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Vous consultezTopic I-General PartThe expanding forms of preparation and participation
AuteurProf. Dr. Lorenzo Picotti du même auteurUniversità di Verona
1 Place: A Coruña, Spain
Date: 5 – 8 september 2007
General Reporter : Prof. Lorenzo Picotti, University of Verona, Verona (Italy)
Young Penalists’ Reporter : Dr. Ahmed Khalifa, Poitiers (France)
2 The new forms of very serious crime that have developed exploiting the opportunities and the contradictions of today’s « global » society have aroused in recent years the need for more effective answers than the existing ones, which have proved inadequate against the organized and often multi-national dimension of the above-mentioned phenomena. On the one hand, the development of the economy, of exchanges, of the « free » circulation of individuals, goods, services and capital beyond the boundaries of different States has created the basis for a global market offering new opportunities to the action and proliferation of expanding crime structures; such structures are able to exploit the different economical, social, political and juridical conditions of the various territorial circles with the purpose of broadening and intensifying any sort of illegal investments and trafficking : from drugs to weapons, from women and children to migrants and human organs for transplants etc.; such plans are actually achievable thanks to the diffusion and modernization of the means of transport and communication, now available at lower and lower prices, as is proved by the all-pervading diffusion of the internet.
3 On the other hand, the striking inequalities emerging from the direct contact among divergent areas and populations, from the utmost developed to the poorest, once far away the one from the other and deeply different in terms of culture, traditions, ideology, religion, systems of values, collective and individual ways of life, do create the conditions for harsh comparisons and open conflicts, as is dramatically proven by the difficulties (if not by the impossibility) of social integration where mass migration (and sometimes human trafficking) is taking place, leading to situations of marginalization and discrimination, even resulting in sheer violence.
4 As a consequence, new areas are available for the establishment and action of terrorist organizations, often branched and structured in a multi-national dimension, which makes the need for new answers more and more urgent. As a matter of fact, terrorism has taken different shapes according to different historical periods and to the places where it made its appearance. It tends to evade a homogeneous qualification and above all a homogeneous juridical discipline as it is perceived in different ways and combated through different preventive and repressive instruments.
5 However, nowadays it is certainly a matter of the utmost interest both for the public opinion all over the world and in the initiatives of governments and of international institutions.
6 As a matter of fact, on one side, this phenomenon has taken new and at times brutal characteristics, with the use of more powerful technological devices capable of producing tragically spectacular effects (as happened in the case of the terrorist attacks to the Twin Towers in New York and to the Atocha station in Madrid), while its perception and force of impact has a worldwide spread, owing to global communication media and the consequent diffusion of information and opinions. These different factors give advantage to the aim, often explicitly pursued by terrorist organizations, of achieving results beyond the borders of the country where they are acting or where their target is located.
7 All this considered, notwithstanding the complex plurality of causes and opinions that could emerge from a more detailed analysis of the qualification and evaluation of the acts and deeds that can be called « very serious offences » and particularly « terrorism », we can say that terrorism tends to acquire global dimensions, in accordance with the characteristics and trends of present-day society.
8 As far as the targets of this study are concerned, we must point out that neither serious and organized crime nor terrorism are at present included, as such, among « strictly » international crimes that are the object of the multi-national indictment and jurisdiction system set in the Rome Statute of 1998 establishing the International Criminal Court.
9 Anyway, there has certainly been a shift in the approach to the instruments for the fight against the above-mentioned phenomena (as far as terrorism is concerned, mainly after the attacks of September 11 in New York and Washington) aiming at achieving a closer cooperation among Governments, not only between the judiciary and the police, but also through a previous parallel harmonization of the substantive criminal law itself.
10 This course of action has developed at various levels.
11 The first level is the global level, characterized by numerous interventions of the UNO. We must take into special account the Convention against multi-national organised crime, opened for signature in Palermo in December 2000, and its additional Protocols against the trafficking in human beings, particularly women and children, and against the trafficking in migrants. Such instruments offer a general framework in which other numerous Conventions already in force against particular forms of serious and over-national crime (i.e. drug trafficking, weapons trafficking, human beings trafficking etc.) may be inserted and partly integrated. In the matter of terrorism, on the contrary, it is still difficult to reach agreement on a convention having a general character owing to the heterogeneous points of view on the possibility itself of a definition of a common notion from the perspective of penal law; yet, this has been attained at a regional level, particularly inside the European Union, that, among other provisions, issued the framework decision of 2002 defining in common juridical, penal terms the dimension of the phenomenon and the basic instruments for combating it.
12 The same thing happened (dating from the common action of 1998) as far as organized crime was concerned : its definition as « criminal organisation » represented the reference basis for a large number of other instruments for intervention against more specific forms of « serious and multi-national crime » (i.e., the framework decisions on the European arrest warrant or for the acquisition of documentary evidence, as well as for the tracing and confiscation of the proceeds of a crime, against data processing attacks, the trafficking in human beings, drug trafficking, weapons trafficking etc.); such crimes may be included (even if sometimes with a certain extensive straining) in the field of competence outlined in arts. 29 ff. of the European Union Treaty, by means of which it is possible to state « minimal norms » concerning the constitutive elements of crimes and the sanctions, so that a common fight carried out together by the various member countries of the European Union might be far more effective than individual actions.
13 Particular attention must be given to the national level, where any law actually comes into force, as each State has its own jurisdiction for the actual implementation of the substantive and procedural criminal law. From this point of view, assuming the achievements at a multi-national level, we must carry out a specific analysis of the matter on the basis of the positive criminal law in force in each national juridical system.
14 (A) In order to deal suitably with the general profiles of substantive criminal law, we must give a short outline of the juridical matters in the context of the phenomena created by globalisation in each juridical system (A.1), identifying the general setting of regulations about preparatory acts and participation (A.2), with respect to which we can say if, and in what measure, there has been a broadening of the forms of preparation of and participation in offences in a certain field, such as the field of « very serious crime » and of « terrorism » (A.3).
15 (B) We must then single out a general survey above all of the new normative formulations of the forms of preparation and of participation, starting from the cases of the criminalization of preparatory acts (B.1), such as the incitement/provocation not followed by the commission of the offence, particularly pointing out, when material acts are involved, the possible separate punishment for specifically described activities, such as the recruitment, the training, the making or possession of falsified documents etc., having a preparatory role as regards the carrying out of a criminal plan or the actual commission of terrorist acts. An intensification of penal intervention may be achieved also through the extension of forms of participation or of indictment of complicity (B.2) through the modification of or even the derogation from the commonly stated conditions for penal liability on the matter, such as the penal relevance of the agreement not followed by the commission of the offence.
16 Special attention will have to be given to separate indictments for those activities having a collateral or preparatory character and a collective nature, such as the supporting, the assistance, and the « external » aid (on the part of professionals, lawyers, doctors etc.) to criminal activities and associations or to associated or accomplice individuals.
17 It may be of relevance the provision of offences punishing the association for particular criminal purposes (B.3), in addition to a possible liability of moral persons (B.4).
18 As to terrorism and other offences characterised by ideological, political or religious contents, they may also be relevant – as a form of expansion of punishable preparation and participation – propaganda and proselytism activities, mainly consisting in the expression and/or dissemination of thoughts and opinions, with punishment for the glorification and for the publication and dissemination of papers or materials etc. (B.5).
19 The scope of indictment techniques and of formulations of the offences must always be correlated to the frame of the applicable sentencing in order to make possible both an « internal » comparison among the sentencing provided for the various offences in the matter, and an « external » comparison with the sentencing provided for equivalent « common » offences, in order to ascertain their proportionality with the degree and the typologies of harm to juridically protected interests (B.6).
20 (C) Together with the instruments having a penal nature, we need to take into account also the opportunity to turn to instruments having a different nature, particularly preventive measures, representing a privileged way of combating organized crime and terrorism « in advance ».
21 We must then analyze, from the point of view of substantive (not only procedural) criminal law, chiefly at an international level, the problem of victims of both very serious crime and of terrorism, whose fundamental rights are certainly threatened and violated in a particularly loathsome way as they are mostly innocent and defenceless persons. Their role may be specifically recognized both from the point of view of the formulation of the offences (type and degree of the punishment in respect of the danger or actual damage they may suffer) and from the point of view of the mechanisms (having a civil nature, or following extra-judicial agreements) having a compensatory or « restorative » nature that may arise.
22 (D) We will finally have to give some information about the ongoing proposals for reformations or normative modifications, and draw some final considerations and evaluations (E), starting from doctrinal and jurisprudential stances, on the exigency of protecting fundamental rights and basic guarantees (besides procedural guarantees) as they are acknowledged in international Charters and Conventions, as well as in national Constitutions on the matter of human rights.
23 A) General questions
24 1. Individuation of the manifestations of the phenomenon of globalization at an internal penal level.
25 2. General outlining of the general juridical system of preparatory acts and of participation in your system.
26 2.1. Preparatory acts :
27 2.1.1. Limits with reference to attempt.
28 2.1.2. Punishable preparatory acts (and/or conspiracy ?).
29 2.1.3. Field of applicability (general / specific for certain offences).
30 2.1.4. Applicable punishments : a comparison with the punishments applicable to the offences committed.
31 2.2. Participation :
32 2.2.1. Treatment of the acting in concert of individuals in the commission of the offence (categories of the criminal, instigation, cooperation, complicity...)
33 2.2.2. Regulation and sanction of the acts of participation.
34 3. Preparation and participation in relation to terrorism and other very serious forms of crime :
35 3.1. Does it exist, in your juridical regulations, explicit prescriptive definitions of « terrorism » and of other very serious crimes ? Are they complying or harmonized with the internationally established definitions (for example, with the Framework Decision of the European Union of 2002 against terrorism or with the UNO Convention of 2000 against multi-national organized crime)?
36 3.2. What are the constitutive (or differential) elements of these specific offences with regard to common offences ? The objective element (actus reus)? The subjective element (mens rea)?
37 3.3. In particular, does the incriminating or aggravating rule explicitly state that the perpetrator be acting in the pursuit of a specific intent (having a terrorist or subversive character, or concerning the aims of the criminal organization)?
38 1. Has there been an expansion of the forms of preparation and participation (for example, concerning offences in the matter of terrorism and other forms of very serious crime)?
39 1.1. Are the mere preparatory acts, such as the agreement or incitement not followed by the commission of the crime, punished as separate offences or as conspiracy ?
40 1.2. More particularly, are there specific indictments (and, if so, when have they been introduced) punishing separately such specific activities (as the recruitment, the training, the making or possession of falsified documents, the making, possession or purchasing of explosive substances or of weapons etc.), that take place prior to the actual carrying out of the acts of terrorism or of the criminal plan ?
41 1.3. Do more preparatory and/or accessory offences, in respect of the commission of these offences, exist ?
42 1.4. Are there cases where the same individual can be indicted and punished for the commission of one of these preparatory acts (for example, « recruitment ») and also for the commission of one of the offences representing the « final aim » (for example, « commission of an act of terrorism »)? and, possibly, also for the offence of association or participation in a terrorist or criminal group pursuing the same aim (infra, B.3)?
43 1.5. Are there regulations or special conditions for the penal relevance of the attempt in these fields of crime ? Which substantive or differentiating elements (concerning the objective or subjective element of the offence) do they possibly present if compared to the ones of the attempt for corresponding common offences ?
44 2. Are there special regulations or conditions for the penal relevance of the participation in the offence or for the punishment of complicity in these fields of crime ?
45 2.1. What are their constituent or differential elements in respect of those concerning the objective and subjective element of the complicity provided in common or corresponding offences ?
46 2.2. Are mere agreement or mere incitation (conspiracy) not followed by the commission of the offence in anyway punishable as separate offences or, possibly, as conspiracy ? Or are they punishable only in the case of terrorist offences and other very serious crimes ?
47 2.3. Does there exist at a procedural level (or through the indictment itself) a form of presumption or of simplification of the evidence of participation ?
48 2.4. Is there an explicit punishment for preparatory or collateral conduct, such as support, assistance, « external » help (on the part of non-associated individuals or through adequate social contributions, for example, on the part of a lawyer, a doctor...) to the activities and associations constituting very serious crime, or to individual associated ?
49 3. Is there a separate offence for « terrorist » association or organization or group, or for an organization addicted to very serious crime, with respect to the conspiracy or mere complicity in such crimes ? Or are common offences (if the case, aggravated) for criminal association applied ?
50 3.1. If specific offences exist, how are these criminal associations identified ? Does this identification depend upon the status of the individuals involved, by his/her/their inclusion in lists drawn up by the government authorities, or in similar lists, or by (material and/or moral) elements described in abstract terms by the law ?
51 3.2. What are the requirements constituting and/or characterizing a terrorist or criminal association or group (a certain number of participants, organizing requirements, distribution of roles, stability or terms of the organization or of the group, nature of the criminal plan, specific purposes pursued etc.)?
52 3.3. Is there a difference in sentencing between the mere participation and other more aggravating conduct (such as the constitution, the organization, the direction etc.)? Are there specific rules or conditions concerning the responsibility of members or leaders of the association for the commission of offences representing the purpose of the criminal association if they did not take an active part in the commission of the offence ?
53 4. Are the provisions and sanctions concerning the (penal or non-penal) liability of entities (legal persons), if they are in general provided in your national law, also applicable to the commission of acts of terrorism or other very serious crimes ? What is the relationship between such regulations and the criminal indictment of a terrorist or criminal association or group (subsidiary, alternative, cumulative etc.)?
54 5. Do there exist specific indictments for conduct consisting of the expression and/or dissemination of thought or opinions linked to terrorism, distinguishable from the possible penal relevance of the instigation to commit acts of terrorism or by other forms of moral participation or by assisting another to commit such acts ?
55 5.1. In particular, are glorification, ideological proselytism, the publication and circulation of papers and other matters, also audioisual and on the internet, propaganda etc. linked to terrorism, separately punished ?
56 5.2. What are the objective and subjective elements required for the liability of each of such acts to be punished ? When are they consummated ?
57 5.3. What is their sentence, as compared with the one provided for other acts of terrorism and/or corresponding common offences ?
58 5.4. What are their relationships and which problems may arise with respect to freedom of thought, freedom of opinion and expression, protected by international Charters and by democratic Constitutions ?
59 6. Is there a difference in the sentencing of anticipated forms of preparation and participation ? What is their nature and measure (from the point of view of the type and term of the applicable penalties, of possible supplementary penalties or measures, of the criteria to be applied, of possible specific regulations derogating common law)?
60 6.1. Is the enforcement of the above-mentioned penal indictments, what is the importance of the withdrawal from and/or a possible compensation, or of reconciliation with the victim/victims ?
61 6.2. Are there peculiarities concerning the actual enforcement of the penalty and of the sanctions or measures, particularly taking into account prison treatment and possible restrictions or conditions for the granting of prison benefits or other institutes in favour of prisoners ?
62 1. Do there exist specific preventive measures or other instruments having a non-penal nature to combat terrorist and very serious criminal activities and associations ? In particular, if non-nationals are involved ?
63 2. What is the importance of the role of victims in the formulation and enforcement of the above-mentioned penal indictments ?
64 1. Are there recent doctrinal or jurisprudential stances concerning the expansion of the forms of preparation and participation that might raise problems of compatibility with the fundamental rights acknowledged by international Charters and Conventions, as well as by the national Constitutions ?
65 2. Are there requests as to the revision or modification of the provisions considered ? What is their nature ? Which basic needs are they taking into account ?
66 3. Are there legislative reforms under discussion or in preparation ?
PLAN DE L'ARTICLE
- About the questionnaire
- B) Characteristics of the expansion of the forms of preparation and participation
- C) Other questions
- D) Reform proposals
- E) Final remarks
POUR CITER CET ARTICLE
Lorenzo Picotti « Topic I-General Part », Revue internationale de droit pénal 3/2006 (Vol. 77), p. 623-630.
URL : www.cairn.info/revue-internationale-de-droit-penal-2006-3-page-623.htm.
DOI : 10.3917/ridp.773.0623.