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  • CRIMINAL LAW I

    Introduction to Criminal Law and to the Penalty System

    LEIOA Jon-M. LANDA GOROSTIZA

    Associate Professor in Criminal Law Enara GARRO CARRERA

    Senior Lecturer in Criminal Law

    Second Academic Year First Semester

    Group Number: 261

    Academic Year 2014-2015 Law Faculty Biscay Section-

    University of the Basque Country (UPV-EHU)

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    CONTENTS 1. MAIN OBJECTIVE ......................................................................... 3

    2. SPECIFIC OBJECTIVES AND ABILITIES ................................. 3

    3. METHODOLOGY ........................................................................... 5

    4. DETAILED CALENDAR OF THE TERM ................................... 6

    5. PROGRAM: CONTENTS .............................................................. 7

    6. ASSESSMENT ................................................................................ 9

    7. BIBLIOGRAPHY ......................................................................... 10

    8. GENERAL ON LINE RESOURCES (CRIMINAL LAW & CRIMINOLOGY) ............................................................................. 11

    9. REVIEWS (CRIMINAL LAW & CRIMINOLOGY) ................ 13

    10. INTERNATIONAL SOCIETIES (CRIMINAL LAW & CRIMINOLOGY) ............................................................................. 15

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    1. 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

    aims 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

    also be taken into consideration in a systematic way.

    2. SPECIFIC OBJECTIVES AND ABILITIES

    Program : Part 1 (Lessons 1-4)

    (Lesson 1) At the end of the academic year, students should have the ability

    to distinguish between juridical and non-juridical concepts of criminal law.

    They should also be able to identify different elements of criminal law such

    as penalty, security measures, crime, penal law and so on.

    (Lesson 2-3) International criminal law and, in general, comparative

    perspectives between different jurisdictions will be a central part of the

    subject due to increasing trends of globalization that also influence criminal

    law definition and enforcement.

    (Lesson 4) A key point will 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

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    purpose we will draw our attention to some fundamental principles of

    criminal law that fulfil the function of setting limits to the power of any

    State under the rule of law.

    Program: Part 2

    (Lessons 5-6) The theory of penalties (sentencing) will be focused on in the

    second part of the program with the aim of gaining conceptual clarity. We

    will analyse penalties and their justification theories. 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 given over

    to doing 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 kinds of

    consequences linked with the criminal act. Some of those consequences

    refer 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 determines 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 particular attention to the Statutes of limitation and

    cancelation of criminal records.

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    3. METHODOLOGY

    In order to improve our knowledge and abilities in the field, we will

    combine theoretical lectures with practical sessions. Lectures will be run

    not in a vertical manner but will instead be a permanent dialogue between

    lecturer and students. The practical sessions 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 a bibliography, case law

    and the Criminal Code of Spain.

    From a methodological point of view, for the first block of the program

    (Lessons 1,2,3,4 and 5) lecturing will be the main tool, while for the second

    one (6,7 and 8) a more practical approach will be applied.

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    4. DETAILED CALENDAR OF THE TERM

    THEORETICAL LECTURES

    (LESSONS 1,2,3,4,5) Week 1: Presentation; Lesson 1

    Week 2: Lesson 1

    Week 3: Lesson 1

    Week 4: Lesson 2

    Week 5: Lesson 2

    Week 6: Lesson 3

    Week 7: Lesson 3

    Week 8: Lesson 4

    Week 9: Exam (Lessons 1 to 3)

    Week 10: Lesson 4

    Week 11: Lesson 4

    Week 12: Lesson 5

    Week 13: Lesson 5

    Week 14: Exam (Lessons 4 and 5; and practical exam)

    PRACTICAL SESSIONS

    (LESSONS 6,7,8) Week 4: Introduction

    Week 5: Introduction

    Week 6: Sentencing

    Week 7: Sentencing

    Week 8: Sentencing

    Week 9: Sentencing

    Week 10: Sentencing

    Week 11: Sentencing

    Week 12: Sentencing

    Week 13: Sentencing

    Week 14: Review

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    5. PROGRAM: CONTENTS

    PART ONE : 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. LESSON 4 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 (utility 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).

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    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. Spanish prison law: the essentials. 5.4.3. The present and future of European prison law and policy.

    PART TWO : 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 brief 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 SENTENCING. OTHER CRIMINAL CONSEQUENCES 7.1. Security measures. 7.2. Measures for minors. 7.3. Corporate liability. 7.4. Complementary consequences. LESSON 8 SENTENCING. CIVIL RESPONSIBILITY, COSTS OF PROCEDURE, STATUTES OF LIMITATIONS AND CANCELATION OF CRIMINAL RECORDS. 8.1. Civil responsibility and costs of procedure. 8.2. Statutes of limitation. 8.3. Cancelation of criminal records.

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    6. ASSESSMENT

    There will be a final written exam to check theoretical contents and

    practical abilities linked with the subject.

    However, following the philosophy of continuous assessment students

    who regularly attend lectures and practical sessions and efficiently fulfil

    certain requirements linked with both lectures and practical sessions, will

    not have to pass any final exam.

    For that purpose these are in detail the tasks that students will have to carry

    out and the assessment criteria there will be attached to them:

    REQUIREMENTS/TASKS: TOTAL SCORE 10 POINTS

    Compulsory attendance of every lecture and practical sessions: 1

    point.

    Readings of fundamental texts (6 pieces of work) for preparation of

    lectures with oral and/or written presentation: 2 point.

    Resolution of cases (practical sessions) with oral and/or written

    presentation: 1 point.

    Two written exams: 6 points

    o Theoretical exam of lessons 1,2 and 3: 2 points.

    o Theoretical exam of Lessons 4 and 5 and practical exam (at the last week of the term): 4 points.

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    7. BIBLIOGRAPHY

    ASHWORTH, Andrew/HORDER, Jeremy, Principles of Criminal Law, seventh edition, Oxford, 2013.

    ASHWORTH, Andrew, Sentencing and Criminal Justice, fifth edition,

    Cambridge, 2010.

    BACHMAIER, Lorena/DEL MORAL GARCIA, Antonio, Criminal Law in Spain, Austin/Boston/Chicago/New York/The Netherlands, 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, 2014.

    FLETCHER, George P., Rethinking Criminal Law, Oxford, 2000.

    HERRING, Jonathan, Criminal Law: text, cases and materials, fifth edition,

    Oxford, 2012.

    MIR PUIG, Santiago, Derecho Penal. Parte General, novena edicin, Barcelona, 2011.

    MAPELLI CAFFARENA, Borja, Consecuencias Jurdicas del Delito, quinta

    edicin, Madrid, 2011.

    MUOZ CONDE, Francisco/GARCIA ARAN, Mercedes, Derecho Penal. Parte General, octava edicin, Valencia, 2010.

    MUOZ CONDE, Francisco/HASSEMER, Winfried, Introduccin a la

    Criminologa y a la Poltica Criminal, Valencia, 2012.

    POLLOCK, Joycelyn M., Crime & Justice in America. An introduction to Criminal Justice, Amsterdam, 2nd edition, 2012.

    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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    8. GENERAL ON LINE RESOURCES (CRIMINAL LAW & CRIMINOLOGY) UNITED NATIONS CRIME AND JUSTICE INFORMATION NETWORK http://www.uncjin.org/index.html

    OXFORD UNIVERSITY PRESS---CRIMINAL LAW ON LINE RESOURCES http://www.oup.com/uk/orc/bin/9780199564712/01student/weblinks/

    EUROPEAN COMMISSIONJUSTICE---CRIMINAL LAW POLICY http://ec.europa.eu/justice/criminal/criminal-law-policy/ Australian Institute of Criminology www.aic.gov.au The Jill Dando Institute of Crime Science www.jdi.ucl.ac.uk Centre for Criminology Oxford www.crim.ox.ac.uk Institute of Criminology Cambridge www.crim.cam.ac.uk National Institute of Criminology www.okri.hu Kriminologische Zentralstelle www.krimz.de American Society of Criminology www.asc41.com British Society of Criminology www.britsoccrim.org Faculty of Law, Katholieke Universiteit Leuven www.law.kuleuven.ac.be Institute for the Study of Criminality and Law Enforcement (NSCR) www.nscr.nl The Centre for Criminological Research www.shef.ac.uk/ccr Institute for Criminology at the Faculty of Law of Tuebingen University www.ifk.jura.uni-tuebingen.de

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    INTERVICT (Tilburg University) www.tilburguniversity.nl/intervict Max Planck Institute for Foreign and International Criminal Law www.iuscrim.mpg.de Scottish Centre for Crime and Justice Research www.sccjr.ac.uk The Konstanz Repositories on Crime and Sanctioning www.uni-konstanz.de/rtf/ki Mexican Society of Criminology of the State of Nuevo Leon, NGO www.somecrimnlen.es.tl Nacro www.nacro.org.uk CrimLinks www.crimlinks.com World Criminal Justice Library Network newark.rutgers.edu/~wcjlen/WCJ/ "Criminology Linklist" (University of Tuebingen) www.ifk.jura.uni-tuebingen.de/www.html National Criminal Justice Reference Service www.ncjrs.org British Association for the Study and Prevention of Child Abuse and Neglect (BASPCAN) www.baspcan.org.uk Crime Reduction Website (UK) www.crimereduction.gov.uk The Internet Center for Corruption Research www.icgg.org Crime and Society: A comparative criminology tour of the world www-rohan.sdsu.edu/faculty/rwinslow

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    9. REVIEWS (CRIMINAL LAW & CRIMINOLOGY) British Journal of Criminology Oxford Press. Buffalo Criminal Law Review State University of New York Georgetown University American Criminal Law Review Journal of Criminal Law and Criminology Northwestern University. New England Journal on Civil and Criminal Confinement New England School of Law. Abstracts. The Berkeley Journal of Criminal Law University of California Berkeley Law School, Boalt Hall. University of Texas American Journal of Criminal Law University of Texas publication on criminal law. Washington College of Law Criminal Law Brief Western Criminology Review Western Society of Criminology. Full Text. European Criminal Law Review European Criminal Law Review New Journal of European Criminal Law Internet Journal of Criminology www.internetjournalofcriminology.com The British Journal of Criminology www.bjc.oupjournals.org European and International Research Group on Crime, Ethics and Social Philosophy (ERCES) www.erces.com International Observer on Crime Prevention Bulletin on Crime Prevention published monthly by the International Centre for Crime Prevention (ICPC) www.crime-prevention-intl.org/io_view.php Western Criminology Review wcr.sonoma.edu

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    The Criminologist ONLINE (ASC) www.asc41.com/criminologist.html Criminology in Europe (ESC) www.esc-eurocrim.org/newsletter.shtml International Bulletin on Community Safety and Indigenous Peoples (ICPC) www.crime-prevention-intl.org/vn Rivista di Criminologia, Vittimologia e Sicurezza (S.I.V.) www.vittimologia.it/rivista European Journal of Probation www.ejprob.ro The Newsletter of the International Juvenile Justice Observatory (IJJO) www.oijj.org/boletin_resultado.php

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    10. INTERNATIONAL SOCIETIES (CRIMINAL LAW & CRIMINOLOGY) International Society for Criminology (ISC), Socit Internationale de Criminologie (SIC) was established in 1938 as a non-governmental organization whose members are scientists and researchers, scholars and judges, all working in the field of criminology. It associates members of almost 70 countries from all over the world and enjoys an advisory status at the UN and the Council of Europe. The headquarters and general secretariat of ICS are in Paris. ISC has organized international criminological congresses every five years since 1938 (there had been 14 of them until now, the last one in 2005 was held in Philadelphia, USA). It has also organized international courses on criminology designed to promote criminology development by encouraging local initiatives. Annually publishes "International Annals of Criminology". ICSP has been a collective member of ISC. http://www.isc-sic.org/ http://crimsic.0fees.net/ www.perso.wanadoo.fr/societe.internationale.de.criminologie/ European Society of Criminology (ESC) was established in 2000 to promote mutual cooperation of professionals in the field of criminological reserch, education and training in Europe. www.esc-eurocrim.org United Nations Interregional Crime and Justice Research Institute (UNICRI) www.unicri.it European Institute for Crime Prevention and Control Affiliated with the UN (HEUNI) was established in 1981 in Helsinki. It is the European link in the network of institutes operating withing the framework of UN crime prevention and criminal justice. www.heuni.fi International Association of Penal Law (AIDP) was established in 1924, at present it is the main international professional institution oprating in the field of criminal justice and codification of criminal law, comparative criminal justice, international criminal law and human rights in criminal justice. www.penal.org Amnesty International (AI) www.amnesty.org International Institute for Restorative Practices (IIRP) www.iirp.org

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    International Scientific and Professional Advisory Council of the UN (ISCPAC) The goal of the council is to help to more effective promotion of UN programme for crime prevention and criminal justice by means of scientific institutions and international organizations whose activities step in this field. www.ispac-italy.org International Centre for the Prevention of Crime (ICPC) www.crime-prevention-intl.org World Society of Victimology (WSV) www.world-society-victimology.de European Forum for Victim - Offender Mediation and Restorative Justice (European Forum) www.euforumrj.org European Crime Prevention Network (EUCPN) was established by the Council of Europe decision in 2001. The main aim of the network is to contribute to the development of different aspects of crime prevention on the EU level and to support preventive activities on local and national level of the EU member states. The Czech Republic joined activities of EUCPN immediately after becoming a member of EU. European network of crime prevention associates state bodies representatives of the member states responsible for crime prevention, research institutions representatives and non-governmental organizations representatives. www.europa.eu.int/comm/justice_home/eucpn Permanent European Conference on Probation and Aftercare (CEP) www.cep-probation.org Penal Reform International (PRI) www.penalreform.org United Nations Crime and Justice Information Network (UNCJIN) www.uncjin.org United Nations Office on Drugs and Crime (UNODC) www.unodc.org

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