This handbook explores criminal law systems from around the world, with the express aim of stimulating comparison and discussion. General principles of criminal liability receive prominent coverage in each essay—including discussions of rationales for punishment, the role and design of criminal codes, the general structure of criminal liability, accounts of mens rea, and the rights that criminal law is designed to protect—before the authors turn to more specific offenses like homicide, theft, sexual offenses, victimless crimes, and terrorism.
This key reference covers all of the world's major legal systems—common, civil, Asian, and Islamic law traditions—with essays on sixteen countries on six different continents. The introduction places each country within traditional distinctions among legal systems and explores noteworthy similarities and differences among the countries covered, providing an ideal entry into the fascinating range of criminal law systems in use the world over.
This handbook explores criminal law systems from around the world, with the express aim of stimulating comparison and discussion. General principles of criminal liability receive prominent coverage in each essay—including discussions of rationales for punishment, the role and design of criminal codes, the general structure of criminal liability, accounts of mens rea, and the rights that criminal law is designed to protect—before the authors turn to more specific offenses like homicide, theft, sexual offenses, victimless crimes, and terrorism.
This key reference covers all of the world's major legal systems—common, civil, Asian, and Islamic law traditions—with essays on sixteen countries on six different continents. The introduction places each country within traditional distinctions among legal systems and explores noteworthy similarities and differences among the countries covered, providing an ideal entry into the fascinating range of criminal law systems in use the world over.
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Overview
This handbook explores criminal law systems from around the world, with the express aim of stimulating comparison and discussion. General principles of criminal liability receive prominent coverage in each essay—including discussions of rationales for punishment, the role and design of criminal codes, the general structure of criminal liability, accounts of mens rea, and the rights that criminal law is designed to protect—before the authors turn to more specific offenses like homicide, theft, sexual offenses, victimless crimes, and terrorism.
This key reference covers all of the world's major legal systems—common, civil, Asian, and Islamic law traditions—with essays on sixteen countries on six different continents. The introduction places each country within traditional distinctions among legal systems and explores noteworthy similarities and differences among the countries covered, providing an ideal entry into the fascinating range of criminal law systems in use the world over.
Product Details
| ISBN-13: | 9780804777292 |
|---|---|
| Publisher: | Stanford Law Books |
| Publication date: | 12/01/2010 |
| Sold by: | Barnes & Noble |
| Format: | eBook |
| Pages: | 672 |
| File size: | 910 KB |
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THE HANDBOOK OF COMPARATIVE CRIMINAL LAW
Stanford University Press
Copyright © 2011 Board of Trustees of the Leland Stanford Junior UniversityAll right reserved.
ISBN: 978-0-8047-5758-4
Chapter One
ARGENTINAMarcelo Ferrante
I. Introduction A. Historical Sketch B. The Constitution and the Criminal Law (Judicial Review and Juries) C. Jurisdiction D. Legality Principle
II. General Part A. Theories of Punishment B. Liability Requirements C. Defenses
III. Special Part A. Structure B. Homicide C. Sex Offenses D. Property Offenses
I. INTRODUCTION
A. Historical Sketch
Argentine criminal law, as we now conceive of it, began in the second half of the nineteenth century with the first attempts at enacting a criminal code under the 1853 constitution. The centerpiece of current Argentine criminal law is the Criminal Code (the Código Penal, or CP), which was enacted by the federal Congress in 1921. The 1921 code put an end to a long period of debates over criminal law reform that the constitution had mandated almost seventy years earlier.
That period had begun with public discussion—within both the federal Congress and the provincial governments—of the first official draft of a national criminal code. Th is first draft, known as the Tejedor Code after its author, jurist Carlos Tejedor, was heavily influenced by the Bavarian Criminal Code of 1813 draft ed by Anselm Ritter von Feuerbach. A deeply modifi ed version of the Tejedor Code was finally enacted as the first national criminal code in 1887. Once enacted, the code underwent several reforms and amendments—typically in the form of special criminal statutes—in only a few years. It seemed that the constitutional ideal of unified legislation through the adoption of stable codes had yet to be achieved. Several alternative criminal codes were thus proposed in those years to the Congress and the executive to replace the 1887 criminal code. One of them, the 1891 Criminal Code Draft, eventually led, in 1903, to an important reform of the 1887 code. The 1891 draft had been influenced primarily by the Italian Criminal Code of 1889, also known as the Zanardelli Code after the then Italian minister of justice, Giuseppe Zanardelli. The code that the Congress enacted in 1921, oft en referred to as the Moreno Code after Rodolfo Moreno (h), the congressman who led the drafting and enacting process, was meant to capture in a simple and pragmatically oriented text the basics of the Tejedor Code and the 1891 draft. Unlike its immediate antecedents, it was the work of no individual drafter, but the result of a collective drafting process that managed to engage representative members of the different groups whose conflicting views had contributed to the instability of the previous legislative attempts (i.e., scholars with conflicting legal approaches, practitioners, and judges and other officials).
As its salient antecedents suggest—especially the Bavarian Code of 1813 and the Zanardelli Code—the 1921 code (the CP) falls within the liberal codification tradition of the nineteenth century. It is brief and relatively simple. It established a simple regime of sanctions, comprising primarily imprisonment and secondly fines and incapacitation to perform certain activities (like holding official positions or exercising a given profession). The CP indeed marks the abolition of capital punishment in Argentine criminal law. In general, prison terms in the CP were comparatively mild, with a maximum prison term of 25 years—only after a 2004 reform could the maximum imprisonment time mount up to 50 years in the case of the commission of a plurality of crimes (article 55). It introduced a regime of conditional convictions for first-time off enders (articles 26–28) and of freedom on parole (or conditional freedom) for the last third of the sentence (articles 13–17). Its general part was written with a pragmatic eye; besides adopting general rules for the application of the criminal law, including a statute of limitations, it included only a narrow set of simple rules of responsibility, avoiding definitions that might have shown commitment to a particular theoretical position. In particular, it included a list of substantive defenses (article 34), rules of attempt liability (articles 42–44) and of accomplice liability (articles 45–49), and a few rules for the aggregation of convictions and sentences (articles 54–58).
The special part of the CP contained fewer than 250 rules defining crime types and affixing sanctions—typically ranges of punishment, with legal minima and maxima (e.g., from 8 to 25 years' imprisonment for criminal homicide, article 79). Crime types are ordered by the kind of interest affected, starting with personal life and following with bodily integrity, honor or reputation, personal status and identity, basic freedoms (like freedom from sex abuses, freedom of movement, and freedom from intrusion in one's home and other protected places), property, public safety, political order, and other public goods (such as those secured by legal currency and other documents).
The CP is still the centerpiece of Argentine criminal law. In the meantime it has undergone many relatively marginal reforms and amendments, which in the aggregate have introduced complexity in an otherwise relatively simple text, often affecting the code's systematicity—especially by altering its punishment schedule. To cite just one example, possessing explosives is now subject to higher penalties (5 to 15 years' imprisonment, article 189 bis) than making those same explosives explode and thus risking or actually destroying goods or even endangering another person's life (3 to 10 years' imprisonment, or up to 15 years in case of risk of death, article 186). In addition, many special statutes containing criminal clauses—typically introducing new crime types—have been passed in the ninety years since the adoption of the CP. All in all, the CP still rules the basics of the general principles of criminal liability, the definition of most core crimes, and the punishments affixed to them.
B. The Constitution and the Criminal Law (Judicial Review and Juries)
Argentine law is based on its 1853 written constitution, which was modeled after the U.S. Constitution. Very roughly, the Argentine constitution is a nineteenth-century liberal constitution, establishing a government in three branches—though more biased toward the executive than its American model—and a strong set of individual rights of liberal and republican lineage. Laws are passed primarily by the federal Congress, and in the legal domains of common jurisdiction (i.e., civil, commercial, labor, and criminal law) it has done so (observing a constitutional mandate) by adopting national codes. Argentine law thus combines an American-like constitutional law with nonconstitutional legal codes of a civil law tradition.
As is the case under its American model, Argentine constitutional law establishes a system of diff use judicial review, under which each and every judge, in any judicial case, has the power to evaluate the constitutionality of the applicable law and to refuse to apply it if it is found unconstitutional. My impression is that there have been only a few sustained declarations of unconstitutionality in the domain of substantive criminal law during Argentine constitutional history. Part of this story may be due to a kind of resistance of the courts to declare statutes unconstitutional.
This resistance may be exemplified by introducing another feature of Argentine criminal law that is worth comment. Criminal trials are conducted before professional, life-tenured judges, appointed either by the national government through a complex process in which the three government branches intervene or by a provincial government through variable pro cesses. In striking contrast with this practice, the constitution states that "every criminal trial ... shall be decided by juries" (article 118). Indeed, under the constitution, an express constitutional task of the Congress is that of "promoting the establishment of the trial by juries" (article 24) by adopting the statutes that such a task may require (article 75, section 12). However, after more than 150 years of constitutional life, no such statute has ever been passed, although many have been proposed. From time to time a criminal case appears in which the defendant moves for a dismissal on the ground that he or she has a constitutional right to be judged by a jury rather than by the professional judge who is hearing his or her case. Courts have invariably rejected such motions, typically on the argument that there is no operational constitutional right to be judged by juries; the constitution has placed no term, and therefore, the argument goes, it is for the Congress to determine the proper time to reform criminal procedures by adopting a regime of trial by juries. That courts are prepared to make this argument even today, after more than 150 years of congressional inactivity on this issue, I take to be a peculiar feature of Argentine practice of judicial review.
C. Jurisdiction
Argentine criminal law is territorial. As affirmed in article 1, section 1, of the CP, the code is applicable to crimes committed, or "whose effects should occur," within Argentine territory, which is conventionally understood to comprise land, jurisdictional waters, and airspace, Argentine boats navigating on international waters, and Argentine aircraft flying through international airspace.
There are two legal exceptions to territorial jurisdiction. The first exception is afforded by article 1, section 2, of the CP: Argentine criminal law is applicable to crimes committed by Argentine "official agents or employees" while discharging their official duties outside Argentine territory. The second exception is provided by article 118 of the constitution, which claims federal jurisdiction over crimes committed "beyond the borders of the Nation, against the Law of Peoples," a clause that is understood as a constitutional commitment to universal jurisdiction for international law crimes.
Another jurisdictional feature that should be of interest has to do with federalism. Argentine constitutional distribution of power between the federal government, on the one hand, and the provinces, on the other, is such that it gives the federal government the task of legislating on substantive issues—including the adoption of, among other codes, a criminal code—while leaving to the provinces the tasks of legislating on procedural issues and of interpreting and applying the substantive laws adopted by the national government. Thus, even though there is only one criminal code that is applicable in every province, there may be as many interpretations of it as there are provinces—but no more than that, because each of the twenty-four provinces has procedural mechanisms to unify the interpretation of the substantive law within the provincial jurisdiction. The impact of this decentralization of the interpretation of a common code has proved less dramatic than it could have been. Still, there are interpretive differences from jurisdiction to jurisdiction, especially in the realm of the special part of the criminal law. For example, under article 163, section 6, of the CP, the misappropriation of "vehicles left on the street or other places of public access" is an aggravated form of theft. Within some jurisdictions a bicycle amounts to a "vehicle" as this term figures in article 163, section 6, whereas in others only motor vehicles count as "vehicles" in the legal sense, on the theory that this was the original meaning of the statute.
D. Legality Principle
Like any other criminal law that is governed by a liberal constitution, Argentine criminal law is subject to the so-called principle of legality. Indeed, the constitution provides for legality together with other liberal guarantees of mostly procedural nature in the first clause of article 18, which states that no one shall ever be punished "without a prior trial based on a statute that is itself prior to the facts of the case on trial." Courts—especially the Supreme Court—have interpreted this clause of the constitution as encompassing essentially four doctrines: (i) the prohibition of ex post facto criminal laws (the lex praevia requirement); (ii) the prohibition of criminal law sources other than statutes passed by the Congress (the lex scripta requirement); (iii) the void- for- vagueness doctrine (the fl ip side of the lex certa requirement); and (iv) the requirement of strict judicial construction (the lex stricta requirement). (International treaties on human rights signed by the government during the twentieth century, which have constitutional status since a 1994 constitutional reform, have given textual support to some of these doctrines that the courts had previously inferred only from article 18's nonretroactivity clause.)
These four doctrines do not have the same weight. The judicial practice appears to be that whereas the lex praevia requirement is as strict as a rule (a rule, that is, with one exception: the retroactivity of more lenient laws), the other three doctrines work as more or less weak principles that compete with other considerations on a case-by-case basis.
The case Arancibia-Clavel is revealing. Defendant Arancibia-Clavel was convicted on murder and conspiracy charges in 2000. He had been an official of the Chilean dictatorship working in Argentina with the support of the local government—his work being kidnapping and murdering opponents of the Chilean dictatorship. The facts of the case had taken place between 1974 and 1978, far beyond the maximum fifteen-year term of the statute of limitations. The court, however, considered the crimes committed by Arancibia-Clavel to be crimes against humanity according to international law and therefore not subject to statutory limitations. The defendant appealed on the claim (among others) that at the time of commission his crimes were subject to the statute of limitations of domestic law—the Argentine Congress approved the International Convention on the Nonapplicability of Statutory Limitations to War Crimes and Crimes against Humanity only in 1995. Before that date there was only an unqualified statute of limitations, with no exception made for crimes against humanity. The Supreme Court ultimately affirmed the conviction on the argument that, in holding the statute of limitations inapplicable to the crimes committed by Arancibia-Clavel in the 1970s, the trial court could not validly have applied the 1995 statute approving the International Convention on the Non- applicability of Statutory Limitations to War Crimes and Crimes against Humanity because that would have amounted to an unconstitutional retroactive application of a criminal statute. Th e statute of limitations was nevertheless inapplicable to the case, the Supreme Court held, in virtue of international law (mostly of nonconventional nature) that was binding on Argentina already in the early 1970s.
The Arancibia-Clavel case exemplifies two aspects of the Argentine lex praevia requirement that I think are worth emphasizing. The first aspect concerns the requirement's scope. Although Argentine courts have denied that the requirement applies to merely procedural criminal law, they have classed statutes of limitations as nonprocedural criminal law to which the requirement does apply. Thus, in contrast to prevailing American and Europe an case law, Argentine case law is such that the lex praevia requirement bars the retroactive extension of the term of a statute of limitations even in cases where the prior limitation term has not expired at the time when the extension is approved.
The second aspect relates to the weight of the lex praevia requirement in comparison with the rest of the legality doctrines. Courts are unwilling to tolerate exceptions to the lex praevia requirement, other than the legally established exception for more lenient criminal laws, but they are open to considering deviations from the other requirements. Indeed, in cases like Arancibia-Clavel and other comparable cases courts take pains to find what the law was at the time of commission, suggesting that there is no room for a judicial exception to the ban on ex post facto criminal laws, while they accept that what counts as the law may be norms other than statutes passed by Congress—for example, international nonconventional law—and hence deviate from the lex scripta requirement.
(Continues...)
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Table of Contents
Contents
Introduction: Comparative Criminal Law Kevin Jon Heller and Markus D. Dubber....................1Argentina Marcelo Ferrante....................12
Australia Simon Bronitt....................49
Canada Kent Roach....................97
China Wei Luo....................137
Egypt Sadiq Reza....................179
France Catherine Elliott....................209
Germany Thomas Weigend....................252
India Stanley Yeo....................288
Iran Stanley Yeo....................320
Israel Itzhak Kugler....................352
Japan John O. Haley....................393
Russia Stephen C. Thaman....................414
South Africa Jonathan Burchell....................455
Spain Carlos Gómez-Jara Díez and Luis E. Chiesa....................488
United Kingdom Andrew J. Ashworth....................531
United States Paul H. Robinson....................563
The Rome Statute of the International Criminal Court Kevin Jon Heller....................593
Index....................635