Criminal Law. Dr Janja Hojnik Marec 2008. Definitions. Criminal law is concerned with conduct which the State considers should be punished; A criminal offence
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Criminal Law Dr Janja Hojnik Marec 2008
Definitions Criminal lawis concerned with conduct which the State considers should be punished; A criminal offence - unlawful conduct that is, owing to the danger it involves, so determined by the statute, the elements of which as well as the sentence are therein defined; - it may be committed by voluntary act or by omission.
Principles of Criminal Law No Criminal Offence or Sentence Without the Statute No sentence or other criminal sanction shall be imposed on any person for committing an offence that didnot constitute a criminal offence under the statute prior to being committed, and for which a sentence wasnot prescribed by the statute. No Punishment Without Proven Guilt A sentence may be imposed on the perpetrator only on condition that he is found guilty of committing acriminal offence.
Criminal liability The perpetrator who is found responsible for and guilty of an offence shall be held to be liable under criminal law. LIABILITY = RESPONSIBILITY + GUILT
GUILT The perpetrator shall be guilty if he has committed a criminal offence with intent or by negligence and when he must have or could have been aware that his conduct was unlawful. GUILT = INTENTION + NEGLIGENCE • Intention – desire or purpose • Negligence – no desire • Recklessness (involves foresight or awareness) • Negligence strictu senso (conduct which fails to measure up to the conduct of a reasonable person; it does not involve awareness)
Slovenian Penal Code (Art 17): A criminal offence shall be committed through negligence if the perpetrator was awarethat an unlawful consequence might result from his conduct but he nevertheless recklessly believed that he would prevent it from occurring or that it would not occur; or if he was not aware that such a consequence might occur but that he should have and could have been aware of that possibility under the given circumstances and with respect to his personal attributes.
Responsibility The perpetrator who, at the time of committing an offence, was not capable of understanding the meaning of his act or of controlling his own actions owing to any permanent or temporary mental disease, mental disorder etc. (insanity), shall not be held responsible for his actions. A reduced sentence may be applied to the perpetrator whose ability to understand the meaning of his act or to control his actions were substantially diminished due to any of the above states of mind (diminished responsibility).
Self-defence An act committed in self-defence does not constitute a criminal offence. Self-defence: such defence as is absolutely necessary for the perpetrator toavert an immediate and unlawful attack on himself or on any other person. Duress Any act committed under a coercion which the perpetrator was not able to withstand does notconstitute a criminal offence.
Necessity Any act committed of necessity does not constitute a criminal offence. Necessity: covers those situations in which the perpetrator has committed an act,otherwise containing all the elements of a criminal offence, in order to avert an immediate threat tohimself or to any other person which he has not caused himself and which could not have been averted inany other way, provided that the evil thus incurred does not exceed the evil which threatened him.
AttemptCriminal attempt: anybody who intentionally initiated a criminal offence but did not complete it is to be punished for the criminal attempt;Inappropriate attempt: the perpetrator has attempted to commit a criminal offence by inappropriate means or to injure aninappropriate object,
Parties to a Crime Principal– perpetrator, offender – commits the act; Complicity - two or more persons engaged jointly in the committing of a criminal offence by collaborating in the execution thereof (joint principals, accomplices) Criminal Solicitation – to intentionally solicit another person to commit a criminal offence or to procure someone to commit a crime Criminal Support – to intentionally support another person in the committing of a criminal offence.
Sentences • The following types of sentences may be imposed on perpetrators committing criminal offences (Art 34 of the Slovenian Penal Code): • 1) imprisonment • 2) fine; • 3) revoking of driving licence; • 4) deporting of foreign citizen from the country. • prescribed, reduced or extended sentence • (multi)recidivism • concurrence of criminal offences
ADMONITORY SANCTIONS • Suspended sentence: in applying a suspended sentence, the court shall pass a sentence which it will not carry out unlessthe offender, within a term of not less than one and not more than five years (the term of suspension),commits a further criminal offence; probation; • - a suspended sentence may be applied by the court • against the perpetrator of a criminal offence instead of a sentence; • revoking of suspended sentence due to further criminal offence; • Judicial Admonition: may be applied for a criminal offence for which a fine or a prison sentence not exceeding one year is prescribed, provided that such an offence has been committed in particularly mitigating circumstances.
SAFETY MEASURES The following safety measures may be ordered for perpetrators of criminal offences: 1) compulsory psychiatric treatment and custody in an appropriate institution; 2) compulsory psychiatric treatment in the community; 3) compulsory treatment of persons addicted to alcohol and drugs; 4) barring from performing occupation; 5) revoking of driving licence; 6) confiscation.
Offences agains the Person I Homicide – the killing of a man lawful (self-defence…) unlawful: - murder - manslaugter (~provocation) - infanticide– where a woman causes the death of her child at the time the balance of her mind was disturbed by reason of not having fully recovered from the effect of giving birth to the child; - causing death by reckless driving
Offences Agains the Person II …Unlawful: Assault (Bodily Harm, Battery) Obstruction of a Police Constable in the Execution of his Duty Sexual Offences: Rape Intercourse with minors under 15 Incest Indecency with children
Offences agains Property Theft/Larceny– dishonestly appropriating property belonging to another with the intention of permanently depriving the other of it Robbery– stealing and immediately using force or put a person in fear of being subjected to force Burglary – entering a building with intent therein to steal Taking a Motor Vehicle without Authority Fraud- obtaining pecuniary advantage by deception Blackmail - threatening to reveal substantially true information about a person to the public, a family member, or associates unless a demand made upon the victim is met
Offences against Property Forgery – making a false instrument in order that it may be used as genuine Trespass – use or threaten violence for the purpose of securing entry into any premises Bribery - offering, giving or receiving any item of value to influence the actions as an official or other person in discharge of a public or legal duty
Criminal Procedure … in the name of people • Prosecution • Accused, defendant, suspect, convict • Warrant – authorisation to arrest • Indictment (bill of ~) • Pleading • Examining witnesses (oath) • Deliberation – judgement – sentence – verdict (razsodba porotnikov!) • Appeal • Retrial • Probation v. Prison --- Parole