International Association of Penal Law International Society for Criminology International Society of Social Defence International Penal and Penitentiary Foundation
contnbution to the
SEVENTH UNITED NATIONS CONGRESS ON THE PREVENTION OF CRIME AND THE TREATMENT OF OFFENDERS
Milan. August 26"'- September 6"'1985
Criminal Justice Processes and Perspectives in a Changing w·orld Top1c 2) on the prov1s1onal agenda of the Seventh Congress
Documents submitted to the Milan International Congress (June 14'h-17'h 1983) organ1zed by the Ministry of Justice of Italy and the Centro Nazionale di Prevenzione e Difesa Sociale in cooperation with the Regione Lombardia and the Comune di Milano Edtfed by: Centro naz1onale di prevenz1one e d1fesa soc1ale Editor: Camilla Filippi Bookjacket: Eva D'Auria Bokor This Volume is published by the Centro Nazionale di Prevenzione e Difesa Sociale with the support of the International Penal and Penitentiary Foundation-IPPF 3
TABLE OF CONTE:NTS
Foreword page 5 MESSAGE by Mr Sandra PERTINI Prestdent of the Republtc of Italy page 7 ADDRESS by Mrs. Leticia R. SHAHAN! Assistant Secretary-General of the United Nations for Social Development and Humanitarian Affairs page 8 ADDRESS by M Erik HARREMOES, Director, Legal Affairs, Council of Europe page 11 ADDRESS by Mr. Virg1n10 ROGNONI Mmister of the Interior of Italy page 13 ADDRESS by Mr Clelio DARIDA Mmister of Justice of Italy page 16 GENERAL SCIENTIFIC QUESTIONS ON THE CONGRESS TOPIC by Mr. P1etro NUVOLONE (Milan University) page 20 INTRODUCTORY ADDRESS by Mr. Minoru SHIKITA Executive Secretary of the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders page 29 General Report of the INTERNATIONAL ASSOCIATION OF PENAL LAW by Mr. Chenf BASSIOUNI (DePaul University) page 36 General Report of the INTERNATIONAL SOCIETY FOR CRIMINOLOGY by J Albert REISS Jr. (Yale University) page 55 General Report of the INTERNATIONAL SOCIETY OF SOCIAL DEFENCE by Mrs. M1reille DELMAS-MARTY (Paris-sud University) page 67 General Report of the INTERNATIONAL PENAL AND PENITENTIARY FOUNDATION by Mr. Fran(fOIS CLERC (Fribourg University) page 81 SUMMARY REPORT by Mr. G1an Domenico PISAPIA (Milan University) page 88 List of Participants page 5
FOREWORD
The International Association of Penal Law, the International Society for Criminology, the International Society of Social Defence, the International Penal and Penitentiary Foundation convened in co-operation with the United Nations an International Congress in Milan, Italy, from 14th to 17th June 1983, at the invitation of the Ministry of Justice of Italy and of the Centro Nazionale di Prevenzione e Difesa Socia/e on occasion of celebra tion of its 35th anniversary. The focus of the discussion was on the Seventh United Nations Congress for the Prevention of Crime and the Treatment of Offenders, particularly with reference to agenda item 2) «Criminal Justice Processes and Perspect ives in a changing World», with a view of making available the special expertise and scientific input of these Organizations in this area. The Milan Congress was attended by the members of the Board of Directors of the four Organizations active in the field of criminal sciences, from over fourty countries, by the representatives of the Ministry of the Interior and of the Ministry of Justice of Italy, by local authorities, members of the judiciary, over experts and scholars and representatives of the United Nations. These four Organizations have effectively co-operated with the United Nations in the field of crime prevention and criminal justice since the beginning and contributed significantly to its work especially in preparation and during the United Nations Congresses organizing special Colloquia and submitting reports on various agenda items. To further improve the planning and implementation of joint activities, the four Organizations have established an International Committee for Co ordination whose chairmanship rotates on a triennial basis among the four Organizations and whose Executive Secretary is dr. Adolfo Beria di Argentine, Secretary-General of the Centro Nazionale di Prevenzione e Difesa Sociale. The deliberations of the Milan Congress focused on the addresses delivered by Mrs. L.R. Shahani, Assistant Secretary-General of the United Nations for Social Development and Humanitarian Affairs; Mr. E. Harre moes, Director, Legal Affairs, Council of Europe; Mr. V. Rognoni, Minister of the Interior of Italy; Mr. C. Darida, Minister of Justice of Italy; on the introductory reports by Mr. P. Nuvolone, Professor of penal Law, University of Milan and by Mr. M. Shikita, Executive Secretary of the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders; and on the General Reports of professor C. Bassiouni for the International Association of Penal Law; professor A.J. Reiss jr. for the International Society for Criminology; professor M. De/mas-Marty for the 6
International Society of Social Defence; professor F. Clerc for the Internatio nal Penal and Penitentiary Foundation. The report synthetizing the discussions of the Congress was prepared by professor G.D. Pisapia These reports constitute a significant scientific and academic contribution to the next Congress by the aforesaid Organizations which is hereby presented to the United Nations in response to the recommendations of the General Assembly and of the Economic and Social Council of UNO, calling for increased international cooperation in the field of crime prevention and criminal justice. The works of the Milan Congress as contained in this volume are intended to enhance the scientific character of the preparatory work for the United Nations Seventh Congress and their publication represents a further contribution to the wider dissemination among the members of the international community of the principles and ideals pursued by these four important Organizations.
Mino MARTINAZZOLI Giovanni SPADOLINI Minister of Justice of Italy Minister of Defence of Italy President of the Centro nazionale di prevenzione e difesa sociale Milan, March 1984 7
MESSAGE by Sandro PERTINI President of the Republic of Italy
I have great pleasure in extending a very warm welcome from our nation, together with my own personal greetings, to the Delegates of the United Nations, of the International Agencies, Scientific Organizations and Foundations, and to the experts and practitioners, all of whom have come together in Milan for this important meeting of research and confrontation which represents the first step in the co-ordinated programme of work launched by the General Assembly of UNO and aimed at promoting the development of criminal justice, in harmony with the uninterrupted amelioration of moral, economic and social conditions. To act as host to this distinguished international meetmg, made possible by the excellent organizational efforts of the Centro nazionale di prevenzione e difesa sociale is a cause for well deserved satisfaction and interest by Italy, which is not solely due to its high and ancient tradition for research and civic endeavour in the field of penal and criminological studies. It further evidences that among us, as elsewhere, there have become manifest the severe risks of a tardy and inadequate adjustment of the penal system, as a whole, to a social reality that is deeply marked by tumultuous and unpredictable evolutive processes. Terrorism, drug abuse, organized crime, economic crime - simply to cite the pathological aspects of a complex situation which is not exclusively characterized by such negative features - have represented, and still represent, for the community, an equal number of crucial challenges, to which it is essential to furnish a new and sufficient response, in terms of substantive norms, procedural institutions, organ izational structures and systems of prevention, sanction and rehabilitation. Both technical men and public opinion at large are well aware that in a situation with communications and exchanges on a truly global scale, the response to the most insidious forms of a closely-knit supra-national organized criminality can only derive from absolute agreement on general principles and close co-ordination of practical measures, without which the endeavour will be fatally ineffective. Insofar as these problems are of equal concern to the whole international community, so much the more do the methods and targets indicated by the United Nations deserve to be elaborated in depth on the theoretical plane. Just such a laudable objective, now set itself by this Congress, deserves all the heart-felt and consistent support of national legislators, governments and judicial practitioners. These are the auspices that today, at the opening of the Congress, I desire to formulate for all its participants, and at the same time extend my sincere and cordial good wishes to you for the successful outcome of your work. 8
ADDRESS by Leticia R. SHAHANI United Nations Assistant Secretary-General for Social Development and Humanitarian Affairs
Mr. Chairman, Your Excellency, Presidents and Secretaries-General of the Inter national Association of Penal Law, the International Society for Criminology, the International Society of Social Defence and the International Penal and Penitentiary Foundation, distinguished experts and guests, Ladies and Gentlemen; It is always a special pleasure to visit this lovely and hospitable country and it is a particular honour and a great pleasure for me to address this International Congress devoted to the consideration of one of the items of the provisional agenda of the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, namely, < Mr. Chairman, There has been a long-lasting tradition of close and mutually beneficial co-operation between the United Nations and the Four Major NGOs represented here. This tradition dates back to the same years of the establishment of the Centro, when the International Penal and Penitentiary Commission, the predecessor of the Inter national Penal and Penitentiary Foundation, transferred its functions to the United Nations. Since then and especially since the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in 1955, in Geneva, this tradition of close co-operation among the Four Major Non-Governmental organiza- 9 tions and the United Nations has developed in a very consistent and positive pattern. As many of you may recall, starting with the Fourth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Kyoto, in 1970, the International Society of Social Defence and the International Penal and Penitentiary Foundation presented a joint contribution on Criminality and Development. Later, on the occasion of the Fifth Congress, in 1975, the four Associations joined their forces for the scientific organization of an international colloquium on Deprivation of Liberty in the Context of Crime Control with particular reference to the new forms of delinquency. This was followed, in 1980, by another colloquium on Crime and Abuse of Power: Offences and Offenders Beyond the Reach of the Law? when an eloquent resolution was adopted by the four Organizations and submitted to the Economic and Social Council. The international colloquia held at Bellagio have been of enormous value, as acknowledged in the substantive documentation for the congresses and by the congresses themselves, and, most recently, at the Sixth United Nations Congress on the Prevention of Crime and the Treatment of Offenders held in Caracas, in 1980. Today this distinguished body again assists the United Nations with high-level expertise of world renowned specialists, scholars and policy-makers in the field of crime prevention and criminal justice, who are assembled here to share their knowledge on a topic to be considered by the Seventh United Nations Congress. Mr. Chairman, The topic selected by the Four Non-Governmental Organizations, for consideration during this International Congress, entails important concern requiring practical, action-oriented solutions. This topic calls for, in the first instance, an integrated approach to criminal justice: understood as a whole system operating in a dynamic socio-economic and cultural milieu. The Discussion Guide for the preparatory meetings of the Seventh United Nations Congress sets out the substantive concerns formulated by the United Nations Committee on Crime Prevention and Control, as approved by the Economic and Social Council. This document stresses the fact that the criminal justice system is bound to be affected by the constant changes taking place in our societies. Although I have used the expression «Criminal justice system,, in real1ty the components of criminal justice administration frequently operate independently of one another, and often at cross-purposes. Therefore, the word «System» remains a desideratum, mostly used by theoreticians, while in practice, the police, the prosecutors, the courts and the correctional authorities approach and fight the crime problem as hermetically encapsulated entities, all of which are subject and object of a variety of socio-economic, cultural and political factors and influences. Certainly, such a situation calls for efforts to integrate the work and the goals to be achieved in all criminal justice sectors, so that they may become more responsive to one another and, at the same time, more timely and dynamically oriented towards changing demographic and education patterns, social values and societal needs. This must be done in conformity with standards of human rights, as set forth in many international instruments recognized by the world community. The Seventh United Nations Congress will certainly appreciate your advice, as other Congresses have, as to how criminal justice systems can operate in a more coherent and efficient way and, in this context, how the criminal justice system may become more responsive to changing societal environments and realities. Mr. Chairman, The other topics of the Seventh Congress, outlined in the Discussion Guide, which has been distributed here, also reflect, I believe, many of your own concerns. These include: issues of crime in the context of development and socio-economic processes, such as urbanization and industrialization; the problems of youth, crime and justice, in view of the fact that 1985 will also be International Youth Year, another event being organized by the Centre for Social Development and Humanitarian 10 Affairs; the need to limit criminal victimization and to devise policies on behalf of victims to aid them in their quest for justice and redress; and the necessity to expand the network of internationally accepted guidelines, standards and norms in criminal justice as well as to increase their effective implementation. All of these issues relate to areas in which you have manifested interest, and can profit immensely from your consideration and input. The topic being discussed today is also related to another agenda item of the Seventh Congress, entitled «New dimensions of Criminality and Crime Prevention in the Context of Development: Challenges for the Future». This major comprehensive topic reflects the recognition that the socio-economic and cultural transformations occurring throughout the world pose difficult problems to all countries, from the most industrialized and rich to the poorest ones. Economic recession, unemployment, unbalanced income distribution and poverty enter the picture of everyday life much more visibly today than ever before and may bring with them tremendous social costs including disruption, violence and crime. This complex nature of crime calls for a multidisciplinary, integrated and intersector al approach to crime prevention and criminal justice in order to cope more effectively and humanely with the serious threat posed by criminality, especially in its new, more dangerous forms and dimensions. Criminologists, sociologists, educators, members of the media practitioners and criminal lawyers are in a position to combine their expertise with our efforts to prevent and control crime. However, in order to reduce the impact of crime, we must also seek and secure the active involvement of all other relevant sectors of public life- the entire community, the family and society-at-large - in order to plan, implement and co-ordinate appropriate policies and measures. In other words, criminal policy should not only be adequately formulated and planned, it should also be co-ordinated with strategies for social, economic, political and cultural development in mind. Through consideration of the draft «Guiding Principles for Crime Prevention and Criminal Justice in the Context of Development and a New International Economic Order••, the elaboration of which was requested by General Assembly resolution 36/21, topic I of the Seventh Congress focuses on broader structural questions, including those of equality, equity and social justice. In order to meet the special challenge of formulating these new guiding principles, there is a need for us to pool our knowledge and experiences. If we are to meet this challenge successfully, and I trust that we shall do so with your continuous co-operation and support, we can contribute to ensuring a better future, with more effective criminal justice and greater social justice for all. Mr. Chairman, The scientific contribution of your organizations has been invaluable to the United Nations, both in the institutional sense and 1n the significance of the work of your many distinguished members. The initiative taken by your Associations in their congresses, symposia, seminars and publications have paved the way for innovati ve, enlightened approaches based on new developments in the social and behavioural sciences, as well as in legal theory and practice, where the human dimension cannot be denied. While various professional organizations have played a significant advocacy role in promoting needed reforms in the field of crime prevention and criminal justice, yours have charted a course and made significant inroads towards an increased understanding of the complex processes involved in criminality and the formulation of more viable policy oriented action. We welcome, therefore, the results of your deliberations, with our assurance that your proposals and recommendations will be duly taken into account in the course of our work. Your assistance will make it easier for us to determine valid priorities and adopt viable strategies, so that we may together make great strides towards meeting our common goals. Thank you. 11 ADDRESS by Erik HARREMOES Director, Legal Affairs, Council of Europe Mr. Chairman, Right Honourable Ministers of Justice and of the Interior, Ladies and Gentlemen, It is a great honour for the Council of Europe to be represented at this Congress, convened by the Four Major Associations operating at an international level in the penal field and organized by the Centro nazionale di prevenzione e difesa sociale. It is also a pleasure for me personally to be here today, not only because 1t enables me to meet so many old friends and acquaintances, but also because it gives me the opportunity to place the Council of Europe in a broader framework. A few weeks ago, at a high level Ministerial meeting at Strasbourg, it was said that there are two organizations in Europe: the Europe of possibilities and the Europe of hopes and aspirations. The Council of Europe may be considered to represent the latter. The statement was not aimed specifically at the work done at Strasbourg in the criminal field. Indeed, I would wish to say the in this field the hopes and aspirations coincide with the possibilities. The balance-sheet of the last quarter of a century of the European Committee on penal questions shows that in this field Europe will become a reality on the day that all its Governments decide to ratify our ten or more Conventions which update reciprocal assistance between Member States. I would like to take advantage of the presence of the Italian Minister of Justice this morning to underline the Importance which the Council of Europe attaches to the adoption and implementation of its Conventions at the national level. The present Congress forms part of the careful and methodical preparation for the next United Nations Congress for the Prevention of Crime and the Treatment of Offenders. The Council of Europe's vocation is essentially a regional one. Our activities specifically embrace the situation in our Member States, linked as they are by geography, history and the common ideology of pluralist democracy. This is where our strength lies, enabling us to submit to our Governments realistic and sometimes even audacious proposals, always in close collaboration with scientifiC circles and representatives of the four Associations who are our hosts here today. But in front of people who have also come from other parts, I willingly accept that the work of the Council of Europe cannot be considered in isolation. It must be considered in a broader context and we are fully conscious of that fact. In short, regional organizations such as the Council of Europe play a triple role 1n their relations with organizations operating on a global scale. First, they have a complementary role: they are inspired by their works, they develop them and give them practical effect. Secondly, they can do pioneer work in proposing and testing new ideas or new projects, which are not sufficiently advanced to be discussed on a wider plane. Finally, the evolution which has come about within the United Nations Translated into Engltsh by David R. Gilbert, Bamster at Law, London 12 has enabled regional organizations to undertake a new role by submitting a common attitude of their Member States in relation to the problems discussed, and by expressing their own standpoint in international exchanges of points of view and negotiations. Thus the Council of Europe goes beyond its regional vocation to become a partner in the international concert, helping in the quest for adequate solutions to the great world problems, in the spirit of pluralist democracy and respect for the rights of man. Mr. Chairman, the timeliness of the theme - criminal justice processes and perspectives in a changing world -which will be debated here this week, proves - if proof were needed -the great interest of your meetings and the capacity of the four Associations to tackle the most current questions and seek to find solutions, not only on the European, but also on an international plane. What more burning issue is there in the world today than the search for justice, in relations between States, between States and individuals, and between individuals themselves? It is towards such a search for justice that the Council of Europe hopes to contribute its support and collaboration. Europe will not remain closed and parochially inward-looking. Mr. Chairman, Ladies and Gentlemen, an open enquiring mind is essential for all those in the juridical field who wish to keep in close touch with the evolution of our society, with the aim of finding solutions to the problems which afflict, espectally in this period of crisis, people in Europe and in the whole world. Such a spirit must reflect all that is most precious in our heritage, most cherished in our hopes. In fact, as Alcide de Gasperi, a pioneer of the Council of Europe, so aptly expressed it: "if we only construct common administrations ... we risk making international activities appear as superfluous and even oppressive trappings>>. On the threshold of 1984, with all its Orwellian connotations, we must not forget that it is by responding to the aspirations of citizens and their thirst for justice that our continent will achieve its true democratic dimension, thereby putting forward its contribution to the cause of international co-operation. We must always seek our guidance in the shining light of one beacon, that of liberty, justice, law - in short, the beacon of democracy. Thank you. 13 ADDRESS by Virginio ROGNONI Minister of the Interior of Italy The theme of this Congress - perspectives of criminal justice in a changing world - is certainly of great and timely interest for all countries, and in particular for Italy, which has suffered years of injury, from terrorism and criminality, and which for some time has been working out a complex and well-reasoned reform of its Codes of Law. The fact is that the administration of justice and legislative output in Italy have had to cope with problems specifically presented by organized crime and especially, during the most difficult «years of lead», by terrorism, and have thus needed to undertake measures capable to meeting the definite requirements for security and the right of people to live side by side in peace and safety. I must say that, in the face of the criminal and terrorist threat, the State has reacted with all its organs and structures: Parliament has revised the legislative system in recognition of the temporary period of «emergency •• ; the judiciary have done their part, specializing in wide-ranging, difficult and delicate investigations; law enforce ment system, thanks again to a more intensive co-ordination of its structures, has made an outstanding contribution in terms of effort, enhanced efficiency, on the technical plane and elsewhere, and renewed professionalism. Since the beginning of 1981, a new Law reforming the State Police system has given a marked impulse in this direction, ensuring, among other reforms, the unified direction of all police forces under the authority of the Minister of the Interior, as the person responsible for law and order and public safety in the whole country. In terms of operational reinforcement, special mention should be made of the establishment and strengthening of special squads of «quick reaction .. police, with a high level of training and professional competence, as was demonstrated in the liberation of Gen. Dozier of the US Army from the hands of the Red Brigade. Thanks to steps taken both at the administrative and legislative levels, terrorism - if not yet totally defeated - is suffering a crippling set-back in Italy: primarily at the military and organizational level, as the obvious result of a great number of arrests, the unearthing of «lairs" and logistic bases over the last 12-15 months, and most lately by the action performed, in the last few days, by criminal trials which are taking place in various Italian cities. But even more important, the crisis to which terrorism is now subject affects its «political objective», namely the malign plan of attacking and bringing down democratic institutions with the consent of the people, the popular masses. In this area we can now speak confidently of the bankruptcy of Italian terrorism, confirmation of which may be seen, in unmistakeable terms, in the isolation to which ordinary people, citizens and workers of every political and ideological persuasion, have relegated supporters of their insidious plots. , Such an attitude is also the clearest sign of popular solidarity behind the forces of Translated into English by David R Gilbert, Barrister at Law, London. 14 law and order and the Republican institutions of «this State, which, for all their imperfections- to which the political power must give increasing attention -stand as the guarantee of democracy and the freedom of all citizens. Moreover, even in the fight against terrorism, despite the need to bring in laws imposing some degree of sacrifice of individual rights in the cause of collective security, the State has never betrayed its democratic duty: every initiative, every regulation, has conformed rigorously to the tenets of Constitutional legality. As the Constitutional Court itself has recognized more than once, the guarantees of individual freedoms laid down in the Constitution have never been violated: Government and Parliament have always been at pains not to trespass across the threshold where it could be alleged that the Constitutional rights of citizens were being harmed. No extraordinary legislation has been passed, no extraordinary procedures have been established; justice has continued to be administered in accordance with standard laws and standard legal procedures: the State has not, thus, become that authoritarian monster, hostile to civil freedoms, which the terrorists wished to make it, so as to strengthen their hand in fighting it. We believe, indeed, that the recognition, reached by the terrorists themselves, of the collapse of their destructive aims, has led to the phenomenon of «repentance,,; in other words, the withdrawal, the dissociation, the ••farewell to arms,, of so many of their members and supporters. I should point out that this phenomenon of repentance has been met - but only after it has manifested itself - by the legislator in providing certain ••reward>> measures; it has been applicable to the accused already in custody, identified by the police and placed at the disposal of the judicial authority. It would be pointless to deny, that the information and evidence provided by ••repentant>> terrorists have made a major contribution to the success of major operations by the police and whole investigations by the judiciary. Nevertheless it must be stated that no evidence from such turned informers has been given undue weight in the course of legal proceedings. The big trials concerned with terrorism have always observed, and to this day still do observe, the strictest respect for procedural safeguards, and the accused in court - all of them - have had complete power to defend themselves, even from the accusations of their former comrades, by means of the classic instruments of cross-examination and open challenge to the admissibility of evidence. This reference to the correct administration of justice as the supreme confirmation of the principle of legality, according to the fundamental principles of the Constitution, permits me to return to the specific themes which will be debated at this International Congress. Among these I regard as outstanding the need for penal systems to adapt themselves - both on the substantive and procedural planes - to the new situations in various social contexts, in particular the presence of destructive phenomena such as terrorism and ruthless organized crime. I believe it is necessary that this process must always comply with the basic guarantees vouchsafed by the ordinary law and sanctioned (especially in regard to individual rights) by international Charters protecting human rights in criminal proceedings. If, in Italy - which has certainly been one of the States most afflicted by terrorist violence in recent years - we have managed to keep faith with the principles of Constitutional legality - even in the face of emotive reactions aroused by mad criminal acts intentionally directed, at times, indeed here in Milan, against members of the judiciary and police force - we have succeeded, or are about to succeed, rejecting every temptation to adopt authoritarian or repressive measures, in finding our way out of the darkness of terrorism, and providing an example of a democracy which can defend itself while still remaining democratic, it seems to me to augur well for all other countries that might find themselves in similar situations. It is, in any effect, a matter which merits the attention of this Congress. I would also say that, on the level of criminal justice, emergency situations call for an adequate response, yet without losing sight of the elementary safeguards and basic values imposed by a civilised jurisdiction today and adopted in the declarations of 15 the highest international organizations, beginning with the United Nations. Acknow ledgement of this fundamental duty is equal to the recognition that severe measures are needed to cope with the outrages of the Mafia and every other form of organized crime. The Mafia, as occured even yesterday in the ambush at Palermo, is waging war on the State, which, through its institutions and the men who loyally serve it, strives to guarantee the authority of the law, public peace and security, and the impartiality of public administration. These are the acts, now, of an enemy in retreat, of an adversary power which fears - with good reason - the effects of the recent initiatives of the Government and Parliament, the growing professionalism of the forces of law and order, and the first breaches in the wall of omerta. To this situation, as with the threat of terrorism, the State will respond, today more than ever, with the utmost determination. The steadiness of political forces, and the severity of their actions, which must be safeguarded by contingent or special operational instruments, are a fundamental component of that firm and essential response. 16 ADDRESS by Clelio DARIDA Minister of Justice of Italy I would like, first of all, to extend my most sincere greetings to all those participating in this important International Congress, which brings together, in Milan, members of the four Associations and the leading national and international experts in the penal and criminological field; it serves as further confirmation of the valuable initiative taken by the Centro nazionale di prevenzione e difesa sociale in collaboration with the Ministry of Justice. The subject of the Conference appears particularly important and interesting, since not only will it permit an overall view to be drawn up of the functioning of criminal justice in the various countries of the world, but will also vouchsafe us a look towards the future, in the endeavour to anticipate the trends of criminality and assess the means and possibilities of the response by the penal system as a whole to such trends. The international community and individual countries live in a state of great concern and uncertainty in the face of the growth of criminal activity. Just when peoples and social groups are applying increasing efforts to achieve for the greatest number of men conditions of well-being and security - including among such endeavours the fight against inflation - criminal currents seem to be developing, in a geometric progression compared with the development of the economy and with the international financial and industrial relations. It would even appear that the way ahead for modern society, its institutions and cultural standards, must have as its fatal and inevitable feature the growth of crime and all forms of unlawful activity. It is clear that such a degrading parallelism is absolutely intolerable to the civil conscience and that it is incumbent upon all States to tackle the fight against crime with resolve and determination. There has been much debate, which still continues, as to whether this or that aspect of criminal justice should be reinforced, with the result, sometimes, of concentrating the central problem of the struggle against delinquency solely into the preventive aspect, or the repressive aspect, or the court stage of the proceedings. For my part, I believe, above all, that one cannot, and must not, doubt the ideal and conceptual unity of the system of criminal justice, insofar as every element of it has the same goal, namely the prevention and control of criminality. As is well known, the penal system is based on three quite distinct stages: the police, the courts and the correction system. They all, however, are facets of a single function: that of social defence. Yet it cannot be denied that there exist problems of co-ordination at the operational stage - in order to overcome the centrifugal tendencies which could prejudice the unity of the system. This phenomenon may be seen at the level of the police force, which sometimes may see itself as carrying the main burden in the fight against crime. Such a temptation, Translated mto English by David R Gilbert, Bamster at Law, London. 17 we must admit, is often shared by the popular "culture", which tends to see the activity of the police as immediate and autonomous, unshackled by the work of the courts, which they see, at best, as a remote and distant authority. For its part, the judiciary, with its closer concern with legal rules and procedures and comparatively more distant from social and criminal reality, may sometimes be tempted to enclose inself in its own formal structure, so denying the concept whereby it forms an integral part of a broader system. Public opinion, in its turn, may be induced to perceive the judicial mechanisms as complex and distant. To some, the operation of those mechanisms appears enmeshed in ritual formulas, whose results seem sometimes even fortuitous. Finally, the penitentiary institutions are often inclined to look upon the other two arms of the system solely as organs supplying ••Clients>> to the penitentiary sub-system. As a result, the task of guarding and re-educating prison immates comes to be regarded as if it were separated from the whole social-institutional system: in other words, as an end in itself. It is not uncommon, at the end of the day, that this and the other branches come to generate their own philosophies and objectives, thereby distorting the unitary theoretical vision. It is of course not easy to eliminate totally such centrifugal pressure existing in the various components of the penal system; nevertheless, a steady effort at rationaliza tion can and must be made, involving the various sub-systems in the most systematic and dedicated collaborative endeavour. Thus, the responsible people in the various components will be able to become increasingly aware of the links connecting the separate parts of the system and, above all, of the fact that the efficiency of the single parts must be assessed, not separately and for itself alone, but in relation to their respective capacities to contribute to the overall final objective. The interdependence of the various arms of the system. Social change, in its turn, has helped to aggravate the so-called ••Crisis of justice,,, which, in its reference to the value of certainty in the law, has come up against the needs of a changing society, characterized by increasingly urgent innovation, not only in the technological sector, but also, and especially, in the economic and cultural sector. Society in a state of evolution has presented the judicial system with ever more pressing demands to make the necessary adjust ments to its structures and aims, but has frequently been met with a response that is tardy and even contradictory - which has helped to bring about a widespread feeling of distrust in the administration of justice. The rise in crime, especially organized crime whether for political or other ends, has been another factor placing great strain upon the institutional system, which has been obliged to deal with growing or partially new phenomena, using resources and structures that are often deficient or archaic. In this context, nevertheless, we should not fail to record with some pride the significant success achieved in the fight against terrorism, which today seems to have been broken, even if not totally extirpated, by the force of the law. It seems difficult to forecast the future as regards the trends of criminality, both at the national and international level, and the tasks that will need to be tackled by the system of criminal justice. This fact was recognized also in the course of the Fifth Criminological Colloquium held at Strasbourg in November 1981, which was devoted to comparative studies on trends in criminality. It is probably right to maintain, though cautiously, that the emerging types of criminality which will pose the greatest threat to social, economic and political structures of the Western countries will come from organized crime, both general and political in nature, from economic crime and from technological crime (in particular from the so-called computer crime). It is therefore highly likely that before long the challenge of survival, at least in some democratic societies, will be thrown down before the system of criminal justice, which will be called upon to combat, more and more decisively, among other crimes, the malign infection of institutions by occult centres of power with distinctly criminal aims. For this reason too, strenuous efforts must be intensified to establish a strong system of prevention. Many things have to be done, but in my view the following steps, at the very least, are essential. 18 On the normative level, minor offence should be further decriminalized, so lightening the burden on the organs of criminal justice and freeing their resources to concentrate on serious crime, and the recourse to alternative sanctions to prison should be broadened. In the face of major crime, at the same time as a more precise revision of sanctions available to the courts, we should develop the «reward legislation», which has proved to be very effective in Italy in the fight against terrorism. In this connection I should mention that in the period immediately preceding the present governmental crisis, my Ministry has drafted and circulated a bill aimed at breaking the back of the omerta which serves to protect the Mafia and at fostering the enforcement of recent peculiar repressive and preventive measures against Mafia and similar organizations. More specifically, we have thought it advisable to extend to members of the Mafia and Camorra and similar organizations and to their collaborators, the same mitigating plea possibilities which were made available to the < GENERAL SCIENTIFIC QUESTIONS ON THE CONGRESS TOPIC by Pietro NUVOLONE Professor of Penal Law, Milan University CONCEPT OF «CHANGING WORLD» AND BASIC CHARACTERISTICS THEREOF The first problem to tackle lies in determining the meaning of «Changing world••. Once excluded that it has a positive value (development seen as progress), we believe that it refers to changes which in all the fields - technical, scientific, economic and social - have occurred in recent years. We have to evaluate the dynamic moment of social structures and study their impact on criminality and on the instruments of social control. Naturally we cannot define general rules that are valid in absolute terms in all countries: the mere distinction between industrialized and developing countries serves to underline the impossibility of this. Nevertheless, there is always some feature in common which permits us to project the trend curves, while still recognizing the ever more frequent and swift changes on the material and ideological planes, which intersect among the various regions of the world. Looking mainly at the industrialized countries, but, within certain limits and with all due exceptions, with reference also to the others, the evolution of society may be characterised by the following basic elements: First of all, there is the concentration of population masses in urban centres and a progressive depopulation of the countryside. Urbanization and the formation of megapolises, with factories and related institutions at their centre, have helped, ()f1 the one hand, to erode family traditions and the cultural roots of individuals, who come increasingly to lose their personal characteristics and be absorbed in a group mentality. On the other hand, family disintegration has encouraged the formation of growing numbers of bands of marginalized people (referable also to the recurrent economic crises) from which they often emerge as members of criminal organizations. Secondly, the ever more frantic development of the mass media, especially the visual and auditory media, has collectivized culture at a uniform and lower level, making the development of an autonomous personality even more difficult and encouraging hedonistic stimuli which are not subject to any inner personal criticisms. Thirdly, the progressive mechanization of individual and collective life (now embracing the most sophisticated electronic instruments) has removed the hierar chy of values from the sphere of humanities to that of science and technology, with consequences upon the formation of the individual and social conscience that should not be lightly dismissed. Fourthly, the proliferation and improvement of means of communication have on the one hand favoured links of greater international solidarity, but, on the other, have increased the dangers of conflicts which will impact psychologically on the life of individuals and of the community. Translated into English by David R. Gilbert, Barrister at Law, London. 21 Finally, we should note a tendency towards a certain egalitarianism between social classes on the economic plane and in the prospects of development, without however having eliminated the phenomenon of elites, be they based on the power of money or the power of bureaucracy according to the various structures of the countries in question. None of this, however, has been accompanied by a satisfactory growth in human sciences, which is particularly disturbing because this epoch of history is also characterized by a progressive attribution to the State of increasingly vast tasks in the regulation and management of economic life. SOCIETY'S LINES OF DEVELOPMENT AND THEIR IMPACT IN THE FIELD OF CRIMINALITY The lines of development which we have traced in society have given rise to significant reflections in the world of crime. The keynote which we find is the following: the crisis of ethical and family values and the changes in social structures have led to a marked increase in the areas of incidence of crime and, at the same time, have diminished any natural reaction of individuals against criminal actions. We are witnessing a sort of Mithridatism towards crime, except in the case of the direct victims of crime. At the sar'ne time as this quantitative extension, there is a qualitative change: in some sectors, criminality is assuming an increasingly associative nature, often leading to large international organizations (drug trafficking, prostitution, terrorism); also, economic crime has assumed major proportions, stimulated by dominant consumer ism or by the financial structures of State bureaucracies and the ever greater connexion between public and private matters. We would also mention that the continuous improvement of technical-scientific instruments has provided the criminals with more and more fearsome instruments for the attainment of their ends. In the face of the growing wave of major crime, political and otherwise, States often give the impression of being rendered impotent, one of the reasons being that some international organizations in certain countries are inter-linked in powers and activities with those of the State. Moreover, the traditional forms of offence, which have inspired certain modern doctrines on humanizing the treatment of the offender, with re-educative aims, have come to assume a rather peripheral position. THE REFLUX TOWARD&A REPRESSIVE CRIMINAL POLICY The quantitative and quantattve aggravation of the criminal phenomenon has been met in some countries by a reaction towards a repressive criminal justice policy, reflected in harsher sentences and more rigorous procedural measures both in the policing and the judicial phases of action. Entreaties concerning the rights of the defence, the humanization of the treatment of the offender, and the modernization of legal proceedings, which were broadly supported in the years immediately following the Second World War and achieved significant realization on the legislative plane, have frequently yielded to the demands of public opinion for ever stricter controls and harsher deterrent measures. Thus, in some countries, it is becoming rare to hear the police spoken of as an intermediary organism between the offender and society, so aiming to prevent crime and assist the rehabilitation of the offender. Indeed, these tendencies, which are very natural and understandable, do not derive from any deep and serious consideration of the penal problem. We must therefore tackle it without prejudices, in order to appreciate properly the links between our world and criminal justice, seen not as a vengeful instrument but as one seeking to improve society as a whole. THE NEED TO VERIFY CRIMES RAPIDLY AS A FUNDAMENTAL OF CRIMINAL JUSTICE: THE PROBLEM OF RECONCILING WITH THE NEED FOR TRUTH: REFORM EXIGENCIES There is a fundamental need which lies at the core of the criminal justice system and is of vital importance in the eyes of public opinion: a rapid investigation of crimes followed as closely as possible by a just court sentence, so avoiding long periods of 22 procedural inactivity and prolonged periods of preventive detention. In a world marked by dynamism in procedures and decisions, too often do criminal proceedings bear the note of an archaic instrument, adversely affecting public opinion, which would like to see radical improvements in the interests of society, of the victim of offences, and even of the offender, who should be entitled to have his position promptly resolved. The problem of reconciling the need for dispatch and the need for truth and justice is crucial to the present examination of the criminal justice system. Solutions may be sought in various directions. First: in the route towards decriminalization and depenalization. Too many judges and members of the police force are tied down in dealing with an artificial pseudo-criminality, which represents neither harm or danger to society. We need therefore to concentrate on the important crimes and their punishment, and leave many minor infractions to the administrative authority and its sanctions. Secondly: major resources should be dedicated towards the prevention of crime, through the establishment of well chosen police squads, located in the areas with the highest crime rates, so as to prevent, as far as possible, the commission of offences and achieve the swift apprehension of offenders. This would be the most effective way of restoring summary proceedings, without long and difficult prelimi nary judicial investigations. The police squads mentioned, equiped with the most modern technical resources, should be able to infiltrate the criminal organisations, frustrating to some extent their activities and obtaining evidence of crimes in fieri as well as crimes already committed. The police should enjoy fully the fruits of scientific progress and benefit from closer collaboration, on an international plane, with the police forces of other countries. Internationality in crime should be tackled, more effectively than hitherto, by internationality of prevention and repression. THE LAWS OF CRIMINAL PROCEDURE Next, the Law of Criminal Procedure needs a thorough overhaul, aimed mainly at shortening the time taken by criminal proceedings, with special regard to preventive detention, which currently deprives the accused of his liberty for excessive periods. Discussions on the accusatory and the inquisitorial trial system are nearly always abstract and inconclusive: the choice of one or other type does not solve the problem of the time that they take; either of them may be too long or, at other times, be more expeditious than the other. The important thing is to secure reasonably short times for the judicial investigation stage, the presentation of the case to court and the hearing in court and to make available the requisite number of judges and associated practitioners, sensibly distributed within their area of jurisdiction; also to give the necessary technical equipment, including electronic facilities, to the criminal process, so that it can swiftly gather oral and written evidence. Without doubt, these are costly reforms. But we must be prepared to pay a high price for our justice service. Otherwise we will simply engage in inconclusive theoretical chatter and everything will remain as before, if not worsen. MARGINALIZATION AND SOCIAL SERVICES The progressive disintegration of natural and traditional groupings (such as the f.amily, schools and the church), acting as beneficial cultural focal-points, and the crisis of values which is universally recognised, make it vital to establish specially trained and efficient social services, especially in the field of assistance to young persons without homes or living in conditions of marginalization. Such social services also appear indispensable as auxiliaries in the execution of non-custodial sentences. In some countries, tasks of this sort may be entrusted to the police; in others, the image of the police force is such as not to inspire the confidence of the persons involved, so that their intervention in an essentially supportive and re-educative process could be counter-productive. Yet the idea of entrusting offenders to the community for the process of reintegrating them into society must cause some perplexity. Such a measure - 23 which in any case could never have a general character but should be applied only in the rather marginal cases of offenders considered suitable for such treatment - would presuppose an environment typified by strong moral and social pressures, with a common denominator on the plane of values. This is very difficult in pluralistic societies, frequently permeated with irreconcilable contradictions. In reality, in this, as in other areas of criminal policy, all evaluations are relative. BIPOLARITY OF CRIMINAL POLICY AND ITS INADEQUACY The approach to problems in criminal justice, in effect, cannot be based at the present time on universally valid propositions. Indeed, Criminal Law tends to adopt two distinct approaches according to the area of criminality: ordinary crimes, of less serious dimensions and even incidental, on the one hand, and on the other, certain crimes which are considered especially dangerous or otherwise meriting more rigorous treatment. In the former category, precepts of humanity and re-education, and thus in the last analysis, indulgence, provide the inspiration, often with corresponding reflections in the organization of the criminal process both at the investigatory and execution stages. In the second category, we see a return to the classical view of punishment, in intimidatory terms, and to procedures prejudicial to the rights of the defence and to personal liberty, involving inquisitorial examination and excessive terms of prevent ive detention. In this connection we have to think of the crimes associated with the so-called subversive political associations, with major organized crime, and sometimes even with economic crime, within which special severity is reserved for the punishment of taxation and currency offences. We could thus say that we are faced with what has been called a bi-polar criminal policy: one approach which is faithful to the principles of modern social defence both in law and procedure, and another one, which we could label neo-classical, that adheres to the old traditional approach. While it is a truism to say that not all crimes or offenders can be treated in the same way, it should be possible to assert that the bi-polarity of approach derives from an under-use of scientific knowledge in the field of criminal justice. There is a lack of scientific classification criteria, and not merely emotive classification, in legislative, judicial and administrative policy in the penal field; nor is sufficient use made in the criminal process of those criminological selective examinations of personality which alone provide a correct basis for the imposition of penitentiary or para-penitentiary treatment upon an offender. Certainly such a need cannot always be compatible with the period taken by penal proceedings, but what we cannot afford to ignore, without falling into the most clumsy empiricism and the most irrational emotionalism, is the need to support those in the legislative organ with meaningful adjuncts closely studying sociology and criminology. In this light, we must recognize - as we have already said -that the most modern and dangerous criminality feeds on the very same social structures: consequently, a shrewd criminal policy must involve itself in broader legislative reforms (such as in town-planning matters, water-pollution and air-pollution, health - and - safety-at-work, education and regulation of industry and commerce). PROBLEMS OF ORGANIZATION IN LEGAL PROCEEDINGS AND PROBLEMS OF THE JUDICIARY IN THE FRAMEWORK OF THE STATE It will by now be clear that we are faced with very substantial problems of organization in the criminal process. At the outset, a choice has to be made between the mandatory nature of criminal prosecution and the so-called advisability which would seem to answer better to the need to concentrate society's energy into the fight against major crime rather than be diverted by trivial misdemeanours. On the other hand, if the Public Prosecutor were to be given a discretion on bringing actions, the asset of procedural legality 24 and equality before the law might be jeopardised, so opening the way to political interference. This could be dangerous in some situations, where the dividing lines between the powers of the State are ill-defined and the investigating judges and the adjudicating judges themselves are permeated with ideological-political currents - a well known characteristic in some countries in this changing world. Here we come face to face with the difficult issue of the independence of the judiciary, of the judges at least which must surely be safeguarded in the field of criminal juistice, especially when considering that the holding of an ever wider range of powers by the State and public authorities reduces the freedom of choice and independence of the citizen, so that it is essential fo.[ him to have a point of reference that is not subject to those political pressures which are so frequent, albeit to different degrees, everywhere in the world. Thus the independence of the judiciary has to be seen as indispensable, the moment that the ever more prevalent political and economic processes come into play. Moreover, independence does not merely denote an autonomous judiciary. but an effective political neutrality on the part of the judges, regardless of party. RECRUITMENT OF POLICE AND JUDGES AND THE PROBLEM OF SPECIALIZATION Another need in the penal process, to deal with specialization in crime and the resources available to criminals and to undertake the necessary inquiries for the application of differentiated sanctions, as a consequence of differentiated investiga tions, is to modernize and give specialised training, with appropriate recruitment measures, to the police and the organs of justice. That can never go far enough, because the police and the judges should not continue to operate in isolation, in archaic ivory towers, but should be so trained as to be able to recognize the individual offender as an expression of the society in which they themselves live -a society which in general is not mono- but pi uri-cultu red, and in which the juridical forms cannot be an end in themselves but need to reflect all that is offered to them by a constantly changing society. One real obstacle to the effective operation of the police and criminal justice lies in a sort of marmoreal inertia imposed by the administrative and judicial structures, incapable of adapting to the changes demanded by historical evolution. He who judges must f1rst understand - but to understand one needs an adequate cultural preparation and professional training. Therefore, we must certainly not abandon norms that are founded on the principle of legality, but those norms need to be progressively adapted, substantively and procedurally, to changing exigencies, so as to represent technically suitable instruments to judges who are capable of applying them in the interests both of the individual and of society. RELATIONS WITH THE MASS-MEDIA One vital means of linking criminal policy and the work of the courts with public opinion, so as to avoid the isolation, almost amounting to rejection, of the cnminal justice system on behalf of society (a fairly frequent phenomenon in current times) is to create a favourable impact through the mass-media, whenever enlightened legislation is promulgated or shrewd judgments are delivered. There is no doubt, in fact, that a penal policy cannot succeed without a measure of public acceptance, even if it would be quixotic in these times to aspire to a universal consensus on the point. THE FIRST QUESTION IN PARA 37 OF THE UNITED NATIONS GUIDE: Developments foreseen in the social, demographic and economic Field and their Influence on the penal System: Defects, Lacunae and Reforms To conclude, I think that the following answers might be given to the questions posed by paragraph 37 of the Discussion Guide put out for the preparatory Meetings to the Seventh United Nations Congress. The first question concerns the consideration that is possible, in the planning of 25 criminal justice policy, of anticipated developments in the social, demographic and economic fields. One of the things we are asked is how social-economic factors influence the initiation, improvement and modification of the activities and procedures of criminal justice and how they may be better adapted to such factors. We are also asked how this process of adaptation to the evolution of external factors may proceed hand in hand with measures to reinforce, within the system, the prevention of crime, the operation of penal justice, respect for the rights of offenders and the prevention of all discrimination, while at the same time protectmg the interests of the victims of crime and giving them the necessary support and assistance. Answers to these questions are not easy but to a great extent they derive from the points that we have already made. First of all, it is incontestable that the phenomenon of «delinquency .. , like that of «Criminal justice .. , cannot be detached from their social context, and that demogra phic and economic changes, current and foreseeable, will only serve on the one hand to multiply the opportunities for crime, and on the other, to require ever more numer-ous, complex and modern instruments to use in the fight against it. Secondly, it is clear that social-economic factors cannot fail to influence the organization of justice. One thmks of the need to create spec1al courts according to the subject matter with which they must deal, with the consequent need to modify and improve the criteria for the recruitment of the judiciary. We should add that a modification of areas of court jurisdiction might be env1saged, Siting the courts nearer the scenes of crime, so as to give the administration of justice a more truly local flavour, supported by all the auxiliary structures suggested by technical progress. Thirdly, while social-economic factors may influence the activities and procedures of criminal justice, it is equally certain that within each system there are problems that need to be solved more effectively than hitherto, quite apart from the influence of external factors, as indicated by scientific knowledge and experience of penal policy. It is regrettable, but true, that crime prevention still has feeble resources at its command, which could be greatly improved by the means that society could make available. Also there are serious def1cienc1es 1n the crim1nal JUStice system's grasp of a range of problems, such as racial, political, religious and class discriminations, contrary to the principle of equality which must underly Cnminal Law and the measures at its disposal. Additionally, the protection of the victims of crime, who are frequently JUSt as much the victims of the bad organization of society, should be placed more emphatically on our list of problems to be tackled. THE SECOND QUESTION IN PARA, 37: Inter-Action between the various Sectors of the criminal System: Co-operation between the criminal Justice System and the Public The second question concerns the main forms of cooperation and exchanges of Information between the various branches of the crimmal justice system, so as to enhance thir operation. We are asked, in particular, what practical measures might be taken to enhance communications among the sub-sectors within the crimmal justice svstem. This is a very important matter: we must, indeed, avoid anomalies and break-downs in collaboration which lead to water-tight compartmentalization in the system and put a brake on the performance of the just1ce serv1ce. We believe that collaboration between the police and the judicial authonty is essential, both in the identification of crimes and the execution of sentences, especially where they involve custodial or semi-custodial orders. Equally important is the creation of social services with close connections with the judiciary. We are also asked whether a crime prevention plan, so as to give a stronger systematic approach to the system, is possible. 26 Insofar as the question is not clear or even intelligible in some countries, it seems fairly obvious that the establishment of a crime prevention plan may on the one hand cause a less frequent recourse to the criminal courts as a repressive function, but, on the other, if it is based on a scientific classification of crimes and offenders, may lay the foundation for a systematic approach to criminal justice. Thirdly, we are asked how the autonomy and independence of the judiciary should be safeguarded, while integrating their role with the rest of the criminal justice system. We have already spoken of this problem, which is not confined to present days, even though we are now more conscious of its seriousness. The essential point, according to the juridical traditions of the various countries, is to establish legal safeguards that will ensure that no legal proceedings are influenced by external factors and to provide the judiciary with the juridical and economic guarantees that will prevent their subordination to any other power source in the State or society. Finally, we are asked how co-operation between the criminal justice system and the public may be improved. In our view, channels of information need to be opened through the mass-media, the police and justice authorities and bodies engaged in criminological and penitentiary research, so that most of the population is made aware of the social and scientific questions linked with the problems of crime, its prevention and its repression. Even in education, especially at the university level, attention should be g1ven to these subjects as an essential element of social culture, and informatory visits should be organized to mstitutions of prevention and to pnsons. THE THIRD QUESTION IN PARA 37: The main Obstacles to Efficacy and Introduction of more humane Treatment in dealing with Offenders The third question concerns the main obstacles to the efficacy and humanization of the treatment of offenders at the various stages of the penal process, and ways in which such obstacles may be overcome, distinguishing between those intrinsic and those extrinsic (i.e. attributable to social-economic evolution) to the system. We must say at once that the main obstacle is represented by the crisis, both on the scientific level and within the context of social defence, of the concept of «treatment", indeed many scholars quest1on its basic premiss, whether from the pomt of view of safeguarding human rights, or from its essence, even for the uncertainty of many scientific premisses. It should also be noted that large numbers of sentenced persons, especially for political crimes, reject treatment on the grounds that it is a violation of personal freedom. A further obstacle is represented by the growing numbers of accused and sentenced persons relative to the capacity of the penitentiary institutions and the difficulties of selecting properly those individuals who are suitable for treatment, as well as the difficulties of effecting the treatment itself, drawing attention also to the poor results that in many cases it has given in terms of preventing recidivism. We should add that it is not easy to identify the most appropriate moment in the course of the penal process for making a personality enquiry, which 1s the pre-requisite for any satisfactory treatment. In this connection, an advantage seems to be held by those systems that adopt a «Caesura» between the cognizance of the offence and the enforcement of the sanction. We then come to respond to a further question: that of the inter-action between the various parts of the criminal justice system. The vital point is not to create water-tight compartments and make it so that the process of confirmation of the offence already bears the bases for an execution of the sanction according to the offender and to the seriousness of the offence. From this point of view, a certain priority should be accorded to measures alternative to penal detention. 27 THE FOURTH QUESTION IN PARA 37: The most effective Use of criminological Research, statistical Data and electronic Instrumentation The fourth question concerns the measures necessary to ensure a more effective employment of the results of criminological research in order to enhance the efficiency of the penal system as a whole. Here, albeit in the form of a question, we are in the area of recent developments in this field, giving rise to the problem of immediate priorities to be given to the collection and analysis of statistics and other criminological data which might assist in the planning and evaluation of penal policies. This is a very important theme, because the formation of Criminal Laws, and judicial and penitentiary policies, too often develop in isolation from criminological research and criminal statistics - with the deplorable result of being based, often unconsciously, on emotive premises, which could lead to excessively repressive measures or excessive indulgence, regardless of rational criteria. The use of data provided by criminological research and statistics thus becomes a vital priority, in order to steer criminal justice away from the shoals of a uncritical traditionalism, detached from the true exigencies of society. For this purpose the use of computers to establish proper data banks, both for criminology and for establishing judicial precedents, could be of great help to the police and to the administration of justice. THE FIFTH QUESTION IN PARA 37: Reforms that have occurred and should occur in the Area of Police Activity The fifth question concerns modifications which would have been introduced in the field of priority accorded to the actions reserved to the police force: modifications partly provoked by changes of theoretical and practical approach among other sectors of the criminal justice system, and partly by the police themselves. There is then the consequential question of what reforms are desirable in the field of the police force, in the short term, taking account of the other elements of the cnminal justice system and the social environment in general. It is clear that no single answer can be given to these questions at an international level, with so many countries having their own individual juridical traditions. Taking a very general viewpoint, and taking too some 1m pression of trends, we could say that people now envisage the police undertaking many functions other than the detection of crime and the maintenance of public order. Reforms are being sought which will confer on the police special tasks of prevention and assistance, working closely hand-in-hand with the activities of the social services that act as auxiliaries to the courts, especially in the area of juvenile delinquency and misdemeanours of a minor nature. But the police sometimes (as in Italy) have also tasks of supervision and applying the so-called measures of prevention against the most dangerous forms of crime, which, in truth, cannot be said to represent a progress linked with the changes in society, but rather activities prompted by the increase in crime and by a specific and arguable concept of the best way to fight it. One reform introduced in some countries (including Italy) has been to «de-militarize•• the police, wh1ch could serve as the basis for a closer link between the police and the judicial authority, and then for greater efficiency in the prevention and repression of criminality. Another reform, in countries which have not yet adopted such a system, could be the institution of neighbourhood police forces, serving not only to fight crime but also as a focal point for consultation and assistance by people lacking a firm social environment and so susceptible to recruitment for criminal purposes. CONCLUSIONS In conclusion, we would say that the subject of the relations between the criminal 28 justice system and the changing world, does not give rise either to an overall optimistic or pessimistic view: it should be tackled with realism, which requires a society in which the elements of technical progress may be free, or substantially free, from those materialistic and mental elements that so often prove a fertile ground for the spread of delinquency. A realism must thus be achieved, which is not without hope, requiring diverse measures in different countries, whereby a greater effort in the scientific field may lay the foundation for a criminal justice policy in each branch - substantive, procedural and penitentiary - that will be worthy of genuinely newer and better times. 29 INTRODUCTORY ADDRESS by Minoru SHIKITA Executive Secretary of the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders Mr. Chairman, Excellencies, Mrs. Leticia Shahani, Presidents and Secretaries General of the International Association of Penal Law, the International Society for Criminology, the International Society of Social Defence and the International Penal and Penitentiary Foundation, distinguished Experts and Guests, Ladies and Gentlemen. I should like to thank you sincerely for giving me the floor and I wish to express, on behalf of all the colleagues of the Crime Prevention and Criminal Justice Branch, our profound gratitude to the Four Associations, as well as our appreciation to the Italian Ministry of Justice, the Centro nazionale di prevenzione e difesa sociale, and to all those institutions and individuals who have collaborated with them in organizing this important meeting. In my introduction to the topic we are going to discuss at this meeting, I should like to focus my intervention on some substantive aspects, with the strong hope that the scientific contributions of all the distinguished experts present here will give us an opportunity to consider the topic from a variety of theoretical positions, thus complementing the approach adopted by the Secretariat, as formulated in the Discussion Guide contained in document A/CONF. 12/PM. 1, which is at your disposal. HISTORICAL BACKGROUND I should start by explaining that the very title of our contribution, i.e. «The recent increase of interest in the United Nations Congress Topic of Criminal Justice Processes and Perspectives in a changing World» stresses the point that such a perspective is not entirely new, but rather represents the culmination of the work carried out before and of a long-established concern of the United Nations with the administration of justice. This concern parallels and is part of the emphasis on a better quality of life for all, including the quest for freedom and justice, as expressed in the United Nations Charter. In this perspective, the development of a «Systemic approach•• to criminal justice can be traced back, through the years, to the early day of the activities of the United Nations in the field. However it is only to-day that, at the international level, such an approach has gained its momentum and become one of the central issues of the Seventh Congress. The United Nations activities in this area were, in their early days, primarily concerned with corrections, as one can note from the topics discussed at the First Congress, resulting in the adoption of the Standard Minimum Rules for the Treatment of Prisoners. In the period between the First and Second Congresses, (i.e. 1955 to 1960) crime began to be considered in a broader perspective, as a social phenomenon to be treated in the context of rapid economic and social change. Also the work of the United Nations became strongly oriented towards the 30 developing world, and technical co-operation programmes were introduced on a increasingly larger scale. In this connexion the Second Congress, held in London in 1960, focused on juvenile delinquency and the prevention of criminality resulting from social change accompanying economic development. The Third Congress, held at Stockholm in 1965, was still concerned largely with the problems of treatment with emphasis on probation and parole, and with two other items of the agenda centered on «Social Change and Criminality .. and on «Social Forces and the Prevention of Criminality••. By the time of the Fourth Congress in Kyoto in 1970, the agenda included the question of «Social Defence Policies in Relation to Develop ment Planning••, «The Participation of the Public in the Prevention and Control of Crime and Delinquency•• and «The Organization of Research for Policy Develop ment in Social Defence ... The Fifth Congress considered «Criminal Legislation, Judicial Procedures and other Forms of Social Control in the Prevention of Crime•• and «The Emerging Roles of the Police and other Law Enforcement Agencies, with Special Reference to Changing Expectations and Minimum Standards of Performance••, and made important recommel')pations regarding on all of them. On the basis of the conclusions and recommendations of this Congress, the Committee on Crime Prevention and Control prepared, at its Fourth Session, an International Plan of Action, which was endorsed by the General Assembly. I am quoting from that report: < Nations work in this field. That is the marriage of the concept of planning to the concept of justice. This was first mentioned significantly at the Fourth Congress at Kyoto, and re-affirmed at the Caracas Congress. Criminal justice reform and integration in the context of development is also an aspect to be included in the New Principles for the future course of crime prevention and criminal justice to be elaborated under the first of the Congress, and we are indebted to Prof. Bassiouni and the Syracuse Institute for sponsoring a preparatory meeting of experts on this subject. In this connection, criminal justice provides an interesting example of where the concerns of the developing countries and the changing perceptions of the developed countries tend to be amalgamated, as from quite different perspectives, they arrive at strikingly similar ideas on how to proceed. In fact, there seems to be emerging some kind of consensus that the administration of criminal justice requires a degree of co-ordinated planning, both in this internal operations, i.e. in relationship with the various component-sector, and externally between those sectors and the society in which they exist and operate. The validity of the approach which has been proposed has been demonstrated by the just held European Regional Preparatory Meeting which took place in Sofia last week, during which we had the opportunity and the pleasure of working together with several participants also attending this Congress. The conclusion of the European Meeting on this topic can be summarized as follows: «- In most of the countries represented at the Meeting, wide-ranging reforms of the whole criminal justice system were being implemented in the most recent years. These reforms took into consideration, inter alia, the multiple social and economic changes within the differing societies; -Several principles were mentioned which guided reforms, such as due respect for basic human rights and the necessity for a fair, speedy and equitable process including the rights of the defence. It was felt that long pre-trial detention should be avoided as much as possible. It was also stressed that the criminal process should not be too costly. -Some delegations pointed out that, in their countries, the criminal justtce system was overloaded with the result of possible loss of confidence on the part of the population in the criminal justice system. To alleviate the overburdening of the system, different measures had been taken, including diversion of cases wherever possible. -Regarding criminal law, there was a strong tendency towards decriminalization and depenalization. A widespread system of penal sanctions was being elaborated tn many countries and various differentisted measures had been adopted in order to fit such measures to the individual cases and to ensure the reintegration of the offender into society. There was also a strong trend towards the reductton of imprisonment, in favour of alternative measures which would not deprive the indivtdual of his liberty. -It was underlined that it was necessary to ensure a systematic approach to criminal justice, so as to more effectively coordinate the different parts of the criminal JUStice system. - It was also underlined that the crimtnal justice system should ensure better coordination of different agencies of crime prevention, as well as the full cooperatton of the public. Furthermore, the whole crime prevention and criminal justice system should be considered as part of the global institutional, political, social and cultural system of the society. - The need for a broad exchange of practical and scientific experience in the above-mentioned field was stressed». CRIMINAL JUSTICE AND THE SOCIAL ENVIRONMENT Havtng touched on the historical aspects of the subject of our meeting, I would ltke now to consider another aspect namely the criminal justice system as a whole in the context of its social environment, and this Congress can be of great help in giving the appropriate weight to the central question of the ethical or value component which 32 forms part of the core of any criminal justice system. Values are central to law, and legal systems are the base on which criminal justice systems rest. We are, I think, in agreement that society, all societies are changing, albeit in very different ways and at a different pace. In some the tendency to change is being encouraged and stimulated by the governments, in others this development may be encouraged by other forces. However, the changes brought about by different rates of population growth, food production, ease of transport, telecommunications and the spread of industrialization are such that a large part of humankind is now experiencing a very different style of living from their grandparents, and that our grandchildren will not live as we do now. To describe fully the existing changes, it is not enough to say that we are living in the «Space Age .. or «Information Age•• or in «Electronic Era» or in «Global Village ... Terms such as «post-industrial society .. , or «SCientific-technological revolution.. or «Super-industrial society.. have also been used. None of them however, manages to fully qualify the reality we are facing, because they do not convey the full force, scope, and dynamism of the changes which are taking place, with all possible pressures and conflicts involved. Obviously this is not an occasion in which to pass value judgements as to whether or not these changes are a good or a bad thing; merely to record that they are occurring, and can be measurable along many social economic and cultural dimensions. Thus when we refer to a changing society, we are referring, inter alia, to different age patterns in the demographic profile of a country, and in particular the predominance of the young and old relative to the patterns of previous generations; to the levels of income and to the patterns of income distribution; to the levels of education and health care; to scientific and technological progress; and to other socio-economic cultural and political changes. In fact, over the last quarter century, the urban population in developing countries has increased at nearly twice the growth rate of the population as a whole and the increase in the number of urban poor is two or three times as high. It is estimated that almost a third of developing world urban dwellers lack the income, and therefore the consumption, sufficient to maintain a productive life. By the year 2000, there may be as many as 600 million urban residents lacking reasonable access to minimal nutrition and sanitation, safe water, basic education and shelter. These disturbing trends are reflected in the 1982 UN Report on the World Social Situation which notes also that, after several decades of rapid economic growth, poor economic performance has noticeably set apart the last few years from earlier periods. For the developing countries, 1981 was the first year in a quarter of a century when the per capita supply of goods and services failed to increase, while the industrial countries, too, experienced a distinct slowing down in economic growth. The result is that the main concern regarding equity has sh1fted from a fair share in growth, to a fair distribution of the cost of retrenchment, and expectations for improved living standards in the immediate future have been dampened. Recent economic setbacks have not only frustrated such expectations, but also exposed the limits of the role of the nation-State as a manager of socio-economic change and created disenchantment with the dominant ideologies of development. The weakening of authority and of accepted values has generated both greater individual freedom and a more fragile society. Alcoholism, drug addiction, crime and irresponsibility towards fellow men and the community seem to be more frequent in many countries. The technological advances which have characterized these last years also created new instruments for war and death, and the progress achieved in the abil1ty to produce more and better goods has only partially decreased poverty, which is a central social issue in many developing countries. Half the countries in Africa and South and East Asia at the end of the 1970's had an average pro capita income of less than $ 300 while, unless specific measures are taken, the human cost of the adverse external environment would be an increase in 33 the number of the absolute poor from an estimated 800 million to one billion by the end of the eighties. Unemployment is also a major problem, especially in development market economies, where by 1982 the number of unemployed exceeded 25 million. However, also in developing countries it is estimated that already 300 million young people are in search of jobs, the majority of them without adequate nutrition and medical care. Such conditions will undoubtedly aggravate the incidence of crime with its attendant costs and dangers. Even more alarming is the fact that it is the younger generation, the children and the adolescents who are most vulnerable to an increase in criminality, caused in large measure by inadequately planned economic growth and imbalances in social change, perpetuating a vicious circle and violent trends into the future. The changes which have just been mentioned create on the one hand increased pressures towards crime and, therefore, different expectations as to what the administration of criminal justice should do and to what it will have to achieve. On the other hand, these changes create also a particular climate concerning work in general: and this climate will affect the behaviour of the individuals who work in the agencies of criminal justice. Thus for example the view of a policeman in a particular country will be different from that of his predecessor two decades ago in at least two ways. Firstly changes in the level of criminality may make him or her a member of a much larger or more self-conscious force than would have been the case before. Secondly changes in attitudes to working hours, unionization and conditions of service, when compared with those who are employed in private or in other areas of public sector, will influence his or her attitudes to priorities and values in work style. These are the two levels at least in which a changing social environment will inevitably, perhaps unnoticeably, affect the work-style of the agency of criminal justice. Serious and detailed thought should therefore be given to external changes which may affect the work of the criminal justice agencies. We should also consider, however, the possible undesirable characteristics in the operation or in the functioning of criminal justice which are likely to be the products of such changes and to be responsive to them. Let me give one instance of this, although I am sure the experts here may provide many more in detail. One result of social change, whether it is political, demographic or econom1c, 1s often an increase, even if a fairly mild one, in soc1al conflicts. Its is one of the functions of Government to maintain public peace and order. Therefore the police - and to a certain extent also prosecutors and judges - carry out exactly that function. In so doing, the police come to be perceived as «the enemy, also by many of those who are not either professional criminals or 1n favour of crime. This 1n turn leads the police to define themselves as the only guardians of peace, and this on one hand may psychologically justify oppressive methods and, on the other hand, sociologically turn the police into a selfcontained world, whose values and priorities are internally generated and whose conduct within the society they should serve is increasingly reactive and formalized, and who may even exceed the limits of their authorities. The ultimate cause of such a deterioration in social relations is some form of social change in areas quite unrelated to criminal justice. Those changes, however, may produce undesirable results in the administration of justice, whose agencies may become the ultimate recipients, and possibly even the victim, of existing social conflicts. CRIMINAL JUSTICE AS A SYSTEM I wish now turn our attention to some questions concerning the analysis of the machinery of the administration of justice as a total system. Again, there are important preliminary questions, of which the first is, «what exactly is implied by the term 'system',? That question has to be asked in order to establish a point of departure; however it immediately gives rise to great complications because different people mean different things by using the term «system''· We know that a 34 system is a complex concept, and concepts cannot be ultimately defined, but only analyzed. In our analysis, however, we should not forget that in many countries there are non-official, customary institutions of mediation and conflict resolution, often with a high level of popular participation, which, apparently, are able to reduce both costs and delays in the justice administration. Consequently, the notion of criminal justice system should be extended to cover those community-based institutions, which are somewhat foreign to current legal theories prevailing in most of the developed countries. On the other hand, it should also be recalled that formal systems arose over the centuries as means of ensuring accountability and equity in the administration of justice, and therefore customary systems, although less costly and cumbersome, may not be easily installed, outside the culture or the social setting in which they sprang up. One proposal we have for this congress, therefore, is that of providing some kind of working definition of the therms wich we use, as a basis for further discussions. The qualifications of the main features of a «System» constitute, however, only the beginning of our analysis, because we must then consider what are the objectives of the overall system and of the component sub-systems in criminal justice; and then look very carefully at whether or not the objectives of each component are compatible with those of the other components, or with the overall systems. Let me move now from an abstract analysis to a practical example. One objective of the police is to reduce criminal activity in a given society. One significant way of achieving this objective might be to reduce recidivism of those previously convicted. As many experts have pointed out, the most certain way of reducing recidivism is life imprisonment or, in other words, incapacitation. The objective of the judiciary, however, is- or one hopes it is- the equitable and fair administration of justice, whereby no person is punished beyond a certain limit or tariff for this or her offence. The objective of the prison system should be, as implied by the United Nations Standard Minimum Rules for the Treatment of Prisoners, at least humane containment for a limited period and the resocialization of the offender; the rece1ved wisdom of the treatment agencies is that time spent in institutions should be reduced to a minimum and that the offender returns to a productive law-abiding life in the community. One way to fulfill the objectives of the police, therefore, would be to keep all offenders locked up for a very long time, which would conflict with the objectives of the judiciary and treatment agencies rendering impossible the attainment of the objectives of this sub-system. This is an elementary example, which will not be new to anyone here. However, it is an example which can be indicative of the various questions to be discussed by this Congress. The a1m probably, is to resort in each case to the most economic option in both human and material terms: the cost-benefit approach to criminal justice - which the Centro has pioneered can be most useful in this regard. In fact, we are looking at decisions because the criminal justice system operates essentially by the decisions which are made on the basis of the information available. In this connection, should we not consider in detail the question of what information is, our ought to be available; to whom, and for what purpose? The problems become crucial today, in the light of the new information technology, which makes it now very easy and very cheap to store in a systematic fashion a great deal of information. This has changed the situation both in the administration and research of criminal justice by a difference in kind, rather than in degree, since the Fourth Congress. To fail to consider the legal, moral, operational and scientific implications of the new information technology would be to abrogate our responsibi lities in terms of the importance of the administration of justice and the upholding of human rights. Moreover, we cannot limit ourselves solely to consideration of the question of information flow, if we wish to analyze the criminal justice processes in their totality. Therefore I should like to point out that the functioning of the cnminal justice system should be studied in much more detail. To illustrate this point let us note that different countries have different arrest and prison population rates. There are 35 countries where about 80% of people in prison are persons who have not yet been sentenced and found guilty as there are countries where arrest procedures are used as a last resort, and imprisonment likewise. The question then arises as to what processes are at work within the criminal justice system and outside of it, to create a more or less fair, speedy, and humane approach to crime justice and crime prevention. I wish to conclude in more general terms, since the matters discussed today require more far-reaching thoughts which should guide us in our future work. The operations of the criminal justice systems are to a large extent dependent upon the developmental process in general. Highly unequal development, which creates and defeats new expectations is conducive to instability, and instability, in turn, in one way or another, leads to more frequent resort to the criminal justice system to restore public order. Although the experience of Italy in dealing with terrorism shows that this can be done without sacrificing democratic principles and institutions, the danger exists that more public order brings with it less individual freedom. The socio-economic progress has, therefore, to relieve people from the indignity of poverty and to replace social deprivation with social justice. In this way a humane and fair justice administration can become a reality, in a system where there are no delays in the processing of offenders and where - finally -the offender as well as the victim will find their place in society. Ladies and Gentlemen we are moving into a period when criminal justice is emerging from the shadows in which it has all too often been hidden. In many countries there is a strong feeling that if justice has to be done it must be seen to be done. How this can be accomplished is a major challenge facing us today. Our deliberations this week may add both substance and refinement to such a view. 36 General Report of the INTERNATIONAL ASSOCIATION OF PENAL LAW by M. Cherif BASSIOUNI Professor of Law, DePaul University, Chicago: Dean, International Institute of Higher Studies in Criminal Sciences, Syracuse INTRODUCTION The United Nations Draft Discussion Guide for the Regional and Inter-Regional Preparatory Meetings for the Seventh United Nations Congress on the Prevention of Crime and Treatment of Offenders recognizes that the world is changing constantly in many respects and in many ways. Notwithstanding those changes there are certain similar patterns of crime and delinquency and certain common characteris tics among criminal justice systems that exist in different countries irrespective of their ideology, form of government, economic system, social structure and culture. These patterns and characteristics are linked to a variety of factors such as: economic growth and development, income distribution, demographic patterns, educational levels, social values, and others. In this respect it is important to determine whether criminal justice processes have been developing in a parallel way along similar patterns in order to: (1) identify common characteristics, (2) identify common problems, (3) assess applied solutions, and (4) develop strategies capable of shaping future perspectives on the administration of criminal justice. This process of identification and appraisal is particularly relevant to the Caracas Declaration that emphasizes the importance of comprehensive policy formulation and planning in the field of criminal justice as indicated in resolutions 1 and 2 of the Sixth United Nations Congress on the Prevention of Crime and the Treatment of Offenders. It is also reflected in Topic 1 of the Seventh Congress, «New Dimensions of Criminality and Crime Prevention in the Context of Development: Challenges for the Future••. In furtherance of Topic 1, the Crime Prevention and Criminal Justice Branch included «Draft Guiding Principles of Crime Prevention and Criminal Justice in the Context of Development and a New International Economic Order••, a document prepared by a Committee of Experts meeting at the International Institute of Higher Studies in Criminal Sciences, Siracusa, January 10-14, 1983, which although addressing itself to aspects of Topic 1 is also relevant to Topic 2. Evidencing the increasing common concern of the world community about these questions, the General Assembly in Resolution 36.21 invites member-States «tO intensify efforts to make their criminal justice systems more responsive to changing socio-economic conditions••. It is to that end that the Four Major International Associations in the field of criminal justice have devoted their joint meeting in Milan to address Topic 2. This report will focus on common characteristics and common problems of the various criminal justice systems of the world and seek to answer some of the questions raised in the Discussion Guide as well as those specifically raised as questions in that document. The report will address the following questions: 1. Development and the criminal justice system; 2. New forms of criminality; 3. Comparative criminology and systemic similarity among criminal justice sys tems; 4. The systemic as opposed to the substantive approach to the «processes•• of the criminal justice system; 5. The criminal justice system - its sub - systems: integration or disintegration?; 37 6. Characteristics of a system: predictability, consistency and equality - realities and perpeptions; 7. Criminal justice policy and criminal justice processes; and 8. The impact of constitutional and other procedural norms on the administration of criminal justice. I DEVELOPMENT AND THE CRIMINAL JUSTICE SYSTEM No study of criminal justice can ignore the socio-economic context in which it operates. Consequently the first question addressed in this report deals with these aspects. Virtually no country in the world takes into account in its planning the impact of development on the criminal justice system. As a result, a number of factors have been brought to bear on social conditions (and socio-psychological conditions) deriving from economic development which influence (sociologically, psychologically, or both) crime and delinquency. Because criminal justice impact planning is not included in the economic or social development planning of either developed or developing societies, conditions created by certain types of developmnet are invariably prone to produce similar patterns of crime and delinquency. Industrialization in developed societies, whether in a capitalistic or socialistic system, has frequently followed the same patterns leading to urbanization with high density population demographic shifts from rural to urban areas, a variety of urban problems, the breakdown of traditional village and family ties, and in many cases the shaping of highly individualized impersonal societies. In addition, along with these changes there has been, in many such societies, an increase in urban crime and delinquency. Most importantly, the same patterns of emergence and growth have occurred and recurred with few exceptions irrespective of the diversity of ideology, political form of government, economic system, social structure and culture. Such a generalization while understandably not equally applicable to the more than 150 countries of the world is nonetheless by general observation sufficiently prevalent to justify its postulation. The above observations are equally true with respect to many developing states or those undergoing what some economists refer to as «modernization». Almost invariably this type of imported economic development seldom takes into account social planning and almost never takes into account the impact of such projects or programs on crime and delinquency. In fact, it may be concluded that neither developed nor developing countries take criminal justice planning into account as part of either economic or social development planning. In developing countries, the imported patterns of development, whether from capitalistic or socialistic exporting countries, are very similar irrespective of ideological differences. Industries are invariably placed in the capital city or one or two large cities where infrastructure may be found, thus swelling urbanization and shifting demogra phies from rural to urban settings, creating shanty towns on the outskirts of these cit1es, etc. with consequential increase in crime and delinquency. Such imported economic development and "modernization» seldom take into account social development planning and is more frequently than not oblivious to indigenous and cultural characteristics. As a result the social conditions that are generated produce similar patterns of crime and delinquency that exist in the exporting states. The responses to these problems of crime and delinquency in such developing societies is also to a large extent much the same as the responses that occurred in the exporting developed societies. Thus, the similarities of socio-economic conditions bring about a certain similarity in patterns of crime and delinquency which at their turn seem to be dealt with with similar responses. These responses which become part of the criminal justice system tend to gradually develop certain similarities between criminal justice systems. Indeed as the problems these systems have to deal become more similar, so do the systems which have to deal with them. This creates a reinforcing mechanism leading more and more toward systemic similarity. Another argument evidencing this proposition is one that can be referred to as socio-economic conditioning. Simply stated as economic processes develop they create certain social conditions which at their turn create certain patterns of crime and delinquency, with which the criminal 38 justice system deals with in certain ways. Thus when the same or similar processes are developed the consequences are similar. Such similarities are more apt to be systemic at first, then gradually systemic similarities generate more and institutional and structural similarities, irrespective of the differences in legal philosophies and laws as will be discussed later. The systemic similarities among criminal justice systems are also increased by reason of the borrowing or emulation either intentional or unintentional by developing countries from the developed countries. And additional factor of no lesser significance is that the education and training of jurists and criminal justice personnel from developing countries derives mostly from developed countries, thus adding to the patterns of similarity between the systems of developing and developed countries. Though this Topic Two does not deal specifically with the patterns of economic development and its social consequences alluded to above, it must nonetheless be underscored because failure to take these conditioning factors into account will perpetuate the problems presently experienced by the criminal justice systems of developing countries. II NEW.FORMS OF CRIMINALITY The industrialized urban societies, modern technology and the great ease in international movements and communications brought about new forms of criminality which have impacted on crime and criminal justice systems. While traditional common crimes continue to exist and even flourish in most countries of the world, posing persistent challenges to criminal justice systems, new forms of criminality have proven to be a greater and more significant threat to a growing number of countries and to the world community as a whole. Among these in national societies are such crimes as computer crimes and other manifestations of technology-related crimes, and the use in group and organized criminality which have acquired a truly transnational dimension often linked to international crimes such as international traffic in drugs and prohibited substances, and such crimes commonly labeled as < Ill COMPARATIVE CRIMINOLOGY AND SYSTEMIC SIMILARITY AMONG CRIMINAL JUSTICE SYSTEMS It is axiomatic to state that all countries have crime and delinquency. Irrespective of different empirical data, crime and delinquency occur increasingly in most societies whether because of an increased number of offenders or an increased number of offenses committed per offender. It is equally true that crime and delinquency increase more in urban than rural settings and more so in higher density populated industrial areas than in others. Of course there are always cases that prove the exception, but nonetheless that pattern is well established in comparative criminological studies. There is however insufficient comparative criminological data to assess this observable phenomenon. The data available in the literature though consisting of hypotheses with limited verification and limited data still justifies some reliance on it by policy planners. 39 Thus with regard to the general proposition that crime and deliquency is increasing in certain settings irrespective of whether it is in a developed or developing society, we are clearly dealing with similar phenomena or at least similar patterns of evolution and growth of these phenomena, and this has certain bearings on the criminal justice system that has to deal with these phenomena. The similarity of such phenomena as well as other factors combined therewith are conducive to systemic similarity. They tend to reinforce the parallelism between criminal justice systems, irrespective of ideology, political form of government, economic system, social structure, and culture. This does not mean that all criminal justice systems are identical; rather, it postulates that they are systemically similar and that such systemic similarity is increasing as time progresses, and that the problems deriving from such systemic similarities are also analogous and are becoming increasingly more so. In short it is a conundrum deriving from spiraling self-reinforcing conditions which stem from a common problem base. Interestingly enough, as these problems emerge and find in one legal system or another a particular solution, they also seem to follow certain patterns or cycles of emergence and growth, reaching levels of crises and then remedied through solutions usually adapted or copied from other legal systems which have experienced the same problems and crises. Somehow it seems that the lessons of one system are seldom learned by another, and that the same pattern of problems and solution follows and is repeated time and again through borrowing, or emulation by other legal systems. The absence of comparative studies and sharing of knowledge and experiences in a systematic and comprehensive way among the countries of the world may be one reason for the continuation of this situation. Considering the above, it is therefore indispensable to examine, at least in relationship to this report, the systemic similarities of the criminal justice systems of the world and some of their problems and solutions with a view to highlighting this observable phenomenon in order to stimulate ways and means of developing different approaches and effective solutions. In that respect comparative criminological research is critical. The sharing of such findings among different countries is also of significant importance. Such scientific research and sharing of data and findings will only be fruitful if policy planners take it into account in the formulation of criminal justice policy. The International Society of Criminology and the International Society of Social Defence can provide much needed insight into this area. IV THE SYSTEMIC AS OPPOSED TO THE SUBSTANTIVE APPROACH TO THE «PROCESSES, OF THE CRIMINAL JUSTICE SYSTEM Among the observations made in the Discussion Guide, paragraph 29, is the clear Indication that the administration of criminal justice is divided into ••sub-systems, of law enforcement, prosecution, courts and corrections. Maybe a fifth one should be added, and it is the social services serving the criminal justice system. It is important to note at the outset that what is meant by «SUb-system, could also be referred to as «phases, of the criminal justice system. The use of the term is intended to describe the functional and organizational division of the total process, even though it is not also divided in that way (for example in some countries the «prosecution, is part of the «judiciary,, and «SOcial services, are part of some or all of the other four). It is interesting though correct to note that the Discussion Guide also recognizes that the sub-systems have been considered in isolation from each other and treated as self-contained and self-regulating entities, and that in fact they do impact on one another. It is also noted that the self-containment and self-regulation of each of the sub-systems may constitute an impediment to the integration of the entire system and thus prevent effectiveness and progress of crime prevention and control. From the above observation of the Discussion Guide, it seems clear that there is a need to emphasize the systemic aspects of the criminal justice system considering its division in the four sub-systems identified above. Thus, it is indispensable to analyze the criminal justice system in its operational aspects as a whole and the relationship between its different components referred to as sub-systems. It must be noted however 40 that an attempt to examine the whole system from a systemic and operational point of view should not detract from the importance of clarifying and identifying the values that are to be embodied in the system in order to be able to assess ultimately whether the operation of the system as a whole produces in its outcome a result which is consonant with these values. Thus it is not sufficient to determine simply the efficiency and effectiveness of the system, but also to determine ways to measure the operation capacity of the system, its accountability, and the accountability of individual decision-makers throughout its processes in light of its values and goals. In addition it is imperative to be able to develop techniques for the assessment of the quality of the system as it operates, in light of the results produced to be measured against the results desired. That of course must be linked to the values sought to be achieved by the system and the goals sought to be achieved by the substantive law which is applicable through the system. Thus while the question under examination deals with ••processes•• and seems on its face to exclude considerations of philosophies, values, and substantive laws, it is nonetheless indispensable to keep those considerations in mind because ultimately a criminal justice system must be not only an integrated system, but an integrated system designed to accomplish a particular result according to particular goals based on certain established values. In other words the criminal justice system is to a large extent a means for the accomplishment of an end which the system and its processes should not predetermine nor condition in such a way so as to affect substantive outcomes. The end itself should be well understood and represent the true social values of a given society so that ultimately one can integrate substance and processes into a whole. This question should normally be considered within the ambit of criminal justice policy planning but with specific focus on systems analysis and systems operations. It illustrates the importance of bringing into criminal justice planning the expertise of modern management techniques. A branch of science wh1ch is indispensable to criminal justice policy and which can be focused upon by the International Society of Social Defence in its new criminal justice policy orientation. V THE CRIMINAL JUSTICE SYSTEM - ITS SUB-SYSTEMS: INTEGRATION OR DISINTEGRATION? Most criminal justice systems in the world irrespective or whether it is in a developed or developing country and irrespective of ideology, form of government, economic system, social structure or culture, is divided into sub-systems or phases. The most common division is among law enforcement, prosecution, judiciary, and corrections. To these one could add a fifth which is social services even though they are usually part of some or all of the others. It must be noted also that in some legal systems the division in not the same, as some countries include prosecution as part of the judiciary. It must also be stated that this distinction is based on organizational, administrative and functional considerations. Each one of these sub-systems with differences existing in various legal systems seems to be a self-contained entity with its own administrative and bureaucratic exigencies and to a large extent self-administered and self-controlled. Irrespective of the differences that may exist, one can see the similarities and parallels in almost all legal systems. To a large extent the separate existence and operation of each of these sub-systems tends towards non-integration as opposed to constituting an integrated whole as the system would ideally require. Thus leading to the question posed in this heading as to whether or not the separateness of each sub-system does not lead to fragmentation or disintegration as opposed to integration within the criminal justice system. Common experience has it that institutions and structures acquire a life of their own and follow certain paths which tend more and more to give such institutions and structures a separate life. This obviously leads to difficulties of integration, problems of coordination, and ultimately to fragmentation and disintegration. Notwithstanding the fact that every criminal justice system professes or aims at the integration of its sub-systems, they nonetheless in different degrees tend to acquire 41 autonomous characteristics or at least sufficient characteristics of separateness to render at the very least cooperation between them difficult and at worst non-existent. The factors leading to that situation may have nothing to do with the original intent of the legal system as a whole or the specific structures of the law and legal institutions designed to achieve the goals of integration. These observations are developed as follows. a) Law Enforcement Law enforcement as a sub-system may consist of one or more police forces operating either under integrated commands or separately. They are a para-military structure in which decision-making is subject to a hierarchical process and is presumed to be controlled in that manner. Yet, in no other sub-~ystem is there as much discretion as in law enforcement. If for no other reason than the fact that discretion is available at various stages of the hierarchical decision-making process and within each stage almost to every individual official within it in the course of performing his official duties. For example, every law enforcement onficial has the opportunity at every encounter with an individual in connection with a perceived or known crime to make a discretionary decision to arrest or not to arrest depending of course upon his legal authority and to at least initially label the perceived or known offense as a particular crime. This of course may be subject to rectification at a later stage either administratively or judicially, but it does not affect that initial discretionary decision. In investigating criminal activity, law enforcement officials can shape the determination of the crime for which an arrest or a charge can be made by the manner in which evidence is secured or by the type of evidence gathered. Such discretionary decision-making also extends to the manner in which individuals are treated. These examples highlight the degree of discreHonary authority that exist within that sub-system and the fact that for the most their control and accountability is mostly self-determined and is essentially administered through the internal hierarchical process. Usually law enforcement as a sub-system is subject to the administrative control of the Ministry of the Interior or another entity within the executive branch of government. It is also usually not under the control of the judiciary (except for judicial police in some countries) nor is it under the control of the prosecution (except for investigatory policy in some countries) and has little to do with corrections (except in some countries where law enforcement officers perform security duties). There is seldom enough coordination between law enforcement and the other three sub-systems and there is no integration of law enforcement with any of the three other sub-systems. Law enforcement and the other sub-systems operate in a different structure and through different institutional frameworks with different goals and purposes and according to different means. Suffice it to note that most law enforcement sub-systems are measured with respect to their effectiveness not by quality or goals but by their results which are usually in terms of a simplistic comparison between crimes reported and arrests or crimes which the very law enforcement sub-system itself deems to have been resolved. b) Prosecution In most legal systems, prosecution is separate and apart from law enforcement. It is staffed by jurists and in some cases by judges assigned to prosecutorial functions. They are not within a para-military structure, and while an administrative hierarchy exists, there are varying degrees of autonomous authority vested in each prosecu tor. The independence of the prosecutors is also frequently protected particularly from executive or judicial interference and is certainly always legally immune from law enforcement interference. The effectiveness of prosecution, like that of law enforcement, is frequently measured by results as opposed to quality or goals. This is usually simplistically accomplished by comparing the number of prosecutions against the number of convictions, which may to a large extent be affected by whether or not the legal system in question permits prosecutorial discretion and 42 when it does whether hierarchical control also exists over decisions by individual prosecutors. Where discretion exists there are seldom guidelines and criteria let alone verifiable and controllable ones, in fact there is even little monitoring of decision-making and results. As a result disparities exist. Where discretion is theoretically not permitted, it nonetheless is exercised in a variety of ways though most of it is circumscribed and circumspect. Depending upon the administrative structure of the prosecution sub-system, its personnel may either move from and back into the judiciary or revert to the private practice of law. Thus a different relationship will exist between prosecutors and judges and prosecutors and private practitioners. A situation which does not exist with respect to law enforcement, since its career paths are not linked to that of jurists in the judiciary or in the legal profession. In many legal systems resources, support personnel, and other technological and scientific means available to the prosecution sub-system are allocated within the budget of the Ministry of Justice as opposed to the Ministry of the Interior for law enforcement, or it may come from separate sources depending upon the form of government. Budgetary and administrative controls emanate from different sources in the prosecution sub-system and these differ from those applicable to law enforcement,.the same being true with respect to corrections, and in some countries with respect to the judiciary. Operationally the differences are also vast. Even crime statistics generated by law enforcement cannot be easily reconciled with statistics produced by prosecution, since there is seldom an integrated statistical system linking these two sub-systems with the judiciary and corrections. In fact, few are the systems if any that follow cases on an individual basis from in-take to disposition, retracing such individual cases through the various sub-systems. Instead, numerical controls are made by comparison of total figures recorded at the entry and exit levels of each sub-system. Prosecution operates largely as a separate sub-system certainly separate from law enforcement and corrections and subject to its own administrative and budgetary sources of control and to different forms of accountability. This is not conducive to greater cooperation and is certainly not indicative of integration of this sub-system with the other three. c) The Judiciary Invariably the judiciary is independent or at least theoretically so of the executive branch of government. It operates independently of any of the other three sub-systems without control or influence by any of the other sub-systems. Resources and administrative support are usually provided by the Ministry of Justice or another legal entity or institution from within the judiciary itself. Career opportunities, assignments, salaries, promotions and discipline, etc. are done by the judiciary itself according to its own standards. Sometimes these are determined by law but still subject to the judiciary's own application thereof. Unlike law enforce ment and prosecution, the judiciary is means-oriented and not result-oriented, emphasizing values and quality of the process with greater adherence to higher normative prescriptions. Almost always the judiciary sits in review upon the decisions and actions of law enforcement and prosecution in respect to quality and observance of constitutional and other legal requirements. There is limited public pressure on the judiciary which by reason of its autonomy and independence operates without many of the constraints that political authorities and the public may place upon law enforcement and prosecution. There is of course no integration of the judiciary with any of the other three sub-systems. In most countries of the world the independence of the judiciary extends to administrative technical matters and goes at times as far as maintaining separate statistical data which are not correlated with those of law enforcement and prosecution. 43 d) Corrections Corrections is usually an autonomous subsystem subject to the executive branch of government operating under some control of the judiciary in some countries but not under the control of either law enforcement or prosecution and with very little if any integration or even coordination with the other three sub-systems not even statistical coordination exists in many cases. Whether it operates under the Ministry of the Interior or under another entity, its personnel is usually a mixture of law enforcement type persons, social workers, and bureaucrats of various types. Their administrative controls, resources, and accoun tability are different from the other three sub-systems. Corrections is seldom if ever integrated with any of the other three sub-systems except to the extent that they are sometimes connected with the same administrative controls that law enforcement may be. Finally there is no way to measure its effectiveness. Certainly recidivism rates are not a valid measure, though it is indicative. Summary of Distinguishing Characteristics of the Four Sub-systems The distinguishing characteristics of the four sub-systems which indicate their systemic separateness are (and these distinguishing characteristics among the four sub-systems are common to a very large number of countries and in that respect are similar): 1. administrative structures. 2. personnel (recruitment, promotion, discipline, transfer, salary, career path, etc.) 3. control, accountability and discretionary authority. 4. controlling or supervising political structure (Ministry of Justice, Ministry of Interior or other institution). 5. goals: result-oriented as opposed to means-oriented. 6. administrative support (support personnel, clerical, technical and technological and scientific means). 7. budgetary allocations and utilization thereof. 8. record keeping and statistics. 9. applicable normative regulations, procedures, and internal governance rules. 10. relation to one another and with other public bodies, and with the public. Conclusion For the reasons illustrated above and many others, each of these four sub-systems operates with varying degrees of independence, and with varying degrees of coordination and integration. As a result, each of these sub-systems tends to acquire an existence and life of its own, defending their respective turfs and supporting their own institutional existences, methods, goals, purposes, public images, and relationships with the various other public structures. All of which does not tend to benefit in any way the integration of the processes of criminal justice which would lead to a better quality and more effective system of justice for the benefit of the individual citizen or society as a whole. Suffice it to consider the controversial debates in many countries about crime and justice. Invariably the judiciary is accused to be protective of criminals, and limiting law enforcement. Prosecution joining law enforcement in pointing the finger at the judiciary, who at its turn accuses law enforcement and prosecution of ineffectiveness. All agree that corrections does not do an adequate job, and all agree that if the legislature would provide more financial resources things would be much better. All of that is however at best symptomatic but does not address the many basic problems. A final conclusion, social services necessary are not deemed part of criminal justice process and are consequently even farther removed from the goals of integration. VI CHARACTERISTICS OF A SYSTEM: PREDICTABILITY, CONSISTENCY AND EQUALITY - REALITIES AND PERCEPTIONS The above three sections discussed essentially common characteristics and factors affecting the functioning of criminal justice systems in various countries of the world. 44 This section will deal essentially with common problems and will focus on a few select, specific problems which are addressed in such a way so as to highlight first the commonality of these problems and second the impact that they have on criminal justice processes. In such a way, they reveal that the commonalities of such problems contribute to the similarities of the system. The enforcement of substantive criminal laws through criminal processes requires the establishment of systems of controls as to quality and outcome. In essence one could analogize criminal justice processes though this would appear irrelevant to an industrial production chain. How does the process begin, develop, and end-is there continuity, consistency, predictability and control throughout? Are there systems to monitor it for efficiency, effectiveness and quality control? The answers to these questions are in the negative, and that may well be one of the «perspectives .. of modern criminal justice processes to which more study, experi mentation and application is needed on a comparative basis in a - and with - context. An essential ingredient of an effective and fair system is consistency. Consistency requires a high level of conformity of practices to certain norms. To achieve consistency and conformity requires controls in order to ensure that decisions at the various decision-making levels within each sub-system follow the same patterns, which produces predictability. Not only is that important to insure the protection of individual human rights, but it is also an indispensable component of any concept of justice which is embodied in the notion of equality. Thus equality of treatment of individuals within the criminal justice processes requires consistency and conformity in decision-making in order for results to be predictable. In addition predictability of results is an indispensable element in deterrence and control. While there is no comparative data available from national systems, the generally available data, in those systems which keep statistics or have empirical data, indicates that accountability and control mechanisms within each of the sub-systems and at each level of decision-making within each sub-system is at best sporadic or spotty. It certainly is not of the nature to provide consistency in application and consistency and predictability in results. Among these inconsistent and unpredictable decisions and outcomes are the decisions: to arrest, to prosecute, to choose a certain type of prosecution, to impose a certain type of criminal charge and conviction thereof, and ultimately to determine sentencing and treatment of offenders. There appear to be few systems which have developed a control mechanism for tracking individuals who become part of the process from intake to disposition and eventual subsequent stages. Predictability is also based on perceptions, whether it is the self-perception of each of the sub-systems or the perception of the public as to the operation and results of each sub-system. In some criminal justice systems the public perception and the internal perception may coincide, in others they may conflict. It is interesting to note however that an assessment of the impact of public perception and internal systemic perception is not available in any legal system though admittedly such perception would be very difficult to measure. Nevertheless from a socio-psychological point of view there would be great interest in discovering the degree to which the public perception and the internal systemic perception interact and what their overall impact on the criminal justice system may be. For example, in some countries the criminal justice system is seen to be both appropriate and effective and as a result the self-image of the criminal justice system is that of appropriateness and effectiveness. The level of self-confidence within the system is thus increased and in turn that increases the public perception thereof and through that there is a mutual dependency that increases the levels of internal and external perceptions which may in and of itself create an environment of reliability and accountability. That type of environment induces compliance with both the norms and the spirit of the law. Conversely in other systems the public perception of the criminal justice system as a whole or as to one or more of its sub-systems is negative. The effect of that perception creates or increases the system's negative self-perception. Consequently the interaction of the two produces a spiraling level of negativism which reduces positive personnel morale, increases the confrontational aspects of 45 the relationship of personnel of various agencies involved and in general w1th the public. The results are a breakdown in the mechanisms of social control and the reduction of opportunities for accountability. Furthermore it certainly reduces opportunities for greater voluntary compliance by official personnel and by individuals who are subjected to the processes of a given sub-system because of the questionable nature of its consistency and predictability. The absence of control mechanism of accountability tends to bring about more rigid normative prescriptions. The consequence of such a situation is the rigidity and increased rigidification of the law and practices and particularly of the processes in question. Such rigidity may be manifested by an increase in legal norms and procedural requirements designed to reduce the level of discretion in order to eliminate misperceptions, misapplications of the law and individual misconduct by public officials. But this also increases the levels of tensions within the appropriate agencies and in their relations with the public. In addition, it also creates greater opportunities for adversariness and confrontational relationship. Thus by increasing the level of rigidity of norms as an alternative means for ensuring greater compliance with the letter and spirit of the law as shaped by both public and internal systemic perceptions, the processes lose flexibility and as a result of rigidity greater opportunities exist for individuals who enter the processes to evade its intended application. It also allows public officials who engage in misconduct to play the same procedural game as do accused persons by hiding behind forms and formalities. The evasion of the intended application of the criminal justice processes thus results in the increased number of unsolved crimes and the reduction in number of persons suspected or accused of crimes from being properly charged, accused or convicted and sentenced. Similarly it reduces the number of discovered and disciplined cases of official misconduct. As a result the public's perception of the ability of anyone to evade the process increases and with that comes a reduction of their confidence in effectiveness, fairness and credibility of the system. As a result of such a situation, there is a greater level of disparity in the equal application of the law to individuals who depending upon the availability they may have of resources and influence which would permit them to take the fullest advantage of the rigidity and formalism of the system. That too produces inconsistent results with respect to similar individuals 1n analogous situations, and adds to the lack of fairness and loss of credibility. Interestingly enough, in this respect the lack of consistency and equality in the application of the law is the product of legal formalities which are shaped by considerations completely extraneous to the purposes of the law. As a result such misapplications tend to shape future perceptions and values of a society with respect to the substantive law which at its turn may affect the process itself. Consider for example the fact that the unequal and inconsistent application of criminal sanctions has in many instances produced a higher level of recidivism and has also created conditions within detentional institutions that are not conducive to the rehabilitative ideal. Also, it might be said that the lack of consistency and equality in criminal justice processes in its operational aspects may at its turn reduce the level of deterrence of the system and increase the number of violations. The increased number of violations may reflect either an increased number of offenders or an increased number of violations per offender who escape or evade the system at one part or another thereof. As a result many countries have witnessed the abandonment of the rehabilitative ideal not as a result of a change in philosophy, but rather as a realization that operationally that ideal is no longer realizable. Conclusion A criminal justice system is a series of processes designed to deliver justice. The delivery of justice may be considered in its most theoretical forms an abstraction. In its practical forms it means the development of a system which has certain characteristics of uniformity, predictability, and consistency with accountability at each of its different decisional stages. A system that lacks any of these characteris tics misdelivers justice or does not deliver it at all. If it does deliver a form of justice it is one which lacks uniformity, consistency, predictability, and equality in treatment 46 during the process or lacks the same as to results and outcomes. Such a system no longer serves the purposes for which it is intended and established. While this question falls more into the sphere of criminology, it touches upon criminal justice policy and management techniques as well as other sociological, psychological and socio-psychological factors with which the International Society of Criminality is in a better position to deal with. VII CRIMINAL JUSTICE POLICY AND CRIMINAL JUSTICE PROCESSES The operational aspects of criminal justice systems are seldom taken into account in the development and shaping of criminal justice policy, even where such policy exists. In many states there is a tendency to proliferate criminal laws without regard to the impact of this proliferation on the operational capabilities and effectiveness of the criminal justice system. The proliferation of criminal laws may be due to a variety of factors. In some cases it may very well be due to the fact that a system which is unable to prevent and control a certain type of deviant behavior is misperceived. Rather than attempting to examine the operational capabilities and effectiveness of the system and develop corrective devices for its greater capacity of delivery of justice, the resort is to the easy temptation of increasing the level of criminalization. The increased level of criminalization without regard to its impact on the processes which are intended to administer these laws at its turn overburdens that system and delaying its functioning. Thus further reducing its capacity and effectiveness for delivery of the types and quality of services which they are intended to deliver reminding that justice delayed is justice denied. As a result the inability of the system to deliver these services frequently causes those who have the responsibility to administer its various segments to find ways to shortcut the letter or spirit of the law in order to achieve more effective results. Gradually such systems become more result oriented than means oriented. The first casualty of this situation is the quality of justice: in order to be able to continue to function and to accomodate the volume and quantity of business that the system has to deal with, controls and quality are reduced. Personnel within the system find themselves overburdened and frequently in adversarial and controversial positions with the public and with other legal institutions because the exigencies placed upon them by reason of their responsibi lities to enforce so many laws. Invariably equality, consistency, and mechanisms of control are sacrificed for expediency and volume handling. As these characteristics develop, new norms emerge which are designed to increase compliance with minimum standards of human rights as embodied in constitutional and other procedural norms. The result is a new spiral of formalities and procedural aspects which further burden the system and further reduce the ability of official personnel to comply with the newer norms and formalities while facing increased volume of crimes. Thus evasion and non-compliance. That at its turn feeds a negative public perception, sometimes supported by empirical data, that the system is unable to cope with the objectives and goals assigned to it in an effective and fair manner. One of the remedies for such a situation is decriminalization. Thus after increased criminalization produces an enforcement crisis comes the opposite reaction which is decriminalization. The absence of sound criminal justice planning causes the pendulum to swing from one extreme to the other. These and other questions of criminal justice policy are dealt with on a more consistent basis by the International Society of Social Defence (see Cahiers de defense sociale). They are also of concern to the International Society for Criminology, and to this Association which has devoted two conferences, one of which was the occasion of the first joint meeting of the Four Major Associations at the International Institute of Higher Studies in Criminal Sciences on the subject of philosophy of criminal justice and criminal justice policy [proceedings published in Volume 53, no. 3-4, 1982, of the Revue lnternationale de Droit Penall. Decriminalization occurs just as in the case of criminalization without regard to the processes that are intended to serve a legitimate decriminalization program. As a 47 result decriminalization is frequently seen as a way to dispose of cases with the maximum rapidity and with the least amount of involvement of the criminal justice system in order to reduce both costs and personnel needed to administer it. This then finds itself frequently in conflict with notions of minimum standards of human rights as embodied in constitutional and other procedural requirements. As a result the tendency becomes either to create a parallel mini-criminal justice system to administer those decriminalization measures or else to shift them to administrative processes which would appear less cumbersome and less laden with the formalities and requirements of the criminal justice system. That too, however, has proven in many cases unsatisfactory as it does not provide for sufficient consistency, predictability and equality of treatment. In many cases this insures to the benefit of those who are in a position to face the types of sanctions which are usually considered appropriate to decriminalization schemes and which are usually in the nature of fines or other types of administrative measures. This too provides a disparity in the application of that form of criminal justice. This Association is devoting particular attention the subject of alternatives to criminal processes as evidenced by the fact that one of the four topics of its XIII International Congress to be held in Cairo in 1984 will deal with that subject which has been the subject of a Preparatory Colloquium held in Tokyo in March 1983. The question of decriminalization and alternative mechanisms to criminal processes also involves questions of criminal justice policy and corrections to which the Internatio nal Penal and Penitentiary Foundation can bring its insights. It is interesting to note with respect to developing countries, particularly those which have a traditional history and culture of diverse applications of other forms of justice through a tribal system or a social or communal system of justice, that invariably the trend is to emulate the approach of the developed countries with all of the attendant problems. When these problems materialize these countries too tend to resort to imported modalities of decriminalization and other forms of diversion from the criminal justice process. They seldom revert back to their traditional culturally based alternatives, but rather move toward those alternatives which have been tried in developed countries without regard for the new problems that these solutions created in such societies. VIII THE IMPACT OF CONSTITUTIONAL AND OTHER PROCEDURAL NORMS ON THE ADMINISTRATION OF CRIMINAL JUSTICE In a recent study conducted by this Association, 103 constitutions of the world were examined in comparison with six international instruments on the protection of human rights in criminal processes. [Vol. 4, Nouvelles Etudes Penales (1982)1. The correlation of various constitutional principles indicates that a significant number of states at least theoretically share the same values, concepts, and to some extent norms concerning the rights of the accused throughout the criminal process, and explicitly or implicitly share the same approach as to the relationship between the accused and the criminal justice system throughout its various processes. Among these constitutional rights identified in the study in question which are also frequently embodied in procedural norms are (depending upon the legal system they may be raised by the accused during the various phases of the criminal process or exclusively at trial, or in some countries by special adjudication of constitutional issues before special tribunals or bodies): 1. the right to life, liberty and security of the person. 2. the right to equal protection of the law. 3. the right to be free from arbitrary arrest and detention, including: a) the right to due process. b) the right to be informed at time of arrest of the reason for arrest and notice of any formal charges. c) the right to question or challenge the legality of the detention (habeas corpus, amparo, tribunale della liberta). d) the right to provisional arrest pending trial. 48 e) the right to humane treatment during any period of custodial detention. f) the right to a speedy trial. 4. the right to be free from cruel, unusual, and degrading treatment or punishment. 5. the right to be presumed innocent. 6. the right to a fair trial, including: a) the right to challenge the inadmissibility of improperly obtained evidence. b) the right to an impartial and independent tribunal. c) the right to procedures established by law. d) the right to a speedy trial. e) the right to a public hearing. f) the right to be informed of the charges. g) the right to equality of arms. h) the right to counsel. i) the right to the assistance of the court in obtaining scientific evidence and expert witnesses. I) the right to be tried in one's own presence. 7. the right to assistance of counsel, including: a) the right to counsel of one's own choice. b) the right to appointed counsel for indigency. c) the right to self-representation. d) the right to an interpreter. e) the right to be present or to have counsel present during interrogation, trial, and stages of the criminal proceedings. 8. the right to a speedy trial. 9. the right to an appeal, including: a) the right to counsel on appeal. b) the right to a free transcript. 10. freedom from double jeopardy. 11. freedom from ex post facto laws. The six international instruments reviewed in the above mentioned study reflect the existence under conventional international law of the existence of these rights as internationally protected human rights. The significantly large number of constitu tions and procedural norms in the various countries which also protect them indicate that such rights may be considered part of customary international law and general principles of international law. They also indicate at least theoretically the great degree of similarity in philosophical concepts and values reflected in these specific provisions. Their embodiment in procedural laws and other normative prescriptions are indicative of an increasing similarity in the various legal systems of the world concerning the nature of criminal processes, their goals and the means they are intended to pursue. As such, when constitutional, procedural and normative prescriptions are similar in concept and values, their application even though different because of existing differences in the varying legal systems, tend to create a similarity in the processes and certainly a trend as to perspectives concerning the evolution of these processes. IX QUESTIONS RAISED BY THE DRAFT DISCUSSION GUIDE 1. With respect to question one, the foreseeability of social, demographic and economic change which must be taken in the account of criminal justice planning is more appropriate for discussion in Topic one, as it requires a high level of integration of economic development and social policy taking into account criminal justice impact of these considerations. To that end a meeting of experts gathered by the Crime Prevention Branch at the International Institute of Higher Studies in Criminal Sciences in Syracuse, January 10-15, 1983, has elaborated Draft Guideli nes which are appendend to the Draft Discussion Guide prepared by the Branch. They answer this question in specific terms. It is however dealt with in this Report in Section I, Ill, IV and VII. 2. Question two deals with the forms of cooperation and information flow between 49 the sectors of the criminal justice system in order to improve its performance. It is dealt with in this report in Section 5, The Criminal Justice System-Its Sub-Systems: Integration or Disintegration. The new approach proposed is to examine the four sub-systems of the criminal justice, not in terms of different segments hereof, but to attempt to formulate an integrated systemic approach to the four or at least a coordinated policy and oordinated and controlled application. While this can be done from the operational and systemic point of view, it would have first to overcome traditional perceptions and philosophies related to the separation of functions of these different systems. There is nothing however to indicate that an integration of the four systems at least structurally and operationally from the point of view of planning, personnel, allocation of resources, measuring outcomes, and the development of support systems such as the introduction of modern technology and the use of computers to track the flow of business based on individual cases from intake to disposition would necessarily be contrary to a humane philosophy or one which would not necessarily guarantee individual human rights. In fact what should be considered is a completely, if not radically, different approach to the concept of human rights. Rather than to examine the concept of individual human rights as being necessarily adversarial and confrontational within the type of traditional framework known in almost every legal system, as discussed in Section IV. The Systemic as Opposed to the Substantive Approach to the «Processes•• of the Criminal Justice System, one should look at it more in terms of developing systems of accountability and quality control within the system which would ensure that the decision-making process is used consistently, predictably, and fairly in accordance with certain rules within which a certain amount of discretion can be preserved but in which the discretionary aspect of the decision-making process could be based on certain controllable criteria which would produce accountability. Thus what may be needed is not less discretion but more discretion subject to certain controllable criteria and effective corrective measures. Such a new approach would invariably lend itself to an overall systemic planning for the whole system irrespective of its different components. That would not necessarily affect the autonomy or independence of prosecutorial authorities or the independence of the judiciary, because the independence of the prosecution and the judiciary can be preserved while maintaining certain verifiable guidelines with respect to discretion, decision-making, consistency, predictability and equaljty of application. The integration of the various sub-systems within a single system for purposes of planning, budgetary resources, personnel resources, systems operation, and other technological and support aspects will produce a more efficient system which at its turn will provide as discussed in Section VI, Characteristics of a system: Predictabili ty, Consistency and Equality-Realities and Perceptions, a greater degree of positive public perception or at least a public perception that will be more attuned to accepting the effectiveness and efficiency of the system. As that public perception increases it will have an impact on the morale of personnel within the system. At its turn as the system becomes more effective the public through the appropriate political structures is more likely to support institutional improvements and to allocate increased budgetary resources that are needed to accomplish it. 3. Question three deals with the impediments to the humane and efficient processing of offenders through the various stages of the criminal justice system. It appears that one of the main impediments to the humane and efficient processing of individuals through the various stages of the criminal justice system derives as discussed in Section IV from the lack of consistency, predictability, equality and abuse of discretion, either by the system itself, the manner in which it is applied or because the system following certain rules and regulations provides increased opportunities for some individuals based on their economic means and their political connections to evade its processes. As a result it is the disparity itself that produces one of the highest levels of inefficiency and lack of humane and equal treatment and application. It is clear that in this respect the criminal justice system must be structured in such a way to provide the least amount of opportunity for 50 interference from outside the system and from abuse of discretion within 1t. 4. Question four deals essentially with a mixture of two elements both of which are more criminological and policy oriented than legally oriented. They will be dealt in the other Associations' Reports. Nevertheless it must be noted that of the two elements, the first being the relevance of criminological and other research in the operation of the criminal justice system (see Section VII, Criminal Justice Policy and Criminal Justice Processes), and the second deals with operational effectiveness (see Sections V, The Criminal Justice System-Its Sub-Systems: Integration or Disintegration, and VI, Characteristics of a System: Predictability, Consistency and Equality-Realities and Perceptions). It seems important to distinguish between the two though the question itself does not. With respect to criminological and other research, this is a scientific component that is indispensable in the planning stages of the integration of the system as well as a measure of control of the system, a control which is both qualitative and designed to ensure compliance. The other aspect of the question deals essentially with operational effectiveness. That, too, is both an element of planning and of operational control which depends largely on the availability of technological means and resources either in terms of specific technology such as the use of computers and other scientific and technological means necessary for the system or in terms of the training of personnel of various stages of the system. 5. Question five deals with changes in work priorities of the police as one of the components of the criminal justice system. It is curious that this last question which is a more specific and particular one is formulated in that fashion and as the last question presented. It would be more accurately part of an initial question as to the role of personnel in each sub-system. In general that question is dealt with in Section a, The Criminal Justice System-Its Sub-Systems: Integration or Disinte ration; Law Enforcement. While it may be important to focus on the role of the police and its priorities, it is equally important to focus on the role of the prosecution and its priorities as in many cases we see that the same types of problems and difficulties occur in these two sub-systems. Law enforcement officers exercise a certain amount of discretion in a number of areas, such as in the decision to arrest or not to arrest, or the decision to label a given conduct as a certain type of crime, or even to gather certain types of evidence that may be more conducive to leading prosecutors to believe or not believe that a crime has been committed and what type of crime it is. This too may influence prosecutorial decisions and discretion. In very similar ways there is a certain amount of prosecutorial discretion (see Section b, The Criminal Justice System-Its Sub-Systems: Integration or Disintegration; Prosecution) either embodied in the system of some countries or even in those systems in which admittedly there is no prosecutorial discretion and where the penal action is mandatory, but on empirical examination there still appears that a certain amount of discretion does exist. The problem in both of these cases is essentially that such discretion is not the subject of any guidelines or criteria that can be predetermined and subsequently measured to assess both the quality of the discretion and its compliance with these criteria and guidelines and in order to make such decisions more consistent and predictable and to make those individuals who make such decisions accountable to the system (see Section VI, Characteristics of a System: Predictability, Consistency and Equality-Reali ties and Perceptions). The establishment of guidelines and criteria for law enforcement priorities is equally important for the prosecutorial level in order to achieve consistency in decision-making and predictability as to outcome. However with respect to law enforcement it seems that the shifting in work priorities will depend on a variety of factors. One of these factors is the volume of crime. The volume of crime is not determined by the number of crimes reported or committed but by the increased numbers of substantive crimes enacted which law enforcement has to enforce, without regard to the enforceability of these crimes or the capacity of law enforcement to be able to enforce those crimes. It must be noted that there is no established criminal justice policy within the legislative branch of government of most states to periodically re-examine existing substantive crimes in order to either eliminate unnecessary crimes 51 or to find alternatives such as diversion, mediation, and other mechanisms for the shifting of those types of violations from the normal channels of the criminal justice system to other ones. Almost invariably an increase in the . number of crimes (see Section VII, Criminal Justice Policy and Criminal Justice Processes) which law enforcement is intended to enforce is accompanied by an increase in both the number of crimes and the number of offenders while law enforcement has the same limited resources both in terms of general budgetary allocations, personnel, and scientific and technological means. This results in a decrease in the efficiency and effectiveness of law enforcement. This situation becomes more accentuated when the substantive crimes intended to be enforced are either beyond the reach of the law or at least beyond the reach of law enforcement by reason of the limitations that they have both in terms of resources and personnel. Consider for example such problems as prostitution and alcohol abuse. Because of limitations on personnel and resources, law enforcement in attempting to control prostitution will deal with its more visible aspects, that is street prostitution, and will ignore most other prostitution activities which are not visible to the public. The «Working priorities•• in this case reflect a discretionary value-judgment which is neither authorized by the law, nor controlled in terms of controllable administrative criteria and guidelines which could ensure consistency, predictability, equality, and accountability. What develops is disparity in the application of the law allowing poorer prostitutes to be more readily subject to the criminal justice system and the more wealthy ones or those with greater degree of influence to evade the process. Such a disparity will then in the course of time develop a multiplier effect. The multiplier effect creates both a public perception of the unequal application of the law and an internal perception within law enforcement that indeed the law is not intended to be applied equally to all because it simply is not so applied (see Section VI, Characteristics of a System: Predictability, Consistency and Equality-Realities and Perceptions). In addition, this situation of uncontrolled discretion based on administrati ve or individual decisions on «working priorities" creates a variety of secondary forms of criminality. For example those who seek to evade the law will seek protection through individuals who have administrative influence or other economic means to influence individual or policy decisions. Furthermore, the wider the discretion that will be available to law enforcement officers in making those decisions on an ad hoc basis will result in a greater potential for corruption within the law enforcement system itself. Clearly also there will be a gradation, a priority that will impose itself -on law enforcement, meaning that as certain more serious or violent crimes increase, resources and personnel assigned to lesser crimes will be reduced. Since there are no guidelines or criteria for such allocations of resources and personnel and no system of external accountability except on a purely administrative internal one that will likely be influenced by external considerations whether political or from public opinion. In any event it would not correspond to the general notion of equality of the law and equality in the application of the law. The same example to a large extent is true with respect to alcoholism. Clearly violations of alcoholic laws will be applied and exercised against those individuals who would be in such a condition in a public place and in a visible manner, and who will not have resources available to them to either remove themselves from the scene or remove themselves from the ambit of the system. Thus the priorities of law enforcement will be determined by certain practical considerations which have absolutely nothing to do with the law itself. However the absence of a criminal justice policy with respect to those questions will impede both the consistency and equality of the application of the law with very unpredictable results. Such a situation while leading to a greater perception of unequal application of the law will also create a great deal of discomfort and displeasure on the part of the public with the equality of the application of the law by law enforcement. This will not only create an increased perception of unfairness of the system but it will also create an animosity between law enforcement and the general public. In addition, this will create an increased opportunity for influence and interference of influence whether political or otherwise in the administration of law enforcement activities, and it will also introduce an element of potential corruption within law enforcement agencies. 52 All of this of course to the detriment of the sound administration of criminal justice. There is finally another question which is not raised by the Draft Discussion Guide but which should be taken into account and to which the International Association of Penal Law has devoted a great deal of its attention in the past 50 years-the question of international criminal law and its enforcement. There are nowadays two increasingly more serious forms of crimes: international crimes and transnational crimes. At this juncture in history we still unfortunately do not have an adopted international criminal code that codifies the various international crimes in such a way so as to produce a greater level of absorption of these crimes into the various national criminal justice systems. This Association devoted a number of Congresses, Preparatory Colloquia and Regional Meetings to this topic and has sponsored a study undertaken by this writer on the codification of international criminal law which was presented at the Vlth United Nations Congress on Crime Prevention, Caracas, 1980, and reprinted in Revue lnternationale de Droit Penal, Vol. 50, No. 1-2, and Commentaries on the Project in Volumes 3-4 (1981 ). In addition there are few mechanisms and methods of international cooperation with respect to international and transnational crime control, though the Council of Europe has done much in this respect. While theoretically those methods are fairly well known and have been for some time, such as extradition, judicial assistance and cooperation, recognition of foreign penal judgments, transfer of criminal procee ding, taking of evidence abroad, transfer of offenders, supervision of the conditionally released, and others, these mechanisms unfortunately not integrated and in many cases are not sufficiently developed in the laws and practices of a number of countries. As a result they do not find significant application in the processes of criminal justice. When one examines the four sub-systems of criminal justice one finds very few among the personnel in each one of these sub-systems are knowledgeable about these matters and very few resources are allocated to these different sub-systems to deal with international and transnational forms of criminality. As various forms of international and transnational criminality increase, particularly in the area of international traffic in drugs and such crimes as terrorism and computer criminality and other forms of financial frauds and economic crimes more trained personnel and legislative initiatives are needed. (A conference on that subject was held at the International Institute of Higher Studies in Criminal Sciences, the proceedings of which were published in the Revue lnternationale de Droit Penal, Volume 53, No. 1-2 (1982), it is also one of the four topics of the Xlllth International Congress of this Association and has been discussed at a Preparatory Colloquium held in Freiburg in Sptember 1982). The national criminal justice systems are very frequently incapable of dealing with these crimes through their existing processes evidencing a need of more significant research and development and increased international cooperation. Conclusion Topic Two illustrates the indispensability of multi- and inter-disciplinary approaches to criminal justice processes. That is why it is such a propitious topic for the Four Major Associations to discuss. While each Association will undoubtedly bring its separate focus to the topic under discussion, there is no way that the topic can be dealt with without regard to other disciplines and methodologies. That is why this report did not seek to be purely legalistic, but to relate legal assumptions to the issues of "processes, and "perspectives» in accordance with the formulation expressed in the Draft Discussion Guideline. That document clearly emphasized non-legalistic and non-juridical concepts. It was in keeping with this perspective that this report was formulated. Hopefully it does not encroach too much on the other disciplines that will be reflected in the other three reports. The following are among the major conclusions of this report. Combining the systemic similarities between criminal justice systems and their sub-systems, their problems and solutions, and the similarities in constitutional and procedural approaches to individual rights and the relationship of individuals and the criminal justice processes, it is clear that a great degree of similarity exists and is likely to further develop within and between criminal processes. Such a pattern in its development and growth leads to the conclusion that future perspectives are for increased similarity between criminal 53 justices processes notwithstanding the apparent differences in legal systems, ideolo gies, forms of government, economic systems, social structures, and cultures of the various countries in the world. This trend which may well be said to be irreversible in the evolution of criminal justice systems is likely to produce within these systems increased similarity not only as to the systems themselves, their sub-systems, their operations, but as to the types of problems that are likely to emerge and the solutions that are likely to be applied thereto. Only a radical and dramatic change in concepts, values, institutions, structures, and processes can alter this perspective. Such a radical perspective can only be the product of sound criminal justice policy, its planning, and execution, based on multi - and inter-disciplinary comparative research at all levels, and the sharing of such information and knowledge among all countries of the world. Furthermore it must take into account new technological and scientific means and methods including new systems management and systems analysis in order to maximize efficiency and effectiveness without sacrificing quality, and while preserving controls through effective accountability designed to insure the integrity of the processes, the preservation of individual human rights, and the protection of society. Law in the final analysis is the embodiment of social values. Procedural laws in particular are the means to achieve the results postulated by substantive law. There is nothing inherently fixed in procedural laws that cannot be altered to achieve the more desirable effects of an effective and efficient system of criminal justice which preserves the integrity of the law and its institutions, protects the legitimate collective interests of society, and guarantees the preservation of individual human rights. BIBLIOGRAPHY F Allen, The Decline of the Rehabilitative Ideal· Penal Policy and Social Purpose (1981) Archives de Po11t1que Crimmelle vol 1-5 M Ancel, La Defense sociale nouvelle (3d rev ed 1981). M C. Bass1oun1, International Extradition in U.S. Law and Practice 2 vols. (1983). - The Islamic Criminal Justice System (1981). -International Criminal Law: A Draft International Cnmmal Code (1980). - & V Savitsk1, The Criminal Just1ce System of the USSR (1979) -,Substantive Criminal Law (1978) -and V.P Nanda, A Treatise on International Criminal Law, 2 vols (1973) -«The Common Charactenstics of Conventional International Criminal Law, 15 Case Western Reserve J. lnt'l L 25 (1983) - «The Proscnbmg Function of International Cnmmal Law in the Processes of International Protect1on of Human Rights. A Contmuum of Two D1sciplmes .. , Yale J World Public Order (1983) m pnnt) - «A Survey of the Major Cnmmal Just1ce Systems m the World .. , m D Glaser (ed.) Handbook of Cnmmology (1974) p 527 A. Benstam, Medidas Penates en Derecho Contemporaneo (1974) A Blumstem (ed.) Handbook of Criminal Justice Evaluation (1980) Boulding, Some Questions of the Measurement and Evaluation of Orgamzat10n, Eth1cs and Busmess (M Cleveland & M 0 Laswell eds. 1962). W Clifford, Modern Trends in Crimmal Just1ce Administration (unpublished address to the Australian Institute of Public Administration, Sydney, 4 Nov. 1982) W Clifford (ed) The Management of Corrections in As1a and the Pac1f1c (1983) M. Clmard & D. Abbott. Cnme in Developing Countries, in G Cole, S Frankowski & M. Gertz, eds., Ma1or Cnmmal Justice Systems (1981) Cnminal Justice in As1a· The Quest for an lntegraded Approach (Unafe1 1982) «The Crimmal Justice System of the Federal Republic of Germany .. in Nouvelles Etudes Penales, vol 2 (1980) -«La Cnmmalite des Affaires,, in Revue lnternationale de Dro1t Penal n. 1-2, p. 53 M. Delmas-Marty, Modeles et mouvements de politique cnmmelle (1983). 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Newman (ed.) Cnme and Deviance. A Comparattve Perspective (1980). T Parsons, «A Paradigm for the Analysis of Social Systems and Changes .. , 1n T Parsons, E A Sh1ls, K D Naegele and T.R Pitts (eds.), Theories of Society (1961) A. Peyrefitte, Reponses a Ia violence (2 vols 1977) «La ph1losoph1e de Ia Just1ce penale et Ia pol1t1que cnminelle .. , Revue lnternationale de Droit Penal No 3-4 (1982) G.D. P1sapia, Compendia di procedure penale (2d ed 1979). J Pradel, Procedure penale (2 rev ed. 1980). C Roxm, Kriminalpolittk und Strafrechtssystem (2d ed. 1973) Schlesmger, «Comparative Cnmmal Procedure. A Plea for Utilizing Fore1gn Expenence", 26 Buffalo L Rev, p. 361' (1977) L. Shelly, Cnme and Modernization (1981). - Readmgs in Comparative Criminology (1981 ). J Sutherland, Systems (1975). U.N Doc. A/CONF. 121/PM 1, 4 Apnl1983: D1scuss1on guide for the reg1onal and 1nterreg1onal preparatory meetings for the Seventh United Nations Congress on the prevention of cnme and the treatment of offenders ANNEX, Guiding Principles for Cnme Prevention and Cnmmal Just1ce m the Context of Development and a New Econom1c Order G. Vassalli, «Politica crimmale e s1stema penale .. , in II Tommas Natale 1001 (Anno IV 1978) Max Weber, Essays in Sociology (M.M Cierth & C.A. Wills ed 1946). 55 General Report of the INTERNATIONAL SOCIETY FOR CRIMINOLOGY by Albert J. REISS, Jr. Professor of Sociology Yale University, New Haven INTRODUCTION It is commonplace to say that we live in a rapidly changing world, one in which material and nonmaterial technology is the source of many changes. Yet, as William Fielding Ogburn writing in 1922 concluded, changes in culture and social organization lag behind changes in technology. Nowhere are such cultural and organizational lags more apparent than in our criminal justice systems which, though changing, are slow to adjust to the changes in technology and organization of a changing world. This paper examines a few major changes in our modern world, drawing attention to their consequences for crime patterns in our societies. The implications of each change for penal policy and the control of crime in the future is then considered. Observations about lags in the adaptation of criminal justice systems to a changing society also are made. MAJOR SOCIAL CHANGES AND THEIR IMPLICATIONS FOR PENAL POLICY AND CRIME CONTROL Growing Interdependence of Nation States Perhaps the change of which we are least aware in our everyday lives, yet among the most powerful and consequential for daily livmg, is the growing interdependence of our nations. What happens in the economy and polity of any nation state frequently has major consequences for all. The larger and more powerful the nation state, ordinarily the more far-reaching the consequences. Yet the capacity of small nations to affect the course of the large is one of the continuing lessons of history. I shall not dwell here on the many ways that changes in one society affect others. Rather, I want to draw attention to a major consequence of the growing interdependence and coexistence of nation states for crime and criminal justice, viz.: an ever increasing amount of crime grows out of and is facilitated by their interpendence and its commission transcends national boundaries. The control of transnational crime, however, lies beyond as well as within the boundaries and power of any nation state. The Revolution of Organizational Life Among the powerful changes in modern life is the growth in the form and size of modern organizations. In some of our societies, the population of organization now is larger than the population of persons. More important, perhaps, is the substantial growth in the number and kind of transactions among organizations and the growth of multinational corporations. Of these two developments, we have become most aware, in recent years, of the growth of multinational organizations and their effects on other societies, especially those in the Third World. Perhaps far more consequential for the growth of crime and its control by nation states, nevertheless, is the growth in organizational transactions that transcend national boundaries. Such transactions often do not involve multinational corpora tions whose existence is quite visible. Rather, they involve a host of smaller 56 organizations engaged in all kinds of legal and illegal exchanges. Many of these organizations are legally constituted but a substantial number are illegal and hence less visible. International transactions among organizations are facilitated by the growth of the modern technology of exchange that makes possible electronic transfer of information and of assets and liabilities, by modern means of transportation that shorten substantially both time and distance to exchange, and by modern forms of organization. Networks especially make many transactions difficult of detection -from laundering money to linking legal and illegal organizations in exchange. These changes in the scale of organizational transactions and the growth of multinational organizations have led to a substantial growth in transnational crime. By transnational crime I refer to cnmes that are committed by persons and organizations in two or more nation states or whose commission takes place in two or more nat1on states. Where both of these conditions exist, the crime is especially difficult of detection and prosecution, partly owing to the cumbersome nature of our crimmal justice systems for detecting and prosecuting cnminal matters involving international conspiracy and exchange. Transnational crimes are of many sorts including a substantial number of different kinds of economic and political crimes. The core characteristics of these crimes and the difficulties they create for a criminal justice system are illustrated by reference to a few such crimes that have attracted attention in my country. The New York Times special correspondent from Bonn, FRG, reported the following on April 12 of this year under the headline «7 Tons of Toxic Waste Vanish in France». «Environmentalists and four Western European Governments are trymg to find out how 41 steel drums containmg more than seven tons of industrial wastes, mcludmg the h1ghly tox1c diOXIn, could virtually d1sappear 1n the heart of Europe. «The search has led to compan1es m Switzerland and France that have only one employee and were evidently used to blur the trail of the wastes. "A steel products company that seemed to have no relat1on to the dioxm agreed, under pressure from Italy, to dispose of the wastes It subcontracted the job to a company 1n Switzerland whose only employee is an executive of the company that owns the plant that produced the waste. He gave the job to a longt1me fnend who shipped the waste to France, its last known location. «The wastes came from a fertilizer plant at Seveso, Italy, that IS owned by the Sw1ss pharmaceutical company, Hoffmann-La Roche. Th1s is the same plant at wh1ch an explos1on in 1976 spewed a cloud contaming dioxm, a by-product m the production of pest1c1de. over several northern Italian towns, causing human illness and the death of many an1mals Mmute amounts of d1oxin have been associated with b1rth defects and Increased mc1dence of cancer. GREENPEACE FINDS TRAIL «In the current case, environmental groups began lookmg for the waste matenal last October. Katia Kanas, of the Greenpeace environmental group m Pans, said in a telephone conversation that Green peace d1scovered that the wastes had been shipped from Italy by a company in Marseille called Spelidec, a French acronym for Society for the Research and Removal of lndustnal Wastes, to a French customs depot north of Paris It IS not known where the wastes went after amvmg at the depot. «French officials last month jailed Spel1dec's pres1dent and sole employee, Bernard Peringaux, after he refused to disclose the location of the wastes. «West Germany jomed the search th1s month after France's Environmental Minister, Huguette Bouchardeau, said West German companies m1t1ally bid to remove the wastes. She sa1d there were md1cat1ons they m1ght be 1n West or East Germany. East Germany does much toxic waste removal busmess w1th Western countnes to earn badly needed hard currency. «Hans-Gunter Kowalski, a Bonn lntenor M1nistry spokesman, sa1d documents supplied by Hottman-LaRoche and Mannesmann, a German steel products company, helped trace the wastes as far as France but cast no light on their ultimate destination. "Accordmg to these documents, Mannesmann ltaliana A G., an Italian tradmg company partly owned by Mannesmann, agreed last year under pressure from Italy to remove the wastes from the country 57 ODD LINKS FOUND «Reporters from the Swiss newspaper Sonntagsblick discovered that Mannesmann subcontracted the removal to a Geneva-based company called Etablissement Wad1r, whose president and sole employee. a Swiss named Andre Maurer, is also listed as an execut1ve of Robertet and Compagnie S.A, a Geneva-based company sa1d to deal in perfumes, cosmetics, and 'technical services' «Oddly, they discovered that Robertet's corporate parent IS Hoffman-LaRoche and that Robertet owned the Italian fertilizer manufacturer, lcmesa, that operated the Seveso plant. They also discovered that Mr. Maurer was a lifelong friend of Mr Peringaux, the Spelidec official Jailed by the French for hiS part m the transport deal. The Sw1ss are now invest1gatmg also. «According to Mr. Kowalski, the 41 steel drums were trucked to France last Sept. 10 and declared for customs officials as "chlonde denvatives of aromatic hydrogen products'. «Mr Kowalski said West Germany is satisfied the wastes are not there "M1ss Kanas, of Green peace, said her organization now assumes the wastes are e1ther in France or were 'taken care of illegally', by dumpmg or burnmg at sea. «In Paris, a spokesman for Mrs. Bouchardeau said France was wa1tmg for the results of an invest1gat1on of Mr. Peringaux. He said the Government did not know where the wastes were». To emphasize the importance of these transnational organizational transactions, the following assertions of fact in this news story are drawn to attention: Firstly, four West European governments and their law enforcement systems (France; Federal Republic of Germany, Switzerland, and Italy) are involved in trying to determine whether and where crimes occurred and the individual and organiza tional responsibility for them. East Germany also may be linked in the network of these Western countries since it is said that the East German government does much business with them in disposing of their toxic wastes because of its need for hard currency. Secondly, there were at least seven private corporations and a French customs depot forming part of the transaction network. Thirdly, organizations ranged in size from a large Swiss multinational pharmaceutic al company whose conglomerate included companies in Italy and South America to a small Swiss company with one employee. Fourthly, one can reasonably conclude that the small and the large organizations are linked in a network, given the corporate and corporate officer ties among them. That network seems especially and perhaps specifically designed to facilitate illegal activity of a special kind-in this case the illegal disposal of toxic wastes. Fifthly, it is possible that government organizations may also be involved in the network of illegal disposal since the trail is lost at the French customs depot north of Paris. And, finally-and perhaps the most grim possibility for contemplation-is that the ultimate destination of the crime is dumping or burning at sea, presumably in international waters. Before leaving this case, one should contemplate the many different kinds of problems such criminal transactions create and how our interdependence brings them about. We can begin by observing that traditional notions about crime scenes and where crimes occur are not easily resolved where there are international transactions. Nor is it apparent that one can easily identify as ••Criminals, the many persons and organizations that probably were involved in this presumptive crime (it may be impossible to formulate the criminal activity in such a way that it can be dealt with even as many crimes). What seems apparent on examination is that transnational crimes often are characterized by organizational actors and networks among them that are designed to facilitate legal and illegal activity. Some organizations may be specialized in illegal actions, such as in the illegal disposal uf toxic wastes; others are engaged in legal activities but participate in some illegal actions; still others may be front organizations for organized or syndicated crime. All these and many more organizational possibilities exist. What these transnational criminal transactions attest to is that they are becoming a substantial crime problem. 58 In the next decades they well may challenge our criminal justice agencies' capacity to detect and process these events as crimes, requiring as they do international vehicles for detecting, solving, and processing them as well as substantial investments in time and resources. Our governments and their organized criminal justice system are not now organized to cope with transnational crimes. Two other types of organized criminal activity increasingly take on a transnational character: organized or syndicated crime and political criminality. They are based increasingly in international networks and transnational transactions that are less amenable to traditional forms of detection and prosecution. Our traditional criminal justice systems are organized to treat both organized crime and political criminality as internal or domestic matters and, indeed, there is considerable variation among the countries of the world in time, place, and rates of these types of crime. Yet, the growth of international networks of production, distribution, and consumption of illegal goods, including drugs, weapons, political intelligence, and contraband of all kinds, makes it increasingly difficult for nation states and their criminal justice systems to cope with these crimes relying on their own resources. One of the consequences of our interdependence in the modern world is that national boundaries are more easily penetrated. The growth of common markets and the dependence of nation states upon the rapid movement of goods in international trade increase the problems of detecting the flow of illegal goods. The movement of persons in illegal activity likewise is facilitated by the loosening of barriers to movement among nation states. A whole host of modern conditions ranging from the rapid expansion of tourism as a source of state revenue and of businessmen seeking international trade also provide opportunities to facilitate network transactions through personal contacts. All of these loosened barriers to movement and exchange facilitate the growth of networks and their use for illegal as well as legal activity. We have not paralleled their growth with a highly developed criminal justice network that is their equal. Yet, it is clear that such networks are essential to deal with transnational crimes. Interpol, an organization specializing in international law enforcement information, is one organizational network that has arisen to cope with the rising tide of international criminality. It is hardly of the scale and magnitude required to meet the problems of transational crime, however. Beyond a few such international organizational efforts to deal with transnational crimes, a patchwork of diplomatic and other agreements has evolved that are not open to accountability. Still other formal and informal arrangements among internal intelligence units violate the basic guarantees of a system of law enforcement and justice in democratic societies. The next decades then will witness not only a growth in transnational crime but of challenges to nation states to evolve organizational means for dealing with them. This will be no simple organizational task if the means of detecting and sanctioning offending in transnational crimes are not to violate the tenets of criminal justice of each nation state while at the same time proving effective in coping with the problems of law enforcement. The task is not a simple one, moreover, since the problem is how to deal with organizational as well as individual offending. The power of organizations both to carry out and to cloak offending is far greater than that of individuals (Katz, 1979). The Social Science Revolution The emergence of social science and its technology is one of the silent revolutions of modern times. We are inclined to take notice of the revolution in natural and physical sciences and the spectacular engineering based on it. Who is there, for example, who does not stand in awe and fear of the marvels of space probes and genetic engineering? We are inclined, however, to take social science for granted and ignore or be unaware of the technology it has created. Yet, modern society could not run as it does without the technology of social science. Modern education and the modern corporation-indeed the modern State-rests upon the social science created technology of testing. Whether we are selecting astronauts for 59 space flights, personnel for corporate or government positions, entrants to higher education, or inmates for prison programs, we use the social science technology of testing. Modern societies likewise rest to a growing degree on the technology of the survey as a form of intelligence. It would be hard to imagine political campaigns in western nations or marketing in post-industrial capitalist societies without surveys. These are but two examples of the powerful technology we have developed with modern social science. Among some others that have had enormous consequences are the emergence of demographic accounting, of economic and demographic forecasts, of a social statistics and an econometrics, psychometrics, and sociome tries. Our understanding of networks, for example, is enormously enhanced by sociometries. This silent revolution in social science has changed considerably criminological science. Modern criminology is characterized not only by forensic science but by social science. Indeed, it is the social science revolution in criminology that has had profound effects upon current policies and programs in criminal justice. One may conclude justifiably that research in criminology has shaped substantially current criminal justice policies in our nation states. A number of recent reviews of criminal policy and.. research in criminology (Anttila, 1978; The National Swedish Council for Crime Prevention, 1978; Szabo, 1978; Forschungsgruppe Kriminologie, 1980; Jescheck, 1980) make abundantly clear how dependent criminal justice policies are on the results of research. The extent to which criminological research of the last decades is responsible for the current crisis in formulating, promulgating, and implementing criminal justice policies is not altogether clear. Yet there should be substantial agreement that current policy decisions in law enforcement and criminal justice are determined more by social than forensic science or by jurisprudence. Debate about criminal justice matters no longer can ignore criminological research relevant to the argument. Criminal justice policies, and decisions, and their implementation, moreover, must be consistent with empirical inquiry if they are to survive. Criminological research leading up to the current crisis in criminal justice policy in the United States may serve to point up the importance of social science criminological research to policy formulation and implementation. Apart from the impetus individual program evaluations provided to question existing policies and practices in criminal justice, the catalyst for reexamination was a policy journal review of several decades of research evaluating programs designed to rehabilitate offenders (Martinson, 1974). The conclusion of that review was that either none of the rehabilitative programs for delinquent and criminal offenders work very well or that they all work equally poorly. This led, in turn, to an evaluation of research on rehabilitative techniques in criminal justice by a scientific panel of the prestigious U.S. National Academy of Sciences which concluded that << ••• we do not know of any program or method of rehabilitation that could be guaranteed to reduce the criminal activity of released offenders, (Sechrest, et. al., 1979; p. 3). Earlier another panel of the Academy (Blumstein, et. al., 1978) had concluded that the criminological research on the deterrent effects of sanctions did not permit the conclusion that criminal sanctions, including capital punishment, could have a substantial impact on the crime rate (1978; pp. 58,62) but that incapacitation of offenders undoubtedly affects the crime rate. The magnitude of an incapacitation effect, however, depends upon how effectively individuals with a high rate of offending are selected for incapacitation and the lenght of incapacitation (1978; pp. 64-84). Subsequent research by criminologists at the Rand Corporation held forth the promise of reductions in crime rates by selective incapacitation of offenders (Chaiken and Chaiken, 1982; Greenwood, 1982). Research in criminology is a tentative process and it would be mistaken to conclude that there are definitive bases for formulating and implementing social policy based on criminological research in any country. What implications for the future relationships of criminological research to social policy can we draw from the role research has played in this recent crisis in criminal justice policy? Can and will 60 research play a role in formulating criminal justice policy that does more than evaluate current programs? There are two major implications we can draw from an examination of the past relationship between criminological research and criminal justice policy. The first of these is that we shall need to be far better scientists in our future than in our past evaluation research if we are to have a substantial impact on developing new as well as challenging present criminal justice policies. The report of each of the USA Academy of Sciences panels makes this abundantly clear. For, the major conclusion of both reports is that the design and methodology of almost all of the studies on the effects of sanctions and rehabilitation are too weak to warrant firm conclusions. Among the major faults are small sample sizes, weak methods of data collection and analysis, and a failure to monitor whether the experimental conditions actually were carried out as intended (Blumstein, et.al., 1978; p. 58; Sechrest, et. al, 1979; p. 6). The lesson is clear: criminological research must meet the highest standards of scientific experimentation and investigation if it is to stand the test of utility for law enforcement and criminal justice policy. The second major implication drawn from these reports is that research often fails because policy-makers and those who implement practical programs fail to involve the research community in the design of the treatments or proposed changes. In the words of one of the panels: «Since most of the research opportunities in deterrence arise from legislatively or administratively imposed changes in sanctioning behavior, improved designs will usually require an increased awareness of changes before they are enacted. This will enable researchers to plan their research more carefully and perhaps influence the actual implementation of the changes ... (Blumstein, et.al., 1978; p. 58). In the words of the other, ccWhen it is asserted that nothing works, the Panel is uncertain as to just what has ever been given a fa1r trial. If we are to arrive at sound conclusions about the prospects for rehabilitation, future research on offender rehabilitation must pay far more attention to issues of strength and integrity of treatments along with adequacy of experimental design .. (Sechrest, et.al., 1978; p. 8). Criminologists have emphasized that many, if not most, treatments in criminal justice programs are undermined by a host of impediments, including the recalcitrance of bureaucratic officials to alter the behavior required in the treatment change, targeting the wrong clients, resistance of the professional staff to innovation, and inappropriate location of the program for testing (Klein, 1979; p. 4). The lesson for policy makers and administrators is clear: scientific criminology can evaluate the effectiveness of what they are doing only if they are organizationally able to guarantee the integrity of changes that are to be evaluated. The failure of much research of the past decades to yield definitive results is not only a failure of scientific rigor but a failure of administrators to insure the integrity of their innovations or continuing programs for either evaluation or intended effects. These implications should not blind anyone to what lies in the future for the relationship between criminological research and criminal justice policy. The continued growth and increasing strength of social science technology and the dependence of the larger society upon it means that criminal justice policy-makers cannot escape from having their programs evaluated and investigated by research. Often they will be mandated to do so by legislative statutes or by commissions of inquiry or accountability. It is too early to say whether there will be considerable conflict as that dependence of policy makers and administrators upon research becomes unmistakable. There will be differences for European as compared with British, Canadian, and USA policymakers and criminologists. For as Szabo (1978; p. 70) has observed, European policy has been dominated more by jurists and juridic language whereas that of the latter countries is dominated more by scientific criminology. But the gap among the countries will narrow rather than widen in the next decades and all countries will have to rely more heavily upon scientific criminology. Criminal justice policy cannot escape the consequences of the quiet revolution of social science and its technology in our modern societies. 61 The Changing Status of Age Historically most societies were highly age graded, even when particular statuses, such as that of children, were not always recognized. Modern societies have blurred distinctions among age groups. Old statuses, such as that of adolescence, have become marginal ones, especially for treatment in criminal justice systems (Reiss, 1960) and new ones, such as retirement from the work force, have been created. More recently, some societies have extended major entitlements to young age groups so that one can think of many adult statuses beginning at much younger ages. In the United States, for example, there has been a downward shift in age eligibility for many government benefits, the right to decide matters without parental consent (such as in obtaining an abortion or practicing mechanical or biochemical birth control), and enfranchisement. Evidence that the transition is not altogether uniform is found in upward as well as downward shifts in the age at which one is eligible to purchase alcoholic beverages. Still it is clear that in most post-industrial societies more and more young persons are treated universalistically under the law and by changing customs they are accorded the status of adults. Young people, moreover, in their peer culture and practices have abandoned many of the age-graded norms of their parents. The growing entitlements of young people in our societies and the gradual disappearance of much age grading may have enormous consequences for how we deal with age criteria substantively and procedurally in the criminal law and of how we enforce and administer age-graded provisions. We shall consider only a few implications of the changing status of age on policies and practices in law enforcement and criminal justice. There long has been an interest in criminology in models that predict who will become delinquent or embark upon a criminal career, to select offenders for treatment on probation or parole, or to classify offenders who are incapacitated or under supervision. Those efforts are so well-known that they do not require documentation. In recent years there has been a growing consensus that there are substantial errors (both false positives and false negatives) in making predictions and that their utility for selection is similarly compromised. Despite substantial doubts about how reliably one can predict criminality and criminal careers, there is a growing demand for the development of instruments that will predict individual rates of offending (careers in crime) because they have substantial utility for the rational management of our criminal justice system (Greenwood, 1982; Moore, et. al., 1983). Arguments also have been advanced that value objections to selecting classes of offenders, such as violent offenders, are exaggerated (Dershowitz, 1970), as are arguments doubting the possibilities of developing efficient instruments (Monahan, 1981 ). The historical record of their use in incapacitation points to systemic as well as statistical grounds for being doubtful about their future utility (Radzinowicz and Hood, 1981). Yet, one can expect that considerable effort will be expended in the next decades to measure individual rates of offending, the length of criminal careers, and their seriousness, given the demand for their use in selective incapacitation and classification of offenders. Both the growing emphasis on selective incapacitation of offenders and the shift to a more punishment-centered system of criminal justice in some countries depend upon the capacity of the criminal justice system to identify persons with different rates of offending, for it is the individual's rate of offending that is becoming the pivotal concern of criminal justice agents in deciding what shall be done with each individual. From these concerns, it follows quite readily that we probably shall return to earlier concerns of how and at what age one can identify career offenders (Wolfgang et.al., 1972), of whether the age of an offender shall affect the choice of treatment, and of whether there is an age at which one can identify juvenile as distinct from adult offenders (Zimring, 1981 ). These questions of the relationship of age and individual rates of offending raise fundamental questions about the relationship of age to crime and of age status to processing in a criminal justice system. Among the questions raised that research 62 in the next decades undoubtedly will address are these. Is there an invariant relationship between age and crime and, if so, can one logically and empirically separate offenders on the basis of their age? It is noted in parenthetically that a recent meeting of the research criminologists of the Council of Europe examined the more narrow issue of the relationship of age to sexual offences, noting the considerable variation among the member countries in how such offences are processed by the age of offenders. If one continues to maintain juvenile jurisdiction separate from adult jurisdiction in the violation of law, to what extent and when shall one consider the rate of offending as a juvenile in defining an adult career? How do the jurisprudential and value assumptions about diminished responsibility fit with empirical research on age and behavior that violate the criminal law? Is either age or diminished responsibility logically and empirically related to their differential treatment in a criminal justice system? The coming decades may witness then a fundamental reconsideration of the use of age as a criterion in the substantive criminal law and renewed questioning of the traditional separation of juvenile from adult jurisdiction in many of our criminal justice systems. As our understanding of the relationship of age and crime and age and individual and social change are better understood and elaborated, we may alter the current organization of our justice systems. Indeed, such reordering may very well fit in with some changing conceptions about young people and their status in modern societies. For one of the characteristics of our changing society is changing mores, changing norms, and changing behavior at all ages. How legal entitlements and responsibilities of age shall conform to the social ones is in itself a dynamic process in each of our societies. The Growth and Extension of Individual Rights and of Individuation Liberal democracies are centered around the preservation of individual liberties and civil rights. Traditionally, persons who experienced criminal sanctions, especially that of incapacitation, were deprived of major liberties and of their civil rights. From the perspective of the social contract, criminal offenders by their behavior had lost their entitlements; historically they might be transported, banished, or designated as outlaw, if not subject to the most exclusionary of all punishments-the death penalty. The twentieth century has seen considerable erosion of traditional notions of sanctioning offenders. Capital punishment has either been abolished in most western countries or substantially restricted in the scope of crimes to which it applies. Sentences have been substantially shortened in most countries and the range of alternatives to sanctioning has broadened. Whether as the result of the ideology that offenders shall be treated and rehabilitated or as a consequence of a common cause valuing the integrity of each individual, the trend towards recognizing the individual rights and integrity of persons charged and sanctioned under the criminal law has accelerated. Nowhere is this extension more apparent than in the way that prisoners are accorded civil rights and privileges previously denied them. The movement for prisoners' rights may well have originated and grown more rapidly in Scandinavian than in other western countries. There perhaps are somewhat different social sources in each country for the growing support of the rights of the accused and sanctioned before the law. In the USA, the impetus has come from such diverse and paradoxical sources as the civil rights movement and prison riots. Regardless of the specific source of change in individual countries, there has been a substantial expansion of the rights of the accused and of the sanctioned in many western countries in the past two decades. But there is growing evidence that these concerns now are attenuated (Jescheck, 1980). Although these trends are poorly monitored in any society, there is some reason to conclude that the liberal democracies may well have reached a plateau in reducing the disparity between the open society and the closed one of corrections and that movements to extend the rights of offenders may have peaked. This change in emphasis is especially 63 apparent in countries where there is a parallel and growing emphasis on victims' rights. The victims' rights movement signals changes as well in the choice of sanctions since one of its focal concerns is restitution. Although western countries vary in the extent to which restitution is used as a sanction and its use, in turn, depends upon the capacity a society provides offenders to make restitution, emphasis on victims calls attention to neglect of them in our criminal justice systems. Among neglected victims are organizational victims. These include not only the formal organizations that are part and parcel of our organized communities but entire neighborhoods within larger residential communities. For a predominant fact of crime in all societies is its concentration rather than dispersion in space. The burden of common crime in our societies falls disproportionally on the residents, businesses, and other organizations of some and not other areas of our residential communities. One of the major concerns of residents in our societies, during the last few decades is a concern for the quality of life lived in society. In some parts of Europe, such as Scandinavia, elaborate efforts have been made to develop indicators of the quality of life (Allardt, 1977). In other parts of Europe and North America-most notably perhaps in the Federal Republic of Germany and Austria-one sees powerful political movements based on controlling selected aspects of the quality of the environment-its pollution by toxins and nuclear power. Part of a concern for the quality of life is a concern also for the moral quality of life in communities. Where crime levels are high, residents live in fear of victimization by crime. Their communities show the evidence of crime in vandalism or in measures taken to prevent residents from victimization. Our western nations vary considerably in their crime levels and, therefore, in the extent to which the quality of life in our communities is affected by crime and its consequences. Yet, in most countries of the West and in a substantial part of the Third World, the consequences of harm are as collective as they are individual. They are evident in the lowered quality of life in at least some communities. Perhaps what has characterized the approach to the crime problems in most of our nation states is that it has been individualized. The language of the criminologist and the policies of criminal justice practitioners reflect this reductionism. We speak of criminal careers, of rehabilitating or punishing individual criminals, and of super vising released offenders, to give but a few examples of this individual centrism in our theories, our research, our policies, and our practices. Yet, there is and has been a parallel tradition, stemming originally from sociology and represented in sociological criminology (Durkheim, 1895) and most highly developed in the ecological school in criminology originating with the work of Guerry (1833) and Quetelet (1835) in France and developed most extensively in this century in the USA (Shaw and McKay, 1932) and in Britain (Baldwin, 1979). That tradition emphasizes that crime is territorially concentrated and that it both affects and is affected by the structure of communities and their society. A number of current trends in both the larger society and in research about crime problems and criminal justice may lead to a shift from the highly individual focus on crime and its treatment to a more collective focus where social change is at the core. This shift would have important implications for explanatory theories and research on crime on the one hand and for the ways that we approach law enforcement and criminal justice policy and practice on the other. For, such a shift must involve macro-structural and organizational analyses and problem-solving in contrast to micro-individual personality analyses and change. Were such a change-over to come about, it undoubtedly would have substantial implications or may of the practitioner roles in our current criminal justice system as well. The individual change practitioners such as psychiatrists, psychologists, and client-centered social workers will be less central to a community or macro-structural change perspective. One would not expect them to surrender their positions in the bureaucracy without considerable conflict. One of the central problems in liberal democracies also is to hold legitimate 64 authority accountable to the citizenry. The growth of bureaucratic states with their hierarchical structures deliberately designed to insure the universalism character istic of bureaucracies has complicated the problem of holding accountable the officials who make decisions. There are substantial movements-at least in some democratic countries-to constrain discretionary authority and either subject it to review or to replace it with organizational forms and practices that permit less discretion. Again, although continental and common-law systems vary in the extent to which official authority to decide is constrained by rules and officials are held accountable on review (and, indeed, there is variation among the countries in each legal tradition), much discretion to decide matters characterizes all criminal justice systems, including police, prosecution, judicial sentencing and disposition, and corrections. The movement to constrain discretion takes different forms in different countries. The problem of unfettered discretion may be more endemic in common-law than in continental countries. Regardless of dissimilarities in discretionary authority between common-law and continental legal systems, nevertheless, most of the difference in the exercise of discretion lies in where and in whom one lodges discretion in the criminal justice system rather than in how much discretion is exerc1sed. Moreover, often the differences among systems are exaggerated, though the extent to which they are is a matter of controversy (Goldstein and Marcus, 1977; Weigend, 1980). The managerial revolution of the mid-twentieth century has contributed to the growing concern with the exercise of discretion, since a major consequence of discretionary authority in hierarchically organized input-output systems, such as is characteristic of our criminal justice systems, is that discretion at one level can substantially affect the predictability of organizational requirements and management at another. Nowhere has this been more apparent than in how in the USA the discretionary authority of public prosecutors to charge and the discretionary authority of judges to sentence affect the quantity and quality of alternatives to the criminal justice system and the management of a correctional system. The discretionary authority of judges to incapacitate has affected the size of its prison population and the discretion to divert, the hazard and often poor quality service of programs that are alternative to incapacitation. One senses that the quality and quantity of alternatives to criminal justice are equally problematic in many other countries because of discretionary authority to utilize them and a relative absence of control over their development and standards of accountability. If these trends towards constraint of discretionary authority both on ideological and managerial grounds continue, one can expect to see new proposals for changes in criminal justice policies and practices. In the United States, for example, policy debates and legislation focus at the present time on controlling the consequences of judicial discretion in sentencing by instituting either legislatively mandated sentences or by adopting guidelines where departures are subject to appellate review (Sutton, 1978; Wilkins, et.al., 1978; Mullen, et.al., 1980). Although one cannot reliably forecast the extent to which the control of discretion will become a major issue in the diverse systems of justice in the western world, one might hazard a guess that those in the continental tradition will be less likely to define and perceive discretionary authority as problematic than are those in the common-law tradition. Where, however, the consequences of discretionary authority become problematic for financing and managing our systems of justice, especially our correctional systems, there will be growing pressures to structure and control the exercise of that discretion. Change will depend, therefore, more upon the resources available for criminal justice and the pressures to manage their allocation and use than upon movements that would constrain discretionary authority. CONCLUDING OBSERVATIONS There is no reason to expect that our societies will change at a slower rate in the decades ahead than they have in the past. Most trends will persist, though there will be variation in their rate of change. We have tried to show that major ones affecting the interdependence of nation states, the rapid growth of the organizational society, 65 and the high mobility of populations exacerbate the problem of domestic control of crime and its consequences. Indeed, in the next decades we should begin to see an evolution of modes of control that transcend national boundaries as well as substantial changes in the organization and practices of law enforcement and criminal justice agencies to deal with these growing problems of transnational crime and its control. Quite apart from the altered role of the nation state in controlling crime, we can expect that the revolution in social science and criminological research will increasingly become the basis for policy and practice in criminal justice. Though we have not developed the theme before, there is some reason to conclude that, as a consequence, criminological research will be less of a domestic and provincial product of each nation state. We will move more and more to a comparative criminology and to cross-nationally coordinated research. The Scandinavian and Finnish criminologists have pioneered in such work (Anttila, 1978). We can expect such collaborative efforts to grow in number and sophistication. The growth of the importance of criminological research for social policy and practice may well set the stage for internal conflict among the criminological disciplines since the research will be dominated by the methodology and theory of the social sciences. One can expect lively debates and power struggles to ensue, especially between jurists and research criminologists. Since jurists are more central to policy, practice, and research in crime and criminal justice in European and Third World countries than to those in the common-law tradition, we may expect both more controversy and greater lags in integrating research with policy and practice in European and Third World countries (Scandinavia and Finland excepted). We also have paid some attention to the trends within criminal justice itself, noting that it is more difficult to generalize about those trends since there is legal system and national variations affecting them. It is perhaps in discerning these trends and speculating about their effects that readers are most likely to be sceptical. A healthy scepticism is a starting point for alternative formulations and forecasts. REFERENCES Enc Allardt, On the Relationship Between Ob1ective and Sub1ective Predicaments. Umvers1ty of Helsmk1: Research Group for Comparative Sociology, Research Report No 16 (1977). lnken Anttila, Papers on Crime Control, 1977-1978. Helsinki, (Finland): Research lnst1tute of Legal Polley, Research Report No. 26 (1978). John Baldwin, «Ecological and Areal Studies m Great Bntam and the United States.. m Norval Moms and M1chael Tonry (eds.) Crime and Justice. An Annual Review (Umversity of Chicago Press, Chicago 1979) pp. 29-66. Alfred Blumstein, Jacqueline Cohen, and Dame! Nagm (eds.), Deterrence and Incapacitation: Estimatmg the Effects of Cnminal Sanctions on Crime Rates. (Washington, D.C., Nat1onal Academy of Sc1ences 1978) Jan M. Cha1ken and Marcia R. Chaiken, Vaneties of Criminal Behavior (the Rand Corporation, Santa Momca, CA: 1982). Alan Dershow1tz, «The Law of Dangerousness· Some Fictions About Pred1ct1ons .. , Journal of Legal Education 23; pp. 37-55 (1970). Em1le Durkheim, Les regles de Ia methode sociologique (Aican Pans, 1895). Forschungsgruppe Krimmolog1e Max-Pianck-lnstltut, Freiburg i Br. Empirische Krimmologie· Ein Jahrzehnt Kriminologischer Forschung am Max-Pianck-lnstitut Fre1burg i. Br., Bestandaufnahme und Ausbllck (E1genverlag, Freiburg 1. Br. 1980). AbrahamS Goldstem, and Marcus Martm, «The Myth of Judicial Supervision in Three lnqUisitonal Systems: France, Italy, and Germany.. , Yale Law Journal87; pp. 240-82 (1977). S. Abraham, Goldstein and Marcus Martin, «Comment on Contmental Crimmal Procedure.. , Yale Law Journal 87 pp. 1570-77 (1978). Greenwood, Peter W, Selective Incapacitation, (The Rand Corporation, Santa Momca, CA, 1982). AM Guerry, Essai sur Ia statistique morale de Ia France. (Crochard, Pans: 1833). Hans-Heinrich Jescheck, .. La cnse de Ia poiltique criminelle .. , Archives de Po/ltique Cnminelle, No. 4 (Editions A. Pedone, Paris, 1980). Jack Katz, «Legality and Equality. Plea Bargaining and the Prosecution of Wh1te-Collar and Common Crimes.. , Law and Society ReVIew 13 (Winter); pp. 431-59 (1979) Malcolm Klem, «Deinstitutionalizatlon and Diversion of Juvenile Offenders: A Litany of Impediments... Chicago University of Chicago Press, pp. 145-201 (1979). R. Martinson, .. what Works? Questions and Answers About Prison Reform .. , Public Interest 10; pp. 22-54 (1974) 66 John Monahan, Predicting Violent Behav1or (Sage, Beverly H1lls 1981). Mark H. Moore, Susan Estrich and Daniel McGillis, Public Danger, Dangerous Offenders, and the Criminal Justice System (National Institute of Justice Protect 81-IJ-CX-0037, Washington, D.C, 1983) John Mullen, American Prisons and Jails: Summary Findings and Policy Implications of a NatiOnal Survey (National Institute of Justice, Washington, D.C, 1980) National Swedish Council for Crime Prevention, A New Penal System, Report No.5. Stockholm (1978) W1ll1am F Ogburn, Social Change, (B.W. Huebsch, New York, 1922) A.L J. Quetelet, Essa1 de physique sociale (Pans, 1835). S1r Leon Radzmow1cz and Roger Hood, «lncapac1tatmg the Hab1tual Cnmmat .. , Michigan Law Rev1ew, (1981) Albert J. Reiss, Jr, .. sex Offences: The Margmal Status of the Adolescent .. , Law and Contemporary Problems 25 (Spring); pp. 309-33 (1960). Albert Re1ss jr, «How Serious is Senous Cnme?» Vanderbilt Law Rev1ew 35, pp. 541-85 (1982) Lee Sechrest, Susan 0. White and Elizabeth D Brown (eds ), The Rehabilitation of Criminal Offenders: Problems and Prospects (Nat1onal Academy of Sc1ences, Washington, DC., 1979) Clifford R Shaw, and Henry D McKay, .. Report on Social Factors 1n Delinquency .. 1n Report of the National Commission on Law Observance and Enforcement, No. 13, vol. II (Washington, DC, 1932) Paul Sutton, Federal Sentencing Patterns A Study of Geographical Vanat1ons. (0 S. Government Pnntmg Off1ce, Washmgton, D.C., 1978) Dems Szabo, Criminology and Crime Policy. (DC Heath, Lexmgton, MA, 1978) Thomas W61gend, «Contmental Cures for Amencan Aliments: European Cnminal Procedure as a Model for Law Reform .. 1n Norval Morris and Michael Tonry (eds.) Cnme and Justice. An Annual Review. (University of Chicago Press, Ch1cago 1980) pp. 29-66 Lesl1e W1lkms, Jach Kress, Don Gottfredson, Joseph C. Calpm and Arthur M. Gelman, Sentencing Gwdel~nes: Structuring Judicial Discretion (U.S. Department of Justice, Washington, DC., 1978). Wolfgang Marcm, Robert M. F,igl1o and Thorsten Sellin, Delinquency in a Bnth Cohort. (Un1vers1ty of Ch1cago Press, Chicago, 1972) , Fran kim Z1mnng, «Kids, Groups and Cnme: Some Implications of a Well-Known Secret.. , Journal of Criminal Law and Cnminology 72 (Fall), pp. 867-885 (1981). 67 General Report of the INTERNATIONAL SOCIETY OF SOCIAL DEFENCE by Mtreille DELMAS-MARTY Professor at the University of Paris-Sud «Crimtnal justice in a changing world». Therein lies all the difficulty of the chosen topic: in this encounter between a criminal justice tradtttonally seeking to preserve values, which it fixes and at the same time tends to ossify, and a world tn which tt is agreed to examine and reveal, through the phenomenon called the acceleration of history, a galloping process of change (on the demographic aspects, see in parttcular McClintock, 1982); an encounter which could eastly become a colltsion, tf the effort to invent - indeed re-invent - criminal justice should fail to proceed sufficiently swiftly and far enough There is also the effort to launch into new territory to be considered, if it is true that the democratic State in the 20th Century, as compared with the legally established State of the 19th, reflects the paradox that it surpasses the limits traditionally assigned to the legally established State. It "puts to the test rights which have not yet been embodied tn it; it is the theatre for a construction, whose objective does not confine itself to the maintenance of a tacitly establtshed pact, but subsequently forms itself into centres which the power cannot entirely master, (Lefort, 1981, p. 67). In fact, the whole history of human rights has been built on transgressions progressively embodied, on centres avoiding the control of the ruling powers- whether it was a question of collective rights, like the legitimation of strikes or trade unions, Labour Law or social security, or individual rights like the physical and moral inviolability of persons, the right to privacy, or the right to be different and equality in that same right. Indeed it would be necessary to re-invent criminal justice in such a way that it does not preclude such a launching into new ground, which represents, at the same time, the greatest challenge and the highest goal for States concerned for liberty (cf. M. Ancel, 1981, pp. 342, 343). Let us recognize, however, that the challenge is very difficult to take up, because liberty, ever in conflict with ttself, contains the germs of 1ts own destruction. The evolution of the world indeed provides many examples of this, in every sphere. (cf. Delmas-Marty, 1983, shortly to appear). Thus, cultural pluralism, which, because it implies the peaceful co-existence of systems with different values, contatns formidable risks of destabilising those same societies. Just how far should one admit the right to be different (on problems connected with immigration in France, see «Le Monde, of 29th and 30th March 1983)? And how far should we accept the right to information? Because here it is certainly a case of the right of man to communicate, to move out of himself and associate himself with others through the use of words, writing, image; equally the right to tndependence of thought and opinion in regard to the powers in authority, and therefore a vital liberty. But it also represents a formidable threat, because the right to information tends at the same time to bear upon the privacy of human souls, an undeniable intrusion, namely on the part of the mass media, into people's private lives. There is also a threat in the economic sphere, where liberty is in conflict with itself, at the point that it has reached today, with the help of every technical progress, a concentration prejudicial to all kinds of pluralism, including that reflecting the diversity of nations, and making difficult, even illusory, the preservation of a true liberty in the national market (in those countries whose economy lays claim to such 68 a liberty) or internationally, as well as the preservation of the quality of the environment (see the Congress of IAPL, 1980). In effect, the «dimensional, growth of business undertakings, the financial and patrimonial controls which are exercised from one company to another with the apperance of groups of companies, the controls through economic and financial merging, namely between the large companies established in the industrial centres of the developed capitalist countries and the firms exist1ng on the fringe (Third World), and finally the various forms of union and collaboration between undertakings, are just as much «fundamental mutations .. which represent a new challenge to criminal policy, even if it is still difficult to appreciate the possible consequences of the next mutation, wh1ch in years to come will result from the concentration of technological knowledge. In any case, this extraordinary process of economic concentration of technological knowledge. In any case, this extraordinary process of economic concentration favours already the appearance of national powers competing with States: "of the hundred most important economic units in the world, countries and businesses, the former being assessed by their gross national product and the latter by turnover, fifty-one lie in the private enterprise sector (C. Farjat, 1981, p. 141 et seq). Finally, the political development of human rights is confronted with new forms of attack on countnes' national security. And this is perhaps the greatest paradox of a criminal policy, based on liberties: that in addition to the conservation of past achievements, it permits the formation of new rights without thereby losing its consistency and its function of maintaining peaceful coexistence. It is a paradox difficult to maintain, especially in the face of the growth of terrorism. Whether it refers to the fascist ideology and seeks to install a reactionary, not necessarily conservative, regime («black•• terrorism) or it defines itself as the armed avant-garde of the proletarian movement and the fight against imperialism («red» terronsm), the stake that it carries in itself is essential, because this phenomenon participates powerfully in the dynamics of the movements of criminal policy. The Italian example of the "counter-reform of the criminal justice system, progressing in a covert but legally sanctioned way, because of the exceptional character of the situation caused by the persistance of terrorist violence .. (A. Baratta and M. S1lbernagl, 1982), is particularly significant and deserves a careful thought. In short, in every field- cultural, economic or political- penal justice has been put severely to the test and the effort to revitalise it must be equal to the challenge ... or else we can file the death-warrant of our criminal justice institutions. Here we will simply endeavour to outline a number of ideas which the subsequent debate should elaborate in greater depth. Two principal thematic lines, it seems, may be traced in the draft Discussion Guide of the United Nations. Because the meeting of criminal justice and a changing world can avoid becoming a collision only if there is an exchange, on a bilateral basis. In other words: on the one hand, changes in the world can and should provoke an evolution of criminal justice, but this, on the other, leads to the more ambitious objective, which is more difficult to control, of an evolution of this world brought about by criminal justice. THE EVOLUTION OF CRIMINAL JUSTICE There is no doubt that in recent years we have seen many of the certainties consecrated by a sensitive juridical conservatism put into question. Thus we see more and more jurists question themselves, and not only in learned doctrinal debates on the juridical classification of this or that fact, on the very functioning of penal justice, both in its input - the resources available to the criminal justice system - and in its output - the products of the system. For, if it is true that juridical exchanges, like the exchange of gifts by anthropologists, «iS one of the social games that can only be played if the players refuse to know, and especially refuse to recognize, its true objective» (Bourdieu, 1980, 180), the game of Criminal Law becomes difficult to play the instrument giving apparent consistency and supporting the objective truth offered by the Codes has become, nowadays, widely unusable, 69 outmoded. Jurists have proved incapable of controlling the production of penal laws. They are therefore unable to ensure, guarantee, or even assert, the consistency of the Criminal Law. The fine edifice of the 19th Century is crumbling. Fissures are appearing, which are patched up for better or worse, but more often for the worse. Most often facades have been set up, mere veneers whose number is such that they tend to obscure the mainstays of the whole structure, while still being incapable of stopping or even slowing the process of disintegration. And thus the cracks reveal, if not the objective truth itself, at least the divide between juridical truth and another truth that becomes impossible to suppress. Consequently a number of juridical fictions, which have been deeply rooted in the whole system, collapse -such as the fiction that no-one is supposed to be ignorant of the law and that no-one, even criminal lawyers, is in a position to know it, and the fiction of the equality of citizens before the law, when there are overwhelming statistics concerned with immigration, unemployment and the sub-proletariat of the prison population (although with serious differences between one country and another, cf. D.W. Steenhuis, L.C.M. Tigge~ and J.J.A. Essers, 1983). So, whether they wish it or not, jurists perceive something other than the affirmation contained in the rules of law. Whether they like it or not, they are compelled to question themselves on the very functioning of the penal system, whether in relation to the apparent internal dynamic of the system, consisting of applying (or not applying) penal laws, or the less obvious dynamic, external to the system, which tends essentially to inform (in a more or less accurate and complete manner) those most closely involved, as well as society at large, on the functioning of the system. a) The Application of penal Laws In the light, of the most recent statistical data, this is a problem of particular concern. As an example of this, the study undertaken in France by the Commission for the Revision of the Penal Code highlights the state of ineffectiveness now reached by the Criminal Law. Depenalization is no longer an option for penal philosphy which the Commission should wonder about. It is a daily fact already. The alternative is not one of whether to depenalize or not, but whether or not to control a depenalization that exists and continues to develop. In fact: -the percentage of cases not resolved by the police has grown from 48% to 61% between 1972 and 1980; - the files not passed to the Public Prosecutor's Department have constantly Increased so as to have tripled since 1970 (1 ,783,362 in 1968 and 5,303,325 in 1981 ); -cases not prosecuted during the year (many being dropped or time-barred) have multiplied nearly five-fold from 1968 to 1981 (301 ,000 in 1968 and 1,415,501 in 1981 ); - cases treated at the most summary level (fixed monetary penalties, 1, 1972) or at the simplest (police summons or direct summons) have increased overall (for the fixed monetary penalty, from 3,528,750 in 1973 to 4,328,785 in 1981, and for direct summons from 310,000 in 1968 to 502,045 in 1981), while the number of cases remitted for preliminary judicial investigation reduced (71 ,000 in 1868 and 58,846 1n 1981 ). It IS true that the concept of applying the Criminal Law presupposes a close collaboration and perfect harmony between the promulgating and the implementing organs in the system. Yet many deficiencies of the system appear in practice: bad drafting in the laws, poor adaptation or inadequacy of penal act1ons, poor co-ordination between prosecutions. So we find a divide between the official Criminal Law and the Criminal Law as it is applied; this divide serves as a yardstick for the effectiveness of a penal law and without doubt contributes towards a sense of crisis in the penal system when it assumes excessive proportions. We must reckon that this divide derives, in the first place, from object1ve factors, such as the difficulties of detecting and solving criminal occurrences (covert crime, mass crime). But going beyond such factors, the divide may be considerably 70 modified by reason of the autonomy assumed by each action, which develops its own strategy and makes its own choice of criminal policy, now reinforcing official choices- namely the application of the Criminal Law- in the context of a genuine alliance, now opposing them, according to a strategy of resistance. As to the first strategy -that of alliance- there is obviously little to say, except that it may apply in every action associated with the penal system. It thus applies in all official act1ons, naturally prompted to enforce the Criminal Law (judicial authority, police, specialised administrations, notably in economic and financial matters, prison administration, medical-social authorities). But the alliance can also appear in actions by society when they are embodied in the criminal justice system. The v1ctim or social group may thus participate actively in the detection of a crime, the initiation of a prosecution or the execution of a penalty. Conversely the party most involved, the offender, will be most frequently mclined towards a strategy of resistance, in which other practice may participate. While it is an essential element in assessmg the effectiveness of penal laws, the strategy of resistance corresponds to factors that are not well known. Yet an analysis of such factors is a pre-requisite of any development of the Criminal Law, although it may be observed that the effort for improvement w1ll be easier in the case of official actions (prompted by the State) than with society actions, on which possible reforms could probably have less immediate effect. 1. Official actions demonstrate in a number of ways a resistance to the application of the Cnminal Law. First, there is the simple, wide-spread resistance, on the frmge of the legislative texts, which develops, sometimes under the guise of the principle of individualising the penality, thus diverting away its functions, a differentiated application of the Criminal Law: differences between one JUrisdiction and another (self-defence cases, for example, are generally treated more indulgently by the superior crimmal courts than by those of first instance), between one offender and another (foreigners often being given different treatment from nationals), between one form of offence and another (despite similar penalties prescribed by the law, the traditional offences against property are often punished more severely than «economic crimes••). There is also a difference up-stream of the court decision, in the decision to serve a summons or Initiate a prosecution, in the choice made by the pol1ce as to what act1on to take (J. Bernat de Celis, 1983), and down-stream of the court dec1s1on, when the penalty is enforced. It is true that these last forms of differentiated application (up-stream and down-stream of the court decision) are usually less obvious than the former ones, because relevant decisions are neither public nor supported by g1ven reasons. The former do not represent either the essential point, of the decision which - more than the court decision itself orientates - the follow-up of a case. The change in the statistics on this matter (see above) is all the more disquieting, therefore: the development of a criminal policy existing broadly on the fringe of the laws, which has a doubtful efficacy, precisely because of its covert nature. Resistance to the law becomes already more apparent with the cumulative application, whereby penal actions come to add a new institution to an old one, wh1le the aim of the legislator was to operate by way of substitution of one by the other. Thus, in France, judicial control, which was intended to replace as often as possible provisional detention, has become added to it, becoming more a substitute for liberty than for detention (Vourc'h, 1975 p. 107 and 1977 p. 107; Souleau, 1980 p. 41 ). In the same way, the partial suspended sentence is more often an alternative to the suspended sentence itself than to imprisonment; likewise, the community service order, although originally envisaged as an alternative to imprisonment. Yet the resistance is even more felt and marked whenever it represents an effective rejection of the law. Primarily there is the non-application of the penal law, which may be seen under a variety of forms. Sometimes it lays the groundwork, in a spirit of tolerance, for the abrogation of a law that has fallen progresssively into disuse; thus, in France, the laws on adultery or on abortion had already become a dead 71 letter before the former was abrogated and the latter substantially reshaped. Sometimes the non-application results from a certain distrust by one authority of another, as when the police mistrust the «Softness" of the courts or the slowness of court proceedings, and so decide, in a wayward manner well known in economics and human science (Boudon, 1980 p. 5), not to resort to the judicial authority, or advise the victim of the crime similarly to abstain, for the same reasons Somet1mes the non-application, as opposed to the one preparing for an abrogation, may also show a certain inertia on the part of the State action, notably the courts, when confronted with a new law, which they are unaccustomed to apply, or which, more or less consciously, they distrust - as, for instance, the very weak application in France of the 1975 Law on the alternatives to imprisonment. Finally we must mention the creative application, whereby the authonties substitute for the legislator in developing alongside the law a practice which the legislator may sometime~ decide to legalise, recognising his inability to stem 1t. Although this is a true source of law when it is done by the courts (as in the context of JUdicial correctionalization), such a creative application may be most disquieting when 1t is undertaken by the police, in the interests of efficiency, often motivated by distrust of the judicial organs (see below). This was the case with the close watches kept on suspects before legalization of the measure by the 1958 Code of Criminal Procedure and the «holding" by the police pending verification of identity, practised before its legalization by the Law of 2nd February 1981. The mechanism is remarkable 1n itself and provides a truly creative force for the Criminal Law. So, after some years in which a practice has developed on the periphery of the law, the legislator des1sts from prohibiting and decides to legal1se prohibited acts «in order the better to control them".. and usually finds himself overtaken by new manifestations of the practice (as, in France today, by the problem presented by telephone-bugging and personal-data-banks). If, finally, the strategy of resistance by the State authorities shows, according to the circumstances, a dynamic of conciliation, tolerance, inertia, realism or distrust, the strategy in the hands of society, while reproducing all these features, adds to them that of influence. 2. Actions by society, at the outset, are naturally associated with a strategy of conciliation - victims deciding to take civil rather than cnminal proceedmgs -or tolerance- victims declining to file complaints or granting the «pardon" somet1mes permitted by the law. Admittedly, in a good number of cases the victim fails to file a co.mplaint, not as a genuine act of acquiescence, but because he distrusts the efficacy of the penal justice. The low rate of detect1on of certain offences, especially petty theft (consistently reducing in terms of detection over the last ten years) is clearly an encouragement for such a behaviour, which may lead either to mere inaction or to the development of alternatives to the penal system - acts of self-defence. By way of example, we would cite a current study in France on «Accidents at work and criminality", which shows that of the cases of accidents at work submitted to the criminal courts, less than 7% resulted from the mtervent1on of the victim or his personal representatives, and only one case was initiated by the trade union (Autesserre & Turries, 1980) -the main explanation for th1s inactivity being «the madequancy and ineffectiveness of the penal procedures in thiS field". The same attitude is reflected in studies dealing with fiscal fraud and offences against the environment. However, in all these domains, the distaste for crimmal action is sometimes accompanied by the exercise of a certain degree of mfluence. In fact, influence comes into play when the offender finds himself in a controlling situation relative to official action and can thus either prevent any response to his crime or achieve an alternative response - sometimes a simple alibi - which amounts to a disciplinary sanction (e.g. a mechanism of self-regulation by the criminal fraternity itself: see below at II, B). This situation was for a long time - and may still be today? -prevalent in the business world and often remains the case 1n multi-national enterprises, and, in wider terms, concerns «Offences and offenders outside the reach of the law, (cf. Vlth Congress of the United Nations on the 72 prevention of crime and treatment of offenders, Caracas, 1980). This is a de facto not a de iure situation, the influence lying in the existence of a power that is generally economic or political. Since power initially generates inequality, it is clear that the offender holding sufficient power can prevent criminal action being brought against him. The same dynamic of influence may produce even more far-reaching effects, extending to the very production of penal laws. Thus, in Federal Germany, «the influence of the German building industry on the Department of Trade and, through that Department, on the Ministry of Justice, to prevent the introduction of sanctions against agreed tendering procedures, provides a notable current example of this phenomenon., (Tiedemann, 1980). In short, apart from the basic distinction between State action and society action, the application of the Criminal Law always implies a struggle between the exigencies held by the various protagonists: those who trigger the operation of the system - victim, social group, police, Public Prosecutor, administrative offices specialising in lawsuits - those who are in charge of the enforcement of the system - judiciary, correctional administration, medical and social authorities and finally those who are its target - the offenders. To improve the operation of the criminal justice system in order to respond better to the evolving demands of society, requires a recognition of these individual exigencies and the multiple strategies that they develop. In the case of State actions, recourse to modern methods already well established in other sectors of the social sciences, such as systemic analyses or cybernetics would provide a useful tool. One would cite, for example, the numerous works of A. Blumsteen suggesting the introduction of informatics in the analysis of the crim1nal justice system - so, his two JUSSIM models may permit a control and rationalization of cases treated by the penal machine (Biumsteen, 1980, p. 237). Also the data necessary for the computer to work need to have been already assembled, and additionally suitable information needs to be made available to the public on the operation of the criminal justice system, as the only way of avoiding the anarchic and widely emotive intervention of the social group and of the victim in the penal process. b) Information on the Operation of the penal System Informing the public on the operation of the penal system is thus an essential stage, overseeing the whole evolution of criminal justice, since the information broadly determines the play of the strategies resistant to the application of the Criminal Law discussed above. Now everyone agrees in deploring the extreme deficiency of data on penal matters, both in their collection and their transmission to the public. 1. - The collection of data is a prerequisite for all information on the penal system. However it has to be realized that the few data available on the operation of the penal system are generally belated and extremely limited. For example, there are no precise statistics in France on sentences passed for economic and financial offences or in relation to organised crime. As a general rule, the statistics provide quantitative data which do not permit an assessment of the real content of the subject-matter dealt with by the criminal justice system. Moreover, the very method of setting out the statistics has been subjected to sharp criticism, especially in relation ot the division between major crime, moderate crime and petty offences. It has been observed (Robert & Faugeron, 1981, p. 30), that criminal statistics «cannot constitute a measure of criminality., and that, in any case, they «dO not constitute such a measure» (the problem of the «dark number•• and covert delinquency). It is clearly not a case of suppressing all endeavours of statistical knowledge, but of encouraging a careful reading, since < pnmary source of inaccuracy, must also be added the problem of information that is qualitatively inexact. The remedy is not easy to find, because the essential principle of the freedom of the press precludes any authoritarian governmental intervention. At least one might hope that the journalists themselves will become aware of the role they play in selecting the matters with which they deal; that they may be made to discover that they determine, often enough, by their revelations, the sectors considered sens1tive by public opinion, which might in due course become priorities for governments. On the other hand it is not conceivable that- an official pre-selection of subject-matter - and by w~at criteria would it be made? It is perhaps not without value to make the phenomenon more obvious to the journalists, who believe, or say they do, that they most often reflect observed reality, when in fact they perceive only a part of that reality wh1ch they have themselves selected. Also, the remedy may come from outside. One observes, for 1nstance, forms of counter-information in the campaigns led by certain pressure-groups (associations of victims or of cnminals. professional groupings, opinion tribunals, Amnesty International). Indeed, they themselves most often use the vehicle of the mass media ... The true counter-information is thus to be found elsewhere: 1n d1rect Information on the functioning of the penal system. Th1s appears when the cnminal justice system involves Citizens in 1ts operation· associations participating in initiating venfication measures or controls before the court action or at its beg1nning (the American experience of the Vera Institute of New York, the French experience of associations practising judicial control or assistance to the victims of crime); citizens associated in cnminal trials (popular judges, tnbunals of comrades); or again citizens participating in the execution of sentences (probation assistants in France help1ng the court in applying penalties within the framework of sentence w1th probation, associations providing employment under the Anglo-American community service orders or aiding those ordered to undertake «Work in the public interest., tn the forthcoming French law); finally, citizens offering postpenal assistance to those being released from prison. Indeed, this movement which aims to integrate the soc1al group in crim1nal JUStice is certainly one of the modern themes that is important in cnminal pol1cy. Every time a non-specialist thus penetrates into the penal system - not so much as judge, because then it remains outside of the system - but with a real and direct contact w1th the offender or the victim, he has the opportunity of discovering himself criminal JUStice and is enabled to measure for himself its positive and negative effects. It 1s an active participation, where the social group takes a direct responsibility within the penal phenomenon, leading to a more dynamic attitude than the traditional expedient of leaving matters to the legal specialists, an attitude which could make society conscious and responsible (which is not to assume, of course, the lack of responsibility of the offenders) in relation to the crimes committed in their midst. Without doubt, a counter-information thus established must have obvious limita tions, since not everyone would be in a position to participate 1n the operat1on of the crimtnal justice system ... unless thiS form of penal just1ce with social integration, develops, for the field is a vast one and everyone should be able to find a place in it (in this sense, Council of Europe, 1982). In conclusion, whether it is a question of the application of criminal laws by the criminal just1ce system, or information on the operation of that justice, a close analysis reveals the many defects 1n the system and provides indications of some routes to be explored in order to improve its functioning and results. But that is not enough. Precisely because the world is changing, such an approach cannot suffice, with its purely functionalist attitude. In some cases, the non-application of the Criminal Law is a good solution for everyone, including even the victim, if it should permit the resolution of a conflict, or of bringing satisfaction, rather than by the more symbolic than practical expedient of inflicting a penalty on the offender. Improve ment of the penal machine is not necessarily desirable. We must enquire how that 75 machine is sustained. In this respect, vanous «diversion .. procedures could no doubt be studied more systematically, whether in regard to the extinguishing effect of public action, given the absence of complaint, or withdrawal of the complaint by the victim, or conciliation possibilities, or s1mple admonishment which the penal procedure system can or could offer to the police or Public Prosecutor (cf. Council of Europe, 1980). Yet, 1n addition to this means of managing the criminal justice system- permitting, through the play of the rules of procedure, institutional validity to be given to certa1n instances of non-application of penal laws - 1t is still necessary to cog1tate more closely on those penal laws themselves. We would thus move from consideration of the evolution of criminal justice to thoughts of possible evolution 1n society brought about by criminal justice. EVOLUTION BROUGHT ABOUT BY CRIMINAL JUSTICE This objective is much more ambitious, since it pre-supposes questioning the place of cnminal justice as a means of regulating conflicts, as well as the objectives of the cnminal justice system and the means that it makes availables for the attamment of those objectives. We thus have to suggest an analysis of the process of penaltzation itself- such an expression being understood 1n 1ts strict sense, referring to the entry of a conflict into the criminal justice system («Criminallzation .. in the terminology of the Council of Europe, 1980). Inevitably such an analysis goes on to ra1se the question of alternatives to penalization. a) The process of penalization Today's observer is immediately compelled to enquire to what extent the process of penalization has been well or badly mastered. Almost everywhere one perceives a phenomenon of inflation in penal laws, which, in France in particular, presents two very disturbing aspects: on the one hand, an excess1ve crimination (an almost systematic recourse to penal sanct1ons which are already heavy- and summary in the most diverse technical areas); on the other hand, an assault on the principle of legal1ty of crimination (definition of an offence by analogy to a regulatory provision, a decree and sometimes even a mere ministerial order, or even to collective agreements, resulting in a definition of criminal offences by the effect of agreements founded in Private Law). It is clear that such an anarchic production of penal laws can only bring about the ineffectiveness of the Criminal Law. Moreover, it tends to introduce an incoherence which makes an overall penal pol1cy Impossible, such as is required whenever a country sets out to revise 1ts Penal Code; for the proliferation of penal laws outside the Code, if not controlled, is liable to place into question the very pnnciple itself. One m1ght further ask whether codification itself, in the traditional sense of the word, has not become an anachronism. Is not the need, rather, for a genuine synthesis, bringing coherence to the whole corpus, yet in a flexible and diversified way beyond the compass of traditional Codes? Also, rather than a Penal Code, should we not seek a focal po1nt from which might radiate an overall crim1nal just1ce policy, that would thus be neither central nor centralised, but centred or recentred by adiustment Just such a perspective as this - the perspective of post-codification - requ1res first of all making visible and then mastering, by a whole play of criteria of effectiveness and usefulness, recourse to the penal system - the movement of penalization. 1 - Making the process of penalization visible requires w1thout doubt the intervention at the national level of organs responsible for the rationalization of penal charges. For instance, the French Commission for the Revision of the Penal Code has proposed the establishment of such an organ, which would have to be consulted every time a new law proposal is drafted that involves a new criminal offence (at least for all but the most summary infractions). Such an organ would have a double function. First, it would intervene to give a reasoned opinion on every legislative Bill proposing 76 a new criminal offence, highlighting and exp1a1n1ng such recourse to penal provisions: - by reference to yardsticks of effectiveness, as a result of studies est1mat1ng the frequency of the acts in question and an evaluation of the probable consequences of introducing penal sanctions for them (including the possible nsks of overloading the criminal justice system and measures to cope w1th these); - and by reference to yardsticks of usefulness, the proposal to create a new offence being examined in the light of the objectives of the penal system and the guidelines of penal pol1cy. If an unfavourable conclusion should be reached, alternative measures would be proposed (civil or administrative sanctions, a conciliation system, etc.). Secondly, arrangements would be made for the submission of an Annual Report, containing a double assessment from which 1t will be possible to see the options already taken, giving guidance for future cho1ces of pol1cy, while assuring the "follow-up, of penal reforms: - an assessment of effectiveness drawn up in consultation w1th the interested Government Departments (offences reported, prosecuted and sentenced, and trends of criminality); - an assessment of coherence, such as to indicate the criteria of penalization adopted by the respective texts, for such criteria, through the choice and hierarchy of values protected by the Criminal Law, bear witness to the real choice of criminal policy, and thus a real choice made by society. In this way we would acquire the means of highlighting, especially 1n the sensitive areas discussed in the Introduction (those which develop cultural pluralism, economic concentration or political terrorism), the usefulness - or uselessness - and the effectiveness - or ineffectiveness - of recourse to the crimmal justice system. This could be a means of preventing, or at least reducing, the risk of slipping from a liberal penal model to one of an authoritarian or even totalitarian type (Delmas-Marty, 1983, to be published shortly) - a slippage that is frequently undesired and yet represents a break with exist1ng basic principles. One thinks, for instance, of the recent Italian laws in the fight against terrorism, as analysed with great acuity by Prof. Baratta: "legislative production on publiC order and terrorism is, in our opinion, in no way the subjective expression of a legislative proposal or organic line of penal policy opposed to an orientation which would present an alternative ... on the contrary, by these contradictions the legislation by exception reveals its nature as a simple contingent response, situat1on by situation, to serious acts of terrorism, (Baratta & Silbernagl, 1982). More precisely still, it seems that the visibility thus given to the process of penalization should l1mit recourse to the penal system as a simple response to an immediate event, a simple and purely conjectural cho1ce in which criminal justice has a predominantly symbolic function: this is the case envisaged by the Council of Europe (1980) of a penalization or criminalization, determined to respond "to the pressure of public opinion or of groups who urge the legislator to overcome certain undesirable phenomena, when he has no resources to do so, or when he does not wish to add to the costs already committed; in these conditions, he wishes to criminalize the act in order to apease public opin1on; the operation often succeeds by virtue of the fairly unrealistic beliefs that are widely held by people on the subject of the functioning of the criminal justice system». But such an operation can only succeed partially. In the end it comes to aggravate the loss of confidence in a system that is all too obviously incapable of coping with all the conflicts that come within its jurisdiction. Nothing but control of the process of penalization will permit a genuine overall strategy in the face of the criminal phenomenon. 2. - Mastering the process of penalization would thus require, in accordance with the double approach suggested for the organ responsible for rationalizing crimination a Simultaneous definition of yardsticks of effectiveness with which to evaluate the capacity of the penal system to deal with conduct classified as criminal and its 1mpact on behaviour generally, and yardsticks of usefumess once the objectives of 77 the penal system have been deemed to have been defmed. Various stud1es (L. Hulsman, 1975, Council of Europe, 1980) have moved 1n the direction of formulatmg such yardsticks, showing contra-indications to penalization (or indications of depenal ization), formulated through two series of criteria, absolute and relative. It would be most useful if the debate, starting from consideration of the aims of the penal system from various points of view (the change of law, solutions of conflicts, impact on behaviour, control of some forms of State power) were to go on to suggest appropriate yardsticks. By way of example and to start discussion on this point, we would suggest that the following propositions might be considered as cr~teria of effectiveness (cf. Hulsman, supra): -there should be no penalization when it would result in overloadmg the machinery of just1ce; - penalization should not serve as as a screen to cover a sham solution of a problem; In parallel, the concept of utility might be developed, beginning w1th a principle of the subsidiary nature of the penal system, as has been well expressed in part1cular by the Canadian Committee for Penal and Penitentiary Reform (Fattah, 1982), according to whom «no act should be prohibited by the Criminal Law when soc1al imperatives, other than the processes of crimmal JUStice, are able to sufficiently limit its Impact». Thus var1ous Criteria of utility could be employed in line with the following propositions (cfc. L. Hulsman, supra): - penalization should never have as its primary object the creation of a framework a1ming to help or treat a delmquent (potential) in his own interest; - penalization should not strike at behaviour which is predominantly to be found among socially weak groups or groups who are subject to discrimination or run exceptional risks of being subject to it; - penalization should be avoided if it concerns a form of behav1our adopted by an Individual specifically in private. The d1scuss1on should undoubtedly take account of the existence of the economic and cultural factors which prompt penalization (see, in particular, on the role of urbanization as a responsible factor, «Cities and Criminality», Xth International Congress of Social Defence, Salonika, 1981, or, on the influence of economic structures, «Concepts and Principles of Criminal Law in Business», Preparatory Colloquium for the forthcoming Congress of the International Association of Penal Law, Freiburg i. Brisgau, September, 1982). But such a rationalization of the process of penalization necessarily implies, in complementary fashion, a new and inventive reflection on alternatives to penaliza tion. b) Alternatives to Penalization The f1rst outline of such research should lie in the alternatives to Imprisonment. In th1s respect, considerable progress has already been made, at least from the legislative point of view, because implementation of the legal provisions has been less satisfactory, as we have seen above: either the alternatives to imprisonment have not been applied or they have tended to serve more as substitutes to liberty than as substitutes to deprivation of liberty. The way ahead is clear and improvement 1m plies above all the organization of the appropriate structures to give effect to the substitute measures in an efficient manner. But this does not go to the heart of the question of genuine substitutes for penalization, even if, for many traditional jur~sts, imprisonment remains the penal sanction par excellence, without which they cons1der the penal system would lose its Identity. At least an equal effort should be brought to bear in the years to come in regard to the methods of resolving conflicts without recourse to the penal system, methods which, at a first go, could be classified according to their official or purely social character. 1. -Alternatives of an official character correspond to the whole arsenal of measures offered by the law as it now stands, or capable of being organised de lege ferenda: 78 adminiStrative and civil sanctions, procedures of JUdicial conc1liat1on. The development of a detailed consideration of these alternat1ves, evaluating their respective ments and demerits, 1s an essential f1rst step (cf. for admin1strat1ve and civil sanctions, Council of Europe, 1980). Thus the German system of Ordnungs widrigkeiten seems to offer an 1nterest1ng alternat1ve in the spheres where 1t is m operation (in West Germany: in Transport Law, particularly m relat1on to road traff1c offences; in Labour Law, espec1ally m relation to the status of certain protected classes of workers; m Fiscal and Customs Law, Environmental Law; Buildmg Law; Regulations on the composition and quality of foodstuffs; Regulations on small busmesses and distnbut1on; Competition Law; Laws promulgating E E.C. Directives; Law governmg statements of ongin of goods). This system of admmistrat1ve Infringements operates, in fact, on the bas1s of a common legal framework wh1ch ensures the unity of the whole, particularly from the procedural pomt of v1ew. It is notable that 1t excludes any sanctions Withdrawing personal liberty (apart from physical arrest for a maximum of six weeks under judicial control). Additionally there is provision for a court hearing when the allegation is contested. Likewise, recourse to civil sanctions of a compensatory nature (order of nullity, civil amends, injunction, damages)could be the best route in areas where the interests of the victim are the primary consideration, with the facility of accelerated summary procedures be1ng available to remforce their eff1cacy We would mention, for example, the group of experts in France asked to consider the reform of collective procedures in relation to the l1ab1l1ties of fa1led busmesses, which recommended the depenalizat1on of certain types of bankruptcy in favour of alternative c1vil sanct1ons such as personal bankruptcy or phased moratoria for the settlement of liabilities. At the same time we see a development - or a revival - of jud1c1al conci11at1on procedures. Recommended by Volta1re, who asserted the ments of the Dutch mag1strates who were «peacemakers, or "pacifiers", conciliation judges have on various occasions been mtroduced m France: from the Law of 16-24th August 1790 prov1dmg offices of peace and conciliation, to the Decree of 20th March 1978 settmg up conciliation judges. Also, the ordinary Judge IS charged w1th a similar miss1on by the Code of Civil Procedure (Decree of 5th December 1975, brought 1nto force on 1st June 1976): «it is part of the mission of the judge to conciliate between the partieS» (Art. 21, Code of Civil Procedure). Moreover, the Code envisages that the part1es may wish to apply to the judge to act as "friendly compositor», in other words: to arrive at an equitable solution without being obliged to follow the strict letter of the law. Admittedly it is primarily in the area of Civil Law that such conciliation is proposed here, but other countries (notably Switzerland) have already arrived at conciliation of petty conflicts of a criminal nature, which could very well evolve in its turn, provided that the criminal court judge accepts this other concept of the function of a judge, which is not only to sit over the parties in order to adjudicate legally on the case, but also to participate, with them, in finding a solution to the matter. It IS true that 1n penal matters, the mam trend today IS towards the development of extra-judicial conciliation procedures, deriving not from official actions, in most cases, but from society at large. 2. - The alternatives of a social character present the alternative route to explore m the interests of depenalizat1on. Clearly one would not seek to support and encourage acts of pnvate vengeance, which some would recommend under the guise of legitimate defence amounting to the right of self-defence On the other hand, even today, there are private processes, be 1t self-regulation by a group of persons exercismg the same type of activities, subject to autonomous status and collabora ting in a common perspective (disciplinary sanct1ons, codes of conduct), or conciliation founded on the mtroduct1on of third part1es capable of helpmg the persons immediately mvolved m the infraction to find between themselves a solution to their dispute. The f1rst variant, of a disciplinary nature, IS ma1nly to be found in professional circles, sometimes under the control of the State (discipline enforced, for example, by the 79 legal and medical professional bodies, or discipline vested in the head of a business whose traditional «discretionary power, has been acknowledged by the State under the Law of 4th August 1982); sometimes in a more autonomous way, amounting to a genuine self-regulation by the m1lieu itself; codes of conduct on a national plane (cf. Cressey & Moore, 1980 and Cressey, 1982) or internationally (Guiding Pnnciples of O.E.C.D. for multi-national enterprises, 1976, Code of the United Nat1ons, 1980). If such a variant establishes a close link between the offender and the response (notably 1n the case of codes of conduct by dint of simple adv1ce), the victim at best IS able to submit his complaint to the professional body, without seeing any specific nght on his part being recognised in relat1on to the solution that IS proposed. Likewise, and still more distinctly, the social group 1s most often deliberately excluded, the d1scipl1nary variant having a markedly not publiC form. This explains the 1nterest in other formulae, which mvolve a genuine process of conciliation Thus, in the United States, one can cite the expenmental neighbourhood justice centres, set up 1n a number of cities (Atlanta, Kansas City and Los Angeles) by the Department of Justice; also, the 1980 Federal Law providing for the establishment of a Centre for the settlement of minor claims (primarily in the consumer and accommodation fields). Similarly, in the State of New York, the Brooklyn D1spute Resolution Centre has been set up by a private Institution, the Vera Institute of Justice, although with the co-operation of the Brooklyn Criminal Court, on the basis that there will be no prosecution if the victim and the defendant come to an agreement. (Verin 1982, p. 171 ). Such experiences could be usefully compared with the processes of extra-JUdicial negotiations which are being currently adopted in Great Britain in the field of contractual responsibility. (D.R. Harris, G. Veljanovski, 1983). Two similar recent examples can also be quoted in France: the Law of 22nd July 1982 on landlord/tenant relationships, setting up a local committee for leasehold relationships (consisting of representatives of local assocJatJons of landlords, tenants and property managers), with the task of arriving at agreed settlements of disputes, including those of a penal nature, arising from leasehold arrangements; also, the Law of 29th July 1982 on audio-visual communications, providing a mediator to resolve disputes amicably between d1stnbutors of films and cmema managers complaining of the non-observance of civil or penal rules on competition. Even more significant are the purely private initiatives of the community boards 1n Canada and U.S.A. These genuinely act, quite independently of the judicial authorities, as conciliators, «Whose task 1s not to propose outright a solution to those who wome to consult them, but s1mply to help the part1es to recognize the nature of their dispute and appreciate whether they wish to settle it, and under what conditions, or whether they wish to put it before a cnminal court» (J. Bernat de Cel1s, 1982, p. 56). On the same theme, we would mention the recent creation in France (1983) of an Aid Association for the victims of crime, one of whose main objects is to facilitate conciliation. These expedients of society, as alternatives to the penal system, can also fmd themselves supported by the State in vanous ways: up-stream of proceedings, when the compensation of victims is assured by the State independently of the penal system (cf. in France, Art. 706-3 et seq., Code of Criminal Procedure); down-stream, when the solution found for the dispute is given judicial effect (as when agreement by conciliation has the effect of extinguishing public action, cf., above, the example of the Brooklyn Dispute Resolution Centre). There is no doubt that some measure of control by the State remains necessary, if one wishes to avoid excessive forms of social pressure, such as would lead to limitless social control, a permanent watch by everyone over everyone (cf. Delmas Marty, 1983, pp. 100 & 142). And even with the alternatives provided by State authority, it would be equally useful to develop consideration of the introduction of various guarantees of «due process» as imposed by current international instruments (European Convention of Human Rights, United Nations Pact on Civil and Political Rights). In this respect, it is quite significant that the European Commission of 80 Human Rights has recently had to deal with a question of the compliance w1th the Convention of the German right of Ordnungswidrigkeiten. In short, be it official or society's alternatives, States should define, by reference to the protection of human rights, procedural guarantees (open courts and the principle audi alteram partem) at the same time as specifying the conditions under~ which the agreement of the parties, when occurring outside the penal system, would have (or would not have) the effect of extinguishing any prosecution. Perhaps such an extinguishing effect should be organized in some graded measure, taking account of the circumstances present at the conclusion of the agreement and the guarantees of procedure actually granted ... Enough now of new questions proposed for debate! It is thus a question of how far the imagination of jurists should be stimulated. Going beyond the simple effort of theoretical unification underlying the great codifications of the 19th Century, penal1sts, criminologists and specialists in penal policy should now set themselves the task of coming to terms with the protean and often contradictory reality, with its complex inter-play of resonances and silences. In the face of the ardent repressive convictions which are to some extent reviving everywhere throughout the world, we find the true challenge for a penal policy of freedom. A penal policy has to be devised whose apparent dispersion of responses to the criminal phenomenon is founded on a genuine coherence, and whose pluralism signifies neither compromise nor refusal to be involved, but an acceptance of life in all its diversity. This is the challenge - let us strive to take it up together. BIBLIOGRAPHY Ancel, La Defence sociale nouvelle, (Cu)as, 3e ed 1971) Ausseterre and Tumes, Les accidents du travail, doct dactyl , lnst1tut de sciences penales et de Criminologie, Universite de dro1t, d'economie et des sc1ences d'A1x-Marse111e (1980). Baratta and M S1lbernagi, L 'evolution et Ia situation actuelle du terrorisme en ltalte, Xemes Journees de l'lnst1tut de crimmolog1e de Paris (Juin 1982) Bernat de Celis, Les grandes optiOns de polttique crtminelle, Ia perspective de Louk Hulsman, APC no 5, 1982 pp 13 et s.; -Police et victimisation: retlextons autour d'une maincourante, APC no6, 1983 pp. 147 et s, - et L.H.C Hulsman, Peines perdues, (Le Centurion, Paris 1982) Blumsteen, Planning Models for Planning Evaluatton, in Handbook of Criminal Justice Evaluation (Sage Publications, 1980) · Boudon, Effets pervers et ordre social. Bourd1eu, Le sens pratique (Ed. de MinUJt, 1980). Conseil de !'Europe, 1978, Xllle Conference des d1recteurs d'mst1tuts Crimmolog•ques, L'influence des moyens de communication de masse sur l'opmion publique en matuke de cnminalite et de 1ustice criminelle, 1980, Report on Decriminalization, 1982; Draft Final Report on the Parttcipat/On of the Public m Penal Polley Cressey and Moore, Corporation Codes of Ethical Conduct (New York, M1tchwell Foundation 1980); Cressey, Self RegulatiOn m the Control of White Collar Crime, in La crimmalite des affatres, edited by Delmas-Marty, Ridp. (1982), p. 73 M. Delmas-Marty, Modeles et mouvements de po/itique crimmelle, Economica, (1983) - Permanence ou derive du modele ltberal de politique crimmelle, APC no6, (1983), p.13 Fa qat, Droit economique (P U.F., Coli. Them1s, 2e 9d 1981 ). Fattah, Les grandes orientations de Ia polttique crimmelle au Canada, APC n.5 (1982) Fortune!, Le paradigme de Ia justice. Ia conciliation, Report presented to the Congress on Just1ce and Democracy, L1lle Faculty of Law (1983). D R Hams, G Vel)anovskl, Remedtes under Contracts Law, Destgning Rules to Factlttate Out-of-Court Settlements, "Law and Pol1cy Quarterly", vol V, no1, January 1983. pp 97 et s L.H.C Hulsman, Defense sociale nouvelle et criteres de decrimmalisat10n m "Aspects nouveaux de Ia pensee juridlque", Collection of Studies m honour of Marc Ancel (Pedone 1975) p. 31. Lefort, L'inventton democratique (Fayard 1981). Me Clmtock, Xth Congress of the International Soc1ety of Social Defence: Cities and Crimmality; Criminological aspects, Salomka (1981). J Rivero, Les libertes publiques, P.U.F, Coli. Themis, t 2 (1980). Ph Robert and C. Faugeron, Les forces cacMes de Ia justice, (Le Centurion, Paris 1981 ). Souleau, Neuf annees de contr61e iudiciaire, RSC (1980) p. 41 D W. Steenhuis, L.C.M. Tigges and J.J.A Essers, The Penal Climate in the Netherlands, "The British Journal of Criminology", vol. 23, January 1983, p. 1. Tiedemann, General Report of the International Penal and Penitentiary Foundation, Vlth Jomt Colloqu1um, preparatory for the Sixth U.N. Congress (Bellagio, 1980). J Verin, Le reglement extrajudiciaire des litiges, RSC (1982) p. 171. Vourc'h, Le contr61e judiciaire, premiere exploration, APC (1975), pp. 107 et s. et - Une application socio-educative du contr61e judiciaire, APC (1977) p. 107 81 General Report of the INTERNATIONAL PENAL AND PENITENTIARY FOUNDATION by Franqois CLERC Professor Emeritus of the University of Fribourg (Switzerland) The spokesman of the Foundation will not be expressing here his personal views, but those of the Executive Committee, consisting of the Chairman, the Secretary-General and the ccMinister of Finance••. Let us admit it frankly at the outset: the subject that has been proposed to us has raised little enthusiasm with this Executive Committee, although it finally accepted it in the interests of solidarity between the ccFour Associations••. WHY THIS HESITATION? As successor to the former International Penal and Penitentiary Commission, our Foundation continues to enlist its membership, as in the past, from States with a common culture, and mainly from Directors and some judges or professors, who are interested in what used to be called, in the last century, ccthe penitentiary question••. The adjective ccpenal» was added only in 1929, and if it may not have the same meaning in French as the English ccpenah•, it should at least serve to indicate an interest in purely practical penal problems, to the exclusion of any question of prevention or concerning youth. The Foundation has been consistent in this policy: at the time that our work programmes were under consideration, Chairman Cornil always insisted that purely penal questions should be left to other Associations and that we should stand aside from criminology. I would give two illustrations of this: the rejection of the suggestion by Mr. Saba (Japan) who advocated research on the relationship between urbanization and crime in Manila and Bangkok, and of the proposal made by Prof. Grassberger (Austria) that a global study should be made of general trends in present-day criminality. Our Secretary-General, Mr. Konrad Hobe, was fully aware that the subject put to us today lay outside the province of our Foundation, except insofar as it concerned ccthe execution of the penalty••. He emphasized this when telling me that, with the agreement of Chairman Rostad, I was nominated to act here as spokesman for the IPPF On examining the papers, one anxiety immediately assailed me: had I correctly and precisely understood the subject put to us? I note from the address already given to us by Prof. Bassiouni that he had encountered the same difficulty. The commentaries on the subject were no doubt intelligible to the initiated, but somewhat off-putting to others. It might have been prudent to define the meaning of «Crimina/ite.. , since it is capable of many meanings, as pointed out by Prof. Lernell. Was he happy to translate «after-care» by "resocialisation» when it is more usual to say «aide post-penale», «Surveillance.. , "patronage .. ? Would it not have been preferable to avoid the therm «justice penale», which runs the risk of being understood in the narrow sense in which it is used in the text-books of Criminal Procedure, while here it carries a much broader connotation? It may be that the Translated into English by Dav1d R. Gilbert, Bamster at law, London. 82 expression «Systeme penal», used by Prof. Hulsmann, would have served better. These remarks should not be considered as criticisms: we were at pains to draw Mr. Shikita's attention to the need to examine the French translation most closely in order to avoid misunderstandings', as regards those who have taken the trouble to draft the explanation of the theme submitted for our deliberations. However, at a first reading, matters seem to be very simple and we would be tempted to summarize them in two propositions: a) the «Systeme penal» is closely linked with social, economic and cultural reality, and we have no need to argue that point here; b) all those called upon to apply it (legislators, police officers, judges, administrators, social services) should act in a coherent and co-ordinated manner, all pulling, as it were, on the same rope - a fact of which the German Federal Republic is so conscious that it did not hesitate recently to rev1se in turn its Penal Code, its Law of Procedure and its rules for the execution of sentences. If everyone can accept these two, fairly banal, propositions, we have to recognize that they then give rise to a diverse range of questions, of which a non-exhaustive list is provided to us in the Guide for our discussions. The Guide's questions alone filled a single-spaced type-written page, and we were starkly requested to reply to it, within a few weeks, and in not more than thirty pages. Such a commission seemed to us even more impossible·, insofar as the social and economic situation clearly - the moment one thinks of it - varies profoundly across the globe, and even within the confines of individual countries. So, when we are asked to indicate the reform which we consider to be most urgent, we would provide very different answers for Europe and Africa, and even for different parts of the United States. One recalls, right away, Pascal's words: «What is truth on this side, is falsehood on the other side, of the Pyrenees". There is also a certain number of questions which our Foundation IS in no position to answer, not only because it lacks the charism of Mme. Soleil, but also because they are foreign to our own range of concern. Even within its own domain, the Foundation is reluctant to reopen a debate on many problems which have been fully discussed in the past, both by itself and its sister Associations. We have better things to do than re-plough the same ground. On the other hand, I feel that I should express one regret: the issue of the information bulletin «Prevention du crime et Justice penale», which was produced in December 1982, was only distributed at the end of that winter. It gives us to understand that, in the eyes of the United Nations, priority must be accorded to the problems of the Third World, so as «to safeguard them from the errors of many developed countries in the field of prevention and the fight against crime". If our Executive Committee had had that issue in its hands when nominating its spokesman, it would certainly have chosen someone else - picking from. among the Members of the Foundation who are well versed in the particular problems of developing countries, so as to give us a better understanding of why our subject had been included in the Agenda for the Seventh United Nations Congress. Failing an African, we would no doubt have approached one of our South American colleagues. There were some available to us, notably Prof. Jose Hurtado Pozo, whom, moreover, I beseeched in vain to take my place. What address would then have been given? He would no doubt have confirmed the impossibility of replying to the Guide's questionnaire without first drawmg a distinction between developed and developing countries. The latter are characterised, as distmct from the former, by a violence and underlying instability throughout the whole system. Social inequalities stand out for all to see. Unemployment is chronic, affecting a large part of the population. The 1 We learned yesterday that the subject t1tle had been modified, doub1tless to avoid a pleonasm, since the word aprocessus, already bears the sense 1n French of aevoiution". Our subject then becomes aFonctionnement et avenir de Ia Justice penale dans un monde en evolution". 83 economic crisis aggravates social inequalities. The political organization is often inadequate and offers citizens little chance of participating in government. Without doubt, this description is somewhat schematic and might call for some shading, since the social structure of under-developed countries is often dualist in nature: the more important urban centres enjoy a more advantageous political-economic situation than the back-country. The dualism is further reflected in the cultural field, especially in those countries where indigenous groups represent a large part of the population. In a State that is both poor and unstable, how does one see co-operation between the different organs called upon to administer criminal justice? The legislator would reply that the only way to achieve an effective penal policy lies in repression: the threat of punishment is indispensable and severe penalties must be pronounced in order to break the back of ordinary criminality, which primarily derives from economic causes. Emphasis must be placed on general prevention, which requires a proliferation of penal provisions, especially in economic, social and administrative matters. The result is a hypertrophy of penal legislation, causmg frequent intervention by the judicial organs and the police force. A further consequence is substantial delay m the administration of justice, which is no longer capable of acting expeditiously, even in the most serious cases. Proof of this lies in the fact that 70% of those in custody are awaiting tnal, prior to any finding of guilt. Moreover the fate of the accused lies wholly in the hands of the police, who hold an enquiry, hear the accused, hear the witnesses and if necessary hear the v1ctim. As for the investigating magistrate, he restricts himself to repeating these operations, and frequently even omits some of them. If the law does not admit police reports as evidence, they are nevertheless admitted in indicting the accused. The role of the police is paramount. It even exceeds the bounds imposed by law: the police is the organ of the State directly confronting crime and especially all subversive activity directed against the State. Its make-up is principally oriented towards the latter objective, its activity in the field of traditional criminality being limited and conditioned by the political role which the police have to assume. As in most countries inspired with the Euro-continental model, there is certainly a judicial police, whose function is to assist the justice system. But this judicial police is merely one section of the detective force, which, with the co-operation of the uniformed constabulary, has to maintain order within the country. Collaboration between the two police forces is not a comfortable one in the absence of a common control. There are other drawbacks: the police lacks equipment, its men are badly paid and greatly exposed to corruption, especially by drug smugglers. Consequently the good order of the administration is jeopardized by deficiencies, both in resources and personnel, which destroy the effectiveness of the police force. Let us now look at procedure. We have just ment1oned one of the causes of preventive detention, in the overload on the courts. But there is another one: the severity of the penalty stipulated by the law justifies the maintenance of the accused in temporary custody. The same thing occurs when the Public Prosecutor demands an adjournment of a case. In such cases, the legal procedure appears more like a ritual formality which pays scant regard to the rights of the accused. The evil does not lie in the incompetence of the judges, or in their insufficient numbers, but in the repressive nature of the penal system, in aid of an inadequate procedural legislation, interpreted by the judiciary in an over-legalistic way. Admittedly the judges refer in their decisions to the basic principles laid down in the Constitutions and Codes of each State. But such principles lose much of their value: what good is the presumption of innocence when, prior to his acquittal, the defendant has been held in preventive detention for a long period and is refused the compensation stipulated by the law? What use is the rule ••in dubio pro reo», when one knows that in serious cases of drug-trafficking or terrorism, the criminal court 84 of first instance which has some doubts about the guilt of the accused, prefers to pass the case up to a higher court rather than acquit, for fear of being accused of corruption?. The point therefore is this: over-repressive legislation, frequency of excessive periods of preventive detention, slowness of investigations and proceedings - all lead to over-crowding of prison establishments, which simply become depositaries for accused and condemned alike, in inhumane conditions. How, then, does this figure as penitentiary policy? The least that one can say is that it does not represent the needs of the country. A prison policy simply represents, in the national social-economic context, a utopian condition. Nevertheless such a policy is contemplated in accord with the principles and exigencies of modern penitentiary science: most of the countries of Latin America have been keen to construct a «model prison .. , usually in the capital and regularly exhibited to foreign visitors, who are afforded no opportunity whatever of visiting any other prison establishments. Even the «model prison•• does not operate for long in the conditions originally planned for it: it is soon adapted to the «demands of the market». In other words, the number of inmates increases, the appointments deteriorate, administration beco mes impossible. There comes a point, from time to time, when the authorities have to take a recount, to gain some idea of the size of the prison population. The efforts of the prison staff are ineffective, as they cannot properly control the domestic running of the establishments. The inmates organize themselves in gangs, which seek to control all the convicts and their activities. Consequently, a traffic in drugs and alcohol is set up within the prison walls. Moreover, the prison staff are under-trained and lack material resources. They often act in complicity with the inmates. Corruption, an endemic phenomenon, does not spare the prisons. Such a situation in the prisons has a profound influence on the course of justice. Investigation and proceedings are often frustrated by the defection of the accused, who does not appear when his name is called and is not to be found when the usher seeks him out. Why is this? All the reasons are good ones: fear of missing the visit of a close relative, or an appointment with the doctor or at the hospital; the temporary absence of a co-defendant called to appear before another court for another offence; distrust of the judge or counsel for the defence; a long sentence previous served for another offence, etc. In these conditions, it hardly needs to be said that the penitentiary establishments cannot think about the re-education or re-socialization of the inmates: they hardly succeed in isolating them from their milieu, but what is sure is that they succeed in corrupting them, morally and physically, whether they are innocent or guilty being of little importance. Let us now revert to the questionnaire in the Guide, to ask ourselves what can be done in the face of such a situation; especially what is the first reform priority. If we listen to the advisers, we should resort to modern scientific progress to improve the state of the prisons, to increase the number of «model prisons» and to institute a programme of re-education for the prison inmates. Yet immediately we face the obstacles also confronting the State- the State which cannot even house, feed, educate and employ honest people. Would it not be better to contemplate a penitentiary policy, nay a more general penal policy, in more modest terms, which is better adapted to the needs of the under-developed countries? More specifically, in the penitentiary field, would it not suffice, in a disastrous economic situation, simply to construct a network of establishments which, however rudimentary, are at least hygienic, and where the fundamental rights of the inmates would be respected? Such establishments should vouchsafe for those confined in 85 them that they will not be forgotten and will eventually be released in at least the same state of health as when they were committed, without having had to be protected from a baneful promiscuity. One fears that when we come to the next Congress of the United Nations we will not hear much of interventions of this type, describing and citing problems peculiar to such countries, each speaker excusing himself due to the impossibility of embracing such a vast subject as the one offered to us. For Its part, the Foundation feels itself to some extent in the same difficulty and is inclined only to go so far as to mention, among its publications, those in which the elements of a response to the questions posed in the Guide may be found. Let us admit right away that up to this point the Foundation had never contemplated a global study of the criminal justice system. We find few reflections of the policy that the legislator should pursue, except on the subject of deviance, studied at our Vienna Colloquium as far back as 1972, and on decriminalization, the subject of an unforgettable Meeting at Bellagio. Similarly, we have given little attention to the role of the police, since, as already mentioned, prevention does not lie within our province. Without doubt, we are convinced, along with our former Chairman, Prof. Sellin, that the presence of a policeman on the streets is a strong deterrent factor. This observation was made at the Rotterdam Colloquium, dealing with road traffic, and it is borne out today in many countries, where for reasons of economy and because of an excessive reliance on modern means of transmission and communication, the police forces, who had been concentrated in the urban centres, have been redeployed throughout the whole territory. At the same time, it has been felt necessary to redefine the powers of the police, lest they be abused: laws in this respect have recently been promulgated in a number of the Li:inder of the German Federal Republic, and elsewhere we have all heard of the discussions on the well known identity checks. As for the judge, the Foundation has considered the problem, at the very most, in relation to the imposition of sentences, a subject close to the heart of our former member, Prof. Beleza Dos Santos, of which our former Chairman, Charles Germain was the promoter in France. But the Foundation has never really come to grips with this question, due, without doubt, to the hostility of our Belgian members, especially our former Chairmen Cornil and Dupreel. By contrast - and it would be otiose to argue its justification here - our Foundation has given close attention to the subject of detention. What reform would it consider most urgent in this sector? We had intended to question our members by post on this subject. Time failed us for this purpose, but we would not have been surprised if the response had insisted on the need to solve the question of imprisoning drug-addicts, who, in our changing world, represent a significant proportion of today's prison population. Everyone kno•Ns of the many difficulties met by drug-addicts in prison establishments, and these in turn would be only too happy to relinquish such a clientele to hospital centres - who, for their part, have very little wish to receive them. To crown it all, many addicts prefer prison, where they know the date of their release, whereas they cannot predict the period of hospitalization. But convicts are not the only prison inmates: even more are held in preventive detention. For the sake of the United Nations, the Foundation has considered the regime applicable to this class of captive, advocating the formulation of a set of minimum standards to regulate their treatment. From time to time, the press draws attention to the considerable number of people held in preventive detention, and it is certainly in relation to those that the Foundation has suggested setting up comparative statistics, covering only the States participating in the Foundation. This is not such a simple task as may appear at first sight: we recently read that in one of our towns with 350,000 inhabitants, the average period of preventive detention did not exceed a week, due to tha fact that the law strictly controls this measure, whereas we know that in South America the term of preventive detention can be virtually the same as the period stipulated by the law for the offence on conviction. 86 As everyone knows, the Foundation has given particular attention to sanctions involving loss of liberty, beginning with an enquiry into treatment in prison, wh1ch was the origin of the Strasbourg Colloquium, itself a continuation of the famous Seminars which the United Nations had so successfully organized in Brussels and London - an initiative which they had to abandon through lack of finance, though not without passing on the trust to the Foundation. At the risk of labouring the point, I feel it necessary to summanze here the subjects that the Foundation has studied: psychological methods of treating prison inmates, organization of their work, hygienic assistance in prisons, restrictions of liberty in penitentiary administrations, public relations of penitentiary administrations, sexual problems in prisons, imprisonment of women, etc. We have not only looked at the classical problems but have also turned our enquiries towards the future: at Helsinki we debated whether there was a future for the concept of imprisonment; at Rotterdam we considered the impact of prison sentences in road traffic matters. All these questions - and they are far from the only ones - might have been tackled within the framework of a debate on the criminal justice system in our changing world. There are also many others that might have stimulated debate, although 1t might have fallen on deaf ears. One thinks, for instance, of penitentiary treatment - a problem which does not come into consideration in some underdeveloped countries, and which, having been emphatically extolled by the Foundation, is even today questioned as necessary by some of its members, as was evident at a recent Colloquium at Syracuse. We will not revert to tackling the positions on this important question, which is far from resolved. At the beginning of this address, we said that our Executive Committee would have preferred to concentrate on another, more limited and practical theme. Nevertheless, it IS a good subject we have in mind: first, from the logical point of view, as soon as the first subject proposed to the Seventh United Nations Congress had dealt with the new forms of criminality, it committed itself to following up with a consideration of the social reaction that they arouse; next, the theme is broad enough to permit everyone to make a contribution. But there is another side to the coin - the frailty of the theme probably lies in the impossibility of encompassing subjects that are too vast and complex, for fear of ending up with an airy-fairy and fragmentary treatment of it. One could also expect it merely to lead to the passing of resolutions in such general, even utopian, terms as to be valueless on a practical plane. Let us admit, all the same, that it would at least give the opportunity to study a very complex problem, which will have to be explored in the future 1n the Hght of the social sciences and in particular of statistical data. There is every chance of some surprises in store and some sacred cows that will be put into question. So, for example, the Caracas Congress, saw unemployment as one of the prime causes of criminality, doubtless because it engenders poverty, which in turn leads to crime. But is this really true? Is there an inevitable correlation between unemployment and crime? How then would one explain the finding recently of two Governments that unemployment had increased while crime levels had decreased? One would be tempted to reply that this phenomenon may be explained by the help given to the unemployed from public funds. Yet, curiously, observations show us that the most serious crimes are committed out of working hours, and the very common offence of «driving under the influence•• mainly occurs between Friday evening and Monday morning. This could suggest that it is not poverty, but leisure, that leads to delinquency! Let us add that one of the States referred to, based its criminal statistics on the number of criminal sentences registered in Criminal Records. If we examine the figures, we see a nett increase in acts of violence, while minor offences are decreasing. Matters become clearer when one realizes that because of the 87 depreciation of money, only fines of a higher amount are henceforth being registered in Criminal Records, so eliminating those minor offences which previous ly swelled the statistics. At first sight, these reflections bear no relation to our theme. But we must acknowledge that the Guide insists on the importance of statistical data, while our Federation has reservations on this point: twice it withheld from launching into a comparative statistical study, even in fairly modest terms, since it would have dealt with the prison populations of States represented within the membership of the IPPF The reason for misgivings is that one would have to know how to read foreign statistics and understand the basis on which they were compiled, before attempting comparisons. The United Nations, with its vast network of national correspondents, would do us a great service, if, in support of our examination of the questions it puts to us, it were to take the initiative in establishing an index of statistical sources in penal matters, with indications on the way that they are compiled and on their content - a simple task in principle, enormous in range, which would facilitate the debates that 1t takes the trouble to organize. To that first wish, we would add a second one, inspired by a reading of the Guide and its exposition of the theme put to us: would it not be a good idea to give a brief explanation of the terms employed, in order to avoid misunderstandings? At Caracas one delegate attending asked for such a «glossary», in order that everyone would understand the same thing by the same word. Without going as far as that, we feel that it would have been prudent, if only by a foot-note, to clarify -for instance - the intended meaning of «Justice penale», which we incline to understand in the same sense as Prof. Nuvolone, whereas here it has been given a much broader meaning. With this suggestion we will conclude, knowing that the United Nations Organization is alert to learn from the experiences acquired at the time of their Congresses, in the hope of achieving greater success in the future. 88 SUMMARY REPORT by Gian Domenico PISAPIA Professor of Criminal Procedure, University of Milan Mr. Chairman, Distinguished Colleagues and Friends, Ladies and Gentlemen, I am greatly honoured in the task which has been entrusted to me of presenting the Summary Report of this important Congress, organized by the Centro nazionale di prevenzione e difesa sociale on the occasion of its 35th anniversary. Yet I cannot, at the same time, conceal my keen realization of the complexity of that duty, made even more difficult by the multiplicity and diversity of the problems which have been raised and discussed. I must therefore apologize at the outset for any omissions of which I may be guilty and rely on the understanding and indulgence of my listeners. This Congress responds - as we all know - to the invitation made by the General Assembly of the United Nations to undertake systematic and organic work with a view to coordinating and stimulating technical-scientific co-operation and formula ting policies aimed at the prevention of crime, in view of the Vllth Congress of the United Nations, which will be held in 1985. It seems appropriate to emphasize, right at the start, that while some earlier Congresses of UNO had as their object the treatment of offenders, the next one places stress, even exclusively, on the prevention of criminality, viewed in its relationship to the economic and social development of the international communi ty. In order better to achieve that objective, the Four major international Associations, in consultative status with the ECOSOC - International Association of Penal Law, International Society for Criminology, International Society of Social Defence and the International Penal and Penitentiary Foundation - have chosen, as an act of wise inspiration, to set up an International Committee tor Co-ordination among the four Associations. Its current Chairman (according to the rota for the office) is Marc Ancel and its Standing Secretary is the indefatigable and inexhaustible Dr. Adolfo Beria di Argentine. To these gentlemen I permit myself to express my own admiration and the thanks of all of us for the work which they have devoted for many years, and still devote today, to the problems of criminal justice. The Committee chose, as the particular theme for this Meeting, the second item on the provisional agenda of the Seventh Congress of the United Nations, which, in the original French version reads «Fonctionnement et avenir de Ia justice pemale dans un monde en evolution" but in the Programme for our Congress appears as «Processus et perspectives de Ia justice penale dans un monde en evolution». The choice of this theme has been criticised, with characteristic vigour, by Prof. FranQois Clerc, who has pointed out a degree of difficulty in interpreting its precise scope and content - even in relation to some differences of expression which are to be found in the French as opposed to the English version. In fact, the theme of this Congress differs slightly in its formulation from the title to be found in the Discussion Guide to the Seventh World Congress of UNO. The Translated into English by David R. Gilbert, Barrister at Law, London. 89 precise subject reads as «Criminal Justice Processes and Perspectives in a changing World (which in the French text appears as «Processus et perspectives de Ia justice penale dans un monde en evolution»). Thus the English version speaks merely of a «Changing world», while the French one speaks of an «evolving world», almost as if to indicate that the change necessarily amounts to progress. In certain cases, however, the change may not be «evolutive .. but «involutive ... Between «evolution .. and .. revolution», then, the difference does not lies solely in an .. r .. ! On this point, Prof. Haussling advised us that in the Constitution of the German Democratic Republic, the expression «Scientific revolution•• has been replaced by «scientific progress .. : which confirms the relativity of certain expressions. But beyond titles and labels, which count to a certain degree, it is important to have a full appreciation of the real object, content and dimensions of the subject submitted for our examination. Without over-complicating matters, I would say that the task, basically, is to identifiy the relations between criminal justice and the changing world; more precisely, to determine the effect that the many continuous changes in the world have on criminal justice, in the aim of suggesting, and perhaps preparing the way for, the most suitable and effective means of adapting criminal justice to such changes, so as to function in the most satisfactory way possible. The theme is most important because - let us not forget it - it has become clear in the starkest and most dramatic way, even at this Congress, that in the greater part of the world criminal justice functions in an altogether unsatisfactory way! Despite the research and discussions that have been dedicated to this theme, on both the national and international planes, despite the efforts on the legislative plane by various Governments and on the operational plane by the many different compo nents collaborating in the administration of justice, we have still heard at this Congress the melancholy pronouncements of our friends from Latin America, Bernardo Beiderman, Heleno Fragoso and Elio Gomez Grillo (to mention but a few of many), denouncing the continuous violations of human rights being perpetrated in their countries. Also in many other countries, preventive custody is reaching utterly intolerable limits (and I regret to say that even Italy, as a result of the emergency legislation instituted in the fight against terrorism and organized crime, has attained an unenviable pre-eminence in this respect). In most countries the percentage of those held in preventive custody far exceeds those serving prison sentences after conviction, representing an actual anticipated execution of senten ce. The matter is even more serious when one considers that the accused, not only when he is found not guilty, but also when he is sentenced to a shorter term than the preventive custody he has already suffered, simply remains a ••Creditor of liberty .. towards the State, without even being compensated by a .. monetary reparation .. for the unjust preventive detention that he has suffered! To these, and to many other problems, which have emerged during the debate (old problems, but still current and unresolved ones, insofar as they are linked to the never-ending drama of the slowness of legal processes), we have sought in this Congress to find new and appropriate answers, on the basis of the systematic framework proposed by the General Rapporteurs of the Four major Associations. In this perspective, therefore, the theme submitted to our attention is to be studied. We have already referred to the criticisms of Prof. Clerc, whereby the theme is too vast and, from certain aspects, too vague. But, in truth, in the Guide provided by the United Nations to the intention of the preparatory regional and interregional Meetings the theme is illustrated by a broad analysis, which concludes with listing five questions to be discussed. Each of those questions is sub-divided into further particular questions, which give a good picture of the problems laid before us. Thus, if the theme may appear at first sight to be vague, it does go on to offer a series of very concrete subjects for discussion. The fact, then, that it might not have been possible to give secure and, above all, uniform answers to those problems, has served, if nothing more, to enliven the debates at our Congress. Moreover, the replies given, first by the General 90 Rapporteurs and then by many learned interventions, precisely because they were not uniform and indeed sometimes were in direct opposition to each other, confirm, if such confirmation were needed, the great interest presented by the subject and the high standard of the debate which it inspired. The first indications were given to us, albeit in general terms, from what we might reasonably consider to be introductory reports, such as those of Mrs. Leticia Shahani, Assistant Secretary General of the United Nations (who made a further, penetrating and learned contribution later in the proceedings), Dr. Erik Harremoes of the Council of Europe, and the representatives of the Italian Government: Virginio Rognoni, the Minister of the Interior, and Clelio Darida, the Minister of Justice. The replies of Prof. Pietro Nuvolone and Prof. Minoru Shikita, and those of the Rapporteurs from the Four major Associations, were naturally fuller and more detailed. These reports, all of the highest quality, examined the theme from a number of aspects, with special regard to the particular specialities of each Rapporteur, so as to offer in aggregate that multidisciplinary and above all inter-disciplinary framework which reflected the precise intentions of the promoters of the Congress. For that we must be most grateful to them, and I would like to congratulate them all on the admirable fruits of their work. Prof. Bassiouni in particular, in his wide-ranging and detailed study, sought to identify the common features which - despite the variety of ideologies, cultures, legislations and different economic and social systems - may be identified in the various criminal systems. He defined a «systemic similarity among criminal justice systems... He went on to identify four ••sub-systems••. represented by · Depenalization, seen in such terms, is no longer a choice of criminal policy but a fact which is often realized through the failure to apply the criminal law. Prof. Clerc, finally, despite his initial reservations characterized by penetrating polemical points which sometimes are intentionally paradoxical, not only makes a significant contribution on the plane of penitentiary law, which traditionally lies within the province of the International Penal and Penitentiary Foundation, but also approaches the subject in a wider, more comprehensive perspective, providing comments of great theoretical and practical interest. The reports of the General Rapporteus met with widespread and well deserved agreement. There were, however, some critical reactions to them. For instance, Prof. Alexander Yakovlev (USSR) commented, in relation to Prof. Bassiouni's paper, that the effort to discover points of similarity between the various criminal justice systems seems unlikely to meet with success, mainly because, despite superficial similarities, the various systems possess profound differences. As for the division into four sub-systems put forward by Bassiouni, Dr. Giuseppe di Gennaro (Italy) observed that if one looks at the functions rather than the organs, it would be better to keep faith with the traditional triple division of the phases of legal proceedings: investigation, judgment and execution, even though from various aspects such functions may be vested in different organs (in the Italian system, for example, the judge may have additional investigatory and executive functions as well as the purely judicial one). Dr. di Gennaro went on to say that the concept of .. coherence .. between the various sub-systems proposed by Prof. Bassiouni may perhaps have been accepted too uncritically; his own view was that the judge's position is quite distinct from that of the investigator or examining justice, over whose work he has a task of supervision and control. Without doubt, in an ideal system there would be a perfect coincidence between action and jurisdiction, shoud only the guilty be subjected to legal process. But that would clearly be Utopia, particularly because the control of the judge aims precisely to determine whether the criminal proceedings have been brought with good cause. Di Gennaro also drew attention to the relativity of the ••principle of legality .. , distinguishing between attacks on the system coming from within it and attacks aimed at destroying the system itself, causing the system to fight for its own survival (as against terrorism). Prof. Kos-Rabcewicz-Zubkowski (Canada) pointed out that the sub-systems men tioned by Prof. Bassiouni failed to include that of ••defence••, which is fundamental to a democratic system. He then aligned himself with the comments of Prof. Reiss on ••trans-national criminality .. , expressing some surprise that it had to be a sociologist, and not a jurist, who drew attention to this important problem. Nevertheless, I feel that it is opportune to underline that Prof. Bassouni's report, while distinguishing the various sub-systems, mainly concentrated on the need for a close link between them (or, in other words, between the various components and phases of criminal justice), in order to permit that global approach, which - in my view - represents not only the keynote of his report, but also the dominant underlying inspiration of our Congress. At this point, anyone charged with presenting a summary report has to make a choice, regrettably but necessarily, since it is not possible - not least for reasons of time - to set out all the valuable and important observations made by those who animated our debate with their contributions. I must confine myself to a few salient aspects which emerged from the discussion, apologizing at the outset to all those who participated and who may identify their contributions in the following observations. I would add that the press reports of the Congress have fortunately recorded all the interventions in full and I defer to these for a more complete source of information. I cannot, however, refrain from mentioning one intervention which was made at the winding up of the discussion and which deserves special mention because of its breadth and content. 92 According to Dr. Beria di Argentine, we should - even if briefly - leave apart the compilation of social changes which have influenced justice (urbanization, industrial ization, changes in juvenile behaviour, etc.), whereby as we cannot at the same time change substantive penal legislation and do not have available to us a substantive legislation equal to the newness and complexity of the phenomena, the problems of justice are to be resolved according to the way that the procedural stage is undertaken. < adapting automatically to the inevitable changes in the social-economic conditions of each country. In the Caracas Declaration of 1980 the need was emphasized to devise and plan penal policy in a global framework; consistent therewith, we have reaffirmed that the problem of criminal justice needs to be studied and tackled globally. This global approach should be understood in a double sense: first, the realization of better co-ordination between the various elements and stages of criminal justice: investigation, preliminary legal enquiry, prosecution and execution of sentences; then, and especially, scholars in all the juridical, criminological, sociological and psy.c;:hological disciplines should come'together, collaborating closely, each with his own viewpoint and scientific specialization, in order to solve the problems of criminal justice. The words «Criminal justice•• should thus be considered in an all-embracing sense, so that no one component acts as if jealous of the others (as Bassiouni ment1oned) nor each of the three angles of the triangle ignores the others (as Khalifa said). Criminal justice, moreover, should be as little formal as possible, and above all must be humane. The model of juvenile justice, as Chazal reminded us in his excellent intervention (in which he said that a judge «Without humanity is not worthy of the name of judge») should be one of the models to be examined and certainly one of the parameters to be observed. The same concepts were confirmed by Prof. Melnikova, who insisted on the necessity of alternative models, both on the substantive and procedural levels, in order to achieve swifter court proceedings, without of course impinging on basic individual rights. Only in this way will criminal justice be able to regain prestige and above all credibility, not only in Italy or Europe, but in the whole world. This can be obtained only in a sett1ng which favours prevention above repression, and works towards re-education and reintegration of the offender into soc1ety rather than dwelling exclusively on retributive punishment. Such a conclusion accords not only with the mspiring words of Mrs. Shahani, but also with what Cesare Beccaria wrote some two hundred years ago in his immortal work Of Crimes and Punishments and that Voltaire classified as the «real code of mankind»: <