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Dear
President Madam Rozès, dear colleagues, dear friends: To be a candidate presiding
over a scientific society such as the SIDS is a personal impertinence
that has no other justification than that those who direct the
association have more faith in the candidate than the candidate himself.
Intending to be the successor
to personalities of such human and scientific calibre as Gramatica,
as Marc Ancel, as Madame Simone Rozès, intending to preside over
colleagues that I consider my teachers such as Hans Heinrich Jeschec,
Klaus Tiedemann, Giuliano Vassalli, and Mario Pisani, and over such
illustrious colleagues as those who accompany us in the life of the Société,
has no justification, it may only lessen the guilt and, therefore, I
hope, the penalty. In spite of the above, I would
like to correspond to those who have put their faith in me, and I will
do so by stating my concept of the Société,
within the context of the history of criminal science and its
organizations. I will express the idea I hold on the role that the Société
could play in the future and, to conclude, I will discuss some ideas on
the organization needed to carry out our new tasks. 1.
THE CULTURAL ESSENCE OF THE SOCIÉTÉ
If I had to choose a single
word with which to describe the contribution that our Society for Social
Defence makes to the modern
evolution of Law and Criminal Science, I believe that I may affirm that
the Société
has been the Société of re-socialization. The idea of re-socialization,
following the conceptual elaboration through positivism, represented
above all by Gramatica in the initial
phases, was placed between Criminology and Positive Law by Marc Ancel in
the 60s with the help and company of the singular Petro Nuvolone, firmly
consolidated within the framework of the guarantees of the State of Law.
It is the personal endeavour of a handful of penalists
concentrated in France and Italy after the Second World War, who were
soon easily joined by their German colleagues, since the work of
Gramatica, Marc Ancel, and Nuvolone reached, although based on different
epistemological backgrounds, similar postulates to those stated by who
is for me the greatest penalist in European history: Franz Vonz Liszt. I
believe that Social Defence is really a historical and unique
manifestation of the movement initiated at the end of the 19th century
by Prins, Van Hammel and V. Lizst. I believe that the four main
associations stem from this same impulse, which would explain so many
personalities coinciding in more than one of these organizations and the
coordination of work among them. It can be said that the Penal and
Penitentiary Foundation and the International
Society of Criminology are organizations characterized by specific
purposes namely the object of punishment and the sociology and
psychology of crime. The AIDP and the Society for Social Defence are
general Penal organizations, but the AIDP limits its work to the
juridical-penal aspect, and the Society for Social Defence is the
scientific society that integrates methods and purposes, particularly
following the addenda to the
Minimum Programme carried out in 1984. If you will allow me to resort to
categories from Political and Constitutional Law, the SIDS would be the
organization that best expresses Criminal Law in the Democratic and
Social State of Law. This concept of the State of Law has long been in
the making in Europe, and was matured by the time the Spaniards, along
with the Portuguese, finally received it when we reached Democracy and
endowed ourselves with our
constitutions. At the same time, and as Marc
Ancel always insisted, as the Societé
has not been nor wished to be a closed ideological programme yet
the minimum programme
of a movement, the Societé
has been capable of developing across the world and with all of the
penalists who are pertinent or interested in our cultural traditions,
regardless of what continent or continental space they are on. The
Society for Social Defence is the organization of juridical forms and of
the contents of criminal behaviour and the appropriate penal reaction of
Social and Democratic States of Law. We are the movement of the criminal
policy of this standard of social and political organization. 2.
THE NEW SOCIAL AND POLITICAL PHENOMENA OF CRIMINAL RELEVANCE.
The postulates of our movement are today common patrimony for the
positive criminal law of many countries, and in any case, they are the
common programmatic asset of contemporary penalists around the world.
Therefore, I believe that there is room for optimism and that we should
be thankful for the good job our predecessors have done. However,
criminal law has not reached its historical end.
It is true that overcoming the politics of blocks has opened,
especially in Eastern European countries- from Warsaw to Vladivostok-
possibilities and paths that were unthinkable for humanistic and
democratic criminal policy only a short time ago.
It
is also true that, for the first time in modern history, all of Latin
America is living in freedom and in a democracy, although a significant
sector of the population is still living in conditions of poverty. It is
also true that the giant China is beginning to awake. Actually there is
every indication that it is worth being optimistic The creation of the
ICC (International Criminal Court) -with all of its limitations- was the
most important political-juridical achievement since the Declaration of
Human Rights of 1945, making it another motive for optimism.
Yet is also true that a great historical problem subsists- a good
part of the world population lives in poverty and economic
underdevelopment. Moreover, I would like to mention, not necessarily in
hierarchic order, some of the new problems that have arisen.
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The
Arab Muslim world that was slowly moving from tradition to modernization
was surprised along the way, especially as a consequence of
underdevelopment and poverty, by an imposing interruption we call,
oversimplifying, Islamic Fundamentalism, with all of its implications
for retrogression or stoppage in both general and criminal policy.
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At
the same time, the events of September 11th have given way to renewed
conservative tendencies in criminal policy in the most powerful country
on the planet, the United States. The fact that the United States
strongly opposed the creation of the ICC
makes it clear that this tendency dates back further than September
11th. Following this day, the United States’ shifting criminal policy
has firmly swung towards “law and order” and this time with
international repercussions. Its
expression is (oversimplifying again) Guantánamo, the militarization of
criminal justice, the threat of continuing with this criminal policy
“in other ways”, in Clausewitz’s sense, i.e.
through war, even through preventive war. The
third phenomenon is a product of economic globalisation, i.e.,
the great mobility not only of capital that flows freely, but also of
human beings through great migratory movements. This phenomenon has its
historical tradition, but it is acquiring new forms and characteristics
under the present-day globalisation, causing two main problems. The
first, as a consequence of the restrictions put on free movement towards
developed countries, raises the problem of trafficking with human beings,
and of “modern” forms of slavery for work, sex and exploitation and
fraud in these migratory moves. Moreover, the countries receiving high
numbers of persons from very different cultures are faced with a problem
of multiculturalism, joined by two criminal problems: first, the
obligation to be tolerant and to fight against cultural, racial and
religious discrimination and against xenophobia, and second, at the same
time the problem of the penal limitations on tolerance to cultural
diversity. Oversimplifying once again, should female genital mutilation
be tolerated from a penal point of view in Berlin or in Barcelona?
Should we seek to eliminate this type of conduct beyond Barcelona
or Berlin? Can we be tolerant when facing the death by stoning of a
Nigerian adulteress. For
that matter, can we be tolerant of abuse against women within our own
Western culture? Is the macho culture that still remains in Europe and
within the traditional European culture “socially acceptable”? Is
the response to this intra-European phenomenon only a repressive
reaction or should we seek preventive actions within substantive
and procedural criminal law to fight against this phenomenon that
has been hidden in the shady areas of criminal statistics until recently.
What would the preventive, repressive and indemnifying criminal policy
against these hidden forms of crime be?
Three
new phenomenon that stem from globalisation and its positive dimension
for Human Rights are worth mention: - The creation of the
International Criminal Court to guarantee that the most serious crimes
are prosecuted while generalizing and unifying the ad
hoc tribunals from the past few years. - The regionalisation of
criminal justice in the present-day European Union and the union
following the 2004 and 2006 growth plans, especially after the
significant thrust of the Decision frame on June 13th, 2002 on the
European order of halting and delivery between the State members. - The enlargement of the
Council of Europe from Reykjavik to Vladivostok and, therefore, the
incorporation of all of the member countries into the juridical human
rights value system of the Strasbourg Tribunal, with both its criminal
procedure and substantive dimensions.
Considering the
new social and juridical-penal phenomenon that I have incompletely
summarized above, most of which were not a factor -or at least not in
their present dimension- when we revised our Minimum Programme in 1984,
we can extract a list of new tasks to be undertaken in the Social
Defence movement to continue to lend an impulse to our humanist criminal
policy. The list could be stated like this:
3.
PROPOSALS OF NEW TASKS FOR THE SOCIÉTÉ: 3.1.Within
the European Union, neither our organization nor any other historic
organization has been proposed as an advising or consulting organization.
This was not even necessary until the famous sentence of the Greek corn
case in 1989. However, faced by the events related to the protection of
Union financial interests, and above all, following the Convention on
judicial assistance on criminal matters in the year 2000 and the
Decision frame on the Euro-order in 2002, as well as after the Decisions frame
that same year on organised crime and trafficking with humans, and the
creation of Eurojust, the
International Society for Social Defence has the chance to offer itself
to cooperate with the EU. Apart from the relations between the Ministry
of Justice and the Home Office, there is no larger network of penalists
than ours. We should be capable of embedding this activity in some of
the European programmes that support research on criminal matters. 3.2. The take effect of the convention that created
the International Criminal Court has already produced a revolution in
the dedication of jurists around the world.
It is enough to just see the number and dimension of scientific
meetings, doctoral thesis and
monographs on the subject. In
our role as a consulting institution to the United Nations we should
make ourselves available and, in any case, we should define our part in
the development of the scientific construction of the rules for
responsibility and for imputation, at risk of being developed by
juridical cultures that do not have the experience and wisdom that ours
has. 3.3.
The process by which new countries are admitted to the juridical value
system of the Council of Europe also deserves attention, as well as the
follow up of problems, deficits, training needs, etc.
3.4.Regionalization
processes of human rights, with juridical-criminal consequences, also
need attention. For example, the democratisation process of the Latin
American countries gives new force to the Costa Rican Court. Its
sentences oblige in democratic times, as we Spaniards have experienced
following our subordination, first, to the jurisdiction of the
Strasbourg European Tribunal, and later, to the Luxembourg Tribunal.
3.5.
At the same time faced with the criminal policy impulses following
September 11th, it is our obligation to respect our Minimum Programme by
being permanent observers of the criminal policy that watches over
reactions that are undesirable and incompatible with our ideology. This
must be done while at the same time contributing to the knowledge of new
forms of terrorism and the necessarily new ways of fighting against them.
3.6.
The problems linked to the relationship between criminality and
immigration have become vital problems in electoral political debate on
the European continent, most commonly, in the worst possible way:
manipulating the scarce criminological data and tending towards
xenophobic reactions. We should seek to carry out a permanent analysis
of surveys and logically ordered data to reach the truth and to propose
rational intervention and prevention alternatives, which would
constitute a very adequate multidisciplinary matter for our association.
3.7.
The matter of trafficking with humans, in itself and associated to work
and sexual exploitation, also requires the attention of an association
like ours, in the same way in that we have concerned ourselves with the
trafficking of drugs or arms in the past. The dimension of our adjective
“social” is very appropriate for focusing on the social phenomenon
that gives way to migratory phenomena and gives opportunity to organized
crime. 3.8.
The
matter of multiculturalism, within the societies of a metropolis or in
areas of concentration of cultures, as well as between the societies and
states in their orderly international co-existence, also deserves our
attention. The importance of the Muslim world and, moreover, the way in
which it is presented, especially when public opinion by sheer force
takes the shape of the minority and extreme, requires work on our
part to support mutual understanding among penalists, and to support
penalists from the Muslim world who are integrated or willing to
integrate into the programme of a humanistic criminal policy. We have
suffered a setback in this scope of scientific relations that we must
overcome. Through dialogue we can achieve, on one hand, to overcome
Western self-satisfaction,
and on the other hand, to justly define what we believe to be able to
identify as indispensable for human dignity. 4.
ONE WAY TO ORGANIZE OURSELVES TO UNDERTAKE THE NEW TASKS. Only those who have no history
lack the impulse to re-organise themselves for the future, and I am sure
that this is what Mme. Rozés wanted to call our attention to when she
put her position at the disposal of the general assembly. We and our way
of working come from a time characterized by difficult and limited
movement and by a communication system limited to ordinary mail. In fact,
many of us formed our concept of the world before the era of television.
Electronic mail, the Internet and video conferences were not even
science fiction at the time of the foundation of our Société. Moreover, although we have sought to be a world
organization in our acts, our daily territory has been overly European.
I wish to propose two new or
renovated modes of organization. First of all, we should break
up our tasks both by region and by subject matter. In relation to the first point,
we should try to provide ourselves with a structure that is appropriate
for the needs of the European Union, as well as the Council of Europe
from Reykjavik to Vladivostok. It is also feasible to give impulse to
the regionalization of Latin America if we reinforce the incorporation
of new members. Other objectives of this type could be proposed in the
future.
Second, we cannot think that we
can develop our commitment only by
holding general conferences every five years. The world will not
wait for us. On the contrary, the meeting every five years should be the
chance to revise our actions over the five years period. In order to act
permanently, we should organize committees by subject area that at least
cover the areas that I have highlighted as modern issues. If this is
deemed to be acceptable, we should adopt a plan of action in the next
meeting of the Executive Committee.
Third,
it is not possible to act permanently without resorting to new
technology. Of course, e-mail is a must, but the following above all:
construct, over the place that the “Cahiers” should continue to hold,
a digital information and communication structure, a Web site that
includes and puts at the disposal of the world the entire collection of
the “Cahiers”, the thematic channels, the papers published, etc. It
appears to be complicated but, in fact, it is very easy.
Finally, our predecessors have gone far and with exemplary
intelligence in coordination with the other three associations. In this
new stage we should increase that cooperation. |
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