The imputability from the perspective of comparative law

Lex et Scientia Journal, 2011

The issue of imputation in penal law generated, through out the history, many controversies. The principal aim of this study is to clarify this concept, both in relation with the Romanian and foreign doctrine, and with the new provisions of the new Penal code, enforced by the Law nr. 286/2009. The new Penal code introduces, a new definition of the offence, containing the concept of "imputability". Our study is based both on the opinions of some foreign authors regarding the concept of imputability, imputation and Romanian authors.According to the Initiator (Ministry of Justice) the main justification for introducing this concept into the offence definition was that "a deed, in order to bring upon criminal responsibility, must not only to correspond with the legal description, to be unjustified, but also, the deed, must be able to be imputable to the offender; that means, the deed could be reproached to the offender. In order to discuss this concept of imputation, there are necessary some premises: the offender must have had the representation of his/her actions or inactions and the lack of any duress (the offender should not have been irresponsible, intoxicated or an under aged). In addition, the offender must have known the illicit character of the deed when committing the offence (the lack of error). Also, the study is structured in tree parts, fist beginning with the need for a definition of the offence, second part refers to the concept of offence in Romanian law; third part (the extended one) is dedicated to the essential features of the offence, with a special view on imputation/imputability.

Overview of the first draft of my Ph.D thesis “Impossibilità nel diritto: da “dovere implica potere” all’impossibilità normativa” [Impossibility in the Legal Domain: from “Ought Implies Can” to Normative Impossibility]. The project than focused only on impossibilities in the legal domain (see Ph.D. Thesis). Nonetheless, I am still working on OIC.

Back cover: Detail of the floor in the old library of the San Marco Convent in Florence, showing terracotta tiles and a pietra serena column. The clay and stone were taken from just outside the city, faithful to the tradition in central Italy that a town should be built in local stone and other materials. The foundational building blocks were known by all in the community, and centuries of use have made the buildings and towns of Tuscany more beautiful than ever. Similarly, it is important to nourish detailed awareness of the foundational building blocks of the discipline of international criminal law. Photograph: © CILRAP, 2018.

Maria Joana Relva, 2016

Using the bibliographic method, the institute of unimputability is observed, and the consequent security measure and its applicability in the penal system, pointing out its maximum duration, in line with the Federal Constitution. In a peripheral analysis, the psychopathic individual linked to crime is observed, as well as the type of penalty that the Brazilian penal system accepts in this sense. However, there is also a relationship between Law and other areas of knowledge, such as psychology and psychiatry, which helps in understanding these pathologies. Then there is an understanding of crime, penalty, and culpability, substantiating the imputability of these individuals considered sick by the law. The species and the application of the security measure are observed, also analyzing the preventive or provisional modality. The pacified understanding of the Courts, with support in the Constitution, in a systematic and teleological analysis of the Penal Code expressly prohibits life imprisonment. Therefore, it is concluded that the security measure, similar to other penalties, will have a maximum duration disciplined by the constitution.

2009

The new legal definition of the offense as provided by the Romanian Penal Code (Art. 15) from 2009 refers to a deed that complies with a statutory description, is culpable, unjustified and imputable to the person who committed it. The initial Draft proposal to eliminate the mention about culpability was finally rejected, but the mention about the imputability -considered by the Draft Explanatory Note as covering the domain which is traditionally correlated with culpability -was also maintained in the final form of the legal text and indicates together with the mention about the lack of justification the new direction in that the Romanian criminal law theory should further be developed. The aim of this paper is to provide arguments for stopping this development, pleading in the same time for a new lecture of the traded definition in the Art. 17 of the vigent Penal Code from 1968. Other than the innovations from 2009, the text stamming from 1968 may be considered even today at the stand of the present achieving in the criminal law theory.

The present article will seek to investigate the phenomena actually known as criminal compliance that, especially with the Law 9.613/1998, brings to the Brazilian criminal law scenario deeply and important modifications. We believe that the implementation of the so called compliance duties, especially with the advent of the new anti-money laundering law (Statute 12.683/2012), is responsible for the deterioration of the fundamental principle of nemo tenetur se detegere, characterized by the statal limitation in achieving evidences against the will of the suspect or the indicted. This new facet of penal intervention that mitigates and weakens constitutional rights of the jurisdictionalized integrates a larger context, that a long a time ago David Garland called as culture of control. The institutional modifications brought by the new law, inside this criminological vision may be better understood through the demonstration that the Brazilian State, as it happens in United States and some European countries, adopt an actuarial criminal politics, responsible, mostly, by the risk management and by the apparatus of governmentality dissemination, what, according to Foucault, will give rise to an actuation focused on prevention, precisely with the aim to gain security. // O presente artigo procurará investigar o fenômeno atualmente conhecido como criminal compliance, que especialmente com a Lei 9.613/1998, trouxe para o cenário do direito penal brasileiro importantes e profundas alterações. Acredita-se que a implementação dos denominados deveres de compliance seja responsável, especialmente com o advento da nova lei de lavagem de dinheiro (Lei 12.683/2012), pelo enfraquecimento do princípio fundamental do nemo tenetur se detegere, caracterizado pela limitação do Estado na obtenção de provas contra a vontade do suspeito ou acusado. Essa nova faceta da intervenção penal, que mitiga e enfraquece direitos constitucionais dos jurisdicionalizados, integra um contexto mais amplo, e que há bom tempo David Garland denominava como cultura do controle. As modificações institucionais trazidas pela nova lei, dentro dessa visão criminológica, podem ser mais bem compreendidas através da demonstração de que o Estado brasileiro, na esteira do que ocorreu nos Estados Unidos e em alguns países europeus, passa a adotar uma política criminal atuarial, responsável, sobretudo, pela gestão de riscos e pela disseminação de dispositivos de governamentalidade, que segundo Foucault, ensejarão uma atuação voltada para a prevenção, justamente com o fito de se obter segurança.

Revista Brasileira de Direito Processual Penal, 2021

This text presents two models of elimination of undesired evidence that operate in common law and continental law states. It analyses the mechanisms of blocking information from becoming evidence in a criminal trial which can be defined as the procedural instruments (solutions) adopted in a given model of criminal trial that allow for assessment and eventual elimination of inadmissible evidence as deemed to be undesired in the process of fact-finding. On the basis of a „model approach” it will be shown how such mechanisms of elimination (or blocking) of undesired evidence function in the United States and England, Germany, France, Poland and Italy. Also the stage of elimination will be analysed, as well as the type of procedure of applying a blockade. It will be explained in what ways the atomistic and holistic assessment of evidence work and what consequences they have. The last part of the text will show how the rationale for elimination of evidence in the form of illegality, unre...

The actio libera in causa doctrine, as originally formulated by various Enlightenment philosophers, concerns the imputation of responsibility to actors for actions unfree in themselves, but free in their causes. Like our Enlightenment counterparts, contemporary philosophers of criminal law, as well as most Western legal systems (both common law and civil), allow that persons can be responsible for acts that are not free when performed, provided they were free in their causes. The actio libera doctrine allows us to impute unfree actions to persons, provided they were responsible for causing the conditions of unfreedom that characterizes those actions when performed. This doctrine seems to be instantiated in a great many actual legal practices. But I argue that we must distinguish between two importantly different understandings of the doctrine itself and its application in law. On the one hand, the actio libera doctrine allows us to waive the voluntariness requirement that is generally needed for criminal liability. On the other hand, it disallows defendants to appeal to defences they would otherwise be entitled to use to block liability, if they culpably created the conditions of their own defence. The first case involves rules of imputation, while the second concerns culpability, and justifying the actio libera doctrine therefore faces different challenges in the two cases. This is a collection of original essays on the topic of actio libera in causa and its relations to other areas of substantive criminal law and doctrines in the general

Zeitschrift für Internationale Strafrechtswissenschaft, 2023

From the perspective of criminal law theory, the notion of impossibility continues to fascinate. The paper outlines core ideas of objectivist and subjectivist accounts and identifies conceptual problems that arise when someone attempts the impossible. Neither objectivist nor subjectivist accounts offer a conceptually satisfying answer on how to deal with impos-sibility. The majoritarian view does not fit either position and lacks a conceptually viable normtheoretical foundation. However, there is a way out of this predicament. The pro-posed solution consists of two elements: the (meta-level) relational theory of basic rights and a constructivist dis-course-theoretical concept of law. This approach leads to the conclusion that the question of whether there is a breach of a behavioural norm is not the core problem – the focus shifts to the question of whether there is a need to react to a norm breach. The agent is (generally) criminally liable if he or the observer understands the agent’s behaviour to be in breach of an incriminated behavioural norm. A breach of a behav-ioural norm is a necessary but not a sufficient condition for punishment.