Proportionality in Crime Control and Criminal Justice

Description

This edited volume seeks to reassess the old and to analyse and develop novel approaches to the notion of proportionality in criminal matters and the new security architecture. The discourse is not limited to conventional constitutional constellations and standard problems of sentencing in traditional criminal proceedings. Rather, the book offers an interdisciplinary and cross-jurisdictional exploration of highly topical, proportionality-related issues pertinent to penal theory and legal philosophy, criminalisation policies, security and anti-terrorism strategies, alternative types of justice delivery, and supranational enforcement as well as human rights and international criminal and humanitarian law. In today’s global risk society, with its numerous visible and invisible enemies of the state and the individual, balancing freedom and security has become nothing less than an attempt at untying a Gordian knot. Against this background, the proportionality of measures of crime prevention and repression is unquestionably an issue of utmost importance, which basic research and legal policy in rule-of-law based systems are urgently called to address. The timely and fascinating contributions in this book, covering jurisdictions from both the common law and the civil law as well as hybrid and international jurisdictions, will appeal to academics, researchers, policy advisers and practitioners working in the areas of national and international criminal law, comparative criminal justice/criminology and legal philosophy as well as constitutional and security law. Foreword Contents List of Contributors Part I: Conceptualising Proportionality 1. The Typology of Proportionality I. Proportionality in Crime Control and Criminal Justice: Challenges and Dilemmas II. Conceptualising and Applying Proportionality: Typological Considerations III. Outline 2. Proportionality and the Criminal Law: Proportionality of What to What? I. Introduction: Prospective and Retrospective Proportionality II. Retrospective Proportionality in the Criminal Law III. Prospective (and Retrospective) Proportionality in the Criminal Law IV. Proportionality and Efficacy 3. Proportionality and the Bindingness of Fundamental Rights I. The Hermeneutic Problem of Binding Constitutional Rights II. The Solution Presented in the Pharmacy Decision of 1958 III. The Proliferation of the Principle of Proportionality IV. Constitutional Justification of the Proportionality Control V. Proportionality in the Narrow Sense 4. The Contribution of Fuzzy Logic and Comparative Concepts to the Rational Application of Proportionality Stricto Sensu I. The Difficulty of an Exhaustive Definition II. Rules and Principles III. Balancing and Weighing Up IV. The Standards V. Fuzzy Logic and Comparative Concepts VI. The Commensurability Question 5. The Emotional Component of Proportionality I. Principle of Proportionality – The Main Contention II. Rationality – The Point of Departure III. A Modern Challenge to the Rational Approach IV. What are the Legislators Trying to Express and Why? V. Why is this a Challenge to Proportionality? VI. Any Role Left for Proportionality? VII. The Emotional Element Embedded in Proportionality VIII. Conclusion 6. The Principle of Proportionality: Tracing its Historical Evolution I. Introductory Remarks on the Factors Influencing the Principle's Evolution II. The Seven Stages Marking the Evolution of the Principle III. Roots of the Principle IV. Consolidation of the Principle in Modern Times V. Concluding Remarks on the Principle's Future Perspectives Part II: Applying Proportionality: National Paradigms 7. Ends and Means: Why Effective Counter-Terrorism Requires Respect for Proportionality and Rights I. Introduction II. Effectiveness and Counter-Terrorism III. Proportionality in Counter-Terrorism IV. Conclusion 8. Contrasting Penal and Non-Penal Responses to Terrorism: Proportionality and Human Rights in the UK I. Introduction II. Executive Non-Penal Measures in Response to Northern Ireland Terrorism III. Executive Non-Penal Measures in Response to Islamic Terrorism IV. Penal Measures and Criminalisation V. Conclusions 9. Big Data and Criminal Justice. Proportionality, Efficiency and Risk in a Global Context I. Introduction II. Future Participation in Crime III. Voluntary Participation in Surveillance IV. The Domination of the Private Sector V. Conclusion 10. Proportionality Paradigm or Paradox? The Proportionality Principle in American and German Security Law Jurisprudence I. Prelude II. Proportionality Planet III. Perverting the Proportionality Paradigm IV. Protect and Preserve V. Postlude 11. Effectiveness, Proportionality and the Abstract and Concrete Forms of Decriminalisation. The Example of Italy I. Introduction II. Abstract Decriminalisation of Minor Offences in Italy III. Concrete Forms of Decriminalisation in Italy IV. Conclusion 12. Promoting Retributive Proportionality Through Sentencing Guidelines I. Introduction II. Components of a Proportional Sentence III. Evaluating Existing Sources of Guidance for Courts at Sentencing IV. Implementing Sentencing Proportionality Through Guidelines V. Concerns Regarding the Guideline Approach VI. Conclusion: The Need for Empirical Research Appendix 13. Proportionality in Asset Confiscation Proceedings I. Introduction II. Proportionality III. Three Generations of Asset Confiscation Schemes IV. Proportionality and Asset Confiscation V. Endnote Part III: Applying Proportionality: International Paradigms 14. The Proportionality Principle in Comparative Public, European Union and International Law – Reflections on the 'Proportionality Equation' I. The Proportionality Problem II. Comparative Constitutional and Administrative Law III. The Law of the European Union IV. International Law V. Enforcing and Concretising the Proportionality Principle 15. Proportionality and Efficiency in Sentencing under International Criminal Law I. Introduction: Proportionality, Efficiency and Sentencing II. Sentencing Law of International Criminal Tribunals III. Sentencing Rationales in International Criminal Law IV. Specific Problems of Determining Proportionality in International Criminal Law V. Conclusion 16. Proportionality, Mass Surveillance and Criminal Investigation: The Strasbourg Court Facing Big Brother I. Introduction II. The ECtHR Big Brother Judgment of 13 September 2018 III. Understanding the Principle of Proportionality IV. Mass Surveillance and Criminal Investigation: Different Approaches in Assessing Proportionality? V. Final Remarks 17. Proportionality Issues in European Arrest Warrant Proceedings – Three Stories from the Field I. The European Arrest Warrant 2004-20: A Success Story, at a Cost II. Three Stories from the Field III. Perspectives on Future Initiatives IV. Postscriptum Bibliography Index