Dualistic Security Systems in Spain: A Comparative Analysis
Tema4-SAFETY SYSTEMS:
* 1.
Monistic systems:
among them there are two basic positions:
a. absorption tier system of punishment for the security measure, and asks you gone off and apply the security measure to all criminals. Was based on scientific positivism (Ferri, Lombroso). It is a utopian system that has never been implemented and it has no acceptance.
B. Absorption-tier system of security measures with grief:
for a time had a certain rationale that led to a unified system that said he had always tend to the instrument of punishment but admitted that on some kind of criminal could use as security. It is necessary at this point, to distinguish between subjects in order of their capacity to act: “They are called subjects attributed those with full capacity to act.” On the other hand, we semimputables subjects as those who do not have full capacity but doing something about it, and that circumstances are losing. This is the case of drug addicts or alcoholics. -Finally, are subject not to blame those who have no capacity to act, as the sick mentales.Este absorption tier system of security measures advocated by the death penalty attributable to taxable non-hazardous, the safety measure not to blame dangerous subjects and, finally, for dangerous people and attributable what we call security penalty or security measure criminal, a kind of retribution that seeks to apply specific treatments for guilt. Today has no acceptance.
* 2. Dualistic systems, are currently being accepted. Combine punishment and security measures. Dualist systems depend on us to combine punishment and security measures, and their differences will come as a preferred application demos either way, depending on the type of subjects that are addressed and as the possibility of the judge to suspend or replace security measure.-a. binary system, pure binary system gives preference to the penalty on the security measure. In subjects that should govern the first two sentences and then apply the security measure. That is, preference is given to the idea of satisfaction of justice on the idea of special prevention. The main drawback of this system is that the subject, when you finish the sentence, will have desocialized to the point where it will be impossible to recover. Furthermore, the accumulation of both is a double punishment for the subject.-B. Vicarial System, has been gaining popularity and has incorporated the most current codes appear as an alternative to pure binary.The characteristic of this system lies in the penalty and the security measure, but this time giving priority to the safety measure for sentencing. In addition, the judge granted the ability to decide if, after that the subject has reached the security measure you want to suspend the sentence or it fulfilled (which is very relevant in terms of background). The problem that arises has to do precisely this discretion (as it says about specific crimes and criminals is not the most appropriate to apply a security measure, then the penalty), creating some uncertainty by relying on the subjective opinion of judge deciding. Almost all the codes are based on this system and in most jurisdictions have established a system of criminal rehabilitation. From the standpoint of political-criminal has discussed whether to keep the two, and concludes that yes, the punishment serves to fulfill the function of compensation for damage sustained in subjects who are guilty and attributable (never criminally responsible) and the security measure to retrieve the subject. Now the penalty is, in large part, re-socialize the subject and that’s very close to the security measure, agreeing on the type often restricting rights.
Tema4-THE SPANISH:
The Spanish system is rather curious. Traditionally, when security measures were born in the 30’s with the Law of Vagrants and Crooks did so outside the walls of the Penal Code and was a system that far off and were completely separate. Preference was given to the penalty on the security measure but it was a system that has always looked for social dangers (predelictuales measures) and repeat (steps postdelictuales) attributable and semimputables. With the Constitution of 1978 states that the system security measures conflicted with the Law of Dangerousness and Social Rehabilitation, charging unconstitutional. Takes place in 1983 an amendment to the Criminal Code establishing a system based on pure vicarious for semimputables only. Thus, as applied to them first and then the penalty, although it gave a tremendous judicial discretion so that the judge could suspend the sentence and conviction to also extinguished. Since then coexist with the pure vicarious system and the Law of Dangerousness and Social Rehabilitation, a law that applied to all subjects except for semimputables: dangerous to have committed a crime, dangerous, they did not commit any crime, and unimputables subjects also had committed a crime or not. It should give some specific assumptions for each case. Under the current Penal Code of 1995 introduced important new reforms:
* 1
The key is the disappearance of predelictuales security measures and the introduction of other safety measures Penal Code repealing the Law of Dangerousness and Social Rehabilitation.
* 2
The security measures apply only to individuals criminally responsible and semimputables, letting you apply to repeat offenders.
3.Se continues as the foundation of the security measure the dangerousness of the subject, but the degree of danger is established with a strictly criminal: the seriousness of the crime (although this is not correct, since the seriousness of the crime can not measure the dangerousness of the subject). The subject will be more or less dangerous in terms of crime they commit.* 4. There is the detention of a subject even dangerous if the type of crime committed does not result in the Penal Code, a custodial sentence. Recourse to internment as those who have committed a particularly serious crime (almost always with imprisonment coupled).
* 5
The maximum compliance with the measure is given by the maximum punishment to be fulfilled the subject if convicted. Never exceed the maximum limit (for example, if the penalty is 20 years, the security measure may not exceed 20 years).
* 6
The measurement system provides the Penal Code provides for the judge can replace a security measure in the light of other reports of specialists, which never can be done with the penalty. That says Article 97 of the Penal Code: During the execution of the sentence, the sentencing court shall, by a procedure on a proposal of Judge prison supervision, some of the following decisions:-a.
Maintain the implementation of the security measure imposed.-b.
decree the termination of any measure imposed in criminal dangerousness disappears from the subject.-c.
Replace a safety on the other you see fit, including those for the assumption that concerned. If it was agreed the replacement and the subject evolve unfavorably, it will void the replacement, turning to apply the measure replaced.-D.
To suspend the implementation of the measure in response to the results already achieved in their implementation, for a period not exceeding remaining until the maximum specified in the sentencing decision. The suspension shall be conditioned on the subject does not commit crimes during that period, and may be rescinded if proven again prove any of the circumstances provided for in Article 95 of this Code.