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Here we argue that, additionally, this model is extending to the administrative sanctioning system, which is reflected in some articles that have been recently incorporated into the administrative sanctioning law and which increase the afflictive character of the administrative ius puniendi, as well as fostering further stigmatization. In Spanien hat sich die kriminalpolitische Debatte des letzten Jahrzehntes unter dem Paradigma des Risikostrafrechts entwickelt.
Introduction: Towards a change in the paradigm of criminal policy Criminal policy defined itself in the past decade in Spain through the incorporation of different sociological approaches into debates on criminal law, among which it is worth highlighting the risk society approach due to its academic prestige.
Pablo Rando Casermeiro, The law and order approach to criminal law in the administrative sanctioning system regarding the contents, means and ways of protecting matters of significant public concern affected by criminal behaviour. Our main conclusion is that criminal law has changed to a risk approach to criminal law, implying a series of difficulties, among which we can mention the violation of certain rights that constitute a hallmark of traditional criminal law, the assumption of the protection of goods whose damage cannot be individually attributed by criminal law, and the preeminence of a purely symbolic criminal policy, without the ability to provide an effective protection against criminal behaviour.
In this context, and following the Frankfurt School, criminal law must cease intervening in matters concerning the so-called modern criminal law, and above all, a criminal law that protects individual rights and abides by the paradigm of result crimes should be adopted instead. The contents of this emergent sector of criminal law should be found either in the administrative sanctioning system or in new sanctioning systems that lie between the latter and criminal law3. We are dealing with a well-known doctrine, so it will not be necessary to go into detail, neither on the basic elements they have in common, nor on their differences and particularities5.
What I do consider important is that, despite the attention paid by the criminal doctrine to the sociological approach of the risk society, the dominant attitude towards this theory has been one of criticism of its foundations6. The aforementioned criticisms adopt different perspectives, both concerning criminal policy and ideological matters. Especially pp. Such attention paid to the Frankfurt School is not always followed by an acceptance of its demands.
But, as I said before, criticism is, despite some exceptions, widespread. Parte General. However it can be verified that this approach no longer enables us to understand, for several years now, social and political attitudes towards criminal behaviour7. The problem is that while this discussion was taking place, a new criminal policy model that has nothing to do with the mentioned paradigm — the law and order approach to criminal law — has been developing parasitically9.
This model is characterized by seven elements Predominance of classical crime. Although the debate on the risk society in criminal policy condemns above all the expansion of criminal law to new fields of tutelage, what is true is that the last reforms to criminal law have dealt mainly with a harshening of the punishment of traditional delinquency crimes against property, sexual offences, etc.
Prevalence of concern and fear of crime. During the last years, the concern about crime has increased among the population, along with fear of crime.
Victims have become significant social actors with a crucial influence in criminal policy, which has lead, among other things, to the respectability of their revenge feelings. Populism and politicization.
Political agents with responsibility in the law-making process have given up expert debate, submitting themselves to the superficial discussions that predominate among certain sectors of the population due to the electoral benefits this brings.
A reassessment of punishment based, above all, on a rigorous penitentiary execution. Rediscovering imprisonment. This punishment appears as the first alternative to crime. Besides intending an increase in the length of prison stays, the re-socialization and flexibilisation goals of the penitentiary regime that they demand are becoming increasingly less acceptable.
Absence of distrust in law enforcement agencies. The population receives with enthusiasm cuts in their fundamental rights, convinced that they will improve the prevention of crime; but there is no longer any distrust that such cuts may produce power abuses from the criminal law enforcement agencies. Instead, the enemy criminal law approach should be incorporated into the wider law and order approach -in my opinion, as one of its more significant exponents.
Anyway, this is the reason why I will not go into its details, which are already well-known by all. However, later on we will see in greater detail if those elements which may be applied to the punitive administrative law, which is my main objective. Not only must citizens collaborate with the law enforcement agencies in new and more intense ways, they must also actively participate in control activities and crime prevention. Transformation of criminological thinking.
The social-empirical research of crime has pushed aside social explanations of crime, focusing directly on its symptoms. I believe we can say without problem that this model is already fully consolidated in Spain, as can be seen through the change in perspective of the reforms in the criminal system since, at least, This model has permeated all spheres of criminal law, including juvenile criminal law In this study we start from the hypothesis that in recent years the administrative sanctioning system has also been influenced, although partially, by the citizen security approach to criminal law.
On this issue we will focus in the following sections. From a legal safeguard-based administrative sanctioning system to a law and order administrative sanctioning system This is not the place to deal with the classical problem of the relationship between criminal law and administrative sanctioning law, nor with the criteria with which to distinguish between both areas of the ius puniendi For now, I am only interested in emphasizing their gradual reconciliation, which is based, above all, in the full integration of the administrative sanctioning system, together with criminal law into the punitive power of the State.
At this point it is an irrefutable fact and it also reflects an absolutely majority understanding of the punitive power of the State, both among doctrine and jurisprudence. This is why there is no need to go into depth in the details, although I do think it is worthy pointing out the following sentence of the Spanish Constitutional Court, pronounced in Judgment No. In other words, if due process in criminal law has had a clear impact on a legal safeguard-based administrative sanctioning law, the move towards a law and order approach to criminal law may result in a law and order-based administrative sanctioning system.
It is also interesting to verify how in the context of the aforementioned reforms offenders are already depicted in an excluding manner, something that until today only occurred in certain areas of criminal law, such as juvenile criminal law or very specific crimes, such as property crimes, sexual offences or gender violence. The references to the administrative sanctioning system are usually connected with the subsidiarity principle of criminal law. Criminal law is —as it is unanimously agreed- the ultima ratio, and therefore can only be used when other less severe options are judged not satisfactory enough to effectively protect the legal rights.
As it is well known, among those other less severe options we find the administrative sanctioning law. Furthermore, the latter usually appears as the least severe option most frequently employed as an alternative to criminal law in decriminalization initiatives.
However, we verify that this difference of severity is, in many cases, only valid in theory, since in practice administrative sanctioning law can be considerably more severe than criminal law.
In these cases, arguing that we apply administrative sanctioning law because it is less severe than the latter constitutes an evident contradiction We must stay alert more than ever with regards to the current law and order model of criminal law, since the punitive elements may filter into the administrative sanctioning law —a punitive power that shows beforehand an important violation of rights in comparison with criminal law-, and could cause a significant loss of citizen freedom.
Specific signs of a law and order approach to the administrative sanctioning system After having defined the elements of the aforementioned law and order model in the first epigraph, and after having fixed the frame of reference for the relationship between criminal law and administrative sanctioning law in the second epigraph, I will proceed to verify to what extent do the characteristics of this model are reflected in the administrative sanctioning system.
For this purpose, I take two starting points: first and as already mentioned, not all aspects of the punitive approach to criminal law affect the administrative sanctioning system, and consequently we will only study those which are relevant; secondly, I will proceed to an adaptation of the model, in accordance with the peculiarities of the punitive administrative law.
As a result of this work, we should obtain the elements for an law and order model in administrative sanctioning system, which I have grouped in two different groups.
The scope of this study, however, does not enable us to go into great depth on all the issues that arise. Rediscovering public order, fear of crime and absence of citizen distrust towards administrative law enforcement agencies.
We have been witnessing for some time now a revitalization of public order initiatives from behalf of the administrative sanctioning system. The use of a wide concept of public order had been left aside in Spain until recently due to its authoritarian reminiscence We are now far away from this context. Nowadays the protection of public order has become a priority compared to other interventions of the Public Administration that focus on the protection of other theoretically more important collective legal rights.
In conclusion, public order is no longer an uncomfortable item in the political agenda and is accepted as a necessary evil; on the contrary, it is now positively valued.
It is time to analyze some of the initiatives that have had an impact on public order which, as mentioned previously, focus on certain recreational or leisure activities that are prejudicially assimilated to citizen insecurity.
One of the most significant is the prohibition of the consumption of alcoholic drinks in public places. Some of the most significant legal initiatives in this direction are Law No. Another reasonable objective would be the prevention of underage drinking.
However, there are two signs of the law and order model in the response given to this problem by parliament that worry us: on the one hand, that the basis of this prohibition does not exclusively —and sometimes not even predominantly- lie in the aforementioned problems, but instead tries to redirect alcohol consumption to healthier habits. Moreover, parliament is particularly concerned that certain leisure activities take place outside the institutionalized channels It is worth noting that this prevalence of fear of crime has no relation at all with an increase of criminal behaviour in the country.
This can also be seen in statistical studies that cover years where fear of crime had decreased considerably, such as and After all, most municipalities have allowed certain public places where this practice can be carried out. For example, spontaneous gatherings of people in the streets in which one or two people may eventually consume alcohol or just the individual consumption of alcohol in the street In order to reinforce this prohibition, many local ordinances have prohibited buying and selling alcohol during night hours, even if it ends up affecting non-harmful behaviour, for example, in individual alcohol trading, even for home consumption In Spain, this has been tried to be regulated, although yet without success, on a national scale, of which the most recent legislative initiative is the Draft Bill on Health Measures for the Protection of Health and the Prevention of Underage Alcohol Consumption, which was finally withdrawn In my opinion, it becomes clear that we are losing citizen liberties in a number of matters, in which the punitive power of Administration takes part.
Nevertheless, the average citizen does not seem to be concerned about this problem, which is one of the basic elements of the punitive model: the lack of distrust of possible abuses from the punitive power of the State The severity of the punitive power of the Administration regarding public order is willingly received, with the hope that this achieves a greater public safety and peace, even if it implies reducing citizen interactions that are not even problematic behaviours for a peaceful coexistence and citizen security.
Parliament would have been right if they had limited the Statement of Purpose to a problem of noise pollution, which, as pointed out, is not what occurred. See art. As can be seen, this prohibition supposedly thought to prevent underage exposition to alcohol, ends up extending itself to the adult population. The majority have not yet learnt to feel the power of the government their power, or its opinions their opinions.
When they do so, individual liberty will probably be as much exposed to invasion from the government, as it already is from public opinion. This implies an important threat to freedom, as it is based on an argument that is by itself insatiable. It allows not only to predict an uncontrollable expansion of the punitive administrative law, but additionally, -and here lies the novelty- that this expansion may focus on everyday patterns of coexistence or on unharmful behaviour, which have until now been solved directly through social interaction This leads to an undesirable proliferation of formal social control which reaches beggars, street vendors, vagabonds, groups of idle young people, and even any kind of gatherings for political, trade unionist or assertive reasons.
See Ordinance No. Although in Spain we are still far from this situation, a certain resemblance can be observed between the development of some legislative initiatives of United States of America concerning the smoking ban and the evolution of prohibition of selling and consuming alcoholic drinks in recent Spanish reforms, for example, it began with the prohibition of smoking in certain closed spaces, with the reasonable objective of preventing non-smokers from being exposed to health damages, and it ended with a total smoking ban, a socially widespread behaviour.
Moreover, prostitution has become, after a long period of tolerance, a field of punitive administrative intervention, arguing reasons such as the prevention of sexual exploitation, or simply the explicit need for the prevention of the exhibition of sexual conducts, in other words, what has been traditionally understood as maintaining a sense of decorum.
It is a clause that allows, euphemistically, the generic punishment of street prostitution. Its article
Fundamentos de derecho administrativo
By Olga Cabrero. She speaks Spanish, Catalan, English and French. She worked as a law librarian for several years at the legal department of some enterprises in issues involving international business and legislation research. Update to an article previously published on LLRX. Judicial power. Autonomous Communities.
Fundamentos de Derecho Administrativo. Del Derecho del poder al Derecho de los ciudadanos
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