The Principle of subsidiarity of criminal law as a prerequisite for sustainable criminalization

• MRU CRIS: knygos tekstas

ENAn important feature of the sustainability of the legal system of a democratic state is the compatibility of the legal regulation established by various branches of law. Thus, the pursuit of a sustainable legal framework naturally presupposes the need for legislation to avoid competition and conflict between different legal regulations. With regard to criminal law in the framework of a sustainable legal system, it is essential that criminalization processes do not lead to an unjustified invasion of the normal positive legal relationships that citizens follow in their daily lives. Perhaps every lawyer and any other well-educated person understands that criminalization is a sharp way to solve problems in society, and is associated with intensive restrictions on human rights and freedoms. Intensive criminal law-making and constant retaliatory punishments, based solely on the idea of deterrence, have strong side-effects: overcrowded prisons; and an “army” of convicted, socially excluded and semi-loyal citizens prone to recidivism. Therefore, the need to follow certain restrictive principles in criminal law no longer requires proof. The legal and criminological axiom has therefore become the view that criminal liability, by its very nature, is the last of all possible legal remedies that a democratic society can take against various public wrongs. In the legal debate, it is agreed that a legitimate act of criminalization must be based on evidence of the danger to society of the conduct being criminalized, the importance of the legal good to be protected, and the necessity, effectiveness and utility of criminal liability. Unfortunately, in reality, criminal legislation often does not comply with these provisions. This situation is identified in a number of legal studies that provide various examples of excessive and unjustified criminalization around the world.Thus, the search for principles and criteria for criminalization is still one of the most pressing issues in modern criminal law. The author of this chapter fully agrees with expression that “the application of criminal law always has to rely on a ‘limiting principle,’ lest it grows into a nightmare” (Kaiafa-Gbandi 2011). The following statement is also undisputed: “After all, the more conduct that constitutes a criminal offence (allowing the state authorities to interfere), the more individual freedom is cut back” (Ouwerkerk 2012). There are many examples in legal practice where a poorly grounded criminal law directly affects human destinies. Any under-discussed or ambiguous criminalization can lead to unnecessary criminal proceedings against individuals, and even the fact of judicial acquittal only partially offsets the damage suffered by the artificially accused person. The essence of the question of the restrictive principles of criminalization is revealed by the following statement: “The crucial question for any theory of criminalization is whether latter range of offences really belong within the criminal law: or should they be formally separated off, into a distinct realm of non-criminal ‘regulatory’ or ‘administrative’ violations …” (Duff et al. 2014). During the last two decades, numerous legal texts have been written about the limiting principles of criminalization, and almost all of them state that in reality the legislature often does not follow them (Luna 2005; Ashworth 2008; Husak 2005; Ouwerkerk 2012; Krey and Windgätter 2012; Smith 2013; Vaccari 2014). Therefore, the phenomenon of excessive criminalization and the question of what to do with it is still one of the most pressing problems in modern criminal law.In the vastness of the legal literature, the opposite idea can also be found, namely that there are no convincing and effective principles limiting criminalization and that only deterrence of future crime actually justifies current penal practices (Tadros 2011). This sounds like a kind of pessimistic admission that the theory of criminalization is generally unnecessary, and the legislature has unlimited powers in the field of criminal law, because, as practice shows, all excessive criminalization is based precisely on preventive purposes. In this context, I consider the following expression to be very accurate: Academic writings about criminalization theory should have a purpose beyond our internal discussions: ideally, they should help to make political decision somewhat more rational. Their decisions are mostly based on gut reactions, typically emotional responses to incidents that were reported in the media. … The essential point is to provide structures for thinking about criminalization. (Hörnle 2019) In my opinion, the principles limiting criminalization have not lost their relevance, despite the frequent examples of their being ignored. Even in cases where criminalizing laws are criticized for not complying with the restrictive principles, these principles have nevertheless been the subject of discussion in the legislative process. Thus, the theory of criminalization is slowly performing its function and there is no reason to abandon its further development. There is no doubt that the essential constitutional principles (proportionality of legal remedies, rule of law, protection of human rights, legal certainty, equality, etc.), which naturally limit the use of repressive measures in a democratic state, are also an integral part of the theory of criminalization. [Extract, p. 275-276]