Search results for "Criminalization"
showing 10 items of 21 documents
Time trends, characteristics, and evidence of scientific advances within the legal complaints for alleged sexual HIV transmission in Spain: 1996-2012.
2014
This article quantifies and characterizes existing legal complaints for the sexual transmission of HIV in Spain, describes temporal trends and whether advance of scientific knowledge is reflected in charging decisions, judicial reasoning, and sentences. Sentences and writs dictated by Spanish penal and civil jurisdictions between 1981 and 2012 were obtained through legal databases systematic search. Sixteen sentences and 9 writs belonging to 19 cases were included; 17 judged by penal and two by civil jurisdictions. The first sentence was pronounced in 1996, 3 between 1999 and 2000, 4 between 2001 and 2005, and 18 between 2006 and 2012. In 10 (53%) cases there was effective HIV transmission,…
A premodern legacy: the "easy" criminalization of homosexual acts between women in the Finnish Penal Code of 1889.
1998
Homosexual acts between women were criminalized in Finland in the 1889 Penal Code which also criminalized men's homosexual acts for the first time explicitly in Finnish legislation. The inclusion of women in the Penal Code took place without much ado. In the article it is argued that the uncomplicated juxtaposing of men and women was due to the legacy of a cultural pattern where man and woman, as categories, were not in an all-pervasive polarity to each other, for example, in sexual subjectivity. A cultural pattern of low gender polarization was typical of preindustrial rural culture, and it can help us apprehend also certain other features in contemporary Finnish social and political life,…
Abortion in Latin America. More Than Criminalization, Not Yet Women’s Constitutional Right
2018
Latin America abortion law is often categorized as seriously restricted. And this is so, partially. Abortion is criminalized if it does not fit in the legal indications (e.g. health risk, rape) contemplated. These indications have not only been one of the most innovative areas to expand access to legal abortion in the region in the last years – including rulings of high courts – but they also question the typical classification of Latin America as an extremely legal constrained setting. In fact, if we look closely at the world legal map, we find that only two countries have absolutely ruled out the use of criminal law to deal with voluntary abortion (Canada and few jurisdictions in Australi…
The Double-Deviant Identity of the Mass-Foreigner and the Lack of Authority of the Crimmigrationist State
2019
Crimmigration has its breeding ground in dystopian and securitarian narratives. The anti-hero of these narratives is the mass-foreigner, a stereotyped version of the foreigner usually depicted, alternatively or cumulatively, as an enemy or as a parasite of host societies. But not only does crimmigration presuppose such narratives (and the deviant identity of the mass-foreigner, which is connected with them) as a source of legitimation, it also fuels these same narratives by providing them with an official sanction: by merging criminalization and irregularization on a legal level, it heavily contributes to making the social identity of mass-foreigners into a doubly deviant one. The overarchi…
Human Dignity and Legally Protected Goods in Criminal Law
2020
Criminal law protects certain basic goods because they are directly or indirectly connected with the dignity of the person. However, in cases such as euthanasia, prostitution or surrogacy motherhood, the appeal to the dignity of the person is used, in the opposite sense, as the basis for decriminalization. In these cases, dignity is identified with the autonomy of the person and their capacity to dispose of all their goods, even if they are essential. This work argues that there is an ontological core of dignity (requirement of absolute respect) that is subtracted from autonomy and that is protected by the concept of ‘moral integrity’. It prevents certain conducts from being decriminalized …
A Just Criminalization of Irregular Immigration: Is It Possible?
2015
The aim of this paper is to question, from the perspective of a principled theory of criminalization, the legitimacy of making irregular immigration (IM) a crime. In order to do this, I identify three main ways in which the political decision to introduce a crime of IM may be defended: according to the first, IM is a malum in se the wrongness of which resides in its being a violation of states’ territorial sovereignty; according to the second, IM is a justified malum prohibitum the wrongness of which resides in its being a violation of a justified immigration regulation; according to the third, IM is a malum in se the wrongness of which resides in its harmful consequences for receiving stat…
Iniuria Migrandi: Criminalization of Immigrants and the Basic Principles of the Criminal Law
2013
In questo articolo mi propongo di effettuare una valutazione normativa, dal punto di vista di una teoria del diritto penale orientata secondo principi, delle norme che incriminano l'immigrazione irregolare. L'interrogativo generale sul quale mi soffermerò è questo: che modo di usare il diritto penale è implicato nella emanazione di simili norme? La mia tesi è, in sintesi, che si tratta di un vero e proprio abuso del diritto penale. In almeno due sensi: primo, nel senso che, criminalizzando l'immigrazione irregolare, il diritto penale bandisce (categorie di) persone, e non atti/omissioni, facendo qualcosa che un diritto penale rispettoso di alcuni principi liberali fondamentali non dovrebbe …
Gibt es den strafrechtlichen Paternalismus? Ein Beitrag zu den Prinzipien der Kriminalisierung
2015
German translation of "ESISTE IL PATERNALISMO PENALE? UN CONTRIBUTO AL DIBATTITO SUI PRINCIPI DI CRIMINALIZZAZIONE" (originally published in Rivista italiana di diritto e procedura penale, 2014, pp. 1209-1248). A discussion on whether the so-called criminal paternalism is compatible with the fundamental assumptions of liberalism has been going on for a long time. The aim of this article is to show that criminal paternalism is actually not an autonomous principle of criminalization. Upon making a distinction between tutelary and despotic paternalism, this paper shows that the former is a manifestation of the principle of harm, while the latter is only apparently opposed to liberalism. Indee…
Introduction: The Criminalization of Migration and European (Dis)Integration
2016
This Special Issue of European Journal of Migration and Law is devoted to analysing some relevant facets of the conflict, which we see at the heart of the current European approach to migration, between criminalization of migrants and migrants’ rights. But it is also devoted to outlining some strategies and practices through which the conflict might be avoided, or at least overridden. The papers focus on different facets of this overarching subject by adopting a European (EU and ECHR) perspective, as well as the perspective of specific MSs. Three domestic systems, in particular, are taken into consideration—the UK, France and Italy—and compared with the relevant European standards concernin…
The evolution of the European Union law on the criminalization of humanitarian assistance to irregular migrants: From the council directive 2002/90/C…
2021
With the new Pact on Migration and Asylum, the European Commission published the Guidance C(2020) 6470 of 23 September 2020 on the implementation of EU rules on definition and prevention of the facilitation of unauthorised entry, transit and residence. The present contribution shows as this guidance proposes an interpretation of the article 1 of the Council Directive 2002/90/CE, which only partially meets the problem of the criminalization of humanitarian assistance to irregular migrants, since it has shortcomings both at material and at formal level. After an analysis concerning the guidance capacity to impact on the Court of Justice and national judges case-law, the article ends with some…