of the Peace the most important things to prove is that someone was Alarmed, Annoyed or Disturbed by the incident. This offence can take place anywhere i.e. a house, a public street, a private office or any public space.en.wikipedia.org/wiki/Breach_of_the_peace, cf. en.wikipedia.org/wiki/Disturbing_the_peace, en.wikipedia.org/wiki/Disorderly_conduct, legal-dictionary.thefreedictionary.com/breach+of+the+peace

1. Public PeaceThe Queen's (King's) peace is the term used to describe the protection the

monarch provides to his or her subjects. In republics with common law traditions, the same is often referred to as the peace [and dignity] of the State.

The Ewiger Landfriede (Perpetual Public Peace) of 1495, passed by Maximilian I in the Holy Roman Empire, was the definitive and everlasting ban on the medieval right of vendetta (Fehderecht). The preservation of peace is still an important part of German law. Breaches of the peace are punishable under the German, Austrian and Swiss Penal Codes (§ 125 resp. § 274, Art. 260). The state acknowledges the right of individuals to ensure their own rights by force only in very limited circumstances.en.wikipedia.org/wiki/Queen%27s_peace, en.wikipedia.org/wiki/Ewiger_Landfriede

Public Peace (Germany) - public awareness and trust to the legal certainty, that common everyday life can be lead undisturbed by attacks by others.Cf. www.sokolowski.org/strafrecht/storung-des-offentlichen-friedens/4634/, de.wikipedia.org/wiki/St%C3%B6rung_des_%C3%B6ffentlichen_Friedens_durch_Androhung_von_Straftaten

1. Public Order

Public order - a condition characterized by the absence of widespread criminal and political violence, such as kidnapping, murder, riots, arson, and intimidation against targeted groups or individuals. Under this condition, such activity is reduced to an acceptable minimum, perpetrators are pursued, arrested, and detained, and the local population is able to move freely about the country without fear of undue violence.United States Institute of Peace: Guiding Principles for Stabilization and Reconstruction. www.usip.org/guiding-principles-stabilization-and-reconstruction-the-web-version/rule-law/public-order.

Public order crime - crime which involves acts that interfere with the operations of society and the ability of people to function efficiently; behaviour that has been labelled criminal because it is contrary to shared norms, social values, and customs. Such deviancy is criminalized when it is too disruptive and has proved uncontrollable through informal sanctions. It includes consensual crime and victimless vice and crime. It asserts the need to use the law to maintain order both in the legal and moral sense.en.wikipedia.org/wiki/Public-order_crime

1. Rationale of criminalisation

Socialist criminal law: socially dangerous act.B. S. Nikiforov: Fundamental Principles Of Soviet Criminal Law (1960), onlinelibrary.wiley.com/doi/10.1111/j.1468-2230.1960.tb00572.x/pdf.Peter H. Solomon: Soviet Criminal Justice under Stalin. Cambridge University Press, Oct 28, 1996.

The Criminal Code Of The Russian Federation (1997)

Article 14. The Concept of Crime1. A socially dangerous act, committed with guilt and prohibited by this Code under threat of punishment, shall be deemed to be a crime.2. The commission of an act, or an inaction, although formally containing the indicia of any act provided for by this Code, but which, by reason of its insignificance, does not represent a social danger that is, which caused no harm and has not created a treat of damage to a person, society, or the state, shall not be deemed a crime. visalink-russia.com/criminal-code-russian-federation.html

1. Rationale of criminalisation

Principio di offensivitā (Italy): nullum crimen sine injuria.Luciano Moccia, Fabrizio Pensa: Il principio di offensività tra contrasti interpretativi e progetti di riforma (2008), www.altalex.com/index.php?idnot=39904

Harm principle and offense principle John Stuart Mill (1806–1873): The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.For such actions as are prejudicial to the interests of others, the individual is accountable, and may be subjected either to social or to legal punishments, if society is of opinion that the one or the other is requisite for its protection.Offense may cause harm, but does not necessarily cause harm. An offense meets the offense principle only if it is a wrong and also causes harm.The definition of what constitutes a wrong may change over time, such that harm may be caused by actions which were not considered wrongs at the time, and vice versa.en.wikipedia.org/wiki/Harm_principle

1. Ultima ratio: Criminal Law as the last resort

Principle of minimum intervention - one must resort to the Criminal Law only when it is necessary, that is, when there is no alternative. Before using the Criminal Law, it should be analyzed whether it is possible or not and if administrative sanctions or other means which state has are sufficient.Maria Teresa Castineira Palou: The character of ultima ratio of Criminal Law. addendareview.com/wp-content/uploads/2012/12/The-character-of-ultima-ratio.pdf

TASK: read one of the articles:Nils Jareborg: Criminalization as Last Resort (Ultima Ratio) AND Douglas Husak: Applying Ultima Ratio: A Skeptical Assessment. moritzlaw.osu.edu/osjcl/Articles/Volume2_2/Symposium/Jareborg-PDF-3-17-05.pdf; moritzlaw.osu.edu/osjcl/Articles/Volume2_2/Symposium/Husak-PDF-3-17-05.pdfEuropean Criminal Law Review (EuCLR) No. 1 2011, rsw.beck.de/rsw/upload/EuCLR/EuCLR_2011_01%5B1%5D.pdf. (There are many articles)Raimo Lahti: The principles of ultima ratio, subsidiarity and proportionality in EU criminal law. An EU Approach to Criminal Law; Hearing in the European Parliament 8 December 2011, Brussels, www.europarl.europa.eu/document/activities/cont/201112/20111207ATT33469/20111207ATT33469EN.pdf.Ester Herlin‐Karnell: What Principles Drive (or Should Drive) European Criminal Law? www.germanlawjournal.com/pdfs/Vol11-No10/PDF_Vol_11_No_10_1115-1130_Articles_Herlin-Karnell%20FINAL.pdf.

1. Fact of criminalisationGreek Penal code: Article 14: Definition of the punishable act 1. Crime is an unjust act, imputable to the offender, which is punishable by law. 2. In penal law provisions, the term “act” also includes omissions.documents.law.yale.edu/hathaway-project/greek-criminal-code-unofficial-english-translation

Swedish Penal Code: Section 1A crime is an act defined in this Code or in another law or statutory instrument for which a punishment as stated below is provided. (1994)www.ictparliament.org/node/1705

Some penal codes do not define crime, but only categorise them: German, Swiss, French, Norwegian, Austrian, Dutch codeswww.iuscomp.org/gla/statutes/StGB.htm; www.admin.ch/ch/e/rs/3/311.0.en.pdf; www.legifrance.gouv.fr/content/download/1957/13715/version/4/file/Code_33.pdf;www.ub.uio.no/ujur/ulovdata/lov-19020522-010-eng.pdf; P.J.P. Tak: The Dutch criminal justice system, english.wodc.nl/images/Dutch%20CJS_full%20text_tcm45-350501.pdfhttp://www.ris.bka.gv.at/GeltendeFassung.wxe?Abfrage=Bundesnormen&Gesetzesnummer=10002296.

2. Classification of breachesA) Based on the structure of the state:

Unitary state - unitary criminal lawFederal state - unitary or multi-level criminal law

Germany, United States, Canada etc.In Canada, only the less grave breaches may be

enacted by the provinces.The degree may be different: in US there are several

codes; in Canada there is a single code.laws-lois.justice.gc.ca/eng/acts/C-46/

British situation - several jurisdictions, Common Law and statutory offences.

2. Classification of breachesB) Based on gravity of breaches

FRANCE, Belgium, Greece

crime délit contravention

NETHERLANDS,ITALY, SPAIN

crime infraction

GERMANY, AUSTRIA Verbrechen Vergehen Ordnungswidrigkeit / Verwaltungsübertretung

NORWAY,SWITZERLAND

felony misdemeanour

ENGLAND (treason) felony / arrestable offence

misdemeanour/ non-arrestable offence

England, Canada indictable offences

offences triable either way

summary offences

US Federal, California felony A-E misdemeanor A-C infraction

Estonia crime I-II misdemeanour

2. Meaning of classification

- prescription (statutory limitation);- punishment of complicity and attempt;- gravity and kind of punishment;- registration and other consequences;- form of liability;- procedural consequences:

competence;available restrictions to the suspect;proof and surveillance;appeal;

- ...

3. Actus reus

General principle:actus non facit reum nisi mens sit rea.

Actus reus + mens rea = offenceTheory of social protection:availability of other remedies which are not penalties;punishability of complices even without principal offendor's mens rea (psychological element).Actus reus (material element, Tatbestand):material offences (require a damage),formal offences (no damage required).Form and degree of actus reus.

3. Form of actus reus

A) Offences by commission

Theory of equivalence: Theory of adequacy/objective imputation:

Prohibited act

Causation

Result

Risque of damaging

Another actClaus Roxin (1931)

In the case as referred to in the above paragraph, natural persons who have not directly contributed to causing the damage, but who have created or contributed to create the situation which allowed the damage to happen who failed to take steps enabling it to be avoided, are criminally liable where it is shown that they have broken a duty of care or precaution laid down by statute or regulation in a manifestly deliberate manner, or have committed a specified piece of misconduct which exposed another person to a particularly serious risk of which they must have been aware. CPF 121-3(4)

...operative & significant cause of death ...,except if by hazard or too remote... EN

3. Form of actus reusB) Offence by omission

- Simple/pure omissionif the penal law describes omitting a required act;

- Improper omission/commission by omissionif the penal law describes committing a prohibited act,

but it can be committed by omitting a required act.

Section 138 Failure to Report Planned Crimes(1) Whoever credibly learns of the planning or the execution of:1. a preparation of a war of aggression;...at a time when the execution or result can still be averted, and fails to make a report in time to the public authorities or the person threatened, shall be punished with imprisonment for not more than five years or a fine. (GPC)

On the other hand, in Common Law, simple omission offences are rare. There

is no offence in causing death even intentionally by omission (if A sees B

drowning and does not help). However, if there exists some particular duty, A would

be liable for homicide even if A did not push B into water. But this would be

commission by omission.

3. Commission by omission

In German law result most probably caused by wilful omission by somebody obliged to act (guarantor).French law does not recognise the concept.In German law, there are two possibilities:

IN SPECIAL PART OF THE CODE:

Section 225 Maltreatment of Wards(1) Whoever torments or roughly maltreats or, through a malicious neglect of his duty to care for the person, harms the health of a person under eighteen years of age or a person who is defenseless due to frailty or illness, who:1. is under his care or custody;...shall be punished with imprisonment from six months to ten years. (GPC)

IN GENERAL PART OF THE CODE:

Section 13 Commission by Omission(1) Whoever fails to avert a result, which is an element of a penal norm, shall only be punishable under this law, if he is legally responsible for the fact that the result does not occur, and if the omission is equivalent to the realization of the statutory elements of the crime through action.(2) The punishment may be mitigated pursuant to Section 49 subsection (1).

3. Commission by omission

However, if in Germany a director of an enterprise is punished for not fulfilling his guarantor's duties and letting his employees commit offences, then in France the director is punished on the basis of vicarious liability (fait d'autrui).In Common Law responsibility for committer by omission has been applied if familial or contractual duties exist.It has been applied also in Swiss law and Greek, Italian, Spanish and Polish codes.

Article 15. Crime committed by omission When the law requires the occurrence of a certain result in order for an act to be punishable, the non-prevention [of the result] is punished as its commission by an act, if the culpable person who omitted had a particular legal obligation to prevent the occurrence of the result. (GrPC)

3. TASK FOR GROUP

Find from different penal codes examples:- 5 offences by commission;- 4 offences by omission;- 3 offences committed by omission- and determine the degree of offence according to the code.