AIC_2006

ANNALES

INTERNATIONALES DE CRIMINOLOGIE

INTERNATIONAL ANNALS OF CRIMINOLOGY

ANALES

INTERNACIONALES DE CRIMINOLOGIA

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ANNEE 2006 (volume 44-1/2)

‘ $ÔCI_ÉTÉ INTERNATIONALE DE CRIMINOLOGIE

Ministère de la Justice

12, rue Charles Fourier

75013 — Paris

phone

33.(0)1.45.88.00.23

fax : 33.(0)1.45.88.96.40

e-mail

crim.sic@wanadoo.fr

web site

http://perso.wanadoo.fr/societe.internationale.de.criminologie

ANNALES INTERNATIONALES

DE CRIMINOLOGIE

Organe officiel de la Société Internationale de Criminologie

Président de la Société : Tony PETERS (Belgique)

Secrétaire général de la Société : George PICCA (France)

COMITÉ DE RÉDÀCTION DES ANNALES

Rédacteur en chef

Prof. Georges KELLENS (Belgique)

Rédacteurs Associés

Prof. Edmundo Oliveira (Brésil)

Prof. Louise Shelley (USA)

Prof. Setsuo Miyazawa (Japon)

La redacciôn agradece a la Dra. Maria Jesûüs Guardiola Lago su

colaboracion en la traducciôn de los textos en castellano.

The editors want to thank Dr. Maria Jesûüs Gardiola Lago for her

assistance in Castilian.

Merci à Maria Jesuüs Gardiola Lago, post-doctorante, pour son aide

en castillan.

Table de matières

Table of contents

Indice

Cybercrime : a new frontier for criminology

Emilio C. Viano

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Co-operation and law enforcement to counter organized crime

in the Common Market Countries of South America — MER-

COSUL

Edmundo Oliverra

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23

Fight against the organized crime

Fernando Tourinho Neto

34

The Academic Status of Criminology. Stockholm, June 15,

2006. À first general outline for the programme of the 2008

World Congress of Criminology in Barcelona (Spain)

Tony Peters

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53

La libertad en la sociedad del miedo

Esther Giménez-Salinas 1 Colomer

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64

Homicides committed for honour. The case of Turkey, Swe-

den and Germany

Füsun Sokullu-Akinci

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81

The public opinion and the experts’ views on restorative jus-

tice

Klära Kerezsi

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102

Weapons and violence among male delinquents : an interna-

tional comparative study

Patricia G. Erickson, Jennifer E. Butters, Dirk J. Korf, Lana

D.Harrison, Marie-Marthe Cousineau, and the Drugs, Alco-

125

hol and Violence International [DAVI] team

— 5 —

AVANT-PROPOS

Ce numéro des Annales est consacré, d’une part, à certaines activités

de la Société (le Cours international de Buenos Aires de 2006, et le pro-

chain Congrès à Barcelone en 2008), d’autre part, à certaines préoccu-

pations de recherche de membres des organes directeurs de la Société.

FOREWORD

This issue of the Annals is dedicated to activities of the Society (the

2006 International Course in Buenos Ayres, and the next Congress in

2008 in Barcelona), and, on the other hand, to scientific concerns of

members of the Boards of the Society.

PROLOGO

Este nûmero de los Anales se ha dedicado, por una parte, a algunas

actividades de la Sociedad (el Curso internacional en Buenos Aires de

2006 y el prôximo Congreso en Barcelona en el 2008) y, por otra parte,

a algunas preocupaciones de investigaciôn de los miembros de los ôrga-

nos directivos de la Sociedad.

_7—

AVANT-PROPOS

Ce nouveau numéro des Annales Internationales de Criminologie

rend compte notamment, du 69° Cours International qui s'est déroulé

du 7 au 9 septembre 2006 à Buenos Aires (Argentine). Il avait pour

thème «Une politique criminelle pour le Mercosul». Rappelons que

dans diverses régions du monde des Organisations regroupent plusieurs

États en vue de développer des politiques communes face aux nouveaux

défis de la criminalité organisée transnationale. Il en est ainsi, de l’Orga-

nisation régionale du Mercosul qui regroupe les États du sud de l’Amé-

rique à la suite du Traité d’Asunciôn de 1991 .

Ce Cours a réuni plus d’une centaine de participants universitaires,

magistrats et juristes, principalement de la République Argentine et du

Brésil. Il a été l’occasion rendre hommage à l’œuvre du Prof. Eugenio

Raul Zaffaroni, élu membre de la Cour Suprême de Justice de la Répu-

blique Argentine.

C’est à l’initiative du Prof. Edmundo Oliveira, vice président de la

Société Internationale de Criminologie pour la région que ce nouveau

Cours International a été organisé. Il a bénéficié du concours actif de

nombreuses personnalités parmi lesquelles le Prof. J.E. Carreira Alvim,

juge fédéral du Brésil et Madame

Maria Teresa Cäârcomo Lobo, Coordinatrice général de l’IPEJ de Rio

de Janeiro (Brésil).

Les travaux du Cours, ont été animés par de nombreux experts de

l’Argentine, du Brésil, mais également européens et nord américain,

parmi lesquels outre le Prof. José Luis de la Cuesta, Président de l’Asso-

cilation Internationale de droit pénal et Directeur de l’Institut de crimi-

nologie de l’'Université du Pays Basque (Espagne) qui a présenté un rap-

port consacré à l’application des aux droits de l’'homme dans les

politiques criminelles, le Prof. Emilio Viano de l’Université de Washing-

ton (USA).

Au cours de la séance de clôture, un hommage public a ëté rendu au

Prof. Eugénio R. Zaffaroni. Le secrétaire général, au nom de la

Société Internationale de Criminologie, lui a remis une médaille commé-

morative. Il a également remercié le Prof. Edmundo Oliveira et le Prof.

Carreira Alvim coordinateur exécutif du Cours pour l’organisation,

pour leur accueil et cette nouvelle manifestation, de l’activité et de

() Voir A. ALVAREZ : L'internationalisation du droit pénal : l'exemple du Mercosul (Revue

de Science criminelle et de droit pénal comparé, n° 4, oct. 1999, 1 vol., Paris).

_ 9

l’audience de la Société Internationale de Criminologie en Amérique

Latine.

Dans la perspective de l’organisation du prochain Congrès mondial

de la Société qui aura lieu à Barcelone (Espagne) en 2008, on trouvera

également dans ce numéro la présentation du Prof. Tony Peters, Prési-

dent de la Société, au Colloque de Stockholm (15/17 juin 2006), ainsi

que plusieurs études pour lesquelles nous remercions leurs auteurs.

— 10 —

CYBERCRIME : A NEW FRONTIER

FOR CRIMINOLOGY

Emilio C. Viano “

ABSTRACT

The rapid introduction worldwide of information and communica-

tion technologies and their corresponding applications is bringing about

profound changes in our societies, economies, and legal systems affect-

ing the way we live, learn, interact socially, do business and govern our-

selves. The market driven transition to cyberspace or the online world,

the planetary artifact of the global information economy and society, 1s

revolutionizing not only business and commerce but also privacy, the

collection, use and misuse of personal and consumer data, and the activ-

ities of white collar criminals who are utilizing new technologies to com-

mit old crimes in new ways. One of the most important consequences

of the online world 1s the creation of a digital person based on data con-

stantly collected on everyone active in society, especially as a consumer,

investor, and worker. The potential for manipulation of who we are and

for identify theft is high and the consequences disastrous, difficult and

expensive to correct. This article examines the main issues stemming

from these revolutionary changes especially as they affect criminal law

and the administration of justice. In particular it focuses on the Cyber-

crime Convention as an international tool responding to these issues and

needs. The article concludes with a call for criminology to take a lead

in addressing these rapidly changing situations so as to demonstrate

once more its usefulness and timeliness in helping identify and solve

society's pressing crime problems.

+

DEFINING CYBER OR COMPUTER CRIME

The term “cybercrime” or “computer crime” was first introduced in

the late 1990s as the use of the internet expanded dramatically especially

in North America. The so-called G-8 Group“) at a meeting in Lyon,

( American University. Washington DC.

() Fhe Group of Eight (G8) consists of Canada, France, Germany, Italy, Japan, Russia,

the United Kingdom, and the United States. Together, these countries represent about 65%

of the world economy. The hallmark of the G8 is an annual political summit meeting of the

heads of government with international officials, though there are numerous subsidiary meet-

ings and policy research.

— 11 —

France established the G8s Group on High Tech Crime to study the

emerging criminal problems connected to the growing use of the inter-

net. This “Lyon group” used the “cybercrime” term to describe in a

rather imprecise way all crimes committed on the internet or through

new networks of telecommunications sprouting up in part because of the

lowering of telecommunications costs.

At the same time, with the input of the countries participating in the

work of the Lyon group, the Council of Europe did formulate the

Cybercrime Convention . On November 23, 2001, in Budapest, Hun-

gary, 30 countries, including the United States, signed the Council of

Europe Cybercrime Convention, the first multilateral instrument drafted

to address the problems posed by the spread of criminal activity on

computer networks. The Cybercrime Convention will require parties to

establish laws against cybercrime, to ensure that their law enforcement

officials have the necessary procedural authorities to investigate and

prosecute cybercrime offenses effectively, and to provide international

cooperation to other parties in the fight against computer-related crime.

It includes an array of different computer related offenses in its substan-

tive criminal law provisions ®. For instance, one section on “computer-

related offenses” is subdivided into articles on computer-related fraud

and computer-related forgery‘*’. However, the Convention does not spe-

cifically define cybercrime.

The challenge ©) in defining “cyber or computer crime” arises partly

because computers can serve many different roles in criminal activi-

ties‘°). They can be the “object” used to commit the crime, the “target”

of the criminal activity, or tangential to the crime. Further, the widely

( The convention (CETS No. 185) was opened for signature in Budapest on November

23, 2001. The number of signatures not followed by ratification as of October 16, 2006 1s

29; the number of ratifications, 17. Of the major Western European countries, only France

has ratified the Convention. Countries not members of the Council of Europe that have rat-

ified the convention are Canada, Japan, Montenegro, South Africa and the United States

(September 9, 2006).

C The Convention on Cybercrime includes sections on “Offenses against the confidenti-

ality, integrity and availability of computer data and systems”, “Computer-related offenses”

“Content-related offenses”, and “Offenses related to infringements of copyright and related

rights”. Each of these categories also includes subsections.

(4) Ellen S. FopGor, “International Computer Fraud : A Paradigm for Limiting National

Jurisdiction”, 35 U.C. Davis L. Rev. (Jan 2002), 273.

(°) Pamela SAMUELSON, “Five Challenges for Regulating the Global Information Society”.

pp. 316-330 in Christopher T. MARSDEN (editor), Regulating the Global Information Society.

London and New York : Routledge.

(6) Ellen S. PopGoR, “Computer Crime”, in Encyclopedia of Crime & Justice 221-28

(Joshua Dressler, ed., 2nd ed. 2002); see also Scott CHARNEY & Kent ALEXANDER, “Computer

Crime”, 45 Emory L.J. 931, 934 (1996) (discussing how computer can be “target of the

offense”, “tool of the offense”, or “incidental to the offense”); Joe D. WuiTLEy & William

H. JORDAN, “Computer Crime”, E-/! ABA White Collar Crime Inst. 21.01[1], at 21-3 to 21-

6 (1999) (describing how computer can be “object, subject, or instrument of a crime”).

— 1n -—

different criminal conduct associated with computer crimes provides an

endless list of activities that can be encompassed within the term “com-

puter crime”. For example, computer crimes can include crimes involv-

ing pornography, auction fraud, telecommunication fraud, copyright

and piracy offenses, online extortion plots, identity fraud, hacking‘”,

cyber terrorism, cyber squatting (or abusive registration of a domain

name)‘#’ and cyber stalking. Many of these crimes are traditional

offenses that are now being committed by using a computer.

The perpetrators, victims, and motives can also vary considerably in

computer crimes. For example, one offender may be a young hacker

intent upon demonstrating his or her abilities to break into a govern-

ment or business security system. Then again, the offender may be a ter-

rorist breaking into the same system for the purpose of destroying or

disabling a government, a business or a military entity.

It should not be automatically assumed that criminal conduct that

exploits cyberspace represents a totally new phenomenon, that 1s,

“cybercrime.” It may simply mean that perpetrators are using cyber-

space to engage in conduct that has long been outlawed. The develop-

ment of the telephone, radio and television, for example, all made it pos-

sible to perpetrate fraud in new and different ways, but fraud itself has

been a crime for centuries‘?. If cyberspace is simply a new medium

being used to commit traditional crimes, then it is unnecessary to create

a separate category of cybercrimes and develop specialized legislation to

deal with them. Existing laws should be sufficient to do so. For exam-

ple, law has for a long time made it a crime to intentionally cause the

death of another human being“”. In most cases, contemporary law

( The “hacker” who engages in the computer activity with a criminal intent to cause

damage is often described as a ‘“cracker”. See Eric J. SINROD & William P. ReiLYy, “Cyber-

crimes : À Practical Approach to the Application of Federal Computer Crime Laws”, 16

Santa Clara Computer & High Tech. L.J. 177, 181-83 (2000).

(8) World Intellectual Property Organization, The Management of Internet Names and

Addresses : Intellectual Property Issues. Geneva : WIPO, 1999, p. 45-47.

° See, e.g., William BLACKSTONE, “Commentaries on the Laws of England : Of Public

Wrongs” 168: Bouvier's Law Dictionary (1856) (defining fraud). In the U.S., States have, of

course, adopted statutes specifically outlawing the use of the telephone or radio to perpetrate

fraud. See, e.g., Ohio Rev. Code $ 2913.05(A). The Ohio statute states : “No person, having

devised a scheme to defraud, shall knowingly disseminate, transmit, or cause to be dissemi-

nated or transmitted by means of a wire, radio, satellite, telecommunication, telecommun:-

cations device, or telecommunications service any writing, data, sign, signal, picture, sound,

or image with purpose to execute or otherwise further the scheme to defraud.” /d.

(10) See, e.g. Cal. Penal $ 187 (“Murder is the unlawful killing of a human being, or a

fetus, with malice aforethought”); see also Tex. Penal Code $19.01(a) (1994) (“A person com-

mits criminal homicide if he intentionally, knowingly, recklessly, or with criminal negligence

causes the death of an individual”); see also Ariz. Rev. Stat. $ 13-1101(2) (2000) (‘*Homicide’

means first degree murder, second degree murder, manslaughter or negligent homicide”).

According to English law, the actus reus of homicide is that the accused must have unlaw-

fully killed a human being. Homicide Act 1957, s. 1.

— 13 —

defines this generically as homicide rather than to create different vari-

eties of homicide depending on the method used to cause death. In other

words, ordinarily there is no distinction in criminal law among method-

specific crimes like “homicide by firearm”, “homicide by poison”, “hom-

99 «c

icide by beating

9

homicide by stabbing”, and so forth“!"). Instead, the

focus is on the harm that results from a specific conduct, such as con-

duct intended to cause the death of another person. Criminal law then

defines an offense that includes that harm“”. One could argue that

what we presently call “cybercrimes” represents nothing more than the

use of a particular method and tool — for example, crime by computer

and cyberspace — to perpetrate crimes that have long been listed in crim-

inal law“*). The many activities that can be associated with computer

crimes indicate that one should focus on the act of the perpetrator and

simply consider the computer the medium used *.

Thus at the beginning there was considerable confusion. The term

cyber or computer crime was being applied to old types of criminality

like the distribution of pornographic material on the internet that was

violating some, but not all, laws of different countries prohibiting unac-

ceptable pornography and sexually oriented material exploiting children

and women. The fact that the internet does not have frontiers facilitated

the distribution of these materials at the international level, at times

without leaving any traces of who the author was.

Another type of cybercrime is the illegal penetration of computer-

based databanks and systems or computer piracy which in many coun-

tries was not yet a crime just a few years ago.

One of the goals of the Cybercrime Convention was to establish uni-

form legal provisions that should be included in the laws of the coun-

tries signing and ratifying the treaty so that this new type of criminal

activity can be fought against with better coordination and mutual

assistance.

Another area that has attracted a lot of attention, controversy and

activity is internet gambling. There is no unified position of different

countries on gambling. While attempts to outlaw internet gambling are

( There are, of course, exceptions to this principle, one being the crime of vehicular

homicide.

((2) Harry RasaK, “Legal Pathology and the Challenges of Cyberspace Transactions”

pp. 145-161 in Toshiyuki KoNno, Christoph G. PAauLUS and Harry RasaK, Selected Legal

Issues of E-Commerce. The Hague : Kluwer, 2002.

(13) Susan W. BRENNER, “Is There Such Thing as ‘Virtual Crime?”, 4 Cal. Crim. Rev. 1,

para. 10-12.

(14) See, e.g., Bruce P. KELLER, “The Game’s the Same : Why Gambling in Cyberspace

Violates Federal Law”, 108 Yale L.J. 1569, 1575 (1999) (“There is nothing unique about

Internet gambling that should lead the federal government to abandon its traditional protec-

tive role in this area ….”)

— 14 —

often portrayed as measures to protect public morality and especially

minors who might be able to access gambling through the internet and

become addicted to it, many developed countries rely on the income of

legal gambling, including state-run lotteries, to provide funds for the

country's general budget and support tourism-based economies in gam-

bling destinations. For these countries the success of virtual gambling

competition was and is a major concern. For example, placing bets over

the Internet has now been effectively criminalized by the United States

federal government to eliminate an activity pursued by up to 23 million

Americans who wagered an estimated $6 billion in 2005. Attached to a

port-security bill signed by President Bush on October 13, 2006, the

Unlawful Internet Gambling Enforcement Act prohibits online gamblers

from using credit cards, checks and electronic-fund transfers to place

and settle bets ‘15).

DATABANKS AND CRYPTOGRAPHY :

TENSIONS

BETWEEN SECURITY AND CIVIL LIBERTIES

Before the Cybercrime Convention was presented to public opinion,

civil libertarians in the world were busy opposing domestic laws and

policies that introduced the obligatory retention of data on citizens and

the storage of data on the use of telecommunications and the internet

on the part of citizens, justified by the need to investigate crimes and by

the need to combat and prevent terrorism.

The retention and storage of data on individuals was part of a pack-

age of controls introduced in the United States by the FBI around 1992

to fight crime on the “information superhighway” as the internet was

described then. During the 1990s internet activists, technical experts,

and private enterprise did succeed in uniting to fight against the impo-

sition of controls on cryptography, including depositing decoding keys

with the government ". Governments wanted a copy of every decoding

key so as to be ready to combat more easily criminal activity, Originally,

cryptography was a field mostly for military experts and national secu-

rity purposes but civilians steadily became more involved and cryptog-

raphy was more and more publicly used. This confrontation lasted for

(15) “Internet Gambling, Port Deals Reached”, by Jonathan WEISMAN, Washington Post,

Saturday. September 30, 2006; Page A08; “Bush Signs Port-Security, Internet Gambling

Bill”, The Associated Press, October 13, 2006; “Gambling Online Faces Collapse in US After

Senate Ban”, by Dominic WaLsH, The Times, October 2, 2006.

(16) For a comprehensive review of United States’ policy, international initiatives on cryp-

tography and a country by country guide to encryption regulation, see Stewart À. BAKER and

Paul R. HURsT, The Limits of Trust : Cryptography, Governments, and Electronic Commerce.

The Hague : Kluwer, 1998.

— 15 —

several years. On the one hand it 1s true that corrupt management can

cover up crimes, like drug trafficking, money laundering or fraud,

through cryptography. On the other hand private companies have a

legitimate interest and need to protect themselves“!”) from industrial

espionage and criminal manipulations by using a strong system of cryp-

tography . In the end, the United States and other countries softened

their position on this at about the same time that the Cybercrime Con-

vention was being prepared. Regardless, during this time the climate

between internet activists and the experts was marred by distrust

because of the various actions governments took trying to block privacy

and encryption on the internet. À major struggle for power had begun

between the government that wanted to read everything that was trans-

mitted over telecommunications networks, and especially the internet,

and individuals, supported by civil liberties groups, who did not believe

that the government was really protecting them“°. On the contrary,

they thought that governments were attempting to take control at the

beginning of this new era of information and create strict programs of

surveillance that would proliferate and threaten citizens’ civil and con-

stitutional rights. This policy of governmental control has increased,

especially since September 11, 2001 and 1s generally justified by the fight

against terrorism.

CYBERSPACE AND CYBERCRIME

So, what is cyber or computer crime? But first, what is cyberspace?

This word was coined by the science fiction writer William Gibson ‘?°

(7) Robert C. DORR and Christopher H. MUNCH, Protecting Trade Secrets : Patents,

Copyrights, and Trademarks. New York : Wiley, 1990.

(18) On September 8, 1995, the Council of Europe approved a recommendation to limit

strong cryptography in its member states. The Recommendation of the Committee of Min-

isters to Member States Concerning Problems of Criminal Procedure Law Connected with

Information states :

‘

‘…ÔAuthorities should have the power to order persons who have data

in a computer system under their control to provide all necessary information to enable

access to a computer system and the data herein. Criminal procedure law should ensure

that a similar order can be given to other persons who have knowledge about the func-

tioning of the computer system.…. Measures should be considered to minimize the negative

effects of the use of cryptography on the investigation of criminal offenses...” R (95) 13

of the Committee of Ministers to Member States Concerning Problems of Criminal Pro-

cedure Law Connected with Information Technology. Adopted by the Council of Ministers

on September 11, 1995.

(19) Cryptography and Liberty : An International Survey of Encryption Policy, Electronic

Privacy Information Center. Washington DC 1999.

(20) Willlam Ford Gibson is an American-born science fiction author resident in Canada

since 1968. He has been called the founder of the cyberpunk subgenre of science fiction. Gib-

son did not view cyberspace as an autonomous place but rather as a “consensual hallucina-

tion” in this world.

— 16 —

in 1982. It was applied to the internet by Howard Rheingold “ and/or

by John P. Barlow“?’. It rapidly became a popular way to describe this

new infrastructure of communications *. Cyberspace is perceived as an

emerging invisible, intangible world of electronic information and proc-

esses stored at multiple interconnected sites with controlled access and

many possibilities for interaction 7#. But at times we forget that cyber-

space does not exist. What exists is a network, servers and electronic

machines. Internet communications are ephemeral, liable to easily dis-

appear. There 1s a certain fragility in the relationship of an individual

and his or her computer and e-mail programs. Who has not lost a doc-

ument by forgetting to save it properly and regularly as the work

progressed? Who has not lost e-mail messages and other documents

because of a computer or program error and failure? But it 1s also true

that a well-trained investigator with appropriate forensic tools can find

and reconstruct practically everything. This because, differently from the

analogical world, the digital world leaves behind information on each

bit and byte that was sent. For the common internet user, cyberspace

provides a good description of this magical super-space in which data,

information and messages are sent and received.

In North America, in Europe and also in some other countries and

regions, the internet is a largely unregulated phenomenon supported by

a regulated infrastructure. The open environment of the internet is prob-

ably its greatest attraction. When the first efforts to develop the Cyber-

crime Convention began, there was not an agreed upon computer, inter-

C1 Howard Rheingold is a recognized American thinker on the cultural, social and polit-

ical implications of modern communications media such as the Internet, mobile telephony

and virtual communities (a term he is credited with inventing). In 1985 he wrote Tools for

Thought, a history of the people behind the personal computer. He explored his experience

with an online community in his book, The Virtual Community. In 1991, Rheingold wrote

Virtual Reality : Exploring the Brave New Technologies of Artificial Experience and Interac-

tive Worlds and in 2002 Smart Mobs, exploring the potential for technology to augment col-

lective intelligence.

(22

Barlow.

) www.eff.org./pub/Publications/John_Perry_Barlow/barlow0296.declaration.

an engineer and open mind who laid the foundation for the concept of free software, issued

in 1996 a manifesto called : *A Declaration of Independence of Cyberspace.”

(3) Some prefer the expression : “online world” because it includes not only the internet

but also commercial online services (for example, America Online), private databases (e.g.

Lexis-Nexis. Westlaw and others). and private networks (intranets). The internet contains

email, the Worid Wide Web (www), File Transfer Protocol (FTP), newsgroups (e.g. Usenet)

and Internet Relay Chats (IRC). Another term used to describe the global electronic network

is “information superhighway”. It 1s an expression introduced in the political discourse by

former U.S. Vice-President Albert Gore. In several speeches he stressed the idea that the

speedy transmission of information 1s replacing the physical transportation of people and

goods. In this article we use the word “cyberspace” because it is more popular and widely

used but in the wider sense of “online world.”

C4 Klaus W. GREWLICH. Governance in ‘Cyberspace': Access and Public Interest in Glo-

bal Communications. The Hague : Kluwer, 1999 : 133.

— 17 —

net and electronic commerce terminology “°’. Most law enforcement

agencies were behind from the technical point of view. They did not

know how to investigate computer crimes, look for evidence without

contaminating it, how to keep data safely, how to find out who had sent

a message, especially if it was In code or anonymous. They also needed

funding so that they could effectively face this new problem. Since 1t 1s

generally easier to obtain new funding and support when it is necessary

to fight a new problem, it was natural that a new terminology was intro-

duced. However, it is not clear that the term “cybercrime” 1s necessarily

useful or not misunderstood. Crimes occur in the real world and, gen-

erally, they involve real people and money. It is essential not to lose

sight of this and to keep in perspective the more transient aspects of

internet communications 6.

In reality, we have built a world where chips generate new informa-

tion and send it around the world in electronic digital sequences. We are

unable to detect and understand them without the help of computers

and appropriate software. Regardless, this digital and parallel world

does exist and the digital bits constitute a new type of evidence “”. The

digital bits also represent a new type of risk for the individual since

whoever knows how to falsify digital evidence can create a new digital

person. This is an especially insidious type of crime, more subtle than

others. It is becoming more and more frequent in the form of identity

theft. This way the term “cybercrime” can be useful to describe and

understand the crime against the digital person “ and to fashion appro-

priate remedies at the national and international levels

(29)

THE DIGITAL PERSON

The digital person is a model of person created through the accumu-

lation, recompilation, storage and analysis of data on that person. It 1s

a very useful concept to understand the way in which the new net-

worked and online world we live in operates.

(25) Barry B. SOOKMAN, Computer, Internet and Electronic Commerce Terms : Judicial,

Legislative and Technical Definitions. Toronto : Thomson Carswell, 2002.

(26) R. VAN WENDEL DE JOODE, J.A. DE BRUIIN and M.I.G. VAN EETEN, Protecting the Vir-

tual Commons. The Hague : T.M. Asser, 2003.

@ Antony J. SEBok, “The Invisible Borderlines of Tort on the Internet”, pp. 57-77 in

Toshiyuki Kono, Christoph G. PAULUS and Harry Rasak, Selected Legal Issues of E-Com-

merce. The Hague : Kluwer, 2002.

(@8) Chantico Publishing Company, Combating Computer Crime : Prevention, Detection,

Investigation. New York : McGraw-Hill, 1992.

(29) Marcus FRANDA, Governing the Internet : The Emergence of an International Regime.

Boulder : Lynne Rienner, 2001.

— 18 —

The digital person is also a phenomenon potentially threatening,

degrading and socially dangerous. The threat stems from the collection,

monitoring and analysis of data collected on citizens and that allow

monitoring persons through data. Keeping track of data is a means eco-

nomically effective to exercise control on the behavior and habits of

individuals, groups and societies. The digital person is subject to partic-

ular techniques of data collection and monitoring like comparisons,

characterization and profiling done using appropriate software on a

computer. One of the major problems is that this activity is often unreg-

ulated, especially in the United States, so that private enterprises can

collect, obtain, analyze, package and sell considerable information on

unsuspecting citizens .

There has been considerable and maybe worrying progress in this

area . The digital person is a model that helps us understand and

appreciate the shadow that we project in the digital world of cyberspace.

It is a model and representation of the public personality of an individ-

ual, based on data and maintained by means of transactions. It has been

conceived and formulated to be used as a representation of the individ-

ual

Bits are useful to identify individuals so that we can contact them

through their email addresses or identify them as persons who are

authorized to enter into certain transactions like paying bills on line,

buy items, plan travel, etc.

Through bits we can develop a composite of habits and construct a

personality that is as real as the human being that exists behind them.

Actually, governments and businesses rely on them to know their clients

and have more confidence in electronic proof of identity and the digital

person than in the corresponding real-life individuals. Of course, errors

or security breaches in databanks demonstrate the fragility of placing

too much faith in this digital reality®”. For instance phishing and

pharming attacks and the 1llegal substitution of email addresses and

websites to deceive unsuspecting users, especially consumers, seduce

them into providing personal and financial informatioñ and then

defraud them. This demonstrates how this trust can easily be misplaced.

Consumers have long been concerned about marketers buying and sell-

G0) Niva ELKIN-KOREN and Eli M. SALZBERGER, Law, Economics and Cyberspace. North-

ampton MA : Edward Elgar, 2004.

GD The European Union (EU) has one of the most stringent data protections regulations

in the world. Unlike the EU, the United States rules on data protection are a mixture of fed-

eral and state laws and self-regulatory programs, with self-regulation predominating. The

United States fails to meet EU data transfer requirements.

G2) Michael HIRST, “Computers, Hearsay and the English Law of Evidence”, pp. 175-196

in Indira CARR and Katherine WILLIAMS, Computers and the Law. Oxford : Intellect, 1994.

— 19 —

ing their personal information. The rise of e-commerce has sparked

growing concern because of the ease with which all types of sensitive

data may be gathered, copied, shared and misused via the internet °*

Fraudsters can use these data to convince business people, stores, ven-

dors, governmental agencies and banks that they are the real person

whose identity they have stolen. There are also cases when fictitious but

probable persons, with no “real” individual behind them, have been cre-

ated by criminals using a composite of various data.

In the world of cyberspace, there could be an unlimited number of

these fictitious models that operate there generally, even though not

always, to commit crimes“*. Law enforcement personnel introduce

themselves and pose in chat rooms as very young persons to ensnare

possible pedophiles and sex criminals. Singles looking for a mate create

a profile of themselves to be posted on the internet that does not always

correspond to reality, a measure at times justified by security concerns.

Once one has come to know better, some of the other people of the

website or chat room, one can let his or her mask down and reveal his

or her true self. People surprisingly post considerable personal, intimate

and sensitive information on themselves on websites like My Space or

Friends. This approach is especially dangerous when there is a pedo-

phile, sex criminal or experienced white collar criminal at the other end

of the conversation. The police too now utilize these voluntary data-

banks to find criminals that have successfully eluded capture or to solve

cases by getting clues from the internet or to identify and pursue crim-

inal activity (e.g. drugs sale and use; sexual misconduct, especially

involving minors; and other crimes).

As we rapidly advance towards a world where electronic control and

monitoring of human beings is growing at a fast pace, we should ask

ourselves : “where we are going?” °°) Soon, identification chips embed-

ded in clothes, cars and many of the personal items we purchase every

day and the identify cards that we carry with ourselves will communi-

cate with data collection centers and provide considerable information

on what we normally do, where we go, what we buy etc. “6) Transmitters

incorporated into these items will follow our movements and inform pri-

vate businesses and also relevant authorities. Discount consumer cards

G3 Andrew P. SPARROW, The Law of the Internet and Mobile Communications. Harley :

Andrew P. Sparrow, 2004.

C4) Paul NrïouL, “Will Electronic Commerce Change the Law? Towards a Regulatory

Perspective Based on Competition, Information and Learning Skills”, pp. 79-90 in Christo-

pher T. MARSDEN (editor), Regulating the Global Information Society. London and New

York : Routledge.

G5) Rolf H. WEBER, Regulatory Models for the Online World. The Hague : Kluwer, 2002.

(36) Duncan CAMPBELL and Steve CONNOR, On the Record : Surveillance, Computers and

Privacy : The Inside Story. London : Michael Joseph, 1986.

— 20 —

offered by various supermarkets and department stores to ensure the

loyalty of their customers record each and every purchase made there so

that after a period of time, the supermarket or department store can

construct a fairly accurate buying and living profile of large number, at

times millions, of people. This information will be analyzed, manipu-

lated, sold for marketing and purchasing purposes. It can also be

accessed and used by law enforcement and by others in the private sec-

tor like one's employer monitoring, for example, drinking or eating hab-

its that impact work productivity, and may cause or facilitate certain

diseases (important information where health insurance and health costs

are high and privately managed), spending habits, and lifestyles. Insur-

ance companies would not doubt be interested in this type of informa-

tion. Meanwhile computer chips implanted in current car models record

and can transmit to authorities and insurance companies sensitive infor-

mation on driving habits of the insured and especially record crucial

variables (distance, speed, breaking etc.) in the event of an accident

which could help determine recklessness, negligence, and shared respon-

sibility in causing the accident.

If one successfully falsifles many of the footprints we increasingly

leave behind today, a real human being could some day confront in

court a digital person, very convincingly put together and beyond the

control of the real person in question. Using biometry to connect these

footprints with the individual whose identity has been borrowed or sto-

len may help solve the situation or worsen it”. Civil libertarians are

concerned about the introduction and use of biometric 1dentity

machines in our daily lives also because they are known to generate false

positives and false negatives.

There is no question that as the digital person — the alter ego of every

one of us — grows in social, legal°5 and economic importance, it

attracts the attention of many, including criminals ° What happens to

us when we are forced to take extensive measures to protect our identity

on a daily basis in some sort of ‘“arms race” to combat the intrusion of

the government, private firms and delinquents? If we are obliged to dis-

tance ourselves from our “person’” in order to constantly be vigilant

against the threats that we face on a daily basis, what will this do to our

perception of ourselves and of our relationship with others?

37 P.A. COLLIER and B.J. SPAUL, “A Forensic Methodology for Countering Computer

Crime”, pp. 145-158 in Indira CARR and Katherine WILLIAMS, Computers and the Law.

Oxford : Intellect, 1994.

(G8) M.H.M. SCHELLEKENS, Electronic Signatures : Authentication Technology from a

Legal Perspective. The Hague : T.M.C. Asser Press, 2004.

C9) Computers : Crimes, Clues and Control: A Management Guide. Washington DC :

U.S. Government Printing Office, 1986.

— 21 —

CRIMINOLOGY AND CYBERCRIME

Criminology is richly interwoven with sociology, psychology, crimi-

nal law and political science. The challenge posed by the rapid develop-

ment of cyber identity, cyber and computer crime and related security

measures, which no doubt will grow in technological sophistication and

intrusiveness in the near future, is one that criminologists should seri-

ously consider and address. Our perception of identity, of our place in

society, of our importance and dignity is profoundly based on social

relations, on how we are perceived by others and on the response that

we receive from others. The definition of who we really are 1s becoming

more and more blurred. It is increasingly digital, metaphysical, with an

existence of its own, crafted, manipulated and controlled by others — the

government, credit rating institutions, security agencies, at times crimi-

nals and so on *. A complex panoply of new situations and crimes is

rapidly appearing. For criminology to be useful and relevant to society

it must redirect itself toward these new and unfolding phenomena that

are deeply affecting our daily lives and address the nature, types and

impact of old crimes challenging us in new and very novel and unex-

pected ways.

SOMMAIRE

L’espace numérique apporte de nouvelles possibilités mais aussi de

nouveaux dangers. Il représente un nouveau défi pour la criminologie,

et un nouveau territoire régi par la Convention de Budapest de 2001.

RESUMEN

Los recursos informâticos aportan nuevas posibilidades pero también

nuevos peligros. Representan un nuevo desafio para la criminologia y

un nuevo territorio regido por la Convenciôn de Budapest de 2001.

(40) John T. CHu, “Computer Crime and Victim Justice”, in Diane SANK and David 1.

CAPLAN. To Be a Victim : Encounters with Crime and Injustice. New York : Plenum Press,

1991.

__ 22 —

CO-OPERATION AND LAW ENFORCEMENT

TO COUNTER ORGANIZED CRIME

IN THE COMMON MARKET COUNTRIES

OF SOUTH AMERICA —- MERCOSUL

Edmundo Oliveira ‘*

SUMMARY

This background document has as purpose to contribute to the inau-

guration of a new international co-operation style in order to give sup-

port to the experience of bringing into practice a unique public security

system much necessary to the regional development of the South Amer-

ican Common Market —- MERCOSUL, formed by Argentina, Brazil,

Paraguay, Uruguay and Venezuela, having also Bolivia, Chile and Peru

as Associate Members.

In the mechanisms of this purpose, the most noticeable trait is the

setting of a criminal policy whose mission is to give an efficient answer

to the social economical threats and disturbances fomented by the

growth of the organized crime, with its various ways of contamination

of life quality and fomentation of serious harms to healthy investments

in the region.

Before the need of reinforcing the State function in order to impose

limits to criminal organizations and networks which cause a profound

and harmful sensation of insecurity, we trust that, from this preliminary

study, in the dynamics of the relation between cost and benefit, good

results may outcome to the exercise of citizenship in South America,

without the sacrifice of the public welfare.

IDENTIFICATION OF THE THEME

The integration in mass as an alternative to the search of better life

quality to attend to the demands of economical competitiveness after the

decline of the Cold war established a new era in international relation-

ships, generating inspiration for the emergence of the Common Market

of South America - MERCOSUL, founded in 1991 by the Assumption

( Prof. ph.d., fuil professor of criminal law of the university of Amazonia (Brazil), vice-

president of the International Society for Criminology, Paris (France).

__ 23 —

Treaty, comprising of Argentina, Brazil, Paraguay, Uruguay and Vene-

zuela, having Chile, Bolivia and Peru as Associated Members.

Today MERCOSUL develops firm relationships of political cooper-

ation and economical integration with the Central American Countries

and North America. It also begins to systematize rules of intercommu-

nication with Asian and African Countries, the Furopean Union deserv-

ing prominence for its important collaboration for new terms of com-

mercial negotiations and the making of agreements for investments .

Along with those purposes, the political and economical alterations

subject to the consequences and challenges of the globalization in the

paradigms of the technical-democratic communities‘?, unavoidably

brought new types of social inquietudes in the process of integration of

the MERCOSUL group with importance for the concern with the grow-

ing threats of organized crime operations confronting the regional devel-

opment with social responsibility.

DIFFICULTIES FOR THE ADMINISTRATION

OF STRATEGIFS OF COOPERATION

AGAINST ORGANIZED CRIME IN MERCOSUL

I. — There exists no consistency of a single safety project nor even a

clear conceptual vision that implies in the definition of the planning of

the common safety in the extent of the MERCOSUL with appropriate

judicial and legislative measures .

II. —- À harmonic co-ordination of a foreign policy has not yet been

organized to develop and to give advantage to the co-operation as to

international safety, absorbing the experience of well implanted patterns

in other areas of the world that can be put into operation in syntony

with the purposes of the internal safety of the Member Countries of the

MERCOSUL *.

Mercosul.

() First Meeting of the Committee of Bi-regional Negotiations Europe Union

6 and 7 April, 2001, Buenos Aires, Argentina. That Meeting represented the first series of

negotiations between the EU and Mercosul with the purpose of the conclusion of an Agree-

ment of Inter-regional Association between the EU and Mercosul.

( Read the excellent approach of ZAFFARONI, Eugenio Rauül, “La globalizaciôn y las Actu-

ales Orientaciones de la Politica Criminal”, in Direito e Cidadania, Praia

Cabo Verde, Ano

I, n° 8, 1999, pp. 72-76.

G That conclusion comes from the Congress on “The Researcher and the Politician”,

held from August 12 to 15, 2002 in Curitiba, Paranä, by the Interdisciplinary Program Eco-

nomical Globalization and Rights in Mercosul

GEDIM. In that Congress, line 3 of

Research had as aim of analysis “Organized Crime and its Control in the Mercosul”.

( See the observations of: SoUZA, Solange Mendes, Cooperaçäo Juridica Penal no

Mercosul : Novas Possibilidades, Rio de Janeiro : Editora Renovar, 2001, pp. 111-137.

_ 24 _

IM. — The increasing challenge of the infiltration and contamination

of the state system by the networks and criminal organizations © is

clear, as confirmed by the continuous repercussions in the media of

financial frauds, money laundering and recovery of illicit assets involv-

ing considerable sums of money that circulate outside of the inspection

and the legal mechanisms of control.

IV. — For effects of just recognition of the culpability by the Criminal

Courts, in regards to the consonance with the United Nations Conven-

tion on Transnational Organized Delinquency‘°), legal limits have not

yet been established that distinguish the distinction between the appro-

priate punishment for the transnational criminal organization — and the

just punishment for the crime practiced by criminal organizations in the

national territory considered legitimate.

V. — Organized crime and the indexes of violence reduce the compet-

itiveness of companies and avert new commercial and industrial invest-

ments in the MERCOSUL where the expenses with personal safety are

among the highest of the world. Homicides, kidnappings, assaults, cor-

ruption and drug traffic constitute roots of fear to justify the rejection

of foreign companies and reveal that MERCOSUL is losing in the ques-

tion of safety for China, India and the Eastern European Countries .

Brazil, for instance, spends 32 billion dollars a year in safety, the equiv-

alent of 10,5% of its Gross Domestic Product - GDP. That sum 1s 4,6

times greater than the expense with health and sanitation in the Coun-

try, 5,6 times more than applied in education, 21 times more than

employed in the section of transportation and 70 times more than des-

ignated to housing and urbanization. Around 10 billion dollars a year

related to tourism are refrained from entering Brazil because of the vio-

lence and contamination of organized crime.

VI. — In the MERCOSUL Countries there are slums and dwellings

on stilts where the Police, when entering, arrive in frank technological

disadvantage before the heavily armed criminals. There are slums and

houses on stilts where the residents are hostages of the Bandit State

which works alongside the Legal State selling protection, foreing people

to buy the insurance of delinquency to save their own lives. There are

slums and houses on stilts where the residents are abandoning their

homes to escape from the fear and of the absolute lack of protection of

which they are exposed. There are slums and houses on stilts where

() Consult: BecK, Francis Rafael, Perspectivas de Controle ao Crime Organizado e

Critica à Flexibilizaçäo das Garantias, Säo Paulo, Ibccrim, 2004, pp. 74-82.

(6) Resolution n° 55/25, Annex 1I, of 11.15.2000, of the United Nations General Assembly,

that deals with the Convention on Organized Transnational Delinquency.

( That is the annotation of : GAMA, Julio. “O Preço da violência”, in America Economia,

Säo Paulo, ediçäo Brasil, October 2004, pp. 23-26.

__ 25 —

organized crime arrests, judges and executes in the incessant confusion

of its cycle of oppression.

Denise Frossard, Judge of the State of Rio de Janeiro, states in

conclusion : “inequality walks hand in hand with violence : everyone

throws stones at it, but nobody solves the problem” #.

FORMS OF EXPRESSION OF ORGANIZED CRIME

IN THE MERCOSUL COUNTRIES

The networks and criminal organizations may be classified in groups

that portray five expression forms.

In the first group are delimited the activities that are well articulated

and subject to rules of discipline in which include ethnic groups that

appear in the form of Mafia or gangs There includes individuals that are

devoted to the “grilagem de terra” (illegal public property occupation

through document forging), the drug traffic, traffic of weapons, money

traffic, cigarette traffic, traffic of human beings, slavery, exploration of

prostitution, sexual tourism, smuggling, 1illegal immigration, 1llicit trans-

actions through the internet, invasion of computer data, pornography,

piracy, games of chance, insurance frauds and falsification of credit

cards. Ît is the example in South America of organizations that operate

in the traffic of the paste base of cocaine as middlemen between con-

sumers and suppliers of the drug production cartels.

In the second group are the offenders specialized in 1llicit law break-

ing whose practices, in general, lack complete organizational structure.

They are examples of assaults, fuel adulteration, kidnappings and

hijacking which are increasingly more intense in the South America.

In the third group are the gangs integrated to the crimes of associa-

tions of persons and of companies in corporations that practice crimes

against the financial system, against the tax order, against the environ-

ment and against the public administration in general. They are exam-

ples of the “white collar” criminals.

In the fourth group, the enunciation of organized crime is repre-

sented by the criminality within the State, acting like guest of public

shelter, according to the frequent reports of the scandals of corruption

performed by dishonest inspectors, and, equally of the performance of

police officers with behaviors and images associated with extermination

groups.

(8) FRossARD, Denise, “Somos Todos Reféns”, in Revista Isto É., Säo Paulo, n° 1666, Sep-

tember 2001, p. 32.

— 26 —

In the fifth group are the terrorist networks and organizations that

take advantage of the impact of terror with extreme violence or threats,

to satisfy 1ideologies, religious faiths, and philosophical or political con-

victions. It was the case of the polemical explosions of two bombs in

April, 30, in 1981, during a concert promoted by the “Centro Brasil

Democrâtico” entity, in the Riocentro area, in Rio de Janeiro, in an

attack made for the purpose of promoting the intensification of the mil-

itary dictatorship in Brazil. It is also important to comment the accusa-

tions published by the press (O Globo Newspaper, Rio de Janeiro, Brasil,

October, 29, 2001 edition), which referred to the probable existence of

an Al-Qaeda terrorist cell in the border of Argentina, Brasil and Para-

guay.

Through the analysis of these five groups, it should be observed that,

in practice, a penal infraction can move from one group to another

depending on the origins of its path in the context of the execution of

the criminal activity.

VIABILITY OF PROCEDURES

TO OVERCOME THE DIFFICULTIES

IN THE FIGHT

AGAINST ORGANIZED CRIME IN THE MERCOSUL

Verification

The dialogues among the Countries of the MERCOSUL are already

considerable as shown by the awareness evident in the Official reports,

Meetings, Protocols and adopted Resolutions. Actually there is no more

doubt that the pursuance of the alliance processes and the sign of sta-

bility in the MERCOSUL depend on the political disposition to propi-

tiate indispensable conditions of assurance in the control of the penal

system in relation to organized crime that progressively materializes with

their forms of expression.

w

Future steps, important precautions

I. — to create the Group of Permanent Work for the elaboration of

the Brazilian Public Safety System for the MERCOSUL ;

II. — to institute a Database to render feasible the mechanisms of

interchange of information on diagnosis and tendencies of the circula-

tion of illicit practices related to organized crime;

III. — to strengthen the inter-regional co-operation including the

union of Countries in other Continents to facilitate the exchanging of

experiences and to reflect the common vision on the effectiveness of

public safety in the MERCOSUL ;

__ 27 —

IV. — to form a specialized nucleus in the confrontment of organized

crime through the integration of the police forces of the Member Coun-

tries properly qualified with technical and scientific capacity;

V. — to constitute the Center of Operational Support of the Depart-

ment of Justice in the MERCOSUL in face of the need for protection

of the ius persequendi in a way to produce lawful and concrete evidence

to the conviction for the authorship or complicity with organized crime;

VI. — to deal with the appropriate and differentiated typification of

the so-called “antecedent crime”, as the corruption that, for the adjust-

ment of conducts, may involve great amounts of money destined to the

“product crime” in the connections of organized criminality.

VII. — put in practice a control instrument to halt the variations of

crimes made through the Internet;

VIII. — to reorganize the Treaties of Extradition following the recent

orientations made by the International Law for the extraterritorial

application of the national penal laws;

IX. — to systematize the judicial and administrative procedures con-

cerning the transference of criminal processes and to the transference of

provisional and condemned prisoners;

X. — to institute mechanisms to amplify the degree of transparency

in the public institutions without limiting to the specific course of the

penal intervention ;

XI. — to reduce the risks of impunity with the strengthening of inde-

pendency, alacrity, and celerity of the Criminal Courts to satisfactorily

execute the duty of the filtering of the criminal attitudes;

XII. — to establish rules of precautions for the flow of tourism that

generates considerable income and guarantees many jobs in the MER-

COSUL.

XIII. — to regulate the activities of the informal economy market

that, in general, gives occasion to more basic forms of organized crime;

XIV. — to plan the control on the borders of the Countries of MER-

COSUL, including standardized Passport;

XV. — to encourage the scientific and technological development of

the Universities as a generating source of income and of the cost-benefit

variables capable of guaranteeing success to the schedules of the Gov-

ernments in the prevention and eradication of the causes of organized

crime:

XVI. - to make efforts to involve the sections of the regional com-

munities in the construction of an efficient system of public safety for

the MERCOSUL ;

__ 28 —

XVII. — to elaborate a calendar with political strategies of confront-

ment of organized crime in the MERCOSUL in order to subsidize the

institutional implantation of the Free Trade Area of the Americas

(ALCA):

XVIII. — to establish a special procedure of cooperation and work

together in the ambit of the UN Safety Council;

URGENT PROCEDURES TO REDUCE AND CONTROL

THE CRITICAL SITUATIONS, RESULTING FROM THE PROJECTION

OF THE ORGANIZED CRIME IN THE MERCOSUL

I. — Critical Situations

a) Developing infiltration and contamination of the State by the

criminal nets and organizations;

b) The organized crime 1s largely affecting the employment origina-

tion and the healthy investments on the commercial relationship and

industrial production.

IT. — Urgent procedures to reduce

and control the critical situations

a) To request the support from international institutions of develop-

ment to promote the co-operation to control the organized crime in the

MERCOSUL ;

b) To implement the experience of a prototype for the reduction and

control of organized crime, in the Countries of the three borders : Brazil,

Paraguay and Argentina.

IT. — Who is able to promote the dinamics

of the reduction and control of the critical situations

a) The Law Enforcement Departments of the Member Nations and

Associates of the MERCOSUL ;

b) The City Halls of the important Cities located on the MERCO-

SUL Nations;

c) The international institutions and agency for crime prevention are

able to offer important collaboration for the elaboration of the political

strategies to confront the organized crime in the MERCOSUL.

— 29 —

IV. — Where the reduction and control

of critical situations process shall be develloped

It shall be started with the experience of a prototype for the reduc-

tion and control of the organized crime, in the important Cities of the

MERCOSUL.

V. — When the reduction and control

of the critical situations shall be undertaken

Beginning with the celebration of the International Co-operation

about crime organized control on the relationship productions and

Investments in the MERCOSUL.

FINAL CONSIDERATIONS

There is an increasing preoccupation with organized criminality in

South America, where there are very few advancements in the “Aims of

the Millennium”, a series of social actions of strong impact that was

established in the year 2000 by the United Nations. In order to put an

end to poverty, those objectives should be accomplished by the year

2015 in all of the countries of the planet, and involve the eradication of

famine, the guarantee of the access to drinking water, the reduction of

children death rate and the expansion of the access to basic education.

The escalation of crime through the networks and organizations that

proliferate in the deviations of the social delinquency in all South Amer-

ica reached an unbearable level for society, climaxing inclusively with

the murder of Judges, Public Prosecutors, lawyers, Policemen and Jour-

nalists that courageously had been carrying out their duties.

Through the actions of the Governments, the State needs to look to

the social indicators with the transparency of urgent measures in the

area of Education, public safety, penitentiary system and of the admin-

istration of the Courts, improving the environment for the progress of

healthy investments under the penalty of becoming unbearable the life

of the common citizen, who works, pays taxes and lives within the limits

of the law.

Following the 2005 studies of the Caribbean and Latin American

Economic Commission (CEPAL), 44% of the South American popula-

tion live under the poverty line, with less than a dollar a day for sur-

vival, without access to drinking water and proper sewage. The human

poverty, concentrated in cities with precarious shanty towns and neigh-

borhoods, makes the Latin American continent one of the most urban-

ized zones on Farth, even more than Europe indeed. To break such

— 30 —

vicious circle the Latin American Governments need to agenda a decade

of priority growth in education, to be able to become competitive in glo-

bal scale.

The socioeconomic globalization and the globalization of crime with

its implications in the pragmatic exercise of human rights are not yet

being accompanied by a juridical globalization, as Professor C.G. Weer-

amantry‘’’ had adverted. The Court systems have difficulties in repri-

manding, with pedagogic efficiency, that he who commits a crime must

pay for it. But that doesn’t mean that prison should continue to be the

queen of the express means of penal punishments. Common sense rec-

ommends distinct options of alternative punishment where prison would

be reserved for the individuals that, when free, constitute real danger or

serious threat to the social well-being.

À research sponsored by the International Labor Organization in

November 2003, reveals that in the Countries of the MERCOSUL, dur-

ing the period from 1995 to 1999, the average age of a person to ingress

in crime was from 15 to 16 years. However, as from 2002, that index

fell to 12 to 13 years as the average age to ingress in crime, exactly

because the enlistment of children and adolescents in the criminal life

increased considerably in the 1llicit operations that they are placed, with

imprudence, in view of the absence of healthy policies of the Legal

State.

What certainly concerns most is the tendency to the uncontrollable

in relation to the ascension as much as of the Parallel Power of net-

works and criminal organizations, as of the Transversal Power that rep-

resents a crossing of illicit interests of agents of the Public Power with

the services of delinquents inserted in the Parallel Power of the banditry.

The Transversal Power moves million of dollars, knows how to gamble

with impunity and thinks that crime always compensates, since 1ts risks,

for the profundity of the violence and corruption, can be quite calcu-

lated and controlled, whether on the base of open criminality or on the

base of the underground criminality.

What changed with the industrialized crime by the instigation of net-

works and criminal organizations in the area of the MERCOSUL?

First, crime became more violent. In the beginning of the last decade,

23% of the criminal offences were violent. In the beginning of this dec-

ade, they were already 35%. Another change was that the solitary crim-

inal became more and more rare and the criminal that operates in gangs,

even the beginner, became more and more frequent. The Courts in

( WEERAMANTRY, C.G., “Human Rights and Scientific and Technological Progress”, in

Human Rights: New Dimensions and Challenges, Aldershot, Unesco Publishing, 1998,

pp. 247-248.

_— 31 —

South America, molded in a liberal model, function with basis in the

principle of the individual responsibility, where as the demand for the

remeasurement of the instrumental function of the Penal Science 1s, at

this moment, great.

That approach was accurately dealt with by Professor Mireille Del-

mas-Marty in the notable essay “Penal Law as Ethics of Mundializa-

çäo” 0. In general it is on the principle that the author of a crime is

an individual. However that mentality is not adequate for the criminal-

ity in gangs. That reasoning is useful, for instance, to ascertain a crime

of armed robbery, which can be an individual action but does not serve

to investigate the drug traffic or a fraud in financial operations that are

not normally solitary crimes.

It is observed, then, in the contemporary society of the sphere of the

MERCOSUL, that the organized criminality involves activities to gen-

erate wealth because they infiltrate in the underground of the national

and international financial system without being noticed, clearly, the line

that divides the territorial from the extraterritorial, competing for that

the expansion of the offshore companies, bank accounts transaction in

fiscal paradises and the viability of the electronic trade with their trans-

actions through the Internet.

The dynamics of police captivation for crime is another serious ver-

ification. It is not to the advantage of the Public Administration to

underestimate the capacity of the networks and criminal organizations.

Before the certainty of precariousness and deficiencies in the state dis-

position, the sensation that 1s had, when one looks at the serious work

of good policemen and of good judges in South America is a sensation

of impotence, such as “drying 1ce”.

The tragic consequences that the increase in violence and especially

in organized criminality have been imposing on the society in South

America, exhibiting the by-product of the perverse relationship between

the macroeconomics of the crime and the “disinvestments”. The flow of

money is what connects all of the modalities of organized crime : from

traffic to kidnapping. Where economical power exists, organized crime

equally exists, not only because the tendency for crime is inherent to the

human being but also because there is the complicity of the State U !.

AIl this leads to the incredulity in the institutions and permits the

emergence of certain inclination to rebellion with risks to democracy.

(10) DELMAS-MARTY, Mireille, “Le Droit Pénal Comme Éthique de la Mondialisation”, in

Revue de Science Criminelle et de Droit Pénal Comparé, Paris, n° 1, Janvier-Mars, 2004, p. 2-

6

(D In reference to: Maia, Rodolfo Tigre, O Estado Desorganizado Contra o Crime

Organizado, Rio de Janeiro, Editora Lümen Jüris, 1997, pp. 27-36.

_— 32 —

The fragility of the Public Administration in the MERCOSUL in

relation to organized crime has to change. The collection of impotencies

will only disappear with the wisdom to discriminate with respect to aims

of prevention of the small criminality, aims of prevention for the large

criminality that turns, step by step, each time more international.

ABSTRACT

The infiltration of Organized crime in the Mercosul, founded in 1991

by the Assumption Treaty, needs the development of new procedures in

order to reduce and control critical situations.

SOMMAIRE

L’infiltration du crime organisé dans l’espace économique généré en

Amérique latine par le traité Mercosul, impose le développement de

nouvelles procédures, que l’auteur se propose d’évaluer.

RESUMEN

La infiltraciôn del crimen organizado en el espacio econômico gene-

rado en América latina por el Tratado Mercosul impone el desarrollo

de nuevos procedimientos que el autor se propone evaluar.

_— 33 —

FIGHT AGAINST THE ORGANIZED CRIME

Fernando Tourinho Neto “

1. — INTRODUCTION

Currently,

the criminality,

with or without Vviolence,

acquire

extremely worrisome contours. Why such an explosion? No deep

sociopsychological study was conducted until now, and not any security

policy for long-term projects was prepared as well.

The criminal Justice, at least in Brazil, is not a trusted one. The dis-

belief 1s a significant one. The delay in judgments implies the Justice to

be seen as it was out of reality, not assuring security to citizens.

In Brazil, the Judgeship Law (Law 9.099, of 09.26.1995), dispenalized

some behaviors, in compliance with Bentham’s“ utility principle. The

penalty should not be applied 1f the damage it causes 1s greater than the

damage caused by the criminal offense. On the other hand, we must not

forget that there is a worldwide movement towards the vanishing of the

criminal justice, led by the Netherlandish Louk Hulsman. The fight 1s

towards the substitution of the criminal system “for other conflict solu-

tion jurisdictions”‘?’. Those are the radical ones. There are, however, the

moderated ones, who defend a minimum criminal law, with Miguel

Reale Jünior) warning that “the decriminalization of a number of

behaviors typified by special laws, thecriminal qualification of which 1s

fruit of a transitory convenience of the governmental bodies is a vital

one. The very dignity of the law is in game”.

We cannot forget that “the penalty is an extreme resource, so as the

war” (Tobias Barreto).

However, the media, whether written or oral, induces people to

believe that the matter of violence is resolved by enhancing the penalties

() Judge of the Regional Federal Court of the 1* Region, Brazil.

() BENTHAM, Jeremy, Introduçäo aos principios da moral e da legislaçäo [Introduction to

the principles of moral and laws], translation by Luiz Joäo Baraüna, Säo Paulo : Nova Cul-

tural [Publishing House], 1989.

( ZAFFARONI, Eugenio Raül, Em busca das penas perdidas : a perda da legitimidade do

sistema penal [Searching the lost penalties : the loss of legality of the criminal system], trans-

lation by Vânia Romano Pedrosa and Amir Lopes da Conceiçäo, 4th edition, Rio de

Janeiro : Revan [Publishing House], 1999, page 97.

( REALE JÜNIOR, Miguel, “Descriminalizaçäo” [Decriminalization], Revista do Instituto

dos Advogados Brasileiros [The Magazine of the Brazilian Lawyers' Institute], number 29,

page 189, apud D’Urso, Luiz Flävio Borges, Direito criminal na atualidade [The criminal law

in the current days], Säo Paulo : Atlas [Publishing House], 1999, pages 41/42.

__ 34 —

and putting the criminal in jail. It instills the idea that peace 1s obtained

by increasing the number of criminal figures, that is, by criminalizing

more behaviors. In Brazil, the lawmaker and the Government, both lost

and inoperative, adopt such idea even knowing that it is not the solu-

tion. They try, thereby, to calm down the citizen’s anger.

The criminal law cannot, on its own, contain the storming wave of

crimes. The jail is not the thing that shall make the number of criminals

to be reduced. It is not the recrudescence of criminal penalties that shall

frighten someone that has nothing to lose, no home, no food, no job,

and not any money.

René Ariel Dotti‘* says that :

The trend of the Brazilian National Congress towards the issuing of panic

laws for fighting the violence boom and the organized criminality featured

by the extending of the criminal penalty and the lasting insulation of some

harmful condemned for two years — further to other proposals grounded on

the arithmetic of the jail —- show the illusion of fighting crime violence

through the violence of the law. It is in such a panorama that emotion

supersedes the lawmaker good sense, recrudesces the political discourse, and

the paths towards a terror criminal law are stimulated.

If jail is not frightening to the above-mentioned, it is not frightening

as well to white collar criminals, once they believe that the criminal

rules, the police, and the justice cannot affect them.

We need to demystify the 1dea that the criminal law, and mainly the

prison, the jail, are the solutions for containing the wave of criminality

invading, dominating, and suffocating society.

Pursuant to the wordings of Beatriz Rizzo Castanheira, Carmen Silva

de Moraes Barros, and Roberto Podval®), we have that “the fight

against criminality is a public security jurisdiction, not a jurisdiction of

the Criminal Law. The primordial function of the Criminal law is to

assure freedom to all of us. The judges are those to make justice, which

1s only possible when judgments are impartial, and not moved by col-

lective feelings — most of times irrational ones — of revenge”.

The terror laws cannot supersede the human rights.

The social justice, with not any doubt, is the best solution for pre-

venting criminality.

It shall be through the decriminalization and dispenalization that the

Justice may become more committed with the judgment of crimes hav-

(4 DOTTI, René Ariel, Emoçäo e razäo. É ilusäo combater o crime com a violéncia das

leis [Emotion and good sense. It is an illusion to fight against crime through the violence of

laws], in Revista Consultor Juridico [The Legal Counsel Magazine], May 13, 2003.

(3} CASTANHEIRA [sic CASTANHEIRA], Beatriz Rizzo, BARROS, Carmen Silva de Moraes, and

PopvaL, Roberto, “Ninguém é cidadäo” [Nobody 1s a citizen], Boletim IBCCrim [IBCCrim

Bulletin], number 113, April/2002, page 2.

__ 35 —

ing greater offensive potential, violent crimes, crimes causing horror and

shocking society, and the organized crime.

The organized crime, the violent crime, kidnappings, active and pas-

sive corruption of Government agents, whether of the Executive, Legis-

lative or Judicial Branch disturbing the social living together, should be

strongly frighten, repressed. However not by availing of absurdly severe

penalties. That method serves for nothing. If it was not so, we would

not have barbarian crimes being committed, and with a certain fre-

quency, in countries adopting the life imprisonment or the capital pun-

ishment.

As Beccaria‘) used to say, in the 18 century, “it is not the severity

of torture that prevents crimes on a securely basis, but the sure of their

punishment, the magistrate’s vigilant care, and that inflexible severity

that is only a virtue in the judge when the laws are mild ones. The per-

spective of a moderate punishment, notwithstanding unavoidable, shall

always cause a stronger impression than the vague fear of a terrible pain

in connection with which there is any hope of impunity”.

It is the punishment application, in a way quick, prompt, effective,

certain, and infallible, giving the sensation that your crime shall not be

free from punishment, and not the crudeness of the penalty, that shall

cause the citizen to avoid committing the crime. What we want is a fair

penalty.

The State shows to be incapable for fighting the crime because it 1s

only concerned with the consequences, not reaching the causes. It seeks

for characterizing any behavior as a crime, and the penalty 1s almost

always the losing of freedom, with exacerbated penalties.

It only understands the jail as a penalty. The lawmaker forgets that

the criminal law 1s an ul/tima ratio, a fragmentary segment of the law in

relation to the others, and it is only to be availed of when all other seg-

ments of the law have failed.

The jails are dungeons, where the law of the jungle commands, the

rules determined by the so-called comandos vermelhos [red commandos]

(a criminal organization). As they are overcrowded, they depreciate the

man, brutalizing and animalizing him. From there they leave as beasts

eager for blood.

In Brazil, the Law 10.792, of December 1, 2003, was enacted, which

provided, in giving a new wording to the Article 52, of Law 7.210, of

1984 (The Criminal Execution Law), for the Differentiated Disciplinary

(6) BECCARIA, Cesare, Dos delitos e das penas [Crimes and penalties], 4th edition, Säo

Paulo : Atena [Publishing House], 1954. page 111.

— 36 —

System (“RDD”), trying to provide legality to arbitrary procedures that

were thereunto committed, with the imprisonments for verifications.

The Differentiated Disciplinary System lasts at the most 360 days,

and it may be extended in the event that the prisoner makes a grave fail-

ure

According to such system, the prisoner shall remain arrested to an

individual jail for the whole day, except for two hours for sunbath, insu-

lated from the other prisoners; and a further two hours in the week, in

which visits of no more than two people, with children to not be

included in the counting, shall be allowed.

The $1, of Article 52, of the Criminal execution Law provides that :

“the differentiated disciplinary system may also include provisional or con-

demned prisoners, whether Brazilian citizens or not, featuring a high risk

to the order and security of the criminal establishment or society.” (stress-

ing)

It is evident that in referring to a “high risk to the order and security

of the criminal establishment or society” — a vague concept, the law

assigns the measuring task of the RDD's reasonableness or not to the

judge’s appreciation, which requires from the magistrate to use his per-

sonal experience criterion and legal knowledge for appraising, in the

matter in study, which would be a “high risk”.

Formerly, in the medieval period, where the Canonic Law reigned,

the imprisonment was a punishment “with insulation in dungeon for

safekeeping the moral of prisoners, and also with the purpose of leading

the condemned, with the obligatory lack of action, to purify the soul” .

Currently, is for protecting the order and security of the criminal estab-

lishment or the society. The barbarianism is the same. Only the purpose

was changed. Torture is made with the silence and absolute solitude.

The soul is more hurt than the body.

Âs well as the tortures of the Totalitarian State are assisted by phy-

sicians for avoiding the tortured person to fall died, reviving him for the

torture sessions to proceed (medical assistance to the tortured person),

under the RDD, the prisoner has the assistance of a psychologist. In the

TV program designated Fantästico, of Rede Globo (a television net-

work), a representative of the Public Prosecution Service, being asked

whether the rigorous system makes the prisoner fragile, he answered :

He realizes a bigger thing than the criminal power he has. That creates a

very big depression, a very big psychological impact. And nowadays, for

that reason, they count on psychological assistance.

( BrAs, Gabriel Le, Derecho Canénico, El legado de la edad media. Apud José Frederico

Marques, in Tratado de Direito Penal. 2nd edition, Säo Paulo : Saraiva [Publishing House].

Vol. III, 1966, page 113.

__ 37 —

We are returning to the barbarian times. Frederico Marques “ says

that :

The use of jails as an instrument for punishment in times that preceded the

humanist movement of the 18" century was covered by the same rude and

barbarian, iniquitous and inhuman tonalities of the punishment then imposed

by the criminal laws of absolutist monarchies.

Continuous segregation, day and night, absolute silence, total prohi-

bition of having any writing, book or newspaper, listen to the radio and

watch television, the naked walls, without pictures or photographs, are

a mean of torture — and one that can lead to mental insanity or total

desperation. It is, in fact, the former dungeon, a terrible modality of

prison. The novel of Alexandre Dumas, The Count of Monte Cristo,

depicts, with living paints, the kind of prison where Edmond Dantès

Wwas arrested.

The walling and the body punishments shall not last, and we will be

back to the burns with burning pliers, the fire marks, mutilations, cas-

tration, whipping, odious punishments, declaration of infamy, depress-

ing marks, clothes and demoralizing adornments. If one has stolen,

amputate ones’ hands. If one has raped, castrate that one. If a larceny

was committed, cut off his nose. If one has insulted, defamed, calumni-

ated, take his tongue off. Other crimes entitle the eye-picking with burn-

ing iron, iron mark on the front.

The greatest example of torture in the current times is in the famous,

but mortuary, Priào de Guantänamo [sic Guantaénamo Prison], deter-

mined by the United States Government after the terrorist strike of Sep-

tember 11, 2002. In such prison, prisoners are being victims of torture,

in a complete disrespect of human rights and Geneva Convention. The

prisoners are handcuffed, feet to hands, with a short current, leaving

them bent in a humiliating position. Mouth, nose, ears covered with

gloves and glasses, everything with the purpose of eliminating the five

senses. It is the so-called white torture. The destruction of the by his

insulation. Those so tortured lose any kind of orientation, starting to

suffer hallucinations. George Washington, Franklin, Thomas Jefferson,

and Alexandre Hamilton, must be horrified with the government of

their country.

The citizen, in criticizing the delinquent, equals him in imposing

inhuman and cruel penalties. And they say they are Christians and

strongly against the capital punishment. The dimension of the human is

vanished. The criminal may avail of abusive violence, use 1llegal,

immoral resources for attaining his ends, the State not, even though for

(S) MARQUES, Frederico, Tratado de Direito Penal [The Criminal Law Treaty], 2nd edi-

tion, Säo Paulo : Saraiva [Publishing House], Volume III, 1966, page 114.

__ 38 —

protecting society. That is the big difference between the State and the

bandit. In a parody to the lemma of the dictatorial times, we must say

“against society, no rights”; or “in war there is an enemy (the bandit),

and we must kill and destroy to protect society”.

What is wanted is not, in fact, punishment, but revenge. It is the

return of the Talion Penalty; punishment should be equal to the offense

or damage caused. If somebody’s son was killed, then the murderer

should have his son killed. It 1s the application of the Mosaic Law : “an

eye for an eye, a tooth for a tooth”. And, worse of all, the media and

society tolerate torture, forgetting that the torture, the inhuman or

degrading treatment, the cruel penalties, are prohibited by the Brazilian

Federal Constitution.

The Differentiated Disciplinary System breaches the constitutional

prejudice that prohibits the prisoner to be subjected to torture or to an

inhuman or degrading treatment (Article S, IIT); breaches the letter e,

subsection XLVII, of Article 5, which prevents the application of cruel

penalties; and the subsection XLIX of the same Article 5, which assures

to the prisoners respect to the physical and moral integrity.

It breaches the Article 5 of the Universal Bill of Rights of December

10, 1948, proclaimed by the General Meeting of the United Nations,

which was signed by Brazil : Nobody shall be subjected to torture, or to

a cruel, inhuman or degrading treatment or punishment.

We cannot accept the consent of magistrates, representatives of the

Public Prosecution Service, public defenders, attorneys, all in all, oper-

ators of the law, with such barbarianism. We cannot accept that the lat-

ter, before so much illegality, whether for action or omission, convert

themselves in an apparatus for legitimating the Administration’s abusive

actuation.

The RDD is a disrespect to the Constitution, the law, the citizens of

Brazil and the citizens of the world.

For Garcia-Pablos de Molina, such kind of attitude by the State

.reflects a “policy of gestures against the audience and the public opin-

9

“

10N

T.ucci @) affirms that the RDD,

“further to be a retrocession, is a true negation of the purposes intended

for in criminal execution, being a true bis in idem, once the imposition of

the penalty is suited to the nature of the crime committed — provided that

all of its constitutive elements and the respective reasons, circumstances,

and consequences are considered —, and to the culpability, the antecedents,

the social behavior, and the agent's personality. ”

@ Tucci, Rogério Lauria, Boletim do IBCCrim [IBCCrim Bulletin}, 140, July/2004,

page 4.

__ 39 —

As taught by José Luis de la Cuesta “°), Cathedral Professor of Dere-

cho

Penal of Universidad del Pais

Vasco

/ Euskal

Herriko

Unibertsitatea :

“(…) as the function of the criminal law (‘ultima ratio) is to find the level

of minimum reaction that assures the reestablishment of the legal order and

satisfaction of feelings offended by the crime, the criminal law, for inter-

vening on a legitimately basis, must respect the principle of humanity. Such

principle obviously require to avoid the cruel, inhuman, and degrading pen-

alties (among which we may include the capital punishment), but it is not

satisfied with only that. It likewise requires, in criminal intervention, to con-

ceive penalties that, in respecting the human person, who can always be

modified, are led towards and cause its re-socialization : by offering the

condemned (never imposing on him) reeducation and re-inclusion means.’

William Terra de Oliveira explains “ :

“As the international experience shows, avoiding the impunity and actually

applying the law and its regulations is something more important than the

provision of strong penalties as a preventive artifice.’

And, in its notorious incapacity, the State tries to strike criminality

with high penalties, disrespecting the human rights of suspects, defend-

ants, accused, and condemned.

That was the reason why, in 1895, Oscar Wilde “”) said :

“(.…) the crimes committed by perverse people are less repugnant than the

punishments inflicted by the good ones; and a society gets infinitely more

brutalized for the frequent employment of punishment, than for the eventual

occurrence of a crime. Thus it follows that to the extent punishment is

applied, more crime is created.”

Nilo Batista "* mentions the following :

“It is difficult to charge the State the respect to the law and to the pro-

tection of the rights every person has, commencing with the life. In com-

parison to the guilty of the State, that of the bandit is a small one. And

the bandit we still are able to arrest, process, judge, and condemn. And

what about the State?””

There is not, in Brazil, a criminal policy, but only a short-term secu-

rity policy. What 1s seen is only a desire of giving more powers to the

police and to enhance the means for fighting against the crime, by

extending the penalties.

(10) DE LA CUESTA, José Luis, Pena de morte para os traficantes de drogas? [Capital pen-

alty for drug traffickers?] (in www.aidpbrasil.org.br - Translation by Consuelo Rauen).

(D OLIVEIRA, William Terra [et alli], Lei de lavagem de capitais : comentärios à Lei 9.613!/

98 [Law of money laundry : comments to the Law 9.613/98], Säo Paulo: RT [Publishing

House], 1998, 9.320.

(2) WiLDE, Oscar, A alma do homem sob o socialismo [The man’s soul under socialism],

Porto Alegre : L&PM Pocket [Publishing House], 2003, page 39.

(3) BATISTA, Nilo, Punidos e mal pagos : violéncia, justiça, segurança püblica e direitos

humanos no Brasil de hoje [Punished and poorly paid : violence, justice, public security, and

human rights in Brazil of nowadays], Rio de Janeiro : Revan, 1990, page 158.

— 40 —

Winfried Hassemer assinalates !* :

We need to acknowledge that a public security conception to guarantee

freedom shows to be poorly equipped not only in relation to its position in

the political arena but also concerning the contents of its arguments. It did

not succeed in indicating themes or priorities in the agenda of discussions;

it is satisfied in following the conservative agenda imposed by this very

moment and the respective discourse towards the need of acting, and it is

limited to discordance and warning gestures.

2. — QORGANIZED CRIME. CONCEPT

What means organized crime?

The Law 9.034, of May 3, 1995, does not define the organized crime,

by treating the operational means for preventing and repressing the

action practiced by criminal organizations.

Alberto Silva Franco!*), in a precisely manner, asseverated that the

organized crime 1s difficult to be typified. He says :

“It is an intricate matter, difficult to the featured, and of little transpar-

ency. That is the reason why it is better comprised within the scope of a

special criminal law that can, without greater difficulties in a legislative

transit level, increase its sphere of action for comprehending new and unex-

pected criminal situations, rather than in the body of a statute that seeks,

in a biased way, for a greater level of fixity and permanence.‘

Mâärio Chiavario18 understands as criminal organizations those :

“Organizations capable of creating a kind of anti-legal system with own

rules, own courts, and, above all, own sentence executors, But likewise, as

we already mentioned, of insinuating in the most intimate fibers of the very

state institutions : in a living-together and solidarity network expressed in

diffuse inertias or otherwise in exchange of active supports (and suspects

one, as among the most inflamed ones, succeeded in trying personalities

already settled in the vertices of the state apparatus). Organizations that,

all in all, in the latest years could also avail of the degeneration of the rela-

tionships between the world of businesses, with the amplification of the so-

called bribery system ( that is, compensations distributed under the table by

public and private entrepreneurs to parties and men of party £0r obtaining

all kind of advantages).”

(14) HASSEMER, Winfried, Segurança püblica no Estado de Direito [The public security in

the Rule of Law], in Revista brasileira de ciéncias criminais [Brazilian magazine for criminal

sciences], Säo Paulo : RT [Publishing House], number 5, page 28, Jan/Mar, 1994.

(15) FRANCO, Albert Silva, Um dificil processo de tipificaçäo [A difficult process of typifi-

cation], in Boletim IBCCrim [IBCCrim Bulletin], extra, number 21, September/1994, page S.

(6) CHIavARIO, Mârio, Direitos humanos, processo penal e criminalidade organizada

[Human rights, criminal procedure and organized criminality], in Revista Brasileira de Ciêën-

cias Criminais [Brazillan Magazine of Criminal Sciences], Säo Paulo, number 5, page 28, Jan/

Mar, 1994.

— 4} —

First of all, we must observe that the criminal organization and the

gang or band crime are confounded in relation to each other. The first

may be formed by two persons, on the other hand the gang, for being

characterized, need no less than four people. The Article 288 of the Bra-

zilian Criminal Code provides that : “The association of more than three

people, in a gang or band, with the purpose of perpetrating crimes”. The

penalty is in double in the event the gang or band is armed (sole para-

graph of Article 288). In the case of hideous crimes, practice of torture,

illicit traffic of narcotics and comparable drugs, or terrorism, the pen-

alty provided for in Article 288 of the Brazilian Criminal Code 1s

increased from three to six years of confinement, pursuant to the pro-

visions in Article 8, of Law 8.072, of 1990.

Further to the minimum number of four people, the crime of gang

or band needs : stability and permanence. It should also include a crim-

inal pre-ordering, an associative animus, an associative tie, a conjugation

of efforts, not to be confused with an independent cooperation of

agents.

On the other hand, the features of the organized crime, as set out by

Abel Cornejo “”), are :

The illicit association defended in this Article shall be deemed an organized

one when it gathers no less than three of the following features

I. — forecast of accumulation of unjust enrichment;

I. — structural hierarchy;

IM. — corporate planning;

IV. — use of sophisticated technological resources,

V. — recruitment of people;

VI. — functional division of activities)

VII. — structural or functional connection with the public power or agents

of the government;

VIII. — broad offer of social assistance;

IX. — territorial division for illicit activities;

X. — high power of intimidation,

XI. — real capacity for diffuse fraud;

XIT. - local, regional, national or international connection with another

criminal organization.

The main features of the organized crime are: a) high corruption

power with infiltration in State Powers in an attempt to control the pub-

lic administration; b) forecast for the accumulation of economic power;

c) legalization of profit illicitly obtained; d) intimidation power; e) hier-

(1) CORNEJO, Abel, Apud Gomes, Luiz Flävio [et all, Crime organizado. Enfoque crimi-

nolôgico, juridico ( Lei 9.034/95) e politico-criminal [The organized crime. Criminological,

legal (Law 9.034/95), and political-criminal focus], Säo Paulo : RT [Publishing House], 1995,

pages 75/76.

_— 42 —

archical-pyramidal

structuring

with task division;

entrepreneurial

planning; f) local, regional, national or international connection; g) sta-

bility and permanence; h) no less than four members; 1) use of sophis-

ticated technological resources; j) offer of social assistance in order to

obtain people's support;

k) territorial division for its members

actuation ; l) actual capacity of practicing a diffuse fraud; m) restriction

of knowledge as regards the actions to certain members, for a better

control of the group.

Pursuant to the doctrine, provided that three of such requisites are

present, then we have the organized crime configured.

Thus, we can observe that the concept of organized crime is much

deeper, wider, than that of a gang or band.

The organized crime makes the Powers fragile, inhibit them. Its cor-

ruptive strength is difficult to be noticed.

So, Luiz Flävio Gomes“!8) concludes that the thing that configures

the organized crime “is the sum of the typical requisites in Article 288

of the Criminal Code with a plus (that the interpreter should search in

the criminological reality) that is the final substrate of the criminal

organization, which the law is applicable to”.

Winfried Hassemer (, holder of the cathedra for Criminal Sciences

of the University of Frankfurt proposes to “use the expression organized

criminality only when the arm with which we intend to fight any and all

form of criminality 1s hindered or paralyzed: when the Legislative,

Executive or Judicial Branches become suitable to extortion or corrupt-

ible”.

He observes that the organized criminality “comprises a range of

criminal breaches without immediate victims or with diffuse victims (e.g.

drug traffic, corruption), and, therefore, it is not taken to the knowledge

of the authority by the particular”.

The lawmaker did not define what is the organized crime, did not

give contents, and that is a danger. Which is the guarantee the citizen

shall have? Which are the limits of the prohibited? The judge shall be

the one to say which plus shall be added to the band or gang crime for

configuring the organized crime.

(18) Gomes, Luiz Flävio [et alli, Crime organizado. Enfoque criminolégico, juridico ( Lei

9.034/95) e politico-criminal [The organized crime. Criminological, legal (Law 9.034/95), and

political-criminal focus], Säo Paulo : RT [Publishing House], 1995, page 78.

(19) HASsEMER, Winfried. op. cit., page 59.

__ 43 —

3. — MEANS FOR FIGHTING THE ORGANIZED CRIME

In studying the hardening of the Law, Hassemer “ says that in

granting authorities more powers, more exceptions, all this is “nothing

more false and deceitful”. He sets out that :

In Germany, they [the instruments for fighting the organized crime] were

adopted both in police and State public order laws as to the criminal and

procedure codes of the federation : secret agents, witness of the Crown

(those who, in bargain for disclosing a crime and its authors, has its own

participation forgiven or treated with benignity), extended police observa-

tion of people’s life, extended wire tapping, protection of witnesses (which

restrains the action of the defense), gathering and storage of personal data

on a wide range basis, bids for the practice of police observation, wire tap-

ping, patrimonial penalties, punishment of money laundry.

The thing that draws our attention 1s that “investigation methods

such as wire tapping, police observation, secret findings and gathering

of data necessarily and as a rule extend to non-participant third parties,

thereunto a clear exception”

9

.

and that “the pre-investigation calls

remove the intervention limits depicted by the notion of circumstantial

evidence, which traditionally served for legitimating annoyances in the

life of innocent people, only acceptable upon clear assumptions and

grounds”.

The illustrious doctrinaire explains in a very precisely manner ! :

There are now mainly three new coercion claims : the introduction of the

so-called large wire tapping as an instructive means in the criminal

procedure; the right of secret agents to commit criminal breaches typical

of the millieu ‘??) they act; employment of resources and data of the secret

services in the fight against criminality. The satisfaction of such claims in

a very probable manner shall not bring many benefits, but shall certainly

make enormous harms.

The limits for all such actions would be in the Brazilian Federal Con-

stitution. As Luiz Flävio Gomes ‘* says :

“However much we believe in the goodness of a certain action of fight

against crime, if it breaches the Constitution it should be promptly rejected.

Nobody can ignore that the Constitutional Rule of Law created a system

of guarantees that in no way can be broken”

Acerb criticisms were made to the clean hands’ operation, of Italy. À

right to exception was forged there. In Italy, we must say, the represent-

atives of the Public Prosecution Service integrate the magistrate carrier;

the carrier is a unique one. The Judges of the c/ean hands Operation are

(70) HAssEMER, Winfried, op. cit., pages 60-61.

D HASSEMER, Winfried, op. cit., page 61.

(22

) Slang : criminal.

(2) Gomes, Luiz Flävio [et alli], op. cit., pages 34-36.

__ 44 —

not judges, they are inquisitors, accusers. The Judges Falcone, Borsell-

ino, and Di Pietro are not, in the contemporaneous concept, magistrates

in fact, but they are integrant of the Public Prosecution Service. In such

operation, there was an abuse of the preventive detention. That was the

reason why Ada Pellegrini Grinover‘?® informs that the clean hands’

operation is being called in the very Italy, as an easy handcuff operation.

Why does it happen? Because the Italian magistrates are “so prodigal

in granting pleadings for preventive detention, camouflaging, under the

grounds of the harm of inquinamento delle prove — which poorly corre-

sponds to the Brazilian grounds of the convenience of criminal instruc-

tion — arrestments the only scope of which 1s widely known as being that

of compelling the charged or accused to confess”? She answers : It arises

from the “promiscuity of a carrier that gathers in the same institution

— Wwhether a corporate one or all other institution — magistrates and

accusers”, which ‘extremely weakens the defense and cannot exercise

negative influences”.

And the well-known doctrinaire concludes : ‘“’The extremely high

function exercised by the judge cannot reduce him to a mere appraiser

and legitimator of neither the charging actuation, nor the insuppressible

rights to defense can be forgotten thereby. AIl in all, the judge — the true

judge — is not engaged with the fight against the organized criminality :

he 1s solely engaged with the Justice”.

The teaching of Luiz Flâävio Gomes 1s clear :

We should never arrest to find a suspect. We cannot decree the imprison-

ment for after investigating and finding out the guilty (as the Italian Justice

has made in a certain way). Finally, we cannot forget that one of the non-

postponable assumptions that every injunction is the fair cause (fumus boni

iuris), which consists in the crime evidence and circumstantial evidences of

authorship. Without such requisites, the preventive detention, within the

scope of the Rule of Law, is unthinkable.

The man, threatened by the crime, abdicates even the fundamental

rights assured thereto by the Constitution. He is not annoyed in losing

what exists of more holy for the man : the citizen’s fundamental rights,

the human rights. Whether for immediate hardening actions, by accept-

ing even the torture of the one charged, who may be even innocent.

We need a public security policy, and not only a police policy. Both

including long term projects.

We must study the means of investigation without breaching the fun-

damental human rights, As Hassemer ° says : “We must imagine the

(4) GRINOVER, Ada Pellegrini, Que juizes säo esses” [Who are those judges?], in Boletim

IBCCrim [IBCCrim Bulletin], number 25, page 2.

(3) HASSEMER, Winfried, op. cit., page 68.

__ 45 —

possibilities of assuring the fundamental Rights without making the

investigatory activity unfeasible”.

Besides the organized criminality, we have the mass criminality. That

one that refers to the crimes committed with small or no organization

at all. That is less visible that this. Hassemer 6 explains that, “in fact,

the population is indeed apprehensive and aggressed by a kind of crim-

inality that has nothing to do with the organized criminality : the mass

criminality”. And he warns : “One who mixes both of them makes the

rational criminal policy difficult”.

Observing that :

Street burglaries, apartment invasions, commerce of drugs, steals of bicycles

or juvenile delinquency increase [we add : rapes, quick kidnappings, steals

of cars], while its police elucidation and its actual persecution trend to zero.

Such criminality manifestations affect us on a directly basis, whether as

real or possible victims. The effects are not only physical and economical

ones, but mainly they affect our emotional balance and our normative sense.

It is a lack of protection and debility sensation before unknown threatens

and harms, which lead us to doubt of the power of the Law.

And he proclaims ” : “What is however certain is that nothing shall

change, while the actual criminal Policy is not laid on the mass crimi-

nality”.

For the modern Criminology there are preventive actions for fighting

criminality. We must strike the adverse social conditions (social exclu-

sion), created by the indolence of the State, which conduct the individ-

ual to marginalization. The Government does not cause positive actions

in the fields of education, dwelling, labor and health, apt to assure the

material equality between the citizens in the sphere of the minimum war-

ranty of a condign life. Apart from that, the State is liable for instilling

the transgressor the actual fear of having its criminal intent frustrated

under a police structure that admits the agile communication between 1t

and the community, and since it is provided with the fixtures required

to its actuation. Finally, the State is in charge of discouraging those cur-

rently being delinquents to continue in such a condition, providing a set

of fair, gradual, and proportional penalties.

We must take care of the education, in my opinion, the main instru-

ment for fighting the organized crime on a long-term basis.

We must observe that, in Brazil, the situation of the public education

— and we must be aware that education is one of the citizen’s rights —

is reflected in millions of children in school age that perambulate by the

streets begging or stupidly working for helping family earnings. In the

(26) HASsEMER, Winfried, op. cit., page 58.

(2 HASsEMER, Winfried, op. cit., page 58.

__ 46 —

countryside, situation is aggravated. There is no primary school in the

country. The public schools almost no longer exist. Teachers earning a

hunger salary. Classrooms with broken furniture or many times without

chairs and tables. Students attending classes sat on the floor. Funds for

universities are reduced. Medicine and Odontology Schools without lab-

oratories, without ambulatories, and without practical studies. Then the

government celebrates the School Grant Program as it was making a big

deal.

In fact, the Brazilian government does not want an educated people,

because, as Rui Barbosa, the greatest Brazilian jurist 2 said, “people’s

education, at the same time civilizes and improves, is particularly tar-

geted to qualify it to govern itself, by electing, from time to time, in the

municipality, State, and Federal Government, the Head of the Executive

Branch and legislature”.

People without education are a mass of maneuver in hands of a gov-

ernment without scrupulous, it 1s easily deceived. People without educa-

tion are guided by the lemma of explicit dictatorship : “Brazil, love it or

leave it”. We need to educate the people for it to be able to raise and

fight for the improvement of our country.

The education is so important that, in 1927, Professor Miguel

Couto “ was used to say :

“In Brazil, there in only one national problem : the people’s education.’

Explaining :

“The people’s education is our main national problem; first, because it is

the most urgent one; first, because it solves all other ones; first, because,

provided it is solved, shall put Brazil side by side the most educated nations,

giving it yields and honors, and assuring it prosperity and security; and, if

so it becomes the first it, in fact, becomes unique. It is painful that need

of tediously repeat, time by time, that the greatest wealth of a nation is

the man, his blood, his brain, and his muscles, and that it is fatalistically

destined to decadence, notwithstanding the treasuries it has, when the man

inhabiting it does not deserve them.’

The public security, in Brazil, does not exist. Frightened, we lock

ourselves at seven keys at home. We go out plenty of fear. Assaults, kid-

nappings (now including those of the “quick” version), the rapes etc.

etc., nowadays happen minute by minute. Our children go out at night

and us, the parents, are unable to sleep until they come back home. Vio-

lence reigns in cities and in the countryside. The policeman, the recruit-

(8) Rui Barbosa, Escritos e discursos seletos [Selected writings and discourses], Rio de

Janeiro : Nova Aguilar [Publishing House], 1997, page 360.

(23) No Brasil sû hâ um problema nacional : a educaçäo do povo [In Brazil there is only

one national problem : the people’s education], Rio de Janeiro : Typ. do Jornal do Commer-

cio [Publishing House], of Rodrigues & C., 1927, page 19.

_— 47 —

ment of whom is the worst possible, is likewise frightening to us. And

why? Because he is poorly compensated, lives, many times, among ban-

dits, not improvement courses are offered to him. What can we hope

from him?

The media, as a rule, except for honorable exceptions, in the search

for sensationalism, does not want punishment, wants revenge. And the

people, poorly educated, navigate in such polluted waters. The Justice

cannot exercise the revenge, but it has to punish. While the charged 1s

not finally judged, he must be considered innocent. That 1s what 1s pro-

claimed in the Brazilian Constitution of 1988, the Constitution prepared

by the people “Nobody shall be deemed guilty until the transit in rem

judicatam of the condemnatory criminal sentence” (Article 5, LVIT). For

the time there is a possibility of appeal, the sentence has not transited

in rem judicatam. See what recently happened in Minas Gerais, a State

of Brazil. À young father was charged of having raped his two-year

daughter. The first corpus delicti survey confirmed that. The accused

was tortured by the police; humiliated, and execrated by the press. After

a new survey it was ascertained that the girl had an anal tumor, which

gave rise to the blooding. Thus we would ask as Michel Foucault has

done ©°) : “Can the cries of a misfortunate man among torments take off

the seal of a past that does not come back any more for an action

already taken?”

The organized crime increases day by day. At the hills of Rio de

Janeiro, a State of Brazil, it already exists a parallel government. The

rules are dictated by bandits. Even the supermarkets of the area obey

the trafficker orders.

And what can we say about the communication means? Observe

what Eduardo Galeano $ says :

“The advertisements proclaim that one who does not hold, is nothing; one

who has not car, or imported shoes, or imported perfumes, is a John Q.

Public, is scrap; and so the culture of consumption gives classes to crowds

of students in the school of crime.’

And he completes :

“The invitation to consumption is an invitation to the crime. In reading the

police pages of the newspapers we learn more on contradictions than on

pages reserved for unions or political matters. There we have the happy

messages of death that the consumption society issues.

G0) Vigiar e punir : nascimento da prisäo [To control and punish : the birth of the impris-

onment], translation by Raquel Ramalhete, 11th edition, Petrôpolis/RJ : 1994, page 85.

(3 GALEANO, Eduardo, “A escola do crime. Discursos sediciosos, crime, direito e socie-

dade” [The school of crime. Seditious discourses, crime, law and society.], Revista do Instituto

Carioca de Criminologia [Magazine of the Rio de Janeiro Institute for Criminology], Rio de

Janeiro : 1996, number 2, semester of 1996, page 15-16.

— 48 —

We must see that the crime is a consequence, not a cause. The cause

is in the unemployment, in hunger, misery, in the erosion and 1llegiti-

macy of governments. In the bad example given by the leaders.

4. — THE CORRUPTION

And what about corruption?

Due to the State bad organization, corruption increases. The increase

of corruption — defined ? as the “use of the public power for taking

advantage, own furtherance or prestige, or to the benefit of a group or

class, in a manner that it is a breach of the law or the standards of the

high moral conduct” — it 1s generally associated to the transformations

of the political and social powers.

The expansion of businesses, the accumulation of wealth, the misgov-

erned consumption, the mistaken education, incorporating distorted cus-

tom standards, and the bad example of governments lead to the corrup-

tion dissemination both on a public or private basis. The corruption

searches all sectors. In some more than in others, but, as a rule, it is

present. Defalcations, financial holes, money deviations, briberies,

industrial espionage. It 1s a ruin!

À society where sinecures given to relatives and political godsons

reign, the employee is not valorized, the civil service is not strengthened

and mobilized, a capitalism of the jungle dominates, tax incentives are

useful to fraudulent actions, an enervating bureaucracy exists, commu-

nication means mould a kind of non-ethical behavior, can only end in

corruption. The kiss for the thirty coins has proliferated throughout the

world…

In a precisely manner, Edmundo Oliveira said C* :

“The garments,

the clothing,

the dressing, do not extinguish it [the

corruption]; below the toga, the military dress or the rag, the human mud

is the same, the same heart pulses. As a Phoenix, it rebirths from its own

mortal remains and make as believe that it shall continue to wgist while a

man exists.’

Corruption is seen everywhere. It undermines the Rules of the Law!

Facts must be strongly ascertained, without noise, and both the cor-

rupted and corruptor must be punished. The corruption 1s institutional-

ized. Everywhere we look, corruption is there. Public moneys’ devia-

tions. The greatest example 1s the building of the Regional Labor Court

(2) Dicionârio de Ciéncias Sociais [The Dictionary of Social Sciences}. 2nd edition, Rio

de Janeiro : Editora da Fundaçäo Getülio Vargas [Publishing House], 1987, page 278.

G3) OLIVEIRA. Edmundo, Crimes the corrupçäo [Corruption crimes)|, Rio de Janeiro :

Forense [Publishing House]. 1991, pages 3-4.

_— 49 —

of the capital of the State of Säo Paulo. The money of the public com-

panies, a portion thereof nobody knows where it goes. Purchase of votes

for allowing the reelection of the head of the Executive Branch. Corrup-

tion in precatory papers of some public bodies. It is the “Brazilian way”

corruption. Not the “way” of suiting the law to reality, but the “way”

to corrupt. It is an improper gratification. It is the parliamentarian

receiving the “jeton” per session of the Congress he does not appear. It

1s the “pianist” parliamentarian. The “political patronage”, list of

exchange of political favors for economical benefits. It is the “is giving

that you receive” practiced by the government. It is the judge selling

sentences.

It is the corrupt travestied of a vestal. Pharisaism everywhere. Which

is the door where corruption has firstly knocked?

Corruption that we have already found in the pleading of Pero Vaz

de Caminha, the scrivener of the fleet of Pedro Alvares Cabral, the dis-

coverer of Brazil, to Fl-Re: D. Manuel, on May 1, 1500, when he

pleaded for his son-in-law, a robber, exiled to S. Tomé. In the end of

his letter the scrivener for the fleet of Pedro Alvares Cabral $* says :

And, Dear Lord, be sure that in this office I hold, as well as in any other

thing I may serve you, You Highness shall be very well served by me, and

I ask you to do me the singular favor. Please ask Jorge d'Osoiro, my son-

in-law, to come from the island S. Tome, which I will be glad to do.

The crimes of abuse of the economic power proliferate. Those are the

crimes of the white collar men : the crimes of the smart gentlemen, edu-

cated, riches, with good lawyers and accountants, difficult to be taken

in flagrant. When 1it occurs, the media celebrates.

Society ends for losing the consciousness of the ethical worth.

We came to a point that ethics has not any importance if it is a mat-

ter of profit.

5. — THE JUDGE AND THE JUSTICE

The judge should not walk in the search of popularity. “His greatest

trump 1s respectability, which 1s not an item capable of being ordered,

but it is something indirectly conquered by the action and the example.

Only the study, tenacity, conviction concerning the liability, notion of

(4) ALVES FILHO, Ivan, “Letter from Pero Vaz de Caminha to El-Rei D. Manuel”, in

Brasil, 500 anos em documentos [Brazil, 500 years in documents], Rio de Janeiro : Mauad

[Publishing House], 1999, page 22.

—— 50 —

the burden, may make the public man, the judge, worthy and required

to the maintenance of institutions and the social peace

5 (35)

In defending the Captain Dreyfus, whom no Frenchmen were enti-

tled to question the treason crime imputed thereto — “whosoever would

insinuate on that matter the slightly uncertainty, or who could denote

the slightly sense of commiseration, would be faced with the same hor-

ror and the same hate than the very traitor” — said Rui Barbosa ° :

“The magistrates were specially installed in their offices for assuring to the

law domain that would be as strict as more extraordinary situations were,

more formidable the sum of interests and the strength of power enlisted

against it. But there are nations that do not tolerate it other than as an

instrument of the ordinary times; and if they find an obstacle therein to

their concerns or weaknesses, they shall seek for public salvation in the

sophisms of the more flexible convenience, under the shadow of which the

crowd instinctive impulses or the irresponsible adventures of the authority

are €lways legitimated in the name of the need, the moral, or the patriot-

ISM

In Europe, the Furopean Court for Human Rights has already con-

demned the State judge to indemnify the person under the jurisdiction

for him not to have dictated the sentence within a reasonable time

period. In $ 1, Article 6, of the European Convention for Protecting the

Human Rights and Fundamental Freedom that the Justice not discharg-

ing its duties within “a reasonable time period” is an inaccessible Jus-

tice ‘

37)_

The Justice, we must repeat, cannot be used as a tool of revenge.

Poor people suffer with that Justice; we inverted now, say the insane

ones : rich and white in the jail, even though without the due legal pro-

ceeding, without contestation. That is not Justice! It 1s vendetta. It is the

Justice of Hitler, Mussolini, and Stalin. The Justice cannot be used for

humiliating, despising the human rights so hardly conquered along the

centuries. All are equal before the law. If black and poor people, shanty-

town inhabitants, and prostitutes are not having their rights respected,

so let us fight for them to have. Let us improve the Justice, ameliorating

it. But never to invert things. Not to the Revenge!

”

“We may have dignity without being happy, but it is not possible to be

happy without dignity

» (38).

() BriGIDOo NETo, Gerôncio. Missäo cultural do juiz. Jurisprudéncia e Doutrina [Cultural

mission of the judge. Jurisprudence and Doctrine], Fortaleza, 1968, number 72, page 15.

G6) BARBOSA, Rui. Rui Barbosa. Escritos e discursos seletos [Selected writings and dis-

courses], Rio de Janeiro : Aguilar, 1997, page 843.

(3 CAPPELLETTI, Mauro and GARTH, Bryan, Access to the justice, translation by Ellen

Gracie, Porto Alegre : 1998, pages 20-21.

G8) FeLIPE, Marcio Sotelo. À razäo juridica e a dignidade humana [The legal reason and

human dignity], Säo Paulo : Max Limonad, 1996, page 108.

__ 51 —

6. — CONCLUSION

We conclude with the lesson of the Judges for the Democracy (a

judge association in Brazil)

(39) .

“The judges are not judges because they fight criminality, or because, as

intrepid as the Far West heroes, they face and duel with the bandits, the

villains, and the ragamuffins. The judges — and the lesson is as ancient as

they own! - are judges only because they publicly say the law. And say the

law nowadays is, before anything else, to preach the Constitution, its guar-

antees, its grounds, its principles and freedoms. Provided that it is done,

and only that is done, the judges shall accomplish, and well accomplish,

what is expected from them. And it is for that - nothing more than that!

that the society created the judges, and it is the reason why it still

believes in them.

s,

Rigor with the crime, yes, but an intransigent defense of individual

rights and guarantees.

ABSTRACT

Criminal Law cannot, on its own, contain the storming wave of

crime, especially corruption. Social justice 1s the best way of prevention,

and human rights have to be preserved.

SOMMAIRE

Le droit pénal ne peut être le seul rempart contre le crime, spéciale-

ment la corruption. La justice sociale est la meilleure prévention, et les

droits humains doivent être sauvegardés.

RESUMEN

El Derecho penal no puede ser el ünico recurso contra el crimen,

especialmente en el caso de la corrupciôn. La justicia social es la mejor

prevenciôn y los derechos humanos deben ser salvaguardados.

G9) Juizes e legalidade [Judges and legality], Editorial of the publication of Associaçäo

dos Juizes para a Democracia [The Association of Judges for Democracy], number 29, Jul/

Sep 2002, page |.

__ 52 —

THE ACADEMIC STATUS

OF CRIMINOLOGY

Stockholm, June 15, 2006.

À first general outline for the programme

of the 2008 World Congress of Criminology

in Barcelona (Spain)

Tony Peters ‘

1. — CRIMINOLOGY AND THE STOCKHOLM PRIZE

— Stockholm Prize gives criminology as an academic discipline a fresh

profile.

— Congratulations for this new initiative.

— Remarks and doubts.

- Decisive and convincing arguments in favor :

« jury;

° first laureates.

— À challenging future

2. — CRIMINOLOGY AND THE INTERNATIONAL SOCIETY

FOR CRIMINOLOGY (I.S.C.)

- Great tradition of international exchange.

— World Congresses of Criminology now every 3 years.

— A long list of Regional International Courses of Criminology (2 or 3

per year).

“

- Mission : follow-up and critical analysis :

* international trends of crime and of criminalized social phenomena ;

< development of traditional and new instruments of control of these

phenomena ;

— Impact of globalization and new technologies.

- Stockholm Prize and the I.S.C. promising combination.

(*) Em. Prof. at the Catholic University of Leuven (Belgium). President of the Interna-

tional Society for Criminology.

__ 53 —

“Core Business” of criminology.

Reflection on the state of affairs.

The XVth World Congress in July 2008 in Barcelona.

3. — WHY DO WE HAVE TO RE-OPEN

THE DEBATE ABOUT THE ACADEMIC STATUS

AND POSITION OF CRIMINOLOGY?

|

Criminology went through a process of emancipation.

From an auxiliary, adjective position to an autonomous interdiscipli-

nary approach.

What are the essential characteristics and what makes criminology

special in comparison with other academic disciplines?

Looking for the added value.

4. — SHORT PRESENTATION OF A POSSIBLE LIST OF TOPICS

FOR OUR DISCUSSIONS IN BARCELONA

The development of full and independent undergraduate and graduate

study programs in criminology or criminal justice studies.

- Comparing recent European initiatives with programs world wide.

- What 1s the influence of the EU through EFrasmus experiences and

the Sorbonne Bologna declaration?

Building up and exchanging criminological knowledge.

The importance and role of a fast growing number of national and

international criminological revues.

Criminology :

a dialectical relation between on the one hand the academic activity

in theory and research and criminal justice in action on the other

hand.

The role of research, research planning, research financing and the

development of a rich diversification of research methods.

|

Criminologists as agents of social change and the role of professional

organizations.

Criminology and the explosive media attention for crime and criminal

justice.

What is our academic answer in terms of providing educational sup-

port and specialization?

__ 54 —

— The growing role of national, international and supra-national organ-

izations using criminological expertise.

The prominent place of several sub-areas or sub-disciplines and the

trend to develop autonomous areas of research and policy-develop-

ment.

What are e.g. the future relations between criminology, victimology

and restorative justice?

Criminological expertise has an important role to play in adjacent

areas and disciplines.

What is the role of criminology in educational programs of law, soci-

ology, psychology, etc.’

What is the role of criminology in the professional education of police

officers, socials workers, security agents, etc.?

These are just a few examples of thematic questions, we will have to

discuss when we meet in 2008 in Barcelona to reflect on the role and on

the status of academic criminology.

These and many more comparable themes will be the subject of :

— plenary sessions

and of

— workshops and poster sessions

which will bring together academic and professional criminologists,

researchers and practitioners to discuss the actual and future status and

position of criminology.

I invite you all to take part in the preparatory activities, which will

be coordinated by the Scientific Commission of the I.S.C. under the

leadership of Prof. Serge Brochu, who is the President of the Commis-

sion.

1. — CRIMINOLOGY AND THE STOCKHOLM PRIZE

The funding of the Stockholm Prize in Criminology and the organi-

zation of an international symposium surrounding the award of the

Prize has to be considered as a major step forward in the further “pro-

filing” of criminology as an academic discipline, bringing together and

stimulating exchanges between scientific researchers and practitioners,

both concerned about crime, justice and policy-making.

As the acting president of the I.S.C., I have the great honor to con-

gratulate especially those who have taken the initiative to create the

Stockholm Prize.

_— 55 —

That is why I want to congratulate former President Prof. Lawrence

Sherman, now Honorary President of the I.S.C., who initiated the ambi-

tious project and to congratulate the Swedish Minister of Justice, who

accepted and modeled the project and gave it a name and developed

together with the National Council for Crime Prevention BRÀ the Sym-

posium formula.

I must admit that I personally, and I was not alone, had my doubts

about the possibility to realize this ambitious project. Even Scandina-

vian colleagues expressed their feelings of concern. But we also know

that Lawrence Sherman is a colleague who doesn’t give in easy. He was

convincing in making many people join his project.

Two major arguments convincing the criminological community have

been :

1) An excellent and well balanced composition of a team of jury-

members. They represent without any doubt top ranked criminologists

world-wide.

2) The selected first laureates of the Stockholm Prize in Criminology

have put the fame and the importance of the Prize beyond all doubts

and criticism.

That is why, on behalf of the I.S.C. and its many members from all

over the world, I congratulate with great enthusiasm and with great

respect the first Prize Winners, Prof. Braithwaite and Prof. Lôsel and I

also include in this congratulations the jury-members who did a difficult

but great job.

It is my vivid hope that the great success of the first award of the

Stockholm Prize will be continued in the near future in the same way

and will reach the same level of quality.

It is indeed an even more ambitious challenge to guarantee the real-

ization of the same high level in the years to come.

The I.S.C. and especially its scientific Commission under the leader-

ship of it’s president Prof. Serge Brochu, Université de Montréal, will be

at your side to support the initiative and to make the Symposium a suc-

cessful scientific event.

2. — CRIMINOLOGY AND THE I.S.C.

The I.S.C. has a rich history of many decades and also a great tra-

dition in fostering international relations among and between academic

criminologists and (criminal) justice practitioners.

—— 56 —

The main instruments therefore have been in the first place the

organization of World Congresses (XIV till now) in the second place the

offer of many more regional International Courses (67 till now).

The World Congresses have always shown their capacity to gather

more than 1000 interested researchers and criminal justice practitioners

from all over the world to discuss a broad spectrum of criminological

questions and problems.

The board of the I.S.C. decided to increase the number of these

meetings. They will be held every three years.

The annual International Courses of Criminology (2 or 3 per year)

focus on a more limited subject matter and give researchers and practi-

tioners the opportunity to meet in / and develop regional networks.

It is the ambition of the I.S.C. to give a well balanced attention to

— on the one hand the monitoring and critical analysis of trends in crime

and of criminalized social phenomena.

— and on the other hand to study and critically analyze the development

of traditional and new instruments of crime control policies, especially

in the context of networks of international collaboration.

In both areas of research the impact and consequences of the eco-

nomic globalization and of the fast growing communication technolo-

gies play a decisive role.

At the same time they facilitaté the production of complex and inter-

related problematic social situations but they also create a lot of new

opportunities for it’s study, understanding and policy reform.

The I.S.C. has the ambition to include these new challenging issues

in it’s core business and to develop and provide new and adapted strat-

egies for a more close follow-up.

The association of the I.S.C. with the creation of the Stockholm

Prize in criminology, rewarding outstanding criminological researchers

and the implication (of the I.S.C. through the Scientific Commission) in

forward in the realization of this ambition.

the organization of the Annual Symposium 1s a new and impertant step

This new Prize and the yearly organized Symposium put Criminology

as an academic discipline in the frontline of a growing number of social

sciences.

On behalf of the I.S.C., I would like to stress that we consider critical

and independent systematic scientific research to be the ‘“core business”

of criminology.

As an academic discipline criminology concentrates its scientific

activities on the one hand on the processes of the socio-legal definitions

of problematic and harm producing behavior and it’s critical description

__ 57 —

and analysis and on the other hand on the processes of state and com-

munity policies to develop systematic and institutionalized answers to

these phenomena.

Criminology as an academic discipline recently went through a proc-

ess of “self awareness” and “self-assurance” and the funding of the

Stockholm Prize in Criminology can be seen as it’s confirmation.

No reason to indulge but on the contrary a good reason to stimulate

criminologists to get involved in the debate about the actual and future

position of our discipline in the academic world and in the communities

in which and for which we work.

The fast changing developments in criminology during the past dec-

ades impose us to reflect on the state of affairs of the discipline. We

have to discuss recent movements, changes and profilations of educa-

tion, research and policy making.

Criminology as an academic entity of scientific activities arrived at a

point where far reaching decisions are now prepared or already taken

determining its future outlook.

That is why the I.S.C. has chosen the subject as the main theme for

its next World Congress. The XVth World Congress will be held in

Barcelona in July 2008.

As the acting president of the I.S.C. I make use of this important

event in Stockholm (Sweden) and of this tribune today to promote the

theme and the congress.

We started the first discussions in preparation for the World Con-

gress during the meeting of the scientific commission in Paris on the 20"

of May, less than a month ago.

I use the opportunity to launch a first outline of our deliberations

about the planned plenary and workshop sessions in Barcelona.

—

3

There are a number of good reasons to open or to re-open the debate

about the status and position of criminology as an academic discipline.

Criminology is at the same time an educational project, a field of

interdisciplinary scientific research and a source of inspiration for policy

making.

As an academic discipline criminology went, especially during the

recent decades through a remarkable process of emancipation.

An undeniable change in the historical position of the academic sta-

tus of criminology has taken place.

__ 58 _

Many colleagues of my generation have personally experienced this

process and have in several ways contributed to the form it has taken.

Instead of being a servant or auxiliary discipline in legal, social or

even medical sciences, criminology became an autonomous often inde-

pendent entity of scientific academic activities.

Instead of being just an adjective to another disciplinary approach,

criminology now functions as an interdisciplinary approach in its own

right.

What makes criminology differ from the disciplines which have

served as its breading grounds?

Criminology combines in an integrated way the normative with the

socio-empirical approach, not only to describe, analyze and understand

the phenomena of crime, defined as socio-problematic harmful behavior

but studies at the same time the processes of criminalization and/or

decriminalization of these phenomena in their social context and

includes in its research the institutionalized answers to these phenomena.

Criminological scientific activities operate in a field of social prob-

lems in which choices have to be made between fundamental human val-

ues and rights in conflict and embraced by sharp tensions.

An essential characteristic of Criminology, as an academic entity of

scientific activities, is the combination and integration of a normative,

a socio-empirical AND an ethicat approach not only of fact describing

and analysis but also of the fact production and of the policy processes

producing the institutionalized reactions in a complex social context.

What 1s the added value of this autonomous profile and what is the

role we expect from an independent interdisciplinary approach in defin-

ing and studying the above mentioned subject matter of criminology?

Through the exchange of information and common deliberations

during the Barcelona Congress we want to describe and demonstrate

how this process of integration of the different approaches finds 1ts

expression in the many scientific activities in which criminologists are

involved as scientific researchers or as professionals in a Wariety of

socially relevant institutions.

4

—

Here follows a short list of possible thematic examples to discuss the

role, the position and the status of criminology.

4.1. À first point in the development of the academic status of crim-

inology 1s the introduction of full and scientifically independent under-

__ 59 __

graduate and graduate (BAMA) study programs in criminology, or

criminological sciences and criminal justice studies.

The U.S.A. and Canadian examples have inspired a comparable

trend in the U.K. and more recently also continental Furopean univer-

sities.

The narrow link between law and criminological sciences and the

integration of criminology departments within law faculties seems to be

a typical continental European tradition.

We will have to analyze and discuss the different visions on crimi-

nology as an independent educational project.

The way the programs are conceived and the profiling of criminolog-

ical sciences and research methodologies in relation to the other sur-

rounding disciplines is a special point of attention and evaluation.

À recent trend which earns special attention is the translation of the

criminological subject matters into problems of safety and security.

Some programs seem to look for a position within a more narrow part

of the broad spectrum of the criminological sciences.

This academic and social acceptance have been facilitated by giving

priority to the concerns about the so-called ‘“risk society” and the

“crime control” in the late modern welfare state.

4.2.A second point which accompanies and 1llustrates the develop-

ment of strong educational and research projects in the criminological

sciences it the fast growing number of national and international revues.

It is not difficult to produce a long list of new / recently started revues

in which criminology is the main or exclusive subject matter. In another

group of revues criminology 1s closely linked with criminal law and

international crime policies. Some revues focus on important crimino-

logical sub-themes such as punishment, the prevention of crime, juvenile

delinquency and juvenile justice, victims of crime, restorative justice, etc.

These revues represent and prove the growing body of specialized

criminological knowledge and expertise.

4.3. The development of a dialectical relation between academic crim-

inological programs and criminal justice practices helps to build up a

more explicit image of the criminological professions.

When I may refer to my own experience of teaching criminology, I

can strongly confirm that meticulously selected and academically well

guided and contextualized internships or field placements of criminology

students, have to a great extent contributed to the discovery and recog-

nition of the many possible roles of the criminological expert.

The social / community importance of an autonomous criminological

educatiqn is a socio-dynamic reality which results form a dialectical

— 60 —

process between criminology departments offering education and com-

munity institutions absorbing but also co-modeling criminological

expertise.

The dialectical interaction between the community users of the exper-

tise and the academic producers of educational programs 1s the condi-

tion “sine qua non” to keep academic programs updated and policy-ori-

ented.

4.4. The development of strong criminological Research Units marks

the autonomous academic position of criminology.

The Cambridge Institute of Criminology is since several years the

point of reference in Europe. During many years criminological research

was kept in an auxiliary role by the legal as well as the social sciences.

During the Barcelona World Congress we will have to look into

these new developments taking stock of research programs, the thematic

and methodological diversification, the different ways of financing the

projects and the relation of the research units with the different institu-

tions and authorities commissioning research work.

Big progress has been made in the development of specific crimino-

logical research methods, e.g. victim surveys, as a quantitative method.

Ethnographic and cultural anthropological research have played a

role in the development of cultural criminology.

Since criminological research expertise is much appreciated and crim-

inologists act as professionals in many organizations it is the duty of

criminological education to provide strong methodological support for

researchers as well as for criminology in action.

The professional criminologist acting within the framework of differ-

ent types of organizations has to be prepared and supported to be able

to play a role as an agent of social change and as a policy maker.

The methodology of the intervention in individual cases as well as in

organizations is an other important dimension of the methodological

preparation of criminologist.

Alumnae organizations of criminologists act as a bridge between aca-

demic programs and the field using criminological expertise. They play

a role as consulting partners in evaluating educational programs.

4.5. The huge media attention for crime, crime control and criminal

justice policies urges criminologists to complement their expertise with

communication skills. À critical criminological analysis and fundamental

research-based visions and comments have to be made available in the

public debate about crime and crime control.

Criminology departments should take initiatives together with Com-

munication Studies Departments to co-develop educational programmes

— 61 —

in which both types of expertise are brought together and get integrated

in their common application.

There is a growing need for this type of specialized professionals,

since local national and international organizations have the duty to

inform the large public about their activities and policy making in rela-

tion with crime and criminal justice.

Their image, acceptance and potential influence are very much

dependent from their ability to communicate in an independent, critical

and efficient way.

4.6. Another strong point in the development of criminology as an

autonomous academic discipline is the prominent presence and public

attractiveness of several sub-areas or sub-disciplines. Some of them have

largely exceeded the borders of the traditional criminological approach.

Victimology to mention a good example has not only enlarged the

criminological scope but also imposed criminologists to rethink a lot of

their daily used concepts such as punishment, prevention etc. not to for-

get the key concept of crime itself.

Closely linked to victimology, Restorative justice as a philosophy, as

a movement and as a practice, has contributed to the remodeling of jus-

tice in general and criminal justice in particular.

In the field of victimology and also restorative justice, professional

criminologists have picked up new roles in victim support, assistance

and in victim-offender mediation. They also demonstrate how criminol-

ogists become agents of social change, especially when they have the

opportunity to reform existing practices through bottom up organized

and introduced action programmes.

4°7.To finish my list of thematic examples through which we want

to discuss the changing academic status of Criminology,

I would like to refer to the important position of national, inter- and

supranational organizations, playing a role in the development of crime

control and criminal justice policies.

These organizations call upon criminological expertise.

University departments in Criminology should differentiate their edu-

cational offer and their research programme in order to be able to meet

the fast growing needs of experts trained in international and compara-

tive studies in crime and criminal justice.

Looking into the European context universities have been invited by

the EU to develop cooperation and exchange and to make students to

more around to enlarge the scope of their study experience.

Several disciplines tried to set up common initiatives.

__ 62 —

In the case of criminology I have participated in setting up intra-

European initiatives but also exchange programmes with Canadian Uni-

versities. Several colleagues were involved in similar initiatives.

Such initiatives have a great future in the development of a differen-

tiated set of criminological educational programmes.

The Sorbonne/Bologna declaration of the EU stimulates and facili-

tates the remodeling of the European Academic World.

The Barcelona World Congress of 2008 will be an opportunity to dis-

cuss and evaluate the new developments taking place in Criminological

Educational programmes.

ABSTRACT

Between the Stockholm Prize and the XVth World Congress in 2008

in Barcelona, the president of the Society addresses to the debate about

the academic status and the position of criminology.

SOMMAIRE

Entre le prix de Stockholm et le 15° Congrès mondial qui doit se

tenir à Barcelone en 2008, le président de la Société réamorce le débat

sur le statut académique et la position de la criminologie.

RESUMEN

Entre el premio de Estocolmo y el 15° Congreso mundial que tendrâ

lugar en Barcelona en el 2008, el presidente de la Sociedad reaviva el

debate sobre el estatuto académico y la posiciôn de la criminologia.

__ 63 —

LA LIBERTAD EN LA SOCIEDAD

DEL MIEDO “

Esther Giménez-Salinas i Colomer ‘”)

1. — LA EXPANSION DEL DERECHO PENAL

Permitanme comenzar por una cita que en estos momentos la mayo-

ria de paises podriamos compartir “Alli donde llueven las leyes penales

continuamente, donde entre el pûblico a la menor ocasiôn eleva un cla-

mor general de que las cosas se remedian con nuevas leyes penales 0

agravando las existentes, ahi no se viven los mejores tiempos para la

libertad — pues toda ley penal es una sensible intromisiôn en la libertad,

cuyas consecuencias serän perceptibles también para los que la han exi-

gido de modo mâs ruinoso — alli puede pensarse en la frase de Täcito :

Pésima respublica, plurimae leges .

Afirmaciones como esta o muy parecidas las encontraremos en la cri-

tica a la mayoria de reformas penales que ha sufrido nuestro sistema

penal en los ültimos años. Legislar a golpe de acontecimientos es desde

luego la peor politica criminal, pero desgraciadamente se encuentra en

estos momentos en total expansiôn. Frente a graves problemas surge el

derecho penal como una especie de “varita mâgica” capaz de solucionar

los problemas que la sociedad se siente incapaz de afrontar, como si por

medio de leyes pudiéramos erradicar la violencia, la corrupciôn etc…

Un poco a modo de resumen reproducimos aqui parte del Informe sobre

la aplicaciôon del nuevo Côdigo Penal en cuya elaboraciôn fuimos

ponentes como Vocales del Consejo General del Poder Judicial Ramôn

Saez Valcärcel y yo misma, en fecha 12 de julio de 1999.

Asi el citado informe decia que cualquier reforma del Côdigo Penal

necesita : “un profundo razonamiento fundado, para una legislaciôon como

la punitiva, que constituye la ultima y mäs rigurosa de las medidas ten-

dientes a mantener la cohesiôn y el desarrollo del Estado de Derecho, de

modo que en ella se expresen las relaciones necesarias que derivan de la

naturaleza de las cosas y no una respuesta inspirada en estados de opi-

niôn transitorios o en fenômenos puramente coyunturales o no suficiente-

mente acreditados. Al propio tiempo, de estas consideraciones resulta la

(*) Barcelona, julio 2006.

(**) Rectora de la Universitat Ramon Llull.

() VoNn Bar, Berlin 1882, citado por Jesûs M. Silva Sânchez en : La Expansiôn del Dere-

cho Penal. Ed. Civitas. Madrid, 2001.

__ 64 —

importancia de encontrar soluciones legislativas que sean a la vez razo-

nables, razonadas y ampliamente aceptadas, de modo que puedan tener

vocaciôn de estabilidad y permanencia” *.

Desde esta perspectiva, aun partiendo del obligado respeto a la pleni-

tud de la soberania legislativa, parece necesario recordar la obligada

vigencia de principios tales como el de intervenciôn minima, el de subsi-

diariedad, asi como el carâcter fragmentario de la intervenciôn penal,

como ultima ratio, excluyendo el recurso a la aplicaciôn del Derecho

Penal para la resoluciôn de conflictos que pueden encontrar respuesta en

otros ambitos. Especial menciôn cabe hacer en este punto a la delimita-

ciôn entre los supuestos de ilicitud penal y administrativa, evitando que

la elevaciôn del ilicito administrativo a la categoria de hecho penalmente

punible se efectue de manera exorbitante, incondicionada, si el bien juri-

dico cuya protecciôn se procura, en cuya raiz se encontrard, indudable-

mente, un interés o valor constitucionalmente protegido y socialmente

apreciado, no merece sin embargo de una manera contrastada e ineludible

la protecciôn penal y no es, en suma, un bien fundamental, o la amenaza

contra el mismo no aparece como intolerable o puede encontrarse en

otros ambitos del ordenamiento juridico una respuesta adecuada para la

prevenciôn y neutralizaciôn del injusto.

Las reformas penales en España acaecidas en el periodo entre 1996

y 2004 no han hecho mâs que aumentar las conductas tipificadas como

delitos, asi como la gravedad de tas penas “.pero esta tentaciôn desgra-

ciadamente la tienen hoy todos los gobiernos, asi por ejemplo la Ley

que regula la responsabilidad penal de los menores Ley 5/2000 y que

hasta la fecha no ha presentado problemas sustanciales, se verâ endure-

cida en breve por le presiôn social de algunos casos aislados. Asi mismo

una recientisima reforma del Côdigo penal que entrarâ en otoño en el

Parlamento español aumenta nuevamente las penas en determinados

delitos (Bandas organizadas, träfico de personas, delitos contra la segu-

ridad del trâäfico,....) siendo aparentemente el aumento de las penas el

“mejor remedio”. Como veremos mâs adelante la situaciôn penitenciaria

en España raya os limites de lo admisible. Asi nos encontramos en este

momento con una saturaciôn total del sistema penitenciario, con una

ratio de presos de 144.5 por 100.000 habitantes, con un importante

aumento de las condenas y con una dificultad de mantener un discurso

coherente conforme a que la prisiôn debe procurar respetar el mandato

constitucional de la prevenciôn especial.

C Informe del Consejo General del Poder Judicial, sobre la aplicaciôn del nuevo Côdigo

Penal.

G) Véase en especial la reforma introducida por la L.O. 15/2003 de 25 de noviembre.

—— 65 —

Pero este no es un fenômeno exclusivo de España, ni siquiera de

Europa. La tendencia a una clara expansiôn del Derecho Penal es hoy

inequivoca. Pero no ya tan solo por lo expuesto anteriormente, sino tal

como sefñalaba Jesüs Silva‘’, la sociedad cada vez pide mâs protecciôn

y curiosamente esto llega desde todos los sectores sociales.

La conocida frase de Radbruch, “No buscamos un Derecho Penal

mejor, sino algo mejor que un Derecho Penal”, no seria hoy posible

mantenerla. El derecho penal goza pues de “relativa buena salud” y su

representaciôn social es cada vez mâs amplia. La confianza que a través

del sistema penal podremos solucionar nuestros principales problemas

empieza a estar profundamente arraigada en la sociedad. Pero tal como

expresa Diez Ripollés, resulta sintomâtico ver como se legitima y porqué

causas esta expansiôn se dirige a un sector, y sin embargo queda fuera

cuando se trata de la criminalidad “de los poderosos” ©).

Tema distinto son las causas de esta expansiôn del derecho penal,

tanto de la apariciôn de nuevos riesgos como de ese sentimiento de inse-

guridad que no siempre coincide con la realidad.

Asi podemos decir en general que la politica criminal en el mundo

Occidental se orienta de la siguiente manera :

— Ampliaciôn de las conductas tipificadas como delitos

— Agravaciôn de las ya existentes.

— Mayor penalizaciôn de las conductas de riesgo

— Confianza de la sociedad en el sistema punitivo.

— Crisis del modelo de bienestar social y sustituciôn de las politicas

sociales por politicas penales.

— Lucha contra el pequeño delincuente, emigrante, drogadicto, desarrai-

gado, descuidando o sintiéndose impotente frente a la delincuencia de

los poderosos, la corrupciôn, el träfico de droga y armas…

Sin embargo y antes de pasar al punto siguiente deberiamos pregun-

tarnos desde un punto de vista criminolôgico de que cifras estamos

hablando.

;Hay mâs delincuencia?

En qué proporciôn se ha incrementado?

(Podemos predecir el futuro?

( SILVA SANCHEZ, J.M., en La Expansiôn del Derecho Penal, Ed. Civitas, Madrid, 2001.

5) Diez RiroLLÉS, J.L., en “El nuevo modelo penal de la seguridad ciudadana”, Revista

Eléctronica de Ciencia Penal y Criminologia, 2004, nûm. 6.

__ 66 —

Prisiôn

Condena

Delito esclarecid

Diligencia previa

JÉUENUENS

\s smt

——

Denuncia criminal

Avisos a la policia

La victima opina que no

vale la pena denunciar

La victima no lo define como un hecho delictwo

Delitos que nadîe detecta

Este cuado, elaborado por Vicente Garrido, Per Stangeland y San-

tiago Redondo, en su libro Principios de Criminologia, presenta la delin-

cuencia como un iceberg, donde la mayor parte se encuentra oculta bajo

la superficie del agua. Vamos a comentar cada uno de los niveles de esta

figura, de abajo a arriba y la informaciôn empirica que existe en cada

nivel. Reproducimos textualmentë el comentario

Delitos que nadie detecta. Normalmente son delitos contra una colec-

tividad de personas, como fraudes a la Hacienda puüblica, corrupciôn

delitos contra el medio ambiente, robos en grandes almacenes u otros

delitos donde no hay una victima personal como sucede, por ejemplo

en el trâäfico de drogas. Estos grupos de delitos tienen unas tasas de

esclarecimiento muy bajas

— Hechos que no se definen como actos delictivos, la bicicleta que falta

es un préstamo o un robo? El talôn sin fondos (es una estafa o un

despiste? Por la gran cantidad de actos que dependen de la interpreta-

ciôn contextual, nunca se pueden presentar cifras exactas sobre el volu-

men de la delincuencia oculta

Hechos que no vale la pena denunciar. En estos casos existe una vic-

tima que define el hecho como delictivo, pero no presenta denuncia. Las

razones dadas son, principalmente, que la policia no va a encontrar el

objeto perdido, o que el daño, ya hecho, es irreparable, y, por eso, se

desiste de presentar una denuncia o de asistir al proceso penal. Sobre

este nivel del iceberg tenemos datos fiables, ya que se han realizado

encuestas en las que se pregunta a una muestra representativa de la

poblaciôn si han sufrido algün tipo de delito durante el ültimo año

— 67 —

También se pregunta si el delito ha sido denunciado, y, en caso de que

no lo haya sido los motivos.

Avisos a la policia. Un policia que patrulla las calles de una ciudad a

pie, observa que dificilmente puede caminar mâäs de cien metros sin que

alguien se dirija a éllella. Los ciudadanos avisan sobre sucesos, presen-

tan quejas o preguntas. Los distintos cuerpos de policia también reciben

una gran cantidad de llamadas telefénicas. Muchos ciudadanos creen

que con esto han presentado una denuncia. No obstante, pocos de estos

avisos se plasman en un parte policial escrito.

Hechos denunciados a la Policia Nacional, autonômica o Local, a la

Guardia Civil o directamente al Juez de Guardia. La denuncia normal-

mente da lugar a una atestado policial remitido después al juez de ins-

trucciôn. Si la denuncia se ha presentado ante la Policia Nacional o

Guardia Civil, también se rellena una hoja estadistica, con datos sobre

el suceso y sobre la victima. En contraste con la mayoria de paises

europeos, esta estadistica policial no se publica, sino que estàâ pensada

para uso interno. Por esto en el cuadro esta informacion se encuentra

ubicada bajo la superficie. En Alemania y los paises anglosajones se

suele distinguir entre las “cifras ocultas” de la delincuencia, desconoci-

das y la “delincuencia registrada”, que es denunciada a la policia. Esta

distinciôn carece de sentido en España, porque faltan también datos

sobre la delincuencia registrada. Sin embargo, las estadisticas policiales

a nivel nacional se facilitan a personas interesadas, y se pueden encon-

trar por ejemplo, en el Anuario del periôdico “El Pais”, y en el anexo

estadistico editado por À. Serrano Maillo en la “Revista del Derecho

Penal y Criminologia”

Diligencias previas. Una vez conocido el suceso por el Juez de Instruc-

ciôn, se incoa una diligencia judicial, basada en el atestado policial o

en la denuncia misma. Estos datos se encuentran en las Estadisticas

Judiciales de España, y también en un anexo de la Memoria del Con-

sejo General del Poder Judicial. Sin embargo, los jueces de instrucciôn

incoan diligencias nuevas en otras situaciones, en asuntos meramente

administrativos, civiles, o cuando reciben informaciôn adicional sobre el

mismo caso. Por estas razones, sus datos sobre el nümero de diligencias

incoadas indica el volumen de actividad de cada juzgado mâs que la

delincuencia en la sociedad que les rodea. La fiscalia, en su Memoria,

presenta cifras sobre “diligencias previas” abiertas en los juzgados. En

estas cifras han sido eliminadas las diligencias “indeterminadas” que

nunca llegan a la calificacion fiscal.

Delitos esclarecidos. La estadistica policial indica si el autor ha sido

identificado o no. En la gran mayoria de los casos de robo, no se

encuentra al autor del delito, y el caso queda sin esclarecer. De la

—— 68 —

misma manera, en la mayor parte de las diligencias no existe ninguna

persona identificada como sospechosa, y se sobresee la causa. Los casos

que llegan a juicio son, por eso, de distinto tipo que los casos contabi-

lizados por la policia. En la estadistica policial predominan los robos

mâs que en las estadisticas judiciales.

- Condenas. La estadistica judicial nos informa sobre el nümero de per-

sonas condenadas al año, asi como las penas impuestas.

- Condenas a prisiôn. Por fin, en el punto mäs visible de este iceberg,

encontramos los delincuentes que han sido condenados a prisiôn y que,

efectivamente estân cumpliendo condena ‘°)”,

2. — SEGURIDAD VERSUS LIBERTAD

Un Profesor de Derecho internacional y buen amigo el Dr. Eduard

Sagarra me contô que unos alumnos le preguntaron justo al dia

siguiente del 11 de septiembre de 2001, y a tenor de las medidas poli-

ciales que se querian aplicar en los Estados Unidos y en Europa, si la

seguridad era compatible con el concepto democrâtico de libertad. Es

una dificil pregunta le contestô él, para quienes, creemos que la seguri-

dad debe planificarse y aplicarse, pero teniendo en cuenta y respetando

la ley, la justicia y muy especialmente la libertad de los ciudadanos ”.

Uno de los grandes dilemas que hoy se plantean los estados y regi-

menes democrâticos — cuya politica se funda en el respeto a la legalidad

y estän sometidos al Estado de Derecho — es : ;La seguridad interna e

internacional es compatible con la libertad y el respeto de los derechos

y libertades constitucionalmente e internacionalmente proclamados y

protegidos? (Sirven las viejas fôrmulas garantistas en la era de la

globalizaciôn?‘9) ;De qué manera a partir de ahora habrä que aplicar

las nuevas leyes? (Serä cierto aquello que tantas veces nos habiamos

cuestionado, que una politica criminal garantista es sempre poco eficaz?

(Estä reñida la eficacia con el garantismo? Mi respuesta seria rotunda-

mente no, pero sin duda seräà necesario una reflexion mucho mâs pro-

funda y matizada.

(6) GARRIDO GENOVÉS, V., STANGELAND UTNE, P. y REDONDO ILLESCAS, S., en Principios

de Criminologia, pâg. 116 y ss., ed. Tirant lo Blanch, Valencia, 1998.

() SAGARRA Trias, E., en “La nueva legalidad en el marco del nuevo orden internacio-

nal”, Revista IURIS, Barcelona, 2001.

(8) SAGARRA Trias, E., en Reflexiones y consideraciones sobre el orden juridico internacio-

nal a partir del once de septiembre.

— 69 —

3. — SEGURIDAD Y GARANTISMO

Tras los trägicos atentados terroristas del 11 de septiembre de 2001,

en los EE.UU, el Secretario General de la OTAN, AR. Roberson, decla-

raba “la ficcion ha superado la realidad”. Ante dichos acontecimientos

y, en especial, analizando las posibles causas — remotas o prôximas —

que los han provocado, cabe preguntarse si estamos ante el nacimiento

de un “un nuevo orden internacional” distinto de la politica clâsica de

la seguridad interna o internacional‘’. En esta nueva situaciôn deberän

regularse de forma distinta las relaciones y la convivencia de la ciuda-

dania y de las comunidades estatales. Igualmente, cualquier politica

interna e internacional tendrâ que contemplar esta nueva situaciôn y

todos, — politicos, pensadores, empresas y ciudadanos — estamos impli-

cados en diseñar una nueva legalidad y buscar su razôn de ser o prin-

cipios que los orientan.

Ciertamente algo està cambiando. En España, tras los terribles acon-

tecimientos del 11 M del 2004, los comentaristas dicen, y con razôn, que

hay un antes y un después de aquel dia. F. Onega ° en un reciente arti-

culo escribia : “Quedan heridas y lesiones abiertas, y aunque resulte

tôpico, el 11 de marzo de 2004 un salvaje atentado cambiô la historia

de este pais”. Hay muchos aspectos que no los conocemos ni probable-

mente los conoceremos nunca, y desde luego nada nos harä olvidar la

brutalidad del atentado y el profundo dolor de las victimas con el que

una vez mâs nos sentimos totalmente identificados.

Pero no puede tampoco olvidarse, que tres dias después, hubo en el

pais una derrota electoral para quienes se consideraban como probables

vencedores. Aparecieron sin duda nuevas formas de movilizaciôn social

y la transparencia en la informaciôn emergiô como un valor fundamen-

tal. Tampoco puede dejarse de lado y mucho menos minimizar el papel

de los jôvenes durante estos dias y los que les habian predecido en

denuncia de la llamada “guerra preventiva”. Ciertamente España reac-

cionô de forma muy diferente a los EE.UU. tras el 11 S. Asi nuestro

pais optô por una cultura especialmente pacifista, siendo la retirada de

las tropas en Irak una de las primeras decisiones del nuevo Gobierno.

La sensaciôn de estar frente a un enemigo lejano, poderoso e invisible,

no tomô una sola direcciôn. Ciertamente el 11 M golpeô fuertemente a

los ciudadanos españoles que nos sentimos victimas de un terrorismo

hasta ahora desconocido. Por consiguiente habia que aceptar que entrà-

(?) SAGARRA Trias, E., ob. cit.

(10) GIMÉNEZ-SALINAS, E., Discuros Inaugural, curso 2004-2005 de la Universitat Ramon

Llull.

— 70 —

bamos frente a un nuevo orden mundial, pero eso no nos hizo en prin-

cipio ni mâs racistas, vengativos o extremistas.

Sé bien que es todavia prematuro para sacar conclusiones, pero qui-

zàs por ello es todavia mâs importante que reflexionemos sobre los peli-

gros que puede comportar identificar al enemigo con un pueblo, al

terrorismo con una raza, religiôn o creencia ‘!!).

Pensemos en el tercer atentado en Occidente de AL-Qaeda, el del 7

de julio en Londres. Los dias posteriores a la masacre el celo de la poli-

cia britänica parecia la respuesta balsämica que todos esperaban y que

nadie cuestionaba. Ese exceso de celo, sin embargo, propiciô la muerte

de Charles Menezes, ciudadano brasileño, que muriô a tiros en el metro

por echarse a correr, asustado por las armas y la actitud de los policias,

que tenian ôrdenes de tirar a matar. El joven, en un ciudad verdadera-

mente plural, se parecia a un muslmän, aunque era brasileño : una vez

mâs el miedo nos oculta la realidad. Hace pocas semanas los autores

materiales de su muerte fueron absueltos, y ni una dimisiôn en Scottland

Yard. Paralelamente, se iniciô una reflexiôon de gran calado en el Reino

Unido : los autores de los atentados del 7-j eran musulmanes, si, pero

eran britänicos de segunda generaciôn, educados en barrios periféricos

de Londres, pero no marginales. Habian ido a escuelas pûblicas inglesas,

tenian trabajo y una familia estable que no conocia sus intenciones

(alguno de ellos incluso, la mañana de los atentados, se despidiô de su

familia “hasta la noche”). La idéntificaciôn pues del “enemigo” y por

tanto garantizar la seguridad se convierten en una dificil tarea : contra

quién hay que luchar, a quién hay que controlar? El espectro de posibles

“enemigos” es tan amplio que resulta imposible hacer de ellos una defi-

niciôn extensiva, sôlo caben definiciones intensivas, que hablen vaga-

mente de caracteres, ideologias, tipologias, razas, origenes familiares;

tôpicos y prejudicios en fin. De ahi que la las leyes britänicas contra el

terrorismo, como el control de las llamadas a môviles, el control del

correo electrônico o de las actividades de comunidades religiosas londi-

nenses, en paralelo a las de la Patriot Act americana, hayan significado

“

un verdadero recorte de las libertades civiles.

Unas nuevas normas internas e internacionales serän pues el “nuevo

orden internacional”, que forzosamente deberän ser el resultado de la

büsqueda del equilibrio necesario entre la Libertad individual y la colec-

tiva, en otras palabras, tenemos que proteger el garantismo que tanto

nos ha costado conseguir, sin renunciar a vivir con seguridad.

Este equilibrio es imprescindible, puesto que si la seguridad se prio-

riza, sin limites, sobre la libertad, caeremos en la arbitrariedad. La limi-

( Derechos de las minorias en una sociedad multicultural, Consejo General del Poder

Judicial, Madrid, 1999.

taciôn de cualquier libertad o derecho, nos conducirâ irremisiblemente,

hacia sistemas totalitarios y dictatoriales, que niegan los derechos y

libertades justificandolo una vez mâs en defensa de la seguridad. Tene-

mos ejemplos vivos donde los derechos y libertades no se aplican y son

a su vez la causa y germen de la inestabilidad y cuña del terrorismo.

En los ültimos 50 años hemos asistido a una importante corriente en

defensa de los derechos humanos de los delincuentes, asi como una

mejora del tratamiento penitenciario. De todas maneras, a la luz de los

ültimos acontecimientos en la prisiôon de Abu Ghraib en Irak, no parece

desde luego que hayamos avanzado mucho en materia de derechos

humanos. La apariciôn de torturas en un mundo y en una época que

las creia totalmente superadas ha puesto de manifiesto la fragilidad de

los sistemas penitenciarios. Parece pues como si resultara extremada-

mente fâcil que en determinados momentos y ocasiones las personas

involucionäramos a estadios primitivos, de ahi la necesidad de extremar

la cultura de los derechos humanos y el respeto a la legalidad basada

en un Estado de derecho que no otorgue concesiones. La brutalidad de

los hechos, junto a la vergüenza de que nuestra condiciôn humana no

sea suficientemente capaz de frenar tales barbaries, es una lecciôn que

no debemos olvidar. Otro claro ejemplo de estos ültimos años seria la

prisiôn de Guantänamo de la que, desgraciadamente, poco conocemos,

pero por las imâgenes e informaciones que nos llegan podemos intuir

que se trata de una clara violaciôn de los derechos humanos. Afortuna-

damente, la presiôn internacional y el Tribunal Supremo Americano han

sido sensibles a los acontecimientos y son conscientes que ni siquiera en

circunstancias excepcionales pueden violarse las normas bâsicas del

Estado de Derecho. En este sentido cabe citar la reciente sentencia del

Tribuna Constitucional Alemän dônde el respeto a la vida humana — ya

sea una o mil — prevalece a una politica criminal efectiva a toda costa.

El escritor austriaco Stefan Zweig“”, en sus interesante memorias

calificaba el ambiente de Austria, en la época previa a la Primera guerra

Mundial, como “El mundo de la seguridad”. Decia “Si busco una fôr-

mula prâctica para definir la época en que creci y me crié, confio en

haber encontrado la mâäs concisa al decir que fue la Edad de Oro de la

seguridad. Todo tenia su norma, su medida y su peso determinado. Dicho

sentimiento de seguridad era la posesioôn mäs deseada de millones de per-

sonas, el ideal comün de vida. Sôlo con esta seguridad valia la pena

vivir… ” Recordando esta cita debemos señalar que, el mundo occidental

y en especial en los Estados Unidos de América, hasta el 10 de septiem-

bre de 2001 se tenia muy asumido como un valor tangible y caracteris-

tico de nuestras democracias que la seguridad interna era un bien colec-

(12) Stefan ZWEIG, en El mundo de ayer. Memorias de un europeo, Barcelona, 2001.

_— 72 —

tivo incuestionable y muy bien protegido, y lo que debia crearse era una

coraza o ‘“paraguas exterior” para evitar cualquier agresiôon de un

Estado enemigo. Mecanismos como la NATO u otros Tratados Inter-

nacionales de seguridad colectiva eran la mejor garantia a cualquier ata-

que

(13)

Hoy esta sensaciôn de seguridad ha cambiado totalmente. Los aten-

tados del 11 S, del 11 M y del 7-J nos han colocado en una situaciôn

de tal inseguridad que somos incapaces de reflexionar con serenidad.

Ante las miles de victimas inocentes causadas por los ataques terroristas

de un desconocido enemigo, y ante la crisis producida en las politicas y

relaciones internas e internacionales de los paises occidentales que estän

estrechamente unidos por conceptos y valores culturales semejantes :

pero sobretodo que son aliados por Acuerdos Internacionales, se suma

el terror y el miedo inconcreto de la poblaciôn. Este miedo o terror es

un sentimiento al que no estamos acostumbrados, nada ni nadie nos

habia prevenido que un simple aviôn comercial pudiera ser un arma de

destruccion colectiva.

4. — LA INTERNACIONALIZACION DE LA INSEGURIDAD :

REALIDAD O SENTIMIENTO

Los ciudadanos estamos instalados en un sentimiento de inseguridad

que resulta dificil descifrar, si estamos ante una situaciôn objetivable o

ante un puro sentimiento. Sin duda han aparecido nuevas formulas de

criminalidad, tales como la delincuencia organizada, la ciberdelincuen-

cia, el terrorismo mundial o el narcoträfico, pero no sabemos si la

medida de inseguridad sentida por los ciudadanos se corresponde exac-

tamente con la creaciôn de riesgos mayores. Como dice Silva Sänchez ‘1*)

el ciudadano anônimo afirma “nos estûn matando, pero no acabamos de

saber a ciencia cierta ni quién ni como ni a que ritmo” Por consiguiente

a menudo es mâs una cuestiôon psicolôgica que real. Por ello no es sufi-

ciente saber o creerse seguro ni protegido, es necesario,sentirse real-

mente seguros.

Existe sin duda en la sociedad, la sensaciôn de que las cosas van cada

vez peor y que los poderes püblicos no hacen nada para cambiarlas. À

su vez aquella solidaridad que existia en los años ochenta hacia los jôve-

nes ha desaparecido. Para Diez Ripollés esta tolerancia se fundaba “en

una comprensiôn del delincuente como un ser socialmente desfavore-

cido, marginado, al que la sociedad estaba obligada a prestar ayuda.

(13) SAGARRA Trias, E., ob. cit.

(19) SILVA SANCHEZ, J.M.. ob. cit.

__ 73 —

Ahora los delincuentes son vistos como perversos, desalmados, etc…

(15)

De hecho, el miedo o la preocupaciôn por el delito, es decir la insegu-

ridad, ha pasado a primer plano de las cosas que preocupan al ciuda-

dano y por tanto muchas de las politicas que se diseñan no son tanto

para combatir efectivamente el delito sino mâs bien para disminuir el

miedo y la inquietud social de la delincuencia. Asi las cosas puede

incluso diseñarse programas de prevenciôn totalmente equivocados que

no sôlo disminuyan sino incluso aumenten la delincuencia.

Nuestra sociedad se define a si misma como — la sociedad del miedo

— ya que uno de los rasgos mâs importantes es esa sensaciôn general de

inseguridad. No es aqui el momento de analizar los cambios de la socie-

dad, pero si destacar que la sociedad ya no es con frecuencia una comu-

nidad, que comparte cultura y formas de vida, sino un “agregado” de

individuos. Lo cierto es que el miedo y la angustia, no corresponde

siempre al peligro objetivo, y la vivencia subjetiva de los riesgos es cla-

ramente superior a la propia existencia de los mismos‘!°).

Pero no debe olvidarse que vivimos en una sociedad compleja con

una creciente interdependencia de los individuos, donde al menos en

Europa la crisis del modelo de Bienestar ha provocado problemas por

falta de vertebraciôn interna. Sin duda en las sociedades postindustriales

y muy particularmente en nuestro pais estamos viviendo problemas

hasta ahora desconocidos. La inmigraciôn y multiculturalidad por ejem-

plo estän provocando nuevas formas de marginalidad. Se atribuye a los

extranjeros un aumento de la delincuencia acentuändose el peligroso

estereotipo extranjero-delincuente ( ”.

Pero no hay que olvidar algo muy importante en este “sentimiento

de inseguridad” y es el papel que juegan los medios de comunicaciôn.

Afirma Antoine Garapon“8, antiguo Juez de menores francés : “Los

medios que son el instrumento de indignaciôn y de côlera publica, pueden

acelerar la invasion de la democracia por la emocion, propagar una sen-

sacion de miedo y de victimizaciôn e introducir de nuevo en el corazôn

del individualismo moderno el mecanismo de chivo expiatorio que se creia

reservado para tiempos revueltos. Los asesinatos de niños se convierten

en acontecimiento nacionales para una opiniôn publica fascinada por la

muerte y la trasgresiôn. Su exasperaciôn por los medios acabaràâ por

(5) Diez RiroLLES, J.L., ob. cit.

(16) Véase entre otros, Sigfried LAMNEK en Teorias de la criminlaidad, Ed. Siglo XXI,

1987. Elias CARRANZA en Criminalidad, prevenciôn o promocion. San José, EUNED, 1995, y

GIMÉNEZ-SALINAS, E. en Justicia de Menores. una Justicia Mayor, Ed. Consejo General del

Poder Judicial, Madrid, 2001.

(7) GIMÉNEZ-SALINAS, E., Extranjeros en prisiôn. Eguzkilore, nûüm.

(18) GARAPON, Antoine en Jueces y democracia, Barcelona, 1997.

— 74 —

hacer creer al ciudadano no avisado que este tipo de crimenes es fre-

cuente, lo que no es el caso”

Por otro lado, el efecto que pretende cualquier acto terrorista es pre-

cisamente despertar el miedo de la poblaciôn, y que se dirige hacia el

vecino, hacia el ciudadano de otra raza, creencia o costumbres, en defi-

nitiva, lo que se consigue es crear recelo en las personas que hasta

entonces nos parecian totalmente normales. La consecuencia jde este

temor es vivir en un estado general y constante de tensiôn y alerta.

Asi mismo existe una cierta convicciôn en la sociedad que no se

puede luchar contra la criminalidad organizada, las mafias, los narco-

traficantes, el träfico humano, y por tanto tenemos necesidad de identi-

ficar — al menos — un nuevo/viejo enemigo, el delincuente clâsico. La

conocida frase de Nills “La miseria y la pobreza no se combaten con la

cârcel” tiene hoy plena vigencia.

S. — ALGUNOS PRINCIPIOS BASICOS DEL DERECHO PENAL

QUE NO DEBEMOS OLVIDAR

El resultado de la aplicaciôn real de estos principios son las normas

juridicas, las leyes y las politicas que deben obedecer a estos valores o

principios que obligan a todos, a hacer o a no hacer, y que se imponen

a todos los ciudadanos sin distinciôn de raza, religiôn o sexo a cualquier

nacional o extranjero, e inclusive a autoridades, y empresas.

La coherencia de un sistema politico se produce cuando hay una

buena corriente entre los principios o valores, con las politicas leyes con-

cretas. Ni unos ni otros son siempre iguales sino que se transforman y

cambian en un momento histôrico determinado. De hecho el Derecho

penal es un elemento que coadyuva a la estructuraciôn de la sociedad y

que expresa relaciones de poder y sometimiento en el seno de la

misma (1?).

Fl Derecho penal en la misiôn protectora de los bienes juridicos

interviene junto con muchas otras instituciones. No obstante, lo que

caracteriza el Derecho penal es la manera en que se lleva a cabo espe-

cificamente esta tarea protectora, dado que se ocupa de los hechos mäs

graves. Es precisamente por esto que el derecho penal estä obligado a

dar la mayor informaciôn posible y con la mayor publicidad, tanto

sobre las normas prohibitivas o imperativas como sobre las sanciones y

el procedimiento adecuado para imponerlas.

(19) QUINTERO OLIVARES, G., Manual de Derecho Penal, Ed. Aranzadi, 2002.

__ 75 —

El mandamiento de seguridad o de certeza, asi como las prohibicio-

nes de analogia, de aplicaciôn retroactiva de la ley desfavorable, la

exclusiôon del derecho consuetudinario asi como el rechazo a un derecho

penal de autor, son principios esenciales que nunca està de mâs recor-

darlos.

Existen una serie de principios bâsicos que el legislador debe tener en

cuenta a la hora de crear normas penales, limitando su afân protector

de bienes juridicos. Ambas clases de principios son caracteristicos de

una Administraciôn de Justicia penal que estä interesada en la elabora-

ciôn y no en la simple represiôn de la criminalidad y que orienta los ins-

trumentos no sôlo hacia la eficacia, sino también hacia la protecciôn de

bienes juridicos.

Entre estos principios se encuentran

— el de proporcionalidad ;

— el de culpabilidad, entendida en su funciôn limitadora;

— el de legalidad con sus implicaciones en la aplicaciôn del Derecho

penal;

|

el de publicidad del proceso;

— el derecho a la defensa ;

|

el derecho a ser escuchado ;

el in dubio pro reo;

|

el recurso a una instancia superior :

el poder intervenir en el proceso y en el derecho a la prueba:;

|

las prohibiciones de realizar determinadas pruebas o valorarlas como

tales ;

— el derecho a no declarar contra uno mismo y a no prestar testimonio

en determinados casos;

— determinados limites de carâcter social y constitucional en la ejecuciôn

penitenciaria.

Un control social dirigido a la pura efectividad no reconoceria nin-

guno de estos principios, ya que desde un punto de vista pragmâtico son

casi mâäs un obstäculo que una ventaja : asi, por ejemplo, el derecho a

no declarar o la prohibiciôn de practicar determinadas pruebas vedan

muchas fuentes que podrian ser extraordinariamente valiosas para el

esclarecimiento del delito; y el principio de culpabilidad limita los inten-

tos resocializadores que exigen una mayor duraciôn que la pena

impuesta o que ésta pueda ser prolongada mâs allà del limite legal por-

que se teme que el delincuente, vuelva a delinquir, como en el caso de

los violadores, terroristas etc.

__ T6 —

Ahora bien, defender el garantismo no significa defender el inmovi-

lismo en el que con harta frecuencia se ha instalado el discurso de los

penalistas. Determinados principios deben ser defendidos a ultranza,

pero no podemos despreciar ciencias como la Criminologia que sin duda

nos ayudarian a una politica mâs eficaz. Diagnosticar, tratar, intervenir

en un delincuente no es un derecho penal de autor. Predecir o prevenir

conductas forma parte de un trabajo cientifico.

6. — LA REALIDAD PENITENCIARIA

EN ESPANA Y EN EUROPA

La prisiôn es un mal, una amarga necesidad como se ha dicho

muchas veces. Como afirma un penalista mexicano Sergio Garcia Rami-

rez “El delito y la enfermedad son fieles compañeros del hombre desde

que estrenô la tierra” . No es mi intenciôn entrar aqui en un debate

que nos llevaria un articulo sino una biblioteca entera, pero si poner de

relieve algunas cifras, al menos de Europa, que nos demostraran clara-

mente como nos estamos deslizando peligrosamente sobre la vertiente de

mayor dureza.

À pesar de las buenas intenciones y del eufemismo de la resocializa-

cion en las prisiones. Aceptando que la mayoria de Constituciones de

nuestro entorno cultural otorgan-a la pena privativa de libertad funcio-

nes de educaciôn y readaptaciôn La realidad penitenciaria es muy dis-

tinta. Las prisiones siguen siendo esencialmente unos lugares de castigo

que causan autentico dolor y aflicciôn. “La 1dea de que la pena tiene un

contenido retributivo se encuentra plenamente aceptada. La crisis del

modelo de resocializaciôn “" ha servido de excusa para un modelo puni-

tivo mâs duro para elevar los muros de la prisiôn y para deshacer algu-

nas de las conquistas de los años 70.

Pero la realidad en los ûltimos años no es muy optimista. Las cifras

del nümero de personas en prisiôn han ido aumentando espectacular-

mente en los ültimos 10 años. Aportamos aqui las cifras en lo que afecta

a Europa.

También en España las cifras hablan por si solas. Al final de este

articulo se incluyen algunas cifras muy clarificadoras : el aumento de

presos en sentido relativo y absoluto no ha cesado, asi como la ya clà-

sica diferencia entre sexos en lo que se refiere a la delincuencia. La com-

parativa entre paises también evidencia que España es un caso signifi-

(0) GarCiA RAMIREZ, S. en Los personajes del cautiverio. Prisiones, prisioneros y custo-

dios, México, 1996.

C GIMÉNEZ-SALINAS, E. y RiFA 1 Ros, À, Introducciô al Dret Penitenciari : Teoria i pràc-

tica. Barcelona, 1992.

__ 77 —

cativo en lo que se refiera a la cantidad de poblaciôn reclusa. Sin

embargo conviene matizar que una de las causas mâs importantes han

sido las recientes reformas legislativas, en efecto y grosso modo, podria-

mos decir que todas las reformas han ido en una sola direcciôn : endu-

recimiento de las penas. Penas mâs largas, condena mâxima de cuarenta

años, cumplimiento a partir de tres meses, reforma de la prisiôn provi-

sional, etc.…. Una vez mâs pensamos que no es posible “erradicar” la

delincuencia como si fuera una cruzada, pero sin duda el Ilamado

modelo de bienestar social aportô la posibilidad de una nueva politica

criminal basada en la educaciôn como respuesta, mâs que en la repre-

siôn. Especialmente en los jôvenes cobra sentido la frase de que “la

delincuencia juvenil es ante todo un fracaso del sistema educativo.” En

este sentido mültiples programas en el ambito de la delincuencia juvenil

se han desarrollado en España y particularmente en Cataluña en estos

ültimos tiempos. Destacariamos sobre todo programas de mediaciôn,

reparaciôn a la victima, asistencia a centros educativos, con notables

resultados. Este es el camino a seguir, aceptar la privaciôn de libertad

como Uültimo recurso y ofrecer paralelamente sanciones alternativas

encaminadas realmente a la educaciôn.

T. — APENDICE

Aumento poblaciôn penitenciaria española 1985-2006

Hombres

Total

Mujeres

1985

21.751

1.051

22.802

1991

34.376

3.183

37.559

1994

43.351

4.554

47.905

1998

40.751

4.121

44.872

2001

43.624

3.924

47.548

2003

51.856

4.459

56.315

2006

58.673

5.082

63.755

% aumento

169,75

383,54

179,6

EVOLUCION POBLACION PENITENCIARIA.

HOMBRES

70.000

60.000

50.000

40.000

30.000

20.000

10.000

1985

1991

1994

1998

2001

2003

2006

Poblaciôn reclusa segûn la situaciôn procesal

Junio 2006

Total

%

Preventivos

14.573

22,9

Penados

49.182

77,1

Total

63.755

100,00

poblaciôn reclusa segün situacion

procesal (2006)

22,1

preventivos

@ penados

79,9

—#n

ABSTRACT

The Head of the University organizing the next international con-

gress of criminology sets forth the basic principles of liberty criminal law

has to safeguard in a society of fear.

SOMMAIRE

La Rectrice de l’Université qui accueillera le prochain congrès inter-

national de criminologie rappelle les grands principes de liberté que le

droit pénal doit sauvegarder dans une société de la peur.

RESUMEN

La Rectora de la Universidad que acogerâ el prôximo congreso inter-

nacional de criminologia recuerda los grandes principios de libertad que

el Derecho penal debe salvaguardar en una sociedad del miedo.

— 80 —

HOMICIDES COMMITTED FOR HONOUR

The case of Turkey, Sweden and Germany

Prof. dr. Füsun Sokullu-Akinci (*)

I. — INTRODUCTION

Until the last decade, the majority of the Turkish people who lived

in the western, central, northern and southern parts of Turkey were not

aware of homicides committed for the sake of honour. Then such news

started to take place in the news. Was it that all of a sudden people

started to commit such crimes? No, they were being committed in the

eastern and south eastern regions, but never came to our attention,

because they were not recorded numbers. Unlike the blood feuds, these

crimes tend to be black numbes, because they are committed within the

family. Now because of migration it is the concern of the whole of Tur-

key as well as Germany, Sweden and other European countries. This

disgusting custom seems to follow people wherever they go and causes

culture conflict. 45 people were murdered in Germany between 1996-

2004, 13 of which were committed in Berlin.

The right to live and the right to an honourable life, a life to be lived

in dignity are the most important human rights. In case of honour

crimes, the offender asserts that someone must cease to exist in order

that he can lead an honourable life. How can these two fundamental

rights be reconciled?

Honour killings are homicides performed in the name honour and

are always committed against women. We consider these killings as a

sort of domestic violence, because it is always committed against female

members of the family : Sisters, daughters, wives, mothers, granddaugh-

ters, cousins, nieces, etc.; never against a male member of the family.

Like the blood feuds, it stems from the customs of a certain region

of Turkey, east and southeast ”. This unfortunate reality is not only the

problem of those parts of Turkey, but because of migration it affects big

metropoles in the other regions of Turkey and also many European

countries where there 1s a large Turkish population of migrant workers.

In June 10'*, there were two news in Hurriyet, one of the major daily

( Chair, Department of Criminal Law, Faculty of Law, University of Istanbul. Director,

Research Centre for Criminal Law and Criminology, University of Istanbul, Law School.

(D Some claim that this stems from the Kurdish mores and customs of the South-east

region of Turkey.

_— 81 —

newspapers of Turkey, on two new honour murders : one about a young

girl raped by the husband of her elder sister. She got pregnant and then

went to Ankara to give birth to her child. She was shot in the head by

her elder brother and has died. The other 1s about a girl who lives in

Sweden, came to Bursa and met his Turkish boyfriend in a park. Her

brother’s friends saying, “What kind of a man are you? We are from

Mus (a Province in the East), we have “tôre” (customs), we shall take

care”, shot both the sister and her boyfriend. The boy's wound was not

important; the girl was in the intensive care unit. Finally the girl died

and the protesting father’s photographs who lives in Sweden were in the

papers the next day. He was revolting to the idea that someone felt in

charge of their family honour. He denies such a custom as protection

of someone’s honour by someone else and insists that there is no honour

to be protected in this incident and the murderer killed his daughter

because he was in love with her and killed her because of jealousy.

In fact this custom seems to exist not only in the remote rural parts

of Turkey, but also in Pakistani, Kurdish and Arabic societies , but it

is not uniquely Arab nor is it rooted in Islam as a religion or culture ©).

In Europe, the use of chastity belts was a common way of protecting

the wife’s chastity, while the husband was away for the crusades. The

equivalent of our abolished “special unjust provocation” article 462 was

in the Codice Penale Italiano until 1981, as “omicidio a causa d’onore”.

So we should not see this problem regional and strictly Turkish, but still

we must play our part as to struggle with the problem. In fact, it was

the first days April of 2002, a reporter of one of the biggest Turkish

daily papers called me saying that she wanted to make an article about

a Turkish father, resident of Sweden, who killed his own daughter, a

university student that got engaged to one of her Swedish classmates. In

2002 besides the general provision on unjust provocation, there was a

special article for unjust provocation in cases of crimes comitted for the

sake of honour, in the Turkish Penal Code, reducing the punishment of

homicide if committed for saving the family honour down to one eighth

of the original sentence‘‘’. We explained to the journalist that, this spe-

(?) Javeira Rizvi, “Violence in the Name of Honour in Swedish Society : What Lessons

can be Learnt from the Swedish Experience”, Violence in the Name of Honour, Istanbul Bilgi

University Press, Istanbul, 204, p. 214.

G) Nahla ABpo, “Honour Killing, Patriarchy, and the State : Women in Israel”, op. cit., 57, 58.

( Art. 462 : “Perpetrators who commit the offences specified in the two foregoing chap-

ters (murder, assault and battery) against the wife, husband, sister or offspring, at the time

the victim is caught while in the act of adultery or illegal sexual intercourse, or while the vic-

tim was about to commit adultery or about to engage in illegal sexual intercourse, or while

the victim was in a situation showing, free from any doubt that he or she has just completed

the act of adultery or illegal sexual intercourse; or against another person caught participat-

ing in such acts with one of the aforesaid relatives, or against both, the punishment pre-

scribed for the offence shall be reduced to one eighth ”

— 82 —

cific article could not be applied in that case because the conditions of

the article were not present : first, the father did not catch the couple in

the act of committing 1llegal sexual intercourse; second, engagement is

a legal private law contract recognised by most of the contemporary

Civil Codes, so there is nothing 1llegal about t.

Although this article treated male and female members of the family

as equals, it was always the women who were killed in the name of hon-

our. So, especially with the campaigns of the feminist organisations in

Turkey, this article was abolished in July 19, 2003), even before the

enactment of the new Turkish Penal Code of 2005.

This disgusting custom seems to follow people wherever they go. It is

a typical example of culture conflict‘). Germany, with a large Turkish

population of migrant workers, has the problem of honour killings and

honour related violence . In fact after the Second World War, Germany

needed manpower to rebuild the country and thus recruited guest workers

from southern European and Mediterranean countries‘*’. Those people

carried the elements of their local culture to Germany. I think that, as the

second and third generation began to emerge, they got more adapted to the

society they lived in and thus a gap was formed between the first, the sec-

ond and the, third generations and conflicts developed between family

members. As a result of this, 45 people were murdered in Germany

between 1996-2004, 13 of which were committed in Berlin. In April of

2006, Hatun Sürücü, the mother of a boy of 5, was killed by her brothers

in Germany because she refused to live with her cousin, with whom she

Was forced to marry by her family. Only her youngest brother was con-

victed to 9 years of prison sentence. The other two brothers, instigators to

the crime, were acquitted. The situation would be slightly different 1f these

people were tried in Turkey , as I shall be explaining the new provisions.

As to the situation in Sweden : she is one of the most gender equal

countries in the world, but allegedly Sweden 1s a male dominated society

according to a Swedish writer. She claims that this happens 1respective

of whether the women are of Swedish or foreign oriàgin…”. In Sweden

) See Official Gazette, act. no. 4928.

(6) SOKULLU-AKINCI, Kriminoloji, 4. Basÿ, Beta, Istanbul, 2004, pp. 143-145.

( TowNson-FLass, “The Phenomenon of Honour Killings - A Global Problem”, Phe-

nomenology Societal and Law Enforcement Abatement Strategies on International and

National Levels, Seminararbeit, Seminarleitung : Detlef Schrôder, Hiltrup, im April 2006, p.

32. My very special thanks to Kriminal Director Detlef Schrôder for supplying me with the

excellent study prepared by his students under his supervision.

(8) TOwNSsoN-FLass, p. 15.

) In fact they will be tried in Turkey if they happen to come to Turkey within limitation

of time period.

(10) BERrG, “Swedish Government Initiatives to Help Young People at Risk of Honour-

Related Violence”, in Violence in the Name of Honour, Istanbul Bilgi University Press, Istan-

bul, 2004, p. 194.

__ 83 —

the concept of honour killings was practically nonexistent in the scien-

tific, political, and media vocabularies ". Sweden has experienced large-

scale immigration since the ?70s 2 and honour killing today is a Swed-

ish reality (*).

1. — Terminology

There is no consensus as to the term to be used for these murders.

“Tôre” murders mean customary crimes“!*, killings committed for the

sake of customs and mores, honour killings, chastity killings, killings to

protect the family reputation and should not be called “honour kill-

ings”. Honour is a positive concept and no murder can be honourable.

As Ka-mer *) Report puts it,

— “It attributes such murders to particular ethnic or religious groups,

— It gives the impression that (Turkish) “tôre” (customs and mores) 1s

comprised of negative practices only,

— The term …is also used to refer to blood feuds” (16).

Women parliamentarians of the Turkish National Assembly are still

discussing that “tôre” means only the customs and mores of a certain

region and if a woman does not belong to that region and 1s killed for

having an extra marital affair or a boyfriend without her family’s con-

sent, her murder will not be punished with that special rule in the new

Turkish Criminal Code, but with the punishment of ordinary homicide.

2. — Definition

Honour related violence is a special kind of domestic violence and it 1s

nearly always members of the family who commit such crimes. There are

quite a number of definitions concerning this concept, because there are

many types of crimes committed in this contex, such as female mutilation

in Africa, suicide in the name of honour in Japan, blood feud, female foe-

ticide in China, forced marriages and honour killings in some countries ”.

(D ErpeN, “Life-and-Death Honour: Young Women’s Violent Stories About Reputa-

tion, Virginity and Honour in Swedish Context”, in Violence in the Name of Honour, Istan-

bul Bilgi University Press, Istanbul, 2004, p. 91.

(2) BerG, p. 194.

(3) ELDEN, p. 91.

(14) SIRMAN, “Kinship, Politics and Love”, in Violence in the Name of Honour, Istanbul

Bilgi University Press, Istanbul, 2004, p. 41.

(15) KA-MER is short for KAdÿn MERkezi, which means Centre for Women.

(16) KA-MER, “Who is to Blame, KA-MER Project for the Development of Permanent

Methods in the Struggle Against Killings Committed Under the Guise of ‘Honor’ in the

Southeast and East Anatolia Regions”, 2005 Report, KA-MER Foundation, Diyarbakyr,

2005, p. 132.

(7) TowNsoN-FLass, p. 2.

__ 84 —

In some societies, people who live according to the code of honour

consider honour killings a necessary means for protecting virginity and

male values. But what is honour and chastity? It is a relative concept

that differs from society to society.

News in June 11'*, 2006, Turkish newspapers were informing us of

a girl killed by her family, because her newlywed husband returned her

to her family declaring that she was not a virgin. The next day the post

mortem revealed that the girl was in fact a virgin!

But today we consider such crimes as crimes committed to control

women and their bodies. They are punishments applied to women who

will not or somehow cannot live according to the dictates of the code

of honour 18).

In 2000 during the special session of the United Nations (Bejing 5),

with the efforts of the Turkish delegation, murders in the name of hon-

our are included in the definition of family violence, thus these murders

are now considered as violation of human rights in the official docu-

ments of the United Nations and thus it is the obligation of the Gov-

ernments to prevent such killings.

II. — SOCIOLOGICAL BACKGROUND

When we look back to histofy, during the times when people lived

in clans, there were no government welfare systems and people had to

look after themselves and their families *. A person’s and his family’s

honour had to be protected either by him or by other members of his

family or clan. In fact sources of religion have provisions to that end.

For example the fifth commandment says, ”Honour your father and your

mother ”. The Koran states that, “We have sent down to you a book

in which your honour lies” . But there is no provision in the Koran

ordering murder for honour.

Honour crimes are either committed in the east or the south east of

Turkey or by people who are originally from that region, but have

migrated to other regions of Turkey or to other European countries, 1s

the evidence that such crimes are products of the culture of that region.

As some claim “), it does not mean that people of an ethnic group tend

(18) SYRMAN, “Kinship, Politics and Love : Honour in Post-Colonial Contexts - The Case

of Turkey”, in Violence in the Name of Honour, ed. By Mojab-Abdo, Istanbul Bilgi Univer-

sity Press, Istanbul, 2004, p. 39.

(19) TOWNSsOoN-FLAss, p. 3.

(20) Exodus 20 :12, KJV, in TowNSsON-FLass, p.3.

(D The Koran sura 21, ayat 10.

(22

) See Hürriyet daily newspaper, August 19, 2005.

__ 85 _

to committ honour killings. In my opinion, it 1s because of the socio-

logical setting and the society these people happen to live in. Those soci-

eties are “kinship-based societies”. This term 1s used in anthropology to

describe communities that are made up of persons related to each other

as kin or the community is imagined as being composed of persons

related to each other as kin. In this type of society, relations of produc-

tion and distribution, of domination and subordination are based on

kinship. Kinship serves the persons’ relationship with one another and

provides them with basic identity and guide to behaviour. In kin based

societies, persons with real and imagined kinship bonds, form commu-

nities of different sizes : lineage, tribe, or clan. The reproduction of the

group depends completely on the sexual behaviour of the members and

therefore personal sexuality 1s under the control of the community as a

whole. In such societies, honour is both a person’s identity and also the

sense of worth that a person has of himself and a person’s social stand-

ing. This concept deals with a person’s sexual behaviour; it extends to

cover the total self. Honour in kin based societies is a moral issue,

regardless of gender. It covers both men and women and includes a per-

son’s ability to live up to the standards of masculinity and femininity as

set by the society. À man who is considered dishonourable in the con-

servative subcultures in Turkey is an untrustworthy person, unable to

undertake his social responsibilities and unable to control neither his

own honour nor “the woman of whom he is responsible for”. À

woman’s honour by contrast is only linked to her sexuality ?*.

This of course 1s not true for modern Turkey where society is not

kinship based, but is organised as a nation state. But in some regions,

people still live in clan- like conditions and there are still traces of a kin-

ship based society and this 1s where we still see honour killings. In fact

there are regional differences in socio-economic conditions in Turkey,

which progressively become worse as one moves from west to east. The

west is highly urbanised, but the east is mostly rural. Fastern Turkey

can be characterised as a semi-feudal, traditional, agricultural economy,

where 90% of women still are in the unpaid family labourer status. This

region has the highest fertility rate and the families prefer boys to girls,

which is the result of wishing for a more powerful tribe *.

Honour killings are as grotesque and monstrous to the majority of

the Turkish people, as it is to the people of the European countries. In

fact, under the Turkish Constitution, the Civil Code and other laws,

men and women are given equal status. The provisions that are contrary

(23) SIRMAN, 44-45.

(@4) AYTEKIN-INCEOGLU, “So-called ‘Honour Killings’ as a Social Conflict in Turkey”, in

Conflicts and Conflict Resolution in Middle Eastern Societies-Between Tradition and Moder-

nity, Max Planck Institute, Berlin, 2006, pp. 319-320.

—— 86 —

to this are either amended by the National Assembly or are struck down

by the Constitutional Court *. Recent changes in the principal Turkish

Codes are allegedly in favour of women.

On the other hand, in those specificic regions of Turkey, not only

women who have extra marital relationship, but even women who are

raped, and should not have the slightest trace of guilt what so ever, are

killed by their relatives, because they are considered to have brought

shame and dishonour to their families. À raped woman 1s considered a

woman who has lost her honour. The trauma she had gone through is

multiplied with a threat towards her life. In our Victimology classes we

used to discuss two rulings of the Second Civil Chamber of the Turkish

Court of Appeals, which are about 30 years old, finding a husband’s

request for divorce reasonable, because the wife was abducted and

raped. The court stated that no husband should be forced to lead a dis-

honoured life” #. If judges of a high court consider an innocent victim

as dishonoured, a better evaluation cannot be expected from ordinary

citizens. Fortunately, the decisions of the same Court’s Assembly of

Civil Chambers changed this ruling a few years later .

III. — SOCIO-CULTURAL CAUSES

Five main factors can be cited as the reason of honour killings in

Turkey :

1. Patriarchal structure and values of the society.

2. Widely spread culture and customs, which enforce hierarchy and

obedience. This 1s especially evident in marriage customs. In regions

where honour killings are seen, there are specific marriage customs such

as marriages within the family, abduction of young girls for evading the

money to be paid to the bride’s family, arranged marriages, forced mar-

riages such as “berdel” which means exchanging of brides between two

families. As a result of berdel, incongruous marriages are made. For

example, men and women are forced to marry either very old persons

or even babies (28).

3. Customs and beliefs that suggest women and men not to share the

same environment.

(5) AYTEKIN-INCEOGLU, p. 327.

(26) SOKULLU-AKINCI, Viktimoloji, Beta, Istanbul, 1999, p. 168.

( Court of Appeals, Assembly of Civil Chambers Decision : HGK. Dec.4, 1985, E.

1985/2-132, K. 1985-976, Kazancÿ.com.tr (on line) 12.06.2006.

(28) For different kinds of berdel marriages and detailed information see Eras, Hukuk

Antropolojisi Açÿsyndan Tôreye Dayaly Evlilik Türleri ve Berdel Uygulamalary, Unpublished

Master's thesis, Marmara University, Istanbul, 2002.

__ 87 —

4. Social pressure on individuals, who live in large families, clans,

countrymen relationships, religious communities.

S. These structures are accepted at the official level and therefore

guides the political life and the law

(29)

IV. — STATISTICS

In 2000, it was estimated that 5000 women a year (more than 13 a

day) died worldwide because they were accused to have brought shame

on their families or communities $% For obvious reasons, statistics on

honour killings are generally black numbers. Even when the newspaper

archives are searched, the numbers are much higher than the official sta-

tistics. Between 2000-2004, we see 59 homicides of honour in three

major newspapers in Turkey ®. These are offences committed in cities

and most murders committed in rural areas are not known even by the

journalists. It can be defined only as the top of the iceberg. It is equally

difficu!t to obtain the real numbers of similar crimes in other countries.

For example, passion crimes of Mexico, similar crimes committed with

the same motive in Lebanon, Syria, Iraq, Israel etc…. À Yemen survey

reveals that 400 women were killed in 1997 for the protection of family

reputation. In Egypt, the number is 52 for 1995.

1. — Germany

Âs to the situation in Germany :

Number of offenders and victims and their gender C

Offender

Victim

Male

66

22

Female

4

48

Total

70

70

(29) Report of 2006, prepared by the Special Investigative Commission of the Grand

National Assembly on Honour Killings and Violence Against Women and Children, (Special

Report) pp. 146-147.

(30) TowNson-FLass, p. 11.

GD Perihan OZCAN TUZUNER, “Sessizlidi Birlikte Kyÿralÿm”, Elele Dergisi, July 2005.

G2) TowNSsoN-FLass, p. 47.

__ 88 __

Age of offenders °°)

Age

Male

Female

1

Children (6-14 years)

Teenagers (14-18 years)

4

Young Adults (18-21 years)

6

55

Adults (21-59 years)

Total suspects

66

R | N| N| ©O| ©

Age of victims C*

Male

Female

Unborn

1

Children (6-14 years)

]

Teenagers (14-18 years)

Young Adult (18-21 years)

Adults (21- 59 years)

20

35

Total victims

22

48

Nationality of the offenders °

Nationality

Afghan

Albenian

20

German

Iragi

Lebanese

Dutch

G3 TOWNSON-FLAss, p. 48.

34) TOWNSsON-FLAss, p. 49.

G5) TOwNsoN-FLass, p. 49.

__ 89 __

Nationality of the offenders ©°)

Nationality

Pakistani

Serbian-Montenegran

Syrian

Turkish

50

Nationality of the victims ©6)

Nationality

Afghan

Aibenian

German

18

French

Iraq:

Italian

Jordanian

Lebanese

Pakistani

Serbian- Montenegran

Syrian

Turkish

36

Unknown

06) TowNsoN-FLass, p. 51.

— 90 —

Offender victim relationship C”

Offender

Victim

Cases

Husband or boyfriend

Wife or girlfriend (also sepa-

31

5S7%

rated or divorced / lover of

wife or girlfriend

Brother

Sister / Husband or friend or

9

16%

lover of the sister

Father

Daughter / Boyfriend of the

9%

daughter

Mother

Daugther / Boyfriend of the

4%

daughter

14%

Others in the family

Total

95

100%

2. — Turkey

In Turkey, the first official statistics are obtained from the General

Directory of the Police on the special request of the Commission of the

Grand National Assembly :

Honour killinès between 2000-2005

according to different regions of Turkey 68

@ South East

Anatolian Region

* Marmara Region

& Eastern

155 14%

212 19%

Anatolian Region

95 9%

N Black Sea

Region

& Agean Region

87 8%

209 19%

Internal

Mediterrnean

Anatolian Region

Region 141 13%

192 18%

_

—

& Marmara Règidn |

æ Agcan chîôn |

Mediterrnean Region

Internal Anatolian Region

m Black Sea Region

& Eastern Anatolian Region

SE E E DEN SEN

(7) TOwNsoN-FLAss, p. 52.

G8) Special Report, p. 151.

— On —

As to the region of Turkey it was committed :

Of the total of 1091, the Marmara region, 19% (212), The Aegean

region, 19% (209), followed by Internal Anatolian region by 18% (192),

south east region by 14% (155)6%. Because of PKK terror and eco-

nomic conditions, large populations left southeast and east of Turkey

and migrated to Istanbul, Ankara, Izmir and Bursa, which have the

largest populations in Turkey. They have taken their customs concern-

ing honour killings with them. So when we look at statistics on the

province basis the highest numbers are in the above cited cities and also

Diyarbakyr, the largest city in the southeast

(40)

Birthplace of the suspects !

Marmara Region 121

South East Anatolian

8%

Agean Region 172

Region 388 24%

11%

Meditermean Region

175 11%

Eastern Anatolian

Region 325 21%

Internal Anatolian

Black Sea Region

Region 243 15%

160 10%

© Marmara Region

Æ Agean Region

O Mediterrnean Region

O Internal Anatolian Region

E Black Sea Region

Eastern Anatolian Region

@ South East Anatolian Region

(G9) Special Report, p. 151.

(40) Special Report, p. 152.

QN Spçcial Report, p. 153.

— 99 —

Domicile Registration Regions of Suspects (4

South East

Marmara Region;

Anatolian Region

121 8%

Agean Region; 172

386 24%

11%

Mediterrnean

Region 176 11%

=

S

c

_

.

Eastern Anatolian

Internal Anatolian

Region 336 21%

L

Black Sea Region

Region 235

162 10%

15%

Marmara Region

& Agean Règion

O Mediterrnean Region

O Internal Anatolian Region

E Black Sea Region

Eastern Anatolian Region

& South East Anatolian Region

Birthplace of victims of honour crimes **

South East Anatolian

M armara Region 110

Region 204 17%

9%

Agean Region 162 14%

sm

W3{gäw npagce

_

Eastern Anatolian

Mediterrnean Regon

Region 222 19%

113 10%

Black Sea Region 139

Internal Anatolian

12%

Region 231 19%

& Marmara Region

@ Agean Region

O Meditermean Region

O Internal Anatolian Region

@ Black Sea Region

Fastern Anatolian Region

& South Fast Anatolian Region

(42) Special Report, p. 153.

(33) Special Report, p. 154.

Domicile Registration

place of honour crime victims ‘**

South East Anatolian

Marmara Region 110

9%

Region 204 17%

Agean Region 164

14%

Eastern Anatolian

Mediterrnean Region

Region 234 20%

112 9%

Black Sea Region

Internal Anatolian

141 12%

Region 223 19%

Marmara Region

@ Agcan Region

(I Mediterrnean Region

O Internal Anatolian Region

@ Black Sea Region

Eastern Anatolian Region

E South East Anatolian Region

Age of female suspects (**)

46-... 15 8%

0-18 14 8%

41-45 13 7‘!/Î.

36-40 24 13%

19-25 49 28%

31-35 24 13

/0

A

26-30 41 23%

{()—l8 & 19-25 D26-30 D31-35 M36-40 B41-45 B46

(44) Special Report, p.155.

() Special Report, p.155.

p O es

Age

of male suspects (4)

46-.…. 195 14%

0-18 122 9%

41-45 117 8%

19-25 318 22%

36-40 177 13%

..........

31-35 222 16%

26-30 262 18%

1()-lX @ 19-25 D26-30 O31-35 M 36-40 E 41-45 8 46-..

Age of female victims

(47)

46

- 84 18%

0-18 50 10%

41-45 40 8%

19-25 99 20%

36-40 47 10%

31-35 71 l%

26-30 89 19%

\ 0-18 @ 19-25 O 26-30 O 31-35 M 36-40 D 41-45 @ 46-..|

(46) Special Report, p. 156.

(4) Special Report, p. 156.

Age of male victims (*

0-18 41 6%

46-... 146 20%

19-25 96 14%

41-45 76 11%

26-30 111 16%

36-40 108 15%

‘

.....

3l-35 132 18%

&20-18 @ 19-25 O26-30 O31-35 M36-40 841-45 846-….

Of all the honour and reputation crimes committed between 2000-

2005, the reasons were :

29% chastity, 29% conflict within the family, 15% extra marital rela-

tionship, 10% blood feud, 9% sexual harassment, 3% rape, 3%, prob-

lems in arranged marriages, 2% other (*°).

V. — PROVISIONS OF THE TURKISH

CRIMINAL CODE OF 2005

In the abolished Turkish Criminal Code, honour killings did not take

place neither as a crime nor as an aggravating circumstance for homi-

cide. The applicable provision was premeditated murder provision of

article 450, which was the aggravating circumstance of homicide. On the

other hand, there was the article (462) concerning unjust provocation,

which I already mentioned above and which was abolished in 2003.

As to the present Criminal Code, art 81 states that whoever kills a

person with intent, is to be punished with life imprisonment. Article 82

contains the aggravating circumstances of homicide with intent. Honour

killings are cited among these circumstances and the punishment is

aggravated life imprisonment. On the other hand the provision concern-

ing unjust provocation, which covers all the crimes still exists in the new

Code. Art. 29 states that whoever commits a crime in a state of anger

or severe distress caused by an unjust act shall be condemned to a

reduced sentence. So if somebody commits a homicide under the guise

of honour, the punishment is aggravated life imprisonment. On the

(48) Special Report, p. 157.

(9) Special Report, p. 150.

PR c P

other hand could the article of unjust provocation be applied at the

same time? Article 82 is a special provision with respect to article 29,

which is a general provision. So as a rule, the special provision should

be applied. On the other hand the statement of reasons for this provi-

sion indicates that in order to be able to apply this provision, the con-

ditions of unjust provocation should not be present. In this case, aggra-

vated life sentence can only be applied 1if “unjust provocation” is found

not to have been true in a given instance. One primary condition for

unjust provocation 1s that, it has to be committed to people who commit

an unjust act. So if a woman commits adultery and is murdered for that

reason the offenders punishment is very little because, he/she 1s in a state

of anger or severe distress caused by an unjust act, he/she will profit

from unjust provocation clause of article 29. But if she 1s raped, since

there is no unjust act of the woman, the offender will be punished with

aggravated life imprisonment in article 82. We think that this is a cov-

ered effort to limit the application of the provision concerning honour

killings. To be more precise, with this wording of the statement of rea-

sons, only a limited amount of offenders’ punishment may be increased

with this new provision concerning honour killings. Most murderers will

get away with punisnment less than 18-24 years of prison sentence.

On the other hand honour killings are generally committed by under-

aged male members of the family °°, because minors get lower sentences

and if they are below 12, they are not to be punished; only security

measures are applied to these children. In some cases it 1s the oldest

male member of the family, who if by committing such a crime 1s pun-

ished will not leave a gap in the family ". Sometimes it is only one

member of the family who claims that he committed the crime all by

himself, without the knowledge of the family, as was the case of the

murder of Hatun Sürücü in Berlin in 2005 ?).

VI. — THE INCREASING NUMBERS OF SUICIDE STATISTICS :

IS IT SUFFICIENT TO CHANGE THE LAW?

I want to tell you the story of Leyla, a 16-year-old girl who became

pregnant. After certain months she could not hide it and she had to tell

her family that it was her cousin who forcibly raped her. The cousin

denied it. It was his word against her word. Her mother handed her a

rope and told her to “clean her honour”. Her brother was called, to

make sure that she did it properly. He found her crying. She said that

(50) AYTEKIN-INCEOGLU, p. 328.

GD TowNsoN-FLass, p. 10.

($2) TOwNsoN-FLass, p. 10.

_— 97 —

the chair was not high enough and she could not do it. He helped her

to set up the chair to the right height, and when he came back an hour

later, she was dead G°),

In one of the South Fast provinces of Turkey, Batman, there 1s an

increase in the suicide rates. To be able to evade the provisions of the

new Criminal Code concerning honour killings, people of Batman,

instead of killing the victim themselves are making her kill herself. But

they do not know the statement of reasons for this particular article yet.

Once they learn about it, may be the rate of suicide statistics will

decrease. And may be not because even 1f the attenuating circumstance

concerning unjust provocation is applied, still the offender will be con-

victed to a certain amount of prison sentence, whereas 1f the woman 1s

made to commit suicide, no one 1s convicted, although according to the

new Turkish Criminal Code, art. 84, whoever orients someone towards

committing suicide is punished with 2 to 5 years of prison sentence and

if the suicide takes place the punishment 1s 4 to 10 years of prison sen-

tence, but it is generally very difficult to prove this act. Fourth para-

graph of the same article punishes whoever orients mentally handi-

capped persons or forces or threatens someone to commit suicide 1s

punished with the punishment of murder with intent. This act is also

very difficult to prove too.

VII. — CONCLUSION

Especially after the establishment of the Turkish Republic in 1923,

the Turkish Laws have always followed the universal trends of their

time. But we always had problems with their application. In my opinion,

it is not possible to force the governments and civil servants to apply the

provisions of the new laws 1f the people of that country are not aware

of their rights. So the core of every reform lies in the education of peo-

ple, especially women, so as to raise awareness of their rights. If people

do not know their rights, how can they request them?

Creating new crimes or aggravating circumstances and increasing

punishment to such crimes may prevent their commission, but only in

a very limited way.

Criminal punishments do not elevate the social pressure from the

offenders. Some people would prefer to be imprisoned for long terms

instead of being free but under shame of dishonour! So what has to be

63) Curry, “Acting With Honour : Justice not Excuses in Crimes of So-Called ‘Hon-

our’”, in Violence in the Name of Honour, ed. By Mojab-Abdo, Istanbul Bilgi University

Press, Istanbul, 2004, p. 187.

— 98 __

done so that the concept of honour and chastity is better understood in

the community?

These murders can only be eradicated through education and mod-

ernisation S*).

Turkey is a party to the Convention on the Elimination of All Forms

of Discrimination Against Women (CEDAW) and its optional Protocol

and therefore has committed herself to incorporate the principle of

equality of men and women in the legal system, abolish all discrimina-

tory laws and adopt non discriminatory ones. But as Amnesty Interna-

tional's Secretary General puts it, “International treaties and mecha-

nisms are only useful 1if they are carried back into a country and

respected. Otherwise they are simply hot air. Laws only offer protection

if they are implemented, otherwise they are printed documents…. Seek

solidarity of men with women…. Violence against women may be uni-

versal but it is not inevitable….We must be willing to change religious,

social and cultural attitudes that belittle women...We must…fight for

equal access of women to political power and economic resources….We

must…demand change” 65).

Âs to specific solutions :

— It 1s necessary to raise awareness in the community. NGOs, women’s

shelters, and public authorities must co-operate for this. Large-scale

programs must be prepared by the national TVs. In Germany this

involves efforts in changing the attitudes of immigrants. Special effort

must be made fto deal with the culture gap between the first and the

second-third generation of workers.

- In Turkey, local municipalities have the obligation to establish shel-

ters. Family consulting centres are established to cope with problems

that may arise in families. But it is not enough to establish places, to

construct buildings if no one goes there. Women must be given the

courage to go there. “Purple Roof” established for battered women is

an NGO and has acquired the trust of the community, so women have

the courage to go there. But it has financial problems and should be

supported. On the other hand establishing shelters does not mean any-

thing 1f there are no doctors, pscyhologists, lawyers there.

Funds must be allocated for shelters and they must be supported by

public authorities.

Public officials, especially the police must be educated in Victimology

and victims’ rights.

(34) SYRMAN, p. 39.

(55) Speech by Irene Khan, Secretary General of Amnesty International (Nov. 25, 2003)

in CURRY, pp. 189-190.

__ 99 __

— Specially trained officers and specialized personnel must be apointed

to work in hohour related cases.

— Educating children from the kindergarten on the role of the woman

in the society, on what honour really is and that everybody 1s his own

honour’s guardian must be the principal education policy of all

schools. The children must be given a democratic education and gen-

der equality issues must be discussed not only with students, but also

at the parent associations (PTAs).

— Posession of firearms must be prevented and controlled.

— International organisations such as the UN have a crucial role in solv-

ing this problem, because honour related violence occurs in all coun-

(56),

tries, so the matter should be discussed internationally

Being a Criminal Law academic, ! urge that, the statement of reasons

of the article concerning honour murders be changed immediately so as

not to render the application of this article nearly impossible in practice.

It is not only the women who are victims of honour crimes but also

men and especially boys who are forced to harm female members of

their family. So some effort must be made to convince men to under-

stand this reality especially through media, education in schools and

individual counselling, supportive talks and monitoring.

On the other hand, as a Criminologist I think that, retributive justice

is not enough to prevent honour killings. There is a lot to be done con-

cerning restorative justice, and this is where the solution is. In fact in

some European countries like Sweden and Netherlands, prevention 1s

sought by mediation between the threatened woman and the family

(57)

ABSTRACT

The author comments on the results of a comparative research on

murders committed on persons accused to have brought shame on their

families or communities.

SOMMAIRE

L’auteur rend compte d’une recherche de criminologie comparée sur

les homicides commis sur des personnes censées avoir apporté la honte

à leur famille ou à leur communauté.

(56} BERGH, p. 200.

(57) TowNsoNn-FLass, pp. 25, 26, 30.

— 100 —

RESUMEN

El autor expone los resultados de una investigaciôn criminologica

comparada sobre los homicidos realizados por personas acusadas de

haber afectado al honor de su familia o de su comunidad.

— 101 —

THE PUBLIC OPINION

AND THE EXPERTS’ VIEWS

ON RESTORATIVE JUSTICE

Dr. Klära Kerezsi (*))

The roots of the restorative justice go back to the ancient cultures

while the modern world rediscovered the possibilities behind this 1dea in

the 1970’s. The thought of rehabilitation was — in the 1980's — namely

defeated by control. That was the time when that period has ended

which extracted the moral elements from the punishment and considered

it as a purely therapeutical social work. Empirical research indicated

that the instruments of the traditional criminal justice do have neglecta-

ble effect on recidivism. The appearing victim-assistance movements

emphasised however that the criminal jurisdiction neglects the enforce-

ment of the victim’s consideration. The linking-up of the above two

trends also assisted the strengthening of the restorative justice approach.

In the traditional criminal justice approach committing crime 1s

something of a particular event or action which does not have any con-

nection to the conflicts of everyday life and so the deserved punishment

is also something coming “from above”. This is probably the reason

why some people can only imagine the punishment of criminal behav-

iour as a “purgatorial suffering” which perfectly excludes the enforce-

ment of the victim’s consideration from the system ”. The conventional

criminal justice is only partially thinking in the relation of Christian

punishment-atonement. There is an intermediate person (e.g. priest =

layman judge) who evaluates the action and levies the penitence. The

reaction given on crime does not have to be necessarily “proportionate”

since it accepts repentance as the condition of absolution in the exem-

plary case of for lust as for other crimes injuring Christian morality.

This obviously results from the fundamental thesis that the individual

seeking forgiveness really repented the action, and honestly wishes to

earn absolution for the falling into sin.

(*) Associate Professor. Acting Deputy Director National Institute of Criminology, Hun-

gary. E-mail : kerezsi@okri.hu.

() The research project “Researching restorative justice : innovative means in the Hun-

garian criminal justice system” (Reg. number : T 037854) was financially supported by the

Hungarian Scientific Research Fund.

(2) JOHNSTONE, G

(2004),

“How and what terms,

should restorative justice be

conceived?”, in ZEHR, H. and Torws, B. (eds.), Critical Issues in Restorative Justice, Criminal

Justice Press, Monsey, New York, p. 8.

— 102 —

I think that the traditional criminal justice lacks this presumption of

honesty and therefore tries to punish the mentally and morally “resist-

ant” (by the meaning of a not-repenting criminal) with “purgatorial”

instruments. The novelty of the restorative justice rests exactly in the

strengthening of the “conscientious/psychological element” of punish-

ments hoping to attract the honest intention of the offender to attain

absolution. This idea fits well to the demand emphasising the impor-

tance of connection between human emotions, crime, punishment, and

the social control. These human feelings — like anger, happiness, con-

tentment. sadness, shame, remorse, etc. - were subject to many fields of

criminological researches : the motivation of criminal, the hatred-crimes,

family aggression, fear of crime, at the research of the results of victim-

isation or at the analysis of the importance of the media at the intro-

duction of criminality *.

THE AIMS OF THE RESEARCH, THE SELECTION

OF EXEMPLAR AND THE RESEARCH

METHODS

The Act on Mediation Procedure will be effective from the ! January

2007 in Hungary. Our research hoped to assist to discover which social

classes have to be addressed more directly for the acceptation of the new

instruments of restorative justice. For this reason survey method was

used to discover the domestic public opinion on law-abiding behaviour,

how it conceives of moral norms, what does 1t know and what does 1t

expect from the functioning of the criminal justice system and what does

it think about the instruments of restorative justice.

From the surveys of Eurobarometer of the EU 1t is known year by

year what people think about criminal justice, how much they trust their

own national legal system, how much feel of safety. In the victimological

researches indirect indications may be found on the possible domestic

opinions about the reparative instruments‘*, but there were no direct

national survey records on the acceptance or refusal of the instruments

of restorative justice amongst the population. There were neither any

information about how the professionals working in the criminal justice

field feel about restorative justice although they do play an important

role in whether this new forms of justice get a function in the system of

criminal sanctioning. The belief and commitment of the professional’s

C DE HAAN, W. and LOADER, I., “On the emotions of crime, punishment and social con-

trol”, Theoretical Criminology, Vol. 6 (3), 2004, pp. 243-253.

# ZVEKIC, U. and KERTÉSZ, 1. (2000). Büncselekmények âldozata a rendszervaltäs orsza-

gaiban (Victims of crimes in the states of change of regime), Nemzetkôzi vizsgalat ered-

ményeil, UNICRI

BM Kiadô, Budapest.

— 103 —

working at the criminal justice system is required over the legislative

intent for the restorative justice to become not only formally part of the

legal system, but to also form and reshape the legal practice ©).

In the frame of the research project two empirical surveys were com-

pleted. In the first survey a sample of 1200 respondents were asked. The

study was carried out on a nation-wide survey in a representative lay-

ered sampling representing the adult population of the country. The sec-

ond research was conducted by a mail-survey, and 512 public prosecu-

tor, junior prosecutors and trainee prosecutors answered — anonymously

— the posed questions ‘°.

During the empirical survey a 38+24 question questionnaire has been

used which included in its first block questions related to the demo-

graphical and territorial characteristics, as well as questions on the polit-

ical preferences, exercise of religion, and the conservative/liberal and

left/right-winged approach of the respondents — usual at empirical sur-

veys. The special part of the questionnaire included a block of 24 —

mainly complex — questions which was discussing the questions of the

following categories :

1. Attitudes related to law-abiding behaviours, for example why the

majority of people complies the acts, which social and collective institu-

tions have the most important role in strengthening the abidance by the

law, and what conditions do, or may do more colourable the abidance

of law and regulations.

2.The attitudes of the respondents, the picture created upon the

trustworthiness of the people, the factors of success, the attitudes

towards the underprivileged social strata, and the questions related to

discrimination of certain social classes.

3. What is the most important element for the respondents in regard

to the issue of safety and what do they think about the functions of

criminal justice system.

4. Information on the “reality” of the existing criminality, namely

whether the extent of the domestic criminality is known, how did the

quantity of criminal offences changed, and how do the people think

about the seriousness of crime categories, as well as what do they think

about the grounds of criminality and commission.

S. Attitudes related to the criminal law legal consequences. In

particular : what do the respondents know about the existing sentencing

) The analysis is planned to be followed by the attitude-survey of the judges, probation

officers, policemen, and professionals of penitentiary institutions.

(6) It has to be emphasised that the prosecution sample is not representative, although

according to the data available from the year 2003, the system of prosecution includes 1423

persons.

— 104 —

practice like the frequency of imposition of imprisonment in certain

delinquency categories? Which consequences are considered as the most

serious in the system of legal consequences in relation to the criminal

law sanctions? Is the death penalty approved, what is the general idea

about the relation of the levy of punishments and the development of

criminality, the true role of imprisonment, and what factors would be

considered if they would have to bring the judgement?

The full range of the survey’s results can not be introduced therefore

rather some typical detail will be emphasised in the following.

1. — LAW-ABIDING BEHAVIOUR,

MORAL CONVENTIONS, ATTITUDES TO LIFE

One of the fundamental questions for us has been the problem what

are the key elements in relation to what people think about the abidance

by the law, about the orientating content of moral conventions, and

whether this is in connection to the attitudes with their own lifestyle.

(The two survey databases will be referred as “population exemplar”

and “prosecution exemplar” in the following.)

The respondents originate the law-abiding behaviour generally to

three factors :

|.to fear (* because they fear to be arrested and punished”).

2.to force (… for the law has to be followed”), and

3.to confidence (… for the people wish to follow the right way”).

According to the majority of the respondents the most important rea-

son of the law-abiding behaviour is the fear of being nabbed, the fear

about the consequences. From this aspect there 1s barely any difference

between the persons asked in the population as in the prosecution sam-

ple. From other aspects however there are significant differences in the

expressed opinions. The respondents of the prosecutors sample attach

much lower importance to the formalism or automatism of abidance

(“for the law has to be followed”) as the respondents of the population

sampling. This is indicated by the difference of almost 11% in the

responses. For the respondents of the prosecution exemplar the “con-

vinced” abidance is of much higher importance then for those respond-

ing in the secular exemplar.

— 105 —

Why does the majority keep the law?

40,9

42,9

37,0

.......

28,2

26,1

15,2

4,1

1,2

3,7

0,8

L

_ mmmmonf S

For they fear to be

For the law has to

Ëor the people

For they try to evade

Because of other

arrested and punished

be followed

wish to follow

compunction

reasons

the right way

m Population exemplar (N=1182)

€ Prosecution exemplar (N=508)

The choices of value could be in connection with how they think

about certain questions of criminal justice. The majority of the popula-

tion exemplar regards the assurance of higher standards of living more

important while the prosecutors take the reservation of law and order

as primary objective.

What is the most important

for the people according to the respondents in the population

and the prosecution exemplar? (“%)

7

10,4

Œ

—

—

ml*

Reservation of

The people should

Granting higher

Strengthening the

Strengthening

law and order

have grater influence

standards of living

freedom of expression

the social equality

in the political

for everyone

decision-making

œ Population exemplar

& Prosecution exemplar

Our results are accordant to the statements of the wide-modelled atti-

tude survey executed by the National Institute of Criminology which

indicated that the lack of safety is heavily penetrating the present Hun-

garian society. The sources of that lack of safety are the existential prob-

— 106 —

lems, the social circumstances, the bondage on the labour market and

not the development of criminality .

The responses given to the question what factors do have the most sig-

nificant role for the people complying with the moral conventions gave

the expected result. It is however worth to mention that 94,7% of the per-

secution respondents consider the family education as extraordinarily

important while “only” 72% of the population respondents gives a primer

role for the family. It is also noticeable relatively how many do believe in

the power of law according to the distribution appearing in the popula-

tion exemplar (17,4%) and how few in the role of religion at strengthening

the moral conventions (1,9%). It is conspicuous that the younger genera-

tions (18-29, and 30-39 years old) attribute much higher importance to the

instruments of law as expected in this process. The role of religion at

strengthening the moral values is particularly considered important

amongst the youngest (18-29 years old) and the oldest (above 60).

Which factors do have the most important role

for the people complying with the moral conventions?

94,7

u Population exemplar

& Prosecution exemplar

72,0

17,4

0,4

1,9

1,2

1,4

—— "c

—s

School

Law

Friends

Family

Religion

Workplace

Morality and law — in particular criminal law — do connect to each

other at several points. We analysed the relation towards abidance and

violation of norms through the acceptation or rejection of certain state-

ments in our survey. We shall however not forget that the same person

() KEREZSI, K. (2004), “The Presence of the Different Dimensions of Crime Prevention

in the Examination of Attitudes Self-image and crime prevention : the relations between the

images the interviewees have of themselves and of crime prevention”, in Victims and Opin-

ions, Vol. I, (ed. : IRK, F.), National Institute of Criminology, Budapest, pp. 125-160.

— 107 —

may adjudicate the law from at least three aspects : (1) referring gener-

ally to his, or (2) concretely to a specified behaviour, or (3) as the stand-

ard of others behaviour .

Affinity towards abidance and violation of norms

in the percentage of the respondents ‘)

Rejects

Accepts

The gaps in law may as long be used as long they do

not infringe law

48,5

51,5

n

C

37,2

d

sOitittt

Ktl

HL

ä 62,8

It is difficult to maintain self-esteem if someone

34,1

65,9

infringes the law

19,4

;

80,6

Law always has to be complied with regardless whether

it affects me or not

17,2

82,8

Ï

13,5

IŒ

I\D

1865

A

;

N

4,3

Law may be infringed as long as | do not get caught 95,7 l

e

Prosecution

Population

exemplar

exemplar

844[

Ë | 15,6

The majority of the respondents agreed with the statement that “the

gaps in law may as long be used as long they effectively do not infringe

law”. In the population exemplar the percentage of respondents is

higher who even agree with the statement that “law may be infringed as

long as they do not get me” (15,6%). At this question the clear approach

of the prosecutors becomes apparent for only 4,33% agreed with the

above statement. At the same time the approach of the prosecutors may

seem more permissive upon how much personal interest may affect the

commitment towards the abidance of law (“law always has to be com-

plied with regardless whether it affects me or not”) and whether the

infringement of law results necessarily the loosing of self-esteem (‘‘it 1s

difficult to maintain self-esteem someone infringes the law”). In these

questions the population exemplar shows a more definite standpoint.

Certain questions of the attitude-analysis made different outlooks

upon life possible as the possibility to identify oneself with these atti-

tudes.

(8) SAs6, A.: Lâtszat és valôsäg a jogban (Appearance and reality in law), Kôzgazdasâgi

és Jogi Kônyvkiadô, Budapest, 1986.

(9) Data calculated without the “does not know” results.

ce TTF 0

1. “Work hard and you become wealthy” (Diligent)

2. “Take education seriously for you will get a name through that”

(Dutiful)

3. “Do not think about money and fame just live your life as it is

the best for you” (Hedonist)

4. “Enjoy the pleasure of everyday life with ease and free-minded”

(Practical)

S. “Avoid the temptations of the world, live plainly and honourably”

(Ascetic)

6. “Do not think about you but what you could give to the others”

(Communal)

The first two phrasings (whether related to work or education) gave

the possibility for answers like “diligence brings its fruit”. These two

alternatives cover in reality the same approach namely the respect and

practice of duty and diligence. Possibilities number 3 and 4 indicate sim-

ilar conceptions too : the preference of selfish, shallow behaviour or the

acceptance of such a practical approach where the planning of future

has only minor importance, role. Outlook number 5 may be named as

ascetic, which by its individualism considers itself guided by moral con-

ventions. The approach categorised in group number 6 may be called

communal, which — by the refusal of individualism — intends the assist-

ance and help of others over its personal objectives. It is interesting that

in the population exemplar more then one third of all respondents

selected the “ascetic” outlook. This may be resulted from the fact too

that categories 1&2 and 3&4 are quite approximate to each other.

Outlook selection of the questioned (“%)

12,7

18,5

34,6

36,3

O Communal

D Ascetic

œ Hedonist, practical

© Diligent and dutiful

28,3

T

l

Population exemplar (N=1161)

Prosecution exemplar (N=466)

— 109 —

Strong correlation may be found concerning the chosen outlooks by

certain ages between the prosecution and population exemplars. At the

prosecution exemplar the inferior appearance of the “diligent and duti-

ful” category as well as the dominance of the “ascetic” category 1s

apparent. This characteristic may not be grounded upon the age

attributes of the prosecution exemplar since almost 59,3% of the

respondents were below the age of 40. Amongst the respondents over

the age of 40 apart the dominance of the ascetic approach the commu-

nal approach prevails and this attribute increases in the latter ages

amongst the questioned of the prosecution exemplar.

2. — MICROCOMMUNITY SPACE :

WHO

ARE THE PERSONS NOT WELCOMED

IN THE NEIGHBOURHOOD

The personal tolerance threshold of the respondents and the ranking

of their prejudices as well as their percentage are introduced at the fol-

lowing chart in the two samplings.

Whom would you not like to see in the neighbourhood? (%) ®

816

Drug consumers

85,2

Prostitutes

74,7

74,0

Alcoholics

74,5

82,0

65,3

Formerly convicted persons

ec

70,2

AIDS infected, or HIV positives

56,2

24,0

Immigrants

176

20

Extreme right-wingers

442

Extreme left-wingers

17,9

36,1

12,1

Persons of religious minorities

114

Mentally changed persons

10,4

12,4

2,4

Handicapped

_—

_

| - Population exemplgr:__"_iüpëÿi_çæ_æïg"

Prosecution exemplgr: "indicates"

(10) Data calculated without the “does not know” and “no answer” results.

— 110 —

It has to be underlined again that - contrary to the population sur-

vey — the analysis of the prosecutors was not based upon a representa-

tive exemplar therefore the received results may only be considered as

an indication. The questioned — of both exemplars - rejected the drug

consumers to the highest extent, but other persons considered as deviant

would not be welcomed in the neighbourhood either. For the questioned

there existed five categories from which they wanted to keep the

distance : 1) drug consumers, 2) prostitutes, 3) alcoholics, 4) the for-

merly convicted persons, and the 5) HIV-/AIDS positive persons. At the

same time it is apparent that the prosecution exemplar gave a stricter

declining of alcoholics and formerly convicted persons then in the pop-

ulation exemplar. This nevertheless may originate in the fact that the

people questioned in the population exemplar come only incidentally

across with these persons while the prosecutors and junior prosecutors

meet them up day by day. The high level of intolerance of the prosecu-

tion exemplar needs to be emphasised towards the “extremist reasoners”

regardless of the sign of extremism — which refusal 1s the strongest at

the age of 30-49. The population respondents are much more tolerant

towards the problematic of the extreme right/left-wingers.

3. — DUTIES OF THE CRIMINAL JUSTICE

During the survey the possible responsibilities of criminal justice

with special regard to the tasks of the restorative justice - were coupled

in one block and the respondents were asked to indicate on a five-lev-

elled scale whether they consent or reject the duties included in the state-

ments. At the below flipchart‘“" the questions are to be followed at

which the popular and the professional responses are either obviously

conform or different.

( The “does not know” and “no answer” results as well as the “as-as” (agrees and dis-

agrees) answeres were excluded in the above calculation.

-— ll

Difference of the public and professional opinions

about the possible responsibilities of criminal justice system (%)

100,0

93,0

85,1

80,8

83,4

80,0 +

73,0

749

66,0

69,1

57,0

55,6

56,6

60,5

—.o*n)]

60,0

42,9

44,4

40,0

300

26,9

28,2

20,0

00

—

|

|

2,5

20,0 +

UI

166

27,0

19,2

28,1

-40,0 +

340

30,3

39,5

43,9

444

43,4

. ..…0……-0

045

571

555

-80,0

_— 700

00 _

—S ——

_

_

18

83,1

—#

100,0

Prosecu- | Popular

es

5"

\Popular | Pro;ecu l Populav

|

Prosecu

pxemplar ton _ pxemplar

ton

r:ampla:

tion

exemplar

-tbon

-tion

-tion

Lœmplar

} -ton - pxemplar

| Prosecu Popular

-ton _ pxemplar

tion

exemplar

exemplar

|

exemplar î

!GX

emplar

!bl [e[

emp!

jmremalav | l-hon F

e

jexemplar 3

[exemolar

|exemplar

The jurisdiction has

The jurisdiction

The duty of the

1 The responsibility

The duty of the

During the i In the jurisdiction |

The local

|

Through the |

The punishment

‘eparation of

consider equally

| jurisdiction is the | of the jurisdiction

reparation of the

is only to punish ‘ awake the criminal s |

jurisdiction is to I

procedure the |

criminal

compromise

the direct

| should be given à

communities

the criminal the

cooperation of

of the criminal is

more important

damage not the

punishment of

necessities of

the criminai

sense of

be encouraged |

criminal has to | between the cri

and the victim

iminai

Ê

reparation of

than the

the criminal

criminal as well

asof the

damages

! responsibility

to restore the | has to be establ

g=5|

damaçesm,

probable as

human rights

protection of

caused damage

!

|

without

It seems as if the questioned would strongly agree that the criminal

jurisdiction should serve better the interest of the victim. There is hardly

any difference between the answers of the two exemplars regarding the

question of reparation and the agreement of the criminal and the victim,

although if we analyse the data in detail and through other connection

then the picture is not that evident any more. The respondents of the

two exemplars consider identically the importance of the encouragement

of the offenders for the reparation of caused damage, and for awaking

the criminal’s sense of responsibility. Approximately similarly — just

about two third of them — both exemplars believe that the cooperation

would lead with greater likelihood to the reparation of damage then the

application of force. The professionals however assist the possibility of

compromise between the offender and the victim in a higher extent then

the respondents of the population sample. This indicates firstly that the

professionals estimated the likelihood of case-decrease through the

mediation while on the other hand that the population should be given

more detailed information in regard to mediation applicable at criminal

matters.

— 112 —

4. — INFORMATION UPON THE REALITY OF CRIMINALITY

AND ON

THE SENTENCING PRACTICE

Likewise to the results of the foreign analyses“?, the results of our

survey witness the lack of information on criminality and on the sen-

tencing practice. The professionals have more adequate knowledge then

the respondents of the popular exemplar — although even the informa-

tion of the professionals 1s not exact in that regard. According to the

opinion of 58,3% of the prosecution respondents national criminality

has significantly increased in the last two years. Ît 1s truly possible that

this impression of the prosecution was evoked by its incontestably

increasing responsibilities, since the institution of the delay of accusation

(for the release of the judicial segment of the criminal jurisdiction)

increased significantly the duties of the prosecution. We may find sig-

nificant difference in what the respondents of the public sample think

about the volume of the domestic criminality, about its internal dimen-

sion and dynamics, and about the particularities of typically committed

crimes. 42,7% of the questioned in the popular exemplar held that

national criminality has increased to some extent, according to 20% the

increase was significant. At the same time it seems as if even the pros-

ecutors were not completely aware about the criminal statistical data.

This is particularly interesting for the decrease of criminality is no t only

a national phenomenon, but similar tendencies are occurring throughout

the world !*

(2) See : British Crime Survey (BCS); PFEIFFER, Ch., WINDZIO, M. and KLEINMANN, M.

(2005), “Media Use and its Impacts on Crime Perception, Sentencing Attitudes and Crime

Policy”, European Journal of Criminology, Vol. 2 (3), pp. 259-285.

(3 On the reasons and possible explanations of the decrease of criminality see : BLUM-

STEIN, À.. “The Crime drop in America”, and ToNry, M., “Explaining European crime

trends”

The plenary lectures were held at: The First Annual Stockholm Criminology

Symposium : *Recognizing Knowledge to Reduce Crime and Injustice” 15-17 June. 2006.

— 113 —

The alteration of crimes become known in the last two years

according to the questioned %

53

20,1

93

—

0,8

p

—

——

Does not

Has

Has

Almost

Has increased Has increased

know

decreased

decreased to

unchanged

to some

significantly

significantly

some extent

extent

E Popular exemplar (N=1197)

& Prosecution exemplar (N=508)

Foreign researches also indicated earlier that the attitudes towards

violent crimes define how the people have their opinion about the

entirety of criminality. The explanation of that is that the primer source

of information related to criminality is from the news appearing in the

media and the mass communication is highly interested with violent

crimes discussing them in large numbers in comparison to their appear-

ance. Ît may also result from this that the questioned have quite different

knowledge upon the structure of the national criminality then the real.

“According to your knowledge how many crimes could be violent

or committed with the treat of violence from 100 crimes?”

Answers on the question given in percentage

21,0

——"

18,5

18,5

—s

17,7

13,8

11,1

11,6

10,

10,2

8,7

9,1

T,9

6,5

6,9

6,5

6,3

3,6

2,2

0,8

L

T

(

1-10%

30-40%

10-20% i 29-î50%

40-50% Ï 750-60%

60-70% — 70-80% 80Ï90% 90-100%

|

lf — ——

e

m

.s Arsseciior èn

— 114 —

In 2004 the percentage of violent crimes has been 8% therefore the

laity respondents overestimates considerably, while the prosecutors —

although in a definitely smaller level — but also overestimate the extent

of violent crimes. Only 3,6% of the questioned popular whereas 11% of

the prosecutor respondents indicated the percentage of violent crimes

correctly.

5. — THE OPINION ON THE IMPORTANCE OF CRIMES

AND LEGAL CONSEQUENCES

The questioned do have a quite adverse opinion on the domestic

practice on punishment — but neither is this different in other countries.

One of the possible explanations of this phenomenon 1s that people do

not have adequate information on the process of punishment. According

to the results of foreign surveys people are susceptible to express puni-

tive attitudes when they do have to reply widely taken general and

abstract questions. When however detailed information is also available

they are able to implement complex and different viewpoints — often

contradicting each other - instead of the simplifying and punitive

approach‘"#”. Hough gets from that to the conclusion that the punitive

approach witnessed at the general questions softens or disappears, when

more information is available about the certain case

(15),

According to

Hutton the abstract pro-punishment or punitive attitudes coexist with

the more subtle and justice-sensitive approach to individual cases, rather

reflecting the considerations of justice in their approach“®. This does

not mean - says Hutton — that the punitive approach disappears com-

pletely at the judging of individual cases 1f more information 1s available

for the questioned. Namely when the surplus information indicates that

the criminal could be of a greater danger for the community then the

public opinion needs greater security — even by the more frequent appli-

cation of imprisonment.

Even by the indication of the non-representative nature of the pros-

ecution exemplar 1t is highly remarkable that the professionals are even

less satisfied with the sentencing practice then the popular opinion. The

(4 ASHWORTH, À. and HoucH, M., “Sentencing and the Climate of Opinion”, Criminal

Law Review, 1996, pp. 776-787. DooB, À. and ROBERTS, J.V., “Public punitiveness and public

knowledge of the facts : some Canadian surveys”, in N. WALKER and HoucH, M. (eds)., Pub-

lic Attitudes to Sentencing. Surveys from Five Countries, Aldershot, Gower, 1988.

(°) HoucH, M. and ROBERTS, J. (1998), “Attitudes to punishment : findings from the Brit-

ish Crime Survey”, Home Office Research Study 179, Research and Statistics Directorate

Report. Home Office, Research and Statistics Directorate, London, 1998. p. 69.

(16) HUTTON, N. (2002), “What the Scottish Public think about Crime and Punishment”.

Paper presented at the Second International Conference on Sentencing and Society Centre

for Sentencing Research, Univ. of Strathclyde, Glasgow, June 27-29., p. 12-13.

— 115 —

reasons of this phenomenon should be enlightened by a more detailed

analysis.

The public and prosecutorial opinion on the domestic practice

on punishment in the percentage of the questioned

_

43,5

E Popular exemplar

39,3

& Prosecution exemplar

29,9

28,0

27,3 28,0

2,9

0,5

—— …

__ L

T

-—

——

xx

| Too strict

Grievous to a certain

Generally appropriate

A bit light

Too iigf

extent

After the questions on the formation of criminality it was also asked

whether the respondents think the development of criminality — be it

positive or negative (according to them) — is in relation to the sentencing

practice. About the answer on the sentencing practice it may be pre-

sumed that the respondents think there is a relation between the two

phenomena : to increase the punitiveness in the sentencing practice

results necessarily the decrease of criminality. We hereby disregard the

introduction of the sources filling libraries justifying the opposite of that

and concentrate what the results of the survey indicate towards that

relation. (At the calculation of distribution the answers un-interpretable

by their content were excluded.)

— 116 —

Does the judicial practice on punishment has an effect

on the development of criminality?

60,0

50,0

40,0

30,0

20,0

19,3

10,0

0

sN

61

0,0 —

Absolutely no effect

Has only a minimum

Ît is an important factor It is the most important

effect

but not the most important

factor

m Popular exemplar

Prosecution exemplar

The data justified our expectations : more then two third of the pop-

ular questioned supposes strong relationship between the practice on

imposing punishment and the development of criminality. Therefore the

majority of the popular exemplar believes that the lenient sentencing

practice is one of the reasons of the increase of criminality. Almost

twenty percent of the questioned considers the sentencing practice as the

most significant factor in regard to the development of criminality. Nev-

ertheless the three fourth of the members of this group agreed — in a

reply given to another question of the questionnaire — that “people

know generally little what happens during the criminal procedure”. The

replies of the prosecution exemplar differs to some extent, for more then

the half of the questioned (56%) regards this connection significant, and

a much higher fraction believes that there is no, or is only a weak rela-

tion between the sentencing practice and the development of criminality.

The data indicate that according to 22,9% of those who believe that

criminality has increased in the last two years “to some extent” while

53,8% of those who believe that criminality has increased “significantly”

considers the sentencing practice too lenient. We learn a similar connec-

tion to the number of persons convicted to imprisonment : from those

who believe that the number of persons sentenced to imprisonment has

decreased in the last two years almost 40% also supposed that the

imposed punishment were too lenient. This is strengthened by the cor-

relation occurring in the prosecutor exemplar that those respondents

who think that the number of condemned to imprisonment has

— 117 —

decreased in the last two years are mostly convinced that the domestic

practice on punishment 1s too mild

During the analysis we asked the reported persons about what is the

most and least unpleasant result of perpetration, and of the condemna-

tion to imprisonment. The below diagram — in its diversity of both

examples — shows the percentage of replies given at the first place. It

seems that the replies given to this questions rhyme with the answers

given on the motives of abidance of law which were already analysed

earlier. It is not doubted that the respondents consider the bearing of

imprisonment as the most severe legal consequence. At the same time

the differences of responses in the two exemplars indicate very well that

the prosecutors are rather clear about the burden of imprisonment in the

practice. The prison sentence is followed by being nabbed and the police

report in the line of the most unpleasant consequences. There is also a

difference between the evaluation between the responses of the two

exemplars which is a probable result of the information on the prosecu-

tion exemplar’s side that condemnation to imprisonment does not nec-

essarily follows the police report for there are other legal consequences

to be applied

What is the most and what is the least unpleasant result

of perpetration according to the questioned (%) 7

|

© Least unpleasant

Les

E Most unpleasant

12,2

12,3

10,1

10,5

d

(Joc

1,4

1,9

,üû

Ü……iïiiil

Populate

Populate

Popula

e

Populate 436

Populate

os. Populate Pros.

;Populatç:pros Populate

pr°s Populale Pros P0pula!8 PÏOSI

ex

Pros, ©* ‘ Pros

Pros. |

ex

|

Pros l

ex

!Pr

X

ex

ex

| ex.

ex

ex.

ex.

|

ex.

ex.

ex

ex

ex

|eX

ex

ex

|

|

I

|

|

|

|

|

|

|

|

|

|

î

“‘

|

|

|

| The tolerance

To face the

fact that

| Appearing

in the media

Condemnahonl To face the

The start of the |

Loosing the

Being

|

The

| The toleration

of special

|

to the

criminal

workplace/

home

nabbed,

| awareness of | of punishment |

itself

consequences

legal

trouble has

damage

| as a criminal

reparation of |

the caused l

proceeding/ |

judgement

| police report ‘ the family/ |

friends about

been caused |

|

damage

|

|

|

|

the crime |

to another

|

It has been earlier discussed that one of the responsibilities of crim-

inal justice the respondents consider important the encouragement of

reparation and the strengthening the criminal’s sense of responsibility

We have to state with sadness in regard to this question that the atti-

() The diagram indicates the division of answers in percentage in both of the exemplars

— 118 —

tudes regarding these consequences amongst the population as well as

amongst the professionals show that the respondents consider insuffi-

ciently the moral consequences of criminal behaviour, and the convic-

tion. This is particularly regrettable for the evaluation of the results may

not be limited to the bearing of the punishment but the morality, as the

evaluation of the ‘“accepted believes, norms and values of the social

community in the dimension of good and bad, right or wrong” “ has

also a role.

We believe that the responses show a more general approach as well,

and “devalue” the importance of the possibility of manipulating the psy-

chic relation between the offender and his/her crime. The restorative jus-

tice

howsoever restitution 1s its central term — 1s primarily concerning

the relation existing between the criminal and the condemned crime.

According to Antony Duff the reaction does not answer the caused

damage of the crime, but rather the personality of the criminal. Accord-

ing to his position this relationship should be strengthened by stimulat-

ing the true acknowledgement of causing damage in the criminal, the

recognition that by the commission of crime damage has been caused to

others, as well as by strengthening the will of reparation in him. Only

this process 1s capable . continues Duff - to change the relations of the

criminal. not only to the victim (and not least the relation of the victim

towards the criminal) but also to other members of the society !”).

SUMMARY

Everybody has an opinion on crime and punishment. These

approaches of the common people are however not in the depths of

Dostoyevsky and most frequently are not based upon the directly expe-

rienced facts. They indicate rather generally the worries about living

conditions, social insecurity and disorder then simply the opinions about

crime and punishment.

The results of the survey indicate that

in contrast to the profes-

sional experiences - the people generally think that criminality 1s con-

tinuously and rapidly increasing. It 1s apparent that the respondents

overestimate the quantity and frequency of violent crimes amongst the

reported crimes. This may also result from the fact that politics and pro-

18 PokoL, B. Jegyzetek az erkôles és a moral szerepérôl a modern tärsadalmakban

(Notes on the role of morality and ethics in the modern societies) [http://jesz.ajk.elte.hu/

pokol23.html].

(9 Durr, A.… “*Restorative Punishment and Penal Restoration”. Plenary lecture at the

“Positioning Restorative Justice” conference. International Network for Research on Restor-

ative Justice for Juveniles, 16-19 September, 2001. Leuven, Belgium.

— 119 —

fessional politics addressed certain types of violent crime categories

throughout Europe as family violence, sexual offences against minors,

or football-violence. The opinion about the composition of the entirety

of crime may have been a victim of that “illusion”. We may 1dentify sig-

nificant lack of information about the sentencing practice as well. It 1s

considered regrettable that the majority of the questioned considers even

at serious violent crimes that such perpetrators are not sentenced to

imprisonment by the national courts — and therefore the practice of pun-

ishment 1s believed to be lenient as it is in reality. This belief may be

strengthened by the representation of criminality by the media from

which picture the conclusion of increasing and more violent criminality

may be drawn. The detailed discussion of extraordinarily serious crimes

deforms the formable portrait on the existing criminality.

On the other hand it is not only the responsibility of the mass media

to secure that the people know the real facts. It is the duty of the gov-

ernment and of the criminal justice institutions to provide with such

comprehensible and interpretable information the public from which 1t

becomes clear that for example what facts are considered by the court

during the imposing sanctions, which sanctions may be used in regard

to crimes of certain severity, and the list could be continued. It has to

be considered essential for the national curriculum to include detailed

knowledge concerning the criminal justice and its functioning.

For me the above deficiency is the omission of the criminologists

too : as if the power or determination of the profession would not be

sufficiently striking to inform the public about the real situation. The

existent situation shows the stagnation of criminality while there are cer-

tain crime categories where there 1s a significant change : hence partic-

ularly the public domain and hooligan crimes and the crimes committed

by the - most widely interpreted — “misuse of trust” which may relate

to the Economic Crimes, Crimes against Goods, or to other Chapters

of the Penal Code. It seems as if at the beginning of the 90’s, at the

quick increase of criminality the public was successfully “alarmed” and

therefore sources — although never enough — could have been allocated

to the criminal justice institutions. Today 1t seems as 1f the professionals

as well as the politicians would care less about informing the public

about the existing situation.

The results of our research also indicate that the imprisonment, and

the rising of the lengths of prison terms 1s a frequent answer upon crim-

inality and the majority of the people believes that with these punitive

answers crime could be diminished. Nevertheless it was also experienced

that the respondents do not consider this as the sole reaction upon

crime. The attitudes of the population towards the wider use of impris-

onment should be considered as ambivalent the least.

— 120 —

The conclusion may be drawn and the duties are evident : public

trust in the system of criminal justice may also be increased by the wider

distribution of information on the sentencing practice. We consider as

similarly important responsibility the strengthening of public knowledge

upon the existing development of national criminality with special atten-

tion to the extent and characteristics of the domestic violent criminality.

The results of the analysis also show more general social-psycholog-

ical relationships. The majority of both exemplars agreed with the state-

ment that “the gaps of law may be used as long as one does not infringe

the law”. We may not be too far away from the truth if we presume that

the relatively high number according to the “gaps of law” question indi-

cates that not only the common people but also the professionals are

unsure in the case of conflicts of law and morality. It was conspicuous

from the distribution of answers at the popular exemplar that relatively

how many do believe in the power of law, and how few in the role of

religion strengthening morality. “A conduct which has to be followed in

the society under the pressure of necessity is not any more articulated

by moral conventions but the rules of law” writes Béla Pokol‘?’). How-

ever we do disagree with this categorical statement amongst the behav-

lour-regulating equipments the re-evaluation of law 1s apperceived with-

out any doubt. Not necessarily in the sense that a behavioural norm in

the form of law will be followed in any cases but rather in the sense that

the ‘“wastes” disappear between the fields of behaviour-regulating

devices and the law will predominate at areas where the regulative

power of morality should prevail or would be enough if morality would

success. The question relates to the subject of restorative justice since

this approach — as detailed earlier — attaches greater importance to indi-

vidual moral then the traditional criminal justice estimating the conse-

quences upon the rule of proportionality.

The “appearance” of the victim amongst the actors of criminal justice

aids not to define the crime only as an event giving the possibility to

exercise the penitentiary power of the state but also as damage suffered

by a person. This creates the possibility for the conflict manifested by

the commission of crime to become a meaning and for the operating

system to react upon this conflict (as well) by the applied legal conse-

quence.

According to Braithwaite shame and punishment were divided it 1s

therefore necessary to restore the historical connection‘

21)_

It is an

undoubtedly experienced alteration in this relation which is also under-

C0) POKOL, op. cit.

C1 BRAITHWAITE, J. Crime Shame and Reintegration, New York, Cambridge University

Press, 1989.

— 121 —

lined by the results of our analysis. In the 1990’s — when even at the the-

ory of restorative justice the notion of “community” has appeared —

brought new blooming in the expansion of the restorative justice think-

ing. That was the time when restorative justice became connected to the

collective thinking. Braithwaite presumed that the transformation of

institutional conditions is required for the “reintegrative shaming” to

reach its objective both in the collective as in the individual. Braithwaite

therefore speaks about humiliating and humiliation. We believe that the

individual remains alone by the shame — whether in the form of humil-

iating or humiliation — however the re-integrative nature of that 1s

emphasised. Therefore in the modern societies based on participation

democracy it is rather the responsibility, more exactly the acceptance of

responsibility which should be highlighted for only after the recognition

and acceptation of that could a responsible decision be brought and the

reparation of the damages caused by the crime be done. The acceptance

of responsibility is however on both sides important so on the side of

the offender as well as on the community for the forgiveness - and

thereby for the appropriate description of the problem — since apology

by itself is not sufficient. It may throughout be agreed with the phrasing

that the restorative justice approach grants the possibility for the victim

to get reparation, to strengthen his sense of security and to be able to

settle the case in him. At the same time it gives the possibility for the

criminal to meditate, to survey the reasons and consequences of his

behaviour, as to take real responsibility for his action.

According to our position not the connection between shame and

punishment was broken : the most people do not commit crime because

they condemn it morally, and not primarily because the law prohibits

and punishes. In the world of globalisation therefore the stresses were

removed and nowadays for reaching the objectives of the sanction nec-

essarily other elements should come to the front. The element of shame

is inevitably a part of punishment. The function of the punishment 1s

that by its resulting it strengthens the validity of the relevant norm. The

“criminal punishment makes possible, almost brings out the disapproval

of the society. The revealed behaviour will become a social matter by

the punishment : the exposure opens the way to the moral disapproval

and gives the possibility for the outcry

99 (22).

The data of our survey gave miscellaneous results on the popular

acceptance of the restorative justice. The populations estimate differ-

ently the application of the restorative justice instruments and the neces-

sity of their application depending on their age, sex and residence. At

(22) SZapd, A., “A bün és a büntetés erkôlcsi kérdései” (Moral questions of crime and

punishmçnt), Fôiskolai Figyelô, 1996/2. sz. p. 23.

— 122 —

the same time openness was also experienced through the comparison of

the answers which openness could be transformed to acceptance through

widely spread aimed information and convincement. From the answers

of the professional exemplar — although the exemplar does not represent

the opinion of the entirety of professionals working at the prosecution

— the 1dea of reparation received a very strong support. The prosecution

professionals appreciate certain elements of the restorative justice posi-

tively while at the same time significant uncertainty and misinterpreta-

tion is identifiable which indicates that these questions have to be out-

lined at the professional trainings and studies, with particular attention

to the institution of mediation.

The spread of the idea of restorative justice grants possibility for

speeding up the reform processes of criminal law. Whereas Strang and

Sherman take the view that the satisfaction of the victim’s demands and

needs may not be satisfied by partial reforms. It seems more probable

- they write - that the new jurisdictional paradigm requires the trans-

formation of the science and values of jurisdiction to be able to value

the victim on the same level as the criminal and the community *.

Gônczôl opens the optic even more and by her wording she refers that

the restorative justice approach could even assist the development of

“the

democracy, the reparation of the Society's “mentalhygienic state”

restorative justice may therefore become a tool of constructive problem-

solving and social integration. If it works well it may compensate the

reactions of populism, simplified by temper, resulting the excessive

power of the state and having exclusive effects. The restorative justice

calculating with the community serves the democratic development by

construing the community not from outside, but by becoming a part of

the process of continuous change granting the existence of the commu-

D (24)

nity.

ABSTRACT

The Act on Mediation Procedure will be effective in 2007 in Hun-

gary. The acceptance or refusal of the instruments of restorative justice

among population and prosecutors has been tested by empirical surveys.

C3) STRANG. H. and SHERMAN. L.W., Repairing the Harm : Victims and Restorative Jus-

tice [http://Wwww.sas.upenn.edu/jerrylee/research/r;_utah.pd].

C# GôNCZôL, K. (2006). “Szolgältassuk az igazsägot!” (Let us serve justice!), in Kovac-

siCs Jné (szerk). Egy élet az igazsägügyi statisztika szolgâälatäban. Unnepi kôtet a 70 éves

Vavré Istvän tiszteletére, ELTE AJK, Budapest. pp. 52-53.

— 123 —

SOMMAIRE

À la veille de l’entrée en vigueur de la loi qui introduit la médiation

dans la procédure hongroise, deux enquêtes d’opinion ont été menées

sur l’acceptation de la justice restaurative, l’une par les citoyens, l’autre

par les magistrats du ministère public.

RESUMEN

En las proximidades de la entrada en vigor de la ley que introduce

la mediaciôn en el procedimiento hungarés, se han llevado a cabo dos

encuestas de opiniôn sobre la aceptaciôn de la justicia restaurativa, una

para los ciudadanos y otra para los fiscales.

— 124 —

WEAPONS AND VIOLENCE

AMONG MALE DELINQUENTS :

AN INTERNATIONAL COMPARATIVE STUDY

Patricia G. Erickson , Jennifer E. Butters ,

Dirk J. Korf , Lana D.Harrison “),

Marie-Marthe Cousineau‘*,

and the Drugs, Alcohol and Violence

International [DAVTI] team (*)

ACKNOWLEDGEMENTS

The DAVI team gratefully acknowledges the support of our funding

agencies, the National Institute on Drug Abuse (grant #RO1-DA11691-

O1A1) for the Toronto and Philadelphia sites; NWO/ ZonMw, through

a Bi-national agreement with the Netherlands, for Amsterdam (grant

#3100.0037); and the Centre National de Prevention du Crime (grant

#3150-U4), and the Social Sciences and Humanities Research Council

of Canada (grant #410-2002-1154), for Montreal, Quebec. The authors

also thank Paul Goldstein for his valuable advice as consultant.

IDENTIFYING REFERENCES

1|. ADLAF, Edward M., Korr, Dirk J., HARRISON, Lana, ERICKSON,

Patricia G. (forthcoming), “Cross national differences in drugs and vio-

lence among adolescents”, Journal of Drug Issues, 36.

2. BENSCHOP, Annemieke, HARRISON, Lana, KorF, Dirk J., ERICKSON,

Patricia G. (unpublished), “Different concepts of ethnicity in a cross-

Atlantic study of drug use and violence among deviant youth”, Euro-

pean Journal of Criminal Policy and Research (under review).

() Centre for Addiction and Mental Health. Toronto, Canada

C) Bonger Institute of Criminology, University of Amsterdam, The Netherlands

G Center for Drug and Alcohol Studies, University of Delaware. Newark, DE, US

( Centre for International And Comparative Criminology. University of Montreal

( Other Members of the DAVI team include Edward Adlaf, Annemieke Benschop, Serge

Brochu, Charles Freeman, Deborah Harrington, Rosalyn Sutherland, and Fu Sun.

Correspondence : Patricia G. Erickson, Ph.D., Social, Prevention and Policy Research

Department, Centre for Addiction and Mental Health, T-418, 33 Russell Street. Toronto,

Ontario, Canada, M5S 2S1. (E-mail : pat_erickson@camh.net).

— 125 —

INTRODUCTION

À growing concern about youth violence has been evidenced in many

countries in the West based on a general trend of increased arrests of

juveniles for violent crimes in recent years (Dunkel and Drenkhahn

2003 ; Lizotte, Krohn, Howell, Tobin and Howard 2000). Different indi-

ces and standards for measuring crime make comparisons between

countries difficult and imprecise. Few detailed accounts about the

nature of youth crime are available. Cultural variations in types of cri-

mes, characteristics of perpetrators, choice of victims, weapon preferen-

ces and other situational features are largely unstudied. The purpose of

this paper 1s to present comparative, descriptive and analytic data from

representative samples of male delinquent youth about involvement in

carrying and using weapons, and its relationship to violent activities.

Youths’ access and resort to firearms is of particular interest in this

cross-national study. The intense policy debate about gun regulation,

often with limited data available in one country, can benefit from the

examination of different jurisdictions (The National Academies 2004).

However, cross-national comparisons are often limited by a large num-

ber of confounding factors when different methods and measures are

employed among diverse population groups.

À unique feature of the research in our study 1s that the same ques-

tionnaire was administered in four sites (Toronto, Montreal, Philadel-

phia and Amsterdam) in the same time span in the early 2000’s (Iden-

tifying Ref. 1). This facilitates comparisons of perceptions and behavior

in countries with different laws and prevalence of firearms availability.

The importance of studying weapons usage in national context was

highlighted by Killias’ (1993) findings that the rate of household gun

ownership and the rate of gun homicide were highly correlated in 13

countries (including the USA, Canada and the Netherlands), but inde-

pendent of homicide by other means than firearms. À similar result was

found in a cross-national, two city comparison of the crimes of murder

and assault, where the rates involving firearms were much higher in the

location which provided greater access to guns, but similar for homicide

and assault by means other than firearms (Sloan, Kellermann, Reay et

al. 1988). This suggests that gun availability may be an important factor

in shaping the nature and outcomes of youth violence.

This paper reviews the pertinent literature on youth and weapons,

discusses the national profiles in regard to firearms laws, examines the

contrasts between countries in gun ownership and homicide rates, and

highlights two competing perspectives on the relevance of availability to

gun acquisition by youth. The methods and sampling techniques for

recruitment of the samples of detained and dropout youth aged 14-17

— 126 —

years are described. Then we turn to the analysis of first, the descriptive

comparative data, then of the logistic regression analysis. Since much of

the relevant weapons literature has focused on boys, and particularly

delinquent or other high-risk youth (Erickson, Butters, Cousineau, Har-

rison and Korf 2006), we restrict our analysis to male patterns of wea-

pons behaviour. Boys also dominate our sample of institutionalized and

dropout youth in their numbers. While research studies generally indi-

cate much higher levels of firearms carrying and usage among delin-

quent youth than among more normative populations such as students

(Erickson and Butters 2004; Sheley and Wright 1995; Steffensmeier,

Schwartz and Zhong 2005), none have compared delinquent youth in

different locations or countries at the same time, using the same

methods. Finally we discuss the implications for weapons control in the

prevention of youth violence.

PREVIOUS RESEARCH ON YOUTH AND WEAPONS

The type of weapons used in a violent crime can be an important

determinant of the severity of the outcome, with guns associated with

the most lethal results (Wells and Horney 2002). With the possible

exception of supervised hunting, sports or military exercises, the legal

standard that adolescents are forbidden to purchase or possess firearms

is well nigh universal. The concern with keeping such weapons out of

the hands of youth 1s particularly salient in the USA where the highest

rate of firearms mortality in the 35 upper income nations is found

among males 15-24 (Krug, Powell and Dahlberg 1998). Homicide has

been the 2"94 leading cause of death among American youth aged 15-19,

with those attributable to firearms increasing since the early 1980’s

(Webster, Gainer and Champion 1993). The United States experienced

a three-fold increase in youth homicides (males aged 13-17) from 1985-

1993 due to a deadly combination of youthful gun carrying and invol-

vement in the burgeoning inner-city crack market (Blumstein 1995). Not

surprisingly, much of the recent research on weapons and youth has

been conducted in the USA. Many studies have emphasized firearms

and the experience of delinquent males (Ash, Kellerman, Fuqua-Whitley

and Johnson 1996; Webster, Freed, Frattaroli and Wilson 2002; Cala-

han, Rivara and Farrow 1993; Smith 1996; Freed, Webster, Longwell,

Carrese and Wilson 2001). In 1995, a national survey of 15-17 year old

boys found that 10% had carried a gun at least once a month (Cook

and Ludwig 2004).

In Canada and the Netherlands, neither of which have experienced

a surge in youth firearms homicide in recent decades (Doob and Sprott

— 127 —

1998; Statistics Canada 2001 :14; Kruissink and Essers 2001), little

research has been conducted about youth’s perceptions and behaviour

concerning carrying and using weapons in general, much less guns

(Erickson and Butters, 2004). One national survey of Canadian youth

aged 12-15 in 1998/99 found that 3% of boys had carried a gun and

9.8% a knife (Fitzgerald 2003). In Ontario, the biannual student survey,

which includes a question about past year weapon carrying (unspeci-

fied), found an overall decline in the past ten years, with a prevalence

of 9.6% province-wide in 2003 (Paglia and Adlaf 2003; CAMH 2004).

For the first time, in 2005, this survey included a specific question about

carrying a handgun, revealing that 2.2% of Ontario students had done

so in the past 12 months (CAMH 2006). One recent study in Toronto

(Tanner and Wortley 2002) has reported that 15% of high school stu-

dents, and 55% of street youth, admit carrying a “hidden weapon like

a knife or gun in public” in the past year. The only prior Canadian

study to examine weapons possession in more detail was carried out in

a western Canadian city (Calgary, Alberta); it found that 28% of stu-

dents surveyed reported having carried any type of weapon at school,

including 15.9% who carried a knife and 2.6% a handgun (Paetsch and

Bertrand 1999). In the Netherlands, a 1999 high school survey (grades

9-11) in Amsterdam found that 4% “regularly” carried a gun, 8% a

knife, and 14% any weapon, when going out socially (Korf, Nabben,

Diemel and Bouma 2000).

The level of ownership of guns, usually measured as the percentage

of homes with guns, and national gun homicide rates, are other indica-

tors that show considerable variation among the sites of our study.

Based on five year averages (1991-95), the Netherlands is the lowest at

1.9%, then Canada at 26% and the USA at 41%. In Canada, Ontario

has the lowest household prevalence of guns in the nation, 15%, while

Quebec 1s higher, at 23%; these rates have remained quite constant over

the past decade (Coalition for Gun Control 2001; Leonard 1994). The

four states encompassed in the Philadelphia Metropolitan Area are on

the lower end of household gun presence in the USA : New Jersey with

15%, Delaware with 31%, Maryland with 35% and Pennsylvania the

highest at 38% (Azrael, Cook and Miller 2004). The overall gun homi-

cide rate per 100,000 in these countries also varies, from 0.27 in the

Netherlands, 0.60 in Canada, and 6.24 in the USA (Cukier 1998; Coa-

lition for Gun Control 2001). While over half of all murders in the USA

are committed with firearms, and closer to % of those involving young

males (Fox and Zawitz 2000), in Canada the proportion attributed to

firearms has been about 1/3 since 1979, dropping in 2002 to 26%, the

lowest figure ever (CMAJ 2003). Those involving youth are a small and

stable fraction of the total (never more than 11%) (Statistics Canada

— 128 —

2001). In the Netherlands, the number of youth involved in firearms

related homicide 1s virtually nonexistent, with no more than 2% of all

youth arrests occurring in relation to any weapons law violation (Kruis-

sink and Essers 2001).

DOES AVAILABILITY MAKE A DIFFERENCE?

Cook and Ludwig (2004) outlined two contrasting perspectives to

explain variation in gun involvement by youth. The first, which they

dubbed the “futility hypothesis”, argues that youth who are motivated

to obtain such a weapon for whatever reason (e.g. protection, retalia-

tion, or to commit a crime such as robbery) are not affected by the time,

money or risk entailed. Furthermore (at least in the USA) where guns

are believed to be widely available in underground markets, regardless

of legality, the ready supply of weapons is easily accessed by such youth.

In contrast, the ‘“availability hypothesis” proposes that guns are more

readily obtained by adolescents residing in communities with greater

concentrations of firearms, that is, where private ownership is higher.

These two perspectives have differing implications for regulation of gun

markets and how to limit firearms access to youth, as a way to reduce

youth violence, and both sides of the debate have brought evidence to

bear.

The view that restrictions bn gun markets will be futile in reducing

access to youth (Polsby 1994; Sheley and Wright 1995) was based pri-

marily on selected samples of incarcerated male delinquents or other

high-risk inner city youth. Though based on different sized samples,

locations and qualitative interviews in some and self report surveys in

others, these diverse studies showed generally very high rates of gun

carrying among incarcerated youth (Ash et al. 1996; Calahan et al.

1993), ranging as high as 84% (Smith 1996). Rates of gun carrying were

also high in the two studies based on convenience samples of inner city

high school students. Webster, Gainer and Champion (1993) found that

25% of males had carried guns in two junior high schools. À larger

study by Sheley and Wright (1995), based on the 1991 Youth Gun Sur-

vey of several hundred male inner city high school students in four sta-

tes, found that 35% carried a gun. More detailed questioning of gun

acquisition in these samples also indicated ready access for youth who

wanted one through purchase, borrowing, finding or as a gift (Webster

et al. 2002; Sheley and Wright 1995). That many criminally involved,

violence prone youth, in a nation with over 200 million firearms in the

possession of its citizens, should have guns at their disposal was not sur-

prising. The interpretation was that access 1s inevitable, leading to a

— 129 —

focus on individual strategies of prevention such as deterrence through

tough penalties and educational measures targeted specifically at the

group of high risk youth (see Braga, Kennedy, Waring and Piehl 2001).

The policy corollary of the futility point of view 1s that legitimate gun

markets are left to function with few restrictions.

Since the USA has variability in gun sale laws by state, and house-

hold firearms prevalence ranging from 13% (Massachusetts) to 60%

(Mississippi) across the continent (Azrael, Cook and Miller 2004), it was

reasonable to consider whether the overall prevalence of guns in a com-

munity may have affected teen gun involvement. Overall, it was clear

that many adolescents have easy access to a gun in their homes, as

reported by 24% in a national study (Swahn, Hammig and Ikeda 2002).

Some support for the availability point-of-view was provided by Winte-

mute (2003) in a state level analysis of the 1999 Youth Risk Behaviour

Surveillance survey of high school students, showing a 0.18% 1ncrease

in gun carrying for every 1% increase in private gun ownership, but

without controlling for any other sample differences. Cook and Ludwig

(2004) conducted a more direct and rigourous test of the availability

hypothesis by comparing gun involvement in a representative survey of

15-17 year old males across large county jurisdictions with varying levels

of gun ownership. Overall, 10% nationally reported carrying a gun at

least once a month in 1995, and 27% a knife or other weapon. Even

after controlling for individual and county level characteristics, Cook

and Ludwig (2004) found that gun carrying, but not weapons in general,

had a strong direct relationship with the prevalence of gun ownership in

the community.

Cook and Ludwig (2004) also showed that these weapons were not

just carried, but used : 20% of those surveyed had been threatened by a

gun or knife, and 25% admitted to threatening someone else. Weapons

were also positively associated with drug use, violence involvement and

criminal activity among the overall adolescent sample; however, even

the most delinquent youth were affected by cost and access to guns in

their communities. Thus, in contrast to the studies of detained and high-

risk youth, the representative surveys offered support for the importance

of considering availability as a determinant of youthful firearms beha-

viour. From this perspective, the policy implication was that stricter

supply side regulations limiting widespread public access to legal gun

markets could be an important tool for prevention of youthful firearms

violence.

— 130 —

LAW AND POLICY IN DIFFERENT JURISDICTIONS

This section will set the stage for our analysis by presenting a brief

overview of the laws controlling firearms in the USA, Canada and the

Netherlands. Our actual city sites consist of the Census Metropolitan

Areas of Philadelphia (overlapping the states of Pennsylvania, Delaware,

Maryland and New Jersey), Toronto (in the province of Ontario), Mon-

treal (in the province of Quebec) and the Three Provinces Area of Ams-

terdam (in the provinces of Noord-Holland, Flevoland and Utrecht). In

Canada and the Netherlands, firearms laws and associated criminal

penalties are federal and hence apply uniformly across provinces and

cities; in the USA, there are numerous firearms laws at the federal, state

and local level which set out varying conditions for the legal ownership

and possession of firearms.

In the USA, guns are regulated but not prohibited to the civilian

population. The National Firearms Act of 1934 required sellers to record

names and addresses of customers, and the Gun Control Act of 1968

banned the sale of a rifle or shotgun to those under 18, and handguns

to those under 21. In 1986 penalties were increased for those using a

firearm during certain crimes. An amendment to the Violent Crime Con-

trol and Law Enforcement Act of 1994 set the minimum standard of

18 years for the purchase or possession of handguns or ammunition, as

well as banning semiautomatic (assault) weapons for civilians. None of

the four states encompassed in the US site of our DAVI study require

firearms registration of either long guns or handguns, and only New Jer-

sey demands a purchase permit, owner license and permit to carry

(although Maryland also just requires a permit to carry). AIl the states

except Pennsylvania have a Child Access Prevention Law that requires

adults to keep guns inaccessible to minors, and all four states have addi-

tional laws related specifically to prevent the sale, transfer or possession

of guns to those under 18 years, with some exceptions for hunting and

target shooting.

In Canada, the registration of all handguns has been required since

1934 and automatic weapons were banned in 1977. The Firearms Act of

1994 prohibited handguns and set out a number of new licensing requi-

rements that were to be fulfilled by 2001 for non-restricted firearms (1i.e.

rifles and shotguns) or no purchase of ammunition would be allowed

(Leonard 1994). These requirements include background screening,

taking a firearms safety course and passing a test, spousal approval and

a confirmed photograph (similar to a passport application). Only those

18 and older are allowed to apply for a firearms license. An exception

is make for special permits for those under 18 who ‘“need firearms to

hunt or trap for sustenance,” a provision included mainly for Aboriginal

— 131 —

peoples. AlI rifles and shotguns were to be registered by 2003 (later

extended) and all firearms must be stored unloaded in a locked place.

A 1996 Criminal Code amendment provided a mandatory minimum

penalty (4 years) for violent or drug crimes committed with a firearm.

While the Central Firearms Registry has been expensive and controver-

sial, with some non-compliance, the Liberal federal government remai-

ned committed to the principle of universal gun registration. The elec-

tion of a Conservative federal government in 2006 may alter this

requirement.

In the Netherlands, firearms provisions are contained in the Wet

Wapens en Munitie [WWM : Weapons and Ammunition Act] of 1997

covering everything from knives and catapults to automatic weapons

(Leistra and Nieuwbeerta 2003). Basically, all firearms and ammunition

are prohibited except to members of certain professions (i.e., police,

military) and to those who obtain a special permit for use in a sports

organization where the weapons are to be kept. Applicants for a firearm

license must be 18 years or older and are subject to background checks

and police authorization. Gun registration is automatic. Other than

“sharp-shooting” clubs and very limited hunting permits, there is vir-

tually no legitimate possession of firearms among ordinary Dutch citi-

zens. Since firearms are so restricted, no legal distinction 1s made

between long guns and handguns, both of which are banned in section

III of the WWM. However an underground market does exist to the

extent that an estimated 80,000 guns are 1llegally possessed in the whole

country (Van der Heijden and Gils 2000). The major source for these

and gas, alarm and imitation weapons are neighbouring European coun-

tries with laxer standards (Spapens and Bruinsma 2002).

Generally, in none of our four sites are firearms legally available to

those under 18 years. Laws against sale to and possession by youth are

a uniform feature, as are special provisions for the police and military

to obtain and carry guns and other weapons. However, the three coun-

tries vary in the principles and regulations governing access by the adult

general public. The Netherlands is the most restrictive, allowing guns

almost solely for sports shooting and requiring they be kept in such faci-

lities, not in homes. In Canada, target shooting and hunting are accep-

table reasons to have a registered weapon, and home storage 1s permit-

ted under secure conditions. To these purposes, the USA adds general

defense of the person and property as a constitutional right. Hence in

the USA, guns are more readily obtainable with fewer restrictions on

civilian ownership than in the other two countries.

This overview has provided evidence of considerable variation in

national gun laws and policies on access and possession in our four

sites. We will next outline the research methods of our study and sample

— 132 —

descriptions, and then turn to examining our data. While it is not pos-

sible to test the competing perspectives (availability vs. futility) without

more broadly representative samples, it 1s possible to speculate on pos-

sible findings. First, we might expect that if availability is the major

determinant, then gun carrying and use will be highest in the US youth,

lowest in the Netherlands, with the Canadian samples in the middle.

Given that rates of gun ownership are higher in Quebec than in Ontario,

we may also anticipate that any contrasts between Montreal and

Toronto will favour more gun involvement by Montreal youth. Second,

if the futility view holds sway, we would not expect significant differen-

ces to be found between high risk youth in the four cities, despite varia-

tion in systems of gun control policies over access.

METHODS

Study Population and Procedures

The analyses presented in this paper are based a large data set exa-

mining the relationships between drugs and violence among youth

(Identifying reference 1). Our targeted sample was drawn from boys

already involved in delinquent activities like truancy or offences serious

enough to result in custody. This group represents boys who are at

higher risk than the more conventional male adolescent population for

involvement in weapons-related behavior (Cook and Ludwig 2004). In

total. 888 delinquent male adolescents aged 14 to 17 years, composed of

488 male youth detained in juvenile institutions and 400 school dropouts

in the community, were included in the study population. The compo-

sition from the four sites was as follows : Philadelphia n=204 (102 detai-

nees, 102 dropouts); Toronto n=248 (132 detainees, 116 dropouts);

Amsterdam n=250 (135 detainees, 115 dropouts); and Montreal n=186

(119 detainees, 67 dropouts). Other analyses (not presented) found minu-

mal differences in weapons related activities between detainees and dro-

pouts, likely because youth who absent themselves from school also

include a significant proportion with prior histories of delinquency and

detention; hence we combined the two groups in the present paper. This

provides a large sample of male adolescents engaged in the sorts of

unsupervised and often 1llegal activities that are known correlates of

more violent offending including the use of firearms or other weapons

(Cook and Ludwig 2004). Standardized sampling strategies, questionnai-

res and interview modes were employed in each site allowing for neces-

sary adaptation for cultural and systemic variation. The personal inter-

views were conducted in a time span from 2000-2003.

— 133 —

The detainees were recruited from secure custody institutions serving

the Metropolitan areas of each city. This sample represents delinquent

male adolescents in each site as defined according to local youth justice

system procedures. Each youth was prescreened on the eligibility criteria

(age and residence) by institutional staff members before individual con-

sent was given. One-to-one interviews were conducted and participants

received financial compensation equivalent to CANS15. Youth were not

selected in relation to any known history of violence, and the researchers

were unaware of the offence(s) for which they were detained.

The dropouts represent a convenience sample of male youth drawn

from volunteers in the community. To be eligible, the respondent had

to be between 14 and 17 years of age, reside in the Metropolitan areas

of each site and have left school for at least 30 consecutive days (other

than holidays) during the past 12 months. Youth were located in agen-

cies that provided educational, social or outreach services to youth,

from alternative school programs for dropouts, community drop-in cen-

tres and snowball sampling. Agencies were contacted by project staff

and permission was requested either to allow researchers to make con-

tact with youth on their premises or to have advertisements posted at

their site. Personal interviews were conducted in private with all youth

who volunteered and met the entry criteria and they were compensated

for their time. All protocols received Ethics Board review and approval

at all the participating research institutions.

Instrument and Analysis

Two background variables were included in the analyses : age and

race/ethnic origin. However, it is difficult to find a standard measure of

“race”, or ethnicity, that is applicable cross-nationally and cross-cultu-

rally. Hence we devised a composite variable of race/geographical ethnic

origins that encompassed the diversity of our samples (Identifying refe-

rence 2). Ethnic origin is divided into two categories-western and non-

western. For Philadelphia, Montreal and Toronto, “western” origin 1s

distinguished as being White/European and “non-western” as non-

White/non European ancestry. For Amsterdam, ‘western’ origin 1s dis-

tinguished as being ethnically European, Australian or North American,

while Dutch “non-westerns” are drawn from Asian, South American

and African origins. This measure reflects our concern to avoid impo-

sing an overly simplistic racial categorization as well as adopting an

approach with greater emphasis on geographic ancestry.

The selection of risk factors for weapons involvement were based on

the numerous studies reviewed above that pointed to visibility of drug

use or sale in the youth’s neighbourhood, other delinquency, substance

— 134 —

use

drug selling and gang involvement. Respondents were asked

whether they had seen drug use and drug dealing 50 or more times in

their neighbourhood over the past 12 months. Involvement in drug sel-

ling was measured using two questions, one pertaining to any drug dea-

ling activities and a second specifically targeting their selling activities in

the cocaine and/or crack market. Lifetime participation in gang fights,

heavy alcohol use (measured as those reporting drinking every day or 3

to 6 times a week), and poly-drug use (reporting use of two or more 1lli-

cit substances) were also included in the analyses. Finally, two delin-

quency scales measured whether the boys has participated in several

delinquent activities before 13 years of age (early delinquent behaviour)

and in the past 12 months.

Drawing on items from other published work (Sheley and Wright

1995;: Webster et al. 2002), a variety of weapon measures from the

DAVI questionnaire were used in these analyses. Weapons of interest

included chemical spray (“Mace”), club or stick, knife and gun. Ques-

tions were asked pertaining to the types of weapons boys ever carry, the

frequency (‘always

» c

>

often

99 c

9

sometimes” or “never”’) with which they

carry weapons in general, and how often they carry weapons, including

guns, when they are at school. À series of questions was included about

both victimization and perpetration of violence with a knife, gun or

other object (threatening or trying to hurt someone with one of these

weapons) and receiving or inflicting an injury with any weapons serious

enough to warrant medical attention. Questions about the acquisition of

guns - source and time period — were added. Finally, the boys were

asked whether they had started to carry a weapon as a result of violence

(either to self or others).

Cross-national descriptive comparisons were examined through chi-

square analyses. Following this, a series of stepwise logistic regression

analyses were conducted estimating the impact of the background cha-

racteristics, risk factors and weapon carrying on the probability of four

different weapon related behaviors. These results are reported as odds

ratios (ORs).

RESULTS

Background Information

Descriptive information on the background characteristics and risk

factors is presented in Table 1. Several significant differences emerged

across the sites. The boys in Montreal and Philadelphia were somewhat

older than those in Toronto and Amsterdam, though the differences

— 135 —

were in a small age range. Western ethnicity was lowest in Amsterdam

and highest in Montreal. More than half of the boys in the Philadelphia,

Toronto and Montreal indicated they have seen drug dealing take place

more than 50 times in their neighbourhood in the past year while only

one-third of those in Amsterdam report the same. Reports of observing

drug use in their neighbourhoods varied between sites, with Montreal

the highest at 82%, but the percentage differences were smaller than for

witnessing dealing.

TABLEAU 1 : Background information

Amsterdam | Philadelphia

Toronto

Montreal

(n=250)

(n=204)

(n=186)

x2

7

()0

(n=248)

7

7

14 — 15 years

38

24

31

19

* #

16 — 17 years

62

76

69

81

Western ethnicity

35

38

53

69

65

62

47

31

% * %

Non-Western ethnicity

**

Witness drug use in your nei-

67

68

76

82

ghbourhood more

than 50

times in the past 12 months

(% yes)

##x*

Witness drug dealing in your

33

60

64

57

neighbourhood more than 50

times in the past 12 months

(% yes)

38

65

TI

73

% * k

Involved in drug selling activi-

ties (% yes)

Involved in the crack/cocaine

21

34

31

28

**

market (% yes)

20

22

30

**

Heavy alcohol

consumption

14

(% yes)

Poly-drug use (illicit drugs) (%

21

26

53

67

% d x

yes

*x*

Involvement

in gang fights

49

45

53

67

(lifetime and/or 12 months)

Pre-13 delinquent

behaviour

3.08

3.64

4.40

4.43

%%

(0-11)

# d

Past

12 months

delinquent

2.02

1.43

2.52

2.63

behaviour (0-7)#

* Mean number of delinquent behaviours reported on Table 1.

Although boys in all cities reported involvement in drug selling, a

substantially greater proportion of those in Toronto (77%) and Mon-

— 136 —

treal (73%) did so. With respect to involvement in the crack/cocaine

market, boys in Philadelphia and Toronto (34% and 31% respectively)

were slightly more likely to indicate selling these substances than boys

in Montreal (28%) or Amsterdam (21%). Heavy alcohol consumption

also differed between the cities. The highest rates were reported in Mon-

treal (30%) and the lowest in Amsterdam (14%). À marked difference

in poly-drug use was also noted across the four cities. Specifically, 67%

of the Montreal sample indicated using two or more illicit drugs in the

past 12 months in comparison to 53% in Toronto, 26% in Philadelphia

and 21% in Amsterdam. Participation in gang fights was reported more

frequently among the boys in Montreal (67%), followed by Toronto

(53%), Amsterdam (49%) and Philadelphia (45%). Finally, boys in Ams-

terdam reported the lowest average number of pre-age 13 delinquent

behaviours, while boys in Toronto and Montreal reported the highest

(4.40 and 4.43 respectively). Past 12 month delinquent events were also

reported most frequently by the boys in Toronto and Montreal and least

often in Philadelphia. In general, the background profile suggests that

youth in Montreal, followed by Toronto, are the most involved in subs-

tance use, drug selling, gang fights and other delinquent activities.

Weapons Information

a) Types of weapons carried

The boys in each city provided a variety of responses to the question

asking 1f they ever carried a weapon and 1f so, what (Table 2). Overall,

knife carrying was most favoured by the boys in Amsterdam, Toronto

and Montreal, while gun carrying was the weapon of choice by those in

Philadelphia (54%). Knife carrying was particularly prominent for the

boys in Toronto where 71% reported carrying a knife. More boys in

Amsterdam reported carrying mace and a greater proportion of the

boys in Toronto indicated carrying a club or stick than in the other

cities. While guns were reported most frequently among boys in Phila-

delphia, almost half (47%) of those in Toronto indicated carrying a gun

followed by one-third in Montreal and one-quarter in Montreal.

— 137 —

TABLEAU 2 : Weapon information

Amsterdam | Philadelphia| Toronto | Montreal

2

%w

%

%

%w

If you ever carry a weapon with you, which of the following weapons do you

carry?

19

14

% k

“Mace” (% yes)

x%*

Club/stick (% yes)

11

13

28

23

Knife (% yes)

52

37

71

48

% * Àk

Gun (% yes)

26

54

47

34

# % *

% * *

When not at school how often do you carry a weapon?

Always

14

19

18

Often

12

18

18

22

Sometimes

44

35

43

23

Never

40

33

19

37

When you are at school how often do you carry a weapon?

Always

]

2

10

À * À

Often

3

11

Sometimes

20

12

32

17

Never

76

81

47

65

How often do you carry a gun to school?

% * À

Always

0

Often

]

Sometimes

10

17

Never

89

91

71

87

Lifetime perpetration : Have you ever…

e * >k

Threatened or tried to

38

32

63

49

hurt

someone with an

object

Threaten or tried to hurt

27

17

48

37

* % *

someone with a knife

Threatened or tried to

18

28

36

27

À >

hurt someone with a gun

— 138 —

TABLEAU 2 : Weapon information

Amsterdam | Philadelphia\ Toronto

o

0s

Montreal

9

%

0

/0

%

Hurt

soméone

with a

27

23

SI

* k*

36

knife, object or gun

Have you started to carry

35

49

61

47

* * *

a weapon as a result of

any form of violence to

you or others? (% yes)

%x*

How long would it take you to get a gun if you wanted one?

Less than 1 hour

29

26

31

19

1l - 3 hours

16

16

13

16

4 - 24 hours

13

14

18

17

|

2 days

10

17

18

18

2+ days

] 1

15

15

16

I dont know

21

11

15

How would you get a gun if you wanted one?

Steal one

4

6

ns

2

6

Trade something for one

Buy one from a friend or

35

31

36

30

ns

relative

11

23

* >* *

Get one from a drug dea-

ler

Get one on the streets

32

36

20

18

% % *

Other

22

14

25

22

Statistical significance (Chi-square) * p<.05** p<.01 ***p<.001

b) Weapon carrying behaviour

Table 2 also presents site differences in where young men report

carrying weapons. The respondents were asked how often they carried

a weapon (of any kind) when they were not at school, how often they

carried a weapon when they were at school and how often they carried

a gun to school. Overall, the most common response was they ‘somet-

mes’ carried a weapon outside of school. The largest proportion of boys

in Montreal (40%) and Toronto (37%) reported ‘always’ or ‘often’

— 139 —

carrying a weapon in this context, compared to 32% in Philadelphia and

16% in Amsterdam. In all cities the most common response to whether

they carried weapons when they were at school was ‘never’. One-fifth of

the boys in Toronto reported ‘always’ or ‘often’ carrying a weapon to

school and the lowest reports were observed in Amsterdam (4%). Rates

of gun carrying to school are relatively low across all sites (14% Mon-

treal, 11% Amsterdam and 9% Philadelphia) with the highest rates,

23%, reported among Toronto boys.

c) Weapon perpetration, victimization

and weapon carrying as a response to violence

Information regarding lifetime weapon perpetration in the four cities

is also presented in Table 2. The highest rates of perpetrating violence

with a weapon are consistently revealed among Toronto boys. Signif1-

cant differences are noted for all types of weapon related perpetration.

The highest rates of threatening of trying to hurt someone with a gun

are reported in Toronto (36%) followed by nearly equal proportions in

Montreal and Amsterdam (27% and 28% respectively) and finally Ams-

terdam with 18%. Particularly striking differences are evident for threa-

tening or trying to hurt someone with an object where 63% of Toronto

boys report this behaviour (the next closest city is Montreal at 49%) and

actually hurting someone with a knife, object or gun. In this latter

example, 51% of the boys in the Toronto sample report perpetrating

serious violence causing injury, followed by 36% in Montreal.

Perpetration and victimization are highly correlated (Tanner and

Wortley 2002). As such, it is not surprising that boys in all cities also

report high levels of lifetime exposure to threats and actual violence.

Though highest in Toronto for all forms of weapon related victimiza-

tion, the range (60 — 82%) of someone ever threatening or trying to hurt

these boys with a knife or object suggest they operate in a risky social

environment (The data described in this paragraph are not shown in a

table). Exposure to potential gun violence with them as target was more

pronounced in Toronto (53%) and Philadelphia (46%) with lower, but

still substantial, rates in Montreal (39%) and Amsterdam (27%). This

trend 1s replicated with respect to reports of being hurt with a weapon;

a significantly greater proportion of young men (44%) in Toronto report

this type of violent victimization than in the other sites. Indeed, this rate

is double that reported in Amsterdam and Montreal and 1.7 times that

observed in the Philadelphia sample.

Finally, whether exposure to violence influences the weapon carrying

behavior of youth (Molnar, Browne, Cerda and Buka 2005; Bingenhei-

mer, Brennan and Earls 2005) is an additional dimension pursued in

— 140 —

these analyses (Table 2). When asked whether they started to carry a

weapon as a result of any form of violence to themselves or others, 61 %

of the boys in Toronto agreed, followed by Philadelphia (49%), Mon-

treal (47%) and Amsterdam (35%). From the boy's perspective, the cau-

sal order 1s apparent, making this an appropriate variable to include in

an explanatory model of weapons related perpetration of violence.

d) Gun acquisition

À few US studies have asked questions which directly relate to the

ease of youth obtaining firearms (Ash et al. 1996; Smith 1996) but none

have done so in Canada or the Netherlands. What 1s evident from these

data (see Table 2) 1s that delinquent boys 1n all four sites named a num-

ber of options to get guns and the majority perceived they could acquire

a gun in a relatively short period of time (less than one day). Buying a

gun from a friend or family member was common across all sites, while

stealing and trading something for a gun were reported by the fewest

number of boys in each of the cities.

In this group of delinquents, over one quarter of the boys in Ams-

terdam, Philadelphia and Toronto, and one fifth in Montreal, indicated

they could get a gun in less than one hour. Overall, 62% of those in

Toronto and Montreal and over half in Amsterdam and Philadelphia

(58% and 56% respectively) said they could acquire a gun in less than

a day. Some significant variation across sites was also noted with respect

to the perceived ways of obtaining a gun. For example, boys in Mon-

treal (23%) were almost twice as likely to suggest that they would get a

gun from a drug dealer as the boys in the other sites and a significantly

larger proportion of Philadelphia boys (36%) said they would ‘“get one

off the streets” in comparison to the other cites.

Logistic Regression Analysis

Table 3 1llustrated the results of a series of hierarchic logistic regres-

sion models predicting the participation in four different types of wea-

pon related activities. Odds ratios are used to indicate the predictive

value of the background characteristics, substance use, drug selling,

delinquency, gang fights and weapon carrying for four weapon use

behaviours.

— 141 —

TABLEAU 3 : Logistic Regression : Predicting participation

related violent activities

in weapon

with

someone

someone

someone

with a knife

with a gun

a weapon

Threaten or hurt

with an object

Threaten or hurt

Threaten or hurt

Hurt someone

=

=

=

OR

Montrealà

863

819

911

801

Philadelphia®

722

1.03

631

Torontoë

1.83**

1.32

1.33

2.02***

16 — 17 years of age

982

983

1.35

1.13

Western ethnicity origin

1.23

923

768

965

Witness drug use 50+ times

in

1.30

945

933

1.21

your neighbourhood

Witness drug dealing 50+ times in

907

1.38

1.77*

1.19

your neighbourhood

1.15

1.26

1.37

1.54*

Heavy alcohol consumption

Poly-drug use

1.40

902

845

1.01

Any drug selling activities

1.02

1.56

1.29

1.02

Cocaine/crack market involvement

1.39

902

2.96***

1.82**

1.02

1.04

1.09

1.04

Pre-13 delinquent behavior (0-11)

Past 12 months delinquent beha-

1.17**

1.18**

1.05

1.15*

vior (0-7)

1.28

1.19

1.89**

2.02***

Involved in gang fights (pre-13

and/or past 12 months)

Started to carry a weapon as a

2.56***

4.81***

6.73***

3.53***

result of violence

Statistical significance (Chi-square) * p<.05** p<.01 ***p<.001

* Amsterdam 1s the comparison city

The variables predicting the likelihood of threatening or trying to

hurt someone with an object are presented in column 1. Toronto boys

were almost twice as likely to report this type of behaviour than those

in Amsterdam. Participation in delinquent behaviour in the past 12

months also emerged as significant predictors of threatening or trying to

— 142 —

hurt someone with an object. For every unit of increase in the past year

delinquency scale the odds of this behaviour increased by 1.17. Finally,

boys were two and a half times more likely to report engaging in this

violent behaviour if they had started to carry a weapon as a result of

violence.

The findings predicting the likelihood of threatening or trying to hurt

someone with a knife are presented in column 2. The Philadelphia site,

past year delinquency and carrying a weapon as a result of violence

emerged as the significant predictors of this behaviour. Specifically, boys

in Philadelphia were less likely to report having threatened or tried to

hurt someone with a knife than those living in Amsterdam. Past year

delinquency involvement again increased the odds (OR = 1.18, p <.01).

Finally, boys who reported that they started to carry a weapon as a

result of violence were almost five times as likely to indicate that they

had threatened or tried to hurt someone with a knife.

The variables that significantly increase the likelihood of threatening

or trying to hurt someone with a gun are presented in column 3. Unlike

the previous models, site does not significantly influence this outcome.

However, witnessing drug dealing in your neighbourhood, selling

cocaine and/or crack, lifetime participation in gang fighting and carrying

a weapon as a result of violence emerged as significant predictors of gun

related violence against others. Boys who reported living in a neighbou-

rhood where they witnessed drug dealing more than 50 times in the past

year were 1.8 times as likely to report gun related violence. Moreover,

participating in the cocaine/crack market increased the odds of this

behaviour by almost three times in comparison to those not involved 1n

this particular drug market. Boys who had ever been involved in gang

fighting were roughly twice as likely to report gun related violence

against someone else than those who had never taken part in a gang

fight. Among those boys who indicated they had started to carry a wea-

pon as a result of violence, the odds of threatening or trying to hurt

someone with a weapon were almost seven times greater than for those

who did not report carrying a weapon as a result of violence.

Finally, the characteristics and behaviours that significantly affect the

likelihood of the most serious form of violent behaviour: hurting

someone with an object, knife or gun are revealed in column 4. In this

model, six significant predictors emerged : the Toronto site, heavy alco-

hol consumption, selling cocaine/crack, past year delinquency, lifetime

gang fighting and carrying a weapon as a result of violence. These ana-

lyses indicated that boys from the Toronto site were twice as likely to

report hurting someone with a weapon than those residing in Amster-

dam. Unlike the other models, heavy alcohol consumption materialized

as a significant predictor of this form of violent behaviour. Specifically,

— 143 —

boys classified as heavy drinkers were 1.5 times as like to hurt someone

with a weapon than those who did not fall into this category. Boys

engaged in selling cocaine and/or crack were almost twice as likely

(OR = 1.82; P<.01) to indicate they had hurt someone with a weapon

than those not involved in selling these particular drugs. The odds of

this behaviour also increase by 1.15 for every unit of increase in past 12

month delinquency participation, and boys who indicated involvement

in gang fighting activities were twice as likely to have reported hurting

someone with a weapon. Finally, those boys who started to carry a wea-

pon as a result of violence were almost three and a half times (OR = 3.5,

p<.001) as likely to report hurting someone with an object, knife or gun

than those who have not started to carry a weapon.

Overall several characteristics and behaviours emerged as significant

predictors in the models. Site significantly influenced three of the four

outcomes. In two outcomes (threatening or trying to hurt someone with

an object and actually hurting someone with a weapon), boys in

Toronto were significantly more likely to report these behaviours than

their Amsterdam counterparts. Conversely, boys from Philadelphia were

less likely than boys in Amsterdam to report threatening or trying to

hurt someone with a knife. Witnessing drug dealing in one’s neighbou-

rhood was a significant factor in predicting the likelihood of threatening

someone with a gun and similarly, heavy alcohol consumption only

emerged in the analysis predicting the odds of hurting someone with a

weapon. Participating in the cocaine/crack market and gang fighting

were observed to increase the likelihood of the two more serious out-

come measures : threatening someone with a gun and actually hurting

someone with a weapon. Engaging in delinquent acts over the past year

predicted three of the four outcomes including the most serious violent

behaviour, hurting someone with a weapon. Finally, the strongest pre-

dictor of these weapon related violent outcomes was whether the boys

had started to carry a weapon as a result of experiencing violence (to

them or others). This behaviour was highly significant and substantially

increased the odds of all four weapon related behaviours. In these ana-

lyses there were no significant relationships to age as a variable. Moreo-

ver, the neighbourhood characteristic regarding witnessing others’ using

drugs was non significant, and witnessing drug selling was only signifi-

cant in relation to guns, not other weapons. Finally, neither poly drug

use nor general drug selling appeared to play a significant role in

influencing violence.

— 144 —

DISCUSSION AND CONCLUSION

Looking at the cross-site descriptive comparisons, mixed support 1s

found for the availability argument, since Toronto youth are the highest

on carrying a gun to school (though differences between cities on this

measure are not significant), but Philadelphia youth are significantly

more likely to report carrying a gun as their weapon of choice than

those in other cities. Moreover, Toronto youth are most likely to say

they have threatened or tried to hurt someone with a gun. In fact, with

the exception of this gun violence where Philadelphia youth are similar

to those in Montreal, rates of all other forms of weapon perpetration

are lowest in Philadelphia and highest in Toronto. Amsterdam is the

lowest on the measure of threatening someone with a gun as might be

expected from the availability premise.

Although delinquent youth in Toronto exceed the others in perpetra-

tion of violence with weapons, delinquents in the other three sites also

display substantial levels of carrying and using knives, firearms and

other objects. School seems to be the least dangerous environment for

weapons carrying. While these data overall suggest mixed support for

the futility perspective as well, it was surprising that delinquent youth

in Toronto and Montreal would actually exceed those in Philadelphia

on several measures involving firearms. It may be that the Canadian

youth justice system 1s more selective in its criteria for imposing custody

sentences, reserving them for the more serious offenders, while in the

USA a broader range of delinquents 1s detained. Since our data do not

include the specific offence for which the youth was incarcerated, we

cannot make a direct comparison. National trends in Canada, however,

indicate a 35% decline in custody sentences between 1993/94 and 2002/

03, and a greater emphasis on community based dispositions for less

serious young offenders (Statistics Canada 2004).

The futility perspective was further supported by the delinquents’'

personal estimate of the time it would take to obtain guns and where

they would get them. Youth in all four sites appear to be able to acquire

guns quite quickly in a variety of ways, though those in Amsterdam

were most likely to say they “didn’t know” how to obtain a gun. Ît 1s

notable, nonetheless, that the youth in Amsterdam have as ready access

to firearms as they indicate, given the limited access in Dutch society.

As well, though Canadians tend to pride themselves on their gun control

policies and lower gun crime rates when compared to Americans, the

relatively easy access to firearms reported by delinquent Toronto youth

Is no different than their Philadelphia counterparts. Of course both

Canada and the Netherlands are located adjacent to countries with more

liberal gun policies and a more open market - the USA and Belgium.

— 145 —

A more stringent test of the availability perspective would require a

more normative and representative sample of youth from all our sites

with comparable data on gun ownership rates (Cook and Ludwig 2004).

The logistic regression analysis simultaneously controlled for the bac-

kground and risk factors to predict four weapons related violent outco-

mes

This helps to ensure that variation in sample characteristics

between sites, due to different selection factors into the detainee and

dropout groups according to local practices, are accounted for in the

analysis. Site emerges as a significant predictor of weapon related invol-

vement for threatening or trying to hurt someone with an object and

actually hurting someone with a weapon, showing Toronto youth as the

leader in this role. In contrast, youth in Philadelphia were significantly

less likely than those in other sites to threaten or try to hurt someone

with a knife. Those youth who participated in cocaine/crack selling, as

well as gang involvement, were significantly more likely to report the

more serious forms of weapon related violence : threatening or trying to

hurt someone with a gun and actually hurting someone with a weapon.

A recent history of delinquency, though not a pre-age 13 one, was a

significant predictor of 3 of the 4 violent outcomes (the exception being

use of a gun to threaten or try to hurt someone).

Finally, perhaps a key observation from these analyses is that “vio-

lence begets violence” (Bingenheimer et al. 2005). Those youth who indi-

cate having started to carry a weapon because of violence are much

more likely to report all 4 types of weapon related violent perpetration.

Demographic factors (age and ethnicity), witnessing drug use in your

neighbourhood, poly-drug use and selling drugs in general, did not pre-

dict participation in any of the violent outcomes. Heavy alcohol con-

sumption, reflecting its well-established links with violent crime, was

significant in its relationship to hurting someone with a weapon. Witnes-

sing drug selling in the youths’ neighbourhoods did, however, signifi-

cantly increase the odds of threatening or trying to hurt someone with

a gun. This suggests the co-existence of gun violence and street drug

markets.

It appears that the conclusions that are drawn about youth and

firearms as well as other weapons depends very much on the particular

group and context being examined. Most studies have only included one

sample in one location, or compared findings across states/provinces

within one country. Our cross-national study provides another dimen-

sion in which to compare results collected with the same methods

applied to delinquent youth across four different sites. Despite different

national gun control frameworks in the USA, the Netherlands and

Canada, and the same laws operating in Ontario and Quebec, the

Toronto youth showed a higher prevalence of using a gun in violence

— 146 —

than Philadelphia and Montreal, though the logistic regression showed

no site differences for guns. Our results also show several similarities in

weapons carrying in general between sites as well as some notable dif-

ferences in threat and use of them. It also 1s important to place firearms

in the more general context of weapons, as hitting someone with an

object or stabbing can also have lethal results, and continue to be major

components of youth violence. The logistic regression analysis showed

the strong predictive power of neighbourhood drug selling, cocaine/

crack markets and gang selling for the perpetration of gun violence,

underlining the importance of providing early intervention and attention

to community context for such youth.

The answers to youth firearms violence lie not only in more stringent

controls on adult access in general, but more focused efforts to keep

guns out of the hands of delinquent youth in any nation. The experience

of the Netherlands perhaps provides the most dramatic example — des-

pite its strict controls on availability, and the generally lower rates of

firearms usage there, delinquent youth are nevertheless able to obtain

them. The complexity of the results of our study imply that the most

effective policy response does not require a choice - availability vs. futi-

lity - but rather lies in a broad, multi-faceted initiative that is concerned

with the numbers of guns in society, the situations that are associated

with their acquisition, and the characteristics of those who may resort

to using them for violence. In our Toronto findings, we may be tapping

the early signs of an emerging trend of greater youth involvement in

firearms, one that became more evident with the nearly unprecedented

wave of gun related homicide deaths in 2005 (Gartner and Thompson

2004). These emerging trends should be carefully monitored.

REFERENCES

ASH, Peter, KELLERMANN, Arthur L., FUQUA-WhriTLEY, Dawna, and JOHNSON,

Amri (1996): “Gun acquisition and use by juvenile offenders”, JAMA 275:

1754-1758.

AZRAEL, Deborah, Cook, Philip J. and MILLER, Matthew (2004) : “State and local

prevalence of firearms ownership : Measurement, structure, and trends”, Jour-

nal of Quantitative Criminology 20(1) : 43-62.

BINGENHEIMER, Jeffrey B.. BRENNAN, Robert T. and FELTON, J. Earls (2005) :

“Firearm violence exposure and serious violent behavior”, Science 308 (27

May) : 1323-1326.

BRAGA, Anthony A., KENNEDY, David M., WARING, Elin J. and PIEHL, Anne

Morrison (2001) : “Problem-oriented policing, deterrence and youth violence :

An evaluation of Boston’s Project Ceasefire”, Journal of Research in Crime

and Delinquency 38(3): 195-225.

— 147 —

BLUMSTEIN, Alfred (1995): “Youth violence, guns and the illicit drug industry”,

Journal of Criminal Law and Criminology 86(1) : 10-36.

CALLAHAN, Charles M., RIVARA, Frederick P. and FARROW, James À. (1993):

“Youth in detention and handguns”, Journal of Adolescent Health 14 : 350-

355.

CAMH [Centre for Addiction and Mental Health] (2004): CAMH Population

Studies eBulletin. One in ten Ontario students have carried a weapon. 5

(March/April).

CAMH [Centre for Addiction and Mental Health] (2006): CAMH Populations

Studies eBulletin. One in 50 Ontario high school students reports carrying a

gun. 7 (Jan/Feb).

CMAJ (2003) : “News : Firearms Deaths Decline”, Canadian Medical Association

Journal 169(10) : 1064.

Coalition for Gun Control (2001): Kids and Guns http://www.guncontrol.ca/

Content/Kids/html and www.guncontrol.ca/Content/International/html.

Cooxk, Philip J., and LupwiG, Jens (2004) : “Does gun prevalence affect teen gun

carrying after all?”, Criminology 42 : 27-54.

CUKIER, Wendy (1998) : “Firearms Regulation : Canada in the International Con-

text”, Chronic Diseases in Canada, (April). Health Canada.

Doos, Anthony and SPROTT, Jane (1998): “Is the ‘quality’ of youth violence

becoming more serious?”, Canadian Journal of Criminology 40(2) : 185-194.

DUNKEL, Frieder and DRENKHAHN, Kirstin (eds.) (2003): Youth Violence : New

Patterns and Local Responses — Experiences in East and West, Greifswald :

Forum Verlag Godesberg.

ERICKSON, Patricia G. and BUTTERS, Jennifer E. (2004): “Three groups of

Toronto youth: Their experiences of guns, other weapons and violence”,

pp. 42-58. In Bruce KibD and Jim PHiLLIPS (eds.), Research on Community

Safety, Toronto : Centre of Criminology.

ERICKSON, Patricia G., BUTTERS, Jennifer E., COUSINEAU, Marie-Marthe, HARRI-

SoN, Lana and Korr, Dirk J. (2006): “Girls and weapons : An international

study of the perpetration of violence”, Journal of Urban Health 83 (forthco-

ming).

FITZGERALD, Robin (2003): An Examination of Sex Differences in Delinquency,

Crime and Justice Research Paper Series. Ottawa : Canadian Centre for Jus-

tice Statistics.

Fox, Sandra J. and ZAWITZ, Marianne W. (2001) : “Homicide trends in the Uni-

ted States : 1998 Update”, Bureau of Justice Statistics, Crime Data Brief,

March, 2000, NCJ 179767. USA Department of Justice.

FREED, Lorraine H, WEBSTER, Daniel, LONGWELL, J., Carrese, J. and WILSON,

Modena H. (2001): “Factors preventing gun acquisition and carrying among

incarcerated adolescent males”, Archives of Pediatric Adolescent Medicine

155 : 335-341.

GARTNER, Rosemary and THOMPSON, Sara (2004) : pp 28-41, in Jim PHILLIPS and

Bruce KiDD (eds.), Research on Community Safety, Toronto : Centre of Cri-

minology.

KiLLIAS, Martin (1993): “International correlations between gun ownership and

rates of homicide and suicide”, Canadian Medical Association Journal

148(10) : 1721-1725.

— 148 —

KorF, Dirk J., NABBEN, Ton, DIEMEL, Steven and BOUMA, Hannah (2000) :

Antenne 1999. Trends in alcohol, tobacco and drugs in young Amsterdamers,

Amsterdam : Thela-Thesis.

KruG. E.G., POWELL, K.F. and DAHLBERG, L.L. (1998) : “Firearm-related deaths

in the United States and 35 other high and upper middle income countries”

International Journal of Epidemiology 27 : 214-221.

KRUISSINK,

Maurits

and — ESSERS,

Ad

(2001) :

Ontwikkeling

van

de

jeugdcriminaliteit : periode 1980-1999, The Hague : WODC.

LEISTRA, Gerlof and NIEUWBEERTA, Paul (2003): Moord en doodslag in Nederland,

Amsterdam : Prometheus.

LEONARD, Katharine À. (1994) : “Firearm deaths in Canadian adolescents and

young adults”, Canadian Journal of Public Health 85(2): 128-131.

LIZOTTE, Alan J., KROHN, Marvin D., HOWELL, James C., ToBIN, Kimberly and

HowARD, Gregory J. (2000) : “Factors influencing gun carrying among young

urban males over the adolescent life course”, Criminology 38(3), 811-834.

MoLNAR, Beth F, BROWNE, Angela, CERDA, Magdelena and BUKA. Stephen L.

(2005) : “Violent behaviour by girls reporting violent victimization : a pros-

pective study”, Archives of Pediatric Adolescent Medicine 159 : 731-739.

PAETSCH, Joanne J. and BERTRAND, Lorne D. (1999) : “Victimization and delin-

quency among Canadian youth”, Adolescence 34 (summer) : 351-367.

PAGLIA, Angela and ADLAF, Edward M. (2003) : “Secular trends in self-reported

violent activity among Ontario students, 1983-2001”, Canadian Journal of

Public Health 94(3): 212-217.

Porssy, Daniel D. (1994) : ‘The false promise of gun control”, Atlantic Monthly,

March.

SHELFEY, Joseph F. and WRIGHT, James D. (1995): In the Line of Fire : Youth,

Guns and Violence in Urban America, New York : Aldine de Gruyer.

SLOAN, John Henry, KELLERMANN, Arthur L., REay, Donald T., FERRIS, James

A., KIEPSELL, Thomas, RrvARA, Frederick P., RicE, Charles, GRAY, Laurel and

LoGrerro, Hames

(1988) :

“Handgun

regulations,.

crime.

assaults,

and

homicide : À tale of two cities”., New England Journal of Medicine 319 : 1256-

1262.

SMITH. M. Dwayne (1996): “Sources of firearm acquisition among a sample of

inner-city youths : Research results and policy implications”, Journal of Cri-

minal Justice 24 : 361-367.

SPAPENS, Toine and BRUINSMA, Monique (2002) : Vuurwapens gezocht. Vuurwa-

pengebruik, -bezit en-handel in Nederland 1998-2000, Tilburg : IVA.

Statistics Canada (2001) : Homicide in Canada

2000. Juristat. Catalogue no. 85-

002-XIE, Vol. 21, No. 9. Ottawa : Canadian Centre for Justice Statistics.

Statistics Canada (2004) : Youth Custody and Community Services in Canada

2002/03. Juristat. Catalogue No. 85-002-XIE, Vol 24, No. 9. Ottawa : Cana-

dian Centre for Justice Statistics.

STEFFENSMEIER, Darrell, SCHWARTZ, Jennifer, ZHONG, Hua and ACKERMAN, Jeff

(2005) : “An assessment of recent trends in girls’ violence using diverse longi-

tudinal sources : 1s the gender gap closing?”, Criminology 43 : 355-405.

SWAHN, Monica H., HAMMIG, B.T. and IKEDA, R.M. (2002): “Prevalence of

youth access to alcohol or a gun in the home”. Injury Prevention 8(3) : 227-

230.

— 149 —

TANNER, Julian and WORTLEY, Scot (2002) : The Toronto Youth Crime & Victi-

mization Survey, Toronto : Centre of Criminology.

The National Academies (2004): “Data on firearms and violence too weak to

settle policy debates : comprehensive research effort needed”, NEWS, Dec. 16,

2004.

VAN DER HEIJDEN, Peter and Girs, Ger van (2000): “Omvangschattingen van

vuurwapenbezit”, Tijdschrift voor Criminologie 42(2) : 154-164.

WEBSTER, Daniel W., FREED, Lorraine H., FRATTAROLI, Shannon and WILSON,

Modena H. (2002) : “How delinquent youths acquire guns : Initial versus most

recent gun acquisitions”, Journal of Urban Health 79(1): 60-69.

WEBSTER, Daniel W., GAINER, Patricia S. and CHAMPION, Howard R. (1993):

“Weapons carrying among inner-city junior high school students : Defensive

behavior vs. aggressive delinquency”, American Journal of Public Health

83(11): 1604-1608.

WecLSs, William and HORNEY, Julie (2002) : “Weapon effects and individual intent

to do harm : influence on the escalation of violence”, Criminology 40(2) : 265-

296.

WINTEMUTE, Garen (2001) : “Gun carrying among male adolescents as a function

of gun ownership in the general population”, Annals of Emergency Medicine

41 (3): 428-429.

ABSTRACT

Despite growing concerns about youth violence, little research has

been conducted in countries other than the USA specifically about the

prevalence and actual use of weapons to threaten or harm others. This

study employed the same questionnaire and methods to recruit 888 male

delinquent youth in Toronto, Montreal, Philadelphia and Amsterdam.

Two contrasting perspectives on the importance of firearms restriction

in preventing youth violence — futility and availability — guide the dis-

cussion. Specifically, detained and dropout youth appear to have quite

ready access to firearms, regardless of national gun control laws. On

logistic regression analysis, the strongest independent predictors of four

weapon related violent outcomes were site, prior delinquency and

victimization ; notably for gun violence, selling cocaine/crack, history of

gang fights and living in neighbourhoods where drug selling was cons-

picuous, were significant. The high levels of gun involvement and wea-

pons related violence among Toronto and Montreal youth were unex-

pected. The Canadian youth justice system may be selecting more

serious delinquents for incarceration than those in the USA and the

Netherlands. These results may also be a harbinger of greater gun

availability, or reflect greater willingness of delinquent youth to arm

themselves, than in the past. Since baseline data about firearms carrying,

acquisition and use have not been collected previously in Canada, it will

be imp_ortant to monitor these trends.

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SOMMAIRE

Une recherche comparative internationale a permis de recourir à des

méthodes identiques pour recruter 888 jeunes hommes délinquants à

Toronto, Montréal, Philadelphie et Amsterdam et de leur administrer un

même questionnaire à propos de la délinquance violente avec armes,

quelle que soit la législation nationale sur l’accès aux armes à feu.

RESUMEN

Una investigaciôn comparada de carâcter internacional ha permitido

recurrir a métodos idénticos para reclutar a 888 jôvenes hombres delin-

cuentes en Toronto, Montreal, Filadelfia y Amsterdam y de admini-

strarles un mismo cuestionario sobre la delincuencia violenta con armas,

con independencia de la legislaciôn nacional sobre el acceso a las armas

de fuego.

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