ITL, chapter 7

To prevent the criminalization of conduct exclusively based on moral or paternalistic grounds.

A conduct that is immoral (adultery) but that is not harmful to the others should not be the concern of criminal law.

1)Utilitarian

2)Retributive

1) Consequentialism : criminal sanctions only when they have beneficial consequences, like deterrence of criminal behaviour.

2) Deterrence (dissuasion) : use the threat of example of punishment to discourage other people from committing crimes.

3) Rehabilitation : to prevent future crime by giving criminal the necessary treatment and training that enable them to return to society as law-abiding members of the community. (Released on probation)

1) Crime deserves punishment : punishment is a responsibility for the committed crime, the punishment should be proportional to the seriousness of the offence.

2)

A bipartite structure

Are they both fulfilled ?

1) Actus Reus (the act, the objective and internal part)

2) Mens Rea (the intention, the subjective and external part)

--> is there the presence of blameworthiness? If not, the person can escaped liability (eg, fou)

A tripartite structure.

1) Fulfillment of offence definition : Actus Reus and Mens Rea

2) Wrongdoing : is there a justification for the act or not?

3) (if there is wrongdoing, so no justification)

Blameworthiness : is there a justification for the person or not ? If not, he is blameworthy

The animus is seen as the cause of physical action as willed bodily movement.

1) Offenses of failing to act

2) Commission by omission

1) Direct Intent : a strong volitional element, where the consequence of an intention is actuelly desired.

2) Indirect Intent : a strong cognitive aspect and exists where the agent knows his conduct will almost certainly bring about the result, which he does not primarily desire or aim.

intention is not motive ! The intention to kill someone is different than the motivation why you killed someone.

1) Conditional intent is for civil law. Dolcus Eventualis. It is the conscious acceptance of a possible risk.

You are aware of a risk and you accept that you're action would maybe materialize it.

2) Recklessness is for common law. It is the conscious taking of unjustified risk. It only need to be proven that the defendant was aware of a risk, his awareness, and it would lead to liability.

In the civil law, a distinction is made between conscious negligence and unconscious negligence.

Conscious negligence: the agent is aware of a risk but trust of the good outcome of his act.

Unconscious negligence : the agent does not consider the consequences of his act.

In the common law, there is always unconscious or inadvertent negligence as it reflects a culpable failure to be aware of the unreasonable risk.

1) Imminent and Unlawful Attack :

The defendant cannot wait any longer for the official authorities to protect his interest.

Unlawful expresses that self-defense was a fight for a right against wrong.

2) Necessity :

The defence must be a capable and necessary means to repel the attack.

3) Proportionality :

The relationship between the offense committed and the amount of harm likely to be suffered by the defendant  if he had not intervened with force. As long as the force used was not a disproportionate response to the attack, the defendant will be justified.

1) The defendant was suffering from a relevant mental disorder at the time when he committed the offense.

2) The mental disorder has impaired the defendant's capacities to be held responsible

3) Are there reasons against attributing the offence to the mental disorder, such as prior fault of getting in a situation where the defendant lost his mind ? (Eg drugs)

In case where the defendant's capacities have been impaired by the disorder, but not to the extend of legal irresponsibility, courts can mitigate their judgements.

Criminal substantive law determine the scope of criminal liability, the conducts to be punished and the punishment for each.

Criminal procedural law identify the steps for accurately establishing if criminal law was breached and if an individual can be deemed culpable for the breach and consequently punished.

-The state is directly involved in the criminal process.

1) the investigations, aiming at discovering a crime 

2) the trial, aiming at determining if the statement is true or false

In the common law tradition.

The prosecution was left to the initiative of a private accuser who would conduct private investigations and bring the case against a defendant in front of a jury.

The trial consisted in a battle of evidence and arguments between private accuser and the private defendant in front of the jury. The jury remained passive and returned a verdict without giving any reasons for it.

It relies on the agonist if approach of parties and on the assumption that the clash of opposing views will show which of the two versions is more credible.

Now, common law countries have centralized the duty of prosecution on state authorities, and private prosecution remains only a theoretical possibility.

In continental Europe, for civil law. 

The state authorities were charged with the duty to investigate on any suspicion of a crime. The investigations were conducted in a formal manner by a career judge. All the results of the investigation were recorded on a dossier.

At the trial, the parties had the right to bring additional evidence and to present their arguments, the trial court gave reasons for its decision.

A neutral investigator to collect all relevant evidence available.

Now the police does the investigations.

An individual is considered innocent and must be treated as such until a decision of guilt is passed against him.

The defendant can be considered guilty instead of the presumption of innocence, if his guilt has been proved beyond reasonable doubt.

The personal liberty of a suspect cannot be restricted before a verdict of guilt is passed.

Exception is petrial detention. The suspect can be arrested during the investigation in some circumstances. A suspect cannot be kept simply because he is suspected of the crime. The restriction should be limited to a minimum.

The function of a criminal process is not just to reach a correct verdict but also to do so in a manner that generates public confidence in the court's work.

The right to receive legal assistance from a counsel.

The right not to cooperate with prosecuting authorities, the accused has the right to remain silent.

The possibility to discredit the evidence offered by the prosecution by confronting the incriminating witnesses.

The fair trial safeguard are also applicable during investigative stage.

The state authorities should not make arbitrary use of their coercive and intrusive power.

Investigation measures cannot be used lightly or for purposes other than unveiling the elements of a particular offence.

Coercise and intrusive act should be allowed only when and insofar as it is strictly necessary to investigate a specific offense.