ࡱ> npm_ Sbjbj .bbU^,84TD prrrrrr$"%L9ppp K;\0 ,%R%8%h % : ABSTRACTS When Punishing the Dividual Turns Into Punishing the Individual Peculiarities of the Fine Nicole Bgelein Institute of Criminology, Faculty of Law, University of Cologne Although the fine is often the most commonly used form of punishment, criminology knows little about it. In 2015, 72 per cent of all sentences in England and Wales, and 84 per cent in Germany (Ministry of Justice 2016; Statistisches Bundesamt 2017: 9293), were fines, figures that have remained largely unchanged in the last decade. As a relatively minor sentencing decision the fine typically impacts the convicted individual less than a custodial sentence. A fine is usually not levied with the purpose of changing the individuals behavior, but with the sole aim of disciplining an individual (Young 1987; Beckett and Harris 2011). Furthermore the day fine system used in Germany enables a fine to be tailored to an individuals personal circumstances. Nevertheless, the fine frustrates the premise of the criminal justice system that only the offender is obliged and allowed to serve the sentence imposed: Anybody friend, family member or employercan settle a fine. OMalley (2009: 26 and 159) argues by using a Deleuzian lens that the fine speaks to the offender as a dividuala two-dimensional identity such as that of the (criminal) car driverwhilst the individual remains unaddressed, and thus free. One of the peculiarities of the fine is that no stigma is attached when the offender can settle the fine (Rusche and Kirchheimer 1939; Sutherland 1947). This changes when a fine turns into imprisonment for fine default one in ten prisoners in Germany have been imprisoned for fine default. Then it is the individual that is captured and taken out of his or her life and social contexts. Also, then it is the offender alone who may serve the prison sentence. And this massive change comes about in a procedure that is, in Germany, not considered by a judge but by a judicial clerk working at the public prosecutors office. The paper proposed will introduce the German way of imposing and processing a fine which leads to imprisonment for fine default. It will show consequences by drawing on an empirical study comprising of 44interviews with offenders, group discussions with judicial clerks and social workers as well as on statistical data from Northrhine-Westfalia. Different aspects of my research have been published (Bgelein 2016, Bgelein 2017). References: Beckett, K., Harris, A. (2011), On Cash and Conviction. Monetary Sanctions as Misguided Policy, Criminology and Public Policy, 10: 50937. Bgelein, N. (2017) Money Rules: Exploring Offenders Perceptions of the Fine as Punishment, The British Journal of Criminology, azx044,  HYPERLINK "https://doi.org/10.1093/bjc/azx044" \t "_blank" https://doi.org/10.1093/bjc/azx044 (Online First) Bgelein, N. (2016), Deutungsmuster von Strafe. Eine strafsoziologische Untersuchung am Beispiel der Geldstrafe. Springer VS. Ministry Of Justice (2016), Criminal Justice Statistics 2015. England and Wales. London. OMalley, P. (2009), The Currency of Justice. Fines and Damages in Consumer Societies. Routledge-Cavendish. Rusche, G. and Kirchheimer, O. (1939), Punishment and Social Structure. Columbia University Press. Statistisches Bundesamt (2017), Rechtspflege. Strafverfolgung 2015, Wiesbaden. Young, P. (1987), Punishment, Money and Legal Order. Edinburgh University Press. Individualization in the Czech Republic: Smoke and Mirrors Jakub Drpal Faculty of Law, Charles University Individualization requires a clear definition of principles governing sentencing. I argue in my paper that we currently cannot fully decide whether individualization happens in reality in the Czech Republic or not. Several empirical studies suggest that sentencing in the Czech Republic does not function as it should: There are important inter-court disparities, judges fix more lenient sanctions to save time and the day-fine system does not serve for individualization of pecuniary punishment for offenders of different wealth. The Constitutional Court has further banned the usage of utilitarian aims of punishment (e.g. deterrence or incapacitation) until Czech legislator specifies what are the governing principles of punishment. This evidence suggests that there is something wrong with the sentencing in the Czech Republic and with the principles by which individualization happens. I will mention several reasons for it with focusing on the most important one - the role of the Supreme Court and the role it plays in the sentencing process. I will argue that in continental legal systems, where there is a little tradition of Sentencing Councils, it is almost impossible to achieve proper individualization without a functioning Supreme Court that decides on principles of sentencing. I will demonstrate several ways how Supreme Court can set basic principles of sentencing even without deciding on individual cases. I will further demonstrate that when the Supreme Court does not decide on principles of sentencing and the legislator is inactive, the lower courts are not provided with enough guidance, and the Constitutional Court is not able to fill this void. Finally, I will present an application that I develop with the Supreme Prosecutor's Office and two doctoral students of economics that will provide the defendants, prosecutors, and judges with more information about sentencing practices in the Czech Republic. It is hoped that this app will help to improve consistency and individualization in sentencing in the Czech Republic. Plea Bargaining in Individualisation Jay Gormley Centre for Law, Crime & Justice, Թtv University, Scotland As various critical scholars have sought to demonstrate, the broad Liberal notion of individualism is inherently problematic. It is not always entirely clear what this notion entails and at the outset this leads to some conceptual difficulties. In practice, individualism does not necessarily mean taking account of an individuals uniqueness in its entirety, but rather understanding it from the perspective of set standards (e.g. the law). As such, treating a case individually may serve to place blame on offenders circumstances and reveal various socio-economic issues. If this were to occur then the perceived legitimacy of the criminal system could be challenged through the revelation of broader injustice within society that make it difficult to ascribe blame. It is for this reason that being an individual comes to mean you are a suitable subject for criminal proceedings rather than an entirely unique entity. The daily practice of the criminal system facilities this as events are typified and standardised in to a legal frame. This process creates cases through various mechanisms and in doing so it helps to ensure that the individual created will be one who can be processed by existing mechanisms. In Scotland signs of the importance of individualisation can be seen in various ways: through judicial declarations that this occurs, through providing legal representation, through pleas in mitigation, and (usually) through the individuals admission of guilt. Yet, in practice, all these mechanisms help to construct the case within far narrower parameters and draw on a finite range of structural and cognitive schemes to create a case. This presentation draws on research of summary criminal justice in Scotland. It aims to explore the various means through which the Plea Bargaining process creates individual offenders. It seeks to explore how the process makes these offenders contrite, how it places the blame for conduct away from social inequality, and how these processes typify the case to remove components of individuality while presenting this as an exercise of individualism. It also seeks to show how these processes operate via networks of individual actors and the influences this can have. In doing so it seeks to show how informal practices constitute the law in practice, and also how Plea Bargaining can help to transform a unique case in to one of a standard type where the accused is responsible for rule violations. Contrasting approaches to the imposition of custody: evidence from six countries Jessica Jacobson and Catherine Heard Institute for Criminal Policy Research, Birkbeck, University of London, England and Wales In this paper, we will be presenting some emerging findings from our international, comparative research and policy project Understanding and reducing the use of imprisonment worldwide. This project aims to understand the factors underlying trends in use of imprisonment in ten contrasting jurisdictions across all five continents, and to work with stakeholders in devising workable strategies for reducing the resort to custody in the ten countries and beyond. As part of this project, we are seeking to understand the custody journey travelled by convicted offenders in each jurisdiction, by analysing the legal and policy framework which (in theory) governs judicial decision-making in relation to three hypothetical offence scenarios or vignettes. These vignettes concern an offence of burglary, a drug importation offence, and a murder; each sets out some brief information on the offender and the circumstances of the offence. To date, we have gathered detailed information on the legal and policy framework in six of our ten countries: namely, England and Wales, Hungary, Brazil, the USA, Australia and India. This information includes the scope and nature of relevant sentencing guidelines (if any), and the probable sentencing range for the three offences in our three vignettes. Our presentation will discuss some of the key points of variation between these six countries approaches to sentencing the three offences, with a particular focus on the scope for individualised sentencing within the sentencing framework of each jurisdiction. Deserving individuals or exposed groups? The representation of victims of violence in Danish criminal justice policy and practice Louise Victoria Johansen, University of Copenhagen Ida Asmussen, University of Copenhagen Lars Holmberg, University of Copenhagen Lin Adrian, University of Copenhagen This paper analyzes the development in victim representations in Danish criminal justice and discusses what consequences this might have for both policy and practice regarding victims. Although one might argue that victims rights have only experienced symbolic gains during the last decades, there is no doubt that victims have moved beyond being the forgotten part and to being seen as consumers of services. It would be quite impossible for politicians nowadays to propagate criminal policies without addressing the victim. However, the creation of a consumer must also be seen as part of the development towards an individualization of responsibility in relation to crime. Individuals should behave sensibly, avoid certain risky environments, secure their own homes, etc. This development has been described as a movement from government to governance, implying that the state has reformulated its former responsibility for combating crime, thus presently imposing this responsibility on individuals and local communities instead. While the 1960s were characterized by a focus on structural causes for victimization, such as gender roles and domestic issues, within the last 20 years there has been an increasing use of individual victim stories both in Danish media and in policy proposals. Also, an increasing number of single-issue victims groups dealing with for instance violence, rape, and so on have surfaced. The crimes have mostly been coached in terms of being single events performed by unknown offenders. Single issues have often proven to be more compelling for politicians and the media alike, but this focus on individual needs within specific, delimited categories of victims risks overseeing other categories of victims, potentially leading to unequal treatment. When comparing the rhetoric of politics with actual practice within Danish police and courts, yet another dimension is added. Here, the same features characterize deserving or real victims, that is, innocent citizens who have no previous history with their perpetrators. Against this idealized picture of deserving victims, however, practitioners mostly deal with domestic violence, pub brawls, etc., often involving people who do know each other and live in so-called risky environments. While the Danish criminal justice system may crack down on unmotivated violence, the latter cases often display what police and judges alike would call muddled affairs where a 100 % allocation of guilt to the perpetrator seems more difficult to make. In domestic violence cases where the partners voice that they are still together, police and the courts may also consider if a harsh sentence would further damage the family and stress a partnership that has obviously not ended. These concerns are tinged with gendered notions about what is at the interest of victims. The individualization of victimhood and needs may thus create divisions between obviously deserving victims and victims who lead risky lives. The Romanian Probation System at Crossroads Gabriel Oancea Bucharest University, Romania In 2017 the Romanian Probation System managed around 100.000 cases. Comparing the period before 2014, when the New Penal Code entered into force, this number represents a dramatic increase in the workload for probation counsellors, taking into account the infrastructure of Romanian probation services. In this paper we will make a brief presentation of the legal framework relevant to this increase, but also we will present some important aspects relevant from the point of view of decision-making, victim protection and adjusting probation obligations to probationers criminogenic needs. Finally, we will sketch some possible solutions for this crisis situation. Individualisation as a Process Mojca M. Plesni ar Institute of Criminology, Ljubljana, Slovenia When discussing individualisation we typically focus on the sentencing phase at which the judge determines the appropriate sentence in a given case thus fulfilling the statutory principle of seeking proportionality between the crime and criminal on the one hand and punishment on the other. However, individualisation in Slovenian penal theory has come to mean more than just that key principle, it is also understood as a process. Individualised punishment is thus construed as the product of legislative, judicial and penitentiary individualisation, three diverse phases with distinct decision-makers and separate results (typically legislature producing sentencing ranges/guidelines, judge passing an individual sentence, administrative bodies further detailing the forms of sentence enforcement), but with one main goal: the individualisation of punishment. The process entails different considerations at each stage, but ideally requires a unified approach towards the meaning of just punishment and appropriate levels of cooperation between the different decision-makers. What I wish to explore are the different drivers that lie behind each of the decision-makers, their distinct responsibilities and their inter-relations, which eventually result in a given system and hierarchy of punishment. It will stem from the Slovenian experience, but look for different examples in other jurisdictions as well in order to present a broader theoretical framework. The Creative Work of Individualisation in the Criminal-Penal Process Cyrus Tata Centre for Law, Crime & Justice, Թtv University, Scotland A recurring preoccupation of judges and lawyers world-wide is the need to balance the mechanistic requirements of consistency and speed with a focus on the requirements of participation and attention to the participation by and concern with the unique individual. In legal discourse these ideas are seen to be mutually contradictory. This can present practical problems. In the work of the lower and intermediate criminal courts judges and lawyers are subject to expectations to dispose efficiently of cases as speedily and with as little effort as possible. This can lead to an awkward sense of justice becoming like an assembly line or factory with insufficient concern for the individual and her participation, invoking doubt about the legitimacy of the process. How is that judges and lawyers do not appear to experience greater uncertainty, awkwardness, embarrassment, even shame or guilt, about constituting a process, which may fall short of what they must hold as core ideals? Existing work on this question has tended to suggest that such potential perceived dissonance between lofty ideals and the disappointing reality is explained away through internal individual dialogue of rationalization. However, this may underestimate that as justice professionals lawyers regard themselves as carrying a triple burden of responsibility: to fellow human beings in palpable distress whose suffering one could alleviate; as ethical professionals, and as the practical custodians of justice. Internal dialogue may not, by itself, be sufficient to resolve this dissonance. As well as an internal dialogue, more importantly and convincingly, as members of court communities, judges and lawyers participate in key collective, ritual practices, which, through their creative case-work, assuage and largely resolve potential concerns. Deploying Mary Douglas work on purity and pollution, this paper argues that the threat to special (sacred) totemic legal ideals (eg participation, consent, the unique individual), is often expunged and cleansed by the processes of individualisation work. Drawing on empirical illustrations from Scotland and elsewhere, this paper shows how work which individualises the defendant to be punished, (e.g. presentence reports, pleas in mitigation), also re-presents the posture of defendants about their own culpability. In so doing, this individualisation work tends to transform cases, thus cleansing them of polluting ambiguities and doubt about cherished beliefs. It does this because, paradoxically, individualization work normalizes defendant postures about what s/he has formally admitted to. In this way, potential worries about the legitimacy of the process tend to be seen off. Invitation to colleagues Individualisation work appears to be essential to all systems which tend to rely on admissions of guilt in some way or other. However, the way individualization work is done appears to vary between systems: for example, between nominally adversarial and inquisitorial systems. I would like to invite colleagues to consider: What, if any, parallels do you see in your jurisdiction? If so, how does individualisation work transform the defendant postures? How is individualization work conducted, and with what effects, in different jurisdictions like yours? How is such work done both according to the formal claims of the system and its typical daily reality in the lower and intermediate courts? Studying ethnic disparities in sentencing: the importance of refining ethnic minority measures and the role of pretrial detention Hilde Wermink and Sigrid van Wingerden Leiden University Law School, Netherlands Ethnic and racial disparities in sentencing receive considerable scholarly inquiry. Much of this research, however, is limited to black/white or black/white/Hispanic comparisons in the United States. This study examines ethnic disparities in more detail by comparing sentencing decisions for several understudied (specific) ethnic minority groups, such as Surinamese and Moroccan suspects, within the Dutch sentencing context. Moreover, this study addresses the fundamental issue about how distinct immigrant generations are sanctioned and whether this is a marker of stratification. Combined official record data from the Public Prosecutors Office and the Probation Service were analyzed to investigate ethnic disparities in pretrial and final sentencing decisions. When studying these disparities, we control for various offense, criminal history and situational characteristics. Our findings demonstrate that there are first generation and second generation ethnic disparities in pretrial and imprisonment decisions, but also that these ethnic disparities differ between distinct sentencing decisions and between immigrant generations. Additionally, the findings highlight the importance of pretrial detention in explaining ethnic disparities in sentencing, and for final sentencing decisions in general. The findings are discussed in relation to the broad discretion exercised by Dutch court actors, and contribute to ongoing scholarly debates about determinants of criminal punishment in international context. Key words: ethnicity, immigrant generations, pretrial detention, imprisonment decisions Sentencing Criteria in the Criminal Justice System of the Republic of Moldova Mihaela Vidaicu, PhD, associate professor, Moldova State University, Law Faculty, Criminal Law Department General and special sentencing criteria Moldova sentencing rules are included in the Criminal Code as in many civil law countries. The Criminal Code (effective as of 12.06.2003) contains general and special criteria for sentencing. Amongst general criteria are the following (1) seriousness of the crime, (2) motive of committing the crime, (3) offenders personality, (4) mitigating and aggravating circumstances, (5) the influence of the punishment on reeducation of the offender, and (6) living conditions of offenders family. General criteria are mandatory at the individualization of the punishment, in particular for selecting the category of the punishment and determining its term as well as for selecting the main and the complimentary punishments. The judge is obliged to consider all six criteria in each criminal case while deciding on the suitable punishment. Also, criminal law contains provisions for specific situations (called special criteria) such as plea-bargaining and guilty plea, unfinished crime, recidivism, participation, plurality of crimes and plurality of sentences. Sometimes the judge should use two or more special criteria while deciding on a case. The law does not specify how exactly the judge should operate, this kind of issues being part of judges discretion. Inconsistent judicial practices on using the sentencing criteria These rules are more or less clear, however, judges use different practices while applying the punishment in concrete cases. Sometimes it is very difficult to understand why a judge selected a specific punishment and how he/she reached the term of punishment. This is happening also because judges rarely reason their decision on applying the punishment. Although the law requires mandatory reasoning of judicial decisions, it seems judges understand differently what a well-grounded reasoning means when it comes to application of a specific punishment. Also, any attempts to clarify this process is seen as a threat to judicial discretion and a deliberate limitation of judges powers. That is why the lack of clarity in choosing the punishment still jeopardizes judges reputation and integrity. The role of the Supreme Court of Justice in assure the consistency of judicial practice A leading role in clarifying all these issues should be played by the Supreme Court of Justice (SCJ) that has the authority to assure the consistency of the judicial practice, including on sentencing. The Supreme Court issues explanatory recommendations, nonetheless, they do not contain details regarding the individualization of punishments and just make reference    !)*/045BCLeijz| Ӿu_F1h\h\B*CJOJQJ^JaJmH phsH +h\h\CJOJQJ]^JaJmH sH 1h\h\5CJOJQJ\]^JaJmH sH .h\h\6CJOJQJ]^JaJmH sH .h\h\5CJOJQJ]^JaJmH sH (hZmY5CJOJQJ]^JaJmH sH (hB5CJOJQJ]^JaJmH sH .hBhB5CJ0OJQJ]^JaJ0mH sH     ijz ?;$d 7$8$H$]a$gdwm$d 7$8$H$]gdwm$$d 7$8$H$]a$gdwm$|     5 ʹʹhS(h\h\CJOJQJ^JaJmH sH 4h\h\5B*CJOJQJ^JaJmH phsH 1h\hwB*CJOJQJ^JaJmH phsH .h\hw6CJOJQJ]^JaJmH sH 1hwh\B*CJOJQJ^JaJmH phsH 1h\h\B*CJOJQJ^JaJmH phsH 1h\h\B*CJOJQJ^JaJmH phsH 1*+;P'g#0BceӽӦzeMeeMee.h\h\6CJOJQJ]^JaJmHsH(h\h\CJOJQJ^JaJmHsH1jh\h\CJOJQJU^JaJmH sH $h\h\CJOJQJaJmHsH-jh\h\CJOJQJUaJmHsH+h\h\6CJOJQJ^JaJmH sH (h\h\CJOJQJ^JaJmH sH .h\h\6CJOJQJ]^JaJmH sH ~0|)klm""$$ ( ($d ]a$gdBm$$d ]a$gdwm$$d ]a$gdwm$$d 7$8$H$]a$gdwm$) ( ((_(`((...{/#0̸~i~iWiC/'h_~Oh_~O5CJOJQJaJmH sH 'hwh_~O5CJOJQJaJmH sH "hZmYCJOJQJ^JaJmH sH (h_~Oh_~OCJOJQJ^JaJmH sH +h_~Oh_~O5CJOJQJ^JaJmH sH !hZmY5CJOJQJaJmH sH $hwh_~OCJOJQJaJmH sH 'hwh_~O5CJOJQJaJmH sH hwhwCJOJQJaJhwhw5CJOJQJaJ'hwhw5CJOJQJaJmH sH  (_(`((((**..{/|////#0$0%0$d ]a$gdBm$$d ]a$gdwm$d ]gdwm$$d ]a$gdwm$$d ]a$gdZmYm$#0$0%0005464*7+7;;< <!<5<><?<@<H<K<?"@ʺʺʺʦn^n^nNn:'hwh\5CJOJQJaJmH sH hZmYCJOJQJaJmH sH hGCJOJQJaJmH sH $h\h\CJOJQJaJmH sH !hG5CJOJQJaJmH sH 'h\h\5CJOJQJaJmH sH 'hwh_~O5CJOJQJaJmH sH hBCJOJQJaJmH sH $h_~Oh_~OCJOJQJaJmH sH $h_~OhBCJOJQJaJmH sH h_~OCJOJQJaJmH sH %0005464*7+7;;;<<!<?<@<p=??"@~@@dB$d ]a$gdwm$$d ]a$gdwm$d ]gdwm$$d ]a$gdBm$"@cBdBeBDDFFFMGGGJJJKoKpKNl\l\lLl*CJOJQJaJmH sH hBCJOJQJaJmH sH 'hwh]t5CJOJQJaJmH sH hGCJOJQJaJmH sH $hwh]tCJOJQJaJmH sH 'hwh]t6CJOJQJaJmH sH STTUUUUUU[[[4\\$d dd-DM [$\$]a$gdwm$ d ]gdwm$$d ]a$gdwm$$d 7$8$H$]a$gdwm$$d ]a$gdwm$$ & Fd ]a$gdw UUUXXXYY^YYYZ [[n[[[[[[[[[\\ \)\̹̦̹̦̹̓kXEXEXE$hwhCJOJQJaJmH sH $hwhN5CJOJQJaJmH sH 'hwhN55CJOJQJaJmH sH 'hwha66CJOJQJaJmH sH $hwhdmCJOJQJaJmH sH $hwh3CJOJQJaJmH sH $hwh!DhCJOJQJaJmH sH $hwha6CJOJQJaJmH sH hGCJOJQJaJmH sH hwh%5CJOJQJaJ)\3\5\\\\\]Y`Z`bbGbgehee/g%&'ڿu]][@8jh`4U5hwhTIB*CJOJPJQJ^JaJmH ph&(*sH U.hG5B*CJOJPJQJaJmH ph&(*sH +hGB*CJOJPJQJaJmH ph&(*sH 4h\h\5B*CJOJPJQJaJmH ph&(*sH 1h\h\B*CJOJPJQJaJmH ph&(*sH 4hwh\5B*CJOJPJQJaJmH ph&(*sH $hwh\CJOJQJaJmH sH $hwhN5CJOJQJaJmH sH \\\\\\]Y`Z`bbGbgehettttttt$d dd-DM [$\$]a$gdwm$d d-DM \$]gdwm$$d d-DM \$]a$gdwm$$d -DM ]a$gdwm$$d -DM ]a$gdwm$ hee&()+,./12OPQRS$a$ dgdB$d dd-DM [$\$]a$gdwm$to general rules provided by the Criminal Code. 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