Criminal Penalties and Security Measures in the Spanish Legal System
Criminal Penalties
The Penalty: A restriction of rights applied to a convicted individual based on the crime committed. It is considered an evil added to another evil, aiming for a positive outcome.
Theories on Penalty Justification
Retribution Theories
Exponents like Kant, Hegel, and Binding argue that punishment is justified in itself, seeking the realization of justice.
Critique: Focusing on culpability gives a false impression of the offender as inherently evil, with punishment as the sole means of retribution. This risks abuse in sentencing.
Prevention Theories
- General Deterrence: Aims to deter potential offenders.
- Positive: Promotes social cohesion through criminal law.
- Negative: Uses intimidating penalties to prevent crime.
- Special Prevention: Targets individuals who have already committed crimes.
- Positive: Focuses on rehabilitation.
- Negative: Aims at temporary incapacitation.
Critique: Negative general prevention is criticized for its ineffectiveness, as crimes persist despite penalties. Positive general prevention is criticized for prioritizing social cohesion over protecting legal rights. Positive special prevention is criticized for neglecting recidivism. Negative special prevention faces criticism due to the prohibition of inhuman or degrading treatment.
Combination or Union Theories
These theories blend prevention and retribution, advocating for penalties proportionate to the crime and aiming to prevent future crimes and rehabilitate the offender.
- Conservative: Prioritizes retribution and argues for a preventive purpose. Sees penalties as intimidating.
- Progressive: Focuses on rehabilitation and a humanitarian approach.
Critique: Neglects the multifaceted nature of punishment, which extends beyond retribution and prevention.
Current Theories
Schmidhauser’s Differential Theory
Based on the principle of guilt, this theory posits that punishment’s purpose is to combat crime through general prevention. The meaning of the sentence varies depending on the individual involved (legislator, judge, etc.). Schmidhauser distinguishes between general deterrence (abstract sense) and special prevention (judicial and enforcement).
Roxin’s Dialectical Theory
Similar to Schmidhauser’s theory, Roxin’s theory links the purpose of punishment to the stage of the process. General prevention governs the injunction, while special prevention prevails during measurement and implementation.
Critique (of both theories): Criticized for relying on the principle of guilt, which is considered unscientific and immeasurable.
The Role of Punishment in the Spanish Legal System
The Spanish system applies general and special prevention approaches, reflecting Roxin’s theory. General prevention applies during injunction, while special prevention prevails during measurement and implementation.
Security Measures
Security measures are a second mechanism for addressing crime, distinct from penalties.
Key Differences Between Penalties and Security Measures
- Penalties are based on guilt, while security measures are based on risk.
- Penalties have a retributive purpose, while security measures have a preventive purpose.
- Penalties are pre-tort, while security measures are post-delictual.
- Penalties involve legal deprivation of property, while security measures involve mandatory treatment.
- Security measures can be modified, while penalties cannot.
Justification of Security Measures
- Welzel’s Ethical and Social Basis: Argues for a social and ethical foundation based on social defense.
- Schmidhauser’s Utilitarian Theory: Advocates for both punishment and security measures to control danger, regulated by the principle of proportionality.
Security Systems
Tier System
- One-Tier System (Absorption of Penalty): Proposes replacing penalties with security measures.
- One-Tier System (Absorption of Security Measure): Prioritizes penalties but allows for security measures in certain cases.
Dualistic System
- Binary System: Prioritizes penalties over security measures when both are applicable.
- Vicariate System: Prioritizes security measures over penalties.
The Spanish System
Since 1995, the Spanish Criminal Code has undergone reforms regarding security measures. Pre-delictual security measures have been eliminated, and they are now applied only to criminally responsible and semi-imputable individuals. The foundation of security measures is the danger posed by the subject, with the degree of dangerousness determining the severity of the measure. The security measure cannot be worse than the penalty and cannot exceed the penalty’s duration. Judges can modify or terminate security measures through a specific procedure involving the Supervisory Judge.