The Pope’s Address to the International Association of Criminal Law
[Translation shared by Fr. Thomas Rosica, CSB, English Language Assistant to the Holy See Press Office, courtesy of ZENIT International News Agency]
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Distinguished Gentlemen and Ladies!
I greet you all cordially and want to express my personal gratitude for your service to society and the valuable contribution you make to the development of a justice that respects the dignity and rights of the human person, without discriminations.
I would like to share some points with you on certain questions that, though being in part debatable – in part! – touch directly on the dignity of the human person and therefore involve the Church in her mission of evangelization, of human promotion, and of service to justice and peace. I will do so in a summarized way and by chapters, with a rather expositive and synthetic style.
First of all I would like to pose two premises of a sociological nature, which are concerned with incitation to vendetta and criminal populism.
a) Incitation to vendetta
In mythology, as in primitive societies, the crowd discovers the maleficent powers of its sacrificial victims, accused of the misfortunes that strike the community. Nor is this dynamic absent in modern societies.
Reality shows that the existence of the legal and political instruments necessary to address and resolve conflicts, does not offer sufficient guarantees to avoid some individuals being accused for the problems of all.
Life in common, structured around an organized community, is in need of rules of coexistence the free violation of which requires an appropriate response. However, we live in times in which, both from some sectors of politics as well as on the part of some means of communication, there is, sometimes, incitation to violence and to vendetta, public or private, not only against those who are responsible for having committed crimes, but also against those on whom suspicion falls, founded or unfounded, of having infringed the law.
b) Criminal Populism
In this context, over the last decades a conviction has spread that through public punishment the most disparate social problems can be resolved, as if for the most diverse illnesses the very same medicine is recommended. It is not a question of trust in some social function attributed traditionally to public punishment, but rather the belief that through such punishment those benefits can be obtained that require the implementation of another type of social or economic policy and of social inclusion.
Not only are scapegoats sought to pay with their freedom and their life for all the social evils, as was typical in primitive societies, but beyond this sometimes there is the tendency to construct enemies deliberately: stereotype figures, who concentrate in themselves all the characteristics that the society perceives or interprets as menacing. The mechanisms of formation of these images are the same ones that, at their time, made possible the spread of racist ideas.
I. Uncontrolled Penal Systems and the Mission of Jurists
The Guiding Principle of Cautela in Poenam
Things being as they are, the penal system goes beyond its own sanctioning function and puts itself on the terrain of liberty and the rights of persons, especially of those who are most vulnerable, in the name of a preventive end whose efficacy, up to now, has not been able to be verified, not even for the gravest punishments, such as the death penalty. There is the risk of not even keeping the proportionality of punishments, which historically reflects the scale of values protected by the State. The concept of criminal law as ultima ratio has been weakened, as last recourse to the sanction, limited to the gravest deeds against individual and collective interests more worthy of protection. Also weakened has been the debate on the substitution of imprisonment with other alternative penal sanctions.
In this context, the mission of jurists cannot be other than that of limiting and containing such tendencies. It is a difficult task, in times in which many judges and operators of the penal system must carry our their duty under the pressure of the mass media, of some unscrupulous politicians and of drives for vendetta that are rife in society. Those that have such a great responsibility are called to do their duty, from the moment that not doing it puts human lives in danger, which are in need of being cared for with greater commitment than is sometimes done in the fulfilment of their functions.
II. In regard to the primacy of life and the dignity of the human person. Primatus principii pro homine
a) In regard to the Death Penalty
It is impossible to think that today States do not have at their disposal means other than capital punishment to defend the life of other persons from unjust aggression.
Saint John Paul II condemned the death penalty (cf. Encyclical Letter Evangelium Vitae, 56), as does also the Catechism of the Catholic Church (N. 2267).
However, it can be verified that States take life not only with the death penalty and with wars, but also when public officials take refuge in the shadow of State powers to justify their crimes. The so-called extra-judicial or extra-legal executions are deliberate homicides committed by some States and their agents, often making it appear as clashes with delinquents or presented as the undesired consequence of a reasonable, necessary and proportional use of force to have the law applied. In this way, even if among the 60 countries that keep the death penalty, 35 have not applied it in the last [ten] years, the death penalty is applied, illegally and in different degrees, across the whole planet.
The same extra-judicial executions are perpetrated in a systematic way not only by States of the International Community, but also by entities not recognized as such, and they represent genuine crimes.
The arguments opposed to the death penalty are many and well known. The Church stressed some of them opportunely, such as the possibility of the existence of judicial error and the use that totalitarian and dictatorial regimes make of it, which use it as an instrument of suppression of political dissidence or of persecution of religious and cultural minorities, all victims that, for their respective legislations, are “delinquents.”
Therefore, all Christians and men of good will are called today to fight not only for the abolition of the death penalty, whether legal or illegal, and in all its forms, but also in order to improve the prison conditions, in respect of the human dignity of the persons deprived of freedom. And I link this with a life sentence. In the Vatican, since a short time ago, there is no longer a life sentence in the Penal Code. A life sentence is a hidden death sentence.
b) On the conditions of imprisonment, those jailed without a sentence and those condemned without a judgment. These are not fables, you know this well.
Preventive imprisonment – when in an abusive way procures an anticipation of the punishment, prior to the condemnation, or as a measure that is applied in face of the more or less founded suspicion of a crime committed – constitutes another contemporary way of hidden illicit punishment, beyond a patina of legality.
This situation is particularly grave in some countries and regions of the world, where the number of detainees without a sentence exceeds 50% of the total. This phenomenon contributes to the even greater deterioration of the prison conditions, a situation that the construction of new prisons never succeeds in resolving, from the moment that every new prison already exhausts its capacity before it is inaugurated. In addition, it is the cause of an undue use of police and military stations as places of detention.
The problem of detainees without a sentence must be faced with due caution, from the moment that one runs the risk of creating another problem as grave as the first if not worse: that of the imprisoned without judgment, condemned without respecting the rules of the process.
The deplorable prison conditions that are verified in several parts of the planet, often constitute inhuman and degrading treatment, often the product of the deficiencies of the penal system, at other times due to the lack of infrastructure and of planning, whereas in other cases they are nothing other than the result of the arbitrary and merciless exercise of power on persons deprived of their liberty.
c) On torture and other cruel, inhuman and degrading measures and punishments. The adjective “cruel,” under these figures I have mentioned, is always that root: the human capacity of cruelty. It is a passion, a real passion!
Sometimes a form of cruelty is that which is applied through imprisonment in jails of maximum security. With the motive of offering greater security to society or a special treatment for certain categories of detainees, its main characteristic is none other than external isolation. As studies of several organizations of defense of human rights have shown, the lack of sensory stimuli causes psychic and physical sufferings, such as paranoia, anxiety, depression, loss of weight and a markedly increased tendency to suicide.
This phenomenon, characteristic of prisons of maximum security, is verified also in other kinds of penitentiaries, along with other forms of physical and psychic torture, whose practice is diffused. Moreover, the tortures are not administered only as a means to obtain a specific end, such as a confession or information – practices characteristic of the doctrine of national security – but they constitute a genuine plus of pain that is added to the very evils of detention. Thus, torture goes on not only in clandestine centers of detention or in modern concentration camps, but also in prisons, institutes for minors, psychiatric hospitals, police stations and other centers and institutions of detention and punishment.
The penal doctrine itself has an important responsibility in this, for agreeing in certain cases to the legitimization of torture for certain presuppositions, opening the way to further and more extensive abuses.
Many States are also responsible for having practiced or tolerated the kidnapping of a person on their own territory, including that of citizens of their respective countries, or for having authorized the use of their air space for an illegal transport to detention centers in which torture is practiced.
These abuses can only be stopped with the firm commitment of the International Community to recognize the primacy of the principle pro homine, namely, of the dignity of the human person above everything.
d) On the application of penal sanctions to children and old people and dealings with other especially vulnerable people.
States must abstain from punishing children criminally, who have not yet completed their development towards maturity and, for this reason, cannot be accused. Instead, they should be the recipients of all the privileges the State is able to offer, both in regard to policies of inclusion as well as practices oriented to make respect for life and for the rights of others grow in them.
The elderly, for their part, are those who from their own errors can offer teachings to the rest of society. One does not learn only from the virtues of the Saints, but also from the minuses and errors of sinners and, among them, of those that, for whatever reason, fell and have committed crimes. Moreover, humanitarian reasons exact that, just as the punishment of those suffering from a grave or terminal illness, pregnant women, handicapped persons, mothers and fathers who are the only ones responsible for minors or disabled children, must be excluded or limited, so should adults of advanced age merit a particular treatment.
III. Considerations on Some Form of Criminality that gravely injure the dignity of the person and the common good
Some forms of criminality, perpetrated by individuals, gravely injure the dignity of persons and the common good. Many such forms of criminality would never be able to be committed without the complicity, active or omitted, of the public authorities.
a) On the crime of the traffic of persons
Slavery, including the traffic of persons, is recognized as a crime against humanity and as a war crime, both by international law as well as by many national legislations. It is an offense against humanity. And, from the moment that it is not possible to commit a crime of such complexity as the traffic of persons without complicity, without the action or omission of the States, it is evident that, when the forces to prevent or to combat this phenomenon are not sufficient, we are again before a crime against humanity. More than that, if one who is appointed to protect persons and to guarantee their liberty, instead renders himself an accomplice of those who practice trade in human beings, then, in such cases, the States are responsible before their citizens and before the International Community.
One can speak of a billion people trapped in absolute poverty. A billion and a half do not have access to hygienic services, potable water, electricity, elementary education or the health system and must endure economic privations that are incompatible with a fitting life (2014 Human Development Report, UNPD). Even if the total number of persons in this situation has decreased in the last years, their vulnerability has increased, because of the growing difficulties they must face to come out of such a situation. This is due to the increasing quantity of persons that live in countries in conflict. In 2012 alone, forty-five million people have been constrained to flee because of situations of violence or persecution; of these, fifteen million are refugees, the highest figure in 18 years. 70% of these persons are women. Moreover, it is estimated that worldwide, seven out of 10 of those who die of hunger are women and children (United Nations Fund for Women, UNIFEM).
b) In regard to the Crime of Corruption
The scandalous concentration of global wealth is possible because of the connivance of those responsible for public affairs with strong powers. Corruption is itself also a process of death: when life dies, there is corruption.
There are few things that are more difficult than opening a breach in a corrupt heart: “So is he who lays up treasure for himself, and is not rich toward God” (Luke 12:21). When the personal situation of the corrupt becomes complicated, he knows all the ways out to flee as the dishonest administrator did in the Gospel (cf. Luke 16:1-8).
The corrupt person goes through life with the shortcuts of opportunism, with the air of one who says: “It wasn’t me,” arriving at internalizing his mask of an honest man. It is a process of interiorization. The corrupt person cannot accept criticism, disqualifies one who does so, seeks to diminish any moral authority that can put him in question, does not appreciate others and attacks with insults anyone who thinks differently. If relations of force allow it, he persecutes anyone who contradicts him.
Corruption is expressed in an atmosphere of triumphalism because the corrupt person believes himself a victor. In that environment, he shows off to diminish others. The corrupt person knows not fraternity and friendship, but complicity and enmity. The corrupt person does not see his corruption. It is somewhat as what happens with bad breath: it is with difficulty that one who has it notices it; it is others who notice it who must tell him. For this reason, it will be difficult for the corrupt person to come out of his state by the inner remorse of his conscience. Corruption is a greater evil than sin. More than forgiven, this evil must be cured.
Corruption has become natural, to the point of constituting a personal and social state linked to custom, a habitual practice in commercial and financial transactions, in public allocations, in every negotiation that involves State agents. It is the victory of appearances over the reality and of indecent insolence over honorable discretion.
However, the Lord does not tire of knocking on the doors of the corrupt. Corruption can do nothing against hope.
What can criminal law do against corruption? There are at this point many international conventions and treaties on the matter and theories of offense have proliferated oriented to protect, not so much the citizens, who in the end are the ultimate victims – in particular the most vulnerable – but to protect the interests of the operators of economic and financial markets.
The penal sanction is selective. It is like a net that that captures only small fish, while leaving the large ones in the sea. The forms of corruption that must be persecuted with the greatest severity are those that cause grave social damages, be it in economic or social matters – as, for instance, serious frauds against public administration or the disloyal exercise of the administration — as any sort of obstacle placed in the functioning of justice with the intention of procuring impunity for one’s evildoings or for those of third parties.
Caution in the application of punishment must be the principle that governs penal systems, and the full validity and efficiency of the principle pro homine must guarantee that the States are not qualified, juridically or on the way, to subordinate respect of the dignity of the human person to any sort of social utility. Respect of human dignity not only must operate as the limit to arbitrariness and to the excesses of State agents, but as the criterion of orientation for the pursuing and repression of behaviours that represent the gravest attacks to the dignity and integrity of the human person.
Dear friends, I thank you again for this meeting, and I assure you that I will continue to be close to your demanding work at the service of man in the field of justice. There is no doubt that, for those among you who are called to live the Christian vocation of your Baptism, this is a privileged field of evangelical animation of the world. For all, also for those among you who are not Christians, there is, in any case, need of God’s help, source of all reason and justice. Therefore, I invoke for each of you, with the intercession of the Virgin Mary, the light and strength of the Holy Spirit. I bless you from my heart and, please, I ask you to pray for me. Thank you.
[Original text: Italian]