Oldal 106 [106]
HANS-JÖRG ALBRECHT
rights and freedoms, creating a double bind in face of defensive and offensive
roles of human rights.* And, in fact, human rights traditionally had been
invoked to restrain criminal law and punishment through providing various
layers of shields which effectively guide the process of making criminal law and
defining criminal offences, restrain sentencing and punishment and establish
protective standards of criminal proceedings. Strong shields are considered to
be of particular importance in this field as criminal law and punishment (and
here in its most serious forms of the death penalty and life imprisonment) have
been held to present significant sources of human rights violations. The first
layer of these shields places restraints on the creation of criminal law through
implementing well-known and well-established leading principles which request
strict subsidiarity and the use of the threat of criminal punishment as a last
resort. These principles reflect what Hans-Heinrich Jescheck has called the
“fragmentary character” of criminal law.® Penal theory and doctrine insisting
on a “last resort” approach have been backed up by criminological research and
theory which in the 1960s and 1970s emphasized risks of overcriminalization,
adverse effects of criminal punishment and advised adoption of alternatives to
criminal law and diversion from criminal proceedings.
Also, today, it is assumed that the punitive approach to crime control (and
adversarial processing of offenders) has failed. The diagnosis of failure is grounded
on the view that the current system of criminal punishment in some regions has
spiraled out of control. The tremendous increase in the number of prisoners in the
United States and a lesser though still significant rise in prison populations in many
other countries in fact come with a heavy burden for society. The consequences are
felt in the prison systems with overcrowding affecting the conditions under which
prison sentences are served and in societies (and communities) which have to deal
with re-entry problems and accommodate scores of hardened ex-prisoners. High
rates of recidivism and the revolving door syndrome are perceived to be signs of the
ineffectiveness of criminal punishment and to indicate that criminal punishment
is not the solution of crime problems but is a substantial part of these problems.
The root cause of ineffectiveness is seen in the strong stigma coming with criminal
punishment (in particular imprisonment) and its exclusionary power which may
result in defiance, facilitates entering criminal careers and makes it difficult to quit
a life in crime. The finding of failure is also based upon the conclusion that the
conventional criminal justice system does not cater to the needs of crime victims
nor to the needs of the communities where victims and offender live.
4 Francoise Tulkens, The Paradoxical Relationship between Criminal Law and Human Rights,
Journal of International Criminal Justice 9 (2011), 577-595, 579.
° Hans-Heinrich Jescheck — Thomas Weigend, Lehrbuch des Strafrechts. Allgemeiner Teil,
Berlin, Duncker & Humblot, 1996, 52.
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