Criminal law and crime prevention

Abstract

When discussing the deterrent effects of criminal law, the aim of punishment is in the foreground. To achieve the preventive role of criminal law, of same importance are the determination of its limits, as well as the inevitable questions of criminalization and decriminalization. Rational criminal legislator has to consider the point in time and the conditions when using criminal law. Converting crime policy in security policy does not guarantee more efficient suppression of crime, and it's hostile not only to the offender, but to the entire society, creating a climate in which each citizen is seen as a potential enemy, or as someone who may violate security. Combating terrorism, organized crime, corruption and other behaviors carries risks that can be compared even to the danger which arises from these types of crime. Today, it is not realistic to expect that criminal law legislator will stop intervening more and more in a zone that is not authorized for him. Soon, this will lead to a crisis of legitimacy of the entire criminal law justice system. Nevertheless, the task of scholars and everyone who rationally looks at the politics of crime is to detect and warn of the negative trends instead of supporting them. Criminal repression, which is harsh and too broad, leads to serious adverse consequences for the individual and the society. Such criminal policy does not contribute to the crime prevention, but tends to result in further weakening of the criminal justice system. Prescribing harsher penalties and broadening the limits of criminal law has no preventive effect. Excessive use of criminal law on the one hand does not contribute to prevention; on the other hand, it is a too heavy burden for every society. In this article, the arguments supporting minimalist theory of criminalization, which is advocating a realistic approach to the preventive role of criminal law in contemporary societies, and especially in Serbia, are discussed. The idea of a completely preventive criminal law, existing within a wider security criminal law which would protect citizens and society to a greater extent, may look acceptable at first view. But the author warns that this is a dangerous idea. We cannot be assured that this 'new' criminal law would fulfill protective function in a better way than traditional criminal law does, but it is almost certain that this would lead to strenghtening of totalitarism, which traces can already be seen in some democratic societies. It has to be shown in a clearly and empirically verifiable way that broadening and tightening of repression would pay off through a rising level and quality of protection of human rights for all members in society. Besides this predominantly utilitaristic condition, interests of prevention should never contradict to the principle of justice and proportionality; they always have to be realized as an adequate reaction to crime. This includes, to a certain extent, the need of introducing retributive elements even in criminal law that is mostly oriented as a preventive one. This doesn't lead to some kind of mixed theory, nor it imeans that retribution should be put on the same level as prevention, but to capitalize an advantage of retribution over prevention: their ability to set boundaries and quantum of criminal repression. Therefore, it can be barrier to unlimited prevention, which threatens to transform criminal law in wrong direction.