Dimitris Liakopoulos[1]
Abstract: The prescription of the crime is faced with major political-criminal challenges, given that it has been the subject of suspicion and distrust if is related to the needs of community. In this scenario it is of interest to compare the current reality of the prescription with its historical development, in order to reconstruct the complex contemporary framework, in the sense of determining whether the current physiognomy of the prescription is the last stage of a “physiological” development or instead, a dangerous escape from criminal law and a change in the jurisprudential principles inherited from the Enlightenment. However, it is the perspective of legal philosophy that is the only one that can offer some answers to the most complex issues of the institution under consideration. The prescription has a foundation linked to legal certainty and to the idea of humanity.
Keywords: prescription of crimes, interruption, suspension, criminal policies, comparative criminal law.
Resumo: A prescrição do crime enfrenta grandes desafios político-criminais, uma vez que tem sido objeto de suspeita e desconfiança se estiver relacionada às necessidades da comunidade. Nesse cenário, é interessante comparar a realidade atual da prescrição com seu desenvolvimento histórico, a fim de reconstruir o complexo arcabouço contemporâneo, no sentido de determinar se a fisionomia atual da prescrição é a última etapa de uma “fisiologia”. desenvolvimento ou, em vez disso, uma fuga perigosa do direito penal e uma mudança nos princípios jurisprudenciais herdados do Iluminismo. No entanto, é a perspectiva da filosofia jurídica a única que pode oferecer algumas respostas para as questões mais complexas da instituição em consideração. A receita tem uma base ligada à segurança jurídica e à idéia de humanidade.
Palavras-chave: prescrição de crimes, interrupção, suspensão, políticas criminais, direito penal comparado.
SUMMARY: Introduction. 1.Difficulties of finding a basis for suspension and interruption. The principle of humanity as the foundation of prescription and the basis of the suspension of prescription. 2.The relationship between process and substantive criminal law in the configuration of the suspension. 3.Reform proposals to the prescription of Italian and Chilean criminal code. Meeting point?. 4.Characteristics of certain modern criminality and challenges for the process (and consequently with the suspension of the statute of limitations). 5.Prescription of crimes of sexual violence against minors. 6.Interruption: Difficult relationship with criminal law in general and with the foundation of prescription in particular. Criticism. Concluding remarks. References.
Introduction
The arrest and loss of time are the phenomenon of extinction of the offense by prescription. A comparative survey is found in the fact that while the temporal course element appears regulated in fairly similar terms between the phenomena of suspension and interruption, on the other hand, they know an important difference; while the European legal systems provide for mechanisms that fall, in principle, in the traditional reasons that justify this institution, in the comparison, for example, of another country such as Chile moves away from tradition by providing for an anomalous system, also with regard to its source original, that is, the Spanish code.
The second difficulty that presents the study of interruption and suspension consists in the lack of solid principles to justify its effects, an issue that partly explains the diversity mentioned. The reason for this lack can be traced back to the civil origins of criminal prescription and in a weak reflection in criminal law that, taking the same arguments of private law, has hardly done anything to find a motivation proper to and punitive law. This explains how the interruption, when it occurs through the activities of the process, is justified by relying on a “renewal of state’s interest in the prosecution of the crime”, a foundation that, in reality, is of Roman civil law, glossers and practical but with many difficulties can be consistent with the purposes and principles of modern criminal law.
The third difficulty for our investigation lies in the fact that, even if they form part of the statute of limitations, suspension and interruption, because they are capable of modifying the duration of the terms, undoubtedly also present the aims of a policy of criminal persecution which can not to be accepted by the legislator with the aim of collaborating with an effective administration of justice. But, it must be reiterated, this does not prejudice their nature of substantive law, together with the temporal element; the reason for this statement can be easily understood. If we dissociate the nature of the three elements of the prescription, and then proceed to affirm the procedural nature of the suspension and the interruption with the already known consequence of its retroactivity, then the substantial nature of the prescription (that is, of the temporal decay element) it would end up being totally frustrated. It would be necessary simply to modify the suspension regime in peius, for example, in order to transform a prescribed crime into an imprescriptible one; the effect is more evident with the interruption.
The needs of criminal policy strongly press for the punishment of certain categories of crime that more modernly affect social sensitivity (economic crimes, environmental pollution, sexual violence against minors, public corruption) and the mere course of time as a cause of impunity appears unjustified, even as a class benefit for certain offenders; it must be recognized that, in some ways, the prescription appears as an excellent trick of punitive justice, especially when it comes to crimes of a certain complexity or in cases where the defendant is provided with a defense that manages to play with the times of justice, including the timing of the statute of limitations. So, if we remain firm, and in my opinion we must do it, on the fact that the limitation periods must be determined according to the severity of the crimes through the edictal penalty, then: o they modify the penalties for these crimes, becoming from medium gravity low to medium-high or we introduce a system of arrest or loss of time consistent with the characteristics of this crime. Interruption plays an important role. But it is now known that this finality has not been achieved or at least not at the level that its authors proposed. There is still an Italian prescription reform that is able to solve these problems.
1. Difficulties of finding a basis for suspension and interruption. The principle of humanity as the foundation of prescription and the basis of the suspension of prescription
The civil origin of the prescription is a question now proven and I do not pretend to dwell on that. In truth, an assessment of this kind is not in itself negative; criminal law has long been a civil right and many criminal institutions still reflect that genesis today, which cannot be considered as problems for this reason. But the discourse of prescription has certain peculiarities that finally affect a design that scarcely considers the purposes and characteristics of criminal law and which then allows legislative changes that often end up destroying or at least strongly hampering the operation of the same prescription of the crime without thereby improving the administration of criminal justice or without necessarily carrying out the aims to which these reforms were directed.
In speciem, the principle of humanity requires that the punitive response of the state arrives within a certain temporal threshold with the objective of not leaving the citizen available from the state eternally. The principle therefore also governs the suspension of crime because these types of rules are part of the institution. But the principle must, in this case, balance with others concerning the legitimate punitive pretension of the state in relation to the punishment of crimes.
Usually it is stated that the prescription is a goal to which, with a good system of justice, one should never arrive; if criminal law has as its objective the protection of the most important juridical assets from the most heinous attacks, punishment would become a duty an important purpose of the state. Also the design of the prescription is partially addressed to this purpose, in the sense of providing a reasonable time from the point of view of the principle of humanity, on the other consistent with the gravity of crime. But what the term, by itself, does not allow or not necessarily allows is sufficient time to carry out the investigation activity and reach the “ideal” goal of a “healthy” criminal justice, that is, the decision on the responsibility of the author or presumed offender.
The terms of the prescription cannot incorporate the requirements of the process for the simple reason that those terms cannot be assessed ex ante, in the abstract, but on a case-by-case basis; if on the one hand we agree that murder is a very serious crime (and therefore must be punished with a high penalty, long-term and, consequently it will be prescribed in a long term or, for certain orders, it will be imprescriptible) one could never say that all cases of murder require a very long time for the investigation and for the trial.
It is in this scenario where the suspension and the interruption are inserted; the fact that certain events not necessarily connected to the seriousness of the crimes are able to alter the calculation of the term, lend themselves very well to collaborating with the administration of justice; but, if one does not take into account on the one hand that they however enjoy a substantial nature and, on the other hand, they are not always the ideal instrument to reach the goal of the criminal trial, that is, in principle, the decision, their use exaggerated, as well as being useless, could nullify the guarantee ratio that brings with it the prescription, becoming the compromise that the state has declared regarding not to exercise the criminal action beyond a certain term an empty promise.
Within this framework there are at least two systems of suspension of the prescription course.
The first, most ancient and of majority, considers that every time the trial stops for reasons that cannot be imputed to the organs of criminal persecution, the prescription must suspend, until the objection of that obstacle or the continuation of the process (Italy, Germany). The second one considers that every time the trial arrives at a certain moment in which the prosecution organs communicate to a subject the fact of actually carrying out a trial against him, the limitation period must suspend (Chile).
In the first system the process, for itself, does not have the power to stop the course of the prescription; in the second case the process is itself a circumstance that justifies the paralysis of the term. The differences are remarkable because they respond to very different principles. In the first, the suspension (and also, as will be seen below with regard to the interruption) are linked to the idea that the institution is almost a sanction against the negligence of public prosecutor and, secondly, that a deadline expiration of a right can not start if there are obstacles not attributable to those who claim (i.e., the so-called contra non valentem agere) which, in the end, is a consequence of the first idea. In the second one, it is argued that while a process, and therefore the possible responsibility of a subject, still has to decide, it makes no sense for the term to continue its course and must therefore suspend itself.
The first argument corresponds to the statutory legacy of prescription. The contra principle non valentem agere that in the matter of private law requires a distinction between impediments of fact and legal impediments, in criminal law, for the burden of the principle of legality, is compressed only in cases of legal impediments; clearly reflect this principle the circumstances of article 159 paragraph 1, no. 1, no. 3 of Italian criminal code (DELMAS-MARTY, 2012, pp. 741-752). The German code is the same: the causes that are most easily recognized as causes of suspension are those of art. 78b, paragraph I n. 1 and 2, II and IV (FISCHER, 2017). In all these cases, legal impediments in some way hinder the beginning or the progress of the trial and are not imputable to the public prosecutor.
The purpose of suspension seems clear enough: give more time to the prosecution bodies to carry out the investigation and arrive at the physiological term of a trial, that is, the decision on criminal responsibility of a subject. While the prescription terms are fixed because they are aimed at giving legal certainty, the suspension should play its role in the real process, from a dual perspective: the traditional one, that is when the same process suspends and others, when the process cannot be born. The course of the prescription counts as objective time, that is, as a time that naturalistically begins, without the need for anyone to know that it has begun or is finished; this time is always useful because it has nothing to do with either the memory or the needs of the community: on the contrary, the accused may not know that his crime has been prescribed, the public prosecution may not know about the commission of a crime and this time continues its course without stopping. Only the idea of protecting humanity can give a satisfactory answer as to why time continues the course that began when the offense was committed and not at a different time, for example, when the crime was discovered.
The suspension is one of two institutions in which substantive law-procedural law intertwine. Therefore, humanity, the rector principle, however, of the prescription of the crime, must give space to other needs and purposes, such as the one that seems evident to us of the suspension: to provide more time. It is here that one should take into account a) the peculiarities of each procedural system, on the one hand, and b) the characteristics of certain criminality on the other. Regarding the first group of circumstances, if the time continues its course during the trial, then if the trial stops for any reason not imputable to the public prosecution, the limitation period, reasonably, should suspend; but, to assess the relevance of this answer, it is necessary first of all to analyze the compatibility of the principle contra non valentem agere in criminal law. This principle, of Roman origin, was originally rejected in Germany, following the approval of the Reich Code and also the French doctrine showed a firm disapproval. But it seems that this mistrust of the use of the brocardo owes more to the fact of its admission as an unwritten rule and the consequent insecurity of its application and is not so much an absolute refusal. In fact, from a broad perspective, the fact that the decision of a trial depended on the decision of another process appears as an obstacle which, not being imputable to the public prosecution can be traced back to the principle under consideration. It is, as can be perfectly understood, an unreliable hypothesis if we take into account that the prescription is subject to the principle of legality and, consequently, to the prohibition of analogy.
In fact, the contra non valentem principle is very well suited to the systems of criminal procedure that have as a characteristic the obligation, the duty to carry out the criminal action; if the organ in charge of the persecution and prosecution sees its proceeding prevented by legal reasons suspending the normal path to the sentence, then the time of the prescription, which also hangs over him, as supporter of a legitimate claim, must stop.
Instead, the idea that the prescription should suspend each time the trial is turned against the defendant does not respond to this principle; in fact, if we take into account the historical origin of this cause of suspension, it is not at all astonishing that there are difficulties in finding a rational foundation, since this cause was not originally a cause of suspension, but of interruption; in fact, if we look carefully at the causes of interruption, we realize how the idea underlying the loss of the temporal course and the birth of a new term is consistent with the argument of the “rebirth of the state’s interest in the punishment of the crime”, “which, as seen above, is the main foundation of the waste of time.
In fact, for this reason the Chilean criminal code and then the criminal procedure code (2000) (COUSO, HERNÁNDEZ (eds.), 2011, pp. 709-739) have been provided with rules that, modernly, we can consider as directed to the reasonable duration of the process. Thus art. 96 with reference to the suspension indicates that if the process is paralyzed for three years or ends without conviction, the prescription continues its course as if it had never been suspended; the code of procedure, meanwhile, beyond indicating that from the time of the i.e. formalization of the process begins the course of the prescription, article 247 provides for a maximum duration of the investigation no later than two years.
With regard to the second factor that we should take into account for the design of a suspension system, this is the existence of certain criminality that has characteristics that make it difficult to transcend them outside and therefore the same possibility of carrying out the action of criminal law and the claim of the state regarding the punishment of crimes. Crimes against the environment, of an economic nature and certain types of sexual violence, when people of minor age are victims, have been the target of reforms or reform proposals that have tried to increase the limitation period, change the date of the dies to quo and other measures that are examples of this phenomenon of recent criminal policy.
2. The relationship between process and substantive criminal law in the configuration of the suspension
It must be recognized that process reforms and prescription reforms are usually not addressed together and in a coherent speech; both institutions, perhaps due to the historical dogmatic separation of the two disciplines or simply due to the unconsciousness of the legislator at the time of modifying the process, remain isolated and with insufficient mutual communication. Italy and Chile are examples of this dichotomy.
Thus, for example, the Italian Public Ministry is, by mandate of the articles 50 et seq. of the code of criminal procedure (and article 112 of the Constitution) in the obligation to exercise criminal prosecution where there are no prerequisites for filing or when there is no need for a lawsuit or authorization, cases in which the action is exercised by the office; similar case is Germany, in which, although the principle of non-rigid opportunities applies, the general rule is always the legality (ie, the obligation) of prosecution (§152 et seq., StPO) (ROXIN, SCHÜNEMANN, 2017, pp. 71ss); in Chile, legality is also a general principle, but recognizes a system of rigid or regulated opportunities in art. 170 code of criminal procedure.
But, if this is true, does that mean that the prescription works, in fact as a sanction to the negligence of Public Prosecutor? It seems to us that the answer can only be negative. In all the models taken into consideration, the statute of limitations begins without the trial and even the authority must not be aware of the commission of crime; therefore it could hardly be said that the prescription functions as a punishment for the action of the prosecuting body. Add to this the fact that, as previously stated, the prescription is based on respect for the principle of humanity and therefore, even if it could in fact act as a sanction, it is not the intention underlying the law (PEDREIRA GONZÁLEZ, 2004, pp. 140ss).
But, in the case of insisting on the alleged punishment of the prosecutor, one should at least make a distinction; it seems reliable to differentiate two different situations; on the one hand a prescribed crime whose commission is unknown; on the other, a crime of which the authority, whether of the police or public prosecutor, has some news but, for various reasons, this knowledge does not result in a criminal action or it does not reach a state advanced enough to nullify the effects of prescription; but, in any case, the hypothesis of the sanction is not sustained: whether the prescription functions or not as a sort of opportunity assessed discretionally by the prosecution body, no responsibility (except for cases of administrative or professional responsibility of public prosecutor) carries with it the declaration of prescription of the offense; in fact, if the protection of juridical assets is a desirable objective because in this way the whole community is protected, the sanction would fall not on Public Ministry but, indeed, on the entire community.
From this perspective, the suspension as a mechanism to avoid this alleged sanction in cases where the public prosecutor does not exercise the action or exercising it does not reach the sentence is not correct and needs another foundation and perhaps this can be found in a more understanding Accurate of the contra principle non valentem agere non currit praescriptio which, at least in Germany and Italy, seems to be the rector principle of the causes of suspension.
3. Reform proposals to the prescription of Italian and Chilean criminal code. Meeting point?
The prescription of crime, with its perennial questions and problems has been the target of more than multiple reform projects in the last twenty years. The basic idea is that once the process is started it would make no sense, as traditionally conceived, for the prescription to continue its course until the conviction sentence. The underlying reason would be the different foundations of one and the other; on the one hand the traditional reasons (social forgetfulness, disinterestedness of the Public Prosecutor, etc.), on the other the reasonable length of the process. A common feature of these projects or reform proposals: the nodal point that divides these two worlds, and consequently, two different principles, is the exercise of criminal action. Which, at the same time provides for its specific causes of suspension, but always procedural.
In this we can see a certain point of contact with the Chilean system of prescription in which even the exercise of criminal action, at least from a certain moment onwards, works as a containment of the time of the substantive prescription. In fact, the reasons for which it is justified, is that while the process hangs the foundation of the substantial prescription disappears because in this case the state reveals a renewed interest in the punishment of crime and because it operates another principle, the reasonable duration of the trial. The Chilean doctrine identifies a similar principle with the objective of justifying the suspension “when the proceeding is directed against the delinquent” (COUSO, HERNÁNDEZ, 2011): if a crime is subjected to investigation, it would be absurd to make the prescription of the action still run.
The similarities end here: the “Chilean” suspension is a real suspension of the prescription; on the other hand, the reform proposals envisage a true dies ad quem of the substantial requirement and a dies a quo of the prescription of the process. The Chilean suspension does not lose the time gained previously, while the reform proposals build another system with its own rules. But the proximity of foundation remains, in the sense that an act of procedure has some effect that must affect the calculation of prescription.
Evaluating these proposals depends as much on the position taken with regard to the general foundation of the institution (question I leave for the final part of this section), but also on the understanding of the reasonable duration of the process and its relation to the prescription. The proposals are, in my opinion very skillful, in the sense that prescription and reasonable duration cannot be reconciled because they aim at different objectives; but the fact of calling “prescription” what is proposed by the process presents not only conceptual problems, but on a practical level; to speak of the prescription of the process and to indicate the terms (or term) that could lead to a sentence not to proceed on the one hand means a cultural change of no small importance if we take into account the traditional vision of the process that Italian dogmatic defends, change culture that Chile could provide interesting insights and experiences (HORVITZ, LÓPEZ, 2010, pp. 463ss; CASTILLO, 2013, pp. 249-313)[2].
On a conceptual level, talking about prescription of the process seems to me wrong. What is proposed is not really a prescription, but a deadline that declares itself because a protraction even more than the process affects a fundamental right, that is, a ready justice modulated by the process perspective; from this point of view, traditionally we speak of an automatic effect in which there are no causes of suspension and interruption that can avoid the expired process declaration. That is, while the prescription admits causes that may change the term, the transience occurs ipso facto.
The last problem of these perspectives is to evaluate if the process can really be excluded from the calculation of a prescription of the crime. It is not a simple question at all and depends very much on the concept that is supported by the process. If the process is considered to be completely independent from substantive criminal law (in the sense of a foundation autonomy), then the watershed appears justified. On the other hand, if the process is considered part of the punitive phenomenon, then simply dividing one from the other does not seem simple. But, mind you, this does not mean that the process cannot undergo expiration with preclusive effects that are oriented to the protection of the reasonable duration; only that it would not be a real prescription (and therefore, talking about suspension seems an imprecision) and on the other it should not alter the calculation of the other prescription, the substantial (in my opinion the only one that deserves this name) that could still running in parallel for a reason that always seems to forget: the defendant until at least the first degree sentence continues to be only a potential culprit. Here the foundation of the prescription, based on the principle of humanity, should give us a negative answer; the prescription, anchored on respect for the person does not allow the gap between crime-trial-punishment; rather a harmonization that does not forget the particularities and needs of the criminal trial, the non-depletion of efforts oriented to the economy of the trial, the legitimate claim of the state in relation to the punishment of crimes but remaining firm that all this cannot affect the principle of innocence.
From a technical point of view, the proposals present, in my opinion, a problem of which the watershed chosen to differentiate the substantial prescription and prescription of the proposed process was usually the notitia criminis. In any case, is always a procedural implementation in which the interest of the state in the punishment of crime is revealed.
In the Spanish case, this moment does not coincide with a suspension of the trial, not even with a distinction between the prescription of the crime and f the trial, but with the interruption. Perhaps for this reason the Iberian doctrine has tried to provide an interpretation in harmony with the fact that we are only facing a potential culprit; the ambiguity of the legal formula, in fact, has left open for more than a hundred years (the regulation of the institute has not changed too much) the question that was solved through jurisprudence (NIEVA FENOLL, 2012, pp. 5ss). A similar case was the provision of article 96 of the Chilean penal code which even after the reform at the 2000 trial has the same questions about the correct interpretation of the expression “at the moment when the proceeding against him” (BALMACEDA, 2011, pp. 185ss).
It could be argued that the Italian case or rather, the reform proposals do not involve a real interruption, but only a change of treatment; it seems to me that the argument is weak, because an authoritative author indicates how, with the arrival of the act of “division”, the term of the substantive prescription would be definitively interrupted.
The question has been solved with the requirement that the interruptive or suspensive act has a certain jurisdictional content, in the sense of involving the judicial authority (RAGUÈS Y VALLÉS, 2012, pp. 220-242); this is because it is believed, at least in the Spanish orientation, that the basis of the interruption reveals the interest of the state in the persecution and effective punishment of crimes. This excludes acts that do not come from a judge such as the filing of a lawsuit or a complaint because they come from a private individual who does not have the impulse of criminal trial and because a mere crime does not necessarily involve the activity of a judge. For this reason, to consider as the right moment of watershed the only news of crime seems excessive for the simple fact that an act of this nature does not yet translate into a measure against a subject.
4. Characteristics of certain modern criminality and challenges for the process (and consequently with the suspension of the statute of limitations)
The central question concerns the problem of the discovery or transcendence of crime: these are phenomena in which the time of the commission does not necessarily coincide with the moment of their public knowledge and, consequently, the prescription of the crime runs even if the public prosecution does not have the notitia criminis, often coming to the prescription of the crime at a stage too long before the accusation and, therefore, impossible to punish.
But, if you look carefully, the fact that a crime reaches the prescription without the knowledge of public prosecutor or even with the knowledge of his commission but with the exclusion of a declaration of responsibility is not at all a strange phenomenon: the prescription works also as a mechanism of almost natural selection of crimes that should receive the attention of the authority. Therefore it would not be a problem or a pathological condition of the punitive system in itself.
In reality, a crime policy problem could arise only in certain cases and if combined with other specific situations that require an ad hoc solution.
It becomes a pathological problem of the punitive system when and only if the criminal category in fact becomes scarcely punishable because, for example, the prescription occurs with too much frequency; but in any case “to blame” the prescription of this phenomenon seems to me a hasty reaction; on the other hand, one should first of all understand how much the contribution of the cause of extinction is and how much the limits of one’s own public accusation; or the difficulties of proof that bring with them subjective elements of the case. Thus, the prescription could be an undesirable goal only if these hypotheses reach a negative result (i.e., they are not relevant for its impunity) because in that case it would be quite clear that the prescription, as constructed by the legislator represents a serious obstacle to punishment.
Nonetheless, the analysis would be insufficient if another factor is not taken into account that pushes the legislator to reform these crimes with regard to the prescription and which is not only technical or factual: the needs of the community before impunity for crimes.
It is a phenomenon known by now; the impunity of crimes, especially serious ones, is negatively assessed by the social body and more if it arrives through the simple temporal course. The reaction in these cases is of perplexity and a profound feeling of injustice. Although it is possible to find a first modern origin of this reaction against impunity from II World War on to the most heinous crimes such as serious violations of human rights, the phenomenon today may extend more widely to other forms of crime that have target different legal assets, usually of a much lower level of objective seriousness.
5. Prescription of crimes of sexual violence against minors
A known phenomenon has been the growing and in some ways justified new interest that the victim of minor age has aroused in criminal laws of the last 30 years. The awareness that the position of children and youth in the face of crime was very weak gave rise to the presentation of reforms of different quality. In this perspective, a reminder that has gone from the imprescriptibility to the milder forms of calculation of the term is part of the reforms.
Beyond cases in which this crime has been declared imprescriptible, the most known Germany, Spain and Chile cases. In all three systems, with some differences, a special system of suspension of the term was introduced: crimes against persons of lesser age begin the course of the prescription only from the moment when the victims turn 18.
The foundation is always the same: because of their immaturity, the fact that they are subjected to the power of another person, their inexperience, the crimes that have as a victim minor subjects are unlikely to be discovered after their commission. Thus the law assumes that the subject will be able, once he reaches the age of understanding and attacks suffered in the past or will no longer be subject to the control of the offender, usually, dealing with crimes of sexual violence, a member of the same family. In theory, these reasons can be traced back to the concept of “satisfaction of victim’s interests” (Genugtuungsinteresse), a sort of subjective right of the victim that combines the desire for revenge and the right to reparation into a single legal category (HÖRNLE, 2010, pp. 388-398, pp. 392ss).
While in Spain and Germany it is considered peacefully that this is a case of suspension (STENBERG-LIEBEN, BOSCH, 2019, pp. 1187ss; RAGUÉS Y VALLÈS, 2004, pp. 151ss)[3], in Chile it is not entirely clear. Sometimes is a special rule of calculation, in other cases a special rule of the dies a quo. The first position seems to be correct, because it responds to the historical origin of the institute, but because the legal concept of suspension also closes the possibility of a temporal course that has not yet begun (CABEZAS, 2013, pp. 386-407). The position of Chilean doctrine can be explained because it is believed that the rule of art. 96 is mandatory, not admitting other figures that can be called “suspension” of the prescription.
But the criticisms do not stop here: it is legitimate to ask why only younger people have a longer time to exercise criminal prosecution. If the foundation is the one mentioned above, then not only they can be in those situations: even the elderly and the demented could be subjected to pressure and threats or not fully understand the extent of the actions of which they are victims. The only difference between these subjects and children is that a child could understand after the meaning of the action he was the victim.
It must be said that in a technical sense the situation that triggers this enhanced protection of the minor is a fiction; in fact, the crimes of this nature are not always hidden. For example, a case of violation in which the police seizes the author in flagranti or a crime reported to the competent authorities. For this reason, the doctrine maintains that in these cases the rule of special suspension should not be applied and simply returns to the rule of normal dies a quo, i.e., the term runs from the commission of fact (RAGUÉS Y VALLÈS, 2012; STENBERG-LIEBEN, BOSCH, 2019, pp. 3ss; MITSCH, 2018, pp. 1453-1488; CABEZAS, 2013, pp. 395ss).
In my opinion, a suspension of the prescription up to an event like this, that is the greater age of the victim, responds to the Latin brocardo contra non valentem agere, not currit praescriptio. In fact, it is a mechanism by which the punitive system provides special protection to certain people for their conditions. From this perspective the mechanism per se presents no particular inconveniences when it comes to harmonizing it with the purposes of criminal law and not even with the foundation of the institute as we have envisaged, that is with the principle of humanity, because although it is a principle that governs the whole prescriptive system does not mean that it should result in an unjustified advantage; but it must be recognized that extending it to such a large circle of crimes appears little justified.
Suspension of the offense has been proposed as a way out of problems related to the prescription/criminal trial report. From the traditional view of the suspension connected to the different situations of protraction of the process we have arrived or returned to the old reasons for the civil suspension, i.e. cases that can be traced back to the non contra valentem agere non currit praescriptio. The Chilean solution remains, with some points of contact with the Italian proposal, that is, the suspension due at the beginning of the process. Each one presents coherences and difficulties in front of the foundation of the institute as claimed previously, it means, with the principle of humanity (NICHOLS, 1996, pp. 337-362)[4].
In my opinion, the main difficulty is not to distinguish between two types of “prescription”, one that starts from the moment of the commission of the crime, the other from a certain moment in the criminal trial, but the independence of both. That is, it is not clear why the substantial prescription “perishes” with the beginning of the process. If the prescription, anchored in respect of the principle of humanity, is also a guarantee, then the reason for eliminating it is not understood simply because of the beginning of a trial. The second problem lies in the fact that it is problematic to speak of “prescription” of a process. The timing of the different stages of the procedure can, in fact, be fixed by the legislator, think of the Chilean case, but only as a system of deadlines aimed at protecting the principle of reasonable duration of the process which, as clarified by authoritative doctrine, has not nothing to see with the principles underlying the statute of limitations. Hence, the protection of reasonable duration should not remove the protection of the principle of humanity.
The Chilean case would be a kind of compromise solution between the two guidelines. The prescription stops at a time x, in this case when the judge informs the defendant that a trial takes place against him-,and the same process has a deadline, at least for the investigation phase; but the prescription has only stopped but has not ended; if the process lasts too long without a solution, then the prescription continues its course. It remains to be decided whether the Chilean response, i.e. that the prescription continues “as if it had never been suspended” can be accepted; but the general idea does not seem completely wrong.
However the answer of art. 96 of the Chilean criminal code seems excessive in front of all crimes. It is true that a “formalization of investigation” presents or should present a certain level of plausibility, i.e. the justification is not persuasive, that while the investigation takes place, it is absurd that the prescription continues its course. But it would be logical if it is a crime with some features that explain the need for more time, as did the German StGB that reserves this cause of suspension for certain crimes.
The recall of such a mechanism for crimes of economic delinquency is less clear; although it is undisputed that is an area of modern crime that attracts the attention and apprehensions of the community that demands greater severity in its punitive treatment, the justification of the previous paragraph, that is, a victim in need of special protection, is not always here I’m. In any case, it is always possible, as other jurisdictions such as German do, to provide for special suspension cases for certain categories of offense that do not rely on non-valentem ages which, although it is a reliable remedy as seen above, it must be used in a non-excessive way, only every time we are faced with an exception.
6. Interruption: difficult relationship with criminal law in general and with the foundation of prescription in particular. Criticism
The interruption of crime defined as loss of time spent by the commission of crime finds a difficult justification from several points of view. In fact, there are few voices calling for its abolition. The interruption also finds very different legislative responses: while Italy and Germany envisage a system in which the time spent disappears due to trial proceedings, Chile has preferred a system of interruption based on recidivism.
The foundation of the interruption asserts that this institution is based on the assumption that every act of the trial keeps alive the memory of the crime and with it enlivens the social alarm deriving from the crime, or because “the concrete interest of the state to pursue is manifested. A criminal offense that is assumed committed and in order to which one is, in fact, proceeding, In short, the interruptive causes are deeply inscribed in the very logic of the institute: if the opportunity to punish fades with the passage of time, they cannot remain without effect counts that demonstrate the permanence of such interest” (LORENZ, 1934, pp. 76ss; ASLHOLT, 2016)[5].
The theory of loss of interest of state in the punishment of crime considers that the foundation of prescription is in a renewal of the same interest forgetting however that the punishment of crimes is not a faculty of the state, but a duty. This can be ascertained through the configuration of the process in every criminal system in which, usually, the obligatory nature of the action appears as a general rule.
Faced with the founding principle of prescription proposed in this work-i.e. the principle of humanity- the interruption could not even offer some dogmatic support. If the process is necessary to achieve the purposes of criminal law the ex post protection of the legal assets deemed the most important by the community. This does not mean that every time an activity occurs, is enough to make the time gained in previously. Species do not understand what is the reason to predict a cause of interruption if you have a catalog of suspensive causes, assuming that the function of both suspension and interruption is to give more time to justice to arrive at a decision on liability of the subject. If the function is the same then, it would seem that the criminal system provides for two institutions with the same objectives. The difference, beyond the causes of one and the other that as already said are different in all systems, would be only one: in one case, that institution carries with it a true sanction (PEDREIRA GONZÁLEZ, 2004, pp. 253ss; GILI PASCUAL, 2001, pp. 182ss)[6].
As mentioned with regard to suspension, the principle of humanity must balance when we talk about the relationship between criminal and procedural law with the objectives and needs of this last branch of law. But, if that balancing is achieved by prescription, would it not be entirely logical to remain alone with the suspension? This is not a risky idea: as seen above, this was the choice of criminal code of Austria (HÖPFEL, RATZ, 2011, pp. 10ss).
In fact, the existence of a process can have some effect on the prescription, of course; different is the question of what effect. As seen above, a suspension system that introduces, for certain categories of crime, a suspension at a given moment of the process, but with a suspensive rather than an interruptive effect reaches the same effect, that is, give the public prosecution more time to carry out the survey.
However, I am very aware that such a proposal would have little luck, taking into account the powerful tradition at this point. For this reason, a more realistic approach would be to reduce the causes of interruption, limit them to the most serious cases, accurately determine the acts that are able to produce it. But, the road that should not be traveled is that of the Chilean order regarding the interruption. The interruption according to art. 96 of the Chilean criminal code provides that this occurs when the offender commits a new crime.
The law, in my opinion correctly, was judged by the national doctrine “incompatible with a criminal law of the fact” (GUZMÁN DALBORA, 2003, pp. 410-487, pp. 473ss), not missing rumors that anyway looking for some legitimate basis as the revival of social alarm that causes the crime committed by the subject whose previous offense is prescribing (YUSEFF, 2009, pp. 110ss). In fact, its foundation would be more ancient, as revealed in this work the crime is extinguished through the expiation of the offender, expiation that does not occur if the offender commits another punishable offense, foundation completely alien to the logic of modern prescription is impossible to determine only with the commission or commission of a crime.
But, beyond the purpose stated by the legislator, the question still remains whether it is permissible or not to link recidivism with the time it takes to prescribe. The combination of recidivism with the prescription is illegitimate, both with reference to the calculation of the time necessary to prescribe, and with reference to the incident involving both issues. The recidivism is substantially illegitimate and, therefore, incompatible with the prescription institution.
It is clear that the first argument is de lege lata, while the second is only de lege ferenda. You cannot close your eyes to the letter of the law: in one way or another, recidivism ends up influencing the extinction of crime (and a similar thing can be said of the Chilean case); but precisely these effects, and other reasons, also call into question the very raison d’être of recidivism.
These two institutions cannot go together are the overwhelming majority: reasoning relies on the fact that the requirement is an institution of an objective nature and that its ratio can hardly be brought closer to recidivism: the limitation extinguishes the state punitive pretension without taking into account the subjective circumstances, given that time runs the same for everyone. If the prescription, as it was constructed by the legislator, and that responds to a design shared by other systems, determines its course on the basis of the seriousness of the crimes, the recidivism seems a disruptive and incongruent element in its discipline, more than for the fact of its circumstantial character, for its lack of influence in the present crime. While other circumstances tend to reflect a situation that is current or, better, that directly affects the crime, recidivism is pre-empted; all the theories that try to link the crime passed to the illicit present, fail in their task; both for the principle of guilt that inevitably tends to cancel any relationship that cannot be combined with the crime given the danger of falling into judging more the personality that the concrete fact, that is, in the copyright criminal law, both because the dangerousness as a ratio of the recurrence seems more strongly attracted to these harmful patterns of personal imputation, without taking into account, equally, the lack of certainty of its assessment.
If guilt cannot constitute the raison d’être of recidivism, only the danger remains as a dogmatic explanation. Precisely, the danger has been challenged as an unconstitutional form, insurmountable to found a judgment of responsibility. But, in reality, the argument is too weak. The aggravating circumstance of clandestinity is also a presumption of danger and, according to criminal law, a presumption of this kind can lead to a violation of the principle of offensiveness. In addition, the pro-European attitude aimed at prohibiting the optional nature of the assessment of the recidivism, at least in the case of compulsory recidivism and even with a minimum ceiling of increase, seems, precisely, an automatic presumption of danger (SCHABAS, 2015; ORENTLICHER, 2018, pp. 376ss; TOMUSCHAT, 2014; HAECK, RUIZ CHIRIBOGA, HERRERA, 2016, 46ss)[7].
The danger also received a severe defeat on the other side of the world. The Inter-American court of derechos humanos has rejected the category of dangerousness as the legitimate basis of a criminal judgment, precisely, for the content of the copyright criminal law it presents. That this judgment can be extended to recidivism is probably a matter of time (GUZMÁN DALBORA, 2010, pp. 335-370; BELLAMNY, DUNNE, 2016). In these cases, I believe that we can speak with great certainty of a true “class justice” and for this reason to be automatically rejected in any criminal code and not only at European level.
Concluding remarks
The prescription of the crime is currently faced with challenges and problems that involve a set of factors, accidents on the extinctive mechanism, and which undermine their relevance in today’s society at least in the face of certain categories of crime. These factors have led to various dogmatic and legislative solutions, which often lack a deeper reflection on the meaning of time in general and criminal law in particular.
The history of prescription provides quite clear insights about how this institute has performed various functions over time. This means that it is perfectly possible to argue that humanity as the foundation of the prescription is a modern idea, whereas in Roman and medieval law it was more a requirement of legal certainty, as well as a true sanctioning function against the part that supported the punitive claim.
The foundation of prescription is the principle of humanity, which often presents itself as a residual foundation and together with others. Humanity as a principle is the only one that allows us to explain the prescription phenomenon without relying on metaphorical concepts, which are not able to make it clear on their own. In fact, the time that after its course extinguishes the crime does not target the community, which could perfectly have not yet forgotten the wrongdoing, or the organs of criminal persecution, because it is not a sanction against their negligence. Respect for dignity requires that human justice, especially that which can cause loss or limit fundamental rights, be applied within a reasonable and relevant time.
The suspension of prescription of the crime is based on an always delicate balance between the principle of humanity and the legitimate needs of punitive justice. From this perspective we can argue that the suspension, oriented to provide more time to carry out the investigation and the process, being part of the prescriptive mechanism, is based on the principle of humanity but also, in principle, on the principle contra non valentem agere not currit praescriptio, of civil origin. This conclusion should not lead to the error of affirming that the prescription retains the same privatistic nuance, because it responds more to a principle of the entire legal system (nobody is obliged to do the impossible), which justifies a lengthening of time. In any case, it is a foundation that does not govern all the causes of suspension, especially those that we can define as “suspension due to the process” as in Chilean and in German case, concerning at least one suspensive circumstance of StGB, in which only an eccentric circumstance is admitted to this principle solely for reasons of criminal policy. The Italian reform projects are moving within a similar paradigm, even if it is a different approach: the process rather than suspending the limitation, ends the one of the crime and gives birth to another one, that of criminal trial.
The contra principle non valentem agere has limits set by the principle of humanity. The brocardo would suggest, for example, that whenever it is impossible to carry out the criminal action, the prescription should stop or simply not be born, moving the dies a quo until the moment when this action can be initiated; that is, until the moment the crime was discovered or manifested outside. But in this way we would forget the founding principle of the prescription, that is humanity and together with this that no one has the obligation to accuse himself. However, a shift of the dies a quo could be admitted in exceptional cases and justified by certain conditions of the victim of the crime, because if this were not the case the agent would have an unjustified advantage.
The interruption, however, lacks any rational foundation. In fact, it is not clear the reason why a started course should be lost. In the case of the modern interruption system, that is, the start of the process or some act of it, if we agree that the requirement does not constitute a penalty for inaction, then the existence of acts of the process should be irrelevant for the term that still runs. This result is not different if we take into consideration a different foundation of prescription, such as the theory of social oblivion or the force of time; beyond their falsity as the basis of the prescription, they provide no real reason to admit a system of interruption. How can one state that with a simple act of the proceeding (the notitia criminis, the lawsuit, etc.) the social interest in the punishment of the crime is “rekindled”?
How do you explain that an act of interruption could completely eliminate the time spent, even if only one day was left to perfect the prescription? On the other hand, a system of acts of interruption could lead to a lengthening of the term that makes the prescription become an empty institution, without a real meaning. This is evidenced by the existence of the “absolute prescription”, i.e. a term, usually present in legal systems, which sets a maximum limit which includes both the original and the one that triggers with the interrupting act.
But if this system of interruption has no justification, the Chilean system, which is based on recidivism, deserves the strongest rejection. If the recidivism becomes a cause of interruption, then certain crimes could become imprescriptible for certain categories of subjects, as happens in the facts. If used for other cases, the effect is very similar, that is, it carries with it the admission of a class justice system.
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[1]Full Professor of European Union Law at the Fletcher School-Tufts University (MA in international law and MA of Arts in Law and diplomacy). Full Professor of International and European Criminal and Procedural Law at the De Haagse Hogenschool-The Hague. Professor of International law at Massachusetts Law School. Attorney at Law a New York and Bruxelles. ORCID ID: 0000-0002-1048-6468. The present work is updated until April 2020. ([email protected]).
[2]The Chilean Code of Criminal Procedure (2000) provides for a maximum term of the investigation phase not exceeding two years, after which the Public Prosecutor must decide on a set of possibilities whether to continue with the accusation and then move on to the judgment. In fact, the process as a whole has been judged positively because it has accomplished the objectives set at the beginning, above all to reduce the times of punitive justice. But, more than ten years after the entry into force of the story, critical voices begin to rise. Dispatch does not always mean justice or guarantee for the defendant, since it could put at risk the same presumption of innocence.
[3]In Germany the discussion was peaceful on this point, since the same §78b is entitled “suspension” (Ruhen). However the doctrine agrees with this denomination of the legislator.
[4]This brocardo, of very distant origin, actually dates back to an old and still existing principle of law: “nobody is bound to do the impossible” (impossibilium nulla obligatio est). The most distant origin, still in Roman law, was the distinction between pompous and nefarious days; in the latter it was not possible to obtain a formula from the praetor. On this historical development in the oldest Roman civil law.
[5]Today the German doctrine does not question the foundation of the institution and it seems that it simply derives from the fact that, if the prescription has a procedural nature, then it is obvious that acts of procedure-but, unlike the first codification, with a closed catalog-can interrupt the course.
[6]The criticisms of this institute are numerous, especially in Spain and for entirely reliable reasons, bearing in mind that the code alone knew a cause of interruption similar to the Chilean which caused the suspension.
[7]Inter-American Court of Derechos Humanos, Case Fermín Ramírez v. Guatemala, 20 June 2005, considered in law nº 95: “The assessment of the dangerousness of the subject involves the assessment of the judge of the probabilities that the defendant commits crimes in the future, i.e., adds to the charge for the facts committed, the foresight of the future facts that will probably happen. With this base the punitive function of the state is extended. In the end, the subject would be punished-even with the death penalty-not with regard to what he did, but through what the subject is. There is no need to weigh this return to the past, absolutely unacceptable from the perspective of human rights (…)”.
