Proportionality in Crime Control and Criminal Justice

Emmanouil Billis, Nandor Knust, Jon Petter Rui, Emmanouil Billis, Nandor Knust, Jon Petter Rui

• Publisher: Hart Publishing
• Year: 2021
• ISBN:
  9781509938612
• Edition: 1
• Topic: Derecho
• Subtopic: Derecho penal

This edited volume seeks to reassess the old and to analyse and develop novel approaches to the notion of proportionality in criminal matters and the new security architecture. The discourse is not limited to conventional constitutional constellations and standard problems of sentencing in traditional criminal proceedings. Rather, the book offers an interdisciplinary and cross-jurisdictional exploration of highly topical, proportionality-related issues pertinent to penal theory and legal philosophy, criminalisation policies, security and anti-terrorism strategies, alternative types of justice delivery, and supranational enforcement as well as human rights and international criminal and humanitarian law. In today's global risk society, with its numerous visible and invisible enemies of the state and the individual, balancing freedom and security has become nothing less than an attempt at untying a Gordian knot. Against this background, the proportionality of measures of crime prevention and repression is unquestionably an issue of utmost importance, which basic research and legal policy in rule-of-law based systems are urgently called to address. The timely and fascinating contributions in this book, covering jurisdictions from both the common law and the civil law as well as hybrid and international jurisdictions, will appeal to academics, researchers, policy advisers and practitioners working in the areas of national and international criminal law, comparative criminal justice/criminology and legal philosophy as well as constitutional and security law.

PART I

Conceptualising Proportionality

1

The Typology of Proportionality*

EMMANOUIL BILLIS, NANDOR KNUST AND JON PETTER RUI

This volume is the product of a two-year study on proportionality in crime control and criminal justice, conceived and organised by the Max Planck Society’s Otto Hahn Research Group on Alternative and Informal Systems of Crime Control and Criminal Justice. The book comprises 17 chapters by 21 leading international scholars in the fields of legal theory and philosophy, constitutional and public security law, human rights and humanitarian law, (national, international and supranational) criminal law, criminal justice and criminology. The overall goal is to contribute to the theoretical exploration and practical evolution of the proportionality concept. To this end, the emphasis is on aspects of proportionality that might (or should) serve both as guidelines (in terms of effectiveness and efficiency) and substantial limitations (in terms of human rights and humanitarian grounds) on the use of the legislative, executive and judicial instruments of crime control and criminal justice by individual states and the international community. The first drafts of the papers that form the chapters of this book were presented and extensively discussed during an international workshop convened for this purpose at the Max Planck Institute for the Study of Crime, Security and Law (formerly Max Planck Institute for Foreign and International Criminal Law) in Freiburg (Germany) and co-funded by the Max Planck Society (Otto Hahn Award Programme), the University of Bergen and the Research Council Norway. Drawing on the debates and outcomes of the workshop, the final versions of the chapters were prepared and systematically edited not with the (virtually infeasible) purpose of providing an exhaustive and generally (vertically and horizontally) applicable theory of proportionality. Rather, the shared objective was to raise basic (doctrinal and pragmatic) questions, to identify the colliding dynamics, major obstacles and key challenges and to comprehensively discuss the proposed solutions with respect to the application and enforcement of proportionality criteria and guarantees in contemporary criminal and security matters. It is a common presumption that our modern risk societies are faced with a plethora of visible and invisible enemies. Balancing freedom and security in this globalised (legal) world has indeed turned into nothing less than an attempt at untying a Gordian knot. Against this background, the proportionality of measures of crime prevention and repression is unquestionably an issue of utmost importance, which basic research and legal policy are urgently called to address.

I.Proportionality in Crime Control and Criminal Justice: Challenges and Dilemmas

The editing of the present volume coincided with the outbreak of the coronavirus (COVID-19) pandemic.¹ This novel – even for today’s scientifically and technologically highly advanced societies – situation arose at the same time as recently (re-)emerging (‘cold’ and ‘hot’) wars and their destructive humanitarian and environmental repercussions, large-scale financial crises with international impact, constantly increasing social inequalities, widespread (in many instances, systemic and gravely violent) incidents of racism and xenophobia and the societal responses thereto in the form of massive distrust and protest movements. The unique conglomeration of symmetric and asymmetric challenges for nation states, the international community of nations and the individual and society (majorities and minorities) as a whole has prompted governments and organisations worldwide to reconsider their official priorities and strategies in the fields of socio- and geopolitics, economics, international relations and, not least, security and criminal justice – not always for the advancement of individual and human rights. The resulting universal consequences in almost every field of social life could not but affect our research as well, particularly with respect to basic viewpoints on the issues addressed here. Due to their diachronic importance for liberal states and democratic legal orders, the volume’s main orientation points and thematic questions remained unchanged. This notwithstanding, specific theses and assumptions, especially those debating the relationship between fundamental personal freedoms and security, had to be (implicitly or explicitly) re-evaluated in light of recent developments and setbacks in criminal justice and the global security architecture. Still, in the midst of momentous events of unprecedented global proportions, one insight was reaffirmed: the significance of the proportionality concept for preventing arbitrary coercion, preserving vested human rights and guaranteeing the rule of law.

A.Balancing Constellations: Old and New

The raison d’être of public authority, that is, the safeguarding of freedom and human dignity of all individuals, is best reflected in the notions of the social contract and the rule of law. A fundamental negative obligation of liberal rule-of-law states and international communities is to limit official (coercive) conduct that restricts human freedoms and poses a direct threat to human dignity. This is mainly achieved by incorporating the (constitutional) definition of individual and human rights into the law. At the same time, modern democratic states and institutions have the positive obligation to actively guarantee the unobstructed exercise of these rights. As a result, they are often required to implement security and coercive measures so as to prevent risks that might compromise freedom and human dignity and to protect the public from harm threatened from within and/or from outside a specific area. The control of crime is one major challenge in this respect. The administration and delivery of criminal justice is another: in addition to the provision of preventive instruments of crime control it is also necessary to maintain operational law enforcement and judicial systems geared to providing an effective and fair response to serious infringements of freedoms, individual rights and collective legal interests by other individuals and entities.

Individual freedoms and human rights guarantees, effective security and prevention mechanisms and operational justice systems may very well be essential in maintaining social peace. But there are two faces to Janus: the positive obligation to actively protect freedom and human dignity often clashes with the negative obligation to safeguard people’s fundamental rights from institutional interferences. Thus, positive and negative obligations must be constantly weighed and measured against each other. How to arrive at the proper balance is the most difficult question driving pertinent legal research and policy.² In contemporary legal systems the competing interests may be balanced at three different levels: the legislative, the executive (administrative/law-enforcing) and the judicial. In search of adequate weighing tools and factors, the application of so-called proportionality tests has been extensively explored in the field of constitutional law,³ whereas in the fields of crime control and criminal justice the scope and limits of the proportionality concept have attracted less doctrinal analysis (save for sentencing issues)⁴ or empirical attention.⁵

Its importance not only for individual subjects but also for the systemic integrity of law enforcement and criminal justice cannot be historically denied,⁶ but the notion of a proportionate balancing of interests is only one of the many factors which the three branches of public power are called to consider and weigh against each other when designing, applying and enforcing measures of security and crime repression. Although equally difficult to define and verify (at least in empirical terms), a higher-profile concept is that of effectiveness. Ever-present in policy programmes and socio-legal debates, effectiveness constitutes an essential part of contemporary crime control strategies, conflict resolution mechanisms and sanction models. Two different ways to examine the effectiveness–proportionality relationship in this context are as a dipole, on the one hand, and as interdependent concepts, on the other. Depending on one’s perspective, proportionality can indeed be viewed as being at odds with, setting limits on, or presenting obstacles to the effectiveness of crime control and criminal justice instruments. A more analytical approach, however, suggests that effectiveness actually depends on the proportionality (suitability, necessity and appropriateness) of measures pursuing legitimate aims of criminal policy, and that effectiveness is itself an integral element of proportionality.⁷ According to another opinion, the question whether effectiveness and proportionality are in conflict with each other should not be given so much weight. To some extent, particularly in terms of the necessity and appropriateness of the measures at hand, effectiveness and proportionality can be in conflict, and, occasionally, it might appear inevitable to sacrifice one value over the other. Setting aside any symptomatic political eagerness to advertise and promote effectiveness, however, following this approach, balancing and evaluating should be focused on efficiency rather than the (supposed) effectiveness of crime control and criminal justice measures; in this case efficiency includes (and, thus, cannot conflict with) proportionality.⁸

Different notions of the balancing processes and the relationship between proportionality and other policy goals may lead to different strategies as to how to configure or reconfigure crime-fighting techniques. Yet, a common prerequisite of, and simultaneously a further challenge for, operational crime control and criminal justice systems is the continuous identification and evaluation of the pragmatic dilemmas faced by legal orders and societies in terms of safeguarding and, in times of conflict, prioritising fundamental norms and values. Traditional risks include potential collisions of rights of different persons as well as of individual and societal interests, notably those concerning personal freedoms, on the one hand, and individual or collective (subjective or objective)⁹ security, on the other. It is an undisputed achievement of liberal legal orders that, at least in theory, they have been reserving the use of criminal law, punishment and other powerful coercive instruments – supposedly the most effective and efficient¹⁰ tools of enforcement and conflict resolution – as a response only to the most severe (types) of infringements in this context and, for that matter, have been equipping citizens with sufficient rule-of-law guarantees against the arbitrary exercise of institutional powers. In this sense, the criminal law principle of ultima ratio is based, inter alia, on notions of proportionality, leniency and justness; in turn, proportionality encompasses the idea of ultima ratio.¹¹ Of key importance in this regard is the acknowledgment that, today more than ever, liberties must be safeguarded and people must be kept safe not only from crime but also from ‘evils that emanate from the state itself’.¹²

These observations are also significant with respect to newly emerging and less traditional risk constellations. Characteristic examples involve polemic labels such as ‘war on terror’ and ‘invisible enemies’. Such phenomena may refer to anything, from international terrorism, terrorists in the making, financiers and ideological supporters of terrorism, to the imperceptible structures of (transnational) organised crime and money laundering, to the sophisticated and virtually untraceable cyberattacks against economic establishments and state institutions. In response to these latest kinds of threats, governments, international organisations and cooperating priva...