Criminal Law I

Introduction to Law

Dr. Eszter Kirs

Department of International Relations
Place of criminal law
in the system of law

Private Law Public Law

Relationship between Relationship between
individuals the state/government
E.g. law of contracts, and individuals
commercial law, family E.g. administrative law,
law, intellectual property constitutional law, public
law, succession international law, tax law,
criminal law
Fields of criminal law

Criminal
procedure
Substantive
criminal law

Enforcement
of sanctions
Aims of
criminal law
Protection of individual interests
…and the interests of the
community…
…against acts posing a threat to
the society.
Retribution (but not humiliation!)
Deterrence (specific and general
prevention)
Fundamental principles of criminal
law

Rule of law (foreseeability & clarity; principle of legality:

nullum crimen sine lege, nulla poena sine lege)
Justice (rule of law justice; equality before the
law)
Individual criminal responsibility (awareness of the
criminal act’s consequences; intent or negligence; tbc.)
Subsidiarity (crimes v. misdemeanors/petty offences;
pre-trial detention v. house arrest)
Humanity (human dignity)
Other procedural principles: presumption of innocence,
ne bis in idem, equality of arms, etc. (tbc.)
Procedural systems of criminal law
Inquisitorial system
Court active in investigating the
facts, gathering evidences
Primarily states with civil law system
Indictment under the control of the
investigating/examining judge
Parties request investigative
steps
Judge/Judicial chamber
Application of law
Adversarial system
Parties lead the procedure gathering
evidences against/for the defendant
Primarily states with common law
system
Court impartial referee between the
prosecution & defence
Court focuses on issues of law &
procedure
Jury +judge
Creation of law (system of precedents)
Sanctions
Death penalty (Council of Europe:
Protocol No. 6, 1983 to the European
Convention on Human Rights –
prohibition in peacetime &
Protocol No. 13, 2002 – prohibition
under any circumstances)
Imprisonment (absolutely
defined/absolutely undefined/relatively
defined by law)
Fine
Community service
Relevant issues to sanctioning: severity
of crime, aggravating/mitigating
circumstances (individualization of guilt)
Evidences

Burden of proof: prosecution

Beyond reasonable doubt
Types of evidences: witness
testimonies (eyewitnesses, expert
witnesses), documentary evidence,
physical evidence, crime scene
observation
Admissibility
self-defence – preconditions: unlawful act; direct threat (no: threat of future abuse); continuance
of unlawful acts (crime scene not left by the perpetrator, tools of attack kept in hand, etc.);
necessity and proportionality (not considered in case of attacks against life/sexual abuse)

vis major/necessity – exception: certain public servants (e.g. firemen, police officers)

minor age – not juveniles – but best interest of the child in case of both groups!

Grounds for excluding criminal

responsibility
mental disability – excludes/restricts responsibility; mental disease (e.g. manic depression), dementia,
hypnosis, alcoholism (not just state of being drunk!)

force or threat of force – physical/psychological pressure

mistaken belief – about the facts/threat to society; it may not exclude responsibility in general but just
for the specific crime (e.g. bodily injury of a public servant without knowing about the public office);
mistaken belief about the causal link is irrelevant (e.g. strangling a baby upon birth and put into a plastic
bag = murder)

Grounds for excluding criminal

responsibility (cont.)
Certain Amnesty laws („general pardon”)

grounds
for
excluding Presidential pardon

accountab
ility Statutory limitations – difficulties in evidentiary
procedure; excluded in case of international crimes
(1968 NY Convention on the non-applicability of statute
of limitations to war crimes and crimes against
humanity); interrupted by acts of authorities
Elements of crimes

Actus reus

Mens rea
Mens rea
Criminal intent
Awareness: elements of
the crime (e.g. violence
against a public servant =
police officers); and that
the acts impose threats
to the society
Emotial aspect
Will
Types: dolus directus/dolus
eventualis (emotional
aspect)
Negligence
Awareness of the
possibility of negative
consequences of the
acts/no awareness but
lack of responsible action
Consequences not wanted
…not accepted
but hoping for the lack of
negative consequences.
Evidences: e.g. striving for
the prevention
Mens rea
Aim
Desired negative
consequences
E.g. illegal profit (fraud),
intent to wholly or partially
destroy a group of the
society (genocide)
Motivation
Motive behind the
criminal acts which
triggered the action
E.g. bias motivation
(hate crimes)
Example for different
legislations addressing the
same phenomenon: hate
crimes

Elements of crime: base crime + bias

motivation

Commonly protected characteristics:

Gender, gender identity, sexual

orientation, ethnicity, religion, disability,
others…
Discriminatory selection model
Criminal Code of fYROM (Official Gazette of the
Republic of Macedonia No. 114/09) adopted in
September 2009, as of February 2014)
Aggravating circumstances - Article 39(5)
When determining the sentence, the court shall
especially consider whether the crime has been
committed against a person or group of persons or
property, directly or indirectly, because of his/hers sex,
race, colour of skin, gender, belonging to a marginalised
group, ethnic origin, language, citizenship, social origin,
religion or religious belief, other beliefs, education,
political adherence, private or social status, mental or
physical disability, age, family and marital status, property
status, health condition, or any other ground provided in
law or ratified international agreement.
Hostility model

Criminal Code of Serbia ("Official Gazette of the

Republic of Serbia", nos. 85/2005, 88/2005 -
corrigendum, 107/2005 - corrig., 72/2009, 111/2009 and
121/2012)

Article 54a - Aggravating circumstance

If a crime is committed out of hatred towards someone's
race or religion, national or ethnic origin, sex, sexual
orientation or gender identity, the court shall consider
this circumstance as an aggravating circumstance,
unless it has been prescribed as an element of the
criminal offence.
Sui generis crime
(a particular crime in the Criminal Code)

England and Wales Crime and Disorder Act 1998:

Section 29 Racially or religiously aggravated assaults.

(1) A person is guilty of an offence under this section if he commits-

(a) an offence under section 20 of the Offences Against the Person Act 1861
(malicious wounding or grievous bodily harm);
(b) an offence under section 47 of that Act (actual bodily harm); or
(c) common assault,
which is racially or religiously aggravated for the purposes of this section.

Criminal Code of the Kingdom of Netherlands, Act of 3 March 1881

Article 137d - Incitement to hatred and violence
(1) Anyone who publicly, orally or in writing or image, incites hatred or discrimination
against men or violence against person or property on the grounds of their race,
religion or beliefs, their gender, their heterosexual or homosexual orientation or their
physical, psychological or mental, shall be punished with imprisonment not exceeding
one year or fine of the third category.
General penalty enhancement
Criminal Code of Canada (1985, amended 2011)
718.2 - Aggravating circumstances

A court that imposes a sentence shall also take into consideration

the following principles:
(a) a sentence should be increased or reduced to account for
any relevant aggravating or mitigating circumstances relating to
the offence or the offender, and, without limiting the generality of
the foregoing,
(...)
(i) evidence that the offence was motivated by bias, prejudice
or hate based on race, national or ethnic origin, language, colour,
religion, sex, age, mental or physical disability, sexual orientation,
or any other similar factor,
(...)
shall be deemed to be aggravating circumstances;
Specific penalty enhancement
Criminal Code of the Czech Republic (Act No.40/2009
Coll)
§ 140 - Homicide
(1) Whoever intentionally kills another shall be punished by
imprisonment for ten to eighteen years.
(2) Whoever intentionally kills another in cold blood or after
premeditation, shall be punished by imprisonment for twelve
to twenty years.
(3) Imprisonment for fifteen to twenty years or an
exceptional penalty will be imposed on a perpetrator who
commits an act referred to in paragraph 1 or 2
(…)
(g) on another for their real or perceived race, ethnic
affiliation, nationality, political opinion, religion or belief
or real or perceived lack thereof.