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Adverse Legal Consequences of Conviction and Their Removal: a Comparative Study (Part 2) Mirjan R

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Adverse Legal Consequences of Conviction and Their Removal: a Comparative Study (Part 2) Mirjan R Journal of Criminal Law and Criminology Volume 59 | Issue 4 Article 9 1969 Adverse Legal Consequences of Conviction and Their Removal: A Comparative Study (Part 2) Mirjan R. Damaska Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation Mirjan R. Damaska, Adverse Legal Consequences of Conviction and Their Removal: A Comparative Study (Part 2), 59 J. Crim. L. Criminology & Police Sci. 542 (1968) This Article is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. THE JouRNAL or CRmIMNAL LAW, CRIMINOLOGY AND POLICE SCIENCE Vol. 59, No. 4 Copyright @ 1968 by Northwestern University School of Law Printed in U.S.A. ADVERSE LEGAL CONSEQUENCES OF CONVICTION AND THEIR REMOVAL: A COMPARATIVE STUDY (PART 2) MIRJAN R. DAMASKA The author is professor of law on the faculty of the University of Zagreb (Yugoslavia). He holds a LL.M. degree from the University of Zagreb and a doctoral degree from the University of Ljubljana (Yugoslavia). In 1962 he received a Bicentennial Fellowship in Criminal Law from the University of Pennsylvania. He repeatedly lectured at the International Faculty of Comparative Law in Luxem- bourg. From 1966 to 1968 he taught Comparative, Socialist and Criminal Law as a visiting professor at the University of Pennsylvania. This study was originally made for the International Prisoners Aid Association and conceived as a pivotal point to which various national studies could later be related. The whole activity of the Association was connected with the Human Rights Year 1968 sponsored by the United Nations. In Part I of this two-part article, published in the September, 1968 issue of the Journal,the author described the variety of adverse collateral legal consequences flowing from criminal judgments in contemporary legal systems. After observing the origins and development of such collateral disabil- ities, the author noted that the trend is toward lessening the legal restrictions on former convicts. A comprehensive catalogue of consequences of conviction began in Part I and continues in Part II. The author concludes his study with a survey of methods by which adverse effects of conviction may be removed. III most European countries around the turn of the century. Effects of Conviction Entailing A milder form of this brain-child of the European Restriction of Freedom police state still exists in some countries. In Turkey In keeping with the limitations stated in the and West Germany, it is still technically a punish- introduction, we will not deal with restrictions of ment, even though efforts are being made to find its personal liberty inherent in the execution of prison "true nature" in non-penal security measures. sentences. Nor will we discuss various limitations In West Germany, the court never orders police imposed on convicts on probation or parole. surveillance. Instead, following conviction of Rather, our attention will be focused on restrictions certain offenses (mostly political offenses and some of freedom outlasting the definitive discharge- offenses against morality), the court may empower police surveillance and restrictions on residence and higher police officials to subject the convict to sur- travel. veillance upon his discharge from the institution. Police surveillance entails the removal of certain A. Police Surveillance: legal barriers to searches, and may also lead to This measure originated in the days of the prohibitions from frequenting certain places. The European absolute monarchies. Originally, surveil- measure is often criticized and allegedly seldom lance was ordered of persons who could not have used in practice. The new West German draft code been convicted for insufficency of evidence, al- of 1962 no longer mentions police surveillance. though a strong suspicion remained that they were In Italy, police surveillance is designed as a probably guilty. Following trial, these persons were security measure, and it is specifically spelled out neither definitely acquitted nor convicted. Their in the Penal CodeO8 that surveillance has to be case was only "tabled," as it were, and a further undertaken to promote reintegration of the of- mandatory consequence-police surveillance-was fender into society. This is, of course, the legisla- imposed. When the idea of the presumption of tor's aspiration. The mandatory imposition of innocence became prevalent, police surveillance surveillance in a great number of cases provides a was restricted to those cases where a person was 7 Sec. 38, P.C. actually convicted of certain serious crimes. 7 Art. 228. Even in this limited capacity, it was discarded by 7 Art. 230. 1968] CONSEQUENCES OF CONVICTION certain degree of inflexibility to the scheme. No was committed and job opportunities exist at his information was available as to its practical appli- birth-place. cation, or as to whether some agency other than Transportationto penal colonies (e.g., the notori- the police may not better perform the rehabilitative ous French rel6gation) amounts to restriction to a task. In Luxembourg, police surveillance may be certain locality. However, since problems of ordered for life.80 Outside of Europe, police surveil- "relegation" and similar measures are inextricably lance can be found, for instance, in Ethiopia," bound up with traditional punishments consisting Egypt,3 and Israel.P of deprivation of liberty, and for the further reason that they are connected with the problem of B. Obligatory Settlement in CertainLocality: multi-recidivism, transportation to penal colonies Until quite recently, this consequence of con- will not be further discussed. viction was very widespread; in contemporary legal systems, it is less frequently found, and the tend- C. Prohibitionfrom Living in Specified Localities: 8 ency to restrict its application seems noticeable Prohibition from living (usually also from ap- Variously regulated, it appears in such politically pearing) in specified localities, less restrictive than diverse countries as Ethiopia, Greece, Greenland, compulsory settlement, is still known in a great Israel, Portugal, Russia, Spain and Yugoslavia, but number of countries, e.g., Austria, Columbia, the somewhat unprecise language often made it Ethiopia, France, Greece, Italy, Norway, Portugal, difficult to determine the exact nature of the re- Russia, Spain, Switzerland, Venezuela, West striction. Typically, the statutes speak of obliga- Germany and Yugoslavia. tory "settlement," failing to mention whether or As can well be imagined, regulation of this meas- not the convict may leave his "settlement" for a ure varies widely from country to country. Some- short trip. Complementary regulations in some times the court (or administrative agency) draws countries (e.g., Yugoslavia) explicitly state that up a list of municipalities from which the convict is permission is required from police authorities even barred (e.g., France). More often the "prohibited for temporary absence. In most countries, obliga- zone" is determined by specifying the distance from tory settlement may be ordered by the court on the place where the crime has been committed conviction of serious crime. However, in Yugo- (e.g., Spain,8 and a number of Latin American slavia, its use is restricted to minor offenses at the countries which, like Columbia and Venezuela, fol- discretion of the police. Israel,which does not limit low the Spanish example). In Switzerland, the con- its use to minor crimes, also empowers the police to vict can be prohibited from settling in the "can- order obligatory settlement (coupled with the ton" where the crime has been committed, unless measure of police surveillance). Sometimes obliga- this happens to be his native "canton." s tory settlement is classified as a non-punitive the prohibition may be im- 8 5 86 In some countries, measure, and other times as a punishment. posed only by courts. In others, it is imposed either In all surveyed countries, it is temporary rather by courts or administrative authorities, or only by than permanent. the latter (e.g., Yugoslavia). Sometimes it is tech- Some codes attempt to reconcile this old criminal nically a punishment (e.g., France, Norway, law measure with modem penology. Thus, for in- Portugal, Russia and Spain); other times it is stance, the 1954 Penal Code of Greenland,generally labeled a non-punitive measure (Ethiopia, Greece, inspired by modern criminological thinking, pro- Italy, Yugoslavia). In modem times, it is, as a rule, vides that the convict can be restricted only to his a temporary restriction. An exception, in this re- native locality, provided compelling reasons exist spect, is found in Ethiopia where the court may for his removal from the locality where the crime impose a permanent ban. 9 While in the majority of 80 Art. 36, P.C. the countries the prohibition represents an inde- 81Art. 152, P.C. pendent sanction, in West Germany it depends on Art. 29, P.C. 8 0 83 Crime Prevention Ordinance of 1933, §§3(b), 13. the imposition of police surveillance 84This is the case in Russia. Compare Stepichev, The present prohibition has been subjected to Vvsylka kak inera ugolovuogo nakazaniia, 8 SOvETSKOn 83 Gosumnsrvo i PxAvo 106-08 (1958). Art. 88, P.C. 85Ethiopia, art. 151, P.C.; Greenland, art. 100, P.C.; 83Art. 45, Federal Constitution. Yugoslavia, Statute on Police Offenses. 89 Art. 150, P.C. 86Portugal, art. 62, P.C.; Russia, art. 25, P.C. 90Sec. 39, P.C. MIFJAN DAMASKA [Vol. 59 criticism for quite some time now as being in- E. Banishment from the Country: humane and at variance with attempts to reclaim Expulsion from the country following convic- the former convict. The justification of the pro- tion of crime is, in contemporary legal systems, hibition depends, to a great extent, on the practical seldom applied to citizens.
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