Punishment (penalty), without (?) a crime
Punishment (penalty): The draft law of the Ministry of Justice, in the part that concerns substantive criminal law, aims to “strengthen the crime-preventive function of punishment through the principles of general and specific prevention“.
The following are chosen as means, among others:
- at the level of threat of penalties, the increase in their limits ⸱
- at the level of sentencing, the tightening of the framework of reduced sentences and sentencing rules ⸱
- at the level of imposing sentences, the tightening of the conditions for suspending their execution.
The punishment must be proportionate to the injustice and the guilt of the perpetrator.
The message is addressed both to the general population ( threat of harsher penalties ) and to the specific perpetrator ( imposition and execution of harsher penalties ). The drafter invokes the anti-criminal / punitive function of criminal law: protection of legitimate goods.
The question is whether his choice is limited by the appropriate guarantees in favor of the suspect/accused/convicted person (guaranteed/liberal function of criminal law) or whether the latter (potentially, each of us) is abandoned exposed to repressive arbitrariness.
Criminal science was positioned: at the level of principle, serious cracks are being caused in the liberal penal edifice ⸱ at the level of result, stricter measures have not yielded the expected results in terms of reducing crime.
The perpetrator of a crime displays antisocial behavior , and is punished for it. However, he remains a member of society, with ties to it. He serves his sentence there, to which he returns at the same time or after serving it.
In a democratic state, punishment, due to its harmful, painful and stigmatizing nature, requires legalization (a particularly complex issue), both in terms of its size and type.
The punishment must be proportionate to the injustice (the evil caused by the perpetrator) and his guilt (the antisocial nature he demonstrated with his act). This is also required by the Constitution.
In this case, reforms are proposed that focus unilaterally on the perpetrator and his projected future antisocial behavior. The sentence is disconnected from the actual outcome of the act and the perpetrator’s contribution to its occurrence.
Thus, in the case of an attempted crime, the criticized regulation is reinstated, whereby the court can impose on the perpetrator, instead of a reduced sentence, the sentence provided for the completed act. The possibility of imposing on the (simple, as it is concluded) accomplice the sentence of the perpetrator is also proposed. In both cases, it is sufficient for the court to foresee (with opaque criteria) that the reduced sentence will not prevent the perpetrator from committing other acts in the future.
The concern for the prevention of evil is unfortunately exhausted in the threat, imposition and execution of a greater evil, at the expense of an individual, on the precarious basis of an unverified prognosis regarding its future dangerousness.
The perpetrator is punished once for the crime he commits and a second time because it is assumed (how unknown) that he will repeat it, as if the crime (and evil) is simply a matter of one person’s decision, and not a multifactorial problem (a riddle). The risk of ineffective, disproportionate and unjust punishments becomes visible.
With such sentences, however, the social fabric is not restored ⸱ it is torn apart, as it is torn apart by crime and even more so , and the interventions are revealed to be illegitimate, both as “measures of freedom” and as “measures of protection”, according to the classic saying of I. Manoledakis.
Senior Associate Koumentakis and Associates Law Firm
P.S. A brief version of this article has been published in MAKEDONIA Newspaper (January 7th, 2024).
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