Criminal Law: Theories of Punishment, Security Measures, and Legality Principle

Theories of Punishment

Penalties are aimed to rehabilitating the offenders. The reality of our prison system is characterised by a persistent overcrowding. Because of the lack of resources, both personal and funds, the reeducation of convicted is impossible. The Italian constitution used to refer to prisoner considering them the most vulnerable human being because of their situation of limitation of liberty. Many times it is ignorance itself that becomes It is crucial to understand that the recognition of prisoners rights and also the protection of those rights is truly a recent conquest in Italy, it is only with the reform of 2018 that the Italian law maker finally provides the existence of fundamental rights belonging to the inmates.

Art.1 P.4 of the penitentiary law states that inmates need to have fundamental rights, even tho their existence was not doubted before 2018. The existence of rights belonging to inmates were not in conflict with the deprivation of liberty, as being implicitly provided by penitentiary law itself, since 1975. It was indeed this law that marked a turning point, until that time the prisoner was a passing subject of the will of the penitentiary administration. After that time the relationship becomes bilateral and prisoners become really truly right holders. The guarantor of inmates rights protects the right with the surveillance judge, or known as the judge of the legality of penalty during its execution. Powers for protecting inmates rights are really different, especially the surveillance judge has the power to impose provisions on the penitentiary administration aimed at eliminating any violation of the right of the convicted person, while the guarantor has no authoritative powers at all.

Art.67 provides the inspectors power to make a authorised entry into prison, this power of inspection belongs to the civilian judge and the guarantor.

Art.18 of the penitentiary law provides for both to conduct confidential interviews with inmates. The task of guarantors is basically to make reports, with respect to rights violations found. The only power they have is the one of the inspection provided by article 66. Apart from this power of inspection the guarantor doesn't have any authoritative power, therefore the job of a guarantor can be frustrating depending on the willingness of the recipients of the reports to take them into consideration or not.

Those violation are to be sent to the director of the prison or the commander of police, it also happens to report them to the central administration, and this happens when the issue affect all the inmates at the national level (case of the recent medium security reform, in the first period of detention inmates must always remain locked in their cells except for air hours and treatment activities -> previously they could walk freely during the daytime on the section corridor). At the national level there are two subject in charge of protection: guarantor, surveillance judge. The judge (art.69) can give requirements to the penitentiary administration aimed at elimination violations of inmates rights. The doctrine defined as a multilevel protection system, besides these two the European court of human rights plays a special role. It has pronounced important ruling asserting violations of art.3 of the European convention of fundamental rights.

Art.3 FR -> prohibition of inhumane and degrading treatment and punishments and the prohibition of torture. The provisions of art.3 doesn't expressly refers to them, stating no one shall be subject to torture or to inhuman or degrading treatments or punishments. The ECHR has interpreted the article more and more broadly over the time. From the case Cudla v. Poland of 2000 also with specific reference to the condition of detention.

The ECHR claimed the violation of the article due to the overcrowding situation, which characterised our prison system. This is what happened in the well known case Torregiani v. Italy (the name comes from the applicant who presented appeal to the ECHR) of 2013, in this case Italy has been convicted by the court for violation of art.3, especially regarding the part of prohibition of inhuman and degrading treatment. This ruling was a pilot judgement, the situation of overcrowding has been considered by ECHR as structural in our country, so it doesn't affect only the applicants but the Italian prison system considered as a whole. The consequence of a pilot judgement is the obligation for the state party to solve the problem complained and not only to compensate the claimants.

Art.27 P.3 of the Italian Constitution states the principle of humanisation of penalty or the prohibition of punishments consisting of treatments contrary to humanity. The prohibition of penalty consisting in inhuman treatment. With reference to the principle of reeducation it is important to emphasise that the principle must however be understood in a liberal sense that is reeducation treatments shouldn't be imposed against the will of the offender, but should instead be chosen by the convicted person with free consent. The offender has to choose the path of reeducation.

Defining a Criminal Offence

• A crime is an unlawful behaviour to which corresponds a penalty
• An unlawful behaviour provided by the law to which corresponds a penalty
• This is a formal definition of criminal offence.

A conduct can be positive, active, or a failure to act, an omission. The general theory of crimes tells us when there is a crime. There gonna be a crime if we can prove the objective part but also the subjective part. The difference between civil law and common law liability is of the penalty.

What defines criminal law is first of all penalty which if compared with all the other sanctions provided by the other branches of the legal system, is the most afflictive, because the criminal law system is the only one that can affect liberty of the individual. In the Italian Criminal Code the deprivation of liberty can be effective but also potential: effective when I am referring to life in prison as a sanction (deprivation of liberty for the entire life of the convicted person), but also imprisonment meant as a temporary penalty. This deprivation of liberty can also be potential: this happens for example with pecuniary penalties, as a consequence of unpayment can be converted into unpaid work, home detention or semiliberty or daily deprivation of liberty (you spend the night time inside the prison and you are allowed to get out in the daytime -> in Italy it is conceived as an alternative measure). The semiliberty can be also conceived as a converted sentence when the person is sentenced to a peccary penalty but not different reasons this convicted person doesn't to pay, and if this happens hat pecuniary penalty is converted into unpaid work, semiliberty or home detention, and finally the violation of the conversion sentence can end with the deprivation of liberty.

In Italy criminal offences are divided into felonies or misdemeanours or contraventions. It could happen to find the term crime used for both (crime as synonym of criminal offence, that includes both). This distinction from a substantive perspective is based on the seriousness of the offence, while on a formal perspective it depends on the type of punishment. The content of the sanction is the same which is the privation of liberty on one hand or the order to pay a sum on the other, the names used by the Italian legislator in the Criminal law Code are different.

Art.17 distinguished between imprisonment for felonies and arrest for contraventions. From the perspective of the content is always deprivation of liberty, but in art.17 there is the distinction of the sentences provided by the Italian Criminal Law Code regarding first of all felonies and then contraventions. Art. 17 makes reference to the payment of a sum mention "multa" and for contraventions "ammenda" (always translated into fine).

The content of the sentence is quite the same.

Legal Source of Criminal Law

The other fundamental element which has to be considered to give a full definition is the legal source of a crime. Italy belongs to the tradition of civil law countries, where the principle of legality in criminal law ,

Criminal law

Theories of punishment

1. Theories of punishment
2. First Question
3. The legal source of criminal law
4. Art. 7 HCHR: No punishment without law
5. The concept of criminal offence
6. The concept of law
7. The definition of penalty
8. Del Rio Prada v. Spain
9. What is criminal law for?
10. Why do we punish criminals?
11. Restorative justice
12. Retribution
13. Classic School
14. PP: "On Beccaria and the Categorical imperative of Punishment"
    1. Beccaria's perspective
    2. Kantian view
15. PP "The Death Penalty"
16. Characteristics of punishments
17. PP: Kant and Capital Punishment Today
18. PP: The general preventive effects of punishment
19. Art. 133 of the Italian Criminal Code
20. General prevention
21. Special prevention
22. Theories of punishment in the Positivist School
23. PP: The rehabilitation role of punishment in prisons in Italy
24. Purposes of punishment and different phases

Classification of Crimes and Penalties in Italy

1. Classification of crimes and penalties in Italy
   1. The Italian criminal code distinguishes different categories of punishment:
   2. Criminal offences are divided in two different categories:

1

3

Page 1 of 56

1. Criticism of retribution in general
2. Art.17 principal penalties:
3. Art.18: Name and classification of principal penalties
4. Principle penalties:

40

1. Pecuniary sentences:
2. Alternative Measures

Security Measures

1. Security Measures
   1. Double track
   2. Security Measures
   3. The crisis of the double track
   4. Examples of Security Measures for offenders incapable of understanding and willing
   5. Security Measures
   6. General Theory of Crime

Principle of Legality

The Principle of Legality and Its Corollaries at the national and supranational levels: a focus on the principle of non-retroactivity in the Council of Europe, the European Union, and before International Criminal Court or tribunals.

Domestic Legality Principle

The Principle of Legality at the domestic level

The Guarantee Function of the Principle of Legality

Principle of Legislative Exclusivity (Riserva di Legge)

Corollaries of the Principle of Legality in Criminal Law

The Principle of non-retroactivity at the domestic level

Supranational Legality Principle

The principle of Legality at the supranational level ... in the Council of Europe

Case of Scoppola v. Italy (no. 2)

The principle of Legality at the supranational level ... in the European Union

The principle of Legality at the supranational level ... before international criminal courts or tribunals

Page 2 of 56