Penal Character Research Articles

The Right to a Court in Cases of Administrative Liability of a Penal Character in the Field of the Protection of Financial Markets and Competition in German, French and English Law

Abstract The right to a court (right to a fair trial) is regarded as a foundation of the rule of law. With regard to liability for offenses which do not belong to the so-called core of criminal law, the European Court of Human Rights has accepted the adjudication on this liability by an administrative authority. However, the requirement of compliance with Article 6 (1) of the European Convention on Human Rights is designed to ensure full judicial review of the administrative authority’s decision(s). The aim of the article is to examine whether and how the solutions adopted in German, French and English law meet the standards in relation to administrative liability of a penal character. This study will concentrate on the character of the administrative authorities’ decisions regarding such liability and the scope of judicial review of such administrative decisions in the field of the protection of financial markets and competition.

Alternative (To) Punishment: Assessing Punishment Experiences in Youth Diversion Programmes

AbstractThis study explores the penal character of diversion programmes through the subjective experiences of young drug-law offenders. Specifically, punishment experiences are investigated through qualitative interviews with 24 offenders who were arrested between the ages of 15 and 17. The diverted adolescents described four experiences of punishment attending the programmes: (1) deprivation of time; (2) deprivation of social bonds; (3) deprivation of dignity and (4) deprivation of self. These subjective experiences of punishment, which all reflect the supervisory character of alternative penal sanctioning, differed in severity across programmes, individuals and abstraction levels. Punishment is largely an unspoken aspect of diversionary practices, emphasizing the importance of a subjectivist approach to assessments of penal character.

Research of Criminal Punishment in Russian Dissertation Theses: Key Trends in 2010-2019

The article aims to reveal key trends in the studies of the problems of criminal punishment based on the analysis of Russian dissertation theses in the past decade (2010–2019). The authors stress that the problems of punishment are «eternal» for Russian and Western doctrines of criminal law, although there is some difference in their research trends. The authors conclude that Russian doctrine preserves continuity in its definition of punishment as a major category of criminal law, as well as of its attributes and goals. In 1990–2000s there were some attempts to renounce the penal nature of punishment. In the past decades this «bias» has been overcome and practically all authors recognize the priority of the penal character (content) of criminal punishment. At the same time, the doctrine incorporated new ideas regarding the understanding of the goals of punishment, their hierarchy and the actual possibilities of achieving them. The authors note that the positive feature of the Russian doctrine is the substantiation of the «functional» theory of building a system of punishments in criminal legislation. On the other hand, researchers have come to a disappointing conclusion regarding the breach in the orderly structure of the system of punishments. The analysis of Russian dissertation theses has shown that in 2010–2019 most attention was focused on «final» punishments (capital punishment and life imprisonment), imprisonment for a certain period of time, some punishments not connected with the deprivation of liberty (limitation of liberty, obligatory work). The authors point out that there remains a discrepancy in the understanding of the legal nature, purpose and effectiveness of these types of punishment (primarily, capital punishment, which is preserved in criminal legislation).

Mass supervision, misrecognition and the ‘Malopticon’

This paper aims to contribute to debates about ‘mass supervision’ by exploring its penal character as a lived experience. It begins with a review of recent studies that have used ethnographic methods to explore how supervision is experienced before describing the two projects (‘Supervisible’ and ‘Mass Supervision: Seen and Heard’) on which the paper draws, explaining these as an attempt to generate a ‘counter-visual criminology’ of mass supervision. I then describe two encounters with ‘Teejay’; encounters in which we explored his experiences of supervision firstly through photography and then through song-writing. Both media are presented alongside Teejay’s commentary on what he sought to convey, inviting the reader to engage with and interpret the pictures and song. In the concluding discussion, I offer my own analysis, arguing that Teejay’s representations suggest a need to recognize mass supervision as ‘Maloptical’ as much as ‘Panoptical’. Through the ‘Malopticon’, the penal subject is seen badly, is seen as bad and is projected and represented as bad. Experiences of misrecognition and misrepresentation constitute significant yet poorly understood pains of supervisory punishment. The paper concludes by suggesting several ways in which a counter-visual criminology might follow Teejay’s lead in exposing and challenging of mass supervision.

‘LEX CALPURNIA DE PECUNIIS REPETUNDIS’ I JEJ ZNACZENIE DLA EWOLUCJI RZYMSKIEGO PRAWA KARNEGO

THE LEX CALPURNIA DE PECUNIIS REPTETUNDIS AND ITS INFLUENCE ON THE EVOLUTION OF ROMAN CRIMINAL LAW Summary This paper concerns the contribution to Roman Criminal Law which has been undoubtedly done by lex Calpurnia de pecuniis repetundis. There is a possibility of presenting three aspects of the influence. The establishment of a first standing court (quaestio perpetua) should be perceived as a most outstanding achievement of the lex Calpurnia de pecuniis repetundis. In the later period (until Sulla dictatorship) quaestio perpetua de repetundis was treated as an example for the other standing courts and each of them were established by lex (or plebiscitum) to deal with one crime (or group of crimes). This solution has enabled a creation of a few standing courts which gradually deprived the Assemblies of the People (also concilia plebis) of competence concerning to penal practice. The other aspect of the influence concentrates on procedure that has been used during the trials in quaestio perpetua. It can be observed that the private law (ius civile) put emphasis on the character of the standing court established by lex Calpurnia. Quaestio perpetua did not have all features of criminal court (procedure legis actio sacramento in personam). On one hand it seems quite natural to take advantage of private law. There has not been any penal procedure that could have been adopted to the quaestio perpetua. Perhaps the civil procedure (legis actio sacramrnto in personam) was merely reasonable one for application in the standing court. On the other hand it cannot be rejected that the choice of legis actio sacramento in personam had to disable everyone without Roman citizenship to act as a plaintiff. It is worth remembering that the other standing courts had also something in common with private law (e.g. litis aestimantio mentioned in the lex Acilia repetundarum). The third possible influence on Roman criminal law can be seen in the character of provision of lex Calpurnia. It is beyond any doubts that the lex had provisions referring to procedure (above mentioned legis actio sacramento in personam), but it is not certain that there were a sanction (sanctio) which had a typical of penal character. The rogator established a sanctio as in simplum which proves that kind of sanction had not been commonly used in the Roman criminal law. It is very difficult to explain why such a santio had been put to the lex Calpurnia. One of the possibilities of solving this mystery regards the rogator as a weak person who was not able to enforce harsher penalty. It should be also taken into account that some objections may raise during the process of passing a law. The upper class of populus Romanus were not interested in establishing a harsher sanction. Having considered the overall arguments the lex Calpurnia de pecuniis repetundis had a great influence on the Roman criminal law. The first standing court (quaestio perpetua de repetundis) became an example for the other established later. The legal acts subsequent to lex Calpurnia had totally changed the Roman criminal policy where the preponderance of courts were the quaestiones perpeta

The Cinderella complex: Punishment, society and community sanctions

This article explores the neglect of community sanctions (probation, parole etc.) in contemporary punishment and society scholarship, and seeks to understand why this part of the penal field has not attracted significant attention from researchers, despite expansion and diversification in a variety of jurisdictions. Following a review of punishment and society scholarship, which confirms the ‘Cinderella’ status of community sanctions, three arguments are proposed to help make sense of this finding. These concern the problems of language and labelling, the (in)visibility of the field and the debateable penal character of community sanctions. The article concludes with a ‘call to arms’ for punishment and society scholars, which entails recognising Cinderella as a key actor in the stories we tell about penal change, and pushing her out of the shadows of punishment and society scholarship.

Penal Excess and Surplus Meaning: Public Torture Lynchings in Twentieth-Century America

The most notorious lynchings that occurred in the United States between 1890 and 1940 involved publicity, crowds, ritual, and abnormal cruelty. Several hundred of these “public torture lynchings” took place, most of them in the Deep South. The author develops an interpretation that takes seriously the specific forms and discourses that lynchers and their supporters used to describe and justify these events—characterizing them as criminal punishments, albeit summary, informal ones that were shaped by a white supremacist culture and a politics of racial domination. An interpretation of the penal context and meanings of these public torture lynchings helps us understand their specific forms and their claims to legitimacy. The penal character of these lynchings increased the probability that they would be tolerated by local (and even national) audiences and thus made them a strategic form of violence in struggles to maintain racial supremacy. The author argues that a consideration of these events should lead us to revise our standard narratives about the evolution of modern punishments.

The Australasian League, 1851-1854

THE FIRST WHITE SETTLEMENT in Australia was a British penal colony founded in 1788. From this date and for eighty subsequent years the British government transported felons to Australia. British convicts, in fact, preceded the free colonists and for three decades outnumbered them. In consequence of this penal character, the Australian colonies were ruled despotically until after 1820o. At that time, there began a chain of events which made possible the development of a self-respecting citizenry, able to demand and obtain the cessation of transportation to its shores. The years 1824 and 1825 brought the first significant changes. New South Wales and Van Diemen's Land were granted legislative councils. A new nonconvict colony was planted in the far west. Still, the transportation system remained a fundamental part of Australian life. The regular use of convict laborers by the free settlers had established a variety of slave economy. While this system provided cheap labor and saved the government the support of assigned prisoners, its practical value diminished as the free population grew. Since the Australian colonies were in part penal establishments, the British government felt justified in withholding from them most of the privileges of self-government. The penal system itself, furthermore, involved methods which debased the innocent and further corrupted the guilty.' Despite the number of convicts who might in modern times be judged guiltless, many of them were dangerous, violent men. As servants, these convicts often exerted