Serious crime and the requirement of respect

for human rights in European democracies

Proceedings of the Seminar organised by the Secretariat General
of the Council of Europe in co-operation with Intercenter of Messina (Italy)
Taormina, 14-16 November 1996

2
PREFACE
The Seminar on "Serious crime and the requirement of respect for human rights in
European democracies" was held in Taormina (Italy) from 14 to 16 November 1996. It was
organised by the Directorate of Human Rights of the Council of Europe in cooperation with
Intercenter of Messina (Italy).
In order to further scientific knowledge of human rights, the Council of Europe has held
for many years top level meetings which, depending on the case and issue under study, take the
form of European colloquies, round tables or seminars held annually.
The Seminar dealt with the following themes:
1.

Means and action to combat serious crime effectively while respecting human rights:

i.
ii.

Legal means (penal and prison fields, police action, etc.);

Other means (crime prevention, social action - employment, young people -, urban
policy, etc.);

2.

Increasing public awareness of the need to respect human rights when combatting
serious crime:
i.
ii.

Education;
Role and responsibility of the media.

This publication contains the Proceedings of the Seminar: official speeches made at the
opening ceremony, reports and written communications, interventions, general report and list of
participants.

PROGRAMME
Thursday 14 November 1996
3.00 pm

Opening Ceremony

Speeches by:
Mr Mario CHIOFALO, Vice-President of the Province of Messina
Mr Paolo PUCCI DI BENISICHI, Ambassador, Permanent Representative of Italy to the
Council of Europe, Representative of the Government of Italy
Mr Claudio AMBROGETTI, Assessore all'urbanistica, Vice-Sindaco di Taormina
Mr Claudio ZANGHI, President of Intercenter
Mr Pierre-Henri IMBERT, Director of Human Rights at the Council of Europe, Representative
of the Secretary General
4.00 pm

First session

Chair:Mr Pier Luigi VIGNA, Procuratore nazionale antimafia, Florence (Italy)

Serious crime and the respect for human rights in European democratic societies
Introductory Report presented by Mr Mario CHIAVARIO, Professor of Criminal Procedure,
Faculty of Law, University of Turin (Italy)
Discussion
Friday 15 November 1996
9.30 am

Second session

Chair:Mr Jerzy JASKIERNIA, Member of the Committee on Legal Affairs and Human Rights
of the Parliamentary Assembly of the Council of Europe, Chancellory of the Sejm
Theme 1: Means and action to combat serious crime effectively while respecting human
rights
i.

legal means (penal and prison fields, police action, etc.)

Report presented by Mr Juraj KOLESAR, Professor of Law, Vice-Dean, Faculty of Law,

Comenius University, Bratislava
Discussion

4
3.00 pm

Third session

Chair: Mr Carlo RUSSO, Judge at the European Court of Human Rights

ii.

other means (crime prevention, social action -employment, young people -, urban
policy, etc.)

Reports presented by Mrs Marie-Pierre de LIEGE, Judge, seconded to the Institute of the Arab
World, Paris
and Mr Nick TILLEY, Professor, Faculty of Economics and Social Sciences, Nottingham-Trent
University, Nottingham (United Kingdom)
Discussion
Saturday 16 November 1996
9.30 am

Fourth session

Chair:Mr Rgis de GOUTTES, Chairman of the Council of Europe Steering Committee for
Human Rights, Avocat gnral prs la Cour de Cassation franaise
Theme 2: Increasing public awareness of the need to respect human rights when
combatting serious crime
i.

education

Report presented by Mrs Vivien STERN, Secretary General, Penal Reform International,
London
Discussion
ii.

role and responsibility of the media

Report presented by Mr Max SNIJDERS, Professor, Specialist in the ethics of communication,

Utrecht (Netherlands)
Discussion
3.00 pm

Closing session

Chair:Mr Claudio ZANGHI, President of Intercenter

General Report presented by Mr Bronislaw GEREMEK, Chairman of the Parliamentary
Commission on Foreign Affairs, Warsaw
_____

5
Ten personalities were invited to present written communications on the different themes:
Messrs. Francesco BRUNO (Rome), Ralph CRAWSHAW (Stratford St. Mary, United
Kingdom), Michel de SALVIA (Strasbourg), Jean-Marc ELCHARDUS (Lyon, France),
Vladimir EVINTOV (Kyiv), Hartmuth HORSTKOTTE (Berlin), Saulius KATUOKA (Vilnius),
Shlomo Giora SHOHAM (Tel Aviv), Sergei SIROTKIN (Moscow) and Pier Luigi VIGNA
(Florence).

OPENING CEREMONY
Mr Mario CHIOFALO, Vice-President of the Province of Messina
I have great pleasure in welcoming the participants of this Seminar on behalf of the
Province of Messina.
The body which I have the honour of representing here today has always been a keen
advocate of all the cultural initiatives organised by Intercenter over the years. Through its
efforts, our community has once again participated in a first-rate meeting on a problem of great
concern in our country at the moment.
From the beginning, we have believed in the opportunities that such a competent body
could and should create, just as we have always believed that it would reflect well on our town
and on our province. We therefore note with great satisfaction that Intercenter is maintaining its
reputation, and that of our community, through its continued meetings. This is why the Province
of Messina is happy to be once again at the opening ceremony of an event of such importance,
by virtue of both the programme's themes, which I would call strategic, and of the whole system
of constitutional guarantees and strengthening of the means for protecting civil society.
It is not by chance that Intercenter felt that it would be appropriate to hold this Seminar
in Italy, where more than anywhere else today there is discussion of how the problems of
detention on remand should be tackled, what the role of the public prosecution office should be
and how high a price local authorities and democracy should pay to eradicate crime at all levels.
In my opinion, it is difficult to envisage effective means of combating serious crime when this
scourge has taken root, where human dignity has already been crushed by unemployment which
hits all social classes alike, and when the resulting poverty gives rise to growing social
differences and, moreover, when all this happens in a country such as ours which until recently
regarded unchecked consumption, given increasing prominence by the mass media, as a status
symbol for the whole community.
The mass media and in particular State-run television, could be a considerable help to
institutions by acting responsibly to prevent crime, instead of showing endless images of
violence and the illusion of easy money as it currently does. But more important still, we must
consider the crux of the problem as addressed by this Seminar, namely, how to find the delicate
balance between combating crime and protecting fundamental human rights. This is a hard nut
to crack and each and every one of us needs to help solve it. I feel sure that your efforts will
lead to significant results for the police in our area of justice. Thank you and good luck.

Mr Paolo PUCCI DI BENISICHI, Ambassador, Permanent Representative

of Italy to the Council of Europe, Representative of the Government of Italy
I welcome this joint venture between the Council of Europe and the Messina
International Centre for Sociological, Criminal and Prison Studies, since I believe that the
Council has much to contribute to the subject of this seminar.
It has much to contribute as there are two reasons why the Council of Europe is
interested in a debate on the fight against serious crime and respect for human rights: the first is
horizontal and the second, vertical, or if you prefer operational.
The horizontal reason is because the Council of Europe has recently undergone
considerable enlargement and now encompasses virtually all the geographical extent of Europe.
With the accession of Russia, and very recently of Croatia, the Council of Europe - or rather its
area of responsibility - now extends from Lisbon to Vladivostok, from Malta to Reykjavik. The
Council's activities therefore cover the whole pan-European region, in the widest sense of the
term. And since, as we shall see, since I am sure it will emerge from our discussions, the
problem of combating the scourge of serious crime is one which unfortunately is a factor shared
both by the oldest democracies on our continent and the new ones, the most opportune and
appropriate way of looking in detail at the issue is undoubtedly in the context of the Council of
Europe.
The second reason for the Council's interest in this in-depth consideration of the subject
derives, I believe, from what I termed a vertical aspect. By that I mean that in the process of
redefining the institutional architecture of Europe, increasing emphasis is being placed on the
Council of Europe's specific responsibility, namely that of being the main organisation in
Europe responsible first and foremost for the establishment and then the defence of pluralist
democracies based on the respect of human rights and the rule of law.
So who is better placed than the Council of Europe to consider the interrelations between
the fight against crime and the defence of human rights?
These interrelations are furthermore very close, without any incompatibility between the
two, since, on the one hand, there could be no defence of human rights if there were no fight
against crime, and in particular serious crime, which threatens them more than anything else.
But on the other hand, there could be no fight against crime if it were not based on the respect of
human rights or based on the rule of law, otherwise this fight would not be lawful.
field.

This is why I believe that the Council of Europe should be able to achieve much in this

Before concluding, I would like to refer to the death penalty since you will be well aware
of the interest this represents for my authorities; it is a consistent feature of Italy's international
policy in all international bodies. I would like to mention here that the death penalty is an issue
in which the Council of Europe is particularly involved. It is involved on the legal level, since
we have Protocol no. 6 to the European Convention on Human Rights which refers to it. There
is also the considerable pressure brought to bear by the Parliamentary Assembly, and I would
like to pay tribute to its commitment, and to the pressure it exerts on governments to bring about
the effective and complete abolition of the death penalty. In addition, there is a third way in

8
which it is involved: the political commitments entered into by the new Council of Europe
member states: political - but by no means the least significant - commitments to abolish the
death penalty. I think this is very important.
We cannot go so far as to say that the countries which still have the death penalty are
clearly not democratic countries; we all know that there are major democracies on the other side
of the Atlantic which still have this penalty, but we also believe that there is a European cultural
aspect, a vision, a Weltanschauung in this respect, which leads us to the opinion that the death
penalty goes against the conscience of our civilisation and, consequently, it is now time to
encourage still further those countries which have not yet done so to do away with it, to abandon
this deterrent, which is nothing of the sort, and which as Cesare Beccaria, our mentor in this
matter, said is something which is neither necessary nor useful.

Mr Claudio AMBROGETTI, Assessore all'urbanistica, Vice-Sindaco di

Taormina
It is a great pleasure for me to welcome the participants in this Seminar which will
discuss extremely important subjects, on behalf of the Mayor, who unfortunately is unable to be
here today, the town of Taormina as well as myself.
I would particularly like to welcome the State Prosecutor Mr Vigna who has done us the
honour of attending this seminar as his first official engagement. Mr Vigna will need all our
encouragements to carry out his job successfully and, especially to do justice to his even more
important commitment to combat crime.
I feel sure that this international Seminar will provide the opportunity for a useful
exchange of ideas, solutions and plans between the representatives of different States. Among
other things, it should be encourage cooperation and collaboration between various countries in
their commitment to fight the Mafia and pool their experience. In a country such as ours, which
is today in a state of great confusion and in which citizens are sometimes fearful of losing their
guaranteed right to one of the greatest goods granted them - well, I believe that in this country
and at this particular time southern Italy also needs to understand the reality. Fortunately, the
time of State aid, begging for money and mayors going to Rome to ask for handouts has gone.
Nowadays, mayors and local officials have to look to their own communities and areas to find
the means to tell the whole nation that it is possible to find ways of reviving a region from
within, that it is possible to create new jobs in Sicily and throughout southern Italy.
Obviously, there's nothing new in saying that the roots of organised crime lie in
unemployment. Nevertheless, it is not true to say - as people frequently do - that new jobs
cannot be created, that mayors and officials can do nothing and that we have to wait for the State
to pass legislation. Let me give you a single example: here, in Taormina, we have transformed
a municipal transport organisation into an organisation providing municipal services. This
simple change has enabled us to provide the organisation with many services, which it did not
have before and in doing so to create fifty to sixty new jobs. This shows how local communities
can effectively find their own ways of creating new jobs and in this way destroy organised crime
which draws on unemployment for its popularity and manpower.
Thank you once again for coming and may I wish your work every success. I would also
like to thank Intercenter and the Secretary General of the Council of Europe for having chosen
Taormina as the venue of such an important Seminar. I hope that these days spent in Taormina
will generate positive and concrete results. Thank you.

10

Mr Claudio ZANGHI, President of Intercenter, Messina

On behalf of the International Centre of Sociological, Penal and Penitentiary Research
and Studies and for myself, I should like to begin by welcoming the Chairpersons, Rapporteurs,
friends of the Council of Europe and all those participating in this colloquy to Sicily and to
Taormina.
Some of you already know the International Centre of Messina, which is generally
known by the shortened name of Intercenter, but for others this is perhaps your first contact with
it, and I would therefore like to say a word or two about it.
As you know, the International Centre, INTERCENTER, was set up in Messina some
years ago on the initiative of a group of specialists, particularly in the criminal field, with the
backing of the scientific community and the local authorities.
Little by little, various initiatives have been brought to fruition in Italy and abroad, and
their success has earned the Centre recognition in Italy and elsewhere. The Centre was granted
legal personality by Decree of the President of the Republic and since then has been granted
consultative status with the Council of Europe and the United Nations and has worked on
several occasions with UNESCO, the European Union, the Red Cross and other international
organisations.
The Centre's activities cover a vast area and include criminal law issues, prison systems,
sociological problems and above all, of course, human rights. Please read our brochure if you
would like to find out more.
In this context, we have organised numerous activities in conjunction with the Council of
Europe. You could say that this has already become a tradition.
Last year, we met here in Taormina to discuss corruption and public authorities; in June
of this year, we met in Messina to debate the role of state prosecution services; and now we are
once more in Taormina, this time to discuss "Serious crime and the requirement of respect for
human rights in European democracies".
This subject is of obvious interest to all Council of Europe member States and, I believe,
of particular interest to the new European democracies which have undergone a radical
transformation.
First of all, a political transformation, a move from totalitarian to democratic regimes.
The role of the State in society has been considerably reduced and the rule of law has been
established. Secondly, an economic transformation, a move from a system of state collectivism
to a free or market economy. The change has been rapid and has not followed the usual
economic cycles. Lastly, a social transformation with the decline of a State social welfare
system and the consequent need to change mentalities and move from collective passivity to
individual responsibility.
Unfortunately, these changes have been accompanied by a rise in crime. Organised
crime is on the increase and is assuming international proportions. It seeks not only economic
gain but also political influence and power.

11

The decline of official ideologies has led to the disappearance of some values which
have not been replaced by others. In this vacuum, easy money, wealth and power at any price
threaten to become the new "values" to be sought and respected.
A sometimes similar situation exists in the old European democracies, although it has
different causes.
Faced with this new crime wave, the State continues to be responsible for protecting its
citizens from violence in all its forms and from insecurity. Exceptional measures have to be
taken in a situation which could be termed "exceptional".
This is why there are plans to increase police powers, in particular by extending the
period of detention on remand, increasing the powers of the state prosecution service in trials,
instituting special conditions of detention (top-security prisons, solitary confinement and
restrictions on outside contact) and introducing economic measures such as the sequestration
and confiscation of illegally acquired goods and sometimes even more serious exceptional
measures using the derogation provided for in Article 15 of the European Convention.
Even if these initiatives are justified by rising crime, we should not forget that our States
are bound by the European Convention on Human Rights and are members of an international
organisation which has made upholding the rule of law and respecting human rights essential
conditions for admission and continued membership.
Fundamental requirements such as respect for life, physical integrity, individual freedom
and so on have an absolute value.
The few exceptions which are sometimes accepted must always respect the principle of
proportionality.
To be admissible, exceptions must be necessary in the context of a democratic society.
According to the Court's case law, "necessity" implies an 'overwhelming social need', which
must always be measured against the importance of the right that is to be limited.
While, an "exceptional" situation of rising crime needs to be addressed, respect for
human rights remains a fundamental requirement in democratic societies.
Achieving a balance between these two, apparently opposing, aims is sometimes difficult
but it should always be possible.
I think that the reports and discussions will help us see how such a balance can be
achieved in practice. Thank you.

12

Mr Pierre-Henri IMBERT, Director of Human Rights of the Council of

Europe, Representative of the Secretary General
Speaking for the Secretary General of the Council of Europe and also for myself, I
should like to welcome you all to this seminar on "Serious crime and the requirement of respect
for human rights in European democracies", which the Council of Europe is organising in cooperation with Intercenter of Messina.
This meeting is being held at a time of mounting concern - and indeed alarm - in many
European states over the increase in serious crime. Some states now have crimes on a scale and
of a type unknown until very recently. In others, there are mass emotional reactions to the more
appalling crimes, and public attitudes are hardening. Faith in the authorities' ability to stem
violent crime and protect the individual has waned, giving way to dissatisfaction and scepticism.
In any democracy, the national authorities have a duty to protect the community and seek
effective deterrents to serious crime. In doing this, however, they must respect human rights and
fundamental freedoms fully. We must not underestimate the problems this twofold obligation
causes them. Nor must we overlook the pressures they face from certain sectors (public opinion,
government officials and elected representatives alike), all wanting them to do something
radical, often in emotional reaction to some tragedy, instead of giving serious, careful thought to
an effective programme for the reduction of serious crime.
Clearly, one of the key problems of criminal justice policy which European states have
to solve is devising and implementing measures which work, but are also fully consistent with
respect for human rights and fundamental freedoms. To give us a chance to look at the problem
calmly and, above all, share the lessons we have learned from past experience, whether good or
bad, we have thought it necessary to bring together a number of eminent crime policy specialists
and human rights theorists and practitioners. That is the underlying idea and objective of this
seminar.
* * *
Behind much of the talk about tough measures lies a basic human instinct: the thirst for
revenge. And indeed, how can we fail to understand the feelings inspired in victims or their
relatives by the perpetrators of appalling crimes?
And yet the basic raison d'tre of criminal law, and law in general, is surely to channel
this hunger for revenge, and aim at rational justice even - perhaps especially - in cases which
provoke passionate public feeling? As Francis Bacon wrote, some 400 years ago: "Revenge is a
kind of wild justice, which the more man's nature runs to, the more law ought to weed it out."
Since he wrote those words, European societies have come a long way towards accepting that
the law's job is to place a check on the desire for revenge: a process which we can summarise by
saying that we have moved from vengeance to justice.
Perhaps the most impressive recent illustration was the march staged in Brussels by over
300,000 people in connection with investigation of the paedophile network uncovered in
Belgium. The message of that dignified demonstration had nothing to do with revenge; what
brought all those people into the streets was a profound desire for justice.

13
Nevertheless, there is still a call in our societies for punitive measures which are not
compatible with human rights. There are even politicians who rely on cost/benefit reasoning and
seem prepared to sacrifice even human rights to what they regard as effective anti-crime
measures.
This kind of thinking is pernicious, and I should like to make a few comments to show
that it is wrong and may even be dangerous. I shall take the arrest and interrogation of people
suspected of serious crimes as an example. Certain law enforcement agencies sometimes think it
expedient, in the interests of justice, to cut corners, deny basic rights, and even maltreat or
torture suspects. This is not just an affront to human dignity, and so to all of us - it also harms
the interests of justice, robs the police of the respect which they ought to command and tends to
turn the public against them.
Take another example: in some states, the death penalty is still seen by the public, or
presented to the public, as an effective way of curbing serious crime. We shall probably be
discussing this question at some length, so I shall content myself with simply pointing out, here
again, how flawed this reasoning is. There is no proof that the death penalty is an effective
deterrent to serious crime. On the contrary, there are signs that serious crime has not declined in
countries which have brought it back or now use it more frequently. Some people even think
that keeping the death penalty tends to make violence a commonplace in society.
* * *
More generally, and from a human rights standpoint, I am surprised that discussion of
the effectiveness of repressive measures sometimes overlooks a basic premise of any democratic
society founded on the rule of law. It is certainly possible, at least in the short term, that respect
for human rights may put limits on effective state action. State action to combat crime is no
exception to this. But we still have to decide what we mean by "effective state action".
I need not remind you that some of the vilest regimes Europe has known in this century
were highly effective in achieving their aims - but this effectiveness went hand in hand with the
most flagrant violations of human rights and the principles of the rule of law.
We must not forget that human rights derive much of their raison d'tre precisely from
the fact that they place certain checks on state action - not because their aim is to make such
action ineffective, but because protecting individuals against the state necessarily affects the
forms state action takes.
When extremist terrorism was rife in Germany in the 1970s, the European Court of
Human Rights issued a warning, which is not without relevance to this seminar's topic. On the
subject of legislation permitting secret surveillance to combat terrorism, the Court stressed the
limits of contracting states' discretion:
"The Court, being aware of the danger such a law poses of undermining or even destroying
democracy on the ground of defending it, affirms that the Contracting States may not, in the
name of the struggle against espionage and terrorism, adopt whatever measures they deem
appropriate." (Klass and Others judgment of 6/9/1978, A 28, paragraph 49)

14
The curbs on state action to which the members of the Council of Europe have
committed themselves are clear. The European Convention on Human Rights, its protocols and
case-law, the European Convention on the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment and the reports of the Committee for the Prevention of Torture, as well
as a series of recommendations and resolutions by the Committee of Ministers, indicate what is
and is not acceptable in relation to the arrest, trial, sentencing and treatment of people suspected
of criminal offences, whatever those offences may be.
* * *
I hope I am making myself understood. I am fully aware that, at a time when the
disturbing level of serious crime undoubtedly calls for a firm response, it is not enough simply to
reiterate that certain measures are unacceptable. Human rights are not just an abstract
imperative; they need to be lived and they need to be understood. The task here is a huge one,
but it may be cases like this which make the existence of an international organisation really
meaningful. The Council of Europe, at all events, is determined to help states to overcome the
difficulties they face.
As I have said, the aim of this seminar is to exchange ideas, with a view to finding new
approaches and forms of co-operation which will allow us to combat serious crime with due
regard for human rights and fundamental freedoms. Without wishing to pre-empt the
discussions, allow me to venture some ideas for concrete action.
The themes we shall be discussing in the next two and a half days should, I think, make
it possible to identify the main components of a vast Council of Europe project on the general
topic of "Human rights and prevention and control of serious crime". There might be two chief
emphases, public opinion and the attitudes of professional groups being one, and crime policies
the other.
On the first point, no effort should be spared to make our fellow citizens see why serious
crime should be fought with due respect for human rights. There is clearly a need for action to
make the professional groups most directly concerned (principally law enforcement agencies)
and the public at large aware of the issues at stake in preventing and controlling serious crime,
and of the need to tackle the problem in a way which upholds human rights and fundamental
freedoms. For professionals, the focus would be on the human rights issues they may face in the
course of their duties, particularly when dealing with people guilty or suspected of serious
crimes, and also on the theoretical and practical training they need to handle specific situations.
Efforts for the general public should focus on promoting a "human rights culture" and
ensuring that it becomes deeply ingrained in all our societies, with the help of human rights
education in schools and elsewhere, and of general information campaigns. Special attention
should be paid to bringing the message home to media circles, political leaders and, in general,
all those with a significant influence on public opinion.
I would like to make one comment here. It is obviously vital to inform and form public
opinion - but I have the impression that, in the field which concerns us here, public opinion itself
is often used as an alibi. Political leaders cite it to excuse their failure to take action or, even
worse, the questionable nature of the action they do take. Public opinion, we are told, is not
ready for change. How do we know? And even if this is true, surely our political leaders have a
duty promote a change in attitudes and sometimes to go beyond raw feelings, simply for the

15
sake of upholding and preserving certain values? Here again, the death penalty is the best
example. In the things politicians say, I sometimes discern a tendency to see this "easy" solution
as a convenient tool for convincing the public that every effort is being made to curb crime. This
is an extremely dangerous attitude, and it may in fact serve to conceal the absence of a serious,
coherent crime policy. We should remember that crime policy also plays a part - for better or
worse - in educating public opinion. Criminal codes are not just lists of offences and penalties.
They also express the fundamental principles of the societies which frame them. This brings me
to the second aspect of the project we are considering: what can we do to promote effective
criminal laws and policies?
The answer here may lie in two directions which, for want of better terms, I shall call
"scientific" and "practical".
The scientific side might cover: comparative research and studies on such issues as laws
and policies to combat serious crime, including international co-operation against international
networks; effective control measures, meeting both the need to combat crime and the need to
respect human rights and fundamental freedoms; prison policies and procedures for "lifers";
remission and non-remission of sentences; remedial measures, including psychiatric and
psychological assistance for violent criminals; effective reintegration policies, etc.
These studies and research might be backed by specialised seminars or workshops on
specific questions which they raised. Guidelines for action and other measures might also come
out of these meetings.
The practical side might be aimed at police and prison officers and at those more
directly involved in framing national laws and policies. The basic idea would be to bring
representatives of these various professions together to pool their experience and learn from
others' successes in tackling serious crime in a way which respects human rights.
You should not conclude from this list of suggestions that nothing has been done so far.
On the contrary, as several contributions to this seminar show, the Council of Europe has done a
great deal in this field. The proposed project should make it possible to tackle certain subjects in
greater depth, make the various activities hang together even better and, above all, bring the
need to respect human rights more strongly to the fore. It would also make it easier to take
account of other apparently subsidiary, but actually fundamental, policy areas. I would
particularly emphasise the part played by social development and social cohesion in stopping
crime from escalating. I am very pleased that one of this seminar's sessions is devoted to policy
and action in this area, with a special emphasis on unemployment, the situation of young people
and urban policies.
Indeed, the themes chosen for the various sessions make it clear that the Council of
Europe favours a global approach. I would add that the Organisation is the ideal European forum
for this, since its experience and work encompass all the relevant areas: human rights, legal cooperation, education and awareness-raising, and socio-economic policy.
* * *
I should like to end by expressing a dual wish. I sincerely hope, of course, that the
discussions will be stimulating and also useful in identifying practical avenues of action. I hope,
too, that this seminar will contribute to a wider awareness that the fight against serious crime

16
and respect for human rights are not contradictory. These can and should be complementary
causes - all the more so since both ultimately serve to protect values which are basic to our
democratic societies: the dignity of human life, individual freedom and personal security.
Thank you.

17

FIRST SESSION
Serious crime and the respect for human rights in European democratic
societies
Introductory Report presented by Mr Mario CHIAVARIO, Professor of
Criminal Procedure, Faculty of Law, University of Turin (Italy)
1.
The safeguarding and promotion of pluralist democracy, to which the whole of Europe is
now committed, are no longer safe from growing threats, such as increasingly violent crime that
are very much present especially, but not exclusively, in the nascent democracies.
This not only causes formidable problems of law and order but also poses a constant
threat to the proper functioning, and indeed the very survival, of democratic institutions. It is
even suspected that important political and judicial decisions may have been directly
influenced by criminal organisations. At all events, the weakness (be it genuine or presumed) of
public institutions vis--vis crime gives rise to widespread disillusionment which, in turn,
nurtures nostalgia for the "strong arm" of authoritarianism or dictatorship.
The widespread desire for more draconian penal policies, for sterner justice and harsher
punishment at whatever the cost, therefore comes as no surprise. "Aim at the head!" is an
exhortation that can scarcely be regarded as a mere metaphor, particularly when heard echoing
down the corridors of police training colleges.
There is at present considerable pressure in favour of unscrupulous recourse to capital
punishment. The abolition of the death penalty is being called into question by official
declarations, in the very countries that made abolition a symbol of their return to democracy.
Furthermore, politicians calling for the death penalty as a short-cut solution to new outbreaks of
crime do not seem to exist only in certain countries - just think of the speech by the President of
the United States on the day after the bombing in Atlanta.
2.
Yet it is no coincidence that the rejection of the death penalty has become one of the
cornerstones of European commitment to the safeguarding of human rights, with the result that
accession to Protocol No 6 to the European Convention on Human Rights - which imposes a
total ban on capital punishment in time of peace - is envisaged as one of the conditions for full
participation in the new democratic Europe.
Allow me to borrow a famous phrase by Pascal to restate in a nutshell that this rejection the irreversible manifestation of the finest aspects of mankind's conscience - is based on both
the raisons de la raison (rationality) and on the (deeper) raisons du coeur (reasons of the heart).
There is nothing I can add to this belief. Rather, we should ask ourselves whether our "no" which is based on a consistent belief in the right to life (and more generally stated in the name of
human rights as the foundation and aim of democracy) -may not sometimes lack real credibility,
particularly when it is not accompanied by a major effort to find alternative solutions to the
challenge of serious crime. We have nothing to say to the huge, angry crowds after the discovery
of the pathetic remains of the victims of the "Marcinelle monster".
Nor is it wrong to say that a hidden and distorted form of death sentence is passed and
executed every day by savage, unscrupulous criminals, and more often than not on innocent

18
victims. And we are asked, not without a hint of controversy, to explain the attitude to it of those
who claim to speak and act in the name of human rights.
The theory of Drittwirkung has had the merit of preparing fertile ground for discussions
showing acute sensitivity to this type of problem. At this point, moreover, we should consider
the contributions made by the "living" system of the European organs which monitor respect for
human rights, in terms of a real awareness of the attacks which those rights suffer from both
crime and the abuses and superior power of public authorities.
3.
This immediately brings us to the clause in Article 15 of the European Convention on
Human Rights which distinguishes between rights from which no derogation whatever may be
made - in as far as they are secured by specific provisions of the Convention - and other rights
and freedoms which are safeguarded but from which derogations may be made to the extent
strictly required by the exigencies of the situation, not only in time of war but also in in time
of... other public emergency threatening the life of the nation.
We might endeavour to wonder in greater depth about the reasons for the different
attitudes taken by the various member states of the Council of Europe. For example, it transpires
that Italy has never formally relied on this derogation, although it could - as far as terrorism and
the mafia are concerned - defend its emergency legislation from most of the criticism levelled
against it. It is, however, more important to note the care taken by the European Court of Human
Rights (since its first judgment in the Lawless case) to ensure that the formal and material
conditions required for the application of Article 15 are met, so that this very delicate tool
continues to be a weapon that is used only in extreme circumstances.
Quite apart from any recourse to Article 15 - a derogation clause which is both general
and exceptional - the question of serious crime has already been raised before the European
Court, which has thus been led to examine in greater detail both the concept and the scope of
certain rights and freedoms safeguarded by the Convention.
It could be said that the entire system of the Convention provides a basis and substance
for this need for clarification, if it is true that freedom and the rule of law are not to be
considered solely as limitations on the action of state bodies but more generally as the
underlying principles of a generally applicable operational model. More surprising is the scarcity
of references in European case-law to Article 17 of the Convention, the role of which appears
remarkable in that it forbids any interpretation of human rights likely to encourage the misuse of
these rights in order to destroy them. Indeed, engaging in activities and committing acts aimed
at the destruction of any of the rights and freedoms set forth... in the Convention are not
unrelated to serious crime. However, the caution and misgivings expressed about this clause which has been accused of having served during the "cold war" as a means of ideological
persecution - are understandable.
4.
Whatever the case, the Court has not side-stepped the essential problems and has even
gone as far as to examine possible restrictions on the very rights which Article 15, paragraph 2,
includes in the list of rights from which no derogation may be made.
As regards the prohibition on torture and inhuman and degrading treatment, a very recent
judgment (in the Ribitsch case) underlines very clearly that Article 3 of the Convention
prohibits in absolute terms the practices in question irrespective of the victim's conduct;
moreover, the said decision refers to a previous decision in which it was stated that the

19
requirements of an investigation and the undeniable difficulties inherent in the fight against
crime cannot justify placing limits on the protection to be afforded in respect of the physical
integrity of individuals.
As regards the right to life, the Court has taken account of the fact that Article 2 of the
Convention does not exclude the possibility that the deliberate use of lethal force may be
justified in cases where it is absolutely necessary to prevent certain kinds of crime. However,
in a case concerning the use of such force by soldiers against persons suspected of preparing a
terrorist attack (McCann and others judgement), the Court stressed that it was its duty to
carefully scrutinise... not only whether the force used... was strictly proportionate to the aim of
protecting persons against unlawful violence but also whether the anti-terrorist operation was
planned and controlled by the authorities so as to minimise, to the greatest extent possible,
recourse to lethal force. In this particular case the Court held that there had been a violation of
the Convention.
On the other hand, the Court has not yet had the opportunity to deal directly with the
scope of Article 1 of Protocol No. 6 which forbids recourse to the death penalty in peacetime.
This article was relied upon in an indirect and inconclusive manner in the reasons for the
Soering judgment, by means of which the Court prevented the extradition of a person sentenced
to death because there was not sufficient guarantee that he would not be subjected to "inhuman"
treatment prior to execution. This judgment, which was "historical" (at that time), is also a clear
indication of the restrictions imposed by a very special situation.
5.
There are, with good reason, more direct and frequent reminders of the requirements of
crime prevention in the European Court's decisions relating to Articles 8, 10 and 11 of the
Convention. National security, as well as public safety, crime prevention and the authority of the
judiciary, are mentioned among the public interests that may justify state measures as
necessary in a democratic society, although they restrict either the right to private life, home
and correspondence or the right to freedom of expression, association or peaceful assembly.
In the case of rights which, according to the definition given in the Convention, are not
limited by such general clauses, similar trends have developed (at least to a certain extent), eg, in
particular the right to liberty and security of person (Article 5) and the right to a fair hearing and
the characteristics and conduct of such a hearing (Article 6). As regards these rights, it is evident
that the question of possible restrictions arises most directly and most frequently in relation to
the requirements of fighting crime, since their field of application largely coincides with the
fields of action of the police and judicial authorities. Furthermore, it would be fair to say that the
clarification I referred to earlier has been achieved more in terms of adjusting the internal
dynamics of these rights than by laying down external restrictions; so that the Court was led to
"re-write", so to speak, the interpretation of the rights in question, in the sense that the
conclusions drawn about their scope in "normal" situations are no longer necessarily the same
where serious crime is concerned.
6.
It is impossible here to go into all the aspects of this case-law (which has been illustrated
and fully examined in a quite recent article by Mr de Salvia in Bulletin des droits de l'homme,
1996, no. 5).
The number and the quality of the dissenting opinions appended to each judgment bear
witness to the importance of the issues raised and also to the intensity of the passions and
tensions that they almost inevitably arouse. These strong feelings, moreover, are those that our

20
societies experience whenever crime prevention is held up as the declared aim of legislation
restricting certain rights and freedoms which are firmly rooted in (at least part of) our civic
conscience. I have already mentioned Italian legislation, in particular the emergency legislation
introduced after the murders of Giovanni Falcone and Paolo Borsellino, which affects inter alia
the law of criminal evidence and the special rgime for prisoners who continue to be active
members of certain criminal organisations. Nor can we forget that English legislation has
substantially altered the rules governing the accused's right to silence, affecting one of the legal
practices most representative of a certain human rights approach to criminal procedure. Or the
recent French "anti-terrorist" legislation concerning foreigners illegally present on the territory,
which was referred for review to the Constitutional Council which criticised certain aspects,
including the right conferred on the police to carry out searches at night outside the normal
hours.
It is also these same strong feelings which - once brought under control by underlying
tolerance on both sides - have probably been one of the key factors in the survival of democracy
in Europe during the darkest years of its history.
7.
The European Court, which rules on actual violations of human rights and fundamental
freedoms, systematically refuses to judge domestic laws as such. It has, however, sent out fairly
clear signals to the law-makers and, more generally, to the state institutions involved in
implementing crime prevention measures. With reference only to signals of a general kind, I
would say that the Court both provides encouragement and delivers warnings.
It obviously, and above all, delivers warnings with regard to the inadmissibility of
measures which fail to meet the conditions of necessity and proportionality; as well as the
warning that certain limits should never be exceeded with regard to the very concept of each
right.
There is a plethora of "condemnations" to choose from, and they are all the more
interesting in that they are usually preceded by a statements accepting in advance that such and
such a rule may be subject to extension, derogation or a less rigid interpretation when confronted
with certain forms of crime. There have been such decisions on the confidentiality of prisoners'
correspondence (Campbell and Messina judgments), on time-limits for police custody (Brogan
and others judgment) or for detention on remand (Tomasi judgment), conditions for the
legitimacy of custodial measures (Guzzardi and Ciulla judgments), on limitations on the right to
question witnesses for the prosecution (Ldi and Sad judgments), etc. The last-mentioned
aspect is particularly significant because it is linked to the question of the use of information
supplied by undercover officers and informers from criminal organisations (forms of aid which
are as important as they are difficult to control).
8.
In short, states are not given a free hand in the name of crime prevention. Nevertheless,
how can we forget the encouragement - also deriving from this case-law - given to a penal
policy which takes care not to confuse respect for the rights of the individual with the abstract
and naive peddling of cheap illusions, exposing the least privileged members of society to the
worst forms of criminality.
I would first like to draw attention to the essential value of a warning not to ride
roughshod over the witness and the victim consider only the rights of the accused. In a case
concerning drug trafficking, the recent Doorson judgment held that it may be justified to
preserve the anonymity of a witness in certain situations, precisely because principles of fair

21
trial also require that in appropriate cases the interests of the defence are balanced against those
of witnesses or victims called upon to testify, where their life, liberty or security of person
may be at stake. Is this a significant step towards the "statement of the rights of victims" (and
"of witnesses") which ought to appear in the texts alongside the statement of the rights of the
accused?
Secondly, the Court, without claiming that the accused should actively co-operate with
the prosecuting and judicial authorities (cf. the recent Yagci and Sargin judgment) and while
asserting that the state is responsible for ensuring that its courts are organised and proceedings
conducted in such a way as to avoid delays that might infringe the accused's right to proceedings
and detention of reasonable length, has also ruled that an accused person cannot complain of
delays caused by the obstacles raised by his defence (see the Vendittelli judgment). Is this not a
way of underlining that there is a world of difference between abuse and misuse of a right (in the
instant case, a right of the defence) and the honest exercise of that same right, particularly as
such abuses prevent the fulfilment of a requirement (the reasonable length of court proceedings),
which exists to serve both the essential interest of the community and another fundamental right
of the individual?
Similarly, certain precautionary measures taken by states accord fully with the European
Court's case-law where the Court acknowledges, for example, that there are greater risks of an
accused person absconding if he has links with a criminal organisation and that this must be
taken into account in deciding whether to keep him in custody (Van der Tang judgment).
Finally, the Court has not hesitated on occasion to declare that certain measures are not
in themselves open to criticism, although the means of applying them and the field of
application may be debatable. A recent example is provided by the Welch judgment. Although
the Court held that there had been a violation of Article 7 of the Convention with regard to a
confiscation ordered on the basis of a retrospective law, it stressed that its finding concerns
only the retrospective application of the relevant legislation and does not call into question in
any respect the powers of confiscation conferred on the courts as a weapon in the fight against
the scourge of drug trafficking.
9.
As a result, there are fixed points of reference which lose none of their relevance from
one case to the next. In short, it could be said that these points of reference make it possible to
draw the line between a punitive system that knows no limits and a penal policy that has the
necessary weapons at its disposal but is nevertheless unwilling to renounce the principles of
legality and respect for human rights.
It is not the aim of this report to discuss in detail the consequences of this distinction, in
terms of penal and penitentiary policies, police action, etc, which are given the special attention
and specific place on the programme of this Seminar that they deserve. I will therefore limit
myself to a few general remarks.
10.
First of all, I would say that a precondition for the effectiveness of such a penal policy is
the awareness of the considerable diversity and complexity of the phenomena in the category of
"serious crime". Any one-sided approach would lead us to stray from our goal. Including among other things - pandering to the popular view which perceives only the most visible (and
therefore not necessarily the worst) aspects and often demands measures which would deal only
with the tip of the iceberg.

22
Similarly, one cannot ignore the relationship between problems of "serious" crime and of
"petty" crime - a relationship which is sometimes expressed in terms of organisation and
frequently in terms of the attraction the former holds for the latter; the existence of this
relationship is in any event perceived as unquestionable by the public, by whom petty crime is
directly experienced through the threatening and intrusive presence of a person or group
interfering with the normal conduct of daily life. Any alternative to imprisoning a number of
persons living on the fringes of society is welcome, provided it does not result in outright
impunity.
11.
Another general factor that must be taken into account is the exponential growth of the
financial and technological resources which enable those involved in serious crime to
dissimulate their criminal conduct and, more generally, to alter, manipulate and fabricate
evidence. Sexual abuse and the traffic in children organised through the sophisticated structures
of the "Internet" have provided the latest shocking example.
This fact should have substantial consequences at several levels, beginning with the
methods covering the definition of offences. The Strasbourg Convention on laundering, search,
seizure and confiscation of the proceeds from crime seems to advocate courage, whereas a more
coherent attitude on the part of European states is required in a different area, ie with regard to
making the mere fact of belonging or providing support to a criminal organisation a crime. This,
of course, is conditional on respect for the principles of legality and non-retroactivity; nor must
the definition of a criminal offence go so far as to prohibit actions or omissions constituting the
normal exercise of human rights (Engel judgment).
The application of new penalties relating to activities and property, the rules on
limitation, updating the rules governing banking secrecy, greater specialisation and better
national and international co-ordination between investigators are but a few of the other aspects
concerned. The success already achieved in pursuit of related objectives shows that these are the
best lines of action to follow. I would, however, also add that an effort must be made regarding
thinking on criminal evidence; although it is necessary to restate the importance of a number of
principles - beginning with the presumption of innocence - drawn up over centuries to protect
individuals against the worst effects of the inquisitorial approach, it is also important not to place
"doctrinal" obstacles in the way of legitimate undertakings to combat the abuse of those
principles, which is doubtless easier now than is used to be.
12.
The effectiveness of punitive justice, beginning with the search for evidence of crimes
and their perpetrators, is beyond all doubt a key factor in the fight against crime. That
effectiveness also depends on citizens' active support for the justice system - support such as to
break down the barriers of silence which often make it impossible to detect offenders and, above
all, such as to disprove the widely held opinion that the countervailing powers constituted by
crime are more reliable than state institutions.
In order to gain that support, judicial institutions themselves also need a high degree of
credibility. I have already mentioned the reasonable length of proceedings, which is a key aspect
of such credibility - its importance is undeniable both from the viewpoint of the rights of the
defence (and above all of the innocent defendant) and from the viewpoint of justice for the
community itself, which otherwise all too easily falls prey to the attractions of summary justice.
To this we should add the need for greater - and more transparent - endeavours to achieve real
equality in the administration of justice, without which citizens will never co-operate with the
judicial institutions in a consistent and sincere manner.

23

Is it not true that the credibility of domestic legal systems - and consequently the chances
of obtaining the entire population's full, active co-operation in the prevention of crime - are
largely measured by the courts' capacity to take action against the corruption of senior officials
of the State, and even of those in its own midst? On a quite different level, the capacity of the
permanent organs of international criminal justice to enforce the fair but severe punishment of
crimes against humanity is clearly an essential requirement, going beyond the steps taken - and
also the controversies arising - from the Nuremberg trials to the courts set up by the UN to judge
crimes committed in the former Yugoslav territories and in Rwanda. From a quite different
viewpoint, it has already been observed that impunity is not the most appropriate solution to the
problems of petty crime.
Finally, at the risk of appearing repetitive, we must always remember that most
elementary requirement of equality between persons on trial, the need for effective legal counsel
- and, in general, legal aid - to represent those who are most off both financially and socially.
Indeed, it is in the name of such "effectiveness" that the European Court has handed down many
of its judgments against respondent governments.
13.
A modern democracy is under an obligation not only to discard the barbaric rituals of the
death penalty and other inhuman forms of punishment, but also - one might even say this is its
greatest duty - to ensure an effective and credible system of punitive justice, which is still an
essential part of any strategy to combat crime.
We must, however, be increasingly conscious that such action, however essential, can
only be second-best - a kind of sticking plaster that cannot deal with the underlying causes of
disease, of which serious crime is one of the most alarming manifestations. We are concerned
not only with the long-standing dualism "prevention-suppression"; the complexity of modern
life confers new dimensions on this dualism, if only from the standpoint of organising controls
over certain activities (notably the production and sale of arms or drugs).
Moreover, awareness of the purely subsidiary nature of criminal justice - ie the
awareness that punitive measures to tackle crime are only partial, belated and insufficient
solutions - helps us to concentrate on other possible solutions further "upstream". This seminar
has the merit of giving a special place to the discussion of these aspects, and jurists can only
listen and try to learn. They will see for themselves that the question of human rights is more
firmly rooted than ever at the heart of these same problems "of context", in the form of the right
to a family life, to education and to work and so forth, that is, in the form of rights which are no
less essential than those that have been discussed in greater detail in this report. It must,
however, be acknowledged that it is less easy to safeguard such rights through democratic forms
alone, because they require the highest degree of positive action by public institutions and
society as a whole so as to gather and distribute the material and spiritual resources needed to
exercise them, while at the same time giving rise to some of the most acute forms of tension and
interaction between the members of a national community and between one population and
another.
Hence the importance, not only of ethical principles and policies concerning the family,
youth, spatial planning, full employment, social welfare and so on but also of new problems and
new prospects - for example - involving immigration and the right to asylum, especially when a
large part of the population is convinced - rightly or wrongly - that certain phenomena have been
aggravated by a massive influx of new ethnic groups into their territory: in fact an

24
understandable demand for law and order and security is easily and dangerously interwoven
with racism, although this may in itself, by way of reaction, bring about an unexpected return to
pride in a nation's long-established traditions of welcoming the world's poor and persecuted. The
recent events in France this summer - though far from being exceptional in Western Europe were good illustrations of this phenomenon.
14.
The effectiveness, credibility and subsidiary nature of criminal law are all factors
essential to the success of everything our societies do to combat serious crime without infringing
human rights. These are goals that can only be achieved if they receive the support of the moral
forces in society, ie the force of formed and informed individual and collective conscience, so
that we are capable of not giving up or losing our way under the often violent impact of first
impressions. This is why the last part of the seminar, focusing on a discussion of the role and
responsibility of the media, is so important.
Education and the media - in particular the latter - are always tempted to try the case
before it goes to court; they become hawkers of partial and sometimes distorted images of crime,
police inquiries and criminal proceedings. However, both are also indispensable sources of
support for, and democratic control of, justice administered in the name of a free people. It is
also their duty to ensure that the collective memory does not lose that sense of the message
embodied in the various human rights texts that has inspired clandestine resistance to
dictatorship.
A "united" Europe, at least in the (by no means definitively established) sense of a
shared commitment to pluralist democracy, is the result obtained above all by virtue of "hoping
against hope": thanks to the commitment of countless individuals, often paid for in bloodshed,
and thanks to the long and bitter patience of peoples capable of resisting without selfannihilation, of struggling in silence most of the time, and also capable of overturning, by the
force of conscience, oligarchies and tyrannies established in their countries. The long-hidden
banner of human rights has sometimes been a source of strength and courage for these
individuals and peoples. This is why legal experts and institutions which have made the
protection and promotion of these rights one of the main aims of their discussions and their
work, now bear a heavy responsibility. This banner must not become a mere decorative flag
whose splendour pales and finally disappears when touched by the problems and tribulations of
daily life.

25

Written communications relating to the introductory report: serious crime

and the respect for human rights in european democratic societies
Written communication by Mr Pier Luigi VIGNA, Procuratore nazionale antimafia, Florence
(Italy)
Review of Italian institutions in the fields of criminal and procedural law, investigation
and prison affairs for the prevention of organised crime
1.

Foreword

The presence and activity of organised crime for almost thirty years in Italy have
compelled our country to devise ever more effective methods of intervention for preventive and
punitive action against criminal groups whether of the subversive or the mafia type, or the two
combined.
It has been aptly observed that these crime factors are a kind of deadly cancer making
deep inroads into the economic and social fabric and generating metastases capable of posing a
direct threat to the very nucleus of the state (report on Italy, an introductory document presented
by the Ministry of Justice at the World Conference on Organised Crime held in Naples in
November 1994).
Current regulatory and organisational measures to counter organised crime have as their
salient feature a multiple approach attuned to each developmental stage of crime. Methods range
from prevention to punishment, taking in the various ways of dealing with crime through
penalisation, judicial procedure and imprisonment.
These measures are characterised by their strong interconnection and interaction, so that
each is to be understood in the broadest possible operational context. An example is the
provision made for special prison treatment as a "reward" for mafia members who co-operate
with justice. The "investigative productivity" of this method is closely correlated with the
opposite procedure of sentencing mafia members very severely where they refuse to co-operate
by taking an "intractable" attitude.
Despite the co-ordinated planning of the measures, the system seems open to further
improvement having regard to the organisational and operational complexion of criminal
associations, not to mention the obvious need to strengthen international co-operation
arrangements in order to cope with supranational criminal phenomena.
2.

A workable definition of organised crime

Strange though it may seem, the Italian system outlined above lacks a definition of
organised crime.
However, the complex regulatory system under discussion has definitely grown out of
the awareness that action should be targeted not at classes of bandits or criminals but against

26
criminal associations with "pervasive" qualities of a political and economic kind, demonstrated
by the ambition of bringing parts of the territory, with their residents, under a kind of
"alternative sovereignty".
This is no doubt the crux of our organised crime, according to the concept evolved by
crime policy and criminal sociology specialists.
Close examination of the applicable law - although it does not embody any definition of
the phenomenon - nevertheless shows that the legislator contemplated three categories of
organised crime.
The first consists of offences within the jurisdiction of the National Anti-Mafia
Prosecution Authority and its district offices, and comprises offences bearing the mafia stamp
e.g. mafia-style criminal association, conspiracy to commit drug offences, kidnapping for the
purpose of extortion and in general all offences perpetrated by mafia methods or to abet the
activity of mafia associations (see Article 51.3-bis, Code of Criminal Procedure).
The second category is made up of subversive terrorist crimes (massacres, attacks,
forming armed gangs...) and the offence of non-mafia criminal association.
Where investigations concerning these offences are not co-ordinated, the General
Prosecution Department attached to the Court of Appeal can take over by subrogation to the
State Prosecutor who has jurisdiction according to the rules normally applicable (Article 372.1bis Code of Criminal Procedure).
The third category comprises a range of offences in which organised gangs of criminals
may be instrumental, while not necessarily identifiable as the instigators (e.g. armed robbery,
extortion, firearms offences or drug trafficking).
The differing typology presupposes that these three categories receive different
treatment. A kind of "diminishing force" is thus applied depending whether the crimes dealt with
are mafia crimes or organised crimes in general. For instance, preventive interceptions and
searches of entire buildings or building complexes (Article 25-bis and ter, Legislative Decree
306/92) are allowed only for mafia offences, and the various grades of strict confinement are
applied according to whether the prisoners were convicted of mafia offences or other acts of
organised crime (Article 4-bis, Law 354/1975).
3.

New crimes relating to terrorism and subversion, and means of protecting persons
who co-operate with justice

The action of terrorist organisations has prompted the legislator to create new classes of
offences, necessitated by the gaps which would otherwise have appeared in the criminal justice
system. Indeed, in 1978 - after Mr Moro's illegal confinement - such acts for purposes of
terrorism and subversion were defined as specific offences, as was conspiracy for terrorist ends
or to subvert the constitutional order at the end of 1979 (Article 270-bis Penal Code), together
with attacks perpetrated with the same aim (Article 280 Penal Code).

27
In addition, a specific aggravating circumstance has been introduced in respect of crimes
committed with terrorist intent, but also a special mitigating circumstance for anyone who cooperates with the judicial and police authorities in connection with such crimes.
This is the first legal policy move towards developing procedural collaboration or
regulations encouraging the "pentiti" phenomenon.
However, it should immediately be demurred that this term, with its journalistic usage,
gives a distorted idea of the phenomenon by imparting an ethical connotation which is
somewhat alien to the principles of "reward". These are applied regardless of the subject's inner
motivation and rely rather on objective factors ie removal from the criminal group and
assistance in the investigations.
The "reward" technique has also been used occasionally in cases of kidnapping for
extortion (under Law No. 894 of 30.12.1980) and drug offences (Articles 73 and 74 TUS Consolidated Drugs Act), up to 1991 when the "two-track" method tested on terrorist crime was
applied to mafia offences through the introduction of a special aggravating circumstance for the
perpetrator and a mitigating circumstance for anyone co-operating in the relevant investigations
(Article 7, Legislative Decree 152/91).
Subsequently, Legislative Decree No. 8 of 15 January 1991, enacted as Law No. 82 of
15 March 1991, introduced a body of provisions to protect persons co-operating with the justice
authorities; previously, such protection depended on the initiative of the investigating
authorities, somewhat sporadic and disorganised.
Under the new system, persons facing a certain risk because of statements made for the
purpose of co-operation are eligible for a special programme of express protection at the
proposal of the State Prosecutor conducting the investigations. The programme is applied by a
central commission answerable to the Ministry of the Interior, headed by an Under-Secretary of
State and made up of magistrates and police officers. Admission to the special protection
programme secures personal security and financial assistance measures in addition to special
conditions of imprisonment, viz. unrestricted applicability of non-custodial measures (e.g.
probation under the supervision of the Welfare Service, house arrest, or prison leave as a
reward).
A central service (with a number of local units at present) conducts the special protection
programme.
At present, over 7,000 persons (collaborators and their families) benefit from the
protection programmes arrangement introduced in 1991. It is precisely this large number of
beneficiaries which is liable to cause breakdown, so much so that possible reforms are under
consideration.
In order to stimulate collaboration, there is further provision for "investigatory
interviews" with prisoners which can be conducted either by the State Prosecutor responsible for
anti-mafia measures or by suitably qualified police officers.
In contrast to the "privileged" arrangements for collaborators, there are "stringent" ones
for obdurate mafia stalwarts who not only receive an extended sentence for the crimes
committed but may also be subjected to conditions of imprisonment which differ from those

28
applicable to ordinary prisoners, with their committal to special prisons or special divisions
where appropriate restrictions are placed on their contacts with the outside world.
This is the outcome of practical experience proving that the ringleaders used to take
advantage of visits or correspondence to continue commanding their gangs from inside the
prison.
4.

Adjustments made to criminal procedure and investigating authorities

In the wake of the Capaci massacre, regulations were issued (Legislative Decree 306/92)
to enable the criminal procedure system to deal more effectively with perpetrators of highly
criminal offences.
Summary of innovations:
-

arrangements for use of records of investigation in court proceedings and more flexible
transfer of evidence between inter-related proceedings;

protection of the confidentiality of sources of evidence;

re-definition of the object, methods and timing of investigation.

These moves have come under criticism from investigators and defence lawyers on the
ground that they jeopardise certain basic principles of the adversarial proceedings which have
obtained in Italy since October 1989.
The well-foundedness of the criticisms must be acknowledged but it is also indisputable
that the innovations have ruled out the possibility of pre-trial interference by criminal
organisations which would disrupt the normal conduct of investigations, and that they enable the
prosecution departments to carry out secret enquiries (into mafia crimes) at a stage which is
most important having regard to the demands of these special procedures.
In 1991 the state authorities also reinforced the investigation structures.
That year saw the introduction (under Article 12 of Legislative Decree No. 152/1991) of
centralised services in the various police forces (SCO for the state police, ROD for the
Carabinieri, SCICO for the Guardia di Finanza) and, in the closing months of 1991, the ANTIMAFIA INVESTIGATION DIRECTORATE (staffed by members of all police forces
concerned), the National Anti-Mafia Prosecution Authority and corresponding district
authorities.
The powers subsequently assigned to these investigation authorities include:
-

interceptions (in criminal society too) for the purpose of "preventive detection and
intelligence concerning mafia crimes";

under-cover operations (with the aim of infiltrating the gang) concerning drugs, arms and
money laundering;

29
-

monitored operations (in order to register the developments of criminal procedure), also
concerning extortion, kidnapping for extortion, and usury;

use of information from the Security Services, whose information activity is currently
directed at organised criminal groups threatening the institutions and the well-being of
civil society (Article 2.1, Legislative Decree 315/1991).

5.

Further substantive law developments

The adaptation to mafia criminal activity of the Penal Code provision (Article 416)
defining criminal association as a punishable offence raised a further need which was met in
September 1992 by Law No. 646, enacted that year. It was necessary to make provision for the
offence of criminal association of a mafia nature (Article 416-bis of the Penal Code) relying on
the use of violence committed or instigated by the criminal group and on tacit complicity and
intimidation in order to control economic activities (government contracts in particular) or to
interfere with the free exercise of the right to vote. The same purpose is served by Article 416ter of the Penal Code (in addition to Legislative Decree No. 306/1992) which makes it a
punishable offence to promise votes for payment.
The new definitions (introduced in August 1993 by Law No. 328) of the crimes of
money laundering and re-use of resources derived from crime, and also the arrangements for
disclosure of suspect banking transactions introduced in May 1992, are of equal significance for
fighting organised crime.
Lastly, in March 1996 the offence of usury was revised under Law No. 108.
In order to stamp out this form of crime, action was also taken on the prevention side by
establishing a special fund, and concerning assistance to usury victims (comparable to that
prescribed for extortion victims) by making appropriate financial provision.
In conclusion, considering the widely held opinion that confiscation of mafia assets is an
indispensable step for effective - and possibly final - repression of the gangs, a positive
assessment must be made of the clause (Article 12-sexies of Legislative Decree 306/92
supplementing Law 501/94) whereby it is possible to attach (during court proceedings) and seize
(upon conviction) all "suspicious" assets where they are discovered to be unjustified and
excessive by comparison with the declared income or occupation of the person accused or
convicted of mafia offences.

30

Written communication by Mr Sergei SIROTKIN, Former Deputy

Chairman of the President's Commission for Human Rights, Director,
Moscow Legal Resource Centre, Moscow
Tension between the fight against serious crime in countries in transition and the
requirement of respect for human rights
Sure! We are prepared to violate human rights in case one of these humans should turn out to be a criminal.
Sergei Stepashin, Chief of the Federal Counter-intelligence Service (former KGB)

The problem under discussion in our seminar, Serious crime and the requirement of
respect for human rights in European democracies postulates several possible approaches. On
the one hand the accent could be laid on purely criminological aspects; but there is then a risk
that our seminar will resemble some international congress on the fight against the criminality.
Alternatively we could concentrate on the human rights aspects of the problem and how best to
guarantee them in which case, our seminar in this wonderful town will be just one more
meeting, useful and interesting but lacking in innovation.
In my opinion we have here a chance to add something new to discussions of this
important and topical problem.
The problem of the struggle against criminality is widely discussed in Europe and all
over the world; and not less has been said on the questions of respect for human rights. This is
justified, because one can see a rapid growth in the problem on an international scale. Strictly
speaking, we are dealing with two sides of one and the same global problem - that is a problem
of stability and security in the world.
Crime is clearly a threat to this security, just as, in its turn, respect for human rights is a
precondition for it. Much has been said about both topics. But less has been said on the link
between two, that important connection binding the fight against criminality and respect for
human rights.
Russian legal writings contain some brief mentions of the problem, and there are a few
articles devoted to this particular aspect. I intend to examine further Russian practice in this area.
On the whole, it is reasonably true to say that Russia has not mastered the problem, either in
theory or in practice. It is this which encourages me to view the question in a wider context than
I had at first intended.
My approach is as follows:
-

firstly, I should like to touch briefly on the necessity of taking a global view of the fight
against crime together with respect for human rights. This will establish the basis for
what follows;
secondly, I shall look at aspects of this problem as they affect all societies in transition.
This discussion will necessarily be restricted to only a few examples;
lastly, I shall examine the role that international instruments have to play.

31
The fight against crime is a function of the State. Traditionally, human rights are
regarded as concerning the relations between an individual and the State; but the fight against
crime is part of a legal system designed to protect and promote human rights. In this sense,
criminality poses a real threat to human rights.
Criminality is on the increase, and it should be noted that with the growth of serious and
organised crime, involving the corruption of the machinery of State, terrorism is one of its
principal tools.
In recent years the issue has become more problematic, since serious crime is now
organised more and more on a transnational basis, posing threats not only to national security
but to the world democratic order.
The most dangerous forms of crime, therefore, are organised crime and terrorism.
Criminal law measures alone cannot suffice to tackle this form of criminality. Action
should also be taken in the administrative and economic fields. Nevertheless, the criminal law is
still the main weapon, which can lead to special complications.
The specific nature of this criminality requires special measures to combat it. Such
measures may encroach upon other social values, such as human rights. I have in mind actions
such as the infiltration of criminal associations, the use of agents provocateurs, inducements
offered to members of criminal organisations in exchange for co-operation with the police,
controls on the circulation of goods and people, wire-tapping, etc.
The need for such measures is obvious; on the other hand, they pose a clear threat to
human rights - including the right to peaceful enjoyment of possessions, the right to privacy, the
right to inviolability of the person and other basic rights and freedoms.
So we are faced with a contradiction: security of the person is an absolute social value,
and guaranteeing this security requires that criminality should be suppressed. Human rights are
based on the concept of security of the person; but measures taken to combat criminality may
themselves be a threat to human rights.
To be precise, they may become a threat if the situation arises where restrictions on civil
rights are a permissible, even essential element in maintaining the democratic legal order.
The competition of these values, and the indirect character of their interdependence, are
obvious.
All analogies have their weaknesses, but nevertheless I should like to draw one here: the
situation resembles a well-known dilemma, that of whether it is permissible to allow industrial
development at the expense of damage to the environment. There is no simple solution. Here,
too, we are confronted by a conflict of interests, and the only answer is to aim at a compromise
solution which limits industrial development, thus minimising ecological damage.
In the case of human rights, the compromise takes the following form:
-

establishment of a legal framework restricting human rights where absolutely necessary

for an effective fight against crime;

32
-

setting up of a legal control mechanism covering those measures which could infringe
human rights;
creation of institutions to ensure the defence and restoration of the right violated.

The above concerns a stable and democratic regime, but even in these circumstances
there is no simple, once and for all solution. Abuses may come about, for example, because of
insufficient controls on administrative practices, which may not meet legal norms.
The opposing interests mean that potential, and sometimes actual, conflict cannot be
avoided. This is true, I repeat, even in a democratic state governed by the rule of law.
I would not presume to pronounce on general western views of the fight against crime
and the protection of human rights. But these ideas and their development have met with some
support in Russia.
That was natural only a few years ago, in a Russia where the liberal, western-oriented
intelligentsia made a fetish of everything related to the market economy and pluralist
democracy. It was an epoch when it seemed that the solution to all our economic and social
problems would be found by the simple conversion of Russia to a free-market economy. In the
same way, respect for human rights was considered as a solution to all social problems. The
possible clash of values, the fact that there was a price to pay for freedom and democracy, was
not realised for a long time.
Today comes the realisation. Sometimes it assumes extremely painful and nihilistic
forms. The pain is all the sharper because in Russia the conflict defined above has taken on an
extreme character.
Earlier on I tried to summarise my approach to the problem Serious crime and the
respect for human rights as a whole. In the societies in transition, however, the problem takes
on new features. Factors common to these societies ensure that the problem takes on a particular
aspect which is peculiar to them.
I am speaking about Russia and the Russian experience. Although I believe that all the
states in transition are confronted with the same problems, in Russia the conflict is all the more
acute and intense because of two circumstances:
-

firstly, the difficulties caused by factors inherited from the communist totalitarian period
are greater in Russia than in most other eastern European states;
secondly, despite the costs, both financially and otherwise, Russia has made more
progress in modernising than in other post-Soviet republics. Strictly speaking, some of
the CIS countries are not yet even in the transition stage.

I'd like to touch on what, to my mind, are the most important and obvious circumstances
and reasons why the situation has developed in such a way in the post-Soviet republics at the
beginning of the transitional period. These are: (1) an increase in crime during the period when
the totalitarian regimes were collapsing; and (2) the role and place of the legal mechanisms best
placed to minimise the conflict.

33
1.
As a matter of principle, a set of common guidelines should be worked out to cover the
protection of human rights within the context of the fight against crime during the specific
conditions of transition.
The essence of totalitarian regimes is complete control by the State, penetrating into all
aspects of the life of individuals. The USSR had a planned economy, and there were
considerable restrictions on personal property. It was extremely difficult to conceal any property
or enterprise in private ownership.
Society contained within itself latent social and national unrest which in other
circumstances might have led to terrorism and major crime; the society was as if frozen.
Self-regulation was ineffective. What did work was the Party's administrative
mechanisms, distorted though they were. Different conflicts were not solved on the basis of the
concordance of interests, but they were solved; on the whole, it worked, society was managed.
This is the positive aspect.
On the negative side, only lip-service was paid to the idea of privacy, confidentiality of
communications, human rights. It was all a fiction. The police (militia), the state security
committee, the KGB and all the apparatus of state were considered above the law. All social
activity was under close scrutiny. The organs of state had a total view of what went on in
society. This had the effect of facilitating the fight against crime, but at the expense of human
rights, which were entirely disregarded. Criminality was therefore able to be kept below western
levels.
It is a sad, but recognised, fact that the tighter the control on the individual and the
greater the repression, the easier it is to achieve certain goals of undoubted social value.
This is of course a simplified picture of the situation in the former Soviet Union. Crime,
including organised crime, did exist, but it took peculiar forms. A clandestine operation for
making men's shirts was regarded as an economic crime. The impossibility of concealing such
an enterprise from the eyes of the control agencies led to illegal arrangements with corrupt state
officials. Corruption grew rife. A whole section of the economy, created to make up for the
deficiencies of the state economy, was in fact illegal. This was the so-called black economy. But
I digress.
The accession to power of Mikhail Gorbachev, together with widespread political
changes at the beginning of the 1990s, acted as a catalyst for the dismantling of the totalitarian
regime. The frozen society began to thaw, affecting both the economy and all aspects of social
life.
The historical and progressive character of this process is indisputable; but in reality, in
Russia it took place and is continuing in abnormal, very painful ways.
I shall not suggest here
stress that in Russia there was
absence of any self-regulating
principles. Thus, changes in
uncontrolled character.

possible models for implementing change. But I should like to

an almost complete collapse of the totalitarian system, and an
mechanism in society, based on market, democratic and legal
Russian society took on a spontaneous, unregulated and

34
It is clear that a major role in the fight against organised crime is played, not by the
criminal law, but by administrative and economic preventive measures. International
conferences on the fight against criminality have repeatedly stressed this fact.
In a society in transition, economic, social, and even socio-psychological conditions,
combine to produce a growth in criminality. In Russia, the process of redistribution of
ownership and power was followed by a rise in crime levels, and in particular in major crime.
A sharp upturn in crime during a period of transition is therefore a fact to be expected.
The fight against crime therefore becomes of prime concern. Further elements also enter into
play.
Society is frightened by rising crime, and by the types of crime portrayed by the media.
Political leaders have complied with public pressure to get tough.
The potential is there for a clash of interests. Human rights are under threat. If this threat
becomes a reality, the question whether or not a balance can be struck between the repression of
crime and the respect for human rights depends on several factors.
First and foremost, legal mechanisms must be set up to regulate the conflict of interests.
This is the single most important point to be kept in mind when considering legal problems in
the post-Soviet republics.
2.
Under a totalitarian regime the law has a very different function from that which it
occupies in democratic states governed by the rule of law. The law plays a purely instrumental
role, and has no independent social value. It is simpler to illustrate it graphically:
The State
The Law
The Individual

In this system, I repeat, the law has only a nominal function. It is an instrument by which
the government manages society. Relations are vertical, and each element is subordinate to the
one above it. State apparatus is not restrained by the law. The law does not protect an individual
from the arbitrary exercise of power. The essence of legal reform in the post-Soviet societies as
a necessary element of transition to democracy requires a change in the relationships linking
The Law, The State and The Individual.
In a state governed by the rule of law the relationship looks like this:
The Law
The State

The Individual

35

The law is not merely an instrument in the hands of the State. It is a mechanism of the
State which directly affects the citizens, but at the same time it protects them from arbitrary rule
by the State. It helps to find a balance between the interests of the State and the interests of a
person or group of individuals.
This broad diagram can be applied to the subject under discussion today. It is possible,
using legal controls, to strike a balance between the requirements of the fight against crime and
those of respect for human rights. I have already mentioned the components which are necessary
for such a balance.
In totalitarian regimes the law does not operate like this, and so there is no balance
between the different interests.
An unstable, unbalanced and intermediate situation in the relationship Law-StateIndividual is characteristic of societies in transition. The police, the state security committee
(KGB or whatever it may be called) and the Prokuratura cannot act according to their internal
procedures without legal control; the law is no longer an instrument determining merely
hierarchical relations, but something which law-enforcement agencies are obliged, to a certain
extent, to take into account.
On the other hand, the whole system is very unstable, and still a far cry from the
standards expected in a state governed by the rule of law. In addition to those points already
mentioned, there are a number of other weaknesses:
-

the quality of the new legislation, which represents a step in the right direction, but still
does not completely satisfy the requirements of respect for human rights;
a lack of democratic tradition in observing the laws (including on the part of state bodies
and state employees);
the weakness and lack of authority of the judiciary and of the control mechanisms in
general.

To sum up, I am referring to the insufficiency of those legal mechanisms that in a

democratic society establish an acceptable compromise between the needs of the fight against
crime and the respect for human rights.
Finally, I must refer to another factor. The values of human rights and liberalism are in
fact perceived neither by the mass consciousness nor by the political lite. I have already spoken
of the paradoxical evolution of the liberal consciousness in Russia. Now it is being reflected on
the political level. The inevitable populism of the politicians of the transition period reflects
precisely the fluctuations and evolution of the mass consciousness.
From 1989 to 1993 the problem of human rights was to the fore in the phraseology and
slogans of political leaders. From about the end of 1993 we begin to see political slogans
becoming more militant and rigid with regard to the fight against crime, with terms like the iron
hand, restoring order, etc. Human rights are no longer mentioned, or figure only marginally
in political campaigning. All this is reflected in actual practice.
This is something I wish particularly to emphasise.

36
All this is not the result of purely theoretical speculations. My conclusion is based
primarily on an analysis of the political and legal development in Russia during the last six
years. The lack of balance between the fight against crime and the demands of respect for human
rights, the pendulum liberalism/anti-liberalism, human rights/fighting crime at any cost - all
this I see as an obvious characteristic of the transition period.
Here are two illustrations.
-The death penalty
1991:59 persons executed, including some sentenced before 1991.
1992:18 executions, a further 54 not carried out.
1993:I have no figures, but the statistics resemble those of 1992.
1994:19 executions.
1995:86 executions.
1996:No statistical data as yet. But according to the chairperson of the president's commission
responsible for commuting death sentences, none of the 50 appeals supported by the
liberally minded commission has been approved.
-

Developments in the legislation on fighting crime which directly affect human rights

The years 1990 to 1993, with all their contradictions, were still the time when the legal
status of the law enforcement agencies was determined, and when minimal guarantees for the
protection of human rights were set up.
In December 1993 the new Constitution of the Russian Federation was passed, securing
essential rights and freedoms to internationally accepted standards. However, the legislation
relating to the law enforcement agencies was not all in conformity with the constitution. Let me
give the most outstanding example.
On 14 June 1994 the President of the Russian Federation signed a decree on combating
banditry and organised crime. The decree permitted imprisonment of up to 30 days without a
charge being made; failed to protect the confidentiality of financial and commercial transactions;
enlarged the use of search operations in producing evidence before the courts, and so on. All of
these measures ran counter to the constitution and the criminal code - and certainly were in
violation of the principles of human rights protection. And this is not only my opinion, but is
shared by the State Duma and practically unanimously by the professional legal community.
The president's commission on human rights - on which I was then serving as deputy
chairman - wrote to the president protesting about the possible and even inevitable violations of
human rights implied by this decree. We asked the president to repeal it. Instead, the
commission was given some extra powers to control its implementation. We were thus unable to
reduce its negative consequences, but the information we received proved that our concerns
about the violation of human rights were not groundless.
In 1994 began the intensive process of passing amendments to the laws of 1990 to 1993
pertaining to this sphere. Generally speaking, these amendments extended the authority of the
law enforcement organs without creating parallel control mechanisms. Among those laws
affected were those covering search procedures, the Federal Security, some amendments to the
criminal code, etc.

37

This tendency seems to be general, and I could give more examples; but I feel it is time
to pass on to my conclusions.
So, by objective standards we see a dramatic increase in crime taking place in the
societies undergoing transition. The criminal policy of the State is losing its political orientation,
but on the whole becomes more repressive. At the same time, there are no functioning legal
mechanisms which are able, if not to remove, at least to lessen tension in the dichotomy between
the fight against crime and the protection of human rights.
A tension between the needs of fight against crime and the demand to respect human
rights has no permanent sharpness. This conflict has a waving character. The successful
development into true democracies of the countries in transition might permit the establishment
and assessment of the legal mechanisms necessary to guarantee a balance between the two sides.
But this is a controversial process, and not as rapid as we should like to see.
Finally, I'd like to touch on the possible role to be played by the Council of Europe's
mechanisms.
It is universally recognised that, with the exception of some non-derogable rights, it is
sometimes necessary to place restrictions on human rights because of other social
considerations. A clause covering this exists also in the Constitution of the Russian Federation.
But the governing power may not impose these restrictions arbitrarily. The Council of Europe
has shown, through the case-law of the European Commission and European Court of Human
Rights, that the degree of restrictions, and the circumstances in which they may be exercised, are
precisely determined. According to the European Convention on Human Rights, restricting
human rights and freedoms is possible only "in accordance with a procedure prescribed by law
and where necessary in a democratic society". In some particular cases the Commission and the
Court have established criteria by which these values may be judged.
As yet there are no reliable mechanisms or instruments in the Russian legal system
which are able to use the Council of Europe's criteria to judge restrictions on human rights
which may be imposed by legal or quasi-legal means.
Theoretically, this should be a function of the Constitutional Court; but very often this
court's activities are limited to what is, to my mind, a purely formal attitude to the letter and
spirit of the constitution.
I should like to cite the Chechen case, where the court confined itself to the question of
whether the president was competent to issue decrees, decrees which led ultimately to the
military action in Chechnya. There proved to be no legal check on questions of proportion and
whether the measures applied were necessary in a democratic society.
In this sense, the Council of Europe's expertise and standards concerning human rights
can fill the gaps in the legal systems of countries in transition, and so can be of great use in
countering the difficulties experienced in striking a balance between the control of crime and the
respect for human rights.

38

Written communication by Mr Michel de SALVIA1, Deputy Secretary to

the European Commission of Human Rights, Council of Europe, Strasbourg
1.
From time immemorial, human societies have studied the question of how to react to
criminal behaviour.
In the very earliest days of our civilisation, such behaviour was regarded more as a
personal attack on the victim than as an assault on the social order which should reign in the
community.
In the most developed societies, the response was generally proportionate to the injury
caused: an eye for an eye, a tooth for a tooth. Then came the possibility of redress in the form of
financial compensation, where the victim agreed to this.
In other societies, on the other hand, it was left up to the victim or their clan as to how to
respond. In reality, this was a more or less disguised form of revenge, in which there was no
room for any attempt to strike some balance between injury and punishment. Alas, far from
being extinct, these practices can still be found today in the criminal-law systems of certain
countries, in the face of which the international community appears impotent or even resigned.
2.
In western societies, and particularly in those countries which are now members of the
Council of Europe, the criminal law is based on the great principles of the rule of law and
respect for human dignity.
As Cesare Beccaria says in Dei delitti e delle pene (Of crimes and punishments), a work
which contains the fundamental principles on which our modern criminal-law systems are
based, justice simply means "the necessary link between individual interests". It follows that
"any penalty which goes beyond what is necessary to maintain this link is inherently unjust".
Any form of penalty is regrettable. To quote Cesare Beccaria's conclusion, if a sentence
is not to be an act of violence against an individual, it "must be, essentially, a matter of public
knowledge, prompt, necessary, as light as possible in the circumstances, proportionate to the
offences and prescribed by law". Cesare Beccaria's passionate pleas in favour of the presumption
of innocence, against torture - which he describes as a veritable act of cruelty - and against the
death penalty - neither effective nor necessary - are today enshrined in a body of international
conventions and European case-law which have provided a framework for the strengthening of
solidarity between nations with a common heritage of ideals. This means that any country which
departed from a significant number of the principles referred to above could not be considered
"civilised", in the European sense of the word.
3.
Obviously, a person who breaches the rules of a democratic society will not find any
justification for their actions in the European Convention on Human Rights, unless such actions
constitute the legitimate exercise of a right or freedom which the Convention protects.
The difference between ordinary crime, i.e. an act by one or several individuals acting in
isolation, and organised crime, which involves a deliberate intent to subvert values and
1

The opinions expressed are the author's own.

39
constitutes a continuing act of revolt against the rules of democratic society, is more than a
question of degree. Organised crime attacks the very principles of legality and the rule of law; it
shatters the citizen's confidence in the social order. By the term "organised crime", I mean the
most sophisticated, and thus most dangerous forms of systematic lawlessness, as well as
violence used as a means of political struggle, as in the case of terrorist violence. This largescale criminal phenomenon is not merely a scourge of society, but often manifests itself in
dangerous acts, frequently involving the loss of human life. It may also lead democratic
institutions themselves astray as they attempt to deal with it, by obliging the national legislature
to adopt extreme and restrictive legal provisions whose aim is to combat this criminal
phenomenon but which may at the same time weaken protection of the freedoms traditionally
enjoyed by the citizens of our countries. The legal history of a number of countries which have
been confronted with particularly serious forms of criminality is littered with exceptional
measures - whether investigative (e.g. telephone tapping), evidential (e.g. "former members of
the mafia turned informers" who are said to be "co-operating with the police") or financial (e.g.
laws authorising the "seizure" and "confiscation" of the proceeds of crime, even outside criminal
proceedings).
4.
A democratic State in the sense of the European Convention on Human Rights cannot
simply deal with such problems in any way it chooses. It must, at all costs, display moderation
and weigh the real danger posed by organised crime against the need to respect those values on
which every society which truly and passionately wishes to be democratic is based. Where, then,
should we strike the balance, where should we draw the line between what may be permissible
and what must always be forbidden? It would be foolish to gloss over the fact that the challenge
is considerable, and the balance difficult to maintain. The European Court of Human Rights
itself recognises this fact, for example in the following judgment which relates to the fight
against terrorism and specifically to a law authorising the covert monitoring of private
communications:
"This does not mean that the Contracting States enjoy an unlimited discretion to subject
persons within their jurisdiction to secret surveillance. The Court, being aware of the
danger such a law poses of undermining or even destroying democracy on the ground of
defending it, affirms that the Contracting States may not, in the name of the struggle
against espionage and terrorism, adopt whatever measures they deem appropriate."(Court
H.R., Klass, paragraph 49)
In this spirit, the case-law of the Strasbourg organs has succeeded in fixing strict limits
which the States cannot overstep with impunity, while at the same time allowing them, with
regard to certain aspects of the legitimate struggle against organised crime, a wide margin of
appreciation to take specific measures, the necessity for which is proven and which, of course,
are compatible with the obligations which the States assumed when ratifying the Convention.
5.
As for the procedural aspects of implementing an anti-crime policy, the Convention
organs have, from the start, rigorously applied the Convention guarantees as to deprivation of
liberty and a fair hearing to everyone charged with a criminal offence, however serious regardless of the risk, however great, which this criminal conduct may have posed, or poses, to
society.
Thus, a person thought to be involved in criminal activity can be arrested only on the
basis of "reasonable suspicion", as laid down in Article 5, paragraph 1 (c), of the Convention.
According to case-law, the existence of a "reasonable suspicion" presupposes the existence of

40
facts or information which would satisfy an objective observer that the person concerned may
have committed the offence.
For example, it has been acknowledged that terrorist crime falls into a special category
and that because of the attendant risk of loss of life and human suffering, the police are obliged
to act with the utmost urgency in following up all information, including information from secret
sources.
Nevertheless, as the case-law of the European institutions clearly states, the exigencies of
dealing with terrorist crime cannot justify stretching the notion of "reasonableness" to the point
where the essence of the safeguard secured by Article 5, paragraph 1 (c), is impaired. Therefore,
there must be evidence which is objective, and which can be seen to be objective, to corroborate
a suspicion which, in the absence of such evidence, however unimpeachable the bona fides of
the arresting officer, would not suffice to legitimate an infringement of the suspect's personal
freedom (Fox judgment, paragraphs 29-35).
The same applies to swift judicial control of any deprivation of liberty, as laid down in
the Convention (Article 5, paragraph 3), which exists to prevent such deprivation where it is
unjustified. Thus, anyone who is taken into custody must be brought "promptly" before a judge
or other officer authorised by law to exercise judicial power, in order to minimise the risk of
arbitrariness inherent in any deprivation of liberty.
It is true that "the investigation of terrorist offences undoubtedly presents the authorities
with special problems", and that, subject to the existence of adequate safeguards, the context of
terrorism "has the effect of prolonging the period during which the authorities may... keep a
person suspected of serious terrorist offences in custody before bringing him before a judge or
other judicial officer". However, this period must still be very brief. Where a person is kept in
custody for more than four days without any judicial control and without being brought before a
judge or other judicial officer, there is a violation of the Convention, regardless of the maximum
period fixed by national law (see Brogan judgment, paragraphs 58-61).
Criminal cases, particularly complex ones such as those involving organised crime,
frequently oblige the courts to make choices as to the conduct of the case which may adversely
affect the rights of the defence, with the result that the fairness of the trial may be prejudiced.
This applies particularly to the area of evidence. The difficulties confronting the courts in such a
delicate area, particularly in terrorist or Mafia cases, are well known.
However, the rule in every criminal case is that all the evidence must be produced in the
presence of the accused at a public hearing with a view to adversarial argument. If, however, the
circumstances require the use of witness statements obtained at the pre-trial stage, the accused
should be given an adequate and proper opportunity to challenge the witness against him, either
at the time the witness was making his statement or at some later stage (see Kostovski judgment,
paragraph 41).
Experience shows that, in order successfully to prosecute organised crime, given the
difficulty of gathering sufficient evidence to prove the charges, it is frequently necessary to
resort to statements by "anonymous persons" and police officers who have "infiltrated" the
criminal organisation.

41
Such procedures naturally pose problems with regard to the principles governing a fair
trial. Must these principles be ignored in the interests of effective crime-fighting?
The answer from Strasbourg could not be clearer. While recognising that the growth in
organised crime undoubtedly demands appropriate action, the case-law states that in a
democratic society, "the right to a fair administration of justice holds so prominent a place... that
it cannot be sacrificed to expediency". The Convention does not preclude reliance, at the
investigation stage of criminal proceedings, on sources such as anonymous informants.
However, "the subsequent use of anonymous statements as sufficient evidence to found a
conviction... is a different matter" (see Kostovski judgment, paragraph 44). The same problem
arises with regard to the use of statements by an undercover agent (that is, a police officer sent to
infiltrate, for example, a drug-trafficking ring) where such a witness has neither been examined
by the court nor confronted with the accused. In such cases, it is imperative to ensure that
evidence obtained in this way is used only to corroborate other evidence which has been
obtained in full compliance with the adversarial principle and the rights of the defence. Where
this is not done, there is a violation of the rights of the defence and of the principle of a fair trial.
6.
Moreover, as regards "punishment", that is, sentences which may be imposed on those
convicted of offences, the supranational courts have, in principle, no jurisdiction regarding the
question whether the sentence - however severe - fits the crime. However, it must be observed
that the requirement of respect for the inviolability
both physical and mental - of the human person creates particularly strict limits which
the States are bound scrupulously to respect, both in fixing and enforcing sentences.
It goes without saying that treatment which may be described as inhuman or degrading
or, worse, as torture, is prohibited. Article 3 of the Convention sets an absolute barrier in this
regard, however despicable a crime the person so treated is deemed to have committed.
Hence, resort to such treatment is never admissible, whatever its dissuasive effect, and
even if it is believed to be, or actually is, an effective deterrent or aid to crime-control (see Tyrer
judgment, paragraph 31). The Convention organs have developed a body of case-law from
which it can be deduced, inter alia, that national authorities cannot remain passive in this area;
they cannot hide behind their alleged inability to enforce national law and the Convention so as
to justify treating individuals in detention, who are by definition in an inferior position and thus
vulnerable, in ways which could be described as inhuman or degrading. Human dignity must be
respected, whatever the circumstances. In the search for those responsible for such treatment, the
Strasbourg organs go so far as to authorise a kind of reversal of the burden of proof, since the
Government are obliged to prove that it was not carried out by police or prison officers.
The death penalty raises a different problem, as it is formally authorised by the
Convention itself. In that respect, the Convention bears the stamp of the age in which it was
conceived (the years immediately following the end of the Second World War). Since that time,
ideas have of course progressed and the death penalty is in a fair way to being abolished
throughout Europe, despite the doubts expressed by the public when faced with the problem of
crime, particularly organised crime, and above all its more insane manifestations. Protocol No. 6
to the Convention, which prohibits recourse to this extreme form of punishment, has now been
ratified by 24 out of the 34 States Parties to the Convention. This Protocol can therefore already
be said to express a profound consensus in favour of outlawing an ineffective and unnecessary
punishment (to use Cesare Beccaria's words), especially as the death penalty has generally

42
ceased to be enforced in the majority of European States. It should be added that the fact that
certain countries - mainly outside Europe - resort to this penalty threatens a form of international
judicial co-operation which is indispensable to the effective fight against the scourge of
organised crime, by making it extremely difficult, and sometimes impossible, for a State which
is party to the Convention to hand a fugitive over to a third country, for example in the context
of extradition proceedings. We can only applaud, in this regard, the recent judgment of the
Italian Constitutional Court, which declared unconstitutional an extradition treaty allowing
individuals to be handed over to States whose criminal law still permits the death penalty.
7.
Does this mean that the protection of rights and freedoms afforded by the European
Convention on Human Rights may result in an excessively formal approach which could
provide organised crime with "aid and comfort" in its campaign to destabilise democratic
institutions?
Certainly not. The case-law of the Strasbourg institutions offers several examples which
have, rather, provided "aid and comfort" to the democratic State in its legitimate fight against
subversion, whether terrorist or the result of organised crime.
It is well known that the concept of balance is inherent to the Convention system.
Individual rights must be preserved, while at the same time safeguarding the legitimate interests
of the community. The demarcation line is determined by the requirement of respect for human
dignity; anything which may contribute to the defence of democratic institutions without
overstepping that line can be tolerated up to a certain point. Even the use of "lethal" force may
be permitted, albeit within narrow confines since it must be shown to be "absolutely necessary".
Extreme caution is called for in such matters, as demonstrated by the rigorous approach adopted
in this field by the Convention organs. The European Court's judgment in the McCann case is an
example.
Strasbourg offers no encouragement to anyone who seeks to use an individual right or
freedom to endanger the rights and freedoms of all. Suffice it to recall Article 17 of the
Convention, which aims to prevent abuse of the Convention rights and freedoms by extremist
groups, whose aims are contrary to those pursued by that instrument. Obviously, this means only
those rights and freedoms which could be used to broadcast a message of hate and violence,
such as the freedom of expression, the freedom of association, or even the right to property.
To take but one example, it can be seen that, with respect to the right to property, the
States enjoy a wide margin of appreciation, given the exigencies of crime prevention and
punishment.
Dispossessing those involved in organised crime of their assets, by seizing and
confiscating property which cannot be proved to have been acquired lawfully, is one of the
practical weapons - and perhaps the most effective - of eroding the financial muscle of organised
crime. Such measures have a substantial effect on the right to peaceful enjoyment of
possessions, but they may be justified under the Convention since, in certain circumstances, they
are demonstrably proportionate to the threat to democratic society represented by organised
crime. In this regard, it may be observed that Mafia-type groups are so dominant in certain
regions of Europe that the powers of the State are significantly weakened thereby -all the more
so since, as the European Commission of Human Rights has stated, the enormous profits made
by these organisations from their unlawful activities, particularly international drug trafficking,
"gives them a level of power which places in jeopardy the rule of law within the State".

43

8.
There can be no doubt that the case-law of the Strasbourg organs contributes, within the
limits of those organs' jurisdiction, to supporting the legitimate battle waged by democratic
institutions in order, precisely, to re-establish the pre-eminence of the law in a State adhering to
the principle of the rule of law.
In a modern society, respect for human rights presupposes great self-control. This is
equally as true for individuals as for public opinion, which can sometimes be manipulated,
taking advantage of circumstances or getting on an election bandwagon, for the purpose of
achieving aims which usually have only a veneer of respectability: that is, order at all costs.
However, even supposing that this aim can be realised, which is far from certain,
particularly in our open and complex societies, what would be the cost?
The experience of the last fifty years shows that where order is based on contempt for
fundamental rights and liberties, it cannot, in the long term, withstand the battering-ram of
European public opinion, which has largely been won over to the ideals of the Council of
Europe.
So let us keep our heads. Is it worth the risk of losing the honour of being a truly
democratic State for results which are as chancy as they are short-lived?
For it is certain that the best way to fight crime, the way which is likely to win, and to
retain in the long term, the informed consent of citizens, whose cooperation is essential, is the
way based on respect for human rights: that is, on the values upon which our social contract, as
citizens of a democratic State, is based.

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Interventions concerning the introductory report

Mr Guido RAIMONDI
The concept of balance is crucial to this meeting. It embodies the principles of
proportionality and moderation, which show through in the Human Rights Convention system
both in the letter of the Convention itself and in the case-law of the Court and the Commission.
One might be forgiven for thinking that these so logical and fundamental principles were
immutable. Yet it has to be said that there is a risk of their being eroded: influenced by a public
which feels a growing sense of insecurity, political leaders are, in fact, liable to adopt repressive
policies that pay little heed to human rights.
Of course, serious crime does pose a threat to the very foundations of society, and can
undermine the rights of all citizens. The authors of the Convention took due account of this fact
and, while laying down a whole series of individual rights, also gave consideration to the
question of possible abuses of these rights. The result was Article 17 of the Convention, which
is designed to block any attempts to abuse the provisions of the Convention, or to destroy any of
the rights and freedoms it enshrines.
The protection of human rights thus also requires the protection of society against the
scourge of serious crime. However, the responses to crime must be appropriate and must remain
within the limits of the law and of the international undertakings entered into by individual
states. What is at stake here are the genuinely democratic nature of the latter and their
membership of the Council of Europe family.
The question of the death penalty cannot be tackled properly from the angle of the law as
it stands (de lege lata). De lege ferenda, the shift towards heightened awareness of the
inviolability of life should mean our ruling out the application of the ultimate penalty. However,
this position needs to be defended, in particular against public opinion which may lean in the
opposite direction.

Mr Pierre-Henri IMBERT
This seminar should enable us to examine most of the numerous aspects of the chosen
theme. However, whether we like it or not, the question of the death penalty will continue to be
at the heart of the debate. There are factual reasons for this: we have heard that, in certain
member States of the Council of Europe, there have been more executions in one single year
than in all the other member States since the Council of Europe came into being. There are also
reasons of a substantive nature in relation to which I would like to share some personal thoughts,
stressing a number of aspects which are less frequently touched on, concerning the function and
the nature of the death penalty.
It is said that the death penalty serves as an example and a deterrent and prevents further
crime but we know that this is not true. All the statistics illustrate that there is no connection
between abolition of the death penalty and crime rates, since crime falls within the realm of
passion rather than that of reason. When committing their crime murderers do not think and do
not plan ahead. They may fear death but only after the trial, not before committing the murder.

45

Moreover, it is impossible to believe in the "virtues" of capital punishment. In order to

be exemplary the penalty would have to be terrifying, not abstract (or virtual). Executions
would have to take place in broad daylight and in public; children would have to be made to
watch the execution and it would have to be shown on television. In reality, however,
executions take place at night in the greatest secrecy (in some countries the person's body is not
even handed over to his/her family). This is clear proof of a vague feeling that violence (even
sanctioned by the law) may incite further violence and appeal to sadistic instincts.
This lead us to perceive the true function of this form of punishment, namely to eliminate
the offender. We do not know what to do with certain types of criminal and our prisons are
overcrowded... So, instead of facing up to the problem, we suppress it.
This "easy way out" is the sign of a twofold failure: society has not been able to prevent
individuals from committing such crimes and it does not know what to do with them when they
do commit such crimes.
So, it is a "cover up operation". As long ago as 1954, a French judge used the phrase
"administrative assassination" which reflects the unease we feel because the function we make
the death penalty fulfil is totally alien to its very nature.
We sense full well that this penalty is not like other penalties and not just one of a list
(sentenced to 10 years'/30 years'/life imprisonment/death). We can see that the death penalty is
different if only because it entails the permanent, irreversible elimination of a human being.
Leaving aside the miscarriages of justice and variations as between juries, I wish to stress
the extent to which this type of penalty tells us a great deal about a particular society - because it
is a matter of life and death. It is a society's conception of life that is at stake, the value that
society attaches to life in general and so to any one life in particular. It also raises the question
of one human being's right to inflict death on another, in cold blood, legally and in the name of
what? There are many answers to this question but none of them are totally convincing. On
analysis, we can perceive two basic grounds which can motivate recourse to the death penalty.
Firstly, society demands revenge. This is the lex talionis (which is moreover often
misunderstood). Vengeance may be kindred with our nature and our instincts but not with law.
The law cannot obey the same rules as nature. Murder may come naturally to mankind, but the
law is not made to imitate or reproduce nature. The law is crafted to correct nature.
The death penalty also incorporates the idea that certain individuals are beyond
redemption and that there is no hope for them. It should be remembered that, originally, in the
West, the death penalty was a religious penalty, at a time when belief in life after death and the
immortality of the soul meant that there was a possibility of redemption - if only in the
hereafter. Nowadays the world has no more illusions. But that is all the more reason for
preserving those few areas where some measure of sacredness can still survive - and what could
be more sacred than life itself?
However, human life ceases to be sacred when it is considered acceptable to kill.
This is clearly something central to any society that claims to respect human rights - over
and above rules and the law, it is about shared values. Let us stop this hypocrisy about public

46
opinion not yet being ready or mature. Is there any country in which public opinion has ever
been ready? And on what grounds can public opinion be considered ready or not? In France, for
example, juries had been systematically refusing to inflict the death penalty for several years
before it was abolished. Saying yes to the death penalty in an opinion poll is quite different from
doing so in a jury passing judgment on an actual person, after learning at least something of his
or her life story.
The public authorities do have a responsibility to mount a large-scale programme to
educate the public. But first of all they themselves must be convinced - that will make them all
the more convincing.
I have borrowed extensively in my remarks from Albert Camus' Rflexions sur la
guillotine (1957), from which I should like to quote the final sentence:
There can be no lasting peace in the hearts of individuals nor in society until death has been
outlawed. [Original: Ni dans le coeur des individus ni dans les moeurs des socits, il n'y aura
de paix durable tant que la mort ne sera pas mise hors la loi.]
Is it really so absurd to think that Europe should be the first continent to enter the third
millennium having outlawed the death penalty?

Mr Andrew RUTHERFORD
Although there is an extremely serious problem with the death penalty, it must be born in
mind that - in numerical terms - the incarceration of troublesome people by the State plays a far
greater role than their extermination through capital punishment. It is noted that in periods of
anxiety the States make use of general fear about serious crime as a cover to remove from
society people regarded as undesirable. We seem to be in the midst of one of these phases today.
Everybody is familiar with the figures in the United States, where the prison population
quadrupled since 1970. Similar developments are taking place in Russia and in the United
Kingdom.
As for the latter, there are many people in Britain who are deeply concerned about the
trend towards a massive increase of an unprecedented sort which is taking place in this country.
This is the result of a populist political and media discourse about crime and criminal policy, one
striking feature of which is the absence of any real challenge by the opposition Labour Party.
One of the challenges for people concerned about human rights in this massive leap towards
incarceration is how to play some sort of limits on this.
At the same time, the challenge for people in other countries, other than the United
Kingdom, where many of these issues may not be too far from the surface, is how to get the
discussion about crime and criminal policy - in dealing sensibly with serious crime - back on to
a rational level.

47

Mr Erik PROKOSCH
This seminar is considering the question of "serious crime and the requirement of respect
for human rights." But the requirement of respect for human rights has to include the abolition
of the death penalty. The death penalty violates the right to life and the right not to be subjected
to cruel, inhuman or degrading punishment. It is not possible for a government to respect
human rights and use the death penalty at the same time.
This is the basis for Amnesty International's opposition to the death penalty. Inspired by
our abhorrence of the death penalty, we are working hard for its abolition throughout the world.
The progress towards worldwide abolition is undeniable. Fifteen years ago, in 1981,
there were 27 countries which had abolished the death penalty for all crimes. Today there are
58. The number has more than doubled. Today more than half the countries in the world have
abolished the death penalty in law or practice. The numbers grow each year. Yet it seems that
the battle has to be fought over and over again, from country to country. Each country has to go
through a process which is often long and painful, examining for itself the arguments for and
against, before finally - we hope - rejecting the death penalty.
Even after abolition, there may be calls to bring the death penalty back. If the calls are
serious enough, the arguments have to be gone through again.
What is the place of public opinion in the battle over the death penalty?
The decision to abolish the death penalty has to be taken by the government and the
legislators. This decision can be taken even though the majority of the public favour the death
penalty. Indeed, it is probably correct to say that historically, this has almost always been the
case. Yet when the death penalty is abolished, usually there is no great public outcry; and once
abolished, it almost always stays abolished.
This must mean that although a majority of the public favours the death penalty in a
given country, it is also the case that a majority of the public is willing to accept abolition. This
is a feature of public opinion which is not usually revealed by the polls. If the questions were
more sophisticated, the polls would probably give a better sense of the complexities of public
opinion and the extent to which it is based on an accurate understanding of the present situation
of criminality in the country, its causes and the means available for combatting it.
It has been said that no one believes in the deterrent effect of the death penalty - that is,
that the death penalty deters crime more effectively than other punishments. But many members
of the public do believe in it. Their belief flies in the face of the scientific evidence. In other
words, the public does not have a scientific understanding of the deterrent effect of the death
penalty.
As the United Nations Secretariat suggested as long ago as 1980, governments should
take on the task of educating the public on this point. A better public understanding of crime
prevention and criminal justice would produce more support for anti-crime measures which are
genuine and not merely palliative. At the very least, politicians should not make demagogic
calls for the death penalty, misleading the public and obscuring the need for genuine anti-crime
measures.

48

For Amnesty International, the human rights argument is paramount. But in practice, it
is only one of several powerful arguments against the death penalty which need to be part of the
national debate.
In coming to accept the human rights argument, people have to change their way of
thinking about the death penalty. They must come to see execution as an unacceptable
punishment. The guillotine, the noose and the electric chair should be seen as only museum
pieces, alongside thumbscrews, the rack and other medieval instruments of torture.
While Amnesty International is making the human rights argument, others need to make
the other arguments. Statements from religious leaders, other respected public figures,
influential organizations and the news media can create a moral climate in which the legislators
will be more willing to vote in a way which they know will be unpopular with many of their
constituents.
Often the national debate on the death penalty is conducted in purely national terms. The
international dimension needs to be brought in. Countries can learn from other countries'
experience in the realm of criminal policy.
The European Ministers of Justice concluded over 15 years ago that the abolition of the
death penalty in many member states of the Council of Europe has not been shown to have
adverse effects in the realm of criminal policy. That conclusion is still valid, in Europe and
other parts of the world.
Meetings such as the Council of Europe seminar in Taormina can play a valuable part in
fostering an international exchange of views and experiences on the death penalty - an issue of
paramount importance to human rights.

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SECOND SESSION
Theme 1: means and action to combat serious crime effectively while
respecting human rights
i.

legal means (penal and prison fields, police action, etc.)

Report presented by Mr Juraj KOLESR, Professor of Law, Vice-Dean,

Faculty of Law, Comenius University, Bratislava
Human rights in connection with the growth in the rate of major crimes is a subject
which for some years has stimulated discussion both between experts and among the public at
large. The public is influenced to a certain degree by the media, which may exploit the subject
for populist motives; experts, on the other hand, have a duty to treat the problem seriously and to
seek possible solutions.
In central and eastern European countries these discussions acquire a different
dimension, due to the fact that before 1990 the phenomenon of specifically major crimes was
negligible. If such crime occurred at all it was generally marked down as an anomaly.
Western countries, meanwhile, had learned to live with the awareness of major or
organised crime, and in conditions where its existence was accepted as a fact of life. But long
before the opening of the borders, experts in criminal and penal law had been pointing out that it
would only be a matter of time before the same situation arose in our country, as well as in
Poland, Hungary, and other states at more or less the same level of political development. Their
warnings, however, were not taken seriously, although some attempts were made to introduce
preventive measures. Before 1990 I worked for several years as secretary to the commission
which was established to counter these phenomena among young people. Six years later, to my
great surprise, material compiled by me during that period reappeared with remarkably few
alterations.
The opening of the borders only helped to shorten the time needed for major and
organised crime to appear in our country. In most cases, however, the arrival of this type of
crime caught the former socialist countries unprepared. True, some measures were taken, but
their effect was negligible. Besides, these measures were largely based on the experiences of
western countries. It is always tempting to make comparisons, but in this case it must be
emphasised that the starting points were completely dissimilar. The police and criminal law
systems were different, systems of civil organisation were different, above all state protection
against such forms of violence was different. Major and organised crime had no difficulty in
finding our country's weak points.
Human rights and their protection are by their nature special. In examining the protection
of human rights in the context of the fight against such antisocial acts we must not forget this
point: before 1990 official government policy discouraged public discussion of the protection of
human rights. In the international arena the question of human rights was presented as posing no
problem, with human rights being universally guaranteed. Even during that period I had close
contacts with sources of information in the sphere of criminal law enforcement, and I must
confirm that the situation really was so in most cases. However, we must not forget that during

50
that period perfectly normal acts, such as leaving the republic, were considered crimes. Today it
is unimaginable - even ridiculous - that one should not have the basic human right to leave and
re-enter one's own country freely. Similarly, acts of subversion against the republic were
considered a crime - a device used by the regime to protect itself. (I would rather not mention
here possible moves to reintroduce this crime into the Criminal Code.)
In the former Czechoslovakia, knowledge of human rights abuses was gained through
the foreign media, chiefly radio. Up to a certain point people were unaware of the extent of the
problem. The first change came in 1977, when the group Charter 77 drew attention to the
observance of human rights required by the Collection of Laws of 1976. Charter 77's activities,
however, reached only a limited audience. In Slovakia the number was very low. At that time I
was with the Court Martial and Charter 77 was identified to us as a secret affair against which
we should be on the alert. When we asked what we were supposed to be watching out for, and
what Charter 77 was, we were given no answer. Even the fact that someone was casting doubt
on the observance of human rights was confidential. It took over ten years to change the
situation.
Although we may hope that political crimes are now a thing of the past, we cannot deny
that they have given way to another evil. It is difficult to say whether this new evil is greater or
lesser. Many people, especially laymen, take the view that in post-1968 Czechoslovakia at least
people did not get killed, whereas today human lives are being lost in violent crimes, murders
and even contract killings. They believe, therefore, that the evil is definitely greater. Personally I
disagree with the idea that evil can be classed as greater or lesser. Evil remains evil, and it is the
task of lawyers - especially criminal lawyers - to combat it.
Alas, it must be recognised that the concept of human rights protection is both used and
abused today. The hierarchy of values espoused by the authoritarian State has disappeared, and
as yet nothing has fully taken its place. Talk of human rights is frequent: talk of duties and
responsibilities less so. The basis of human rights protection is the duty to respect also the
opinions of others. To the question What hinders human rights protection? I can offer this
brief answer: lack of tolerance and a reluctance to accept the views of others.
I have visited several countries in Europe. I have studied and lectured in Canada and the
United States. I make comparisons. There is a general lack of tolerance - not only in Slovakia in the very sensitive area of criminal law. Very often it can be summed up in one sentence:
people do not listen. For people you can substitute other words, such as judge, prosecutor,
policeman, solicitor, or journalist, state official or even member of parliament.
However, my task is not to dwell on general reflections on human rights but to
concentrate on the part they play in legislation. When we speak of the role of law as a protection
against rising crime, what we are generally talking about is criminal legislation. It is not so
simple, though. We have a number of laws designed to protect us against the rise in crime:
amendments to the legislation on guns and ammunition (the gun being the means of both attack
and protection), laws on prosecution, courts, advocacy and expert witnesses, the Misdemeanour
Act, the Act on the Police Force, etc. But it must be said that our legislation, as well as the
comparable legislation of neighbouring countries, suffers from many shortcomings. These
originated early on in the preparatory stages of the acts, and even more often in the changes and
amendments. Constant, and often unconsidered amendments, are the plague of modern lawmaking. In the words of the Czech lawyer, Professor Ota Novotny:

51
"I see the most serious deficiency in the State's care of respecting the valid law [including
human rights]. It is the State's entire duty to secure the obeyance of law and of other legal
norms. The State has at its disposal a number of controlling mechanisms. While these mechanisms work properly, socially favourable climate will be created for law and its observance, as
well as an unfavourable situation will arise for infesting the society with crime rate. I take this
general connection between the rule of law and its respecting, and the development of the crime
rate as a matter of course."
Professor Novotny goes on to say:
"I apologize to everybody for declaring such trivial truths here. However, unless they are
observed, it is inevitable to talk about them."
For one reason I can share the professor's view. When I give lectures to my students at
the faculty, they rarely see these trivial truths as trivial. They nod their heads in agreement that
these really are things which do not need to be pointed out, which will be at the forefront of their
minds at all times and in all places. But I also meet many of them in my job as a barrister and as
a participant in conferences and meetings. And then they have a different view of these truths.
Their view changes according to the circumstances. The truths are being replaced by other
truths, often following the argument which says that the changing situation necessitates a change
in beliefs. What is the reason for such a change in thinking? Is it a common phenomenon, or
something peculiar to our national circumstances? Am I supposed to believe that it is a
manifestation of a certain general schizophrenia of the contemporary world? I am unable to give
the correct answer, nor do I feel competent even to suggest one. But we must search for it
together, since that might be one of the sources of the solution to our problem, the answer to the
question: Why is there still a disparity between legislation (including all types of codified law)
and what is happening in real life?
When discussing the observance of human rights in the context of major crime it is
necessary to examine the state of the legislation. I should like to speak about Slovak legislation
in the area of criminal law and related provisions. I am familiar with Czech legislation, with
which we share a common inheritance, and I have some knowledge of the legislation of other
neighbouring countries. In addition, I have had the opportunity to acquaint myself with the
legislation of countries which are generally known as advanced western democracies. On this
subject I should like to draw your attention to the publications of our Dutch colleague
J.F. Nijboer of Leiden University, in particular his paper delivered at the International
Conference on the Rights of the Accused, Crime Control and the Protection of Victims, held in
Jerusalem in December 1993. Many of the ideas he puts forward are relevant to this conference
too.
I am very glad that our standards in criminal law were appreciated by all the foreign
delegations of recognised experts in criminal law. However, they did express doubts on some
ambiguities. I should say here and now that, unlike in certain other European countries, the
criminal law we have today will have to suffice until it can be completely redrafted. It is not a
question of minor amendments. There is no reason to hurry. My colleagues and I still smile at
the memory of one of the first visits by a team of lawyers from the United States in 1990. In
their lecture they insisted on the importance of the accused's rights, particularly the right to a
defence counsel. They were highly surprised when we cited the relevant paragraphs from our
Criminal Code; their information had been completely different. My good friend, the excellent
criminal lawyer Adam Bennett Schiff, gave a lecture to students on the need to solve the

52
problem of racial conflicts in the post-Communist era. This was on the very day that the tragic
race riots broke out in Los Angeles. We are rightly resentful when foreign lawyers lecture us on
matters which have long since formed part of our legislation. Again, the difference is between
the law on paper and the law in practice. It is a problem of application.
The Slovak Criminal Code and the Code of Criminal Procedure date back to 1961. The
latter has (as of July 1996) been amended twenty-two times. I must confess that the way the
amendments were made was not always ideal. But we are here to study the legislation pertaining
to major crime. Considerable progress has been made in this area. Notable legislation includes
the Act on the Police Force (1993) and its amendment covering major crimes (1994), together
with the Act on Combating the Laundering of Income from Major and Organised Crime, often
known simply as the Act against Organised Crime. I suppose that recent legislation gives the
Slovak Republic a good basis for such combat to be conducted successfully and within the
legal limits. But none of it is perfect. Despite their positive features, each of these laws has its
ifs, buts and ands. Let us have a look at some of the problems.
The above-mentioned amended Code of Criminal Procedure states that imprisonment
can only be imposed by a judge or a court. (Before the amendment it could also be imposed by a
prosecutor or by an investigator with the previous consent of the prosecutor.) Thus, the role of
the independent court has been strengthened. Also strengthened was the guarantee that
imprisonment, which entails a considerable restriction of constitutionally granted human rights,
would be decided upon exclusively by a person or an authority of the highest qualifications. But
its application met with problems initially, in that there was a shortage of judges in some
administrative districts. The judge involved in the preliminary proceedings was barred from
conducting the main proceedings, as his or her impartiality might have been in doubt. The lack
of criminal judges meant that civil judges were sometimes called in to decide on questions of
imprisonment. Very often the freedom or liberty of the accused was in the hands of a judge who,
although possessing the necessary criminal law qualifications (as all judges are required to), had
not exercised them for years. Judges came to their conclusions in accordance with the law, their
education and their conviction, and not in accordance with the wishes of the police who often
wanted to have accused persons safely in prison but lacked justifiable reasons for keeping them
there. This proves to be the right step in legislation. The problem lay not in the act itself, but in
the number of judges, in their qualifications, lack of means, etc. It took some time before the
organs active in criminal proceedings could adapt to the new situation, and the process is not yet
complete.
Shortages of appropriate personnel and lack of material means are not, and must
not be, the reasons for abandoning the basic rights and freedoms which have been granted
by the Constitution and other acts.
In this connection I should like to point out the statement or question mentioned in the
Note to rapporteur, page 2, at the end of section 3, about reorganising courts and establishing
special courts or tribunals for particular major crimes such as terrorism, drug-related crime, etc.
In my opinion this is not the right approach. In our system today it would be a breach of the
Constitution, since everyone is guaranteed the right to a fair trial. Today, the accused knows he
or she will end up in court, but not who the judge or the members of the tribunal might be.
Setting up extra judicial bodies proved wrong in the period of political trials, when special
tribunals were established to judge political crimes. They very soon became routine in their
character. The accused were always treated as if they were guilty, and the only doubt was as to
the length of the sentence. (I note in passing that we have also abolished special tribunals for

53
traffic offences.) The judge who practises the law in several spheres retains a greater sense of
justice and objectivity. It is enough for major crimes to be dealt with by specialists in the
preliminary hearings. That is the appropriate place for their expertise. So as far as courts are concerned, I do not recommend special tribunals.
The amended code has created new institutions which permit more effective and faster
action following the commission of a crime or which help prevent crime during the preliminary
proceedings. Among other things, it covers the procedure for house searches or searches of other
premises and properties (paragraphs 82-85b), the possibility of changing the contents of articles
(paragraph 87a), the tapping and recording of telecommunications (paragraph 88), checked
delivery (paragraph 88a), the institution of an agent (paragraph 88b) and the institution of
witness protection. I hope the content of these provisions is clear enough. In any case, my personal opinion is that checked delivery and the agent belong to a different legal standard, to be
precise to the above-mentioned Act against Organised Crime. They cannot be applied generally,
but are appropriate only in matters covered by that act. Moreover, the institution of an agent is
generally problematic. If an agent is to infiltrate an organisation he or she must necessarily
commit crimes. How far can they go? Do they have the right to sacrifice one life in order
possibly to save many others?
A very positive step is the institution of witness protection. Intimidation of witnesses, or
potential witnesses, lies at the root of many unsolved, or even undeclared, crimes. People rightly
ask what action discharged criminals may take towards those who gave evidence against them.
Even while they are in prison, what is the possibility of the group to which they belong taking
revenge on their behalf? A criminal organisation has many means at its disposal.
Slovakia's problem in this respect is that it is a small country. Over fifty years ago one of
my teachers said that in Slovakia it was difficult to work in secret or to hide as everyone knew
everyone else. I share this opinion today, and I have had it borne out on several occasions.
There are certainly some solutions, but we should not hold out the hope that this will be a major
weapon in the fight against organised crime.
I discount the possibility that we might solve such crime by the reintroduction of the
death penalty or by imposing disproportionately long prison terms. I am against the death
penalty, although I know that some of my colleagues can argue rationally for its restoration. Few
of them, however, are criminal lawyers and those that are are willing to sentence but not to
execute. Is this a solution? Personally I perceive this as the institution of a public bogey. We
know of many bogeys already which are better than the electric chair or the gallows, and the
debate on alternatives to prison sentences, or changes in prisons themselves, is wide open.
There is no proof that imposing tougher sentences would be a deterrent. The most
effective means are fast detection, just punishment and adequate publicity.
After a profound study of the data and statistics, after case analyses, after discussions
with both experts and the public at large, I have come to the conclusion that contemporary
legislative conditions for combating major and organised crime are satisfactory. At this stage it
is not advisable to weaken in any way the protection of human rights as guaranteed by the
Convention for the Protection of Human Rights and Fundamental Freedoms. That is not the way
to eliminate, or even reduce, this kind of crime. We cannot change the rules of the game to suit
ourselves while the match is in progress, no matter how harsh that may sound when human lives
are at stake.

54

An immediate measure to be implemented is the strict observance of existing law. As

far as Slovak criminal law is concerned, I repeat that the present legislation offers enough
scope for strict observance of the existing law. Secondly, combating crime should not be
left to chance or amateurism. We must constantly bear in mind that most offenders are
professional criminals. An amateur has very little chance against them. Such a combat and it is
often literally an armed combat requires a professional approach. There can be no room for
the beliefs of laymen or the public at large who want to see so-called new or perfected
methods.

55

Written communications relating to theme 1.i: legal means (penal and

prison fields, police action, etc.)
Mr Vladimir EVINTOV, Doctor of Law, Director of the Ukrainian Centre
for Human Rights, Kyiv
The death penalty in ukraine
The problem of the death penalty is at the heart of the debate on policies for combating
crime in a sovereign and independent Ukraine. Legal experts, criminologists, judges and public
prosecutors, politicians, human rights activists, people who are referred to as "ordinary citizens":
all want to have their say on the subject, and the media give many of them the opportunity to do
so. Should we or should we not abolish the death penalty? This question - or rather the answer
to this question - is part of a much wider and very important issue involving one of the two
following options: either an anti-crime policy based on professionalism, the prevention of crime
and the safeguarding of human rights, including the sacred right to life; or increasingly severe
punishment with, as the ultima ratio, the death penalty as a means of intimidation in the fight
against the steady increase in crime.
The reply to the question will be neither expeditious nor simple in a society in difficulty
which is seeking to establish its identity and which is still profoundly marked by the blemishes
of both its close and distant totalitarian history.
Following the attachment of Ukraine to Russia in the 17th century, Russian legislation
was extended to the new colony, in particular Alexei Mikhailovitch's Code of criminal laws
which was adopted in 1649. This Code recognised capital punishment as a major penalty for
more than sixty different crimes. The said Code listed five methods of execution, notably at the
stake, by quartering, by impalement, etc. Under Peter I, the application of the death penalty was
extended even further. The laws at that time authorised the death penalty for 123 crimes. The
number of persons executed during his reign attained unprecedented levels. There were months
where over one thousand persons died in this way.
In 1832 and 1845 the death penalty was introduced in Russia for treason. Capital
punishment was applied with increasing frequency during the second half of the 19th century on
account of the every-growing revolutionary movement. Over a period of thirty years (18661895), following 226 political prosecutions, 137 persons were sentenced to death, 44 were
executed and the death sentence of 93 others was commuted to a life sentence of forced labour.
A bloody repression took place during the revolutionary events of 1905-1907. 574
persons were executed in 1980, 1,139 in 1907, 1,340 in 1908 and 717 in 1909. This bloodbath
swung public opinion in favour of abolishing the death penalty. Eminent lawyers spoke out
against the barbarity (MM. M. Guernet, N. Tagantsev, A. Piontkowski, S. Vikterski and others).
Following the Soviets' accession to power and the outbreak of civil war, the death
penalty became one of the main instruments for terrorising the masses. Both revolutionary
tribunals and non-judicial bodies were given the right to apply the death penalty. The following
figures bear clear witness to the extent of the repression: in no more than nine months (from
June 1918 to February 1919), the Extraordinary Committee (vtchka) alone sentenced and
executed 5,496 persons in twenty-three of the country's governments.

56

Repression, and the death penalty as a key instrument of repression, became an

institutional component of the new State. V. Lenin wrote the following to the Commissioner of
Justice, D. Kourski: "Justice must not do away with terror; if we promise to do that we would be
deceiving ourselves or deceiving others; we must prove the merits and the legality of terror as a
principle in a clear manner, without beating about the bush or lying (V.I. Lenin, complete works,
v. 45, p. 190, Ukrainian version).
Terror and disregard for human life were thus raised to the status of a principle
governing the administration of justice. The force of this Leninist theory was to be proven
several times in Soviet history.
In 1927 a new Criminal Code was adopted in Ukraine which remained in force until
1961. Under the terms of this Code, amended by the Law of 7/08/1932 and a number of other
laws, forty-two crimes and offences became subject to capital punishment. The laws in question
served as a "legal" basis for the terror imposed by Stalin and his accomplices on their own
people in the 1930s. The judicial bodies of the totalitarian regime, which had nothing
whatsoever to do with crime, sentenced millions and millions of Soviet citizens to death.
According to certain sources, almost twenty million persons were executed or tortured to death
in Stalin's gulags.
In 1961, a new Ukrainian Criminal Code introduced the death penalty for a whole series
of offences. In the 1960s and 1970s, capital punishment was more widely applied. In the 1980s
fifteen offences were subject to the death penalty in Ukraine: treason, espionage, terrorism,
terrorist acts against the representatives of foreign States, sabotage, aggravated theft, actions
designed to disrupt the functioning of prison establishments by dangerous persistent offenders or
persons having committed serious crimes, the forging of currencies or stocks and shares on a
regular basis, currency or currency and stocks and share speculation on a wide basis, substantial
misappropriation of public or social funds, murder with aggravating circumstances, rape with
particularly aggravating circumstances, attempts to murder a member of the militia or a
voluntary policeman, the hijacking of an aeroplane entailing death or serious bodily injury to
persons.
Even a very brief general view of historical development illustrates the importance of the
traditions influencing those who are convinced that the death penalty is the panacea, or at least
an effective instrument, for combating crime. Unfortunately it must be noted that in Ukrainian
society this type of opinion is not only shared by many Ukrainian citizens but is part of the
general mentality of the (in Soviet terminology) so-called "protectors of the law" (the militia and
the procuratura).
One tragic example of this mentality is the case of Mr Ivanov, a businessman accused of
tax evasion, who was remanded in custody for the duration of the preliminary investigation by
the examining judge. As Mr Ivanov was suffering from a serious heart disease, his lawyer
lodged several appeals with the relevant public prosecutor and the investigating judge against
this inhumane measure. The Code of Criminal Procedure enables these State officials to apply
non-custodial sentences or even not to impose any sentence at all. However, neither this
provision of the Law, nor the supporting medical evidence, nor the media nor public outrage at
the vicissitudes of Mr Ivanov were able to save his life: he died of a heart attack in Kyiv prison
after several months of "remand in custody". Consequently a man who, pending his trial before a

57
court, should, by law, have been considered innocent until proven guilty, was sentenced to
death.
Following Ukraine's independence, the Parliament reduced the number of crimes subject
to the death penalty. The current Ukrainian Criminal Code prescribes this penalty for crimes
involving murder (or attempted murder) with aggravating circumstances: attempt to murder a
statesman (Article 58), attempt to murder a representative of a foreign State (Article 59),
sabotage (Article 60), intentional homicide with aggravating circumstances (Article 93), attempt
to murder a member of the militia, a voluntary policemen or a soldier responsible for
maintaining law and order, with aggravating circumstances (Article 190-1).
In 1991, 112 persons were sentenced to death, 109 under Article 93, 2 under Article 190a and 1 under former Article 56; 42 persons were executed. In 1992, 79 persons were sentenced
to death, 77 under Article 93 and 2 under former Article 117; 78 persons were executed. In
1994, 143 persons were convicted, all under Article 93; 60 were executed. In 1995, of 191
convicted persons, 190 were convicted under Article 93 and 1 under Article 190-1; 149 were
executed.
It is important to point out that whereas persons who have committed an offence
punishable by the death penalty have a legal status which is clearly defined by criminal law, the
status of those sentenced to capital punishment is unclear and is governed not by law but by
administrative instructions. Once the convicted person has exhausted all the remedies open to
him, he may appeal to the President of the Republic to pardon him. This is a long procedure
which may take months and months, thus prolonging and aggravating the person's suffering. He
may, of course, become mentally (or quite simply) ill. In such cases, the judgment must be
suspended and the prisoner taken care of but there are no laws governing this. In practice there
have been no cases of suspension of the death penalty.
Nor is the situation of the convicted person's nearest and dearest enviable. The death
penalty is a state secret. The prisoner's family are not informed of the date and place of
execution until several months after the execution has taken place. The corpse is not handed
over to the family and they are not informed of his place of burial.
Ukraine's accession to the Council of Europe in 1995 was a historic breakthrough. At the
same time Ukraine entered into important international commitments, including the undertaking
to sign Protocol No. 6 to the European Convention on Human Rights on the abolition of the
death penalty within the following year (as of October 1995) and to ratify it within three years of
accession and to implement a moratorium on executions immediately after accession.
As the time-limit for the honouring of this commitment draws nearer, opposition to the
abolition of the death penalty is growing in strength. What, very briefly, are the arguments of
those in favour of maintaining this form of punishment in Ukrainian criminal law?
Crime-rates are currently soaring in the Ukraine and abolition of the death penalty would
only encourage crime.
It is undeniable that in 1995 the number of crimes reached 641,860, i.e. 12% more than
in 1994 or 2.6 times as many as in 1986 (248,600). Serious and very serious crimes represented
38.7% of the total number. The need to protect the life and the health of the citizens is a serious

58
problem. 4,783 murders were committed in 1995, an increase of 69.4% compared to 1990.
There were 214 contract killings, a new form of crime.
Violence is at the heart of social relationships and insecurity is focused on the daily
violence perpetrated through assaults on persons or property. However, the existence and the
application of the death penalty do not have a sufficiently deterrent effect on indictable offences.
Punitive measures have fallen short of expectations. The growth of delinquency is due, to a very
large extent, to the weakness of the State and the ineffectiveness of the institutions called upon
to deal with this social evil. A large proportion of the population no longer believes that the
"protectors of the law" are capable of protecting the law or the people. The tendency towards
crime and the corruption of those in power gives rise to mafia-like structures. The legal nihilism
and general laissez-faire are causing social pessimism.
Under such conditions the death penalty will never be a magic wand. The machinery of
the State must be put in order, corruption done away with and the police and other "protectors of
the law" must be organised so that they perform their duty of protecting and defending the
people and their property with the true professionalism that they currently lack; and they must be
given the means they require to accomplish this task.
Some people claim that if the death penalty were abolished and replaced by a life
sentence, it would be necessary to establish a new and very expensive type of prison which is
out of the question in the present economic crisis that Ukraine is going through.
The current penitentiary system in Ukraine is open to criticism and in no way
corresponds to the humanitarian requirements of the civilised world. There are plans to reform
the system along with the criminal law on which work has already begun. A reform of the
penitentiary system would help to make Ukrainian society and the Ukrainian State more
humane.
Some legal experts believe that there can be no rapid or positive reply to the conditions
laid down in Protocol No. 6. Some senior judges and public prosecutors claim that the death
penalty is and will continue to be applied, since the criminal law, which prescribes this type of
punishment, has been neither repealed nor amended.
It is true that the Law is the Law and that it must be observed just as the international
commitments entered into by our country must be observed. Ukrainian law is clear on this
subject: the "pacta sunt servanda" principle is acknowledged as a cornerstone of the country's
foreign policy.
The plan of action proposed by the Council of Europe and approved by Ukraine contains
measures which make it possible to solve the problem gradually and to follow it through. It has
been proposed that, after acceding to the Convention, Ukraine should order a moratorium on
executions without interfering with criminal law. This decision can only be taken by Parliament
which, alone, can suspend the relevant provisions of criminal law.
The three-year time-limit within which the Convention should be ratified will be used to
prepare the necessary changes and amendments to the criminal law in force or to fully integrate
the abolition of the death penalty in the draft of the New Criminal Code currently under
discussion.

59
The legal basis required to carry out these absolutely essential changes already exists in
Ukraine, namely the new Ukrainian Constitution adopted on 28 June 1996, which is based on
the fostering and safeguarding of human rights, and in particular Article 3 which reads as
follows: "Human beings, their life and health, their honour and dignity, their inviolability and
safety are acknowledged in Ukraine as supreme social values".

60

Written communication by Mr Hartmuth HORSTKOTTE, Judge at the

Federal Court (retired), Berlin
The judge and serious crime
It is not easy to explain the place of the judge in a setting defined by terms such as "to
combat serious crime" (theme 2 of this Seminar). No doubt, judges in Italy and elsewhere who
have lost their life on duty have died because they fought for justice; we owe them respect and
gratitude. And we admire those judges and prosecutors who, being obedient only to the law,
resist pressure exercised by the state, by politicians or by private organisations - pressure which
aims for example, at avoiding the detection and prosecution of large-scale corruption.
Nevertheless, the judge, at least the trial judge and the appeal court judge, is no soldier on the
battle-field were prosecutors and policemen combat crimes, as medical researchers "fight"
diseases. Interestingly, we usually use less warlike terms in describing activities directed against
poverty, neglect of children, homelessness, urban decay, xenophobia or deadly traffic accidents,
though such activities may be the more effective way to fight for the preservation of life, health
and an agreeable community. Whatever linguistics may reveal or obscure: the judge will try to
develop a more detached position and attitude, even though he is bound to take the final
decisions.
Indeed, the judge has to play an active role in reacting against serious crime: his
decisions before, during and after trial have to be law enforcement in the strictest sense of the
word. Before trial, the judge has to see to it that all preparatory measures are in accordance with
procedural law. The trial judge has to lead the procedure to a verdict that clearly defines an act
as a criminal breach of the law, or to an acquittal. If it comes to sentencing, the punishment has
to be adequate (proportional) to the gravity of the offence and the degree of the guilt, thus
demonstrating the rule of law, and confirming that crime does not pay and warning others.
However - and here we begin to leave the battle-field - the sentence should be of such a nature
that the chances for the offender's future life in the community are not impaired more than
absolutely necessary, given the gravity of the offence and the guilt. Last but not least, the
judicial decisions should demonstrate that the procedural rights of the offender are meticulously
respected, even if this seems to be counterproductive under the aspect of effectively combatting
crime.
So the judge does not fully fit into the marching-order on the battle-field against crime.
This is not to say that the others on that battle-field do not respect the limits set by procedural
law. But the perspectives, and hence the attitudes, ought to be different: the law limits the scope
of police and prosecutorial activities: procedural law gives the objective of bringing someone to
trial and conviction no absolute priority; that objective must be pursued only within the limits set
by procedural law (and the Constitution plus international Human Rights instruments). For the
judge, procedural law (the Constitution, the Human Rights instruments) is not a limit to his/her
proper activities. Rather, the task of the judge is primarily to apply the law, both substantive and
procedural law. From the judge's perspective, an acquittal for lack of sufficient evidence or in
application of the exclusionary rule should be a demonstration of the law in the same way as a
conviction used to be. Hence, there is no equality of weapons between the judge and the
defendant; the judge has to carry the heavy armour of the law, while the defendant finds no
restrictions in choosing his tactics. Still, it is true what Vivien Stern writes in her paper (H/Coll
(96) 5): "Lawlessness is not being met with lawlessness but by a firm reassertion of the
supremacy of law" (p. 8 of the English version).

61

The supremacy of law is demonstrated in the protection of human rights including

procedural rights as defined in Article 6 of the European Convention on Human Rights. It has
been argued that individual human rights have to be interpreted against the background of the
basic human right to "liberty and security of a person" mentioned in Article 5, paragraph 1, of
the Convention. This is a problematic item of interpreting not only the Convention but also the
International Covenant on Civil and Political Rights (Article 9; cf also the preamble to that
Covenant: "... recognising the ideal of human beings enjoying civil and political freedom and
freedom from fear and want." which is a citation from the Virginia Bill of Rights of 1776, and
the "right to security (sret)" in Article 2 of the French Declaration of Human Rights of
1789/1791). The idea that security has a human rights quality has attracted the interest of
constitutional doctrine in Germany (cf. J. Isensee, Das Grundrecht auf Sicherheit, 1983;
Isensee/Kirchhof -ed-, Handbuch des Staatsrechts der Bundesrepublik Deutschland V, 1992, pp.
137 et seq.). No doubt: it is one of the central tasks of the state to guarantee a sufficient degree
of security; people cannot fully enjoy their individual rights in a condition of pervasive
insecurity. Still, there are good reasons to assume that "security" in the sense of Article 5 of the
Convention relates only to the individual's security of the face of state power (cf.
Frowein/Peuckert, Europische Menschenrechtskonvention, 1985 ad Article 5, note 4). The
guarantee of human rights would be in danger if common security would be seen as an aspect
which limits the reach of a given human right in the same way as in cases where different
individual human rights are in conflict; the precise wording of the Convention in defining
exceptions from rights, as, for example, in the second paragraphs of Articles 8 to 11 would be
undermined by such a general recourse to the aspect of security. Hence, the functioning of
Criminal Justice is not in itself a device restricting individual rights. This does not exclude the
consideration that an individual human right must not be interpreted in a way that would make
the reasonable functioning of the criminal justice system under the rule of law impossible.
The human rights problems which come up in the context of judging serious crime are
not different from the challenges and deficiencies originating elsewhere in the criminal justice
system. But the context of serious crime makes some of the issues, including structural problems
and temptations, more visible. The following account of human rights implications is far from
being complete:
First, the presumption of innocence (Article 6, paragraph 2, of the Convention) is of
primary importance. The bearing of this principle is not yet fully clear. Let us take a judge who
has, in order to meet the "reasonable time" requirement under Article 6, paragraph 1, of the
Convention, selected for the verdict some few, exemplary offences from a more comprehensive
charge (indictment). May he consider, in sentencing, the larger context of these offences? The
answer will be negative; but this will discourage the prosecutor from agreeing to such a
beneficial restriction of the charge. May prior similar offences, convincingly proved in the trial
but not being the object of the charge, be considered in terms of evidence and as factors for
sentencing? The answer is doubtful: does the requirement "proved guilty under the law" (Article
6, paragraph 2, of the Convention) imply a proper charge before evidence is taken?
The most important aspect, related to the presumption of innocence as well as to the fair
trial and the defendant's right to defend himself (Article 6, paragraphs 1 and 3), is the right of the
defendant to choose silence as a means of defending himself: the defendant has to be informed
of this right before the first questioning by police; the freedom of his choice must not be
impaired. This implies, in my interpretation of Article 6, that any factor which could discourage
him from choosing silence as a defence, has to be avoided; in order to guarantee this freedom of

62
choice, the silence may not be used as an argument for assessing the evidence or, more
important, for sentencing. Moreover, any information given by the defendant owing to lack of
information of his rights, should not be used for evidence or sentencing. Such an exclusionary
rule appears to be gaining ground in Europe (cf. for Germany BGHSt 38,214) while the U.S.
Supreme Court has expressed some second thoughts on its landmark Miranda decision of 1966
(384 US 436).
Secondly, the right to defence implies the right to have legal assistance, the information
of the defendant of this right before questioning, and the real availability of such an assistance, if
necessary, free of charge (Article 6, paragraph 3 b). Giving such an information, which may
interrupt the flow of the defendant's words approaching a confession, is unpopular among the
police, but necessary; it may even be legally required for the police to help an inexperienced or
foreign defendant to get access to counsel, e.g. by giving him the telephone number of the
attorney's emergency room (for Germany: cf. BGH StV 1996,187). Such rulings may seem to be
too subtle under conditions where a sufficient number of defence lawyers is still lacking. But it
is imperative that human rights are not only fixed on the paper but realised in practice.
Thirdly, in cases concerning serious crime, the management of evidence creates
enormous problems. This applies especially to witness evidence. What to do if a witness called
by defense counsel lives far away in a foreign country so that tracing his address, the often
cumbersome machinery of international legal cooperation and possibly his unwillingness to
appear in court threaten to prevent a trial or its conclusion "within reasonable time" (Article 6,
paragraph 1)?
To what extent may written statements be read, and which are, in this context, the precise
requirements of Article 6, paragraph 3d? In the field of drug trade and some other organised
crimes (trade in weapons, etc) Article 6, paragraph 3d, of the Convention is in the very centre of
the procedural problems: the eye-witness is frequently unavailable because the police
department (Ministry of Interior, etc.) refuses to reveal the identity of an undercover agent or a
private informant of the police. The reasons for such a refusal may be plausible: the life of the
witness may be in danger; further work of the anonymous witness in the drug scene may seem to
be indispensable in the interest of reconnaissance; or a promise of confidentiality shall be
honoured. Here, the situation of the judge is quite uncomfortable. He is no longer effectively
leading the procedure, being dependant on the willingness of the police to cooperate. Of course,
a policeman may testify in open court, explaining what his undercover colleague or the private
informer has told him. In as far as hearsay evidence is basically accepted, such a hearing is
possible; yet it does not meet fully the requirements of Article 6, paragraph 3d, as the defendant
and his counsel cannot directly examine the "real" witness (as different from the witness
appearing in court). Some new legislations, such as the Dutch, merit close screening and may
serve wholly or partly as an example for other countries; decisions of the Swiss Federal Court
are coping with the problem plausibly. The decisions of the European Court of Human Rights in
the Kostovski (1989) and Ldi (1992) cases emphasise in an impressive way the need to take
Article 6, paragraph 3d seriously. Many national courts, however, find loopholes in these
decisions and seem to have, rightly or wrongly, the impression that the European Court of
Human Rights has not yet fully arrived at drawing a clear borderline between the requirements
of examining the real witness and the needs of "combating serious crime effectively". In many
places, a formula is still in use according to which that special type of hearsay evidence may
suffice if additional evidence is available. But what is "additional" evidence? One which renders
the anonymous witness marginal? Or one which is relevant, however only in combination with
the outcome of the hearsay evidence? In the latter case, the hearsay evidence remains a decisive

63
factor for giving the verdict. The whole issue is so critical because the hitherto anonymous
witness is far from being a typically reliable witness. Private informants who seek a promise of
confidentiality may have a special interest in terms of gaining impunity from their own
prosecution; they frequently act without any control. The problem with special methods is that
they have, after being employed in combatting very serious crimes, the tendency to be gradually
accepted also in other types of criminal procedure, thus diluting clear principles of human rights
protection.
Fourth: sentencing. Capital punishment should have no place in Europe; the Council of
Europe should be very strict in emphasising that the 6th Protocol is now an integral part of the
European system of protecting human rights. The law requires from citizens that they respect
human life under all circumstances. The credibility of this requirement is undermined if the state
intentionally takes life itself. Moreover, the availability of capital punishment changes the ethics
and self-definition of the judge, who should always be conscious that he may err and that
therefore, even in the case of the last instance, some remedies are available in case such an error
is detected. Capital punishment is based on a judicial self-definition that aims at infallibility.
Sentencing in the field of serious crime implies a lot of crucial problems. The longer the
prison sentence, the less definable the criteria: who will argue that a ten-years sentence is more
appropriate than an eight-years punishment? With less serious offences, a difference of two
years is of fundamental importance. The concern about the threat of organised crime must not
obscure the fact that, with a view to individual guilt, there are many graduations, and that most
of the participants of organised crime who are caught are of the lower echelons. How should
we assess the individual guilt of a Columbian women who imports, knowingly in the service of
an organised group, three kilograms of cocaine, hoping that the salary promised to her might
improve the desperate situation of her family? She may claim that she was afraid of the reactions
of the group in the case of her defection; how do we prove that this defence is wrong. Further: is
it really necessary to react with very long prison sentences against those, who participate at the
lower or medium levels in the organised international smuggle of stolen cars? The emerging
European consensus on principles of sentencing (prison only as a punishment of last resort;
reduction of length of prison sentences; assessment of individual guilt; avoidance of disruptive
effects of the punishment as far as possible) should be effective also when perpetrators of
serious, organised offences are sentenced. It must be avoided that the high level of prison
sentences for dealers of hard drugs has a general impact on the sentencing system in the sense
that the level of severity will increase generally.

64

Written communication by Mr Shlomo Giora SHOHAM2, Professor of Law,

Tel Aviv University, Tel Aviv
The situational aspects of crime prevention: the theoretical and philosophical foundations
The differences between the causal models of crime and the situational ones have
already been highlighted by Sutherland who said,
"Scientific explanations of criminal behaviour may be stated either in terms of the processes
which are operating at the moment of the occurrence of the crime or in terms of the processes
operating in the earlier history of the criminal. In the first case, the explanation may be called
'mechanistic', 'situational' or 'dynamic', in the second, 'historical' or 'genetic'... Criminological
explanations of the mechanistic type have thus far been notably unsuccessful, perhaps largely
because they have been formulated in connection with the attempt to isolate personal and social
pathologies among criminals. Work from this point of view has, at best, resulted in the
conclusion that the immediate determinants of criminal behaviour lie in the person-situation
complex."3
In the present paper, I would like to highlight the interactional model of situational
violence, examine how violence may be predicted, and discuss possible modes of its prevention.
There is indeed a link between predisposing factors on the biological, personal and social levels
and the situational interaction, but the predisposition and situational aspects express themselves
in different dynamics.
Predisposition to violence, as gleaned from various studies, may eventually be expressed
as probability profiles, which would estimate the likelihood of an individual, displaying a given
set of characteristics, to commit a violent act. However, the actual sequence of events
precipitating the violence would in some cases take the form of a causal chain of interaction
between criminal and victim. This sequential pattern could be ignited on the spot by exposure to
a compromising situation; e.g., the ever-loving wife and her lover in the husbands nuptial bed.
Words hurled with obvious intent to offend would have the effect of switching Egos action
(Ego being defined as the acting individual, plus his cognitive perceptions, and Alter as how the
other in the dyadic interaction is perceived by Ego) to a different cognitive level, i.e., he would
"see red". Other expressions may have this triggering effect on Ego because he defines them
subjectively as humiliating, due to peculiarities of his own personality. The word "bugger"
thrown at a latent homosexual or an expression questioning the virility of a man who has
anxieties about his potency, may have the same effect. The conventional form of an offensive
gesture, such as the twisting of a moustache and the emission of a snore in the presence of a
devout Moslem, may have an even stronger escalatory effect. Such an exchange of words and
gestures would not trigger immediate arousal to another cognitive level, but depending on the
reaction, may gradually lead to the "point of no return", the threshold of violence.
The interaction between the perpetrator of violence and the victim operates as sequential
cycles, with each situational cycle limiting the rational choice of each actor, so that in the end,
the violent act erupts as an almost indeterministic sequence with very little rational choice. This,
of course, assumes that each actor in the dyadic interaction picks up the cue which leads him to
2

Mr Shoham was not able to attend the Seminar.

E. H. Sutherland and D. R. Cressey, Principles of Criminology, 7th ed. (Philadelphia: J. B. Lippincott, 1966).

65
another limitation of rational choice and of violence-precipitating action. As we shall show,
there could be a violence-non-precipitating decision effected by the rational choice of one of the
actors so that the dans macabre situational sequence would be pushed away from the violent
eruption.
THE SITUATIONAL MODEL
The structure of the relationships, which I hypothesise as determining acts of violence,
would be as follows:
1.
2.
3.
4.
5.

Alter transmits to Ego a pattern of communication, which is overtly or latently

provoking;
The narrowing of the range of non-violent reaction leads Ego swiftly and inexorably to a
limitation of rational choice and to a point of no return where the violent option
becomes highly probable;
In the course of the interaction, Ego makes an outward commitment to Alter or a
relevant other, to commit the act of violence. This would further accelerate the
generation of tension, and rational choice of violence-precipitating actions;
The violent act would be the cathartic release of this tension;
It would be followed by a sense of fulfilment or homeostatic contentedness.

1. The provoking communication

The offender may be exposed to words, gestures or actions, which are culturally defined as
provoking; e.g., gestures of obscenity which are performed by different fingers in different
cultures. The communication pattern may also be provoking within the specific context of
interaction between the offender and the victim, such as reference to some very touchy personal
episodes or vulnerable character traits known only or primarily to the partner in the dyad.
Finally, there may be words or acts neutral to Alter but interpreted as offensive by Ego. This
could occur in confrontation of individuals from different cultures. We admit that a violent
reaction, or one that may further accelerate the violent interchange, occurs where sublimation
has not been possible in a small percentage of cases only; but these are the ones which we are
studying. We shall first dwell on the types of non-violent reactions when the rational choice
would be of violence-non-precipitating actions.
2. The alternatives to violent reactions
As I have assumed that the point of no return involves the narrowing of the range of reactions
to those which lead to a rational choice towards violence, I may proceed by eliminating the nonviolent alternative choices. It is evident that the dynamics of the interaction are not onedirectional towards violence, and the various forms of perception are not mutually exclusive.
One form is the twisting of the incoming perception to fit Egos previously internalised
stances, which can be analysed in the following categories:
a)

Selective perception, which is not a "face-saving" mechanism, as described by

Goffman, but a non-awareness of the provoking communication. This may happen when
the communication seems so painful that its perception is evaded in self-defence;

66
b)

The differentiation process is another technique for utilising some demographic or

social stratification characteristics of the provoker so as to avoid taking offence, such as
"he is only a child", "what can you expect of a woman?", "these bums just have to be
lewd and dirty-mouthed", or "I shall not lower myself to his level by answering him".
The best illustration of this premise is in O. Henrys The Coming-out of Maggie, where
Dempsey Donovan, the Irishman, finds out that his opponent, OSullivan, is nothing but
a Dago, to use O. Henrys terminology, in disguise: "and then Dempsey looked at
OSullivan without anger, as one looks at a stray dog, and nodded his head in the
direction of the door. 'The back stairs, Guiseppi,' he said, briefly. 'Somebodyll pitch
your hat down after you'". This rational choice process might also guard against taking
offence even if the provoker is in a position of authority. Elia Kazans America, America
and the numerous instances depicted in the novels of Kazantzakis describe the Greek as
disregarding the insults hurled at him, since a barbaric Turk could never hurt the serene
inner dignity of a Greek;

c)

Finally, there are techniques for explaining away provoking behaviour. A prostitute
interviewed in one of my previous studies4 related how her boyfriend had had sexual
intercourse with a new girl in her presence. She did not mind, she said, because "The
new girl had to be 'broken in' for business", while she herself was her pimps only true
love.

The situational aspects of violence prevention, when applied to provoking

communication, may be directed in mass immigration countries towards the media, law
enforcement agencies, and social services. This should highlight the facts that provoking
communications are culture bound, and that acceptable communication in one culture may be
very offensive in another. As for the outward commitment, social services as well as law
enforcement officers should be alerted to the fact that any outward commitment in the domestic
scene between the members of tension-laden family is bound to exacerbate the possibility of
violence; threats, displays of arms, positive verbal undertaking of violence should not be taken
lightly, since any outward commitment fixates one of the parties on a violence-precipitating
course, which becomes more and more difficult to cut. Hence, any threat within the domestic
scene should be treated as a violence-escalating outward commitment, which might have fatal
consequences, and treated appropriately by the social services and law enforcement agencies.
THE CYCLES OF VIOLENCE
The various types of interaction described above can be analysed as cycles of stimulusresponse. A chain of cycles accelerates towards violence in the form of a positive feedback cycle
which culminates in the blowing of a fuse, i.e., the violent act. When the interaction does not end
in violence, the interchange may be likened to a negative feedback cycle. It should be pointed
out that such acts may be further analysed into meaningful typologies, and the interaction can be
related both to the involved and the passive actors. The following paradigm may be a useful
framework for a typology of the differential perception of stimuli and the corresponding
reactions towards violence, for each given cycle.
Figure 1.Differential perceptions and reactions towards violence or non-violence for each cycle
of interaction.

Shlomo G. Shoham, Social Stigma and Prostitution, British Journal of Criminology (1968).

67
The axes of the paradigm represent the classical stimulus-response relationship. Stimuli
may be either neutral or intentional. It may be pointed out that even at this stage the neutral
stimulus is not detached from the probable reaction. The fact that a neutral stimulus appears in
our paradigm of violence suggests the possibility that the perception of this stimulus might not
be at all neutral. In other words, the stimulus specified as neutral is expected not to be perceived
as such by the violence-prone, reacting Alter.
The interrelationship between the stimulus and its perception by Alter may be described
by the four property spaces around the intersection of the axes. Of these, only two are relevant to
our present context. These are the violent-realistic perception of the stimulus and the illusiveviolent one. These may be arranged at the extreme planes of a space in a scalogram, utilising the
Guttman-Lingol technique.
The main vectors portray the nature of stimuli as related to the perception of these
stimuli. A positive stimulus would mean that Alter relates to Ego in a cordial or any other
culturally approved manner. The positive perception of these positive stimuli would not, of
course, result in violence, e.g., neighbourly exchanges of "good morning" and ritualistic
predictions of the weather. If the stimulus is negative and the perception of it by Alter is either
neutral or positive, Alter performs some perceptual juggling, which amounts to explaining away
the offensive nature of the stimulus, e.g., when a gracious lady mutters to herself that this coarse
and vulgar type cannot possibly hurt her feelings. A positive stimulus when perceived as violent,
would be related to an illusive perception by Ego of Alters intention, e.g., a benign smile by a
lad at a passing girl may be perceived by her as an offensive leer which calls for a violent
reaction.
The predisposition towards violence can be measured by some standard instruments for
perceptual twisting, e.g., the Petrie Augmentor and Reducer5. Another possibility may be the
negative perception of a negative, i.e., offensive stimulus. This is, of course, the realistic
perception of a fist in the eye as what it is meant to be. It should be stressed that the decision on
the nature of a stimulus, as well as on the nature of a response to a stimulus, with a positive,
neutral or negative grading, permits a wide range of stimuli-ranking vis--vis perceptual
ranking. The dichotomy of violent and non-violent solutions is clearly apparent in our scheme,
so that the cycle of interaction which constitutes an acceleration towards a violent solution is
only displayed in the lower half of our paradigm.
Other components which may be correlated with our main axes are as follows: the
magnitude of the stimuli would be ranked on the stimuli axis, according to an objective violence
prone stimuli typology. The form of the stimulus could be physical (i.e., actual assault or other
physical contact performed by Alter on Ego), gesture, mimicry, or other stances which are
culturally defined as offensive, and verbal insults or provocation. These forms of stimuli cannot
be ranked, because the magnitude for the first form might be the amount of force used as related
to the physical perception of pain by Ego. The second may be related to a typology of gestures
as related to the magnitude of obscenity or offensiveness as defined in a given culture. The third,
verbal provocation, could be ranked not only by the offensive content of the words, but also by
their pitch and volume.

A. Petrie, Individuality in Pain and Suffering (Chicago: University of Chicago Press, 1968).

68
The variables which relate to the perception axis are linked to the twisting of incoming
perception, so that it better fits Egos previous normative internalisation6. This involves the
various defence mechanisms, differentiation techniques and other processes of "explainingaway", which would influence Egos rational choice.
Figure 2.The dyadic interaction process, analyzed in terms of stimulus, perception, definition of
the situation and response.
THE ESCALATION
The research model proposes to analyse the different steps of the rational choice of
violence-precipitating actions within the context of the interrelationships among the stimuli by
Ego, the perception of it by Alter, and Egos reaction. This model synchronises the various
cycles into a continuous chain.
The vertical line represents the objective ranking of stimuli and responses (from neutral
to negative) according to the average severity of the provocation they present to individuals in a
given representative sample of the population. On this line, the first stimulus at the bottom of the
line will be the trigger, and the last response at the top, the violent outbreak.
The model represents the interaction between Ego and Alter. The spiral curve delineates
the dyadic process of interaction. Each loop stands for one cycle. Ego perceives the stimulus by
Alter, and Egos response becomes the stimulus for Alters rational choice in the second cycle,
which Alter is supposed to perceive and to which he is supposed to react in turn. In the case of
escalation towards violence, the distance between the subjective perception and the objectively
ranked stimulus increases with each cycle. For analytical purposes the process should be
differentiated into two dimensions, represented in our model by the spiral curve and its shadow.
The first dimension, the spiral line itself, is the process of perception of the stimulus. This
perception is deepened, interwoven with, and at times is perverted by, the persons background
and personality, which constitute the second dimension - the shadow of the line. The outcome of
these two dimensions is the definition of the situation which comprises the actors perception of
the stimulus, the various factors which tend to augment or reduce the provocative meaning of
the stimulus, and the sensitivities described previously when the actor relates the stimuli to
himself. This definition of the situation includes also the individual propensity to react violently
as measured by some biological factors, e.g., the amount of alcohol in the individuals blood or a
hypoglycemic condition, the degree of anxiety, fear and central nervous system excitation, or
other aggressive traits which may be measured by various personality inventories and projective
techniques.
The definition, as used here, of the situation is described by MacIver7 as a process of
"dynamic assessment" which includes three stages:
1.

A choice between alternatives which is made by the actor, based on his salient values
and psychological needs in the given situation;

Shlomo G. Shoham, Society and the Absurd (Oxford: Basil Blackwell Ltd.; New York: Springers, 1974).

R. MacIver, Subjective Meaning in Social Situations, in: Sociological Theory, 2nd ed. L. Coser & B. Rosenberg, eds. (New York: Macmillan,
1964), 252-7.

69
2.

With the decision, certain external factors are selectively rearranged and given subjective
significance. This dynamic assessment brings the external world selectively into the
subjective realm;

3.

Finally all the factors which belong to different orders of reality are determining
conscious behaviour and are brought into a single order. The single order is the
definition of the situation directing and determining the response of the actor, which
closes the cycle.

The responses are also scaled objectively for severity in the same manner in which we
have ranked the stimuli. The responses may also be physical, verbal or gesticulative. Their
ranking is carried out in relation to their cultural significance and legal severity as determined by
the courts. It may be assumed that the stimulus-response relationship could be predicted.
Deviations from this prediction may then be used as a hypothetical indicator for distorted
perception and an illusory definition of the situation by the dramatis personae of the situational
dyad of violence.
THE CYCLES OF INTERACTION IN VIOLENCE
In this section I shall deal with the situational aspects of violence, suggesting that a
violent act may be best explained and understood by regarding the act as an escalating series of
stimulus-response interactions between two persons. The basic unit of such a series is the cycle
which is described and explained. A scale for measuring the intensity of the cycle may be
constructed, and it could be adapted to different cultures. The scale is used to verify the
suggested hypotheses that the intensity of stimulus decides the form taken by the interaction, and
that the escalation towards violence occurs more rapidly when the provocative intensity is high.
The study of violence as a situational phenomenon contained in an interactional matrix
of Alter and Ego has several important connotations. The first, obviously, is to add a new
dimension to our understanding of violent acts. Second, it has important legal connotations. If a
violent act is accepted as the inevitable result of a series of escalating stimulus-response cycles
leading to a "point of no return", the overall importance of mens rea and criminal responsibility,
as conceived by the criminal law, may be left open to doubt, as the question whether it is Ego or
Alter who inflicts the final (legally-defined) violent blow is seen to be solely a result of the
structure of the situation. Third, there are preventive connotations. Once the perspective is
placed on the situational aspect, the position of contributory factors (such as availability of
weapons, use of alcohol, etc.) becomes clear, and preventive policies with regard to these factors
may be implemented.
The main hypotheses are that the outbreak of violence is the result of a series of
interactions, called cycles, between Ego and Alter. Each cycle consists of stimulus and response,
and given favourable circumstances, will effect a new cycle with a higher level of provocation
and consequent reaction, until a "point of no return" is reached, after which the eventual eruption
of violence is inevitable.
The following points are relevant to the primary description of our premise.
1.

Subjective perception of stimulus: the stimulus may be either positive (provocative) or

negative (non-provocative). The perception may be either realistic or non-realistic.

70
The manner of perception of the stimulus may affect:
2.

corrective techniques, leading either to escalation of violence (in the case where a
stimulus is perceived, realistically or non-realistically, as provocative)
or away from violence (in the case where the stimulus is perceived, realistically or nonrealistically, as non-provocative)8;

3.

form taken by the cycles: in the event of violence, this is seen as a causal chain of
interaction between Ego and Alter.
The form of the cycles will be effected to varying degrees by:

4.

Content of the cycle: this involves the degree of provocation, objective and perceived,
contained in the stimulus. The provocation may take the form of an action, gesture or
verbal expression, and may have varying degrees of effect, in the light of specific
cultural or personal connotations.

The interactional nature of these four factors, and their mutual effect on the nature of the
cycle, can be represented diagramatically, as in figure 3.
Figure 3.
Negative Response
Non-violent
culturally approved interaction

Conformity based on
non-violent twisting of perception

Negative Stimulus

Positive Stimulus

Illusive perception towards

a violent solution

Realistic perception towards

a violent solution

Positive Response
The study of the actual process of eruption of the violent act does not take into
consideration the predisposition to violence as measured by biological and personality variables.
We feel that the interactional dynamics of violence have sufficient independent processes to
warrant their separate treatment.
The study may concentrate on a stimulus-response interaction, and examine the nature of
the provocation, the nature of the reaction, and the relationship between the two factors. These
three components constitute one cycle, and each cycle acts as stimulus to the subsequent one.

E. Goffman, Interaction Ritual: Essays in Face-to-Face Behaviour (Chicago: Aldine, 1967).

71
A full-scale study of violence should include not only a study of the escalatory processes
leading towards an eruption of violence (that is, verbal communication, gestures, and mutually
understood symbols), but also a study of the factors which are linked to the avoidance of
violence. The non-violent sequel to a tension laden interaction may be explained using the
cognitive dissonance and balance models in social psychology9. It is feasible that homeostatic
and congruity mechanisms may induce the actors to solve their dispute in a non-violent way.
The present study, however, confines itself only to those interactions which escalate towards
violence.
Similarly, many violent situations involve more than the two principal actors. Observers,
both non-participant and participant, often play a part, even to the extent of an all-out brawl. Our
theoretical model, however, involves the conception of violence as a dyadic type of interaction
between Ego and Alter, or two groups in a dyadic interrelationship. This interaction takes the
form of cycles, and our hypotheses are based on the assumption that the interaction towards
violence takes the form of an escalating series of stimulus-response cycles as follows:
1.

The nature of the response is in direct relation to both the form and content of the nature
of the stimulus, so that the possible number of responses, and hence cycles arising from a
specific stimulus, is limited;

2.

The intensity of the interaction is inversely proportional to the number of cycles leading
towards violence: that is, the lower the intensity of the interaction, the greater the number
of cycles leading to violence, and the higher the intensity, the lower the number of cycles
leading to violence.

Discussion
This study is only the beginning of the empirical verification of the intricate and vast
field of the situational aspects of violence. I have established that the situational interaction of
violence may indeed be quantified and measured, and have devised a measuring instrument. The
cyclic conception of the escalation towards violence has been shown to be tenable, and we have
also demonstrated that the escalation towards violence is related to the perceived intensity of the
initial provocation. Finally, I have shown that there is a distinct relationship between the number
of cycles, the intensity of the interaction, and the escalation towards violence. When the
intensity is high, the number of cycles is less and the duration of the interaction is shorter. Per
contra, when the intensity is low, the number of cycles is larger and the duration of interaction
longer. We realise that our measures may be crude, and that their application to different cultural
settings may involve the design of new scales. However, the first step in the investigation of the
situational aspects of violence has been made, and any further contemplated research may do
well to take our study as stepping-stone.
As I have shown, the situational aspects of violence may be quantified and predicted and
situational crime prevention may be geared towards the aggressor-victim relationship when the
violent person is a public official, a public servant or a law enforcement officer. In these cases,
the public official and officer are, so to speak, captive audiences and we could train them not
to react to violence-precipitating cues by the potential victim. Training programs may be
envisaged for police officers and public officials as well as prison officers, labor exchange
personnel, health personnel, especially in geriatric and mental hospitals, as well as social
9

Roger William Brown, The Principle of Consistency, in: Social Psychology (New York: Free Press, 1965), chapter 12.

72
workers in underprivileged areas. In Israel, 35% of violence cases occur within the situational
interaction of public officer and a client who becomes a potential violence victim or
perpetrator10.
The essence of situational crime prevention in our context is to stress different aspects
than those that have hitherto been highlighted. First, any threats within a domestic arena must be
given full attention by law enforcement agencies, since any threat within the context of the
pressure cooker of emotions within the family could lead to and accelerate the slide towards
violence and murder. A special unit for domestic relationships should be established in
conjunction with the womens shelters, and any tell-tale signs of violence-escalating and
precipitating behaviour within the family should be monitored. The idea is that any violenceprecipitating actions which could lead to other cycles of violence-escalating interaction should
be cut by police intervention or removal of one of the participants before the escalation leads to
violence. As for the services, some training manuals should be structured and tested which show
violence-precipitating actions, gestures, and words. Then serious attention should be given to
adjust the verbal and action cues to the cycles of violence and to find ways and means to cut the
escalation towards violence and to enhance violence-non-precipitating alternatives. The
programs should, of course, be different for police officers, social workers, school officials,
mental care facility personnel, retirement institution personnel, and for the staff of all other total
institutions in which patient-worker relationships could lead to violence. It is suggested that the
various programs for situational violence prevention should be adapted to various cultures, since
cues, interaction, words and gestures have different meanings and connotations in different
cultures.

10

Israeli Ministry of Police Reports, 1995-96.

73

Interventions concerning theme 1.i.

Mr Gavril-Josif CHIUZBAIAN
At the end of the 20th century, respect for human rights has risen to the status of a
religion and organised crime has begun to pose a serious threat to democracy.
The states of Europe have begun to create a genuine European legal area, in which the
Council of Europe and the European Union play a major role in safeguarding and promoting the
values they share. National authorities and domestic courts would benefit from knowing more
about the abundant and well-balanced decisions of the Court and Commission. I will therefore
reiterate my earlier proposal concerning the establishment of an Institute of European Law for
the benefit of all the countries of central and eastern Europe. Romania is offering to provide the
seat for such an institute.
Romania is currently carrying out a programme of reform and modernisation of its
prison system, with three main aims: to establish an institutional set of standards, make its prison
system more humane and modernise the prisons themselves thanks to technical and financial
subsidies.
It seems obvious that it is impossible to achieve these aims without first ensuring that
they are understood and have the backing of the entire government, of all the political parties
and of society at large. It is with this in mind that the Ministry of Justice and the General
Directorate for the prison system are endeavouring to open up to the media and co-operate with
both Romanian and foreign non-governmental organisations. Finally, I would just like to
mention that a prison-staff training programme has been set up in conjunction with
"International Penal Reform", the Dutch Helsinki Committee, and Professors Turkens and King,
well-known specialists in criminology.

Mr Alessandro ATTANASIO
The purpose of this intervention is to focus on the practical implications of the right to a
fair trial with regard to the situation in Italy, where many lawyers express their concerns about
this fundamental right being today jeopardized.
We will address three main violations of human rights in relation with the anti-mafia
struggle engaged by the State in order to combat "organised crime".
The first area of human rights violation concerns the passage of the accused - both
innocent and guilty - through the justice system. Under Italian law, for investigations to be
carried out, there must be, first of all, a crime. Investigators are then obliged to collect evidence
of involvement in such crime. What there ought not to be is a general suspicious attitude towards
a specific person, family or area followed by investigations which then seek to establish links
and complicity in whatever crimes occur a posteriori, for this leads to thinking that a person,
family or area must be - at some point - guilty of something.
A second area of human rights violation concerns the position of the civil society in
relation to people who, after being involved in mafia crimes, decide to collaborate with the State

74
("pentiti"), therefore enjoying protection by the same. Before the mass-collaboration
phenomenon, criminals could confess to their own crimes and those of their direct accomplices;
in this sense, criminals who turned witnesses could give only disinterested evidence. But the
gradual introduction of vested plea-bargains whereby people who committed crimes have an
interest in "naming" other "criminals" in order to remain free, has resulted in a vast population of
"ex-criminals" who are only formally supervised and who, in many cases are actually still in a
position to engage in more criminal activities. By a tangled logic which seeks to place the
"pentito" lifestyle above the safety and welfare of ordinary citizens, the State is, in fact, the
underwriter of such criminal activities and breaches its obligation to protect its own citizens.
The third area of concern relates to the interpretation of the Law qua Law. In this respect
a mention can be made to infliction of pre-trial custody in cases which do not fall within the
framework provided for by the laws ("danger to public safety", "danger of tampering with
evidence" and principle of proportionality between the measure, on the one hand, and the gravity
of the alleged crime and the sentence likely to be imposed, on the other).

Mr Mario CHIAVARIO
I should like to begin by quoting paragraph 17 of the recent Recommendation R (96) 8 of
the Committee of Ministers, which states that "rules governing evidence should be designed in
such a manner as to pay due attention to the requirements of fighting against economic and
organised crime". I have already addressed this issue in my written report, in the hope that the
legal mind will analyse the problem in such a way that certain permanent guarantees, such as the
right to a defence, do not become a pretext for putting obstacles in the way of legitimate efforts
to obtain evidence of offences.
I understand the reservations and concerns expressed on this subject, both directly and
indirectly, by Mr Kolesr, Mr Horstkotte and Mr Attanasio. I share several of these reservations
and concerns. However, our attitude to the matter should be both cautious and positive. It is in
no way a question of giving up an approach focused on the rule of law and human rights as
inalienable personal guarantees. Rather, we must free ourselves from a static and constricting
view of guarantees and develop a more dynamic outlook.
The same applies to Article 6, paragraph 3.d, of the Convention, rightly considered as
one of the pillars of the principle of adversarial proceedings. Should it be interpreted without
taking due account of a context in which criminal organisations increasingly have the means to
intimidate witnesses and tamper with evidence? Should it be interpreted as a clause which
absolutely prohibits the use of the resources offered by new technology in order to combat such
abuses and more generally overcome certain drawbacks? The cost would be too great, as the
possibility, for example, of hearing testimony without the witness appearing in court seems
desirable - and sometimes necessary - in certain circumstances: not just to guarantee the safety
of "repentant" criminals but also to shield children or victims of sexual abuse from fresh
psychological stress arising from direct contact with their attackers. From that angle, the right to
adversarial proceedings requires adjustment in respect of witnesses.
Recent Italian legislation seems to offer a fairly good illustration of that need for
adjustment. Article 147bis, added to the provisions of the Code of Criminal Procedure, provides
that the examination of witnesses not present in court must fulfil the conditions concerning the

75
visibility of persons summoned as witnesses and the context. In any case, the first signs of a
response, albeit a partial one, to this new challenge for the proper administration of justice in
Italy confirm that it is a sensitive area.

Mr George ANTONIU
In Romania, the transition to democracy has been accompanied by a resurgence of crime
that the population cannot accept as the price to be paid for its integration into Europe. This
seminar should provide solutions which can help Romania to find effective methods of dealing
with the problem by means of legislation.
The new methods used in organised crime must be countered by new judicial resources.
Traditional legal methods are by no means capable of dealing with crime. With this in mind, the
European Convention on Human Rights should be studied with great attention.

Mr Aldo GRASSI
The fight against organized crime has led the Italian State to introduce some important
modifications of its laws, including - among others - two new crimes which made possible to
consider as independent indictable offences such crimes as mafia-type criminal association
(more severely punished than ordinary criminal association) and terroristic criminal association.
In addition, a "reward legislation" has been introduced, considerably reducing sentences and
allowing for favourable prison treatment for those (pentiti) who detach themselves from the
criminal organization and decide to cooperate with the State.
The pentiti have made it possible to identify a number of criminal associations as well as
many criminals belonging to the same and quite a considerable amount of committed crimes.
Their declarations, together with the principle of the compulsory nature of penal action
(entailing that even those who cooperate with the judicial authorithies must be tried for all the
offences committed by them), have led to the need to take proceedings simultaneously against a
large number of defendants and has given rise to "maxi trials" of hundreds of people accused
both of associative and other crimes.
Although these massive trials derived from the necessity to combat organized crime, the
phenomenon of "maxi trials" is not necessarily linked to organized crime. Experience in the
administration of justice leads to believe that the so-called logic of thinking in large numbers
will cause the dangers and the risks of these large scale enquiries to outlive the specific
phenomena which gave rise to them (e.g. massacres, railway or sea disasters where the
damaging effects involve a very large number of victims, and again mass illegality phenomena
like petroleum smuggling or traffic in medicine price-tags). Such dangers and risks concern
specifically the role of the public prosecutor: there must inevitably be a limit to the attention that
judges can pay to their requests. Moreover, the public prosecutor will hardly be able to be
acquainted with all the documents regarding the proceedings, while the exceptional duration of
the debates makes it impossible to be present in person to every single hearing.
Coming to a conclusion, my personal experience as a member and president in charge of
the Court of one of the maxi trials held in Italy, leads me to express the fervent hope that in the

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future the recourse to maxi investigations and debates for the simultaneous trial of hundreds of
people will be kept to a minimum, for the price to be paid in terms of money, hard work and risk
is not necessarily compensated by the validity and usefulness of the results.

Mr Jens MEYER-LADEWIG
While it is true that there is a considerable increase of serious crime and a correspondent
pressure from the public opinion on the States to adopt draconian penal measures, it is also true
that political systems based on democratic principles must have the force to resist the temptation
to take such measures which jeopardize the protection of human rights.
This is obviously an easier task to perform if the country can count on legal provisions
estabilishing guarantees for the protection of human rights, especially at constitutional level,
where it is more difficult to introduce modifications. International cooperation is also paramount
in this respect, the European Convention on Human Rights having particularly proved to be very
efficient. It must be emphasized, however, that an international system of protection of human
rights cannot work properly if there are no reliable mechanisms and instruments within the
single States. When politicians are faced with public desire for the strong arm of the State, it is
also easier to resist if there exists a judiciary system that is in a position to combat serious crime
in an efficient way.
A second important point is that in public discussion as well as in legislation it is not
only the rights of the offenders that have to be protected, but also the rights of the victims. I feel
that this is a fundamental point for public discussion, because people do not believe that they can
safely live in a country if there is not sufficient protection for the victims as well.
Finally, it must be said that attention must now focus on implementation. The legal
systems of most European countries, in fact, are in themselves sufficient to both combat crimes
and protect human rights. The problem is therefore a better implementation of norms which
already exist.

Mr Rgis de GOUTTES
May I remind you of the example of the abolition of the death penalty in France:
In October 1981, at the initiative of the Minister for Justice, Robert Badinter, the French
Parliament abolished the death penalty. At that time a referendum would probably have resulted
in retention of the death penalty. The Minister for Justice therefore considered it the duty of
Parliament to take the decision in a matter on which public opinion was not ready. I refer you to
Mr Pierre-Henri Imbert's remarks on this point.
This courageous decision changed France's international image and marked the end of
her isolation on this matter, particularly in the Council of Europe. It also signalled the end of the
serious problems France encountered when it requested the extradition of criminals from
countries which had abolished the death penalty: such countries required guarantees that the
extraditable person would not be executed, which gave rise to complex problems from the
standpoint of the French Constitution. It became possible to discuss other problems which had

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previously been overshadowed, eg thorough reform of the criminal justice system. Moreover,
the abolition of the death penalty did not have the consequences which it was feared it would
have on crime rates.
Now, due to the media coverage given to violent crime, and particularly to crime
affecting children, the debate has been reopened and there is pressure in some quarters in France
for the death penalty to be restored.
However, the French Government, which, as you know, ratified Protocol No. 6 of the
European Convention on Human Rights in 1986, has successfully withstood this pressure.

Mr Robert FICO
There are several special circumstances which need to be taken into consideration when
dealing with the fight against organized crime in post-communist countries and, particularly,
Slovakia. Firstly, there are serious difficulties in determining the extent of organized crime: the
police and the State do not provide the public with data or indications of relevant measures to be
adopted. Secondly, the police is characterized by a high level of corruption. Thirdly, the State is
incapable to ensure protection not only to victims and witnesses, but also to judges and
prosecutors. In the fourth place, the adoption, in 1994, of a law against money laundering has
not proved as effective as it was hoped. Finally, Slovakia has adopted measures providing
offenders with a rather high standard of protection, which have generally been interpreted by the
public opinion as a weakness of the State in the fight against crime.
All the aspects mentioned above have resulted in the citizens loosing confidence in the
State, which is regarded as not capable to deal with organized crime and protect the civil society.
In order to reintroduce this confidence, cooperation with the other post-communist countries and
the Council of Europe is absolutely necessary.

Mr Loukis LOUCAIDES
Our topic of today is the compatibility of human rights with combatting serious crime. It
is clear that the European Convention on Human Rights makes no distinction between serious
crime and other types of crimes; you cannot have different standards in order to help the effort to
combat crime. At the same time, it is not possible to have an effective campaign against crime, if
there is a strict compliance to the Convention.
There has been an effort to adjust the demands of the Convention in order to combat
crime effectively. Personally, I express my concern, because this may eventually lead to the
undermining of the credibility of the Convention. The acceptance of compromises and solutions,
which are not in strict compliance with the Convention, will open the door to the collapse of the
values, which are enshrined in the Convention.
What else can be done to fight effectively against crime, while respecting the Convention
at the same time? I think the solution is given by article 15 of the Convention itself. This article
permits any High Contracting Party to take measures derogating from its obligations under the
Convention in time of war or other public emergency. In my opinion, a situation of serious and

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organised criminal activities of the Mafia type (killing of judges and police officers, threatening
politicians, etc.) could be considered as public emergency. It is better to have a clear solution
under the Convention and to derogate from the obligations, such as those under articles 5 and 6,
instead of finding solutions outside the scope of article 15, which will undermine the efficiency
and effectiveness of the Convention. However, I have personnally noted, that there exists an
understandable reluctance of applying this article by the Member states, for political reasons.

Mrs Kathleen MAHONEY

Guided by the principles of equality and the right to equal protection and benefit of the
law, it seems to me that victims of crime must be entitled to have their human rights respected to
the same degree as that of the offender. It has to be noticed that serious crimes of a particular
nature are unique to certain groups in society, such as women and children: these crimes need to
be considered as serious as the ones committed against the dominant majority. Therefore, a first
way for the legal system to combat efficiently serious crime is to ensure that it is an inclusive
concept, otherwise some forms of serious crime could go unnoticed. Examples of crimes which
may fall under this category are: rape, commercial trafficking in women and children, domestic
violence and child pornography.
I would like to share with you some suggestions that are being made in this context both
in Canada and in the United States. In the area of rape, for example, the whole issue of consent
is being reexamined to see if it is relevant at all to the crime, particularly in areas of position of
trust between the victim and the perpetrator, and so are the issues related to age and consent
given by third parties to sexual assault. Human rights concerns suggested considerations with
respect to children and victims of domestic violence giving their evidence safely without
experiencing extreme trauma or threats to future safety. Concerns have been voiced as well
regarding the existence of provisions to warn victims with respect to the release of their
offenders from prison. In addition, it has been noticed that scarce efforts are made in general to
document crimes against children, and the consequent lack of data entails that there is no official
recognition of this as a serious crime. Furthermore, international cooperation has not succeeded
so far in reaching an agreement on what is to be meant by "child" and without such a definition
it is very difficult to design legal measures that will assist in the protection of the same, even for
the purposes of commercial and sexual exploitation. Finally, very few efforts seem to be
directed by international trade agreements to address the problem of the billions of dollars in
trade of both child pornography and women and children: these serious crimes lack therefore of
the protection that would be available through the sophisticated mechanisms which have been
developed by the drafters of such agreements to prevent other forms of crime.

Ms Lynda HEIMS
I would like to return to the topic of the collaboration programme in Italy, which was
ealier presented by Mr Attanasio. I will continue by talking about what we have called the "fluid
interpretation" of the law and how it pertains to pre-trial custody. Under Italian law, there are
only two criteria for pre-trial custody, namely "danger to public safety" and "danger of
tampering with evidence". Between jail and freedom there is a spectrum of other alternatives,
such as home arrest or reporting regularly to the police. Every measure must, by law, be
proportionate to the gravity of the alleged crime and projected possible sentence. This is

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obviously in contrast with the use which has been made of pre-trial custody in several cases
where guilt by fragile association has been utilized as a pretext for the pursuit of careerism or the
persecution of political opponents on the part of law workers.
In Italy it is perilously easy to become linked to organized crime, because the link is in
the eye of the beholder, namely the state instrumentalities, police with overactive imagination,
ambitious crime-busters and politicians looking for an easy vehicle. What is always last on the
agenda is the protection of human rights. Errors in criminal investigation are often predictated
on the assumption that there is something peculiarly Sicilian about the phenomenon of
organized crime, yet it must be said that organized crime is precisely that, whether in Sicily or
other parts of the world.
The extinction of organized crime is an issue to which the whole community aspires. But
this is tangential to the emergent problems of the erosion of human rights by a well-organized
and equipped state: we must bear in mind that the construction of immanent social collapse has
been a common element in paving the way for repressive measures to be imposed on whole
communities.
Moving to the sequence of the trial itself, the lawyers are extremely restricted in the
exercise of their duties. The examination of evidence is traditionally conducted in the presence
of the accused, but when we consider the cross- examination of collaborants, we find that they
are sometimes not even present and that, when they are, they do not speak to the court, but they
face the magistrate screened by a barrier of police even when answering lawyers' questions.
Furthermore, the collaborant answers the questions of the persecution, but he may refuse to
answer the cross-examination.

Mr Bertel STERDAHL
Within the Council of Europe's programme for support to eastern nations in reforming
their prison systems, it has become natural for the nordic countries help the closest neighbours:
Estonia, Latvia and Lithuania. For almost two years, there have been formal agreements
between the authorities in each of these countries and the Prison and Probation Services in our
countries.
The Council of Europe has estabilished a working party called "The Nord-Balt Group",
consisting of representatives from each one of both the nordic and the baltic countries. This
group coordinates the supporting activities. One result of the coordination is that in the future
Denmark and Finland will concentrate their efforts towards Estonia, Norway towards Latvia and
Sweden towards Lithuania. All activities carried out are based on the inspection reports
produced by the Council of Europe.
The first step in the Swedish engagement was to provide information about the European
prison rules and the main principles and ideologies behind western european policies, penal
codes and regulations concerning prison and probation. A system of so-called twin prisons has
been established between Sweden and Estonia: three Swedish prisons have each got their
counter-part in Estonia (the same system has been established also towards Latvia). The idea
behind the system is to estabilish personal contacts between basic staff in the prisons involved,
for it is believed that, in the long run, these face-to-face relationships might be the best way to

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implement a new attitude towards prisoners. What has been done so far could be described as an
attempt to reform the system through the staff and the civilian service and some concrete and
positive results have been achieved already.

Mrs Ilina TANEVA

While the legal reforms in Bulgaria are being carried out efficiently and meet european
standards, we face serious problems with regards to the implementation of the law, which are
due to different reasons. As far as criminal law is concerned, it must be noted that with the fall
of the totalitarian regime, society has undergone sudden changes, which allowed organized
crime to penetrate in the state itself while both society and state authorities were completely
unprepared.
A second problem concerns the lack of new well prepared staff which could replace the
communist regime officials. In addition, at the moment there is no law in Bulgaria concerning
the status of state officials so that people who work within the state authorities are not sure about
their future. This aspect, in combination with the economic situation, makes them easy preys to
corruption.
Thirdly, when dealing with crime, state authorities do not have an appropriate human
rights approach; on the other hand, the society itself is not ready to cooperate with the authorities
they have lost confidence in. The result is - on a human rights level - that both the criminals and
the victims are not protected.
It seems to me that the role of the Council of Europe in this field should be to give
assistance through practical suggestions. It is not the law that needs to be changed, but the
implementation that must be rendered more effective. Seminars should be organized during
which prison administrators and police officers can exchange practical experiences.

Mr Carl-Henrik EHRENKRONA
This intervention aims at making three remarks on different issues which have been
faced in the seminar so far. Firstly, this session has shown that combining a discussion on
serious crime and human rights is difficult due to the wide notion of serious crime, which
includes, on the one hand, "traditional" serious individual crimes such as murder, rape and child
abuse and, on the other, organized crime. The problems that arise within these two crime
categories are different. While it should be beyond doubt that the first category of crime can be
dealt with by using the ordinary legal procedures, including the existing legal safeguards to
protect the rights of the defendants and detainees, one could question whether it is possible to
manage organised crime which creates a situation which threatens the very fundaments of the
State, while ensuring the legal protection accorded to the individual under international law and
human rights standards. It is important to clearly differentiate between these two categories but
it is obviously necessary to uphold respect of human rights in both cases.
With respect to the derogation contained in Article 15 of the Convention, to which other
speakers have referred, it must be stressed that this provision is applicable only in extreme
situations threatening the life of the nation to use the wording of the Article. Derogation must be

81
regarded as a last resort and states should not rely on it as a means to combat crime. When a
state is forced to apply Article 15 this very fact can be said to constitute a failure regarding how
to handle a critical situation in the state.
A final remark should be made concerning the Convention states' educational
responsibility. In order to combat public pressure towards the restoration or maintenance of the
death penalty or the setting aside of the principle of guilt beyond any reasonable doubt, the
Convention states have a duty to provide education and to inform the public so that upholding
human rights obligations, even when combatting serious crime, is an absolute primary concern
and that the death penalty must be regarded as an obsolete criminal sanction which serves no
purpose in a modern society. Should the states fail in this respect, this might imply a serious
threat to the democratic system for - in the long run - it is not possible to maintain a legislation
which does not enjoy the support of the community and public opinion.

Mr Domenico CUCCHIARA
One of the most alarming phenomena of our time is the sudden rise in organised crime,
which flouts inalienable human rights and damages the cohesive fabric of society. The
population is made to feel insecure both by the methods used by criminals and by the impunity
from which they benefit as a result of the inefficacy of the methods used by the police.
If we are to talk about organised crime, then we must also broach the subject of
terrorism. This phenomenon has gradually evolved from the elimination by a clan of some of its
own members to the elimination of representatives of political power. This obviously also
applies to the evolution of the mafia in Italy.
At the same time there is a resurgence of organised crime with the development of
phenomena such as illegal data processing, money laundering and the "tangentopoli"
("bribesville").
The challenge facing crime policies is not to eliminate organised crime but to keep it
within limits acceptable to society. It has therefore become necessary to have a balanced policy
of crime prevention which respects fundamental human rights.
In Italy, we are obliged to note that the increase in the number of legal rules, following
opposing trends, has proved ineffective. At first, Parliament passed severe laws in the hope that
the increased severity of penal sanctions would bring down the crime rate. This failed to have
the desired results and subsequently led the Italian Parliament to introduce diametrically
opposed solutions, i.e. a series of extenuating circumstances for criminals who helped to identify
other criminals. This new policy gave rise to a moral controversy, for this system is based on the
use of informers and gives repentant criminals power over the lives of others, not because they
are presumed to have been morally rehabilitated but simply in their own interests.

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With a view to speeding up proceedings, changes were also made to procedural law and
resulted in the introduction of a new code of criminal procedure in October 1989. This code
emphasises the accusatorial nature of the proceedings by distinguishing the tasks of the public
prosecutor in charge of the preliminary investigations on the basis of which the charges are
brought from those of the judge, who is now only responsible for "rubber stamping" the
evidence adduced, without due process of law. As a result the endeavour to combat crime has
led to the introduction of rules which are incompatible with human rights and in particular the
adversarial principle.
In view of such aberrations, the Italian Parliament has devoted its attention to various
bills amending the 1989 code of criminal procedure and it is hoped that they will result in court
proceedings which respect fundamental human rights more fully.

Mr Mihai MAROZ
After 1992, steps were taken by Parliament to bring Romanian legislation into line with
international human rights law.
Let us first consider the Constitution. Section II of the 1992 Constitution embodied a
whole series of fundamental rights of the first, second and third generation. Moreover, Article
20 of the Constitution lays down the principle that the interpretation of constitutional provisions
must be compatible with the Universal Declaration of Human Rights and with the international
treaties to which Romania is party. In cases in which domestic laws and international rules are
incompatible, the latter take precedence.
Secondly, let us look at the legislation. Laws Nos. 40/1990 and 26/1994 stipulate that
one of the main duties of the Ministry of the Interior and of the police is to safeguard life,
physical integrity and the freedom of the individual. Amendments to the criminal code and to
the code of criminal procedure mean that the death penalty has been abolished, torture and illtreatment are punishable by law and legal safeguards have been introduced with regard to
criminal investigations and pre-trial detention.
Lastly, Romania has ratified important international instruments for the protection of
human rights, including the European Convention on Human Rights.
The 8th and 9th United Nations Congresses on the prevention of crime and the treatment
of offenders were of considerable importance in ensuring that the police applied these principles
to its work in these fields.
The current resurgence of crime has led to the conclusion of international agreements on
how to combat this phenomenon effectively and to the establishment in 1995 of an advisory
board responsible for co-ordinating the work of ministries and non-governmental organisations
on preventing and combating crime and for ensuring prevention by non-repressive means.
Following Romania's ratification of the European Convention for the Prevention of
Torture, the European Committee visited Romania in September 1995. As a result the
Romanian police re-examined their crime prevention strategies, attaching particular importance
to the use of non-repressive methods. The recommendations made by the European Parliament

83
in its resolution of 16 September 1996 with regard to the training of police officers and their
supervision also aroused particular interest. In this connection, the Romanian police-force is
currently being modernised and the international standards laid down in the Code of Conduct for
Law Enforcement Officials adopted by the United Nations in its Resolution No. 34/169/1979 is
now being applied.

Mr Juraj KOLESR
During the seminar, the issue of protection of both the witnesses and the victims has
been discussed on several occasions. In Slovakia as well as other countries such a protection,
although provided for in the law, is very difficult to ensure because of the small size of the
country. Therefore, my suggestion concerns a possible cooperation between states which could
guarantee to the person who collaborate with the judicial authorities due protection outside the
country. This obviously entails cooperation between the police of the states involved.

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THIRD SESSION
Theme 1: means and action to combat serious crime effectively while
respecting human rights
ii.
other means (crime prevention, social action - employment, young
people -, urban policy, etc.)
Report presented by Mrs Marie-Pierre de LIEGE, Judge, seconded to the Institute of the Arab
World, Paris
Crime prevention and social development in france
A look back through history shows that periods known for insecurity and higher crime
invariably saw profound economic or social change, such as industrialisation, rapid urbanisation,
economic crisis, political transformations and even war. This simple fact is sufficient to
demonstrate that, statistically at any rate, crime as a phenomenon is not unrelated to other forms
of disorder or difficulty.
Whether in the United States and western Europe since the 1970s or in central and
eastern Europe more recently, the question of "insecurity" has gone hand in hand with
economic, social and political upheaval, becoming a matter of priority for many States and
decision-makers. All seek better strategies to contend with this phenomenon, but as yet, no one
seems to have found the "panacea".
Responses to crime have varied quite widely from one period to another and from one
country to another, ranging from a failure to recognise difficulties and an abdication of
responsibility on the part of the public authorities to policies focusing exclusively on
punishment, involving large-scale reliance on prison and harsh sentencing. Between these two
extremes, there have been attempts to deal with the problem by emphasising social and
economic development, equal opportunities and, hence, the reduction of social tensions, and by
giving priority to crime prevention, the rehabilitation of offenders and the fight against
recidivism.
In an effort to deal with crime, France itself has attempted a variety of methods, from
which a number of lessons may be learned.
First, however, some comments are called for, as the work of this session is concerned
with means other than strictly punitive ones to combat serious crime, namely preventive action
in the fields of social policy and urban development.
One cannot discuss crime prevention and social development in a meeting on the subject
of serious crime without first making a number of preliminary remarks.

For a long time, no distinction was drawn between the different types of crime; the
response was the same: treatment through punishment or nothing.

85

Then the interest of the international community focused for a while on two types of
crime originally perceived as being separate:

on the one hand, there is serious crime, whether organised or not, which leads above all
to a mobilisation of the state law-enforcement apparatus, at times requires the use of
technology and considerable means to fight it and entails international cooperation,
harmonised legislation and effective prosecution and punishment. When we talk about
this form of crime, we are referring, more or less consciously, to a small number of
crime "professionals". Italy was one of the pioneers in this area. It is a form of crime
that is not very visible, but has a heavy impact: the cost of economic crime alone is
estimated to amount to 90 % of the overall financial cost of all crime;

on the other hand, there is everyday, ordinary, less serious crime, often known as urban
crime. It is much less professional, but many more persons, especially young people, are
occasionally or regularly involved. It is also much more visible (accounting for 80 % of
crime statistics), and is closer to people, engendering a sense of insecurity. It is very
directly linked to social development, people's difficulties, unemployment, consumer
attitudes and the sense of a bleak future: in a word, it is intimately associated with the
economic crisis.

In the light of this crisis, the usual penal responses often seem inadequate, belated and
inflexible, and to have a desocialising effect. Treating such crime means treating society and its
ills. During the 1980s, France made this type of crime a priority and produced entirely new
strategies involving in a local partnership all those active in the penal process and social
development.
In an approach that is confined to these two phenomena, it may appear naive or in any
case inappropriate to speak of "other means" of combating serious crime: "professional"
criminals (large-scale traffickers or financial criminals who offer or accept bribes) often come
from a sort of elite which knows no social problems (businessmen, elected officials, lawyers)
and thus need no help with social reintegration.
The only reason why this question of "other responses" for combating serious crime
makes any sense is because today there is a much better understanding of just how interrelated
serious and petty crime are.
For serious crime, petty criminals often serve as:
-

a "breeding ground", one of the first places for recruitment being prison;

a "support" that major criminals rely on for back-up work: preparing the crime, being on
the lookout, disposing of the merchandise, seeking customers. This essential cooperation is
particularly visible in the area of drug trafficking and terrorism, but also in mafia organisations.
One element that is new in this regard is the increasingly frequent involvement, among
petty criminals, of entire family or social groups, which at first tolerate and eventually support
them. This phenomenon is associated with unemployment and the lack of other resources, in a
context in which the fruits of crime constitute a real "substitute income".
These people regard serious crime as something positive, because:

86

it provides income;

perpetrators of serious crime often invest in difficult neighbourhoods in order to

"launder" money there (shops, restaurants, etc.);
it ensures a degree of local social order, because major criminals do not want to be
disturbed in their activities by a too frequent presence of the police;
lastly, those concerned often do not notice the adverse consequences of such activity for
society.
Hence the importance of combating economic stagnation, the social crisis and the growth
of less serious crime by conducting a crime and recidivism prevention strategy and attempting to
keep serious and petty crime more separate from one another.
There are a number of ways that this might be done, for example by keeping the two
kinds of criminals apart in prison, ensuring that the public authorities control the drug supply
and promoting social resistance to crime by furthering education, instilling values and providing
people with other ways of achieving social and economic fulfilment so that they can see that,
even if they are unemployed, they have the potential for things other than committing crime.
In the light of these two types of crime, there is a need to introduce new, coherent and
complementary strategies and ways of organising social and penal machinery:

the fight against organised crime calls for specialised police and courts which often need
to be organised at a high level, and indeed internationally;

the fight against ordinary crime calls for:

local police and courts that are well integrated in the community and in close contact
with all elected officials, public and social services, etc;

police and courts organised for some purposes on generalist lines and for others (drug
addiction, victims of violence, etc) on specialist lines.

Having concluded these comments, we shall now briefly review the various aspects of
penal policy in France and then consider in greater depth the strategy experimented with in
recent years of crime prevention based on social development.
I.

HISTORY OF THE FIGHT AGAINST CRIME

I.1.

Human rights as foundations of social and criminal policies

The French Declaration of the Rights of Man and of the Citizen of 1789 recognises a
number of fundamental principles, which have been reasserted since then in the various French
constitutions and in the Universal Declaration of 1948.
These include:

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1.
2.

the principles of equality and fraternity;

the principles of liberty and security.

Since then, successive political strategies have sought to give substance to these
principles.

On the basis of the principles of equality and fraternity (today one would tend to say
"solidarity"), a tradition has been built of sound social policies guaranteed by State and
community: state-funded compulsory education, a system of social security (to guarantee
the right to health), pensions and family benefits, paid holidays, maternity and child
welfare, housing benefits, guaranteed minimum wage, etc.

In the name of these principles, the community sets out to maintain a certain balance between
citizens and to offset inequalities to the greatest extent possible, usually by providing assistance
in the form of benefits for individual recipients.

The principle of "safety", described in the 1789 Declaration as a "natural and inalienable
right of man guaranteed by a public power instituted for the benefit of all", is the
foundation of our system of law and criminal justice. At the same time it creates a
permanent legal and political tension between safety (now usually referred to as
"solidarity") and "liberty".

For a long time, the State responded in a completely different manner to these two
categories of obligations, which were perceived as unrelated to each other:

social policies served to "assist" people in danger of becoming alienated from society;

criminal policies were designed to ensure security, punishing those who undermined it
by breaking the law; that was another way in which people became alienated.

For many years, combating crime was thus confined to prosecuting and punishing
offenders. In actual fact, the choice of punishment was limited to fines, imprisonment - a kind of
"banishment" from society - or capital punishment.
Immediately after the end of the second world war (under the impetus, it is said, of
"decent people" who had experienced prison), France saw the first signs of change, the two
hitherto separate strategies gradually becoming more and more interdependent. Criminologists
and those in charge of criminal policy grew increasingly interested in possibilities for treating
crime as a social problem.
I.2.

Punishment and/or rehabilitation?

The first step, and by no means the least important one, was taken by introducing the
possibility for the children's judge to impose, instead of the usual forms of punishment,
educational measures for juvenile offenders and for minors in danger. Later, laws were passed
making provision for release under certain conditions (judicial supervision, release on parole and
probation), which increasingly took on a socio-educational character, and alternatives to
imprisonment (suspension of various licences, confiscation of property, community service). In
the 1970s and especially the 1980s, emphasis was clearly placed on the need to give priority to

88
the rehabilitation of offenders; this often implied a better socialisation, i.e. a return to
employment, health care, housing ...
All these measures helped and assisted the offender, in exchange for varying degrees of
supervision by the police, the courts or social workers. Aimed above all at preventing
recidivism, some of these measures may, owing to their coercive nature ("either you comply
with them or you'll return to prison"), violate certain freedoms to an extent (prohibition on
frequenting certain places or keeping company with certain persons, obligation to submit to
treatment, seek employment etc.). However, given that there are measures applied in accordance
with judicial decisions, the restrictions that they place on the rights of the individual, in so far as
they do not violate his or her fundamental rights (dignity, privacy, integrity, procedural rights,
etc.), do not pose any particular problems.
I.3.

From punishment of crime to its prevention

The beginning of the 1980s saw a shift from a policy of treating the offender, of
responding a posteriori, to one that focused on crime prevention as a social problem.
Crime soared throughout the 1960s and above all the 1970s, and with it came a
perceptible heightened sense of insecurity (twice the number of offences in 1975 as in 1967, five
times as many armed robberies, twice the number of hold-ups). This development affected
towns in particular, with a noticeable increase in the less serious offences (theft, damage to
property, etc) that created a strong feeling of insecurity among the population, 67% of those
questioned stating at the time that they felt less safe.
This situation came about and worsened against the backdrop of an incipient economic crisis.
In this context, the usual ways of fighting crime seemed insufficient: reliance on the
police and the courts to respond to urban crime, whose perpetrators are difficult to identify
(success rate in solving cases: about 20%), remained the exception, procedures and penalties
were often considered too cumbersome and ill-suited to "petty offenders", and imprisonment
was denounced as encouraging recidivism (approximately 50%) and even the transition to
serious crime.
Politicians could not remain indifferent to these developments, insecurity having become
a major concern of the State.
The government of the time, after attempting a strategy that focused on treating the
phenomenon as a social problem rather than relying on punishment after the fact (Peyrefitte's
report on violence11), yielded to the pressure of public opinion and eventually, just before the
presidential election of 1981, passed a repressive "security and freedoms" act which was sharply
criticised by the opposition.
Several months later, the Left came to power and immediately was faced with an
outbreak of urban violence requiring it to find novel responses to a number of problems.
It had to:

11

Rponse la violence; Documentation Franaise 1977.

89
-

deal with the problem of crime, not ignore it;

cut short the exploitation of this phenomenon for political purposes;

come up with new and more effective ways of combating crime, not through massive
additional expenditure, given the already difficult economic situation, but through a
redeployment of resources.
I.4.

A pragmatic approach and partnership structures

Aware that France's problems were not confined to a problem of urban crime but also
reflected real difficulties of urban social development, the government of the time commissioned
two reports:
in May 1982, the Prime Minister entrusted 36 mayors of all political leanings with the
task of carrying out, under the guidance of Mr Gilbert Bonnemaison, a study of problems
relating to security and making proposals for contending with the growth in the less serious
types of crime. More than 800 mayors were consulted, and the final report, unanimously
approved in December 1982, proposed specific measures, based on the local experience of the
members of the commission and their colleagues.
The main thrust of the report12 can be summarised as follows:
"Security must not be a matter for the police and the courts alone: it must be a
matter for all. Criminal acts must not go unanswered.";
another mayor, Mr Dubedout, was asked to analyse the difficulties that certain urban
neighbourhoods were encountering in all spheres and to make proposals for furthering their
social and economic development. This report laid the foundations for an integrated,
partnership-based urban social development policy.
At first, these two problems - crime prevention and urban social development - were
addressed independently. Then, in 1988, the two national commissions were merged, to form the
"Interministerial Delegation for Urban Affairs". This body received fresh impetus in 1991 with
the setting up of a Ministry of Urban Affairs, which has continued in different forms under all
subsequent governments, including the present one.
Today, "crime prevention" is one of the priorities of the Ministry of Urban Affairs,
alongside urban planning and social and economic development, this all being part of one
and the same overall integrated approach, known as "urban policy".
II.

THE FIGHT AGAINST CRIME SINCE 1982

The recommendations of the Mayors' Commission on Security have profoundly marked

French strategy in fighting crime, and urban crime in particular. The very title of the report was
highly programmatic: "Combating crime: prevention, punishment, solidarity".

12

Face la dlinquance, prvention, repression, solidarit - Commission des maires sur la scurit -Documentation franaise 1983.

90
II.1.

The diagnosis

The most important elements of the diagnosis, drawn from the experience of all these
mayors and forming the basis for the new strategy, are as follows:
-

The traditional approach in terms of police and the courts is insufficient for controlling
crime;

The factors involved in crime are very similar to those that lead to suicide, alcoholism,
drug addiction and mental illness, notably: grave changes in family life, worsening
housing conditions, unemployment, the disappearance of informal or traditional methods
of social control and the absence of leisure or cultural activities. Needless to say, these
factors are exacerbated in a context marked by large-scale and long-term unemployment,
expanding drug trade and the presence of more and more consumer goods which are
inaccessible to a large part of the population;

To be effective, a long-term policy for curbing crime must combat these factors and
must be open-ended and able to adapt to local circumstances. Such a challenge must
bring together all those involved at local level: the police, the courts, social services, the
departments responsible for public health, education, youth and sport, culture, housing
etc., but also elected officials and other representatives of the population, such as trade
unions, associations and voluntary organisations. Such a strategy must prevail over
bureaucracy behaviour, facilitate the redeployment of resources and educate the public
so as to overcome the stereotypes which media exploitation of crime helps to perpetuate;

To fight crime effectively, punishment must be combined with an approach that tackles
the phenomenon preventively as a social problem and the law must be applied in a clearsighted unambiguous and consistent manner;

Lastly, the report stressed the fact that to reduce the sense of insecurity, an effective
strategy to combat crime must not focus solely on offenders and their treatment but must
also contain a strong component of assistance to the victims of crimes.

II.2.

Structures
On the basis of this report, things began to change very quickly:

In 1983, a National Crime Prevention Council (Conseil National de Prvention de la

dlinquance) (CNPD) was set up with its own (at first very modest) budget; it was composed of
elected local officials from the various political parties, representatives of the voluntary sector,
trade unions and employers' associations, and representative of the various ministries. The
purpose of the Council was to propose to the public authorities appropriate measures for
preventing crime and reducing its effects, offer advice and support local crime prevention
initiatives.
A Departmental Council (Conseil dpartemental) was set up in each department; most
importantly, a Municipal Crime Prevention Council (Conseil communal de prvention de la
dlinquance) (CCPD) was set up at municipal level wherever this seemed necessary, involving
all the relevant local officials. One hundred CCPDs were established in 1983; today there are
820, and all major cities have introduced a crime prevention strategy. This highly flexible

91
organisation makes it possible to define very precisely and coordinate the goals of local crime
prevention policy and to carry out activities geared to needs, thanks to financial commitments
and the pooling of staff and equipment by the various parties concerned.
Starting in 1985, a system of contracts ("contracts for action on crime prevention and
security"), at first annual and later several times a year, enabled financial support for local
bodies to be organised at national level (first CNPD, and then, as from 1988, the Interministerial
Delegation for Urban Affairs).
These contracts, drawn up at local level in the framework of the CCPD and
approved by all the local parties involved, describe the local situation, diagnose the most
worrisome local forms of crime and their causes and give an account of the coordinated
plan of action drawn up at local level to attempt to deal with this problem, as well as the
resources that everyone plans to commit.
II.3.

How the Municipal Council works

The CCPD, a key element in urban crime, operates in the following manner:

Of the 820 CCPDs, it is generally estimated that one-third are actually inactive, one-third
operate on a more or less formal basis and one-third can really bring about change.
The Councils are chaired by the Mayor and comprise the Public Prosecutor,
representatives of the police, the social services, schools and associations, and all those regarded
as being able to help in the fight against crime. The biggest Councils are headed by an official
recruited by the municipality.
The largest cities (such as Marseille) may have a Council in each large neighbourhood.
These Councils meet several times a year.
Increasingly, the large conurbations also have intercommunity crime prevention
councils.
In practice, their functions are as follows:
meeting with various local officials, pooling and exchanging information, often from a
wide variety of sources, for a better qualitative understanding of local crime;
-

jointly analysing specific local difficulties relating to crime;

devising coordinated overall strategies involving all participants;

drawing up a concerted plan of action in the form of "contracts for action on crime
prevention and security".

92
Every year, the Councils and local officials receive an interministerial circular (Prime
Minister, police, the courts, social affairs) identifying national priorities for combating crime and
formulating recommendations. All contracts contemplating initiatives consistent with these
priorities may receive co-financing from the national level. In 1994, 150 million French francs
were earmarked nationally for these initiatives, making it possible to finance some 600
contracts, or approximately 2000 initiatives. It is estimated that on average, for each franc
allocated at national level, local officials contribute four. These contracts, concluded between
the local authorities and the central government, enable local and national strategies and
initiatives in the private and public sectors to be coordinated.
The contracts involve such initiatives as:
primary crime prevention initiatives: school support, combating illiteracy and school
absenteeism, initiatives to promote citizenship, maternity and child welfare...;
social and occupational integration, assistance in seeking employment and housing,
improved access to care;
-

cultural and leisure activities of all kinds;

assistance to victims, mediation between the offender and the victims;

prevention of recidivism, assistance to offenders serving non-custodial sentences,

support upon release from prison, promotion of educational activities in prison;
situational prevention, of a defensive nature, to reduce opportunities (for example,
armour-plated doors, lighting, electronic surveillance, etc.);
-

siting of police and judicial services in neighbourhoods in difficulty;

initiatives to combat alcohol and drug abuse;

specific crime prevention strategies at sensitive locations, such as shopping centres,

schools, public transport, etc.
III.

A PROVISIONAL ASSESSMENT

III.1.

The situation in France

Fifteen years later, despite many changes of government and a number of structural
reforms, the spirit in which these problems are addressed and the method for doing so have
changed little.
All courts now receive assistance from associations and municipalities, which participate
in the implementation of non-custodial measures and take preventive action to help persons in
difficulty (community service, support upon conditional release, etc). Apart from one or two
exceptions, all the departments in France have set up free arrangements for assisting victims,
under which any victim of assault can receive moral support, information and help in carrying
out administrative formalities. A national Institute for assistance to victims and for mediation

93
has run this entire network since 1986, working continuously to improve legislation on the
protection of victims.
Thus, notwithstanding an economic and social context that relegates more and more
people to the margins of society and makes their reintegration increasingly difficult, and in spite
of the spread of drugs and related offences, crime, although it has not been stopped, has at least
been contained (decline between 1984 and 1988 and reasonable increase since then, followed by
a recent renewed downturn).
But over time, problems have changed and with them the priorities, which today are as
follows:
-

the fight against drug addiction and the growth of an underground economy;

prevention of juvenile delinquency (10-15 years of age), strengthening of the role of

parents and closer supervision of serious cases (juvenile repeat offenders);
-

the fight against crime at sensitive locations (transport, shops, schools);

prevention of recidivism and assistance to victims.

Several years of partnership have in some cases led to considerable changes in attitudes
and practices: social workers, teachers and police officers now have greater confidence in each
other and work together to prevent crime. The courts and the police have been reviewing their
working methods (community policing, court branches in sensitive neighbourhoods, mediation
etc.), and the jobs themselves have changed13. Experience has shown that there are no miracle or
universal solutions, but that the evolution of crime requires untiring observation and an equally
untiring ability to adapt professional strategies and practices to local situations, taking their
special nature into account.
Thus, alongside a criminal policy based on punishment, which still plays a very
important role alongside rehabilitation goals, a socially-oriented crime prevention strategy
or, more accurately, a strategy of crime prevention through social development, has also
developed.
Attention should, however, be drawn to a number of difficulties:
Despite continuous encouragement to work together on a partnership basis, the various
public services and government departments, at national and local level alike, have a strong
tendency to return again and again to their own specific practices; partnership requires very
strong and constantly reasserted commitment and mobilisation;
This partnership has, in fact, had little success in involving local people themselves
(parents, neighbours, etc); it is often confined to local associations specialising to varying
degrees in particular areas of work;

13

Prvention de la dlinquance et modernisation de la justice, Marie-Pierre de Lige - Revue des Sciences criminelles, 4th quarter 1992 and 1st
quarter 1993.

94
People working in the various fields must constantly ensure that they are not isolated and
be careful not to forget their responsibility towards the others;
These crime prevention strategies are of a long-term nature. They call for determined and
reliable teamwork. But how can enthusiasm and commitment be maintained in a world in which
all too often the media define the "fashion", dictate priorities and are more interested in reporting
than in analysing the policy issues involved? How can exhaustion and discouragement be
avoided in a deteriorating economic situation?
How can the simplistic call for harsh punishment, so quick to be heard whenever a
serious crime is committed, be countered once and for all?
How can a sustained, large-scale effort be made to fight the less serious types of crime
when authorities are more concerned about organised crime, gangs and terrorism? After all,
serious crime often finds an ideal breeding ground among young people with no prospects who
have been relegated to a marginal existence as a result of the recession.
Only a determined and tireless effort on all fronts involving everyone in the field,
with the firm support of political leaders, can achieve these goals.
III.2.

Assessing these strategies from the point of view of human rights

"Soft" policies do not mean that it is no longer necessary to pose the question of human
rights, in particular social and economic rights.
With regard to the prevention of recidivism, measures involving supervision and help
with rehabilitation do not give rise to any problems. In France, measures to keep an offender out
of prison or provide him with support on his release from prison are always taken under the
supervision of a judge - the judge responsible for the execution of sentences - monitors the social
services in charge of implementing those measures.
The strategy of crime prevention "upstream", namely through social development, aims
above all to restore social equilibrium, facilitate access to housing, education and employment
and promote the right of everyone to family life. In so doing, it tends to strengthen human
rights, especially as the method chosen is designed first and foremost to encourage collective
prevention arrangements and the provision of services rather than assistance to the individual,
which often entails a degree of control of a normative character which may be in violation of
individual freedoms.
Thus, for example, magistrates, prosecutors or juvenile judges who attend CCPD
meetings naturally refuse to make any reference to particular cases, citing not only their
independence but also the protection of the individual.
Increasingly, however, in both France and English-speaking countries, an effort is being
made to involve the community and instil a sense of responsibility for these problems of crime
and even to bring the community to participate directly in crime prevention strategies. This is
useful and may prove effective, because family and friends constitute a first bulwark against
risks of criminal behaviour, but once institutionalised, it can also be dangerous from the point of
view of human rights. It is a known fact that in certain contexts, social control by the
community may be very constraining, normative and inhibitive, ie it may violate rights and

95
freedoms. This means that the powers of elected and court officials must be limited and closely
supervised so as to ensure strict respect for human rights and freedoms.
III.3

Transposing this policy

Can such a policy be of use to others?

No experience or "solution" to a particular problem is directly transposable. What works

in one case might at most serve as a basis for what might be tried elsewhere, after having been
"adapted".
Nevertheless, the practice developed in France and described above has two features
which suggest that it might be useful and usable for others.
It is not claimed that this practice offers universally applicable solutions for crime: there
are no "recipes", models that can deal with all problems of crime in all contexts. But by
confining itself to suggesting a "methodology for action", it proposes a flexible and adaptable
approach which appears to be appropriate in many situations. This method was conceived in
France precisely in order to respect local diversity and to allow local protagonists to take over
the strategies developed for fighting crime and make them their own. It functions in both big
cities and in rural areas, in prosperous regions and poor.
-

This strategy is part of a "subsidiarity" system coordinating the various levels of action.

An inexpensive strategy. This approach is suitable in many contexts, regardless of the

level of development, because it does not require the injection of considerable additional
resources. It stresses the identification, stocktaking and possible redeployment of existing
resources, i.e. the possibility of putting them to different uses. The point is not to have a large
number of services and staff fighting crime, but to mobilise, logically and simultaneously, all
social forces around the same objectives and to make them work more "intelligently". These
social forces exist in all contexts and at all levels of development, even though they are different
and even though, depending on the particular case, they may be answerable to national
governments, municipalities or the community itself. Everywhere there are structures or groups,
some of them formal and some of them less so, whose objective and function are to ensure
public order and respect for the law and to promote efforts in the areas of the family, youth,
health care, housing, economic activities, leisure, etc.
These are the persons that must be singled out and encouraged to work together, once
there is agreement on the assessment of the local situation. Energy and resources are squandered
when efforts are not combined. Introducing more rational approaches improves efficiency, even
without additional resources.
In those areas in which fresh additional resources are available, they will be better used if
they serve to stimulate, notably through agreements on objectives, the mobilisation of all and the
development of new working methods aimed at preventing crime rather than financing the
consequences of a purely punitive policy.
Regardless of the context, a crime prevention policy is invariably less costly than a
policy of large-scale incarceration, the cost of supervising and monitoring persons in open
institutions being vastly inferior to the cost of keeping them in prison.

96

Lastly, a properly conducted crime prevention policy is also advantageous in that, in the
medium or long term, it perceptively reduces the cost to society: a person in difficulty, treated on
time and appropriately assisted, will cost society much less in the long run than a permanent
social "outcast" who is incapable of being rehabilitated once released from prison. In the end,
investing in development and rehabilitation is less costly than investing in coercion, even if,
admittedly, it does require greater political courage.
This approach has aroused interest in the international community, the spirit and the
method described above having been embodied in a resolution adopted by the United Nations
General Assembly laying down guidelines for cooperation and technical assistance in the field
of urban crime prevention (ECOSOC 1995/9), the basic principles of which are as follows:
-

local, coordinated diagnosis of crime problems;

joint framing of integrated crime prevention plans taking in all the areas concerned
(education, health care, employment, housing, police, the courts);
support at national level for local initiatives and centralised policies through agreements
on objectives.
In recent years, these principles have also inspired initiatives for curbing crime in Europe
(United Kingdom, Netherlands, Spain), North America (Canada and several states in the USA),
Latin America, Australia and even Africa. In Europe and Latin America, in order to work
towards urban security, "forums" of towns and cities have recently been set up, bringing together
local authorities with severe crime problems who would like to share their experience and
develop a common methodological approach.
The French and Canadian governments have also created an "international Centre for
crime prevention" (CIPC), an institute affiliated with the United Nations whose goal is to offer
advice and training to all those wishing to adopt strategies of this type for combating urban
crime.
* * *
In many countries, social development and greater social cohesion are essential to
fighting urban crime effectively on a day-to-day basis so as to reduce the sense of insecurity in
the population and improve the quality of life.
But these efforts are also very useful in connection with the fight against organised
crime. In many areas - drugs, prostitution, various forms of trafficking and even terrorism -,
organised crime exploits the vulnerability of entire sectors of the population, where it finds
potential petty criminals who will form the networks on which their pernicious activities are
based. Fighting petty crime thus deprives organised crime of this resource. Hence, all states must
strive to wage this battle at both levels simultaneously, because just as serious crime is an
encourages petty crime, the latter serves as a breeding ground for serious crime.

97

Report presented by Mr Nick TILLEY, Professor, Faculty of Economics an

Social Sciences, Nottingham-Trent University, Nottingham (United
Kingdom)
Crime prevention precepts and principles
Experience shows that effective crime prevention is certainly possible. The causes of
crime, however, are complex. Moreover, we know that new sources of crime emerge over time.
Thus, there are and can be no simple crime prevention panaceas. What we do have, however, are
a number of precepts for successful crime prevention. These, in turn, raise a number of matters
of principle.
Crime prevention precepts
The following ten precepts or rules are stated quite baldly. They are distilled from the by
now quite extensive literature describing successful crime prevention efforts. What they show
clearly is that crime problems can be addressed realistically without resorting to repressive or
brutal punishments, including capital punishment, whose effect on overall crime rates is far from
clear. The approach to crime prevention suggested by the following precepts offers a way of
addressing crime problems rationally, realistically, effectively and economically.
1.

Reduce opportunities for crime14

The simple expedient of blocking opportunities for crime has been shown to reduce it. In
practice this means increasing the real or perceived risks to the offender, increasing the real or
perceived effort needed to complete the offence, or reducing the real or perceived reward from
the crime. This type of response is often termed "situational crime prevention". The sorts of
measure taken include various methods of access control - such as locked doors, physical
diversion and exclusion - to increase the effort; various forms of surveillance - such as airport
baggage-screening, closed circuit television, and neighbourhood watch - to increase the risk; and
various ways of reducing the utility of the offence - by removing the target, as with some car
radios, making property identifiable, as with cattle-branding, or taking away the inducement, as
when rapidly cleaning off graffiti deprives the artist of satisfaction at seeing his or her work on
display - to lessen the reward.
2.

Reduce sources of criminality15

Criminality is unevenly spread through the population. Whilst most of us have

committed a crime at some time, a few are chronic offenders. Crime is concentrated amongst
young men. Those from disrupted and dysfunctional families, with poor schooling and few
prospects are most likely to become heavily involved in crime. High quality pre-school
provision for those at risk, efforts to involve the children in school, training parents in the
14

See R. Clarke (ed.) (1992) Situational Crime Prevention: Successful Case Studies, New York: Harrow and Heston; R. Clarke (1995) "Situational
crime prevention", in: M. Tonry and D. Farrington (eds.) Building a Safer Society, Crime and Justice, Vol. 19, Chicago: Chicago
University Press.

15

See D. Farrington (1996) "The explanation and prevention of youthful offending", in: J. David Hawkins (ed.) Delinquency and Crime,
Cambridge; Cambridge University Press; R. Tremblay and W. Craig (1995) "Developmental crime prevention", in: M. Tonry and
D. Farrington (eds.) Building a Safer Society, Crime and Justice, Vol. 19, Chicago: Chicago University Press.

98
management of their children, and behavioural programmes for those who have become
involved in offending have all been shown to have crime prevention effects.
3.

Reduce the resources available for crime16

Physical and human resources may be needed for crime, or may facilitate crime.
Reducing their availability can make crime more difficult. Guns are a clear example. Cars are
another. Gun control leads to fewer crimes of violence and fewer fatalities where they are
committed. Improving the security of cars not only inhibits their theft for sale, but also creates
difficulty in accessing them for use in crime. One reason for avoiding concentrating offenders in
institutions or in residential areas is that doing so creates networks of criminals who are able to
draw on one another's skills in planning and committing offences.
4.

Protect victims17

Research indicates across a wide range of offences, such as domestic and commercial
burglary, vandalism, robbery, domestic violence and racial attacks, that those who have already
been victims of crime become at higher risk of revictimisation. Making them safer has been
shown to be an efficient and effective way of reducing crime. With limited resources, a focus on
reducing repeat victimisation has been described as a way of getting the crime prevention grease
to the crime squeak.
5.

Prevent communities from spiralling into high crime18

Crime occurs at a much higher rate in some places than it does in others. It is
consistently found to be higher in cities than in villages, and within cities to be concentrated in
particular areas. The failure to deal with early signs of incivility, such as minor vandalism and
rowdyism, can allow communities to appear neglected. This attracts further problems. Stronger
members of the community able to provide effective leadership leave. Offenders become more
confident and intimidate others. An avoidable spiral of community decline and increasing crime
ensues.
In so far as the criminogenic, economic and social decline of communities follows from
global economic developments, the potential effectiveness of local efforts at crime prevention
may be limited. National governments may appropriately include crime prevention amongst
their aims when they attempt to effect economic regeneration.
6.

Use the criminal justice system imaginatively19

16

For a thorough overview on firearms, see T. Gabor (1994) The Impact of the Availability of Firearms on Violent Crime, Suicide and Accidental
Death: A review of the Literature with Special Reference to the Canadian Situation, Ottawa: University of Ottawa. More generally, see
Clarke (1992), op. cit.

17

See G. Farrell (1995) "Preventing repeat victimisation", in: M. Tonry and D. Farrington (eds.) Building a Safer Society, Crime and Justice, Vol.
19, Chicago: Chicago University Press; G. Farrell and K. Pease (1993) Once Bitten, Twice Bitten: Repeat Victimisation and its
Implications for Crime Prevention, Crime Prevention Unit paper 46, London: Home Office.

18

See J. van Dijk and J. van Kestern (1996) "Criminal victimisation in European cities", European Journal on Criminal Justice and Research, Vol.
4, No. 1, pp. 9-21; J.Q. Wilson and G. Kelling (1982) "Broken Windows", Atlantic Monthly 249(3), pp. 29-38; N. Tilley and J. Webb
(1994) Burglary Reduction: Findings from Safer Cities Schemes, Crime Prevention Unit paper 51, London: Home Office.

19

See R. Homel (1995) "Can Police Prevent Crime", in: K. Bryett and C. Lewis (eds.) Contemporary Policing: Unpeeling Tradition, Sydney:
Macmillan Australia; L. Sherman (1990) "Police Crackdowns: Initial and Residual Deterrence", in: M. Tonry and N. Morris (eds.)
Crime and Justice: A Review of Research Vol. 12, Chicago: University of Chicago Press; A. Leigh, T. Read and N. Tilley (1996)

99

At first sight the criminal justice system appears to be poorly placed to achieve much by
way of crime prevention. The causes of crime seem to lie beyond it. It is sobering to realise that,
for example in Britain, of every 100 offences committed, only 50 are reported, 30 are recorded
by the police, 7 are cleared up, 3 result in a caution or conviction, and 2 result in a conviction of
which only about 10% involve a custodial sentence. It appears, nevertheless, from rapid crime
increases that occur when police services have been withdrawn, that their mere presence is
enough to prevent a good deal of crime. It is much less clear that simply increasing the numbers
of officers has much impact. With regard to prison, the incarceration and thus temporary
incapacitation of very high-rate offenders may have some short-term impact on crime outside
prison. We know, however, that incarceration often also has unintended criminogenic sideeffects: improving the skills of offenders, extending networks of co-operating criminals, and
creating difficulties for ex-inmates to find legitimate opportunities on release.
Imaginative work within the criminal justice system can, however, enable it to have an
impact on crime. Though of course risking provoking riots in some high crime areas, in others
police crack-downs have been known to drive crime down for a while. Whilst community
confidence increases, other crime prevention measures can be put in place, reducing the ease
with which offenders can return and resume their offending. There is also evidence that where
police adopt a problem-solving approach, rather than relying wholly on traditional enforcement
methods, they can reduce identified crime problems. Recent developments in "restorative
justice" and "family group conferencing" are promising crime prevention alternatives to
traditional ways of dealing with offenders. Here, those who have admitted their offences meet
with family, victim and others close to the offender who have been touched by the crime, and
are confronted with the consequences of their behaviour. They are made to feel ashamed, they
apologise and they show contrition. They also undertake some form of reparation. They are then
re-accepted and reintegrated within a community that cares for them. The crime prevention idea
is that stigmatisation, exclusion and the attendant problems of resuming a law-abiding life are
avoided.
7.

Monitor emerging changes affecting crime and crime prevention opportunities20

Technological, commercial, social and political developments create new opportunities

for crime, new resources for crime and new sources of friction. If they are monitored effectively
pre-emptive action can be taken.
With regard to technology, developments have led to the mass-production of light, high
value, anonymous goods, which are easily stolen and can easily be disposed of. Design and
technology may also be used to design crime out - by individualising products, by rendering
them unusable by the thief, for example coded car radios, or by making them less movable, for
example car immobilisers. The Internet is likely to become a major resource for criminals
anxious to learn new crime methods, and ways of overcoming obstacles. This produces new
challenges for those trying to design out crime. Diversification of crime obstacles, perhaps
turning new technological developments to crime prevention advantage, may make it more
Problem-Oriented Policing: Brit Pop, Crime Prevention and Detection Series paper 75, London: Home Office; Tilley and Webb, op.
cit; J. Braithwaite (1992) Crime, Shame and Reintegration, Cambridge: Cambridge University Press; G. Masters (1996) "Something
old something new: family group conferencing and probation practice", Vista, September, pp. 78-86.
20

See M. Felson (1994) Crime and Everyday Life, Thousand Oaks, CA: Pine Forge Press. The section also draws loosely on discussions with
Professor Ken Pease and Dr. Paul Ekblom.

100
difficult for an offender to plan a crime with confidence that she or he will have the appropriate
tools and know-how to overcome the built-in crime obstacles.
In relation to changing commercial practices, an example is the transition from the overthe-counter shop to the self-service supermarket. This has created a new set of shop-theft
temptations and opportunities, which have provided effective apprenticeships in crime for many
who have gone on to more serious offending. So far as changing social practices go, examples
include increases in the rate at which women work and greater geographical mobility. These
have reduced levels of natural surveillance and informal social control in the community.
Finally, government policies can be unintentionally criminogenic. For example, with
regard to unemployed youth, reducing benefits to save costs and motivate efforts to find work
may inadvertently create marginalised poor groups of youngsters many of whom may believe
they have little to lose and more to gain from succumbing to temptations to become involved in
crime.
New strategies are needed for new situations.
8.Persuade individuals and organisations to accept responsibility for crime prevention21
It is one thing to identify a crime problem. It may even be possible to devise promising
ways to responding to it. It is another to persuade those able to act that they should do so. In one
study, for example, a retailer only agreed to introduce suggested measures to prevent shop theft
when the police threatened no longer to respond to calls to deal with shop thieves caught by
store detectives. Manufacturers of cars have likewise been reluctant to increase their costs by
building anti-theft devices into their products. Within local authorities, the decisions by
individual departments, such as education, leisure, housing, planning and social services, can all
impact on crime situations though, without explicit responsibility, none will take the lead and all
may be reluctant to attach priority to crime-impact in formulating and implementing their
policies. Much the same goes for central government. Responsibility needs to be imposed where
it is not accepted voluntarily.
9.

Work in partnership22

Successful, systematic crime prevention depends on agencies working together, though

this can be difficult to achieve in practice, since agencies for whom crime reduction is not a
central part of their mission are often reluctant to be moved from their own agendas. Most
crimes are committed when a motivated offender meets a suitable target with nothing or no one
to keep them apart. A wide range of agencies - across the public, private and voluntary sectors influence the frequency with which this happens. Some affect the supply and movement of
motivated offenders. Some affect the supply and movement of suitable targets for crime. Some
affect the supply and movement of those who might keep offender and target apart either by
21

See G. Laycock and N. Tilley (1995) "Implementing Crime Prevention", in: M. Tonry and D. Farrington (eds.) Building a Safer Society, Crime
and Justice, Vol. 19, Chicago: Chicago University Press; G. Laycock (1996) "Rights, roles and responsibilities in crime prevention",
in: T. Bennett (ed.) Preventing Crime and Disorder: Targeting Strategies and Responsibilities, Cambridge: University of Cambridge
Institute of Criminology.

22

See M. Liddle and L. Gelsthorpe (1994a) Inter-agency Crime Prevention: Organising Local Delivery, Crime Prevention Unit paper 52, London:
Home Office; M. Liddle and L. Gelsthorpe (1994b) Crime Prevention and Inter-agency Co-operation, Crime Prevention Unit paper 53,
London: Home Office; N. Tilley (1992) Safer Cities and Community Safety Strategies, Crime Prevention Unit paper 38, London:
Home Office.

101
protecting potential targets, or exerting informal social control on would-be criminals. There are
also organisations, most notably the police but also for example probation services, insurance
companies, fire services and local authorities, which have records showing where and when
there are particular crime problems. With this information, we know where organisations need
to work together to prevent the ingredients for crime from coming together. In many towns and
communities now, across Europe, local crime prevention partnerships exist, with publicly
funded community safety officers. In Britain, close to two-thirds of local authorities are involved
in multi-agency groups. In the more urban, higher crime areas over half have a full-time coordinator funded with public monies.
10.

Think through the appropriateness of the crime prevention measure to the context of the
problem23

There are no magic bullets in crime prevention. Crime prevention is rendered a

disservice and resources are wasted unless measures are carefully thought through in terms of
the ways in which they might bring about intended outcomes in specific, local contexts. This is
hard work, but there is no alternative if we want to be effective. It is not measures per se that
work, but their capacity to trigger preventive mechanisms in given contexts.
There is a rather sad and long history of supposedly "failed" crime prevention efforts. To
begin with, a carefully implemented novel measure reports initial success. Its achievements are
trumpeted, and picked up by politicians or opinion leaders anxious to be seen to be taking
advantage of the latest opportunity to reduce crime. It is then treated as a cure-all, and
uncritically advocated for general adoption. It is widely implemented without much thought as
to its suitability for any particular crime situation. "Scientific" evaluations are then undertaken of
typical or representative examples. Because the specific conditions needed for the measure to
work will seldom happen to be in place, these evaluations ordinarily come up with disappointing
findings. Unless some political or other imperative means that it cannot be dropped, confidence
in the crime prevention potential of the measure wanes, and it is dropped. A new search for a
new answer to the crime problem begins. And we are back into the cycle. Such is the story, for
example, of offender rehabilitation and of neighbourhood watch, and such is predictably going
to be the case with closed circuit television which is currently being very widely introduced in
Britain. In the case of rehabilitaiton and neighbourhood watch it has taken some years to realise
that they can work for some, but only if the contextual conditions are met.
Principles and crime prevention: equity, utility, rights, and responsibilities
Crime prevention can address crime problems effectively whilst avoiding attaching
blame for it only to individual offenders who are themselves often victims of conditions beyond
their control. Crime prevention does, however, raise its own ethical questions.
Crime prevention methods which operate by blocking crime opportunities raise the
problem of crime displacement - the deflection of crime from one target, method, time, or
technique to another. There is no evidence that there is a fixed volume of crime, and that it
merely manifests itself in one way rather than another - if that were the case we might
collectively do just as well to dispense with locks to our houses and cars! Some crime will,
however, be displaced in some circumstances, whether the crime prevention measures are by
23

See N. Tilley (1996) "Demonstration, Exemplification, Duplication and Replication in Evaluation Research", Evaluation, Vol. 2, No. 1, pp. 3550; R. Pawson and N. Tilley (1997) Realistic Evaluation, London: Sage; Laycock and Tilley op. cit.

102
individuals or by public bodies. This means that crime prevention is inexorably drawn into
considerations of crime distribution24. The issue is made more poignant by what we know, as
already indicated about the uneven distribution of crime. Though policitians may be reluctant to
address them, crime prevention policies and practices raise thorny questions about distributive
justice, this time of a bad rather than a good. One response could be to say that all crime
prevention should be up to individuals, but given the traditional role of the state in securing
internal security from predation this might be difficult to defend convincingly.
Issues of utility are also raised. The interests of the community at large may conflict with
those of individuals. Individuals might maximise their freedom from crime by excluding those
others they consider undesirable, for example from gated communities and privately owned
shopping malls. These are already common in parts of the United States and now making an
appearance in Europe also. Yet the divisions in society resulting from such developments may
help create a fractured society of mutual mistrust that reduces overall levels of utility. There is
also a utility problem in regard to the allocation of efforts to prevent criminality. Resources
available are, of course, limited. Universal services sufficient to affect those most at risk would
be very costly. Yet diverting resources only to those deemed most at risk of becoming involved
in crime can risk their stigmatisation.
Views on rights issues raised by various crime prevention methods may differ from
country to country. In Britain, there is little or no disagreement that the individual's rights to own
a gun should be strictly limited, whilst in the United States the right to bear arms is enshrined in
the constitution, and efforts to make restrictions meet with a barrage of resistance. In Britain
also, there has so far been only muted resistance to the widespread introduction of closed circuit
television in public places as a crime prevention measure. In most continental European
countries it is thought much more likely that CCTV would be objected to because it is deemed a
threat to rights to privacy25. In New South Wales in Australia police undertaking random breathtesting for drivers to check that they have not been drinking excessive alcohol appears to have
been accepted, and to have been very effective in reducing deaths on the road26. It is doubtful
whether this would be accepted in many other countries, even Britain. In many continental
European countries identity cards are taken for granted. In Britain compulsion to carry them is
anathema.
The issue of responsibility-allocation is problematic. It is widely believed important to
hold offenders ultimately responsible for their crimes. There is, though, much that potential
victims can do to reduce their own crime risks, and many crimes occur where victims have
failed to take what might be considered reasonable precautions. There is reluctance to attribute
any responsibilty to them, however, as this is seen to involve unfair victim-blaming. Even where
responsibilities might seem obvious, for example in the case of manufacturers and distributors of
goods vulnerable to crime or even designed as tools of crime, the rights to manufacture and
distribute in accordance with market principles may be taken in some countries to take priority
over responsibilities allocated to and enforced on business.
24

See R. Barr and K. Pease (1990) "Crime placement, displacement and deflection", in: M. Tonry and N. Morris (eds.) Crime and Justice: A
Review of Research, Vol. 12, Chicago: University of Chicago Press; T. Hope (1996) "Communities, Crime and Inequality in England
and Wales", in: T. Bennett (ed.) Preventing Crime and Disorder: Targeting Strategies and Responsibilities, Cambridge: University of
Cambridge Institute of Criminology.

25

On the rights issue with regard specifically to closed circuit television, see S. Davies (1996) "The case against: CCTV should not be introduced",
International Journal of Risk, Security and Crime Prevention, Vol. 1, No. 4, pp. 327-331.

26

See Homel (1995) op. cit.

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Conclusions
-

There is ample scope for effective crime and criminality prevention, if the precepts
outlined are followed.

Crime prevention is not once for all. It requires continuous attention to emerging
national and local crime problems.

In planning effective crime prevention, it is necessary to think through how the measures
being contemplated will work in particular contexts to bring about intended outcomes.

Crime prevention policy-makers and practitioners need to be aware of and to be able to

defend the moral assumptions built into the approaches they adopt.

104

Written communications relating to theme 1.ii

Written communication by Mr Jean-Marc ELCHARDUS, Member of the
Criminological and Scientific Council, University Professor, Lyon (France)
The role of psychiatry in the treatment of criminals
Among the methods of combating serious crime, the most efficient until now have been
incentive or punitive measures designed to encourage respect for laws and punish infringements.
Medical treatment or therapy can only play an incidental role, even if there was a period, albeit a
short one, when positivist criminology attempted unsuccessfully to impose a medical approach
as the frame of reference for the identification and treatment of criminals.
Nonetheless, medicine and, more particularly, psychiatry have always played an integral
part in the criminal justice system. Ever since the establishment of a retributive, egalitarian
justice system, justice and psychiatry have been inextricably linked. The relationship between
the two has varied from collaboration to subordination and from competition to alliance.
Broadly speaking, it can be said that the relationship is dominated by actions which are vital for
the functioning of justice and in which psychiatrists play an irreplaceable role.
Psychiatrists are vital to judges for two main reasons and make a useful contribution
towards the functioning of justice in several other areas. The two main reasons relate to the
psychiatrist's function as an expert who is capable of providing a scientific view of the workings
of the human psyche and any anomalies present. Psychiatrists have to identify and describe in
their reports any mental illnesses that the accused may be suffering from which would nullify or
diminish their criminal liability. They must also evaluate the danger the criminal might present
in criminological terms, ie in terms of the risk of recidivism.
In a number of European countries, a third task assigned to psychiatrists forms an
integral part of the criminal justice system. In institutions which combine the serving of a
sentence with therapeutic measures, psychiatrists treat criminals with psychological disorders, in
the hope that this treatment will make them less dangerous.
These three summarily presented duties form the hard core of society's demands on
psychiatrists in the area of justice. They constitute the fixed and unchanging criminological basis
of the role of the psychiatrist in any criminal justice system, whatever the methods and
arrangements used in each individual country for its performance. The justification for this is
very simple: the courts cannot punish madness without debasing themselves, and only the
scientific knowledge of a doctor can provide them with an objective basis for a judgment and
propose an alternative or an addition to the punishment which, in the guise of a cure, offers a
means of assuaging violence then qualified as pathological.
In addition to this criminological hard core which is vital for justice to function, another
duty is assigned to psychiatrists. Compared to the main objectives described above this aspect of
the psychiatrist's work may seem incidental but in fact it is the one which has developed most in
the last ten years or so in western countries.

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It concerns the health of the prison population. The presence in prisons of psychiatrists
or, preferably, psychiatric teams is fully justified by the high proportion of inmates with mental
illnesses.
This summary description of the role of psychiatrists in the judicial field would seem to
indicate that, in theory, psychiatrists are only concerned with questions of health and pathology,
with other people being responsible for implementing social measures or for the behavioural
rehabilitation of dangerous criminals. Though we should not lose sight of these principles, it
would be pointless and unrealistic to leave things at that, without looking further at the complex
interactions around these problems.
I.

THE ROLE OF EXPERT APPRAISAL

Psychiatric appraisal involves assessing responsibility or, to be more precise, identifying

psychological disorders likely to nullify or diminish the criminal responsibility of the accused. It
also involves an assessment of the danger the accused presents. This exercise raises a number of
specific difficulties.
The first of these relates to problems of language and communication. Psychiatry is far
from speaking with one voice, and the criteria for analysing and interpreting comparable
observations vary significantly according to the prevailing frames of reference for psychiatric
practice in each country. Neither legal rules nor sociological principles provide an appropriate
basis for the diagnosis of mental illness; all diagnosis must be related to the case history of the
individual concerned and this is why it is difficult to generalise.
Nonetheless, some effort to standardise psychiatric terminology is being made through
the major international classifications of mental illnesses (ICD 9, ICD 10, DSM IV, etc.) and, at
least at the descriptive level, there is a point of reference which, although not dealing with
concepts, establishes a common language for psychiatric practice as a whole.
The second problem lies in the way in which information is communicated between
medical and legal circles. The expert's opinion relates not to legal concepts but to clinical
observations. Information in the two fields is subject to two separate systems of logic, and some
interpretation is required when it passes from one to the other. This requirement is not always
acknowledged and it is too often the case that clinical data are interpreted de facto, as objective
facts, and sometimes virtually as evidence. Communication between psychiatrists and judges
therefore calls for a special effort on both sides to ensure that ideas are not distorted by being
transposed carelessly from one context to the other.
This is a very delicate issue in major criminal cases where psychiatric reports can be
interpreted either as an attempt to excuse the accused's actions on grounds of madness or as
scientific evidence of incurability. In either case, the sentence passed will tend to be more
severe.
The problems of psychiatric appraisal and admissible presentation of findings are less
crucial when the accused is obviously suffering from a serious pathological problem. Depending
on the country, these patients are sent to specialised prisons or state-run psychiatric hospitals.
However, the current trend in forensic psychiatry is to avoid regarding mentally ill offenders as
not responsible for their actions on the ground that, however deranged these offenders might be,

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a failure to take their actions into account in the public reaction represented by a trial would be
tantamount to "psychological death".
Interpretation becomes more difficult in cases of less serious mental illness or
personality disorders. Here the scope for uncertainty is greater and forces the expert to talk in
terms of probabilities and areas of doubt, which arouses the court's misgivings. The problem is
clearly illustrated by the example of antisocial personalities and psychopathic personalities
whose emotional disturbances prompt them to commit offences but who present no
psychological disorder obvious enough to suggest lack of responsibility for their actions.
Generally, individuals of this sort are shunted between psychiatric hospitals and prison with no
truly satisfactory solution for dealing with them. The experience of psychiatrists working in
prisons shows that it is possible to treat these violent individuals and that beneath their
apparently uniform behaviour lie profound and complex pathologies. Therefore, neither doctors
nor judges should be content with categories based exclusively on acts, in what BERNHEIM
called a negative conflict of responsibilities.
Assessments of dangerousness have been much criticised owing to their lack of
reliability. Research in this area still focuses for the most part on statistical criteria, which cannot
be applied without the risk of presenting a falsely positive or falsely negative picture of the path
of a given individual. Suffice it to say that in this area we should attach more importance to
arranging regular, multi-disciplinary reviews rather than rely solely on the expert opinion of the
psychiatrist, who is not always the person best qualified for making what is more of a prediction
than a prognosis (CANEPA). The question of violence is as much present in the psychiatric field
as it is impossible to give a clinical definition of dangerousness.
Another type of request which judges make of both psychiatrists and psychologists is to
include in their appraisals details gathered during their examinations of the accused which may
enlighten the court on the subjective and psychological factors underlying the defendant's
actions. Alongside the criminological appraisal referred to above, the purpose of this report is to
give the court a psychological portrayal of the person before them to shed light on the offence
being tried. In a sense the psychiatric expert then ceases to be merely the recognised source of
knowledge on mental disorders and becomes the person who explains the perpetrator's ego and
possibly also what the act meant to him or her.
Throughout these activities of appraisal, the duties of doctors, although determined by
the courts, must still be performed in accordance with their professional code of ethics and with
reference to human rights. Therefore, the presumption of innocence and the need for the person
concerned to give his or her consent and for confidentiality to be respected regarding facts which
are not associated with the work of appraisal are among the ethical rules which should determine
the position of the expert vis--vis the person he or she is examining. Seen from this point of
view there is much to support the notion that expert appraisal, though not an act of therapy in
itself, does have therapeutical or anti-therapeutical properties.
II.

PSYCHIATRIC TREATMENT OF THE PRISON POPULATION

A 1993 report of the French High Committee for Public Health advances figures which
appear in a number of other publications suggesting that 20% of inmates need psychiatric
treatment. Depending on the prison, between 45% and 60% of prisoners admitted suffer from
psycho-pathological disorders or have a personal or family history of psychiatric problems. As
regards the pathological profile of patients, the most frequent diagnoses, according to the criteria

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set in DSM III R, are antisocial personalities, borderline profiles and passive/aggressive
personalities.
Therefore there is a need to provide effective treatment for this large group of people,
more with a view to improving public health than in the criminologically motivated hope of
reducing dangerousness. Though it is not a priority, this latter objective is acknowledged and is
sometimes emphasised in certain countries or for certain types of crime. Be that as it may,
setting up psychiatric units in prisons calls for major re-organisation and considerable resources.
Quality psychiatric treatment cannot be provided by one psychiatrist alone but requires a team
capable of functioning as an institution.
The relationship between the justice system and psychiatry cannot therefore be based on
strict demarcation of their respective spheres, with each dealing with its own "clients" after an
initial sorting process legitimated by a scientific examination. Despite this self-evident truth, the
"founding myth" of this distinction continues to shape the response of institutions to the
confused and confusing field of violence, crime and madness. For want of any success in setting
up wholly unambiguous systems which everyone can recognise and in which punishment and
rehabilitation are the responsibility of the penal system and treatment and cures the
responsibility of the health system, we have to accept a modus vivendi in which prison sentences
have to take account of mental disorders and psychiatric institutions cannot ignore
criminological concerns.

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Arrangements for this essential co-operation can take varying forms according to the
country or cultural tradition involved. In France, for example, a substantial proportion of
psychiatric care in the prison system is performed by psychiatric units administered by the
public health system and based in remand prisons. In theory therefore these units are technically
independent of the prison authorities, both in the methods they apply and the aims they pursue.
The object is clearly to provide prison inmates with treatment comparable to that dispensed in
public hospitals, in accordance with the same code of ethics as for the general public. More
specifically, and paradoxical as it may seem, this means that there is no question of forcing a
prisoner to attend one of these "in-house" clinics against his or her will, since prisoners can only
be given treatment according to the ordinary rules of ethics requiring the patient's free and
informed consent.
In other countries such as Italy or Germany, hospital institutions within the judicial
system take care of prisoners requiring psychiatric treatment. In these institutions priority is
given to the requirements of care and the service is organised according to the dictates of
treatment, which may include the implementation of transitional measures such as conditional
release and a gradual return to life in the community. Nonetheless, the medical teams in these
institutions still have a major share of the responsibility for security and to a certain extent
doctors may be called to account for any recurrences of criminal behaviour on the part of the
patient placed in his or her care.
It becomes apparent from this that, irrespective of the quality of care provided, there are
two fundamentally different approaches to the role of psychiatrists among the prison population.
In the first scenario the psychiatrist is there simply to allow prisoners the same access to
treatment as the general public, with no expectation of any direct criminological benefits, even if
it is obvious that, for certain individuals who have been exposed to violence, a better
psychological balance will prevent them from committing further crimes. In the second scenario
the health service becomes involved directly in the penal process not only in treating
psychological disorders but also, and perhaps even above all, in attempting to alter violent or
criminal behaviour with the aid of psychiatric techniques.
The decision on whether or not psychiatric care in prisons should embrace the
criminological objective of reducing recidivism among its aims and methods of treatment
depends on a number of factors. Among these brief mention may be made of the fact that,
depending on the country, responsibility for prison health services is assigned either to the
prison authorities or to the Ministry of Health. This is where crime policy options have their
place, allowing the development of probation services to a greater or lesser extent, the
implementation of goal-orientated prison reforms or the setting up of specialised prison sections
for certain crime categories. These options are also influenced by medical tradition and health
policies which, depending on the country, make the management of major social maladjustments
the responsibility either of public psychiatric services or of the welfare support system. In some
places the main concern is the treatment of the pathological problem and in others the emphasis
is on the social reintegration work required.
In France the organisation of somatic and psychiatric medicine for prisoners is the direct
responsibility of the Ministry of Health, as stipulated in the law of 18 January 1994. Clearly
implicit in this approach is the recognition of the technical independence of clinical practice
from the prison authorities. The aim is to allow the prison population the same access to
treatment as the general public. In the psychiatric field, the regional medical and psychological
services (SMPR) working in the remand prisons of each prison district are genuine prison

109
psychiatric units and are fully integrated into the general medical provisions for mental health.
This provides a structural guarantee of the technical independence of medical personnel in
prisons.
In most other countries, the prison authorities are in charge of medical services and
therefore it is up to the doctors to establish the framework and set the limits for their work in
prisons.
The question of technical independence is of such importance because it constitutes a
major dividing line between, on the one hand, matters of a medical nature and, on the other,
programmes of rehabilitation and behavioural change involving psycho-social work more than
actual treatment.
Techniques to change behaviour are not the prerogative of doctors, psychologists or
medical teams and can be implemented by other persons who have learnt these techniques,
without there being any clear therapeutic aim in what becomes the implementation of a
programme. This lack of clarity as regards aims, much more than the technical decisions
themselves, may entail the risk of sometimes quite insidious slippage between a position
determined ethically and clinically for the provision of the appropriate treatment for a properly
identified pathology and normative measures using medical techniques or even medicines not
for the purposes of treatment but in order to correct deviant behaviour.
The risk of excesses of this kind is insidious because the references justifying and
determining the action can be completely distorted: this is the case with prison doctors who
systematically prescribe excessive doses of neuroleptics or with the suggestion systematically
put to certain types of offender that they follow rehabilitation programmes which are presented
to them as to all intents and purposes a form of probation. It should come as no surprise that the
debate becomes keenest when the perpetrators of certain types of crime are offered help, placed
on rehabilitation programmes or subjected to treatment. We are talking here about violent acts
which seriously offend our moral sense or break the most sensitive social taboos, e.g. sex
crimes, paedophilia, apparently gratuitous violence, serial killings...
Whereas the large majority of inmates are offered little in the way of therapy, and this
amid a general indifference, the above-mentioned violent criminals become the focus of public
attention, giving rise to calls for draconian measures going beyond the strict enforcement of a
prison sentence.
III.DO CERTAIN TYPES OF CRIMINAL REQUIRE SPECIAL TREATMENT?
The question of how to categorise criminals becomes most pressing when dealing with
these violent criminals: are they ill or are they criminals? It is no wonder that it is in relation to
the most scandalous offences that the fundamental question referred to above is also being raised
in reality. It would seem that, particularly where the murder of children is concerned, the notion
of a social responsibility shared between the main institutions reaches its limit. However, by
abolishing the death penalty, society has chosen to keep within its midst those people to whom it
cannot relate. This being so, there should be no question of condemning these people to a "social
death", which would be less severe and no doubt less noticeable if presented as therapeutic
relief. Nor should there be any question, despite the severity of their sentences, of establishing a
small group of individuals who, because of their inhumanity, are denied the benefit of the
ordinary law.

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This brings us to the question of "special" psychiatric treatment for certain types of
offender. Should specialised therapies be provided exclusively for those guilty of certain types
of crime? Some countries have already answered this question in the affirmative, and a typical
example of this is the P.PINEL Institute in Montreal. The North American context lends itself to
the spread of programmes of psycho-social work on the criminal population, and the PINEL
Institute would seem to be the illustration of this trend in the medical field. It seems that ethical
standards and technical independence can be maintained because this is a large-scale institution
with a world-renowned scientific influence.
Returning to the example of France, it is in connection with especially serious sexual
offences involving paedophilia that the principle of separation and independence between
Justice and Psychiatry seems to have been called into question. Recently, in response to public
revulsion at such crimes, an array of legislation has been introduced in this area. Purely punitive
measures (life sentences, extension of sentences not subject to remission) have been backed up
by others relating to therapy for and medical supervision of these criminals. Accordingly, under
the decree of 4 August 1995, it is now compulsory for sexual offenders to receive medicopsychological treatment as part of their sentence and for a psychiatric assessment of the danger
they represent to be drawn up before they are released.
However, these statutory measures should be not be regarded in too absolute a light.
Even if our initial inclination is to regard them as an admission of the judiciary's powerlessness
before the scandalous excess of delegating to a medical institution of a responsibility it cannot
assume, there are other possible interpretations. The courts are not entirely lacking in means to
neutralise these violent individuals and thereby meet the public's expectations. Lengthy
sentences not subject to remission assuage public resentment and partly reassure people that the
"monster" has been removed. According to this strict penal logic, psychiatric treatment seems
rather incidental and verging on an excess of sympathy or humanity...
It is in reintroducing the notion that society has a responsibility towards criminals that
the law acknowledges, in specific provisions, the duty to allow criminals access to treatment. If
we look at the wording of the decree of 4 August 1995 we see that there is no question of
compulsory treatment to be systematically applied to sexual criminals so as to change their
behaviour and allow them to be released in complete safety; it talks instead of a duty to make
treatment available throughout a prison sentence without giving any a priori definition of what
the treatment should consist of or anticipating any particular positive results or even indicating
whether the person concerned should accept treatment. In short, what is proposed is a duty to
provide the means of treatment, with which doctors can but agree, and this does not imply
compulsory treatment and still less any obligation as to results.
Therefore, instead of taking a simplistic and distorted view which would reason in
ideological terms about areas of knowledge which are greatly over-valued and divided along
artificial lines, we should pay attention to the interplay of different functions, characterised by
different aims and methods, and performed by institutions of varying types. The whole problem
lies in ensuring that the relationship between these institutions does not become authoritarian
whenever the public's feeling of insecurity is exacerbated by events.
The temptation for all major social institutions to resort to totalitarian methods should
not be underestimated. The system of justice is particularly prone to this because an inadequate
separation of powers would place it under the control of political authorities. Punishment was

111
after all the original reason for setting up the judicial system, and its structures are still largely
geared towards imposing punishment. The altruistic aim of rehabilitating convicts through their
punishment has still to prove itself in too many cases. It is precisely because lawyers, judges
and, most importantly, legislators are able to transcend this logic that justice is not just the
secular arm of social vengeance, but a founding institution of citizenship and respect for human
rights.
Medicine clearly does not have such a marked institutional influence and founding
function, but its ethical codes embody the right of access to treatment for all people whatever
their faults and a guarantee that all available means will be used to relieve suffering and, if
possible, to cure it. Any risk of authoritarian excess would stem from an abuse of medicine's
power over human beings, whereby a human being would be subjected to medical techniques
regardless of the fact that doctors are responsible firstly to their patients and only then to society.
This temptation has been illustrated on numerous occasions in recent history, when medical or
psychiatric techniques have been misused to further not only reprehensible ideologies but also
respectable social purposes in breach of the ethical rules of free consent, confidentiality and
individual therapeutic benefit.
The risk of authoritarian excesses is ever present and is increased enormously by social
pressures. In the area of sexual crime, there is very little room for manoeuvre, and a recent
tragedy in a prison hospital in one member country of the European Union has provided a
reminder of this. When on conditional release authorised by the chief medical officer of the
establishment, a patient murdered a child in the immediate vicinity of the hospital.
Understandably, the public reacted with extreme outrage and accusations. The tragedy had
terrible consequences for the hospital, in terms both of the fate of the other patients and of the
stability of the medical teams and their projects. The intensity of the tragedy, which crudely
spotlighted the responsibility of the institution and made it total, destroyed all scope for
assessing or interpreting facts that had now become completely exaggerated. With no attempt at
justification, all arguments about a degree of uncertainty, an inevitable element of risk or an
attempt to supervise the patient were doomed to failure. The psychiatric institution was brutally
and negatively reminded of the authority vested in it, by which I mean that in these
circumstances it had to assume full responsibility for what was regarded as an unpardonable
mistake, the implication being, of course, that it should have complete control over its inmates.
Even if the general public is unable in the heat of the moment to appreciate the fact, it is
only marginally - in a situation more of powerlessness than of control - that the medical and
judicial institutions can adapt society's response to the perpetrators of serious crimes of this kind.
This is probably the best antidote to the temptation of all-powerfulness and totalitarian control.
In the field of therapy, the whole scene is still dominated by the embittered conclusion reached
some twenty years ago that, as far as their beneficial effect on recidivism was concerned, the
whole range of medical and psychiatric treatments applied to prison inmates had failed, that
nothing works.
For all that, the treatment of extremely violent criminals is far from being completely
worthless, as is demonstrated by many published results of experiments (Balier, Duncker,
Bernheim, etc.). Treatment of psychiatric disorders in prison is as successful as in the world at
large provided that it observes the same rules and is provided with the same means. Though
success has been limited, there have been far-reaching changes in the last fifty years in the way
the mentally ill are treated and in the outlook for them.

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The way in which psychiatric services in prisons are organised in European countries
takes full account of the complexity of these problems and nowhere is there a system in which
psychiatrists are made wholly responsible for controlling the dangerousness of those criminals
who appear to be the most uncontrollable or the most insane. The Italian system of prison
hospitals has been largely abandoned, and the major Belgian and German institutions for social
protection are governed by very precise rules which avoid leaving psychiatrists to manage and
be wholly responsible for "difficult" patients. The residual danger would be the establishment of
"special psychiatric units" which, with the aid of allegedly successful techniques and the
promise of constant review, managed, despite dozens of earlier failures, to convince people that
criminological security was to be had in programmes designed to change the behaviour and the
personality of individuals taken collectively and treated in the light not of their personal records
but of their membership of a particular category of criminal. We have known for a long time
that criminal categories and clinical categories do not coincide and that although treatment of
prison inmates is largely justified, it should be carried out according to medical rules and not
according to the demands, however legitimate, of the public's desire to feel safe.

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Written communication by Mr Saulius KATUOKA, Professor of

International Law, Chairman of the Council of the Lithuanian Centre for
Human Rights, Vilnius
The role of the Lithuanian centre for human rights in human rights protection
This seminar addresses a very topical issue which is of vital importance if we are to
protect human rights and freedoms and, in doing so, contribute to the development of
democracy.
As a representative of a non-governmental organisation (NGO) - the Lithuanian Centre
for Human Rights -, I am particularly pleased that NGOs have been invited to take part in this
event.
Rights.

First of all, I should like to describe the work of the Lithuanian Centre for Human

This NGO was founded in December 1994. Under its statute, registered at the Ministry
of Justice on 5 September 1995, the Lithuanian Centre for Human Rights is responsible for:
-

raising awareness of, and ensuring respect for, human rights;

running training programmes;
organising academic research on human rights;
analysing human rights problems and submitting its proposed solutions to Parliament
and the Government;
developing cultural activities related to human rights.
The Centre now has about a hundred members, of whom the majority are lawyers.

It is my belief that all NGOs working in the fields of training, education or information
can help to protect human rights and freedoms.
When a crime is committed, both offender and victim have dealings with certain public
institutions which, particularly at this stage of their activities, are required to protect and respect
human rights and freedoms. All persons who are held for questioning should know their rights.
Experience shows that the police and other state institutions do not always take the proper steps
to inform persons held in custody of their fundamental rights. Judge A. Goda, in association
with the Lithuanian Centre for Human Rights, has prepared a clear and concise aide-mmoire
setting out the fundamental rights of persons who have been arrested.
Under Lithuanian law:
-

no one may be detained for longer than 48 hours without a court judgment;

all persons held in custody must be informed of the criminal offence with which they are
charged;

114
-

all persons must be questioned in the 24 hours following their detention. Such persons
have the right to remain silent. Remand prisoners may not be forced to give evidence
against themselves or admit guilt. Torture and humiliation are prohibited.

The law provides that all accused persons or remand prisoners have, in particular, the
right to be assisted by an interpreter free of charge, if they do not understand or speak
Lithuanian.
All accused persons have the right to defend themselves and to be assisted by a lawyer of
their choice or, if they cannot afford to do so, to have, free of charge, the assistance of an
officially appointed lawyer.
The public has responded favourably to the preparation by the Lithuanian Centre for
Human Rights of an aide-mmoire on the fundamental rights of remand prisoners, because
many people did not know what the rights of accused persons and remand prisoners were.
In May 1993, Lithuania became a member of the Council of Europe. In 1995, Lithuania
went further and ratified the Convention for the Protection of Human Rights and Fundamental
Freedoms, including its Protocols Nos. 1, 4, 7 and 11. Nevertheless, few people were familiar
with the international machinery set up to protect human rights and freedoms or knew what
remedies were available for violations of rights and freedoms. This explains the great success of
the Conference on the Implementation of the Convention for the Protection of Human Rights
and Fundamental Freedoms in Lithuania, organised in November 1995 by the Lithuanian Centre
for Human Rights. In our view, training and information programmes have achieved their goal.
Another widely discussed issue in Lithuania is the death penalty. This phenomenon is
not restricted to primitive cultures or uncivilised countries, as people would sometimes have us
believe. All states have their share of both advocates and opponents of capital punishment.
Moreover, many intellectuals and politicians have argued for or against the death penalty.
According to A.G. Amsterdam, three basic ideas recur in the arguments of supporters of
the death penalty: firstly, the notion of retribution; secondly, the notion of removal from society;
and thirdly, the idea of a deterrent. Opponents of the death penalty stick to the same framework,
arguing that it is not an effective deterrent, that the desire to use it brutalises society and, lastly,
that application of the death penalty never entirely satisfies the public's desire for retribution.

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The criminal code of Soviet-occupied Lithuania provided for the death penalty in sixteen
articles for crimes against the State (10 articles), crimes against property (Article 95), crimes
against the life, freedom or safety of an individual (Articles 105-118), crimes committed by
public officials (Article 180), crimes against public authorities (Article 203) and crimes against
public safety and public order.
After Lithuania became independent, the Law of 3 December 1991 on supplementary
provisions and amendments to the Criminal Code was adopted. This Law removed the death
penalty from the Criminal Code and abolished it for all crimes against the State and for other
crimes, with the exception of premeditated murder in aggravating circumstances (Article 105).
According to the Lithuanian Law Institute's information, since Lithuanian independence,
death sentences have only been passed under Article 105 of the Criminal Code. Between 1990
and 1995, thirty-one murderers were sentenced to death: the sentence was carried out in four
cases and commuted into life imprisonment in the other twenty-six cases.
To judge from sociological surveys, the majority of Lithuanians are in favour of the
death penalty. These are the figures:
-

in December 1990, 60% of those interviewed supported and 27% opposed the death
penalty;

in September 1992, the figures were 66% and 19% respectively.

The imminent elections to the Seimas made it difficult for members of parliament to
adopt the law abolishing the death penalty. The President of Lithuania therefore took the
initiative and proposed resolving the problem of the death penalty in three stages. The first
involves not carrying out death sentences, the second refraining from passing such sentences and
the third, legal abolition of the death penalty in Lithuania. One would hope that upon reaching
stage three, Lithuania would ratify Protocol No. 6 to the Convention for the Protection of
Human Rights and Fundamental Freedoms on the abolition of the death penalty.
The majority of the Board of the Lithuanian Centre for Human Rights supports abolition
of the death penalty.
The famous Italian thinker Cesare Beccaria, one of the most influential theorists in
criminal law, was explicit on this point: "... if I can prove that the death penalty is neither
necessary nor useful, I shall win the case for humanity". It could equally be said that if the
Lithuanian Centre for Human Rights can prove that the death penalty in Lithuania is neither
necessary nor useful, it will win the struggle for humanity by consolidating man's natural right to
life.
battle.

It is my heartfelt wish that the Lithuanian Centre for Human Rights should win this

116
Written communication by Mr Francesco BRUNO, Chair of Forensic Psychopathology,
Department of psychiatric sciences and psychological medicine, University of Rome La
Sapienza, Rome
The phenomena of pentiti in the fight against serious crime
1.

Introductory remarks and legal sources

Seventeen years ago, Italy began to utilise the so-called "repented" (pentiti) as a decisive
tool in the fight against that crime which aroused remarkable social alarm.
At the beginning, it was simply to allow and to favour the destruction from the inside of
criminal terrorist groups strongly connected from links of fanatical connivance.
Afterwards, given also the undeniable success of the initiative, this method was applied
also to other forms of crime, not without discussions and hesitations.
Through a long period, in the 1980s, the different prosecutors who took the first
initiatives of organic fight to the organised crime strove as well as they could to apply each
possible legal tool to favour the big first "repented" of the criminal system, but it is only at the
beginning of the 1990s, that, by means of a fragmentary legislation, it has been come to a
regulation of the matter.
From this moment the "repentance" stops to be a peculiar condition that affected few
person, and becomes an important phenomenon involving thousands of subjects, affecting not
only the judicial practice, but also the entire system and even the future of the crime.
To give an idea of the bumpy and complex path that the legislation on the "repented"
people followed it is enough to observe the different normative sources which have regulated the
phenomenon of the "repented" during this time. In short, in Italy the first legal provision on
"discounts of punishment" for those who had collaborated with justice: admitting their own
guilt, denouncing accomplices, indicating the bases and eventually preventing the
accomplishment of future criminal actions, is foreseen in article 4 of the Law no. 625 of the
15/12/1979.
The first true measures based on the recompense of the collaborators against the
organised crime have been issued with the DPR 9 October 1990 no. 309 known as "law on
drugs" and then the law 15/3/91, no. 82 modified through the law 8 June 1992, no. 306 that
foresees an organic discipline of the matter focused on the protection of those subjects that
collaborate with the justice.
The provisions of such law regard in particular: "the people exposed to serious and actual
danger because of their collaboration or their declarations in the course of the preliminary
investigations or of the trial, in relation to the crimes foreseen in the article 308 of the penal
procedure code".
They regard even "the near relatives, the partners and those who are exposed to serious
and actual danger because of their relationships with the collaborators". The law has created a
"central commission for the definition and application of the special program of protection".

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This Commission is composed "of one under-secretary of State, two magistrates and five
experienced officers in this matter".
They can be supported for education and assignments by the secretariat of the office for
the co-ordination and the planning of the forces of Police".
The admission to the special program is decided by the commission on proposal of the
government local authority (Prefetto) with the favourable opinion of the prosecutor.
In case of urgency, the head of police can take the decision and afterwards inform the
minister.
The collaborators to admit confirm "to select their residence in the place that the
commission establishes, to release to the proponent authority each documentation regarding the
own personal state, the state of their family and of their income. They designate an own general
representative pledging themselves:
1.
2.
3.
4.

to comply with the prescribed rules of security and to collaborate actively to enforce the
program;
to make the declarations and to work out the activities and the deeds in relation to the
adopted program;
to fulfil the foreseen law obligations and the drawn engagements;
not to release to different subjects from the judicial authority and from the forces of
police declarations focusing relevant situations for the trials in relation to which they
have paid their collaboration.

The programs are developed from the central service of protection that is located within
the department of public security".
Besides "discounts of punishment", that could also become very sensible, taking into
account that the new penal trial allows the application of different procedures, which could arise
to the defendant others improvements just in terms of punishment, some counterweights to
reduce the danger of false declarations and in the same perspective the foreseen punishment of
calumny. In these cases, the punishment is largely increased.
The law has granted important benefits regarding the penitentiary treatment to those that
chose to collaborate with the justice.
Still once to the concession of the benefits is associated an aggravation of the
penitentiary treatment for the prisoners for crimes of "mafia".
Among such benefits, we can remember "the possibility to work out of the prison, the
permissions as reward for behaviour and the different alternative measures to the detention, such
as: the commitment to the social service, the detention at home, the partial liberation and the
anticipated liberation".
The above said benefits can be given also if the collaboration is not relevant from an
objective point of view. In this case, nevertheless, sufficient evidences should be obtained to
exclude certainly an actual connection of the subject with the organised crime.

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The call of accomplice becomes then the only proof of the break of each connection with
the organised crime, and in this perspective, it represents that role of amends foreseen in view of
the benefits from the penitentiary code.
A year later, on 8 August of 1992, finally the so-called Law "Martelli" of the 7/8/92 no.
356 came into force.
It is based on the homonym decree (DL 8/6/92 no. 306) in force from the 9 June of the
same year.
The crucial moment of the legislation on the "repented" can be collocated certainly
between 1990 and 1992. This was a very troubled period that corresponded to the years of the
passage from the first to the second republic and it is also the moment in which the challenge of
the criminal system to the State achieved the maximum levels with the so-called "season of the
massacres and bombs".
In the 1980s, the Italian system of the penal justice changed through relevant reforms
like the penitentiary and that of the new code of penal procedure, and through many other
particular modifications and revisions of the legal provisions.
Finally new offices have been created as the National Direction Antimafia (DNA) on the
judiciary side and on the police side the Investigative Direction Antimafia (DIA).
At the same time, the whole system has evolved towards an ever higher specialisation
and the utilisation of rewards.
These changes sometimes confused and often not homogeneous with the structure and
the general principles of the system nevertheless appeared very effective, at least in achieving
some immediate objective.
The reform in preparation of the new penal code could constitute an adequate instrument
to reduce such developments in a new and rational frame.
Up to now the changes have appeared mostly extemporaneous and not enclosed within a
more general and strategic plan.
The text of the law "Martelli", for example, has been realised as reaction of the State to
the aggression of the "mafia" against the institutions, and culminated in the massacres of
"Capaci" and of "via d'Amelio" in which the judges Falcone and Borsellino lost, among the
others, their own life.
It has shown all its effectiveness as tool of fight against the organised crime and, among
other norms that foresee modifications to the penal and to the penal procedure codes, in
penitentiary matter, on the measures and the activities of prevention. It also contains specific
"new measures for the protection of persons who collaborate with the justice."
The DL 29/3/1993 no. 119 finally has arrived to regulate the change of the names and
addresses for the protection of the subjects, who collaborate with the justice.

119
2.

The phenomenon of the "repented": elements for description and evaluation

According to several high officers of the penal justice system, the phenomenon in these
years became a decisive instrument of investigation in the attainment of highly positive results.
Among the more remarkable effects, the following have been identified:
1.
2.
3.

Informative contribution on the structure and on the function of the criminal groups;
Contribution to the investigations;
Crushing effect of the not known revelations within the hard core of the organisations.

Among the possible problems which the phenomenon can cause, in particular, the
following have been suggested: the incorrect usage of the declarations that can, in such a way,
become sources of misinformation and of informative intoxication.
Few people believe in the hypothesis of the existence of false "repented", who could be
used by the "mafia" as instruments of misinformation.
In fact, up to now, its verification has not been demonstrated.
Besides this, the relationship between the collaborators and the investigator is clear and
framed in precise and encoded rules.
Finally because of the magistrates who are sufficiently crafty and expert for
understanding the truth.
Today nobody doubts the effectiveness of the tool of the "repented", even if many people
retain that such a delicate question should be still well regulated and firstly collocated in a
harmonic legislative and constitutional framework.
However, it is also sure that many political parties and many experts and scholars of the
law are very doubtful on the tool of the "repented" in general, and on the effects that it could
cause not in terms of effectiveness, but in terms of costs-benefits analysis.
Likewise surely nobody could resolve these problems, in fact the matter has never been
faced from a scientific and planning perspective and the results have never been submitted to
analysis and to an adequate evaluation.
Up to now this seemed a taboo, almost a question of faith, and the supporters of the tool
arrived to such a degree of silencing each critical voice accusing it to do the play of the "mafia"
and to weaken the struggle against the octopus, finally to leave alone the magistrates of front
line, exposing them and the "repented" to the atrocious revenges of the criminal system.
If we think that those who openly defend the "repented" are just the prosecutors, that
they are responsible to start the penal action and finally that this country invented the crime of
"external support to organised criminal association", it is well understandable how any critical
voice could be suddenly silenced; the difference between the role of critic of a system and that
of supporter of the opposite system could become very slight and disappear with the possibility
of an overlapping of the two roles and of a personal involvement as object of penal action.

120
Some examples of this aberrant path unfortunately occurred even to very well-known
persons.
Only from August 1996, with the so-called "affaire Brusca", it seems become permitted
to intervene and to criticize the system of the "repented". On that occasion, a head of "mafia",
such Giovanni Brusca - just captured - decided to collaborate with the State. At the beginning
the news has been maintained secret, then just in the period of mid-August it has been diffused
with a consequence of dramatic unexpected happenings.
First the former lawyer of Brusca confessed, without any stimulation, that his former
client had played an important role in the contact of an important political personality and to
negotiate with him, not only his repentance, but also the indictment of other big political
personalities.
In a second phase, the content of some declarations of Brusca has been divulged.
According to these, he would have substantially contradicted many facts cleared by all the others
"repented".
Finally, in a very hot climate, the most important police officers and the judges who were
interrogating Brusca declared that he had confessed his preliminary planned project aimed
especially at the purpose of defaming and misinforming, but also that the same "repented" would
have soon abandoned it.
The real consequence of the "affaire Brusca" seems to have strongly decreased the
reliability of the "repented" who for the future wanted to be believed by the State.
Substantially it has been said that the reliability of a "repented" does not depend as much
on the content of his assertions, as instead on the judgment of the prosecutor who interrogates
him and, for our system, is the unique guaranteeing authority.
It means that anything the "repented" wishes to say, he will take into account all things
officially accepted and that each dissonant voice will be evaluated in terms of reliability, only on
the basis of the unique and undisputed judgment of the prosecutor who has him in charge and
will continue to be the only authority that can propose the subject for a program of protection
and for the foreseen benefits.
Finally, the possibility that the "repented" could lie has been admitted, and the chance of
criticism has been admitted too, but the foreseen solutions to change the system seem to move
only in the direction of a confirmation of the arbitrary way of decision making by the prosecutor,
who in the next future should transform himself in a filter able to substantially reduce the
growing number of "repented", only on the basis of the coherence of the new declarations with
the majority of information earlier collected and believed reliable.
In this work, the prosecutor can be supported only from his experience, specific
sensibility and individual preparation.
It seems almost that Brusca has felt the worry of the government for the uncontrollable
increase of the number of the "repented" and has offered the occasion to restrict the criteria of
the future enrolment of the people in the role of "repented".

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As in the recent past, it can be said: "Few, but good, and over all in dominant positions".
We do not know if our malicious interpretation of the Brusca case is right, but it seems to
us that again the government are going to close to the "repented" what it had just opened, and
again in a completely arbitrary way without any reasonable evaluation neither forecast of the
effects, of the costs and of the particular and general consequences that they involve.
The proof of our hypothesis is contained in the report to the parliament for the period 1
January-30 June 1996 that the Minister of interior sent just after the "Brusca scandal". From
such document, we can draw a set of data that quantifies the phenomenon only in a very general
manner, without any adequate element for a more deep analysis. The comments and the changes
suggested by the report are oriented in the above indicated direction.
According to the ministerial report, on 30 June 1996 the collaborators of justice were
totally 1,244, 125 more than on 31/12/95.
The relatives protected were 4,997 against the 4,898 on 31/12/95; 6,241 subjects are
totally in charge of the Protection Central Service.
The offices of prosecutor that have presented a major number of proposals are in the
rank: Naples, Catania, Palermo, Milan, Bari, Catanzaro, Torino and Lecce.
On the total of 1,244 collaborators, 1,177 are "repented" and 67 "witness".
Of the 1,177 "repented": 430 come from the "mafia", 224 from the "camorra", 158
from the "'ndrangheta", 101 from the "Sacred United Crown" and 264 from other criminal
groups.
Of the 67 witnesses, 22 are for "mafia", 36 for "camorra", 12 for "'ndrangheta", 10 for
"Sacred United Crown", 8 for other.
Of all the population of the subjects under the protection program: 743 are free, 248 are
in prison, 106 have alternative measures to the detention, 7 are resident in foreign countries,
65 are arrested at home, 8 have held in structures out of the prison.
Of 1,244 collaborators: 1,139 are masculine and 105 female.
Of 1,107 "repented": 1,037 are masculine and 70 female.
Of 67 witnesses: 32 are men and 35 are women.
61% of collaborators are married, 18% are not married, 9% are divorced, and 10%
are living together.
From 1991 to present day, 160 programs have been modified, 441 programs are less than
one year old, 393 are from one to two years, 154 from two to three years and 44 are from three
to four years.
The special programs cancelled in the last six months are 24. The collaborators identified
for their inadequate behaviour are 131.

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The Central Service of Protection declares that around 16,000 travels have been realised
last year to escort the collaborators in the places where they had to participate in different trials.
Each day, 50-60 collaborators move across the national territory.
The first data that catches our eye from this presentation is represented by the really
geometric increase of the subjects under program of protection and of the total number of
relatives. In five years, this number totals more than 6,000 subjects.
If we compare this data with the not more than 15,000 persons protected by the Witness
Security Program in the U.S.A. (with a population four times bigger than that of Italy) in around
25 years of life, we must consider the Italian figures as pathologic, and not as natural
phenomenon that, just for this reason, must be scientifically analysed and understood.
Other comments on this data would imply even a least effort of analysis and of
evaluation of the results in terms of efficiency and effectiveness.
Unfortunately, official sources do not give such a service, despite the existence of a
Direction Investigative Antimafia, and of a Direction National Antimafia, that beyond their
operative targets should study the phenomenon in criminological terms identifying practical
elements of assessment, monitoring and forecast.
Among our activities and studies, as chair of criminology at the University of Rome La
Sapienza, we are just working out a research of this type and we started to collect data regarding
a specific and selected set of indicators among which we mention at least the following:
1.
2.
3.
4.
5.
6.
7.
8.
9.

Number of subjects imprisoned as consequence of call as accomplice by "repented"

persons;
Typology of the subjects catch as consequence of call as accomplice by "repented"
persons;
Course and trend of the trials and number of sentences and acquittals in the different
phases and degrees of the judgment;
Seizures of "mafia" patrimonies and goods;
Behaviour of the subjects accepted in the programs of protection;
Number and typology of the "mafia" reactions aimed to combat the phenomenon of
"repented", diagonal and right revenges, misinformation strategies, countermeasures of
protection, etc.;
Number of "repented" subjects gone back to undertake criminal activities;
Number of the "mafia" homicides;
Trends of the indicators of the "mafia" activities and of the indexes of criminality.

The research is not yet complete but some data is already catching our eye with drastic
evidence. Firstly, it is true that the "repented" have made possible the first big trials against the
organised crime and that, in the majority of the cases, they have implied heavy sentences for the
most important "godfather" and it is also true that up until now some of such sentences have
generally resisted to the critical analysis of the Supreme Court of Cassation.
It is also true that the "repented" have caused the arrest of several tens of thousands of
persons in the whole of Italy.

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In fact the district of Catania alone, during the last years, ordered 8000 arrests of subjects
suspected of connection or of contiguity with the "mafia".
A third true consideration is represented from the fact that the "repented" have caused all
the most important arrests of these last years, among which, for instance, those of Francesco
Madonia, Salvatore Greco, Scarpuzzedda, Pippo Calo, the boss of the bosses Toto Riina,
Leoluca Bagarella, Giovanni Brusca, Nitto Santapaola, Pulvirenti, etc.
Finally, nobody can deny that only with the support of 15-20 "repented", it has been
possible to realise the big trials focused on the possible connivance of the criminal system with
the political and economic world, but just such trials are the most contested from who sustains
the unreliability and the impossibility to utilise the contribution "de relato" of the "repented".
However, if we go to consider which is the real damage that the above said individuals
have caused to the criminal system, we must see that it is just perceptible, in fact, for admission
of some branches of our police, in Italy still hundreds and hundreds of criminal families could be
listed.
They have the control of the territory in the four southern regions: Sicily, Calabria
Campania and Puglie, but are spreading in activities that cover all the Italian Country and, over
all, they are in connection with international local groups outside of Italy and inside with
immigrant criminal associations. The businesses in the countries that have risen from the breakup of the Soviet block are by now preponderant and have led the national and international
groups of organised crime to levels of economic productivity never touched until today.
For instance, in Italy, the police forces have identified at least 15-20,000 subjects still
free, associated to the criminal groups of the different "mafie".
Old bosses, like Bernardo Provenzano, and new, like Pietro Aglieri, have rapidly taken
the place of those just imprisoned, while the criminal works are made always more by young
people coming from Albania, Russia, Chine, Nigeria, etc. In some places, there is never a day in
which a death related to "mafia" is not recorded, while all the indexes of the traffic of drugs
point out the survival of a traditional market of heroin to the maximum achieved levels and the
continual growth of the market of the cocaine and of the chemical drugs from disco.
In a word, the criminal system is more active and strong today than ever before.
There are even unequivocal signals of an active participation of the criminal system to
the crisis of the political Italian system and of its interest to tighten new connections and
connivance with the new governing powers.
The behaviour of more famous "repented" always appears more open to criticisms and
sometimes reprehensible. They in fact exhibit a very rich and glamourous lifestyle, some of
them write books, others give interviews, many frequent fashionable restaurants.
However, the worst is that there are clear signals and the founded suspect that some of
them come back to accomplish personal revenge, to traffic again in the drug market or even to
establish new criminal connections that should have been destroyed for ever.

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Some, indicated to the public admiration for their courage, have finished by appearing as
interested slanderers losing every reliability, others appear manipulated from unknown and
criminal forces.
Some "repented" have demonstrated the signs of serious psychic disorders as far as
suicide, others have appeared protagonists of bewildering events and many, despite the
protection programmme in action, have missed several relatives and friends through "diagonal
revenge".
Almost all have problems with their own sons and with their own partners. In this case,
the service of protection is not completely able to assure them the necessary, psychological
support.
For almost all, there are various problems related to their work, legal assistance,
economic needs, etc. This is the reality despite the total budget of the Central Service of
Protection being beyond 100 billions of lire and despite the fact that every "repented" is paid on
average at least 3.5 million lire every month.
It can be said that in Italy the phenomenon represents different contradictions, many dark
sides and problems, that should be resolved through a rationalisation of the system which, if
neglected, could become very dangerous.
In fact, instead of allowing the victory on the "mafia", it would produce new types of
crime and would favour, at the end, a stronger consolidation of the criminal system.
The analysis of the American experience which began at least twelve years before that of
Italy and that has taken on, from the beginning, relevant dimensions, seems to demonstrate well
that the success of the utilisation of the phenomenon over all depends on three different
elements:
1.
2.
3.

The presence of precise and encoded rules on the management of the phenomenon;
The efficiency of the executive mechanism and the professionality of the operators;
The presence of a precise technical and juridical framework that regulates the activity of
the agents and that protects the witness and the society from the possible dysfunction of
the same program.

In the Italian system, the things that could be practically made in order to adequate it, to
correct and to increase its efficiency and efficacity can be listed as follows:
1.
2.
3.
4.
5.
6.

Distinction of the activities of assistance and of protection;

Rationalisation and optimisation of the human resources employed for the assistance and
protection of the subjects under special programs;
Educational and professional adjournment of the agents and operators employees in the
services of assistance and of protection;
Adequate psychological and behavioural study in order to predict and to control the
behaviour of the subjects from under special programs;
Psycho-social and family counselling, aimed to control and to manage the stress of the
subjects and to prevent eventual future troubles;
Strategies to avoid the feeling of eradication and to establish a psychological continuity
in the personalities of the subjects;

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7.
8.
9.
10.

Strategies of environmental insertion and of adjustment to new lifestyles with

mechanisms of protection of the subjects and of the contact environment;
Development of management projects, overcoming crises and planning of long term
needs and events;
Control of the conditions of security, of privacy, of secrecy and of undercovering;
Prevention of eventual new crimes committed by the subjects.

The problems related to the selection of the cases to admit are less frequent, but
important and they could not neglect some fundamental principles:
1.
2.
3.
4.

3.

Independent evaluation of the requisite foreseen in the law;

Objective evaluation of the reliability of the subject and of the witness;
Evaluation of the collaboration compared to eventual assessed alternatives and to the
costs benefits analysis;
Utilisation of a clear and analytical protocol of agreement that should contain defined
rules on the use, the modalities and the limits of the contribution offered from the
collaborator.
Conclusive considerations

Notwithstanding the attempts made by the magistrates and some political forces to make
the "repented" actions acceptable in public opinion, notwithstanding the change of the name in
that more presentable of "collaborators of justice", people never show appreciation of their
behaviour, and, in fact, the press continues to call them "repented".
The meaning of this adjective contains indeed a component of falsity, that characterises
the behaviours of people motivated from opportunism rather than from ethical change.
Many continually say that the law is not interested in the ethical change of the subjects,
but only in their actions that allow to achieve a result of big relevance, but they forget that a law
which denies the moral principle on which it should be based does not exist.
The idea, which looks at the purpose rather than at the means, is of politics alone, but it
is absolutely inadequate for the law.
We do not think that the presumption of innocence, which is a right of every citizen, or
that the value of fines related to the punishment are useless tinsels of a Byzantine State. We
believe instead that they constitute still the principles and the basis of the State founded on the
rights and that their crisis just represents the crisis of the law.
In the consciousness of the people, they remain the "repented", or better, the false
"repented" who, up until today brought in jail thousands and thousands of persons, but they have
not allowed to resolve the problem, they have not consented the real victory on the organised
crime.
In conclusion, on the basis of what we are told, it is clear that, in our system, the problem
of the "repented" cannot be simply retouched. It is instead necessary to go towards a complete
revision of this judicial mechanism, at least reasoning on the following points:

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1.

The "repented" criminals and the relevant witnesses against the organised crime could
bring contributions of big importance on the side of the investigations, over all giving
mechanisms of understanding of the events and the necessary information for the capture
and the sentence of the subjects involved with the criminal system, but only such
individuals do not consent the victory on the organised crime;

2.

The management of information that arises from the "repented" and from the witness is
very delicate and implies many problems that can be resolved taking into account the
most important values. Among these we can list: the guarantee that the law assures to all
citizens, the quality and the legitimacy of the justice, the freedom of the person and the
stability of the political and governmental powers. Such information can be used at
judicial level only when they are corroborated from an objective verification and when
the reliability of the sources has been adequately verified;

3.

The management and the protection of the subjects must be insured from the State
through qualified and sufficiently numerous personnel, appropriate means, under the
provisions of clear and agreed programs that contain rights and duties and eventual
sanctions for the parts that break the rules. The efficacity of the protection should be
evaluated. It is necessary to avoid any privileged relationship or overlapping of functions
between the personnel to which the subject is entrusted for the protection and those who
instead ask, collect and utilise his information;

4.

The whole of the first phase of the management of the "repented" and of the witnesses
must be entrusted to the forces of police, while the judge can grant the benefits and use
the information only once the reliability of the subject is ascertained and once the
program of protection is established;

5.

The benefits of law must be evaluated, motivated and given from a judge who should be
different than the proponent.

The criminal system for its same definition cannot be won except through the supremacy
of the law of the State and surely not through its betrayal.

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Interventions concerning theme 1.ii.

Mr Andrew COYLE
We should exercise great caution when considering the part which the prison and
imprisonment can play in crime prevention. In the first place, we need to distinguish between the
punishment of the person who has committed the crime and the prevention of crime. Longer and
harsher punishments do not necessarily lead to less crime: one can say with certainty that
imprisonment should not be the first tool in a strategy of either crime prevention or crime
control.
English criminal justice legislation is quite clear in respect of who should be sent to
prison. The Criminal Justice Act 1991 indicates that people should be imprisoned for only one
of two reasons, the first being that the crime committed is so serious that imprisonment is the
only reasonable punishment, and the second - particularly in the case of crimes of a violent or
sexual nature - that the protection of the public requires it. While the legislation seems
appropriate, its application in individual cases is very much open to question: the prison
population in England and Wales is currently increasing at the rate of 1,000 prisoners each
month, but there is no indication that this is a consequence of a sudden rise in crime.
Criminal justice is about a balance between the rights of the victims and the rights of the
offender and injustice occurs when this balance is disturbed: it must be born in mind that
speaking up for the victims does not mean opposing the offender nor vice versa. Our present
criminal justice system tends to marginalize the victim: it is the State which takes over from the
victim and pushes her or him to the margins. On the other hand, in making the criminal justice
system impersonal, the state allows the offender to overlook the fact that there is indeed a
victim, a person who suffered as a consequence of his actions.
Prison should only be used when there is no alternative and for the shortest necessary
time and strong links should be built between the prison and the community that it serves. The
manner in which we treat people who are in prison, the manner in which we treat those who
have broken the law, is a good measure of our civilisation. It is a test of our humanity.

Ms Maria Luisa CESONI

Governments sometimes use organised crime as a pretext to avoid dealing with the
protection of the economic and social rights of citizens; this was the case in southern Italy.
Studies in this country show that the economic policies for the southern regions, far from
producing real economic development, on the one hand, have resulted in a continued high level
of unemployment, constituting a labour pool for criminal organisations, and on the other hand
have left these regions increasingly dependent on public funds and have made politicians and
officials vital links between the population and such funds. Consequently, opportunities for
corruption have become more frequent, and the economic and political influence of criminals is
on the rise.
Corruption and organised crime are actually two different phenomena. In areas in which
they interact, however, they often become two aspects of the same problem. The fact that the

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countries of eastern Europe employ the same term, namely organised crime, to designate diverse
phenomena, including corruption, is revealing. This underscores the need to fight corruption in
order to combat organised crime effectively; to this end, priority must be given to prevention
before any punitive response.

Mr Nicholas McGEORGE
Observing the various ways in which the states deal with the problem of drugs and the
results achieved, I would say that anti-drugs policies are, in general, a total failure. Most of the
money laundering within organized crime is based on money from drug trafficking: this money
gives those involved in such activities the power to fund police and customs corruption. These
examples strongly suggest that through the current policies on drugs we tend to increase
corruption, we cause a great number of criminal offences and we have extremely active
organized crime.
However, trying to get this topic discussed rationally and calmly is very difficult, at least
at public level. Privately, there are several people who would encourage a reform of drugs
policy. My suggestion is that it should be made possible for us to have a rational discussion
about the consequences and the effectiveness of policies on illegal drugs, in particular
considering whether a radical change is needed to regard the use of drugs as a health problem
instead of a crime problem.

Mr Gavril-Josif CHIUZBAIAN
Above all I wish to inform you of the efforts undertaken by Romania to combat
organised crime.
The fact that such crime is only in its infancy in Romania does not mean that the country
is not paying close attention to the development of the phenomenon at international level.
Political, economic and social transition does indeed provide fertile ground for the development
of this social evil. The emphasis must therefore be placed on the prevention of crime and this
requires a comprehensive, interdisciplinary strategy, involving both the institutions of civil
society and the mass media, which can contribute to raising awareness among the public, as well
as international co-operation, which is the only possible means of undermining the economic
basis of organised crime.

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I will finish with a statement by Professor Marcel Merle, to the effect that the European
Convention on Human Rights is the legal expression of the type of civilisation that European
states are endeavouring to uphold.
* * *

Reply of the rapporteur, Mrs Marie-Pierre de Liege

It is well known that imprisonment tends to be counterproductive as far as reintegration
is concerned. For the last twenty years or so, many democracies have therefore sought to make
increased use of alternative sentences, with varying degrees of success. In times of economic
crisis, the use of such alternative sentences is more difficult. The current economic and social
crisis is making it much harder to achieve the goal of reintegration through such sentences or
when prisoners leave jail.
An unpublished study by the University of Lausanne (Switzerland) puts the proportion of
crime related to drug-taking at 50-60%. Clearly, it is drug users' need to obtain drugs and not
their addiction in itself that causes crime.

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FOURTH SESSION
Theme 2: increasing public awareness of the need to respect human rights
when combatting serious crime
i.

Education

Reports presented by Mrs Vivien STERN, Secretary General, Penal Reform

International, London
Summary
If we wish to provide education to increase public awareness of the need to respect
human rights we need first to understand three factors in the current environment which are
strongly influencing public perceptions. These are:
-

a redefinition of rights to set the rights of victims against the rights of offender;

a belief in a new emergence of evil;

an increase in terrorism.

These factors have led to a questioning of the basic principles underlying the treatment
of defendants and convicted offenders. The human rights principles embodied in the Council of
Europe were set down and codified after the atrocities of the Second World War and are based
on analysis of how those atrocities happened. Half a century has now passed. It is necessary to
explain again what are the lessons of the Second World War and how these came to be
expressed in the European Convention on Human Rights.
Education in the theory, origins, history and practice of human rights needs to be
incorporated into school and university studies. Governments need to establish human rights
education units. Non-governmental organisations working for the promotion of human rights
need to be encouraged to undertake active and convincing public education work. The Council
of Europe should consider establishing a major human rights education programme.
Background
Undoubtedly we are now seeing in Western Europe a diminishing respect for the human
rights of various groups of people who seem to disturb the peace or prosperity of the majority.
The consensus about human rights that was established after the Second World War and
embodied in the European Convention on Human Rights is no longer so strong. It has become
more common to hear arguments suggesting that the human rights protections put in place since
1945 are not sacrosanct and may be flawed in certain respects.
One group whose rights are being seriously questioned are foreigners, be they refugees,
asylum seekers or other immigrants. For example, in France and in the United Kingdom new
measures are in place to make it more difficult for immigrants or asylum-seekers to come to
those countries. A similar impatience with the requirements of the international human rights

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framework is seen in attitudes to convicted criminals and accused persons. Examples come from
several countries. In the United Kingdom a longstanding principle deeply embedded in the legal
structure, i.e the right for an accused person to remain silent without this affecting the judgement
of the case, has been diminished. In the Netherlands, long seen as a beacon of humanity and
decency in its treatment of convicted criminals, prisoners in a top security unit, the TEBI, in the
prison in Vught have been kept in handcuffs whenever they leave their cells, seemingly in
contravention of the requirements of Rules 39 and 40 of the European Prison Rules.
A gulf is opening up between those who understand human rights discourse, and those
who do not. Many people who care about society and the way it is going, people who accept an
ethical basis for life, do not understand many of the arguments used by human rights proponents.
For example, it is asserted that democracy is the most desirable form of government. Democracy
means that the people should choose. But when it is clear that a majority wants capital
punishment or corporal punishment, the assertion is made that these methods are an abuse of
human rights and unacceptable in a country that wants to be a member of the Council of Europe.
This assertion is not readily understood and no consistent programme of work is underway to
explain it. No organisation or group has been given the task of working to inform and explain.
Justice as a commodity
It is important to ask the question "How do we explain these developments?" I suggest
that three factors are important. One arises from the very desirable and necessary development
of a movement to campaign for better treatment of the victims of crime. Support for the plight of
victims and arguments that the state should recognise the damage done to them and make some
recompense to them has been widely advocated by reformers and human rights proponents for
many years. As a result many countries have established victim support schemes and
compensation arrangements for those who have suffered a crime against them. This
development represents a very welcome extension of rights in the criminal justice field.
However, what is essentially a progressive movement has features that are moving
beyond the call for better treatment of victims. Some proponents of victims' rights are taking the
argument much further. They are asserting that it is in the interests of victims that offenders
should undergo more suffering in their punishment. Justice is being seen as a commodity that
the state offers to citizens, like health and education. It is also seen as finite and limited. There is
only so much of it and offenders get a great deal of it, through all the legal processes and the
protection of their rights, whilst victims get very little. In this line of argument victims have an
entitlement to a certain "amount" of justice from the State and not enough is left for them. They
feel they should be entitled to more. What this means is that they are entitled to see their
offender being charged at a level that reflects the victim's view of how serious the crime is. Then
they feel the defendant if found guilty must be punished severely. If the punishment is not
enough, victims feel cheated. "I did not get a good enough service. I should have got more.
Other people have got more when something like this has happened to them. My judge was not
as good as another judge because another judge gave more", they think.
The language of rights is used to justify this position. Some victims' representatives
begin to argue in the following way: "Defendants and offenders have been given all these rights
and they are set down in international conventions. What about my rights as someone who has
suffered a crime? What about the human rights of victims? How can someone who has
committed a heinous crime be entitled to protection and consideration in the same way as the

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person who has suffered the crime? How can the criminal be equal to the victim when rights are
being considered?"
In a sense a "rights competition" has been set up. Whose rights should win the
competition, the victim or the criminal, "decent law-abiding people" or "bad people"?
This understandable way of thinking has consequences that are damaging not only for
the process of justice but also for the work of resocialisation of offenders. The view is becoming
widespread that people who work for the resocialisation of offenders are in opposition to the
people who support victims. In this view it is not possible to respect the rights of victims as well
as to respect the rights of offenders. The two would be incompatible. Contempt for convicted
offenders extends to contempt for those who work with them to try and resocialise them. This
makes the task of resocialisation, which is very important for public safety, doubly difficult.
New emergence of evil
The second important background factor is the widespread view that serious crime has
got worse. In the United Kingdom, the case that seemed to symbolise this shift in public opinion
was that of James Bulger, the two-year old boy killed by two ten-year old boys. Such an act is so
horrific and inexplicable that it leads people to move away from rational responses and enter a
framework where reasoned argument holds less sway. The facts, that murder of children by
children is very uncommon, that in the United Kingdom there has been about one case a year for
the past twenty years, have little effect on the way people respond to such an event.
Sexual abuse of children has also sprung to public attention and the UNICEF conference
held in August 1996 in Stockholm has given it worldwide publicity. Abuse of children has
undoubtedly always occurred. Now however it seems much more common. What seemed in the
past to be innocent is now regarded with suspicion. The recent case in Belgium of the alleged
paedophile organisation and the abduction of teenage girls, widely publicised through globalised
television channels, and the case of the Wests in the United Kingdom, who abused and
murdered their own children, arouse fear and hatred. People are very shaken by them and they
begin to wonder about their neighbours, themselves and the world we live in: "Are there
dreadful people in the next street? Has a new form of evil emerged?"
These cases of the torture and murder of children are in a sense the ultimate test of
respect for human rights. To argue against the death penalty in such cases and to support the
humane treatment of the perpetrators of such horrific crimes is a task of enormous difficulty.
Terrorism
The third factor is the increase in political terrorism in West European countries. The
Irish question has familiarised the citizens of the United Kingdom with the limitations imposed
on everyday activities and the implication of bombing campaigns. The Basque question has had
the same effect in Spain. Now in France as a result of the Algerian situation there are similar
experiences. It is becoming a commonplace in Europe for main line railway stations to have no
litter bins and no place to leave luggage as a precaution against the planting of bombs. People
are searched when entering public buildings. There is considerable pressure on Governments
facing terrorist situations to bypass the rule of law and move onto a war footing against terrorist
crimes. The result of this would be the carrying out of extra-judicial executions. Allegations of
such a response are being investigated in Spain.

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Public reactions
These events - child abuse and murder, terrorist bombs - induce real fear and horror and
seriously affect people's view of the nature of the environment they live in. They begin to see
the world as a hostile, threatening, unsafe place. They stop their children going out and they alter
their own behaviour so as to feel safer. They resent these changes and they look to politicians to
take action to deal with them. In this climate it is difficult for society to restrain itself - or to
understand why it should. In a democratic society politicians find it very difficult to resist the
pressure and few, if any, have the courage to speak out for the human rights values embodied in
the establishment of the Council of Europe and the Convention on Human Rights.
The role of the mass media
The mass media is becoming more a producer of stereotypes about crime and criminals
and the dangerousness of the contemporary world. In many countries crime stories are featured
every day on the television and in most of the newspapers with no indication of how common
they are or how rare. To the consumers of this media the world thus begins to look very
frightening. In some countries the concentration of the ownership of the media in the hands of a
few powerful people who have no particular commitment to the well-being of any of the
countries whose means of communication they monopolise has great dangers for human rights
education. The media moguls are committed to the profitability of their businesses and the
profitability of business in general. The main aim of much of their media is not to inform and
educate but to entertain.
The United States
Developments in the United States show where this process can lead. There, rights of
offenders are being rapidly eroded. Boot camps have been set up where a form of inhuman and
degrading treatment is the basis of the regime. Ritual humiliation is deemed to lead to the
recovery of self-respect. Chain gangs were set up in Alabama. According to Amnesty
International prisoners from the Limestone Correctional Facility are taken to a work site wearing
white work suits and caps with "Alabama chain gang" emblazoned on the front. There they are
linked to each other at the ankle in groups of five. Amnesty International has described the
operation of the chain gangs as:
cruel, inhuman or degrading treatment, in violation of international standards on the
treatment of prisoners.
In Arizona and Florida chain gangs are also being operated. The death penalty is being
applied even more widely, albeit selectively, and legislation has just been brought in to end the
funding to the law centres dedicated to working with poor prisoners on death row.
The influence of the East
Also of importance in the debate is a view of human rights that comes from the
economically very successful countries of South-East Asia. There we see a major questioning of
the whole basis of the European human rights ethos. It is suggested that this ethos places a
premium on individualism, leading to crime, drug abuse and other Western inner city evils. The
attitude of the Eastern cultures, stressing collective rights and duties, is said to be much more

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socially and economically beneficial. It is commonly said in the West when justifying the
human rights protections that surround the legal process: "It is better for many guilty people to
go free than for one innocent person to be convicted". The response from the South-East might
be: "Why?".
The educational process
Against this background, those who argue for a fair legal procedure for suspected
persons, oppose the death penalty and support humane treatment of people who are in prison
face a complex task in putting the arguments across. It is a long philosophical journey to make, a
deep educational process, for people to say they are prepared to respect the rights of all human
beings, even child abusers and bomb planters. It is therefore necessary to retrace the steps of the
argument which led in 1953 to the entry into force of the European Convention on Human
Rights. Fifty years have passed. For a large proportion of the population of Western Europe the
Second World War is distant history.
We need to remind ourselves what are the steps on that philosophical journey. We need
to ask ourselves why we, the participants in this seminar, feel we have to fight for the human
rights of for example a man who abused and terrorised small children, an activist who planted a
bomb that killed many innocent people or a person who murdered in cold blood for financial
gain?
One step on the journey is the process of understanding the abuser or the terrorist, not in
order to find an excuse for what has been done but to have an insight into how someone who has
carried out terrible acts has become able to do so. Many studies show how terrible childhood
experiences can lead, though by no means always do, to the perpetration of terrible deeds later.
A detailed study of twenty children who had committed homicide, carried out by a British
psychiatrist, showed that:
They come from backgrounds of unstable family lives, absent fathers with a history of
alcoholism, psychopathic disorders, and violence at home. Mothers had a history of
depression and found it increasingly difficult to look after the children as they got older.
Second there is a need to explain how mass abuses of human rights become possible. We
need to make it very clear how ignoring the basic human rights of any single group, however
undeserving of respect they may seem, leads society down a dangerous path. We can start by
accepting that it does not matter what society does to a child abuser. The crime is so horrific that
it puts the person beyond the pale of decent treatment and respect. So it becomes acceptable to
treat one sort of person, for example child abusers, in this way. The rest are not so bad. It is
agreed that it will stop there.
But the idea moves on. It is not just the child abuser who can be ill-treated without any
regard to his human rights. Anyone who looks like a child abuser can get similar treatment, even
those against whom the case is unproven. Then people ask: "why just child abusers?" Those who
break into houses at night and steal belongings are also causing fear and ruining people's peace
of mind. Why should their rights be protected either? Once it becomes acceptable to put one
single human being beyond the reach of common humanity many people will be at risk.
The third element in the journey to understanding is an appreciation of what a society
can be like when the rule of law ceases to run, when everyone can do what they like. Bosnia is a

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clear example here. Peter Maass, in his book about the Bosnian war, quotes the Bosnian writer
Ivo Andric. Andric, writing of the outbreak of the First World War in 1914 says:
"That wild beast, which lives in man and does not dare show itself until the barriers of law
and custom have been removed, was now set free. The signal was given, the barriers were
down. As has so often happened in the history of man, permission was tacitly granted for
acts of violence and plunder, even for murder, if they were carried out in the name of
higher interests."
We need to understand the importance of creating and maintaining institutions strong
enough to resist populist calls for vengeance and respected enough to be accepted by the public
when they carry out their functions without succumbing to populist pressure. The importance
therefore of the War Crimes Tribunal set up to deal with the atrocities committed during the
break-up of the former Yugoslavia is immense. Radovan Karadzic is not being hunted down to
be shot. He is being sought in order to go on trial. Lawlessness is not being met with
lawlessness but by a firm reassertion of the supremacy of the rule of law.
The need for human rights education
Is there a need for human rights education? Would such education be effective? Some
survey results from the United States may throw light on this question. The results come from
public opinion surveys on the death penalty. Opinion on this topic is surveyed in the United
States every year. In 1995 the question was asked: "Are you in favour of the death penalty for a
person convicted of murder?" 77% were in favour. Another question was asked: "In your view,
what should be the penalty for murder - the death penalty or life imprisonment with absolutely
no possibility of parole?" The proportion supporting the death penalty fell to 50% with 32%
supporting life imprisonment without parole. The figures also show that attitudes can change
greatly over time. In 1995 77% were in favour of the death penalty. In 1966 only a minority of
those questioned, 42%, were in favour and the figures of those in favour and opposed were very
similar until 1972 when the number of death penalty supporters started to increase.
These figures show that attitudes on these difficult human rights matters are not fixed,
inborn, fundamental, deeply rooted in human nature. People can respond and react to debate,
facts, discussions and campaigns. They can listen to arguments and change their minds.
Since the coming of democracy to countries of the former Soviet bloc and their inclusion
in the Council of Europe many programmes of human rights education have been developed and
supported. Lawyers and teachers have been trained and materials produced. The process cannot
stop there. Western Europe is in similar need of a major programme of human rights education.
The commemoration of the end of the Second World War in 1995 was an excellent opportunity
that was well-used to remind those who might have forgotten, and tell those who had never
known, what happened in Europe between 1939 and 1945 and why an international framework
to protect human rights had been put in place. But such opportunities are rare. A planned and
consistent programme is needed that ensures frequent exposure of the arguments and the debate.
Governments should consider establishing human rights education units to stimulate such
programmes.
An impetus must be given to start a substantial educational campaign with five elements.

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First, it must be based on people's understanding of the world as it is today. The human
rights arguments must be made as relevant to people growing up in 1996 as they were in 1949
when the Council of Europe was established. Second, the teaching of history provides an
excellent opportunity for analysis and thought about man's inhumanity to man, the
circumstances that lead to major human rights abuses and the safeguards that need to be in place.
Third, courses in the basic international human rights framework and the mechanisms in place
need to be established and supported in colleges and universities. Fourth, teachers need to be
trained to use literature and drama that throw light on human rights abuses and the processes that
lead to them. Fifth, funds should be found to support media projects that debate and develop the
arguments about protecting the human rights of criminals, why corporal punishment is wrong,
why the death penalty is wrong.
The role of non-governmental organisations
The international organisations that promote human rights are very distant from the
citizens of the member states and can seem remote and irrelevant. The bridges between the
international level and the people in the member states are the non-governmental organisations
(NGOs). A major role can be played by NGOs working to protect human rights. There are many
international, regional and domestic NGOs in the human rights area. NGOs have taken the lead
in the struggle against the death penalty. Amnesty International has campaigned for many years
against the death penalty and has supported the production of films and other materials to
support the case. Through its groups and donors in 170 countries and territories and a world
membership of over 1.1 million people it campaigns in many different and imaginative ways to
draw to the attention of the public the abuses that occur throughout the world and the many
cases of individuals sentenced to death.
Penal Reform International (PRI) works throughout the world to strengthen existing ngos
which work for penal reform and to help set up new organisations. PRI has been experimenting
with new ways of bringing an awareness of the need for penal reform to the public. In 1992 PRI
joined with the Hungarian Association for Penal Reform to organise a three-day festival of
prison films. Films which highlighted the possibilities for human rights abuses in prison were
shown and the films were followed by debates with film-makers and leading thinkers about the
intentions and implications of the films. The event aimed to bring to the attention of the public
the human rights problems associated with imprisonment and to promote penal reform. A
similar international event, this time about women in prison, was organised in London in 1993
by the National Association for the Care and Resettlement of Offenders, a United Kingdombased NGO and opened by a senior official of the Council of Europe.
NGOs have many strengths and a great deal to contribute to public education on human
rights. They are composed of committed people. They have an ethical basis for their activities.
They are able to draw on much volunteer effort and creative ability. They are often free of
cumbersome bureaucracy and can respond quickly and flexibly to the needs of the moment.
They often find it easier than state agencies to relate to minorities and to young people.
If they are to make their maximum contribution to dealing with the human rights crisis
faced in Europe they will need support. It is always much easier for NGOs to raise funds for
their practical project work aimed at concrete changes than for the less tangible but equally vital
task of influencing public opinion. NGOs active in penal reform for instance are more easily
able to find the money for specific projects such as improving prison conditions and

137
resocialising offenders than for their education work, which aims to bring to the attention of the
public the human rights questions involved in the treatment of offenders.
The role of the Council of Europe
The engine that promotes the educational campaign for human rights must be the
Council of Europe. The importance of the Council of Europe is enormous and it is regarded as a
source of inspiration and strength by those concerned with human rights. In 1999 the Council
will be fifty years old. It is an appropriate time to renew and reformulate the basic ideas and
concepts that have guided its development so far and to find new ways of working that reflect
the 21st century.
Conclusions
The situation in Europe is moving rapidly towards a worsening of human rights
protections for convicted criminals. Public attitudes are hardening. Prison populations are rising.
The search for scapegoats is intensifying. The individualisation of justice and the move towards
seeing it as a commodity bring great dangers. These developments diminish the balancing power
of the state and open the door to mob vengeance and lynch law. The agreement that there is a
need to treat people with a minimum of humanity, whatever they have done, is wearing very
thin.
However, whilst developments in the United States have moved very far from the human
rights consensus of the post war world, in Europe many protections are still in place. The
punitive and exclusionary attitudes prevalent in the United States are not so deeply embedded in
European traditions. A philosophy of re-integration into society for offenders still underpins
legislation and practice. A philosophy of social cohesion governs institutions. The assumption is
that offenders, although they must undergo criminal sanctions and pay back in some way for
what they have done, keep their citizenship and must be welcomed back into society.
These beliefs are part of European democratic ideals. They have considerable strength.
In some countries activists put their lives at risk by fighting for them. If they are to remain
strong, much energy will need to be put into supporting and maintaining them in penal policy in
the years ahead. A major education programme should be launched by the European institutions,
working with governments and with NGOs, to heighten awareness of the reasons why there is a
human rights framework and the horrors of a world without one.
The events in Bosnia have shown how fragile are the values of tolerance, respect for
others, humanity and decency firmly believed to be the basis of European civilisation. As Peter
Maass says:
"The wild beast had not died. It proved itself a patient survivor, waiting in the long grass
of history for the right moment to pounce."
* * *
References
Amnesty International

138
(1) United States of America: Reintroduction of Chain Gangs - Cruel and Degrading;
(2) Report 1996; London, Amnesty International, 1995
Coyle, Andrew
The Prisons We Deserve London, Harper Collins, 1994
Christie, Nils
Crime Control as Industry London and New York, Routledge, 1993 revised 1994
Donziger, Steven R
The Real War on Crime: The Report of the National Criminal Justice Commission New York,
Harper Perennial, 1996
Maass, Peter
Love Thy Neighbour: A Story of War New York, Knopf, 1996
Maguire, Kathleen and Pastore, Ann, eds
Sourcebook of Criminal Justice Statistics 1994 Washington DC, US Department of Justice,
1995
Penal Reform International
PRI Newsletter no. 20 London, 1995

139

Report presented by Mr Max SNIJDERS, Professor, University of

Groningen, Specialist in the ethics of communication, Utrecht (Netherlands)
It is not too difficult to define a number of general rules journalists should adhere to in
their reporting crime in general and on serious crime in particular. Although, in setting out these
rules, it will become clear very quickly that there are marked differences in what is acceptable or
not in different countries, even those of the western, democratic world.
To give but one, simple example: in Anglo-Saxon countries it is quite normal to print the
full name and address of a suspect, once he or she has been arrested. In the Netherlands only
initials are used and never accompanied by the full address. France has very strict rules in this
respect which are somewhere between those of the two former countries. By law it is forbidden,
for instance, to publish photographs of bloody crimes27. And also to publish facts which may
identify the victim of rape is prohibited by law, whereas in the Netherlands this is just "not
done" on a voluntary basis.
But the real problem is to decide on rules of journalistic behaviour - or even on
journalistic codes of conduct - when it comes to the elaboration of individual cases.
And an even larger source of disagreement lies in the question of who, or which
institution, is to lay down what the role and responsibility of the media is or even ought to be.
I intend to address both elements in this introduction.
First the question of what the profession itself thinks is acceptable in the field of
publishing on serious crime and on its connections with criminals in order to receive information
from that corner.
Is undercover journalism, also termed "cloak and dagger", allowed and under what
circumstances?
The Code of Bordeaux, an international declaration adopted by the International
Federation of Journalists as a standard of professional conduct for journalists engaged in
gathering, transmitting, disseminating and commenting on news and information and in
describing events, states that "The journalist shall use only fair methods to obtain news,
photographs and documents".
Still, since the German reporter Gnther Wallraff wrote on the treatment of Turkish
immigrant workers in his country and later on about the way in which the boulevard-paper Bild
collected its material, the general feeling about this subject has received more nuance.

27

Les droits et les devoirs du journaliste, textes essentiels. Les guides du CFPJ, Paris, s. a.

140
I venture to say that it is now commonly accepted for journalists not to disclose their
profession or their aim, if they pursue a story - particularly in the field of crime - of which it is
highly unlikely if not sheer impossible to collect data if they would announce their purpose.
Also, the case under investigation should be of general interest to society to allow for this
specific method.
And what if the material the journalist bases his story on, is clearly stolen? From the
office of the Attorney general? And if, furthermore, by publishing that material, the reporter
creates the opportunity for the counsel of the defense to use that otherwise non-public material
to strengthen the case of his (criminal) client?
This happened in a case against the boss of a drugs-syndicate in the Netherlands28. The
reporters in question - there were two of them - assured that they had not ordered the material to
be stolen, nor did they know who put it in their letterbox.
The Attorney general brought them to court and the Council of journalism decided,
without having received a complaint, to judicate the case because of its importance for the
profession.
The Attorney of Amsterdam stated that "The office of the public prosecutor does not
want to open a witch hunt on journalists, but we find it of great importance that the courts of law
define the boundaries of how far a journalist may go in procuring and using information". In
preparation of the case the police raided the houses of the two journalists to see if they could be
accused of fencing.
There is no specific law regarding the press in the Netherlands - and that is as it should
be. I will come back to that later.
So when there was no proof of the crime of fencing, the court had to acquit the two
reporters.
The judgment of the Council of Journalism is more interesting, because of the nuance it
gave in its considerations.
The Council stated: "Journalists are only allowed to make stolen information public if
the interests served by publication amply offsets the unlawfulness of the way in which the
information was procured. This process of weighing", the Council added significantly, "ought to
be carried out by those who are journalistically responsible for the publication"29. Which means
that this decision in the Council's opinion should not be taken by the police or even by a court of
law.
The German press code seems to be more restrictive in this field, where it states in article
7 that "The responsibility of the press towards the general public precludes the publication of
editorial matter which is influenced by the private or business interests of third parties"30.
Although this article is clearly meant to prevent an influence by advertisers, in the case I
28

Max L. Snijders, The Case of the Stolen Police Information in: Case by Case, Journalistic Decision-Taking in Europe, Edited by Urte
Sonnenberg and Barbara Thomasz, European Journalism Center, Maastricht 1996.

29

Quoted in De Journalist, February 1995.

30

Deutscher Presserat, Guidelines for publishers and journalists based on the recommendations of the German Press Council, March 1992.

141
mentioned it could be applicable, because the suspect in question clearly profited from the
publication.
I should add, that the two Dutch reporters only published those elements of the material
they received which shed a light on unlawful methods of the police and that they handed over
the copies to the police authorities after they had made use of them.
Quite a few so-called crime-journalists have discovered that it is profitable for their
information to establish contacts with the underworld.
The risk of this is twofold. On the one hand the criminals might give away more than is
safe for them. On the other the journalist, knowing too much, is enticed to leave information
unpublished because publishing might dry-up his source for good or, in a worse case, might
endanger himself.
Criminal enterprises have developed a strategy in dealing with the media, including
crime-journalists.
Nicolas Gage of the New York Times has put forward a theory, which as received the
name of the law of Nicolas Cage, about the way in which journalists can be encapsulated31.
First stage: tell them very much, rather everything, which makes it impossible for them
to publish it. If they still would, they commit treason in the criminal's view with all the
consequences involved. There are quite a few cases known where journalists, in possession of
incriminating facts, were withheld from bringing these out into the open for this reason. In order
to prevent mistakes of this respect, sometimes agreements regarding the control of the criminal
organisation over the published news items is put in written form.
In the Netherlands we even know of a case in which the financial gains of publications
would be shared 50-50 between the criminal source and his journalistic outlet.
The second phase is the one where violence is not shunned. This is what so often has
happened in Italy, when attorneys, judges, journalists, were either wounded severely as a
warning, or right-out killed. Recently, at the end of June, for the first time in Western Europe a
killing of a crime-journalist took place, when Veronica Guerin, who worked for Dublin's
Aengus Fanning was murdered. The perpetrator is supposed to come from the Irish drugs
syndicates.
If murder does not help to silence an inquisitive media, the third phase is put into
operation. It consists of an incessant barrage of court-cases against the newspaper or radio
station concerned. This, generally, does not have much juridical effect in the sense that the
journalistic media is condemned, but it costs an enormous amount of money and energy, which
might bring the management of the media concerned to order their journalists to desist from
further persecuting the criminal enterprise.
What do the written or unwritten codes of conduct of journalists say in these matters?

31

Quoted by Bart Middelburg: Een wederzijds profijtelijke relatie (a mutually beneficial relationship), Het Parool, 4 April 1996.

142
I think it is generally accepted that we do not publish facts which might endanger the
lives of citizens.
Again an example: when Moluccan partisans hijacked a train in the north of the
Netherlands in the seventies, the military tried out a tactic to free the hostages and to capture the
hijackers. We, and I assume other newspapers, had pictures of that quite spectacular tryout. And
although we could not imagine that our paper would be delivered at the train, none of us
published the picture for fear it would be mentioned on radio which could be listened to by the
hijackers in the train.
Similarly, the British media did not publish a word of a hijack in an Italian restaurant in
London until the moment the police successfully stormed the place and freed the hostages.
But how far should this reticence go? In general, I would say, it is not our task to hinder
the authorities in apprehending criminals. But we would fall short of our role as watchdog of
democracy and human rights, if we would not mention misuse of authority by the police, as
much as they might dislike that.
And very often in the last couple of years the media - I would say the printed press more
so than the electronic media - have disclosed criminal activities which subsequently gave rise to
investigation by the police. I assume our Italian colleagues can give many examples of this.
There is a tendency in society to cover up mistakes and in silence try not to make them
again. If we, journalists, get to know this and can establish the relevant facts, it is highly
unpleasant for the authorities that these facts are published. They may even lead to the fall of a
minister or a whole cabinet. It still remains the task of the media to make this known. Because
once we start giving in to pressures to withhold publication, there is no end to the measure in
which the press will be used to silence similar unpleasant facts.
But if it is not our role to hinder the authorities in apprehending criminals, it is also not
our task to assist them.
If a press photographer has taken pictures on the scene of a crime, they should not be
handed over to the police voluntarily, but only on the basis of an injunction. The same, of
course, goes for video footage. Because if we would hand these possible elements of evidence
over voluntarily, it might most certainly make it harder to do our work on the next occasion
without raising the suspicion of the people involved.
This brings me to the second part of my introduction: the question of who, or which
institution is entitled to lay down what the role and responsibilities of the media are in general
and what they are in relation to serious crime in particular.
We all probably remember only too well the disputes which emerged from the effort
within UNESCO to ascribe "duties" to the media and to make states responsible for the activities
of the media within their jurisdiction32. The communist bloc, together with authoritarian
governed development countries expected that such rules would help prevent undesirable
criticism on the one hand and make media a tool of government policy towards development
32

Many Voices, One World, Communication and Society, Today and tomorrow, Report by the International Commission for the Study of
Communication Problems, UNESCO; 1980.

143
and the process of nation-building. Now after the Unesco-sponsored conferences at Windhoek in
1991 and subsequently in Almaty, Santiago de Chili and Sa'ana nobody any more speaks of
such drastic forms of fettering the press. As the Windhoek Declaration says in Article 2: "By an
independent press, we mean a press independent from governmental, political or economic
control or from control of materials and infrastructure essential for the production and
dissemination of newspapers, magazines and periodicals"33. But there are still many who think
that it is their task as representatives of the people or as politicians to make sure that the public is
well-informed according to their definition of that word.
Is there, for instance, a task in this respect for a body which has deserved great respect in
its fight for the institutionalisation of human rights in Europe, the Council which is our host
during this seminar? After all, "the requirement of respect for human rights in European
democracies" has been defined by the Council of Europe on several occasions and has, in
general, been beneficial to the observance of these rights.
Still this leads us on dangerous terrain.
The Parliamentary Assembly of the Council of Europe, of course, is not entitled to
prescribe what rules media should adhere to in pursuing these aims of respect for human rights
in European democracies. So in that respect there might be no danger in its expressing forms of
behaviour it deems desirable. But once the Council of Ministers accepts recommendations by
the Parliamentary Assembly, governments are invited to create the legal instruments to
implement these recommendations. Now this is fine in the field of human rights in general. If we
only think of situations in Turkish prisons, the use of such recommendations and the pressure
that emanates from them on member states is benevolent. The same goes for measures in the
field of environment, equality of gender and many more.
But media ought to be an area of exception, an area of "hands-off". Not because
journalists are holier than other people, or should be beyond the reach of law. But because states
are party in the activities of the media. It is in their interest - or very often at least in the interest
of the ruling party - that certain practices are not divulged, that no criticism is levelled against
certain people or certain institutions. And it would be too much to expect that states, in making
regulations intended to protect their citizens against possible misdeeds of the media, would not
also take into account their proper interest of being able under certain circumstances to silence
these cumbersome media. There are examples - I need not stress that in this country in particular
- where ministers have engaged in criminal activities. Is it not natural for human nature, if a
person who has the power and whose fraudulent or otherwise criminal activities threaten to be
disclosed, to try and silence the media, when they are after those facts?
If he has the power. And that exactly is a reason why he should not. An important
principle is at stake here. That is: once states are entitled to regulate certain activities of the
media, there is no limit to how far they can go. It is for that reason that the American
Constitution prohibits Congress from making any law limiting the press.
It is therefore, too, that states should not have press laws at all. "The right to freedom of
opinion and expression, says Article 19 of the Universal Declaration of Human Rights, adopted
by the General Assembly of the United Nations on 10 December 1948, includes freedom to hold
opinions without interference and to seek, receive and impart information and ideas through any
33

Final report Seminar on Promoting and Independent and Pluralistic African Press, Windhoek, Namibia, SEPIC Paris, 1991.

144
media and regardless of frontiers". The first word of that declaration - and I stress that very
strongly - is "Everyone". Everyone has the right. Which means there is no such thing as a
specific right for journalists. And the consequence of that is that those who do practice these
rights as their profession, also ought not to be subject to restrictions to which their fellow
citizens are not subject. There are laws against stealing, against fencing, against conspiracy to
overthrow a government, against slander and libel, which are applicable to each and everyone.
So there is no need - stronger: in principle there is no justification - to adopt specific laws about
the way journalists can perform their profession.
There are too many examples of what happens to press freedom and, hence, to
democracy, if this hands-off policy is not followed.
Let me give one only, because the restriction sounds so reasonable at first hearing. In
Indonesia the rule is: the press is free but responsible. Who would not agree that the press ought
to be responsible? But what it means in practice, is that the State Security System, called
Kopkamtib, dictates to newspapers (radio and television are completely under governmental
control) exactly what they can and cannot publish. And if they do not obey these instructions,
mostly given over the telephone, their licence or the licence of individual journalists can be
withdrawn. Papers are closed down regularly because the government judges they are not
acting responsibly.
Countries that have specific laws in this respect of course are no better. In Turkey these
laws, once copied from the press law of Mussolini, are not applied when the regime is more or
less liberal, but they are applied when the regime is restrictive, which is more often the case than
not. The courts, once cases are brought before them on the strength of these antiquated laws, can
do no other but apply them and pronounce the ridiculously high minimum penalties which are
prescribed.
Should it then be left to the media themselves to decide what rules and codes they apply?
Yes, it should.
Does this then mean that they will always act responsibly, justifiably, fair, in the public
interest? No, it does not.
But the alternative is worse. Because it does more harm to press freedom and by that to
democracy, than it improves the respect for human rights.
Journalists and media in general are accountable to the laws which are applicable to
every citizen. They are also accountable to their public in cases where the law does not supply
guidance. They have, in most democratic countries, entered into obligations to defend their
actions at Councils of Journalism, which are manned by colleagues and a few members of the
general public. And these rules generally ensure behaviour that is in accordance with the ethics
of the society in which they operate. So, in the Netherlands, media do not publish the extramarital love affairs of government people - as long as these have no direct bearing on their
public functioning. But in Great Britain public morale says ministers should not have girlfriends,
or at least should make sure that the boulevard papers do not discover they have. So, if such a
fact is discovered, it is also being disclosed.
Members of parliaments, be it national or European, should be aware that making
regulations in this field - with all the good intentions they might have - is counterproductive to

145
the professed aims of these measures. It may prevent certain activities of the media which are
regarded as unpleasant or even damaging, but the disadvantages are so much greater to press
freedom and thereby to the functioning of the democratic processes, that abstention is the only
right behaviour.

146

Written communication relating to Theme 2

Mr Ralph CRAWSHAW, Human Rights Consultant, fellow of the Human
Rights Centre of the University of Essex, former Senior Police Officer,
Stratford St. Mary (United Kingdom)
Training of law enforcement officials
"Ainsi que la vertu, le crime a ses degrs."34

The prevention and detection of crime are virtuous activities, but not unreservedly so.
The degree of virtue present in those activities can be, and is, diminished by the means
adopted to carry them out. Sometimes those means are themselves criminal and take on
varying degrees of criminality so that they can become more heinous than the crime against
which they are directed. Crimes such as torture or those which subvert the right to a fair trial,
committed by people dignified by the authority of the state to exercise power over their fellow
citizens, are at least as serious as most crimes committed by common criminals.
Social, political and economic changes taking place at national and supra-national
levels present significant challenges to police agencies and to police leaders throughout
Europe. Some forms of serious criminality and some current concerns about policing derive
from, or are exacerbated by, these changes. Concerns about policing revolve not only around
the extent to which police are able to prevent and detect crime and maintain or restore order,
but also around police behaviour.
It is a fundamental function of police to maintain social order and the rule of law so
that change within and between societies can take place constitutionally, lawfully and
peacefully. For this function to be fulfilled it is necessary for police leaders to have a
sophisticated awareness of the nature and extent of that change and of its implications for the
ends and means of policing. The ends of policing include the prevention and detection of
serious crime, and the means of policing include the requirement to respect human rights.
Police leaders then have to adapt the organisations they command and manage so that
those organisations can respond effectively, lawfully and humanely to the changing
environment within which they function. Training of police leaders to manage change is an
essential element, perhaps the essential element, of a policing response to serious crime which
requires respect for human rights. Furthermore leadership training must focus on the
normative aspects of policing and police leadership, as well as on the technical aspects of
policing and the technical aspects of the command and management of police organisations. In
this way police leaders can be equipped to command and manage their organisations in such a
way that the prevention and detection of crime become and remain entirely virtuous activities.
In this paper it is argued that the normative and the technical aspects of policing are
inextricably linked; that there is no conflict, nor even tension, between human rights and
policing; and that not only must police respect human rights in the process of policing, it
is actually a function of policing to protect human rights. These arguments are made
and illustrated by reference to human rights standards on the treatment of detainees, which
34

Racine (1677), "Phdre" 1V.ii.

147
include especially the prohibition on torture, and international standards on interrogation of
suspects - a technical policing skill significant in relation to the investigation of crime and,
when it is lacking, significant in relation to serious human rights abuse.
Ways in which normative aspects of policing are dealt with through courses, seminars
and workshops for police arranged by organisations disseminating international human rights
and humanitarian standards are considered, as are, to a lesser extent, national initiatives.
However, it is first necessary to consider the relationship between human rights and policing.
Human rights and policing - A symbiotic relationship
In countries where democratic forms of government and the rule of law prevail, respect
for human rights and effective policing are mutually dependent upon each other. Democratic
government requires, in fact subsumes, democratic policing, for government by consent
includes the notion of policing by consent. Principles of democratic policing are set out in
United Nations General Assembly resolution 34/169 of 17 December 1979 by which the
United Nations Code of Conduct for Law Enforcement Officials was adopted. The resolution
requires, inter alia, that "every law enforcement agency should be representative of and
responsive and accountable to the community as a whole".
A number of human rights35 are essential for democracy to prevail but, at the same
time, human rights are more likely to be respected and protected under democratic government
where policing is representative, responsive and accountable to the community. One of the
factors necessary for effective policing in democratic states is the support and cooperation of
the community for the police. This is more likely to be forthcoming if the relationship of the
police with the community is governed by the principles of democratic policing and
characterised by lawful and humane exercise of power by police. Lawful exercise of police
power is another aspect of the relationship between human rights and policing.
THE LAWFUL EXERCISE OF POWER
Human rights are protected by law, international law and the law of states, which
expresses human rights and their legal limitations, and defines police powers which are largely
a reflection of those limitations. For example Article 5 of the European Convention on Human
Rights guarantees the right to liberty and security of person. It then defines the limits on that
right by stipulating that there shall be no deprivation of liberty "save in the following cases
and in accordance with a procedure prescribed by law"36. This terminology means that the list
of six permissible reasons for deprivation of liberty is exhaustive, and that, if deprivation of
liberty is to occur, domestic law must establish procedures for the exercise of lawful power to
arrest or detain.

35

See for example the right to freedom of thought, conscience and religion, the right to freedom of opinion and expression, and the right to
freedom of peaceful assembly and association in Articles 18, 19 and 20 respectively of the Universal Declaration of Human Rights,
and Articles 9, 10 and 11 respectively of the European Convention on Human Rights.

36

The cases listed are lawful detention after conviction by a competent court; lawful arrest or detention for non-compliance with the lawful order
of a court in order to secure fulfilment of any obligation prescribed by law; lawful arrest or detention for the purpose of bringing a
person before the competent legal authority on reasonable suspicion of having committed an offence; the detention of a minor by
lawful order for the purpose of educational supervision or for the purpose of bringing him before the competent legal authority; lawful
detention for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts, or
vagrants; lawful arrest or detention to prevent unauthorised entry into the country or with a view to deportation or extradition.

148
Clearly the exercise of power in this domain, deprivation of liberty, as in all other
domains, must be lawful. However in every state, to a greater or lesser extent, the power to
arrest and detain, and other powers, are abused by police for a variety of reasons. These
include ignorance of law and procedures, inadequacy of technical policing ability, and
"necessity". This last reason is in fact a justification for violating human rights in the interests
of some perceived higher public good such as securing the conviction of a suspect in a
particular case or maintaining social order generally. All of these reasons are destructive of
human rights and of effective policing, but the last one is particularly so.
Basic police functions include enforcing the law, upholding the rule of law, and
maintaining social order. When police break the law, for whatever reason, they subvert their
own functions. They undermine the rule of law, and they commit a grave breach of social
order -they create the disorder of criminal abuse of power. Considered in these terms effective
policing must include the notions of lawfulness and respect for human rights. Policing cannot
be judged according to such limited criteria as the prevention and detection of a number of
crimes, or the restoration of social order when social unrest has occurred on particular
occasions. In democratic states governed by the rule of law the technical aspects of policing
cannot be considered separately from the normative aspects, they are inextricably bound
together.
That is the principal strand to the argument that the relationship between human rights
and policing is symbiotic. It is also the main justification for stating that abuse of power by
police is destructive of effective policing, but there are other justifications. In the long term
human rights abuse by police leads to loss of confidence by the community in the police and,
hence, to diminishing support and cooperation. Furthermore systematic or large-scale abuse of
human rights seriously impedes the development of technical policing skills necessary for
effective policing.
RESPECT FOR AND PROTECTION OF HUMAN RIGHTS
Two other aspects of the relationship between human rights and policing need to be
considered briefly. The first is self-evident but needs to be expressed - human rights are to be
respected in the processes of policing. Human rights standards stipulate the ways in which
policing is to be carried out. The second is rarely expressed but needs to be more so. The
protection of human rights is a function of policing. It is so closely bound up with the other,
more generally expressed, functions of policing that it deserves to be expressed as a function
in its own right.
Police perform this function in a variety of ways. For example the protection and
delivery of various categories of rights - civil, political, economic, social and cultural - are
dependent upon sophisticated forms of government and of social organisation. For these to
function there needs to be a certain level of peace and order in society, and one of the purposes
of policing is to maintain that peace and order. In this sense policing contributes to the
protection and delivery of every type of right - including rights not normally associated with
policing. When the different rights are considered individually it can be seen that police
protect these in very specific ways. For example treaty provisions protecting the right to life37
require that the right to life should be protected by law. One of the ways in which states meet
37

The right to life is protected, for example, under Article 2 of the European Convention on Human Rights, and Article 6 of the International
Covenant on Civil and Political Rights.

149
this obligation is to outlaw certain forms of killing. It is a function of police to prevent and
detect crimes of homicide, and in this way police contribute to the protection of the right to
life.
From this account of the relationship between human rights and policing it follows that
training in the normative aspects of police work is of paramount importance, and that
effective, lawful and humane policing is dependent upon this type of training as well as on
training in technical aspects of policing. This point is revisited when training in relation to the
treatment of detainees and the technical policing skill of interrogating suspects of crime are
considered.
Before that, however, it will be useful to review the work of some organisations which
are involved in disseminating international human rights and humanitarian standards on
policing, and to attempt to gauge the extent and nature of national initiatives in this area.
Human rights and policing - Training initiatives
INTERNATIONAL INITIATIVES
Earlier efforts in this field appear to have involved displacing and disorienting groups
of high-powered international lawyers by flying them halfway around the globe and asking
them to lecture groups of bemused police officials on the finer points of jus cogens, the
travaux prparatoires for the Standard Minimum Rules for the Administration of Juvenile
Justice, and the arcane workings of the Human Rights Commission.
This, somewhat overstated, parody of what actually did happen is concocted to make
the point that, whilst training in technical policing cannot and should not be attempted in a
human rights seminar or workshop, the content of such programmes should be related to dayto-day policing concerns.
The United Nations Centre for Human Rights, located in the Palais des Nations at
Geneva, was one of the pioneers in this field and the dedicated and industrious officials of the
Centre responsible for organising human rights programmes for police very quickly developed
a set of nine working principles on which such programmes should be based38. The principles
are designed to ensure that human rights programmes for police are presented by resource
persons who have expertise in policing; are relevant to the needs of each specific group of
participants; contribute to the spread of good policing practice; and that there is maximum
dissemination of human rights standards within the client agency.

38

These principles are set out in a background paper prepared for a Council of Europe Seminar on Human Rights and the Police held in Strasbourg
between 6-8 December 1995, and in Chapter 1 of the Centre for Human Rights publication Human Rights and Law Enforcement - A
Manual on Human Rights Training for Police (Professional Training Series No. 5). The Principles require, for example:

-collegial presentations (presentations on programmes to be made by resource persons expert in policing and training police);
-the training of trainers (so that the impact of programmes is multiplied through a commitment of trainers to conduct training programmes based
on the one they attended);
-practical approach (providing practical information and examples of good practice in relation to each aspect of police work considered);
-teaching to sensitize (by extending the goals of programmes beyond the imparting of standards and the dissemination of good practice to include
exercises designed to sensitize participants to their own potential to violate standards).

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The United Nations Centre for Human Rights draws from a continuously developing
list of resource persons to conduct its programmes in a wide variety of countries. The
principles have been successfully applied to training programmes for police officials engaged
in United Nations peace-keeping operations.
The Crime Prevention and Criminal Justice Branch of the United Nations, which is
located in Vienna, has also organised training programmes for police officials in a number of
countries. These combine a substantial practical element with human rights standards, and
standards of particular relevance to the activities of the Branch39.
The presentation of practically based programmes, which at the same time are not
attempts to provide technical training for police, is one of the objectives of the International
Committee of the Red Cross (ICRC) in its dissemination activities in this particular field. The
ICRC is best known for its primary activities of providing protection and assistance to military
and civilian victims of armed conflicts, and for its dissemination of international humanitarian
law - particularly through training programmes for members of armed forces40.
The increasing number of internal conflicts; the difficulty on occasions of
distinguishing between armed conflicts (in which military are generally deployed), and
conflicts falling below that threshold (in which police or paramilitary police agencies are
deployed); and the fact that police operations to control internal violence increasingly give rise
to humanitarian problems comparable to those arising during armed conflicts are all factors
which led the ICRC to develop a dissemination programme for police.
Its programmes which are flexible, and adaptable to the needs of specific audiences,
focus on the rules of international humanitarian law (and particularly those of relevance to
police officials), as well as on appropriate human rights standards. Teaching material,
including role play exercises, has been produced for these programmes, and, whilst the
programmes and material have proved relevant and acceptable to civil police agencies not for
the time being confronted with any form of conflict, they are particularly relevant to the needs
of para-military police agencies and to civil police agencies responding to internal tension or
conflict.
Another institution with expertise in international human rights law and international
humanitarian law is the Raoul Wallenberg Institute of Human Rights and Humanitarian Law
based at the University of Lund in Sweden. The Raoul Wallenberg Institute offers
programmes based on these disciplines to politicians, government officials, the judiciary,
lawyers, the military and police in many countries. It is particularly active in Africa. The
Institute draws on the talents of its own staff and on external resource persons with the
necessary expertise. Its programmes are practically based and, because of its administrative
efficiency and the adaptability of its staff and resource persons, the Institute can respond at
short notice to meet requests for a wide variety of training and educational needs.
In addition to the programmes it runs abroad the Institute holds seminars for a variety
of officials, including police officials, at its premises in Lund. It also organises study visits for
39

For example, as set out in the Compendium of United Nations Norms in Crime Prevention and Criminal Justice, United Nations, New York,
1992. (United Nations Publication Sales No. E.92.1V.1 ISBN 92-1-130148-3).

40

The mandate for the activities of the International Committee of the Red Cross is based on the four Geneva Conventions of 1949 and the
Additional Protocols of 1977, as well as its own Statute.

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such officials. Some participants in the seminars in Lund have already benefited from
programmes offered by the Institute in their home countries and, by attending the Institute, are
able to extend their knowledge and awareness of human rights and humanitarian standards.
The final, but not the least significant, player on the international scene referred to in
this context is the Council of Europe which seeks to promote its statutory principles of
parliamentary democracy, and respect for human rights and the rule of law. The Directorate of
Human Rights of the Council of Europe has taken a number of initiatives in relation to police
training which include: the publication of a handbook41 "Human Rights and the Police" by
John Alderson, a distinguished former chief officer of police; the holding of a meeting of
directors and representatives of police academies and police training institutions in Strasbourg
in 1990; the publication and distribution of a document42 on "The Police and the European
Convention on Human Rights" by Peter Duffy, a barrister; human rights training for Turkish
police officials through study visits to Sweden, the United Kingdom, Belgium and Germany;
human rights training for Albanian police officials and members of the Albanian Police
Academy through seminars, workshops and study visits; and the holding of a Seminar on
Human Rights and the Police in Strasbourg during December 1995.
Other Directorates of the Council of Europe have undertaken activities in this field,
including a number of training courses for police organised by the Directorate of Legal Affairs
for the countries of Eastern and Central Europe.
NATIONAL INITIATIVES
For the purposes of the Seminar it organised in Strasbourg in December 1995, the
Directorate of Human Rights of the Council of Europe requested participants who were
directors or representatives of police academies or police training institutions to provide
details of human rights training for police in their own countries. Representatives from all
member States were invited together with representatives from Belarus, Croatia, Russia, "the
former Yugoslav Republic of Macedonia" and the Ukraine.
Representatives from eleven member States43 responded to this request and, of these, it
appeared that human rights were dealt with as a separate and specific subject in training
institutions of four states44, and that instruction on international instruments expressing human
rights was included on the curricula of training institutions of five states45. Other responses
indicated that human rights were taught during lessons on other subjects such as
"constitutional law" and "police theory".
Clearly this is inadequate data from which to draw very firm conclusions because of
the small number of states responding and because the amount of detail provided varied
considerably. Furthermore, it is not possible to evaluate the extent or quality of the teaching
provided from the responses, and it may be that an institution incorporating the teaching of
human rights with other lessons is dealing with the topic adequately.
41

J. Alderson, Human rights and the police. Council of Europe Press, Strasbourg, 1994.

42

Peter Duffy, The Police and the European Convention on Human Rights. Council of Europe Human Rights Information Centre, Strasbourg,

1995. (DH-AW-PO (95) 23).

43

Denmark, Finland, France, Hungary, Iceland, Norway, Poland, Romania, San Marino, Sweden and Turkey.

44

Denmark, Norway, Poland and Turkey.

45

Denmark, Finland, Poland, Romania and Turkey.

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However, it is possible to form some idea of the state of human rights teaching or
training from these responses, and the author of this paper is able to supplement this
information with his impressions having conducted seminars and workshops on human rights
for police in many states in Europe, Africa, the Middle East, Central Asia and Asia.
The responses of participants as described above and the author's impressions from his
teaching experiences enable him to conclude, with a fair degree of certainty, that most national
training programmes do not address human rights as a separate and significant topic, and that
the international dimension of human rights protection is not covered to any great extent.
Furthermore, the author concludes from his own involvement in teaching human rights to
police that there is fairly widespread resistance to the notion of human rights among police,
and that many police officials do feel that they are entitled to violate, or justified in violating,
human rights in the course of their duties.
The author also concludes that, whilst the extent to which human rights are respected
or protected in the numerous countries in which he has conducted programmes varies
enormously, the attitudes of police officials to human rights, and expressions of the perceived
justification for violating them, do not vary to the same degree.
These conclusions emphasise the importance of human rights training for police
officials; the importance of proper command, management and supervision of police officials;
and the importance of ensuring the legal accountability of individual police officials for their
own acts or omissions. The conclusions also suggest that, with few exceptions, human rights
training for police officials is inadequate, and this is inimical to enjoyment of human rights
and to effective policing.
Concomitants - The normative and technical aspects of policing
The effective performance of the profession and craft of policing depends on
awareness of, and compliance with, the rules according to which it is to be practised, and the
application of technical skills. Whilst many police officials emphasise, and take a pride in, the
practical and pragmatic approach they bring to their duties, and their ability to apply "common
sense" to situations they face, all of the technical skills they require have sound theoretical
bases and they ignore these at their peril.
These essential links between the normative and the technical aspects of policing, and
between the theory and practice of policing, are particularly apparent in the area of policing
taken to illustrate these points - that concerning the treatment of detainees and, more
specifically, the interrogation of detainees suspected of crime. The power and ability to
deprive a person of his or her liberty and to question that person is an essential element of the
investigative process, especially in relation to the investigation of serious crime.
INTERNATIONAL STANDARDS ON THE PROTECTION OF DETAINEES
and

In essence the international standards on the treatment of detainees express the total
absolute prohibition on torture and other cruel, inhuman or degrading

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treatment or punishment46, and they express the right to humane treatment as a detainee47.
They also set out a number of other rights and safeguards upon which these are contingent for
example rights designed to prevent incommunicado detention and to ensure basic standards of
hygiene and comfort for detainees48.
Torture is defined in Article 1 of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment of Punishment49, and part of that definition reads:
"The term 'torture' means any act by which severe pain or suffering, whether physical or
mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third
person information or confession."
The definition also stipulates that torture is an act committed "by or at the instigation of
or with the consent or acquiescence of a public official or other person acting in an official
capacity". As far as police officials are concerned, the prohibition on torture under
international law is expressed in the following way in Article 5 of the United Nations Code of
Conduct for Law Enforcement Officials50:
"No law enforcement official may inflict, instigate or tolerate any act of torture or other cruel,
inhuman or degrading treatment or punishment, nor may any law enforcement official invoke
superior orders or exceptional circumstances such as a state of war or threat of war, a threat to
national security, internal political instability or any other public emergency as a justification
of torture or other cruel, inhuman or degrading treatment or punishment."
In spite of the fact that torture is universally condemned and outlawed, the United
Nations Special Rapporteur on torture, in his report to the 43rd Session of the United Nations
Commission on Human Rights, stated that torture remains a "widespread phenomenon" and
that "no society, whatever its political system, is totally immune"51. Furthermore, since the
Special Rapporteur on torture was first appointed in 1985, most of his annual reports to the
Human Rights Commission stress the importance of training police in the prohibition on
torture and the humane treatment of detainees.
Recommendations of this nature echo provisions of the Convention against torture
(referred to above), and the Declaration on the Protection of All Persons from Being Subjected
to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment52 which require
training of police officials to take full account of the prohibition against torture53. Both of

46

For example: Universal Declaration on Human Rights (Article 5); International Covenant on Civil and Political Rights (Article 7); European
Convention on Human Rights (Article 3).

47

For example: International Covenant on Civil and Political Rights (Article 10); Body of Principles for the Protection of all Persons under Any
Form of Detention or Imprisonment (Principle 1).

48

For example: European Convention on Human Rights (Article 5.3 and 5.4); International Covenant on Civil and Political Rights (Article 9.3);
Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (Principles 12, 16, 17 and 19);
Standard Minimum Rules for the Treatment of Prisoners (Rules 9-20).

49

Adopted and opened for signature, ratification and accession by General Assembly, resolution 39/46 of 10 December 1984.

50

Adopted by United Nations General Assembly, resolution 34/169 of 17 December 1975.

51

Reference E/CN. 4/1987/13.

52

Adopted by General Assembly, resolution 3452 (XXX) of 9 December 1975.

53

See Article 10 of the Convention and Article 5 of the Declaration.

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these instruments also require states to keep under systematic review interrogation methods
and practices as well as arrangements for the custody and treatment of detainees54.
In his report dated 18 December 198955 to the Commission, the Special Rapporteur
called for training of police officials to incorporate teaching in "how to interrogate in a manner
which recognises and respects the detainees' rights and dignity". This recommendation is
important because, whilst his other recommendations could be read as calls for training simply
in the standards on the treatment of detainees, this is an explicit call for training in a technical
policing skill. The question then arises as to what should form the basis of such training.
INTERNATIONAL STANDARDS ON INTERROGATION OF DETAINEES SUSPECTED
OF CRIME
One source could be found in a recommendation of the Committee for the Prevention
of Torture (established under the European Convention for the Prevention of Torture and
Inhuman or Degrading Treatment or Punishment). In seeking to compile standards, the
Committee recommended56 that legislative provisions could be usefully supplemented by a
code of conduct for interrogations which would cover such issues as the systematic informing
of detainees of the details of officials conducting the interrogation; rest periods between, and
breaks during, interrogation; places where interrogation may take place; and the questioning of
vulnerable suspects.
Whilst provisions of this nature express standards of behaviour, and do not address the
technical, or skills based, aspects of interrogation, the proposal to add to the, all too few,
standards on technical policing matters is noteworthy. Such standards can provide a sound
guide for action and a solid basis for training.
The Convention against torture, and the Declaration, require states to keep
interrogation methods and practices under review, but provide no benchmark for such reviews
- apart from the fact that torture and ill-treatment should not form part of those methods and
practices. Some standards on the actual practice of interrogation are, however, set out in the
Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment57, and this is an example of how an instrument expressing international human
rights standards can also express standards on a technical policing matter.
Another set of international principles doing this, and doing so more completely, are
the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials58. The
fact that international instruments, essentially setting norms of behaviour and conduct, should
also embody standards of a practical or technical nature supports the argument that the
normative and technical aspects of policing are inseparable.
The standards on interrogation in the Body of Principles are brief and succinct, and
they are informed by an awareness of some of the psychological processes involved during
54

See Article 11 of the Convention and Article 6 of the Declaration.

55

Reference E/CN. 4/1990/17.

56

Recommendation referred to in a paper by Professor Jim Murdoch, The European Convention for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment and its Relevance to Police. Presented at Council of Europe Seminar on Human Rights and Police
at Strasbourg, December 1995 (DH-AW-PO (95) 3).

57

Adopted by United Nations General Assembly, resolution 43/173 of 9 December 1988.

58

Adopted on 7 September 1990 by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders.

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interrogation, and by insights into what amounts to "bad practice" in police interrogations of
persons suspected of crime. Principle 21 prohibits taking "undue advantage of the situation of
a detained or imprisoned person for the purpose of compelling him to confess, to incriminate
himself otherwise or to testify against any other person". It also prohibits subjecting a detained
person, while being interrogated, "to violence, threats or methods of interrogation which
impair his capacity of decision or judgement".
These provisions represent a tentative step into a technical, skills-based area of
policing. It is a tentative step because it does not venture very far into that area, and because it
expresses prohibitions rather than positive examples of good practice.
Concluding remarks
International standards expressing norms of good behaviour for policing are well
established and are probably complete. There is now a pressing need for the formulation of
international standards which address key areas of policing and which are informed not only
by existing normative standards, but also by sound theory and existing best practice on the
technical aspects of those key areas. The absence of standards combining the normative and
the technical is one reason why the plethora of normative standards continues to be breached.
The interrogation of persons suspected of crime is an example of one such key area.
The results of research into the psychological processes involved in interrogation and
confessions provide the necessary theoretical basis59, and examples of good practice in lawful
and humane interrogation methods can be found in the publications of various people who
have developed and who teach those methods60.
Especially in the absence of standards which expressly and convincingly combine the
normative and the technical, police training programmes need to seriously and systematically
address the requirements for good behaviour in policing. Good behaviour in policing means
police respecting human rights without reservation, and acknowledging and embracing their
function to protect human rights. This, in turn, means that human rights must be treated as a
separate and significant topic in police training programmes, and that all aspects of technical
training must be fully imbued with the requirement to respect and protect human rights.
One way of achieving this is to encourage more extensive cooperation between police
academies and the various organisations, referred to above, which already offer human rights
training programmes for police. Teaching the international dimension to human rights
protection is an indispensable element of human rights education. Good behaviour is an
indispensable element of effective policing.

59

See for example Gisli Gudjonsson, The Psychology of Confessions, Interrogation and Testimony. Wiley, Chichester, 1992.

60

See for example E. Shepherd (ed.), Aspects of Police Interviewing. Issues in Criminal and Legal Psychology, No. 18. Leicester: British
Psychological Society.

Teaching of "investigative interviewing techniques" (psychologically based interviewing techniques for questioning victims of crime and
witnesses to crime, as well as suspects of crime) is also undertaken, for example, by Aspley Limited of St Albans, Hertfordshire in the
United Kingdom.

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Interventions concerning theme 2

Mr Imre BKS
The arguments for or against the death penalty depend on the values we have chosen to
defend and it is necessary to identify the origins of the death penalty. To start with a historical
point of view, capital punishment is linked to the history of nations: the death penalty has
always been a part of European society, including Greek and Roman, then Christian societies
up to the 20th century. From a geographical or comparative law standpoint, it can be noted
that abolitionism is limited to Europe, where it has its sole institutional basis. Indeed, world
religions such as Islam acknowledge and insist on the death penalty in a number of cases and
even a great white civilisation such as the United States reintroduced the death penalty in
1976.
The role played by public opinion in this debate cannot be ignored. In Hungary the
death penalty has been applied as an instrument of terror over the past fifty years and public
opinion has become accustomed to its use. Consequently the death penalty was declared
unconstitutional in 1990, not by referendum but by the Constitutional Court. The Hungarian
Constitution guarantees the right to life and the Constitutional Court considers that only a
living person can enjoy dignity. As the right to life and to dignity are closely linked, we are
entitled to conclude that the death penalty is at variance with the very substance of human
rights.

Mr Samson BELIAEV
The existence of post-Soviet organized crime is a threat to the Russian transition to
democracy, for it may, on the one hand, tend to limit personal freedom, the development of
independent media and free elections and, on the other, thwart foreign investments and market
economy.
The Organized Crime Study Center at the Law Faculty of Moscow State University is
a joint Russian-American effort to combat post-Soviet organized crime. Its aims are: helping
in developing an efficient anti-organized crime policy, carrying out research and training and
providing journalists with information on relevant strategies.
The project addresses a problem which is extremely grave and alarming in Russia and
in the world at large: organized crime has received growing attention in the political discourse
in Russia and many members of the new parliament have actually been elected on anti-crime
platforms. Therefore, in the absence of an effort to inform both policy makers and the public
on democratic alternatives, there is a real danger that the Russian authorities will feel
compelled to resort to further authoritarian tactics, which could undermine Russian democracy
in general.
There are parallels between the conditions which were present in Western countries at
the time criminal organizations emerged, and the conditions existing in Russia nowadays; for
this reason, the experience gained by Western democracies in their fight against organized
crime is extremely valuable for Russia. The struggle against this type of crime in Italy over the

157
past 15 years has been successful because of several pre-conditions: in the first place, the
awareness of the population and the existence of informed media able to address the issue of
organized crime in a sophisticated way and advocate a democratic approach, together with the
development of a significant literature to teach law students about problems relating to this
phenomenon. Secondly, the adoption of an appropriate legal framework and a law apparatus
which has the capability to address problems related to organized crime and to introduce
institutional bodies to discuss them at a parliamentary level.
Many of this pre-conditions, necessary for an effective fight against organized crime,
exist in Russia at the moment.

Mr Robert FICO
In Slovakia, as in other post-communist countries, media do not play an important role
in the fight against organized and serious crime. So far, they have not even been able to
initiate an anti-crime campaign or a campaign for the protection of the victims in cooperation
with relevant state bodies.
Although it is obviously important to use the media to inform the community about
campaigns against crime, my view is that it is even more necessary to convince the community
that crime is no longer a matter which can be dealt with by the state alone. This means that
citizens should be made, to a certain extent, responsible and aware of the fact that only close
cooperation between the state and its citizens may be successful in the fight against crime.
Some western european countries have elaborated similar strategies. I feel that the Council of
Europe could play an important role in the estabilishment of a system through which its
member states could exchange their practical experiences in this specific field.
My final remark concerns the role of the media with respect to death penalty matters. I
am covinced that, provided that there is the necessary political will in a country, media can
significantly influence public opinion in favour of the abolition of the death penalty, even if
the community strongly supports this punishment.
A few years ago, the Law Institute of the Ministry of Justice of Slovakia conducted a
research on the extent to which the public could be influenced on death penalty matters. After
the research, we came to the conclusion that the State - by using methods which are obviously
different from the ones utilized in the research - can significantly change public opinion on
death penalty related issues.

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Mr Loukis LOUCAIDES
The position, expressed by Professor Snijders, that we should have no press laws at all,
cannot be supported, in my view, especially when examining the question of how to combat
organized crime.
First of all, as he stated, press has to be independent; in order to achieve this goal, there
must be laws to ensure that it does not fall in the hands of certain interests. Failing the
safeguard of independence, the risk is that the press could contribute to crime rather than fight
it, for it could serve the interests of corrupted politicians or groups engaged in or supporting
criminal activities.
Furthermore, there are certain rights which can only be protected through regulation of
the press. These are, for instance, the right to reputation and the right to information: it is
indisputable, in fact, that - without subjection to any law - the media may easily distort
information at the expenses of the due right to information enjoyed by the citizens and in
favour, in the worst of cases, of criminal activities.
Finally, it must be emphasized the duty incumbent upon us jurists to inform people
about human rights values and the necessity to protect them at all times, also at risk of
becoming impopular.

Mr Mario CHIAVARIO
I should like to put a question to Mr Max Snijders. I should like to have your opinion
on a journalistic practice that I would describe as "seeking special relationships" with
investigators or law officers. Such relationships raise certain problems with regard to
journalists' professional ethics, respect for human rights and the proper administration of
justice. I should particularly like to have your opinion on the common practice of conducting
interviews in which members of the public prosecutor's department are asked to give their
views on a wide variety of issues, including legislation currently in force, the country's crime
policies, and even investigations for which they - or their colleagues - are responsible.

Mr Nigel RODLEY
The position, expressed by Mr Snijder, favouring freedom of press is to be supported:
it is in fact difficult, for instance, to imagine that by relying on control set up by corrupt
politicians we can ensure the existence of a press to uncover corrupt politicians. At the same
time, it cannot go unnoticed that freedom of investigation and serious journalism imply a price
to pay and that a judgment may need to be made on whether the contribution to information
and understanding put out by the so-called quality press is not outweighed by the contribution
to hate, intolerance and anti-human rights culture promoted by the "popular press".
I also support the view that it is a false dichotomy to talk about victims' rights versus
criminals' rights. This is certainly true before conviction as a result of a fair trial, for the
assumption that we are dealing with criminals when people have only been accused of a
criminal act or are in police custody is in deep contrast with a fundamental human rights norm,

159
namely the presumption of innocence. At the post-trial level, when we can assume -at least for
legal purposes- that we are dealing with criminals, the problems that arise are of a different
nature, especially if they involve the death penalty. In this respect, it must be stressed that the
fact that people are generally in favour of the death penalty does not necessarily imply that it
is a priority to them: an analysis should be carried out on the exact degree of commitment the
public devotes to this issue. In addition, political leadership challenging publicly the capital
punishment at risk of losing popularity plays an absolutely crucial role. Obviously, the right
arguments must be found and made, suggesting, for instance, an incoherence of values in
those who consider, on the one hand, "minor" corporal punishment as illegal and degrading
treatment and deliberately arrange, on the other, a scheme by which people end up being
hanged, electrocuted or shot.

Mrs Kathleen MAHONEY

This intervention addresses some of the points made by Mr Snijders in his paper.
Firstly - concerning the assumption that the media is independent - it must be stressed that
there is an increasing monopolization of the media by certain individuals and that this
seriously undermines and corrodes the principle of the free market of ideas which the freedom
of the press principle rests on.
A second assumption which can be challenged is that more harm is likely to come from
regulation than from absence of regulation. In fact, this seems to depend greatly on the subject
of the communication, the person who is harmed by it and, ultimately, the nature of the harm.
The balance of rights is essential in determining the scope of the freedom of the press: when
the harm produced to human rights of other people and groups outweighs the benefits of
unfettered media, there cannot be absolute freedom of expression in the media.
Media are profoundly different from individuals and should not therefore be treated the
same as all other individuals under the law: they should obviously be protected from state's
interference, but not granted rights to absolute freedom of expression. Especially when the
exercise of this freedom engages other constitutional or human rights of people which will
cause harm to security, to equality and to their freedom from inhumane or degrading
punishment, regulation appears necessary.

Mr Leonard LEIGH
When dealing with questions related to freedom of press, there is no global world rule
or point of balance which can be set as a general principle.
A more correct way to face these issues would be, in my view, to proceed by subjects,
clearly defining, on the one hand, the subjects which are open to the press and those which are
protected and, on the other, the terms upon which the protection is accorded. The problem
should be approached in the context of the structure of particular laws existing in a given state.
A system which selects topics for control -in the way that what is said about them
forms an offence against a specific substantive law- seems to be more appropriate than trying
to estabilish a machinery which will in general control the press as such.

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* * *

Replies of the rapporteurs

Mrs Vivien STERN
It is very important that we end on a note of optimism. Human rights ideas are today
under threat and threats to democracy increase as the gaps between the systems and the people
grow wider. On the other hand, we have to consider that the ideas that we are supporting can
be very inspiring and meaningful for people right across society, as the number of people and
organizations fighting to promote them show.
Three priorities emerge from the discussions we have had. Firstly, greater support
should be given to people who fight for promotion and respect of human rights and their
organizations.
Secondly, a practical programme of concrete activities that are meaningful to the
general public is necessary, for much of what we say is perceived as deeply abstract and
theoretical.
Thirdly, it is paramount that we strenghten the links between the people involved in the
promotion of human rights, in particular estabilishing a european-wide network of people who
can exchange experiences and ideas and support and help each other.

Mr Max L. SNIJDERS
In this intervention I will address some of the remarks which have been made
concerning my report on the role and responsibility of the media.
With respect to the role of the media in the fight against criminality, it has been
suggested that - in the absence of regulation - the press could contribute to crime instead of
fighting it. It should be noted that the state should not be in a position to order or force the
press to fight crime, for the press should not be considered as an instrument of the state: this
would indeed mean the very end of the freedom of the press and a return to a totalitarian
regime conception of it.
As for the concerns expressed for a press spreading racism and inciting to hatred, the
solution seems to lay in applying the appropriate existing laws which criminalize such
behaviours, irrespective of whether the offender is connected with the media or not. This
observation replies in part to the further remark according to which absolutely unfettered
media should not be supported: restrictions on journalists are perfectly justifiable if inflicted
upon on illegal behaviour grounds and not on the grounds of their acting as journalists.
In connection with this, it has been pointed out that media are profoundly different
from individuals in terms of position of power and control which derives from the
phenomenon of monopolization. A clear distinction must be made between the power of the

161
media as an institution, on the one hand, and the power of the individuals who exercise their
rights to collect and impart information, on the other. It is necessary to restrict the first power,
by use of rules which can be either of a legal or of a voluntary nature: legal measures, self
regulation and rules granting independence of editorial bodies can contribute to avoid the
dangers of monopolization.
Finally, I would like to address the concern that freedom of press allows the "popular
press" to flourish and profoundly influence its readers with ideas which are often in contrast
with human rights. Although the real impact that this press has on the public could be not as
strong as generally imagined, it should be emphasized that it nevertheless constitutes part of
the risk involved in having a free press. The message that the Council of Europe should
deliver to the new democracies should in fact be that if one allows for democracy, then he
allows for freedoms and societal developments that did not exist before and that can no longer
be controlled by a government.

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CLOSING SESSION
General Report presented by Mr Bronislaw GEREMEK, Chairman of the
Parliamentary Commission on Foreign Affairs, Warsaw
I would like to start by telling Professor Zanghi how much I admire the Centre he
directs and its activities - not just the one in which we are particpating here, but also the other
work it does on human rights and the fight against crime. I also admire Mr Imbert and Mr
Guarneri for the image they have given this seminar and for bringing together judges, public
prosecutors, lawyers and senior officials from states and international institutions, as well as
officials whose work brings them face to face with the practical, everyday problems.
This kind of exchange between theorists and practitioners, between those who know
what the law says and those who know how it is applied, is particularly useful and is, it seems
to me, enough in itself to make this seminar a success. But the sheer amount of material it has
given us, starting with Professor Mario Chiavario's introductory report and continuing through
the various reports, statements and discussions, makes it hard for me to present you with
conclusions. Indeed, I feel neither able nor qualified to do so. What I would like to give you knowing all the time that I have a privilege no one should have, the right to speak without
anything I say being subject to debate or discussion - is my personal reading of this seminar
and its findings.
It has been concerned with serious crime and the requirement of respect for human
rights in European democracies - a big topic if ever there was one. It has been held in
Taormina; we have all been struck by the beauty of the Sicilian landscape, in spite of
occasional fog and the gusts of the Mediterranean sirocco. And we have been struck by the
warm and likeable qualities of the local people. But we are also in a place which is
synonymous with serious, organised crime. In a way, we are here as tourists and are seeing
Magna Graecia through tourists' eyes. Looking out from the coasts of Sicily, we can imagine
Greece in the distance, and perhaps that far-off image may remind us that, whenever it has
thought seriously about democracy and public life, humanity has always had to choose
between two models, Athens and Sparta.
At the end of this century, we feel closer to the tolerance and openness of Athens than
to the more authoritarian values of Sparta, and this is one of the cultural factors which
condition our approach to the question of crime and punishment.
This seminar's organiser, the Council of Europe, is the purest European institution and the clearest in the old meaning of "clara" as the opposite of obscure; in the process of
European integration, it has been distinguished by its moral consistency, its body of
conventions and its political philosophy of pluralist democracy, the rule of law and human
rights. In the spirit of this same philosophy, I shall take the risk of stating at once two
certainties which I should like to make the starting point of my own approach.
First and foremost, the death penalty must be banned throughout Europe. As Albert
Camus said in 1957, it must be outlawed. Capital punishment serves no purpose, answers no
need and is totally unjustified. It is incompatible with a system of penalties based on justice,
not vengeance. Protocol No.6 should be made an integral part of the Rome Convention, and

163
new member countries should accept it at once as one of the Council of Europe's
achievements. Some of the things that certain eastern European countries have said on the
subject merely confirm the need for this. Abolition of the death penalty expresses Europe's
recognition of the dignity of the human person as the basic principle on which its values and
constitution rest.
The second certainty I put to you is that, under this same fundamental principle, we
must acknowledge that respect for human rights must also be the basis of all our crime
policies. Any suspension of those rights - even temporary - undermines the foundations of our
civilisation. We must never forget that there are two sides to any violation of human dignity: it
affects both the person who suffers it and the person who inflicts it. The "reasons of the head"
and the "reasons of the heart", of which Pascal spoke, also go hand in hand here. The case-law
of the European Commission and Court of Human Rights reflects a growing sense of the grave
threat which organised crime poses to our European societies. For all that, however, the
fundamental rights of individuals must always be respected.
One of the points made here in Taormina is that social change leads to changes in the
patterns of crime. A look at the social history of crime does indeed show that at various times
there has been public alarm at new forms of crime or an increase in the crime rate. In early
modern Europe, begging was regarded as a dangerous crime since the refusal to work
threatened the social structures of emergent capitalism. Likewise, the brutal repression of
vagrancy was intended to intimidate those who opted out of the community and in so doing
threatened public order. In earlier societies, the judicial and policing systems were weak, and
this meant that penalties had to be exemplary. They were thus made severe to compensate for
the weakness of the state and civil society. It is, however, significant that, even before human
rights became a concept, these societies felt that theft was justified in situations of extreme
urgency. In modern times, the increasing power of the judiciary and the police has been
accompanied by the emergence of a new philosophy on the penal system.
The thing that gives serious crime its new dimension today is its connection with the
emergence of criminal counter-powers. This is a danger which we must confront. In the name
of human rights, organised crime must be effectively combated. There is no defence or, still
less, justification for terrorism or the mafia. At this seminar, we have listened with horror to
the long list of the Italian mafia's victims, including judges, politicians, journalists and police
officers. Indeed, the things we have heard about mafia terrorism and its international
ramifications strongly suggest that the mafia is coping more effectively than states and
societies with the challenge of globalisation.
The wave of terrorism, particularly in the 1970s and 1980s, seemed to threaten
European order as a whole. In the most seriously affected countries, such as Germany and
Italy, there may have been a temptation to strike back with state terror, but the European
democracies proved capable of opposing organised crime with organised legality and
terrorism with the rule of law.
In fighting organised crime, it is vital to attack its economic foundations and strike at
its finances. This is an area where effective strategies must be found: suspect goods and assets,
which cannot be shown to have been lawfully acquired, must be confiscated and impounded.
In doing this, we are working in the community's interests and also respecting the rule of law.
In fact, the means we employ in trying to punish crime effectively must always remain within
the bounds of law. Effectiveness cannot be bought at the expense of human rights, since

164
human rights must be respected under all circumstances. Faced with these dangers, we must
not allow the climate of fear or panic which crime engenders to get the better of us. Europe's
hard-won democratic values must form the basis of everything we do to counter the threat.
The same danger now applies in the East. The countries of central and eastern Europe
are reminding us of the well-known and almost hackneyed truth that freedom, too, has its price
and that nascent freedom brings problems in its wake. There is also a price to be paid for
breaking out of a deadlocked society. In this part of Europe, unemployment, poverty, a certain
breakdown of community links, and the transition to a market economy have combined to
create a highly volatile situation. There are two great dangers here. One is crime itself, the
other is populism, which feeds on anxiety and exploits people's fears.
Dangerous problems are developing in the former communist countries, particularly at
the point where politics and economics meet. Corruption and clientelism, which are both a
kind of continuation of the communist party's monopoly and a parasitic outgrowth of the
transition, must be regarded as the sources of this new wave of crime. The best way of getting
rid of the problems is to reduce the state's role in the economy, bring in an open system of
public contracts to limit corruption, and establish international co-operation, first of all to
combat trafficking in drugs, but also to combat trafficking in women, cars and weapons,
which, although all very different, are the real source of organised crime in the eastern
European countries. Since the accent at this seminar has been placed on the danger from the
East, I am sure you will forgive me for pointing out that this danger from the East is connected
with the West, that both sides have problems and that the people who cause them are actively
working together.
The new democracies are vulnerable, firstly, because powerful crime syndicates are
trying to influence or dominate the democratic processes, and particularly elections. Recent
elections in some of those countries have shown how the mafia and organised crime networks
can infiltrate in the very workings of democracy. In cases like this, the machinery of
democracy seems itself to be working against democracy.
A second problem lies in the fact that social frustration and insecurity together make
people receptive to populist, authoritarian government, prompting them to look for strong
leaders, "men of destiny", who will impose an iron grip on politics. We must not exaggerate
this danger, but we need to be aware of it, so that we can do something about it.
crime?

The big question we face is how the law-governed state should react to organised

First and foremost, we must focus on prevention. While trying to come up with social
policies to meet present challenges, particularly that of unemployment, I feel we should not
cling to the illusion that full employment is possible; we live at a time when jobs are becoming
a rare commodity. This is a new situation and we need something more than yesterday's
remedies to deal with it. We also have to cope with the problem of migration. We must accept
that cultural integration of immigrants is a necessity and steer clear of repressive policies.
We also need to devise new prevention policies and set up structures based on
partnership. The "Crime prevention boards" tried out in France, which rely on the subsidiarity
principle so dear to the European Union, illustrate the need to have local structures and consult
local communities. This is an area where British schemes have often worked particularly well,

165
pointing the way to the future. Minor crime leads on to serious crime, and this is why this kind
of grass-roots work in the community is so important, since it helps us to cut organised crime
off from its main roots. Another thing we need is strategies to reduce opportunities for crime,
strategies which can be implemented in the economy and in the community. At the same time,
we all know that prevention will never get rid of crime completely.
We must therefore face up to the need for effective strategies to combat organised
crime itself. Italy's experience with pentiti, or repentant criminals, seems important for
countries trying to find more effective ways of coping with organised crime, but the big
question is how to protect court witnesses without violating the principle of a fair public
hearing.
Everything depends on the judges. We need to realise that judges are the key factor in
all our efforts to protect society from crime - judges who are respected, who have a moral
standing in the community which rubs off on the institutions they represent, and who are
constantly concerned to seek out the truth. We must not forget that, in authoritarian and
totalitarian countries, judges were the mainstay of oppression and tyranny. If organised crime
is to be defeated, it is vital that the judiciary should recover its legitimacy. And it is vital that
"the right to liberty and security", provided for in the Convention, should be exercised
publicly, and that everyone should see that this is so.
Finally, the prison system must be governed by humanitarian principles, and must
respect the dignity of the individual, apply psychiatric methods to prisoners and be subject to
supervision by non-governmental organisations and public opinion. We need to remember that
the prison system is still one of the weakest links, if not the weakest link, in respect for human
rights in modern democracies. It must make room for the principles of reintegration and,
above all, reject the permanent exclusion of convicts or criminals from society.
In short, what we need is rapid crime detection, fair punishment and adequate
information for the public. That is the best way of fighting crime. And it is also the best way
of ensuring that the victims of crime get justice too.
This brings me to my final point, the question of civil society. It must be said that this
is the area where the scope for action is greatest and also where the questions are biggest. To
get the public consciously involved and on our side, we shall have to make an enormous
educational effort. First of all, we need to get them involved in protecting order and liberty,
giving prosecutors and police the feeling that public opinion is solidly behind them - a feeling
they can have only if they know that they are acting in the name and in defence of human
rights.
Educating people to a sense of human rights and their importance is still one of the
major tasks which await us. Perhaps this is one of the major challenges of the end of the
twentieth century? To build this human rights culture, we must first convince people that
crime, organised or not, must be combated for the sake of human rights and then convince
them that human rights themselves must be respected in doing it. Of course, this means
training and educating police officers and prison warders in the principles of human rights.
But it also means a sustained and general effort to inculcate the principles of human rights and
respect for human rights, starting in schools and extending all the way to the media.

166
The problem of media freedom is one which could form the subject of a separate
seminar or indeed a whole series of seminars. It raises questions which we should not try to
answer too quickly. To say that journalists and the media should not have a legal framework,
that there should be no press law, might well be rash; and to say that the media should be
government instruments would be striking at the very foundations of democracy, since media
freedom means freedom of the private media. In eastern Europe, we know from experience
what the price of state ownership of the media is; we know that this is where the loss of civil
liberties begins. That is why guaranteeing media freedom is important - but it is also important
that journalists should not be placed in some sense above the law. They must also be subject to
the normal workings of society and the rules by which it lives.
One might think that the media should take on the job of educating people in the
values we have been talking about. They could avoid propagating dangerous stereotypes
relating to crime, and become a means of extending the human rights culture instead.
However, they can do this only if they are free and if they accept and respect Kant's moral
imperative.
The future of democratic society depends on respect for human rights. And human
rights should also be respected when crime is being punished. If I may step out of my role as
rapporteur general for a moment, I should like to give you an example from my own
experience. A historian and an academic, I now find myself in politics. I have the feeling that
the biggest challenge for political elites in the former communist countries is overcoming a
sense of insecurity. Insecurity is a huge danger in those countries. As a member of parliament,
I am working on laws to remove it. But life has also brought me one experience for which I
was totally unprepared. I never expected to find myself behind bars and in prison. Prison was
something I had read about in books, texts on the past and Foucault's remarkable description.
Yet one day I found myself in prison, with "ordinary" offenders - from petty thieves to major
criminals - because the communist countries did not recognise "political prisoners". With
those "ordinary" offenders, I had an experience which I still like to think about and which still
moves me when I do. After a hunger strike, in the middle of the night, one of them threw some
tinned meat and tea through the window into my cell. A few days later, we met briefly and he
told me why he had done it. "Prison's my home", he said, "it's where I live all the time - and
you can't imagine how much it's changed since Solidarity got going in 1980-1981". This is
something I have never forgotten. It reminds me, when I have to take decisions on the criminal
code, that I should be thinking of the people on the other side as well.
The Council of Europe is an organisation where all the three powers converge, and
civil society as well. This is a major advantage for an institution of this kind, an institution
which can look at the realities of crime and punishment in close and accurate detail, analyse
and comment on them, and also make changes in the way human rights are envisaged and
applied. No other institution can do this. It is now up to the Council to act on this seminar. We
have raised various questions. Those questions must not remain unanswered, in other words,
without a follow-up. And I hope you will not think that I am being merely rhetorical when I
say, in conclusion, that behind those human rights which we want to establish in modern
democracies, there must always be human beings - and concern for human beings.

167

Appendix : List of Participants

ETATS MEMBRES DU CONSEIL DE L'EUROPE
MEMBER STATES OF THE COUNCIL OF EUROPE
ALBANIA/ALBANIE
Mr Muhamet RRUMBULLAKU, Colonel, Director of the Criminal Police, Ministry of the
Interior, Skanderbeg 3, AL - TIRANA
Tel: (355.42) 64361
Fax: (355.42) 63607
M. Ylli KUMRIJA, Major, Chief of the Foreign Relations Department, Ministry of the
Interior, Skanderbeg 3, AL - TIRANA
Tel: (355.42) 64361
Fax: (355.42) 63607
BULGARIA/BULGARIE
Ms Ilina TANEVA, Head of Council of Europe Division, Human Rights and Humanitarian
and Social Affairs Directorate, Ministry for Foreign Affairs, 2 Alexandre Zhendov Str.,
SOFIA 1113
Tel: (359) 2 73 63 48
Fax: (359) 2 73 84 21
REPUBLIC OF CROATIA/REPUBLIQUE DE CROATIE
Ms Ivana IMAMOVI_, Senior Counsellor, Department for Human Rights, Ministry of Foreign
Affairs, Trg N. . Zrinskog 7-8, 10000 ZAGREB
Tel: (385.1) 4569 953
Fax: (385.1) 4569 936
CYPRUS/CHYPRE
Mr Petros CLERIDES, Senior Counsel of the Republic, Office of the Attorney-General, CY NICOSIA
Tel: (357.2) 30 22 42
Fax: (357.2) 44 50 80
CZECH REPUBLIC/REPUBLIQUE TCHEQUE
Mr Martin CEJP, Sociologist, Institute of Criminology and Social Prevention, nm. 14, _jna
12, PB. 87, 15000 PRAGUE 5
Tel: (42.2) 54 44 08
Fax: (42.2) 54 64 37
ESTONIA/ESTONIE
Mrs Triin PARTS, Second Secretary, Legal Department, Ministry of Foreign Affairs, Rvala
pst. 9, EE0100 TALLINN
Tel: (372) 6 31 7414
Fax: (372) 6 31 7099
FINLAND/FINLANDE

168

Mr Hari HANNULA, Counsellor of legislation, Ministry of Justice, P.O. Box 1, SF - 00131

HELSINKI
Fax: (358.0) 18 25 77 37
FRANCE
M. Bruno NEDELEC, Magistrat dtach la Sous-Direction des droits de l'homme, Direction
des affaires juridiques, Ministre des affaires trangres, 37 quai d'Orsay, F -75007 PARIS
Tl: (33.1) 43 17 53 17
Fax: (33.1) 43 17 43 59
GREECE/GRECE
M. Nicolas TSIGAS, Directeur Gnral de politique pnitentiaire, Ministre de la justice, 96
rue Messoghiou, GR - 11527 ATHENES
Tl: (30.1) 802 9975
Fax: (30.1) 771 7182
HUNGARY/HONGRIE
Mr kos KARA, Senior Desk Officer, Department of Criminal Codification, Ministry of
Justice, Szalay u. 16, H - 1055 BUDAPEST
Tel: (36.1) 311 96 48
Fax: (36.1) 311 78 52
ICELAND/ISLANDE
Mr Tryggvi THORHALLSSON, Legal Advisor, Ministry of Justice, Arnarhvoll, 150
REYKJAVIK
Tel: (354) 560 9010
Fax: (354) 552 7340
ITALY/ITALIE
Mme Cristina ANTONELLI, Conseillre, Service du contentieux diplomatique, Ministre des
affaires trangres, 1 Piazzale della Farnesina, I - 00196 ROME
Tl: (39.6) 323 60 37
Fax: (39.6) 323 60 02
REPUBLIC OF LATVIA/REPUBLIQUE DE LETTONIE
Ms Inese SVIKA, Senior Desk Officer, Department of Public Law, Ministry of Justice,
Brivibas Bulv. 36, LV -1536 RIGA
Tel: (371.7) 33 31 82
Fax: (371.7) 28 55 75
LITHUANIA/LITUANIE
Mr K_stutis VAGNERIS, Chief Prosecutor, Information and International Relations
Department, Smetonos Str. 4, 2709 VILNIUS
Tel: (370.2) 61 21 31
Fax: (370.2) 61 19 26
LUXEMBOURG

169
M. Carlo SCHOCKWEILER, Attach de Gouvernement 1er en rang au Ministre de la justice,
16 Boulevard Royal, L - 2934 LUXEMBOURG
Tl: (352) 478 4541
Fax: (352) 227 661
REPUBLIC OF MOLDOVA/REPUBLIQUE DE MOLDAVIE
M. Vitalie NAGACEVSCHI, Chef de la Division des relations internationales, Ministre de la
justice, 82 str. 31 August, Ministerul Justitie, MD 2012 CHISINAU
Tl: (373.2) 22 33 15
Fax: (373.2) 23 47 97
NORWAY/NORVEGE
Ms Hilde INDREBERG, Legal Adviser, Department of Legislation, Ministry of Justice, Box
8005 Dep. N - 0030 OSLO
Tel: (47) 22 24 53 85
Fax: (47) 22 24 27 25
POLAND/POLOGNE
Mr Andrzej KALI_SKI, Lawyer, Counsellor at the Ministry of Foreign Affairs, Al. J.ch
Szucha 23, PL - 00580 WARSAW
Tel: (48.22) 62 39 769
Fax: (48.22) 62 12 342
PORTUGAL
Ms Maria Candida DE ALMEIDA, Procureur Gnral Adjoint, Procuradoria Geral da
Repblica, Rua da Escola Politcnica 140, P - 1294 LISBONNE CEDEX
Tl: (351.1) 395 5296
ROMANIA/ROUMANIE
M. Mihai MAROZ, Colonel, Chef de la Police du dpartement de Ialomi_a, Ministre de
l'intrieur, R - BUCAREST
Tl: (40.1) 615 1108
Fax: (40.1) 311 3555
SLOVAK REPUBLIC/REPUBLIQUE SLOVAQUE
Mr Robert FICO, Ministry of Justice, _upn nm. 13, 813 11 BRATISLAVA
Tel: (42.7) 535 3179
Fax: (42.7) 531 2435
SLOVENIA/SLOVENIE
Mr Primoz TREBE_NIK, State Prosecutor, Ferrarska 9, 6600 KOPER
Tel: (386.66) 33 881
Fax: (386.66) 34 334
SWEDEN/SUEDE
Mr Lars SJSTRM, Deputy Assistant Under-Secretary, Ministry of Justice, S - 10333
STOCKHOLM
Tel: (46.8) 405 4682
Fax: (46.8) 405 4382

170
TURKEY/TURQUIE
Mr Turhan FIRAT, Director General, Council of Europe and Human Rights Department,
Ministry for Foreign Affairs, Bykeli - AKGM, Di_i_leri Bakanligi, BALGAT - ANKARA
Fax: (90.312) 287 1581
UKRAINE
Mr Vjacheslav YARENKO, Second Secretary, European Regional Co-operation Department,
Ministry of Foreign Affairs, 1 Mykhaylivska sq., 252018 KYIV
Tel: (7.044) 212 83 02
Fax: (7.044) 226 31 69
ETATS NON MEMBRES DU CONSEIL DE L'EUROPE
NON-MEMBER STATES OF THE COUNCIL OF EUROPE
REPUBLIC OF BELARUS/REPUBLIQUE DE BELARUS
Mr Uladzimir KRAMYANKA, Second Secretary, Department of Humanitarian Affairs and
Human Rights, Ministry of Foreign Affairs, 19 Lenin Street, MINSK 220030
Tel: (375.17) 227 48 34
Fax: (375.17) 227 45 21
OTHER PERSONALITIES / AUTRES PERSONALITES
M. George ANTONIU, Directeur Adjoint de l'Institut de recherches juridiques de l'Acadmie
roumaine, Rue 13 Septembrie, nr 13, RM - 76117 BUCAREST
Tl: (40.1) 410 4059
Fax: (40.1) 335 4496
M. Alessandro G. ATTANASIO, Avocat, Via Ramondetta 31, I - 95129 CATANIA (Italie)
Tl: (39.95) 38 64 71
Fax: (39.95) 38 64 71
M. Francesco BASILE, Conseiller, Intercenter, Via Ghibellina 59, I - 98100 MESSINA
(Italie)
Tl: (39.90) 71 05 54
Fax: (39.90) 71 92 63
M. Imre BKS, Professeur l'Universit de Budapest, Membre de la Commission
europenne des Droits de l'Homme, Czvi Kz 11/A, H - 1025 BUDAPEST
Tl: (36.1) 266 3313
Fax: (36.1) 266 3313
Mr Samson BELIAEV, Co-ordinator of the Organised Crime Study Center, Faculty of Law,
Moscow State University, B. Zhigulyenkova 6-6, 105118 MOSCOW
Tel: (7.095) 366 0023
Fax: (7.095) 939 2949
M. Carlo BELLITTO, Magistrat, Palazzo di Giustizia, I - MESSINA (Italie)
Tl: (39.90) 71 32 94
Mr Francesco BRUNO, Professor of Forensic Psychiatry, University of Rome La Sapienza,
Via Prati Fiscali 184, I - 00141 ROME
Tel: (39.6) 88 64 01 76
Fax: (39.6) 88 32 74 93

171

Mr Alexander CAPMARI, Inspector, Interpol of the Republic of Moldova, Bld Stefan cel
Mare 75, MD - 2012 CHISINAU
Tel: (373.2) 25 59 15
Fax: (373.2) 22 50 45
Mme Maria Luisa CESONI, Matre Assistant, Facult de droit (CETEL), Universit de
Gnve, Uni-Mail, CH -1211 GENEVE 4 (Suisse)
Tl: (41.22) 705 8607
Fax: (41.22) 705 8414
M. Mario CHIAVARIO, Rapporteur, Professeur de droit, Universit de Torino, Via
Giacosa 22, TORINO (Italie)
Tl: (39.11) 65 90 37
Fax: (39.11) 66 99 037
M. Gavril-Josif CHIUZBAIAN, Prsident de l'Union des juristes de Roumanie, Rdacteur en
chef de la Revue "Palais de Justice", 22 Bld. Magheru, Sector 1, RM - 70158 BUCAREST
Tl: (40.1) 659 6820
Fax: (40.1) 659 6820
Mr Andrew COYLE, Governer, HM Prison Brixton, P.O. Box 369, Jebb Avenue, LONDON
SW2 3XF
Tel: (44.181) 674 9811
Fax: (44.181) 678 0834
Mr Ralph CRAWSHAW, Human Rights Consultant, Fellow of the Human Rights Centre of
the University of Essex, former Senior Police Officer, South House, The Old Factory, Bells
Lane, Glemsford, SUDBURY, Suffolk, CO10 7QA (United Kingdom)
Tel: (44.1787) 281 732
M. Domenico CUCCHIARA, Prsident Adjoint honoraire de la Cour de Cassation, Via S.
Eustochia 14, I - 98100 MESSINA (Italie)
Tl: (39.90) 770 131
M. Rgis de GOUTTES, Prsident du Comit directeur pour les droits de l'homme du Conseil
de l'Europe, Avocat gnral prs la Cour de Cassation, 1 quai de l'Horloge, 75001 PARIS
Tl: (33.1) 44 32 74 77
Fax: (33.1) 44 32 77 10
Mme Marie-Pierre de LIEGE, Rapporteur, Magistrat, dtache l'Institut du monde arabe, 1
rue des Fosss St. Bernard, 75236 PARIS CEDEX 05
Tl: (33.1) 40 51 39 48
Fax: (33.1) 43 54 76 45
M. Michel de SALVIA, Secrtaire adjoint de la Commission europenne des Droits de
l'Homme, Conseil de l'Europe, F - 67075 STRASBOURG CEDEX
Tl: (33.3) 88 41 23 68
Fax: (33.3) 88 41 27 92
Mr Istok EGETER, Assistant Lecturer, University of St. Gallen, Tigerbergstr. 21, CH -9000
ST. GALLEN (Switzerland)
Tel: (41.71) 224 21 63
Fax: (41.71) 224 21 62
Mr Carl-Henrik EHRENKRONA, Member of the Bureau of the Council of Europe Steering
Committee for Human Rights, Assistant Under-Secretary, Ministry for Foreign Affairs, P.O.
Box 16121, S - 10323 STOCKHOLM
Tel: (46) 8 405 50 83
Fax: (46) 8 723 11 76

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M. Jean-Marc ELCHARDUS, Membre du Conseil scientifique criminologique, Professeur des

Universits, Mdecin des Hpitaux, Hpital Edouard Herriot, Place d'Arsonval, 69437 LYON
CEDEX 03 (France)
Tl: (33.4) 72 11 00 09
Fax: (33.4) 72 11 61 33
M. Vladimir EVINTOV, Director of the Ukrainian Center for Human Rights, 64
Chervonoarmiiska str., 252005 KYIV
Tl: (380.44) 227 2124
Fax: (380.44) 227 2398
Mr Isi FOIGHEL, Professor, Judge at the European Court of Human Rights, Nyhavn 35, DK 1051 COPENHAGEN K
Tel: (45) 33 91 22 01
Fax: (45) 33 91 38 01
M. Jean GAUTHIER, Professeur la Facult de droit de l'Universit de Lausanne, Boulevard
de Grancy 3, 1006 LAUSANNE (Suisse)
Tl: (41.21) 616 2005
Mr Bronislaw GEREMEK, General Rapporteur, Chairman of the Parliamentary
Commission on Foreign Affairs, c/o Sejm, Chancellory of the Diet, ul. Wiejska 4/6/8, 00902
WARSAW
Tel: (48.22) 694 1820
Fax: (48.22) 694 1900
M. Iskandar GHATTAS, Sous-Secrtaire du Ministre de la Justice, 28 rue Assiout, ET ELIOPOLIS-CAIRE (Egypte)
M. Mocu_a GHEORGHE, Procureur en chef-adjoint, Section du Parquet gnral prs la Cour
suprme de justice, Ministre public roumain, Unirii nu. 2-4, secteur 5, BUCAREST
Tl: (40.1) 410 5435
Fax: (40.1) 410 5435
M. Aldo GRASSI, Conseiller, Cour suprme de Cassation, Vice-Prsident d'Intercenter,
Vicolo Sforza Cesarini 55, I - 00186 ROME
Tl: (39.6) 687 3903
Ms Lynda HEIMS, PhD Candidate, Victoria University, Via della Madonna deil Monti 96, I 00184 ROME
Tel: (0338) 831 7172
Mr Owe HORNED, Chief Lawyer, Swedish Prison and Probation Administration, S - 60180
NORRKPING (Sweden)
Tel: (46.11) 19 30 00
Fax: (46.11) 19 38 02
Mr Hartmuth HORSTKOTTE, Judge at the Supreme Court, Oldenburgalle 58, 14052
BERLIN
Tel: (49.30) 320 9246
Fax: (49.30) 322 8164
Mr Jerzy JASKIERNIA, Member of the Committee on Legal Affairs and Human Rights of the
Council of Europe Parliamentary Assembly, Chancellory of the Sejm, ul. Wiejska 6, PL 00902 WARSAW
Tel: (48.22) 694 1591
Fax: (48.22) 621 2341

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M. Saulius KATUOKA, Professor of International Law, President of the Council of the

Lithuanian Centre for Human Rights, Gedimino 22, 2600 VILNIUS
Tl: (370.2) 62 88 58
Fax: (370.2) 62 89 60
Mr Juraj KOLESR, Rapporteur, Professor of Criminal Law, Vice-Dean, Faculty of Law,
Comenius University Law School, _afrikovo nm. 6, 81806 BRATISLAVA
Tel: (42.7) 32 42 00
Fax: (42.7) 36 61 26
Mr Nickolay KOLLEV-BOSSIA, Journalist, President of the Foundation "Consent", 134
Rakovski Str., BG - SOFIA
Tel: (359.2) 584 122
Mrs Ninel KUZNETSOVA, Head of the Criminal Law Department, Faculty of Law, Moscow
State University, ul. 26 Bakinskikh, Komissarov 10-1-37, 117526 MOSCOW
Tel: (7.095) 433 4360
Fax: (7.095) 939 2949
Mr Ahti LAITINEN, Associate Professor of Sociology of Law, Faculty of Law, University of
Turku, Calonia 342, SF - 20014 TURKU (Finland)
Tel: (358.2) 333 5512
Fax: (358.2) 333 6570
M. Mario LANA, Prsident, Union italienne des avocats pour les droits de l'homme, Via
Emilio De Cavalieri 11, I - 00198 ROME
Tl: (39.6) 84 12 940
Fax: (39.6) 85 30 08 01
Mr Leonard H. LEIGH, Professor of Criminal Law, London School of Economics, University
of London, Ground Floor Flat, 30 Eccles Road, GB - LONDON SW11 1LZ
Tel: (44.171) 955 7254
Fax: (44.171) 978 5529
Mr Kaspar LINKIS, Deputy Director of Public Prosecutions, Rigsadvokaturen, Christians
Brygge 28, DK - 1559 COPENHAGEN
Tel: (45) 33 12 72 00
Fax: (45) 33 14 70 08
Mr Uno L_HMUS, Judge at the European Court of Human Rights, Kalda Tee 44-6, EE 2400
TARTU (Estonia)
Tel: (372.7) 44 10 87
Fax: (372.7) 44 14 57
M. Giovanni LONGO, Prsident de Chambre, Cour de Cassation, 4 Via della Fontanella, I 00187 ROME
Tl: (39.6) 68 89 70 36
Fax: (39.6) 688 3420
Mr Loukis LOUCAIDES, Deputy Attorney-General of Cyprus, Member of the European
Commission of Human Rights, 7 Aranizou Street, CY - NICOSIA
Tel: (357.2) 30 2430
Fax: (357.2) 36 7498
Mr Nicholas McGEORGE, Criminological psychologist, Quaker Council for European
Affairs, Pendle Bank, Sway Road, Hampshire, GB - LYMINGTON SO41 8LR (United
Kingdom)
Tel: (44.1590) 67 66 37
Fax: (44.1590) 67 66 37

174
Mrs Kathleen MAHONEY, Professor, Faculty of Law, University of Calgary, CDN CALGARY, Alberta (Canada)
Tel: (1.403) 220 7254
Fax: (1.403) 282 8325
M. Emil MARINACHE, Directeur adjoint, Institut roumain pour les droits de l'homme, Piata
Aviatorilor no. 3, RM - 71260 BUCAREST
Tl: (40.1) 222 57 24
Fax: (40.1) 222 42 87
Mr Carmelo MARINO, Judge, Via XXVII Luglio 61, I - MESSINA (Italy)
Tel: (39.90) 67 50 06
M. Vito MAZZARELLI, Avocat, Segretario consulta giustizia europea diritti delli uomo, Via
Barberini 3, I - 00187 ROME
Tl: (39.6) 474 36 90
Fax: (39.6) 48 37 15
Mr Jens MEYER-LADEWIG, Vice-Chairman of the Council of Europe Steering Committee
for Human Rights, Ministerialdirigent, Federal Ministry of Justice, Heinemannstr. 6, Postfach
20 03 65, D - 53170 BONN
Tel: (49) 228 58 44 40
Fax: (49) 228 58 45 25
Mr Arne OUGAARD, Deputy Director-General, Department of Prisons and Probation,
Klareboderne 1, DK - 1115 COPENHAGEN K
Tel: (45) 33 11 55 00
Fax: (45) 33 32 24 94
Mr Bertel STERDAHL, Director-General, Swedish Prison and Probation Administration, S 60180 NORRKPING (Sweden)
Tel: (46.11) 19 30 00
Fax: (46.11) 19 38 02
Mr Ion POTLOG, Commissioner of Police, Police Colonel, George Enesau Str. 19, MD 2012 DROCHIA (Republic of Moldova)
Tel: (373.2) 52 25 000
Fax: (373.2) 52 22 880
Mr Eric PROKOSCH, Theme Research Coordinator, Amnesty International, 1 Easton Street,
GB - LONDON WC1X 8DJ
Tel: (44.171) 413 5500
Fax: (44.171) 956 1157
M. Paolo PUCCI DI BENISICHI, Ambassadeur, Reprsentant permanent de l'Italie auprs du
Conseil de l'Europe, 3 rue Schubert, 67000 STRASBOURG
Tl: (33.3) 88 60 20 88
Fax: (33.3) 88 60 65 64
M. Guido RAIMONDI, Membre du Bureau du Comit directeur pour les droits de l'homme du
Conseil de l'Europe, Magistrat, Co-agent auprs de la Commission et de la Cour europennes
des Droits de l'Homme, 3 rue Schubert, F - 67000 STRASBOURG
Tl: (33.3) 88 60 20 88
Fax: (33.3) 88 60 65 64
Mr Monty RAPHAEL, Chairman of the Business Crime Committee of the International Bar
Association, Senior Partner, Peters & Peters, 2 Harewood Place, Hanover Square, LONDON
W1R 9HB
Tel: (44.171) 629 7991
Fax: (44.171) 499 6792

175
Mr Nigel RODLEY, Professor of Law, University of Essex, Department of Law, Wivenhoe
Park, GB - COLCHESTER CO4 3SQ (United Kingdom)
Tel: (44.1206) 872 562
Fax: (44.1206) 87 34 28
M. Carlo RUSSO, Juge la Cour europenne des Droits de l'Homme, Via Paleocapa 3, I 17100 SAVONA, (Italie)
Tl: (39) 82 97 84
Mr Andrew RUTHERFORD, Professor of Law, Faculty of Law, University of Southampton,
GB - SOUTHAMPTON SO17 1BJ (United Kingdom)
Tel: (44.1703) 59 36 34
Fax: (44.1703) 59 30 24
Mme Thaima SAMMAN, Avocat, 12 rue Degas, F - 95120 ERMONT (France)
Tl: (33.1) 30 72 54 62
Mr Sergei SIROTKIN, Director, Moscow Legal Resource Centre, Pr. Mira 36,
129010 MOSCOW
Tel: (7.095) 280 4511
Fax: (7.095) 280 7016
Mr Max L. SNIJDERS, Rapporteur, Professor at the University of Groningen, Specialist in
the ethics of communication, Royestein House, Oudegracht 175, 3511 NE UTRECHT
(Netherlands)
Tel: (31.30) 2 318 753
Fax: (31.30) 2 304 092
M. Alphonse SPIELMANN, Ancien Procureur Gnral d'Etat, Juge la Cour europenne des
Droits de l'Homme, 108 rue des Muguets, 2167 LUXEMBOURG
Tl: (352) 43 51 34
Mrs Christina STEEN SUNDBERG, Chief Prosecutor (retired), Uggleviksgatan 9, S - 11427
STOCKHOLM
Tel: (46.8) 411 4989
Fax: (46.8) 21 38 74
Mrs Vivien STERN, Rapporteur, Secretary General, Penal Reform International, 169
Clapham Road, LONDON SW9 0PU
Tel: (44.171) 582 6500
Fax: (44.171) 735 4666
Mr Jacob W F SUNDBERG, Professor, Director of Studies, Institutet fr Offentlig och
Internationell Rtt, Uggleviksgatan 9, S - 114 27 STOCKHOLM
Tel: (46) 8 21 62 44
Fax: (46) 8 21 38 74
Mr Knut SVERI, Professor emeritus, Trdgrdsv. 3B, S - 18246 ENEBYBERG (Sweden)
Tel: (46.8) 758 5971
Mr Gyz SZAB, Vice-President of the Supreme Court of the Republic of Hungary, Mark
u. 16, H - 1055 BUDAPEST
Tel: (36.1) 269 2643
Fax: (36.1) 269 2880
Mme Maria TERRACINA, Via S. Licandro Alto "Il Refugio", I - 98168 MESSINA (Italie)
Tl: (39.90) 36 23 22

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Mr Nick TILLEY, Rapporteur, Professor, Department of Social Sciences, Faculty of
Economics and Social Sciences, Nottingham Trent University, Burton Street, GB NOTTINGHAM NG1 4BU
Tel: (44.115) 948 6812
Fax: (44.115) 948 6813
Mr Christian TRNNING, Director General, Department of Prisons and Probation,
Klareboderne 1, 1115 COPENHAGEN K
Tel: (45) 33 11 55 00
Fax: (45) 33 32 24 94
Mr Antonie C. VAN DER SCHANS, Advocate-General, Court of Appeal, the Hague, Willem
III laan 12, NL -4835 LB BREDA (Netherlands)
Tel: (31.76) 561 44 08
M. Piero Luigi VIGNA, Magistrat, Procureur de la Rpublique, via Strozzi 1, I - FLORENCE
(Italie)
Tl: (39) 55 21 17 12
Fax: (39) 55 21 23 88
M. Claudio ZANGHI, Prsident d'Intercenter, Professeur de droit l'Universit de Rome La
Sapienza, Via Ghibellina 59, I - 98100 MESSINA (Italie)
Tl: (39) 90 71 05 54
Fax: (39) 90 71 92 63
M. Salvatore ZAPPAL, Assistant juridique au Tribunal pnal international pour l'exYougoslavie, Viale Tirreno 31, I - 95123 CATANIA (Italie)
Tl: (39) 95 51 60 65
Fax: (39) 95 51 60 65
* * *
SECRETARIAT DU CONSEIL DE L'EUROPE
COUNCIL OF EUROPE SECRETARIAT

Fax: (33.3) 88 41 27 93

M. Pierre-Henri IMBERT, Directeur des Droits de l'Homme

Tl: (33.3) 88 41 23 20
M. Giuseppe GUARNERI, Secrtaire du Sminaire, Chef de la Section des Droits de
l'Homme, Direction des droits de l'homme
Tl: (33.3) 88 41 23 24
Mme Franoise MANTION, Assistante administrative principale, Direction des droits de
l'homme
Tl: (33.3) 88 41 23 33
Ms Heather STEWART, Administrative Assistant, Directorate of Human Rights
Tel: (33.3) 88 41 35 63