CRIMINAL LAW I
Introduction to criminal law and to the penalty system
LEIOA
Jon-M. LANDA GOROSTIZA
Senior Lecturer in Criminal Law
Second Academic Year
Group Number: 261
2010-2011 Academic Year
Law Faculty –Bizkaiasection-
University of the Basque Country (UPV-EHU)
MAIN OBJECTIVE
The main objective of this subject is to provide an introduction to the concept of criminal law and to the system of penalties. This introduction intends to present the contents of the subject with a critical approach. Therefore, pure legal regulation will be systematically contrasted with a critical and ideal perspective on how criminal law should be organized in a democratic State. In approaching the concept of criminal law and the system of penalties, International Criminal Law and Comparative Law will be also taken into consideration in a systematic way.
SPECIFIC OBJECTIVES, ABILITIES AND CAPACITIES
First part of the program (Lessons 1-4)
(Lesson 1) At the end of the academic year students should have the ability to distinguish between juridical and non-juridical concept of criminal law. They should also be able to identify different elements of criminal law such as the penalty, security measures, crime, penal law and so on.
(Lesson 2-3) International criminal law and, in general, comparative perspective between different jurisdictions will be a central part of the subject due to increasing trends of globalization that alsoinfluence criminal law definition and enforcement.
(Lesson 4) A key point is going to be the capacity of approaching criminal phenomena both from the perspective of current legislation in force (de lege lata) and from an ideal point of view (de lege ferenda). For that purpose we will draw our attention to some fundamental principles of criminal law which fulfil the function of setting limits to the power of States under the rule of law.
Second part of the program
(Lessons 5-6) The theory of penalties will be focused on in the second part of the program with the aim of gaining conceptual clarity. We will analyse penalties and their justificationtheories. Students should be able to manage the compulsory rules of the Criminal Code of Spain (1995) for the application of penalties. Practical lectures will be partly dedicated to making exercises in order to calculate the exact penalties in certain sample cases. Nevertheless, among all the penalties, imprisonment will be considered in depth due to its significance and importance as a central penalty in both the Spanish and European systems. We will analyse the history of imprisonment, the different penitentiary models and the alternatives to avoid such a penalty.
(Lesson 7-8) Leaving aside penalties for adults, there are other kind of consequences linked with the criminal act. Some of those consequences are referred to special situations such as the case of security measures, measures for minors, corporate liability or complementary consequences, where the quality of the actor of the offence determine a special punitive reaction. Other consequences have a non penal nature such as civil responsibility or costs of procedure. Finally, we will deal with the closure of the criminal procedure paying attention to the Statutes of limitation and cancelation of criminal records.
METHODOLOGY
In order to improve our knowledge and abilities in the field we will combine theoretical lectures with practical sessions and a seminar. Lectures will be run not in a vertical manner but will be a permanent dialogue between lecturer and students instead. The practical sessions and the seminar will consist of two different dynamics: on the one hand, practical exercises based on real judicial material will be necessary to learn the mechanics for applying the rules of penalty enforcement. On the other hand, students will have to read –on their own or in groups- some fundamental books or articles that will be later discussed and presented in class.
The main tools during the academic year will be bibliography,case law and the Criminal Code of Spain.
From a methodological point of view, for a part of the first block of the program (Lessons 1,2, 4 and 5) lecturing will be the main tool, while for the second one (6,7 and 8) a more practical approach will be applied. The contents of the Lesson 3 (International Criminal Law) will be analysed in the framework of the Seminar.
DETAILED CALENDAR OF THE TERM
THEORETICAL LECTURES
THURDAY 9-11/9-10 a.m.
(LESSONS 1,2,4, 5)
15 SeptemberPRESENTATION
22 SeptemberLESSON 12 HOURS
29 SeptemberLESSON 12 HOURS
6 OctoberLESSON 22 HOURS
13 OctoberLESSON 22 HOURS
SEMINAR + MORE PRACTICAL SESSIONS
20 OctoberLESSON 41 HOURS
27 OctoberLESSON 41 HOURS
3 NovemberLESSON 41 HOURS
10 NovemberLESSON 41 HOURS
17 NovemberLESSON 51 HOURS
24 NovemberLESSON 51 HOURS
1 DecemberLESSON 51 HOURS
[8 december]
15 DecemberLESSON 51 HOURS
THEORETICAL-PRACTICAL SESSIONS
THURSDAY 11-12/10-12 a.m.
(LESSONS 6,7,8)
15 SeptemberPRESENTATION
22 September1 HOUR
29 September1 HOUR
6 October1 HOUR
13 October1 HOUR
SEMINAR + MORE PRACTICAL SESSIONS
20 October2 HOUR
27 October2 HOUR
3 November2 HOUR
10 November2 HOUR
17 November2 HOUR
24 November2 HOUR
1 December2 HOUR
[8 december]
15 December2 HOUR
PRACTICAL SESSIONS-SEMINAR
WEDNESDAY12 a.m.-14 p.m.
(LESSON 3)
INTERNATIONAL CRIMINAL LAW
19 October-IntroductionLESSON 32 HOURS
26 October-IntroductionLESSON 32 HOURS
STUDENTS: ESSAYS AND ORAL PRESENTATIONS BOTH OF CRIMES CONTENTS AND OF CASES RELATED TO THEM
2 NovemberLESSON 32 H. WAR CRIMES
9 NovemberLESSON 32 H.War Crimes-CASE
16 NovemberLESSON 32 H. CRIMES HUMANITY
23 NovemberLESSON 32 H. Crim. Humanity-CASE
30 DecemberLESSON 32 H. GENOCIDE
[7 december]
14 DecemberLESSON 32 H. Genocide-CASE
PROGRAM: CONTENTS
FIRST PART: LESSONS 1-5
LESSON 1 - CONCEPT OF CRIMINAL LAW
1.1.Criminal law: initial approach. What is a crime?
1.2.The contours of criminal liability.
1.3.Outline of the aims and functions of the Criminal Law.
1.4.Criminal Law in Spain.
LESSON 2- CRIMINAL LAW: JURISDICTION
2.1. General matters.
2.2. The temporal dimension in committing a crime.
2.3. State jurisdiction: the territorial principle.
2.4. Exceptional principles: the nationality principle, the protective or security principle, the universality principle and the passive personality principle..
2.5. Extradition, immunity, asylum.
LESSON 3- INTERNATIONAL CRIMINAL LAW
3.1. The notion of International Criminal Law.
3.2. General features of International Criminal Law.
3.3. The notion of international crimes.
3.4. Sources of International Criminal Law.
3.5. The historical evolution of international crimes.
3.6. The establishment of international criminal tribunals.
3.7. Substantive international criminal law: war crimes, crimes against humanity and genocide.
LESSON4 –CRIMINALISATION AND PRINCIPLES OF THE CRIMINAL LAW.
4.1. The principle of individual autonomy.
4.2. The principle of welfare.
4.3. The harm principle and public wrong (principle of legally protected interests).
4.4. The minimalist approach (utiliy and criminal law as a last resort: ultima ratio).
4.5. Morally wrong behaviour.
4.6. Remote harms.
4.7. The rule of law and fair procedures: principle of legality.
4.8. Principles relating to the conditions of liability: principle of culpability and proportionality.
4.9. Sentencing: principle of humanity of the penalties and principle of rehabilitation or reintegration into society (reference to Lesson 5).
LESSON 5 –FUNDAMENTALS OF SENTENCING
5.1. Historical evolution of the system of penalties: principle of humanity of the penalties and principle of rehabilitation or reintegration into society.
5.2. Theories of Punishment: the aims of punishment.
5.3. The Death penalty.
5.4. Prison.
5.4.1. The history of European prison law and policy.
5.4.2. The present and future of European prison law and policy.
SECOND PART: LESSONS 6-8
LESSON 6 SENTENCING IN SPAIN. PENALTIES
6.1. Common law and the Spanish Criminal Code: introduction.
6.1.1. Theory of crime: a very short introduction
6.1.2. System of penalties: first approach
6.2. Determination of penalties in the Spanish Criminal Code: basic (ordinary) rules (art. 61-72 Criminal Code 1995).
6.3. Determination of penalties in the Spanish Criminal Code: special rules (art. 73-79 Criminal Code 1995).
6.4. Imprisonment.
6.4.1. Penalties involving limitation of liberty in Spain.
6.4.2. Alternatives to imprisonment and how to avoid it: suspension and substitution.
6.4.3. The current penitentiary model in Spain.
6.5. Other kinds of penalties
6.5.1. Penalties which affects certain (other) rights (not liberty): withdrawal of honours, profession, driving license, gun license; prohibition of residence, restraining orders and so forth, with special mention to Community Services.
6.5.2. Fines.
6.5.3. Complementary penalties.
LESSON 7 OTHER CRIMINAL CONSECUENCES
7.1. Security measures.
7.2. Measures for minors.
7.3. Corporate liability.
7.4. Complementary consequences.
LESSON 8 CIVIL RESPONSIBILITY. COSTS OF PROCEDURE. STATUTES OF LIMITATIONS. CANCELATION OF CRIMINAL RECORDS.
8.1. Civil responsibility and costs of procedure.
8.2. Statutes of limitation.
8.3. Cancelation of criminal records.
EVALUATION
There will be a written exam to check theoretical contents and practical abilities linked with the subject.
However, following the philosophy of permanent evaluation students who regularly attend lectures and efficiently prepare practical and seminar sessionswill not have to pass any exam. For such students the final mark will be set depending on the work carried out throughout the whole of the academic year. For that purpose these are the kind of tasks students will have to carry out:
- Compulsory attendance of every lectures, practical sessions and seminar.
- Fundamental readings in advanced for preparation of lectures, practical sessions and seminar.
- Written summaries of lectures:
- A summary of the lecturing (one page) will be carried out by the students on a weekly basis. Each student in turn will do the oral presentation of his/her summary the following week at the beginning of the lecture during up to 10 minutes
- Written resolution of cases.
- A written essay for the seminar with oral presentation.
BIBLIOGRAPHY
- ASHWORTH, Andrew, Principles of Criminal Law, sixth edition, Oxford, 2009.
- ASHWORTH, Andrew, Sentencing and Criminal Justice, fifth edition, Cambridge, 2010.
- CASSESE, Antonio, International Criminal Law, second edition, Oxford, 2008.
- CASSESE, Antonio/ACQUAVIVA, Guido G./FAN, Mary/WHITING, Alex A., International Criminal Law: Cases and Commentary, Oxford, 2010.
- CLOUGH, Joanne/JACKSON, Adam/WORTLEY, Natalie, Nutshells. Criminal Law, Sweet & Maxwell, London, 2011.
- FLETCHER, George P., Rethinking Criminal Law, Oxford, 2000.
- HERRING, Jonathan, Criminal Law: text, cases and materials, fourth edition, Oxford, 2010.
- MIR PUIG, Santiago, Derecho Penal. Parte General, octava edición, Barcelona, 2008.
- MAPELLI CAFFARENA, Borja, Consecuencias Jurídicas del Delito, quinta edición, Madrid, 2011.
- MUÑOZ CONDE, Francisco, Derecho Penal. Parte General, octava edición, Valencia, 2010.
- VAN ZYL SMIT, Dirk/SNACKEN, Sonja, Principles of European Prison Law and Policy. Penology and Human Rights, Oxford, 2009/2011.
- WERLE, Gerhard, Principles of International Criminal Law, second edition, 2009.
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