“Serious crime and the requirement of respect for human rights in European democracies”

Proceedings of the Seminar organised by the Secretariat General of the Council of Europe in co-operation with Intercenter of Messina (Italy)

Taormina, 14-16 November 1996

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PREFACE

The Seminar on "Serious crime and the requirement of respect for human rights in European democracies" was held in Taormina (Italy) from 14 to 16 November 1996. It was organised by the Directorate of Human Rights of the Council of Europe in cooperation with Intercenter of Messina (Italy).

In order to further scientific knowledge of human rights, the Council of Europe has held for many years top level meetings which, depending on the case and issue under study, take the form of European colloquies, round tables or seminars held annually.

The Seminar dealt with the following themes:

1. Means and action to combat serious crime effectively while respecting human rights:

i. Legal means (penal and prison fields, police action, etc.);ii. Other means (crime prevention, social action - employment, young people -, urban

policy, etc.);

2. Increasing public awareness of the need to respect human rights when combatting serious crime:

i. Education;ii. Role and responsibility of the media.

This publication contains the Proceedings of the Seminar: official speeches made at the opening ceremony, reports and written communications, interventions, general report and list of participants.

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PROGRAMME

Thursday 14 November 1996

3.00 pm Opening Ceremony

Speeches by:

Mr Mario CHIOFALO, Vice-President of the Province of Messina

Mr Paolo PUCCI DI BENISICHI, Ambassador, Permanent Representative of Italy to the Council of Europe, Representative of the Government of Italy

Mr Claudio AMBROGETTI, Assessore all'urbanistica, Vice-Sindaco di Taormina

Mr Claudio ZANGHI, President of Intercenter

Mr Pierre-Henri IMBERT, Director of Human Rights at the Council of Europe, Representative of the Secretary General

4.00 pm First session

Chair:Mr Pier Luigi VIGNA, Procuratore nazionale antimafia, Florence (Italy)

Serious crime and the respect for human rights in European democratic societies

Introductory Report presented by Mr Mario CHIAVARIO, Professor of Criminal Procedure, Faculty of Law, University of Turin (Italy)

Discussion

Friday 15 November 1996

9.30 am Second session

Chair:Mr Jerzy JASKIERNIA, Member of the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe, Chancellory of the Sejm

Theme 1: Means and action to combat serious crime effectively while respecting human rights

i. legal means (penal and prison fields, police action, etc.)

Report presented by Mr Juraj KOLESAR, Professor of Law, Vice-Dean, Faculty of Law, Comenius University, Bratislava

Discussion

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3.00 pm Third session

Chair: Mr Carlo RUSSO, Judge at the European Court of Human Rights

ii. other means (crime prevention, social action -employment, young people -, urban policy, etc.)

Reports presented by Mrs Marie-Pierre de LIEGE, Judge, seconded to the Institute of the Arab World, Paris

and Mr Nick TILLEY, Professor, Faculty of Economics and Social Sciences, Nottingham-Trent University, Nottingham (United Kingdom)

Discussion

Saturday 16 November 1996

9.30 am Fourth session

Chair:Mr Régis de GOUTTES, Chairman of the Council of Europe Steering Committee for Human Rights, Avocat général près la Cour de Cassation française

Theme 2: Increasing public awareness of the need to respect human rights when combatting serious crime

i. education

Report presented by Mrs Vivien STERN, Secretary General, Penal Reform International, London

Discussion

ii. role and responsibility of the media

Report presented by Mr Max SNIJDERS, Professor, Specialist in the ethics of communication, Utrecht (Netherlands)

Discussion

3.00 pm Closing session

Chair:Mr Claudio ZANGHI, President of Intercenter

General Report presented by Mr Bronislaw GEREMEK, Chairman of the Parliamentary Commission on Foreign Affairs, Warsaw

_____

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Ten personalities were invited to present written communications on the different themes:Messrs. Francesco BRUNO (Rome), Ralph CRAWSHAW (Stratford St. Mary, United Kingdom), Michel de SALVIA (Strasbourg), Jean-Marc ELCHARDUS (Lyon, France), Vladimir EVINTOV (Kyiv), Hartmuth HORSTKOTTE (Berlin), Saulius KATUOKA (Vilnius), Shlomo Giora SHOHAM (Tel Aviv), Sergei SIROTKIN (Moscow) and Pier Luigi VIGNA (Florence).

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OPENING CEREMONY

Mr Mario CHIOFALO, Vice-President of the Province of Messina

I have great pleasure in welcoming the participants of this Seminar on behalf of the Province of Messina.

The body which I have the honour of representing here today has always been a keen advocate of all the cultural initiatives organised by Intercenter over the years. Through its efforts, our community has once again participated in a first-rate meeting on a problem of great concern in our country at the moment.

From the beginning, we have believed in the opportunities that such a competent body could and should create, just as we have always believed that it would reflect well on our town and on our province. We therefore note with great satisfaction that Intercenter is maintaining its reputation, and that of our community, through its continued meetings. This is why the Province of Messina is happy to be once again at the opening ceremony of an event of such importance, by virtue of both the programme's themes, which I would call strategic, and of the whole system of constitutional guarantees and strengthening of the means for protecting civil society.

It is not by chance that Intercenter felt that it would be appropriate to hold this Seminar in Italy, where more than anywhere else today there is discussion of how the problems of detention on remand should be tackled, what the role of the public prosecution office should be and how high a price local authorities and democracy should pay to eradicate crime at all levels. In my opinion, it is difficult to envisage effective means of combating serious crime when this scourge has taken root, where human dignity has already been crushed by unemployment which hits all social classes alike, and when the resulting poverty gives rise to growing social differences and, moreover, when all this happens in a country such as ours which until recently regarded unchecked consumption, given increasing prominence by the mass media, as a status symbol for the whole community.

The mass media and in particular State-run television, could be a considerable help to institutions by acting responsibly to prevent crime, instead of showing endless images of violence and the illusion of easy money as it currently does. But more important still, we must consider the crux of the problem as addressed by this Seminar, namely, how to find the delicate balance between combating crime and protecting fundamental human rights. This is a hard nut to crack and each and every one of us needs to help solve it. I feel sure that your efforts will lead to significant results for the police in our area of justice. Thank you and good luck.

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Mr Paolo PUCCI DI BENISICHI, Ambassador, Permanent Representative of Italy to the Council of Europe, Representative of the Government of Italy

I welcome this joint venture between the Council of Europe and the Messina International Centre for Sociological, Criminal and Prison Studies, since I believe that the Council has much to contribute to the subject of this seminar.

It has much to contribute as there are two reasons why the Council of Europe is interested in a debate on the fight against serious crime and respect for human rights: the first is horizontal and the second, vertical, or if you prefer operational.

The horizontal reason is because the Council of Europe has recently undergone considerable enlargement and now encompasses virtually all the geographical extent of Europe. With the accession of Russia, and very recently of Croatia, the Council of Europe - or rather its area of responsibility - now extends from Lisbon to Vladivostok, from Malta to Reykjavik. The Council's activities therefore cover the whole pan-European region, in the widest sense of the term. And since, as we shall see, since I am sure it will emerge from our discussions, the problem of combating the scourge of serious crime is one which unfortunately is a factor shared both by the oldest democracies on our continent and the new ones, the most opportune and appropriate way of looking in detail at the issue is undoubtedly in the context of the Council of Europe.

The second reason for the Council's interest in this in-depth consideration of the subject derives, I believe, from what I termed a vertical aspect. By that I mean that in the process of redefining the institutional architecture of Europe, increasing emphasis is being placed on the Council of Europe's specific responsibility, namely that of being the main organisation in Europe responsible first and foremost for the establishment and then the defence of pluralist democracies based on the respect of human rights and the rule of law.

So who is better placed than the Council of Europe to consider the interrelations between the fight against crime and the defence of human rights?

These interrelations are furthermore very close, without any incompatibility between the two, since, on the one hand, there could be no defence of human rights if there were no fight against crime, and in particular serious crime, which threatens them more than anything else. But on the other hand, there could be no fight against crime if it were not based on the respect ofhuman rights or based on the rule of law, otherwise this fight would not be lawful.

This is why I believe that the Council of Europe should be able to achieve much in this field.

Before concluding, I would like to refer to the death penalty since you will be well aware of the interest this represents for my authorities; it is a consistent feature of Italy's international policy in all international bodies. I would like to mention here that the death penalty is an issue in which the Council of Europe is particularly involved. It is involved on the legal level, since we have Protocol no. 6 to the European Convention on Human Rights which refers to it. There is also the considerable pressure brought to bear by the Parliamentary Assembly, and I would like to pay tribute to its commitment, and to the pressure it exerts on governments to bring about the effective and complete abolition of the death penalty. In addition, there is a third way in

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which it is involved: the political commitments entered into by the new Council of Europe member states: political - but by no means the least significant - commitments to abolish the death penalty. I think this is very important.

We cannot go so far as to say that the countries which still have the death penalty are clearly not democratic countries; we all know that there are major democracies on the other side of the Atlantic which still have this penalty, but we also believe that there is a European cultural aspect, a vision, a Weltanschauung in this respect, which leads us to the opinion that the death penalty goes against the conscience of our civilisation and, consequently, it is now time to encourage still further those countries which have not yet done so to do away with it, to abandon this deterrent, which is nothing of the sort, and which as Cesare Beccaria, our mentor in this matter, said is something which is neither necessary nor useful.

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Mr Claudio AMBROGETTI, Assessore all'urbanistica, Vice-Sindaco di Taormina

It is a great pleasure for me to welcome the participants in this Seminar which will discuss extremely important subjects, on behalf of the Mayor, who unfortunately is unable to be here today, the town of Taormina as well as myself.

I would particularly like to welcome the State Prosecutor Mr Vigna who has done us the honour of attending this seminar as his first official engagement. Mr Vigna will need all our encouragements to carry out his job successfully and, especially to do justice to his even more important commitment to combat crime.

I feel sure that this international Seminar will provide the opportunity for a useful exchange of ideas, solutions and plans between the representatives of different States. Among other things, it should be encourage cooperation and collaboration between various countries in their commitment to fight the Mafia and pool their experience. In a country such as ours, which is today in a state of great confusion and in which citizens are sometimes fearful of losing their guaranteed right to one of the greatest goods granted them - well, I believe that in this country and at this particular time southern Italy also needs to understand the reality. Fortunately, the time of State aid, begging for money and mayors going to Rome to ask for handouts has gone. Nowadays, mayors and local officials have to look to their own communities and areas to find the means to tell the whole nation that it is possible to find ways of reviving a region from within, that it is possible to create new jobs in Sicily and throughout southern Italy.

Obviously, there's nothing new in saying that the roots of organised crime lie in unemployment. Nevertheless, it is not true to say - as people frequently do - that new jobs cannot be created, that mayors and officials can do nothing and that we have to wait for the State to pass legislation. Let me give you a single example: here, in Taormina, we have transformed a municipal transport organisation into an organisation providing municipal services. This simple change has enabled us to provide the organisation with many services, which it did not have before and in doing so to create fifty to sixty new jobs. This shows how local communities can effectively find their own ways of creating new jobs and in this way destroy organised crime which draws on unemployment for its popularity and manpower.

Thank you once again for coming and may I wish your work every success. I would also like to thank Intercenter and the Secretary General of the Council of Europe for having chosen Taormina as the venue of such an important Seminar. I hope that these days spent in Taormina will generate positive and concrete results. Thank you.

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Mr Claudio ZANGHI, President of Intercenter, Messina

On behalf of the International Centre of Sociological, Penal and Penitentiary Research and Studies and for myself, I should like to begin by welcoming the Chairpersons, Rapporteurs, friends of the Council of Europe and all those participating in this colloquy to Sicily and to Taormina.

Some of you already know the International Centre of Messina, which is generally known by the shortened name of Intercenter, but for others this is perhaps your first contact with it, and I would therefore like to say a word or two about it.

As you know, the International Centre, INTERCENTER, was set up in Messina some years ago on the initiative of a group of specialists, particularly in the criminal field, with the backing of the scientific community and the local authorities.

Little by little, various initiatives have been brought to fruition in Italy and abroad, and their success has earned the Centre recognition in Italy and elsewhere. The Centre was granted legal personality by Decree of the President of the Republic and since then has been granted consultative status with the Council of Europe and the United Nations and has worked on several occasions with UNESCO, the European Union, the Red Cross and other international organisations.

The Centre's activities cover a vast area and include criminal law issues, prison systems, sociological problems and above all, of course, human rights. Please read our brochure if you would like to find out more.

In this context, we have organised numerous activities in conjunction with the Council of Europe. You could say that this has already become a tradition.

Last year, we met here in Taormina to discuss corruption and public authorities; in June of this year, we met in Messina to debate the role of state prosecution services; and now we are once more in Taormina, this time to discuss "Serious crime and the requirement of respect for human rights in European democracies".

This subject is of obvious interest to all Council of Europe member States and, I believe, of particular interest to the new European democracies which have undergone a radical transformation.

First of all, a political transformation, a move from totalitarian to democratic regimes. The role of the State in society has been considerably reduced and the rule of law has been established. Secondly, an economic transformation, a move from a system of state collectivism to a free or market economy. The change has been rapid and has not followed the usual economic cycles. Lastly, a social transformation with the decline of a State social welfare system and the consequent need to change mentalities and move from collective passivity to individual responsibility.

Unfortunately, these changes have been accompanied by a rise in crime. Organised crime is on the increase and is assuming international proportions. It seeks not only economic gain but also political influence and power.

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The decline of official ideologies has led to the disappearance of some values which have not been replaced by others. In this vacuum, easy money, wealth and power at any price threaten to become the new "values" to be sought and respected.

A sometimes similar situation exists in the old European democracies, although it has different causes.

Faced with this new crime wave, the State continues to be responsible for protecting its citizens from violence in all its forms and from insecurity. Exceptional measures have to be taken in a situation which could be termed "exceptional".

This is why there are plans to increase police powers, in particular by extending the period of detention on remand, increasing the powers of the state prosecution service in trials, instituting special conditions of detention (top-security prisons, solitary confinement and restrictions on outside contact) and introducing economic measures such as the sequestration and confiscation of illegally acquired goods and sometimes even more serious exceptional measures using the derogation provided for in Article 15 of the European Convention.

Even if these initiatives are justified by rising crime, we should not forget that our States are bound by the European Convention on Human Rights and are members of an international organisation which has made upholding the rule of law and respecting human rights essential conditions for admission and continued membership.

Fundamental requirements such as respect for life, physical integrity, individual freedom and so on have an absolute value.

The few exceptions which are sometimes accepted must always respect the principle of proportionality.

To be admissible, exceptions must be necessary in the context of a democratic society. According to the Court's case law, "necessity" implies an 'overwhelming social need', which must always be measured against the importance of the right that is to be limited.

While, an "exceptional" situation of rising crime needs to be addressed, respect for human rights remains a fundamental requirement in democratic societies.

Achieving a balance between these two, apparently opposing, aims is sometimes difficult but it should always be possible.

I think that the reports and discussions will help us see how such a balance can be achieved in practice. Thank you.

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Mr Pierre-Henri IMBERT, Director of Human Rights of the Council of Europe, Representative of the Secretary General

Speaking for the Secretary General of the Council of Europe and also for myself, I should like to welcome you all to this seminar on "Serious crime and the requirement of respect for human rights in European democracies", which the Council of Europe is organising in co-operation with Intercenter of Messina.

This meeting is being held at a time of mounting concern - and indeed alarm - in many European states over the increase in serious crime. Some states now have crimes on a scale and of a type unknown until very recently. In others, there are mass emotional reactions to the more appalling crimes, and public attitudes are hardening. Faith in the authorities' ability to stem violent crime and protect the individual has waned, giving way to dissatisfaction and scepticism.

In any democracy, the national authorities have a duty to protect the community and seek effective deterrents to serious crime. In doing this, however, they must respect human rights and fundamental freedoms fully. We must not underestimate the problems this twofold obligation causes them. Nor must we overlook the pressures they face from certain sectors (public opinion, government officials and elected representatives alike), all wanting them to do something radical, often in emotional reaction to some tragedy, instead of giving serious, careful thought to an effective programme for the reduction of serious crime.

Clearly, one of the key problems of criminal justice policy which European states have to solve is devising and implementing measures which work, but are also fully consistent with respect for human rights and fundamental freedoms. To give us a chance to look at the problem calmly and, above all, share the lessons we have learned from past experience, whether good or bad, we have thought it necessary to bring together a number of eminent crime policy specialists and human rights theorists and practitioners. That is the underlying idea and objective of this seminar.

* * *

Behind much of the talk about tough measures lies a basic human instinct: the thirst for revenge. And indeed, how can we fail to understand the feelings inspired in victims or their relatives by the perpetrators of appalling crimes?

And yet the basic raison d'être of criminal law, and law in general, is surely to channel this hunger for revenge, and aim at rational justice even - perhaps especially - in cases which provoke passionate public feeling? As Francis Bacon wrote, some 400 years ago: "Revenge is a kind of wild justice, which the more man's nature runs to, the more law ought to weed it out." Since he wrote those words, European societies have come a long way towards accepting that the law's job is to place a check on the desire for revenge: a process which we can summarise by saying that we have moved from vengeance to justice.

Perhaps the most impressive recent illustration was the march staged in Brussels by over 300,000 people in connection with investigation of the paedophile network uncovered in Belgium. The message of that dignified demonstration had nothing to do with revenge; what brought all those people into the streets was a profound desire for justice.

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Nevertheless, there is still a call in our societies for punitive measures which are not compatible with human rights. There are even politicians who rely on cost/benefit reasoning and seem prepared to sacrifice even human rights to what they regard as effective anti-crime measures.

This kind of thinking is pernicious, and I should like to make a few comments to show that it is wrong and may even be dangerous. I shall take the arrest and interrogation of people suspected of serious crimes as an example. Certain law enforcement agencies sometimes think it expedient, in the interests of justice, to cut corners, deny basic rights, and even maltreat or torture suspects. This is not just an affront to human dignity, and so to all of us - it also harms the interests of justice, robs the police of the respect which they ought to command and tends to turn the public against them.

Take another example: in some states, the death penalty is still seen by the public, or presented to the public, as an effective way of curbing serious crime. We shall probably be discussing this question at some length, so I shall content myself with simply pointing out, here again, how flawed this reasoning is. There is no proof that the death penalty is an effective deterrent to serious crime. On the contrary, there are signs that serious crime has not declined in countries which have brought it back or now use it more frequently. Some people even think that keeping the death penalty tends to make violence a commonplace in society.

* * *

More generally, and from a human rights standpoint, I am surprised that discussion of the effectiveness of repressive measures sometimes overlooks a basic premise of any democratic society founded on the rule of law. It is certainly possible, at least in the short term, that respect for human rights may put limits on effective state action. State action to combat crime is no exception to this. But we still have to decide what we mean by "effective state action".

I need not remind you that some of the vilest regimes Europe has known in this century were highly effective in achieving their aims - but this effectiveness went hand in hand with the most flagrant violations of human rights and the principles of the rule of law.

We must not forget that human rights derive much of their raison d'être precisely from the fact that they place certain checks on state action - not because their aim is to make such action ineffective, but because protecting individuals against the state necessarily affects the forms state action takes.

When extremist terrorism was rife in Germany in the 1970s, the European Court of Human Rights issued a warning, which is not without relevance to this seminar's topic. On the subject of legislation permitting secret surveillance to combat terrorism, the Court stressed the limits of contracting states' discretion:

"The Court, being aware of the danger such a law poses of undermining or even destroying democracy on the ground of defending it, affirms that the Contracting States may not, in the name of the struggle against espionage and terrorism, adopt whatever measures they deem appropriate." (Klass and Others judgment of 6/9/1978, A 28, paragraph 49)

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The curbs on state action to which the members of the Council of Europe have committed themselves are clear. The European Convention on Human Rights, its protocols and case-law, the European Convention on the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and the reports of the Committee for the Prevention of Torture, as well as a series of recommendations and resolutions by the Committee of Ministers, indicate what is and is not acceptable in relation to the arrest, trial, sentencing and treatment of people suspected of criminal offences, whatever those offences may be.

* * *

I hope I am making myself understood. I am fully aware that, at a time when the disturbing level of serious crime undoubtedly calls for a firm response, it is not enough simply to reiterate that certain measures are unacceptable. Human rights are not just an abstract imperative; they need to be lived and they need to be understood. The task here is a huge one, but it may be cases like this which make the existence of an international organisation really meaningful. The Council of Europe, at all events, is determined to help states to overcome the difficulties they face.

As I have said, the aim of this seminar is to exchange ideas, with a view to finding new approaches and forms of co-operation which will allow us to combat serious crime with due regard for human rights and fundamental freedoms. Without wishing to pre-empt the discussions, allow me to venture some ideas for concrete action.

The themes we shall be discussing in the next two and a half days should, I think, make it possible to identify the main components of a vast Council of Europe project on the general topic of "Human rights and prevention and control of serious crime". There might be two chief emphases, public opinion and the attitudes of professional groups being one, and crime policies the other.

On the first point, no effort should be spared to make our fellow citizens see why serious crime should be fought with due respect for human rights. There is clearly a need for action to make the professional groups most directly concerned (principally law enforcement agencies) and the public at large aware of the issues at stake in preventing and controlling serious crime, and of the need to tackle the problem in a way which upholds human rights and fundamental freedoms. For professionals, the focus would be on the human rights issues they may face in the course of their duties, particularly when dealing with people guilty or suspected of serious crimes, and also on the theoretical and practical training they need to handle specific situations.

Efforts for the general public should focus on promoting a "human rights culture" and ensuring that it becomes deeply ingrained in all our societies, with the help of human rights education in schools and elsewhere, and of general information campaigns. Special attention should be paid to bringing the message home to media circles, political leaders and, in general, all those with a significant influence on public opinion.

I would like to make one comment here. It is obviously vital to inform and form public opinion - but I have the impression that, in the field which concerns us here, public opinion itself is often used as an alibi. Political leaders cite it to excuse their failure to take action or, even worse, the questionable nature of the action they do take. Public opinion, we are told, is not ready for change. How do we know? And even if this is true, surely our political leaders have a duty promote a change in attitudes and sometimes to go beyond raw feelings, simply for the

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sake of upholding and preserving certain values? Here again, the death penalty is the best example. In the things politicians say, I sometimes discern a tendency to see this "easy" solution as a convenient tool for convincing the public that every effort is being made to curb crime. This is an extremely dangerous attitude, and it may in fact serve to conceal the absence of a serious, coherent crime policy. We should remember that crime policy also plays a part - for better or worse - in educating public opinion. Criminal codes are not just lists of offences and penalties. They also express the fundamental principles of the societies which frame them. This brings me to the second aspect of the project we are considering: what can we do to promote effective criminal laws and policies?

The answer here may lie in two directions which, for want of better terms, I shall call "scientific" and "practical".

The scientific side might cover: comparative research and studies on such issues as laws and policies to combat serious crime, including international co-operation against international networks; effective control measures, meeting both the need to combat crime and the need to respect human rights and fundamental freedoms; prison policies and procedures for "lifers"; remission and non-remission of sentences; remedial measures, including psychiatric and psychological assistance for violent criminals; effective reintegration policies, etc.

These studies and research might be backed by specialised seminars or workshops on specific questions which they raised. Guidelines for action and other measures might also come out of these meetings.

The practical side might be aimed at police and prison officers and at those more directly involved in framing national laws and policies. The basic idea would be to bring representatives of these various professions together to pool their experience and learn from others' successes in tackling serious crime in a way which respects human rights.

You should not conclude from this list of suggestions that nothing has been done so far. On the contrary, as several contributions to this seminar show, the Council of Europe has done a great deal in this field. The proposed project should make it possible to tackle certain subjects in greater depth, make the various activities hang together even better and, above all, bring the need to respect human rights more strongly to the fore. It would also make it easier to take account of other apparently subsidiary, but actually fundamental, policy areas. I would particularly emphasise the part played by social development and social cohesion in stopping crime from escalating. I am very pleased that one of this seminar's sessions is devoted to policy and action in this area, with a special emphasis on unemployment, the situation of young people and urban policies.

Indeed, the themes chosen for the various sessions make it clear that the Council of Europe favours a global approach. I would add that the Organisation is the ideal European forum for this, since its experience and work encompass all the relevant areas: human rights, legal co-operation, education and awareness-raising, and socio-economic policy.

* * *

I should like to end by expressing a dual wish. I sincerely hope, of course, that the discussions will be stimulating and also useful in identifying practical avenues of action. I hope, too, that this seminar will contribute to a wider awareness that the fight against serious crime

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and respect for human rights are not contradictory. These can and should be complementary causes - all the more so since both ultimately serve to protect values which are basic to our democratic societies: the dignity of human life, individual freedom and personal security.

Thank you.

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FIRST SESSION

Serious crime and the respect for human rights in European democratic societies

Introductory Report presented by Mr Mario CHIAVARIO, Professor of Criminal Procedure, Faculty of Law, University of Turin (Italy)

1. The safeguarding and promotion of pluralist democracy, to which the whole of Europe is now committed, are no longer safe from growing threats, such as increasingly violent crime that are very much present especially, but not exclusively, in the nascent democracies.

This not only causes formidable problems of law and order but also poses a constant threat to the proper functioning, and indeed the very survival, of democratic institutions. It is even suspected that important political and judicial decisions may have been directly influenced by criminal organisations. At all events, the weakness (be it genuine or presumed) of public institutions vis-à-vis crime gives rise to widespread disillusionment which, in turn, nurtures nostalgia for the "strong arm" of authoritarianism or dictatorship.

The widespread desire for more draconian penal policies, for sterner justice and harsher punishment at whatever the cost, therefore comes as no surprise. "Aim at the head!" is an exhortation that can scarcely be regarded as a mere metaphor, particularly when heard echoing down the corridors of police training colleges.

There is at present considerable pressure in favour of unscrupulous recourse to capital punishment. The abolition of the death penalty is being called into question by official declarations, in the very countries that made abolition a symbol of their return to democracy. Furthermore, politicians calling for the death penalty as a short-cut solution to new outbreaks of crime do not seem to exist only in certain countries - just think of the speech by the President of the United States on the day after the bombing in Atlanta.

2. Yet it is no coincidence that the rejection of the death penalty has become one of the cornerstones of European commitment to the safeguarding of human rights, with the result that accession to Protocol No 6 to the European Convention on Human Rights - which imposes a total ban on capital punishment in time of peace - is envisaged as one of the conditions for full participation in the new democratic Europe.

Allow me to borrow a famous phrase by Pascal to restate in a nutshell that this rejection -the irreversible manifestation of the finest aspects of mankind's conscience - is based on both the raisons de la raison (rationality) and on the (deeper) raisons du coeur (reasons of the heart). There is nothing I can add to this belief. Rather, we should ask ourselves whether our "no" -which is based on a consistent belief in the right to life (and more generally stated in the name of human rights as the foundation and aim of democracy) -may not sometimes lack real credibility, particularly when it is not accompanied by a major effort to find alternative solutions to the challenge of serious crime. We have nothing to say to the huge, angry crowds after the discovery of the pathetic remains of the victims of the "Marcinelle monster".

Nor is it wrong to say that a hidden and distorted form of death sentence is passed and executed every day by savage, unscrupulous criminals, and more often than not on innocent

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victims. And we are asked, not without a hint of controversy, to explain the attitude to it of those who claim to speak and act in the name of human rights.

The theory of Drittwirkung has had the merit of preparing fertile ground for discussions showing acute sensitivity to this type of problem. At this point, moreover, we should consider the contributions made by the "living" system of the European organs which monitor respect for human rights, in terms of a real awareness of the attacks which those rights suffer from both crime and the abuses and superior power of public authorities.

3. This immediately brings us to the clause in Article 15 of the European Convention on Human Rights which distinguishes between rights from which no derogation whatever may be made - in as far as they are secured by specific provisions of the Convention - and other rights and freedoms which are safeguarded but from which derogations may be made «to the extent strictly required by the exigencies of the situation», not only in time of war but also in «in time of... other public emergency threatening the life of the nation».

We might endeavour to wonder in greater depth about the reasons for the different attitudes taken by the various member states of the Council of Europe. For example, it transpires that Italy has never formally relied on this derogation, although it could - as far as terrorism and the mafia are concerned - defend its emergency legislation from most of the criticism levelled against it. It is, however, more important to note the care taken by the European Court of Human Rights (since its first judgment in the Lawless case) to ensure that the formal and material conditions required for the application of Article 15 are met, so that this very delicate tool continues to be a weapon that is used only in extreme circumstances.

Quite apart from any recourse to Article 15 - a derogation clause which is both general and exceptional - the question of serious crime has already been raised before the European Court, which has thus been led to examine in greater detail both the concept and the scope of certain rights and freedoms safeguarded by the Convention.

It could be said that the entire system of the Convention provides a basis and substance for this need for clarification, if it is true that «freedom and the rule of law» are not to be considered solely as limitations on the action of state bodies but more generally as the underlying principles of a generally applicable operational model. More surprising is the scarcity of references in European case-law to Article 17 of the Convention, the role of which appears remarkable in that it forbids any interpretation of human rights likely to encourage the misuse of these rights in order to destroy them. Indeed, engaging in activities and committing acts «aimed at the destruction of any of the rights and freedoms set forth... in the Convention» are not unrelated to serious crime. However, the caution and misgivings expressed about this clause -which has been accused of having served during the "cold war" as a means of ideological persecution - are understandable.

4. Whatever the case, the Court has not side-stepped the essential problems and has even gone as far as to examine possible restrictions on the very rights which Article 15, paragraph 2, includes in the list of rights from which no derogation may be made.

As regards the prohibition on torture and inhuman and degrading treatment, a very recent judgment (in the Ribitsch case) underlines very clearly that Article 3 of the Convention «prohibits in absolute terms» the practices in question «irrespective of the victim's conduct»; moreover, the said decision refers to a previous decision in which it was stated that «the

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requirements of an investigation and the undeniable difficulties inherent in the fight against crime cannot justify placing limits on the protection to be afforded in respect of the physical integrity of individuals».

As regards the right to life, the Court has taken account of the fact that Article 2 of the Convention does not exclude the possibility that the deliberate use of lethal force may be justified in cases where it is «absolutely necessary» to prevent certain kinds of crime. However, in a case concerning the use of such force by soldiers against persons suspected of preparing a terrorist attack (McCann and others judgement), the Court stressed that it was its duty to «carefully scrutinise... not only whether the force used... was strictly proportionate to the aim of protecting persons against unlawful violence but also whether the anti-terrorist operation was planned and controlled by the authorities so as to minimise, to the greatest extent possible, recourse to lethal force». In this particular case the Court held that there had been a violation of the Convention.

On the other hand, the Court has not yet had the opportunity to deal directly with the scope of Article 1 of Protocol No. 6 which forbids recourse to the death penalty in peacetime. This article was relied upon in an indirect and inconclusive manner in the reasons for the Soering judgment, by means of which the Court prevented the extradition of a person sentenced to death because there was not sufficient guarantee that he would not be subjected to "inhuman" treatment prior to execution. This judgment, which was "historical" (at that time), is also a clear indication of the restrictions imposed by a very special situation.

5. There are, with good reason, more direct and frequent reminders of the requirements of crime prevention in the European Court's decisions relating to Articles 8, 10 and 11 of the Convention. National security, as well as public safety, crime prevention and the authority of the judiciary, are mentioned among the public interests that may justify state measures as «necessary in a democratic society», although they restrict either the right to private life, home and correspondence or the right to freedom of expression, association or peaceful assembly.

In the case of rights which, according to the definition given in the Convention, are not limited by such general clauses, similar trends have developed (at least to a certain extent), eg, in particular the right to liberty and security of person (Article 5) and the right to a fair hearing and the characteristics and conduct of such a hearing (Article 6). As regards these rights, it is evident that the question of possible restrictions arises most directly and most frequently in relation to the requirements of fighting crime, since their field of application largely coincides with the fields of action of the police and judicial authorities. Furthermore, it would be fair to say that the clarification I referred to earlier has been achieved more in terms of adjusting the internal dynamics of these rights than by laying down external restrictions; so that the Court was led to "re-write", so to speak, the interpretation of the rights in question, in the sense that the conclusions drawn about their scope in "normal" situations are no longer necessarily the same where serious crime is concerned.

6. It is impossible here to go into all the aspects of this case-law (which has been illustrated and fully examined in a quite recent article by Mr de Salvia in Bulletin des droits de l'homme, 1996, no. 5).

The number and the quality of the dissenting opinions appended to each judgment bear witness to the importance of the issues raised and also to the intensity of the passions and tensions that they almost inevitably arouse. These strong feelings, moreover, are those that our

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societies experience whenever crime prevention is held up as the declared aim of legislation restricting certain rights and freedoms which are firmly rooted in (at least part of) our civic conscience. I have already mentioned Italian legislation, in particular the emergency legislation introduced after the murders of Giovanni Falcone and Paolo Borsellino, which affects inter aliathe law of criminal evidence and the special régime for prisoners who continue to be active members of certain criminal organisations. Nor can we forget that English legislation has substantially altered the rules governing the accused's right to silence, affecting one of the legal practices most representative of a certain human rights approach to criminal procedure. Or the recent French "anti-terrorist" legislation concerning foreigners illegally present on the territory, which was referred for review to the Constitutional Council which criticised certain aspects, including the right conferred on the police to carry out searches at night outside the normal hours.

It is also these same strong feelings which - once brought under control by underlying tolerance on both sides - have probably been one of the key factors in the survival of democracy in Europe during the darkest years of its history.

7. The European Court, which rules on actual violations of human rights and fundamental freedoms, systematically refuses to judge domestic laws as such. It has, however, sent out fairly clear signals to the law-makers and, more generally, to the state institutions involved in implementing crime prevention measures. With reference only to signals of a general kind, I would say that the Court both provides encouragement and delivers warnings.

It obviously, and above all, delivers warnings with regard to the inadmissibility of measures which fail to meet the conditions of necessity and proportionality; as well as the warning that certain limits should never be exceeded with regard to the very concept of each right.

There is a plethora of "condemnations" to choose from, and they are all the more interesting in that they are usually preceded by a statements accepting in advance that such and such a rule may be subject to extension, derogation or a less rigid interpretation when confronted with certain forms of crime. There have been such decisions on the confidentiality of prisoners' correspondence (Campbell and Messina judgments), on time-limits for police custody (Brogan and others judgment) or for detention on remand (Tomasi judgment), conditions for the legitimacy of custodial measures (Guzzardi and Ciulla judgments), on limitations on the right to question witnesses for the prosecution (Lüdi and Saïdï judgments), etc. The last-mentioned aspect is particularly significant because it is linked to the question of the use of information supplied by undercover officers and informers from criminal organisations (forms of aid which are as important as they are difficult to control).

8. In short, states are not given a free hand in the name of crime prevention. Nevertheless, how can we forget the encouragement - also deriving from this case-law - given to a penal policy which takes care not to confuse respect for the rights of the individual with the abstract and naive peddling of cheap illusions, exposing the least privileged members of society to the worst forms of criminality.

I would first like to draw attention to the essential value of a warning not to ride roughshod over the witness and the victim consider only the rights of the accused. In a case concerning drug trafficking, the recent Doorson judgment held that it may be justified to preserve the anonymity of a witness in certain situations, precisely because «principles of fair

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trial also require that in appropriate cases the interests of the defence are balanced against those of witnesses or victims called upon to testify», where «their life, liberty or security of person may be at stake». Is this a significant step towards the "statement of the rights of victims" (and "of witnesses") which ought to appear in the texts alongside the statement of the rights of the accused?

Secondly, the Court, without claiming that the accused should actively co-operate with the prosecuting and judicial authorities (cf. the recent Yagci and Sargin judgment) and while asserting that the state is responsible for ensuring that its courts are organised and proceedings conducted in such a way as to avoid delays that might infringe the accused's right to proceedings and detention of reasonable length, has also ruled that an accused person cannot complain of delays caused by the obstacles raised by his defence (see the Vendittelli judgment). Is this not a way of underlining that there is a world of difference between abuse and misuse of a right (in the instant case, a right of the defence) and the honest exercise of that same right, particularly as such abuses prevent the fulfilment of a requirement (the reasonable length of court proceedings), which exists to serve both the essential interest of the community and another fundamental right of the individual?

Similarly, certain precautionary measures taken by states accord fully with the European Court's case-law where the Court acknowledges, for example, that there are greater risks of an accused person absconding if he has links with a criminal organisation and that this must be taken into account in deciding whether to keep him in custody (Van der Tang judgment).

Finally, the Court has not hesitated on occasion to declare that certain measures are not in themselves open to criticism, although the means of applying them and the field of application may be debatable. A recent example is provided by the Welch judgment. Although the Court held that there had been a violation of Article 7 of the Convention with regard to a confiscation ordered on the basis of a retrospective law, it stressed that its finding «concerns only the retrospective application of the relevant legislation and does not call into question in any respect the powers of confiscation conferred on the courts as a weapon in the fight against the scourge of drug trafficking».

9. As a result, there are fixed points of reference which lose none of their relevance from one case to the next. In short, it could be said that these points of reference make it possible to draw the line between a punitive system that knows no limits and a penal policy that has the necessary weapons at its disposal but is nevertheless unwilling to renounce the principles of legality and respect for human rights.

It is not the aim of this report to discuss in detail the consequences of this distinction, in terms of penal and penitentiary policies, police action, etc, which are given the special attention and specific place on the programme of this Seminar that they deserve. I will therefore limit myself to a few general remarks.

10. First of all, I would say that a precondition for the effectiveness of such a penal policy is the awareness of the considerable diversity and complexity of the phenomena in the category of "serious crime". Any one-sided approach would lead us to stray from our goal. Including -among other things - pandering to the popular view which perceives only the most visible (and therefore not necessarily the worst) aspects and often demands measures which would deal only with the tip of the iceberg.

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Similarly, one cannot ignore the relationship between problems of "serious" crime and of "petty" crime - a relationship which is sometimes expressed in terms of organisation and frequently in terms of the attraction the former holds for the latter; the existence of this relationship is in any event perceived as unquestionable by the public, by whom petty crime is directly experienced through the threatening and intrusive presence of a person or group interfering with the normal conduct of daily life. Any alternative to imprisoning a number of persons living on the fringes of society is welcome, provided it does not result in outright impunity.

11. Another general factor that must be taken into account is the exponential growth of the financial and technological resources which enable those involved in serious crime to dissimulate their criminal conduct and, more generally, to alter, manipulate and fabricate evidence. Sexual abuse and the traffic in children organised through the sophisticated structures of the "Internet" have provided the latest shocking example.

This fact should have substantial consequences at several levels, beginning with the methods covering the definition of offences. The Strasbourg Convention on laundering, search, seizure and confiscation of the proceeds from crime seems to advocate courage, whereas a more coherent attitude on the part of European states is required in a different area, ie with regard to making the mere fact of belonging or providing support to a criminal organisation a crime. This, of course, is conditional on respect for the principles of legality and non-retroactivity; nor must the definition of a criminal offence go so far as to prohibit actions or omissions constituting the «normal exercise» of human rights (Engel judgment).

The application of new penalties relating to activities and property, the rules on limitation, updating the rules governing banking secrecy, greater specialisation and better national and international co-ordination between investigators are but a few of the other aspects concerned. The success already achieved in pursuit of related objectives shows that these are the best lines of action to follow. I would, however, also add that an effort must be made regarding thinking on criminal evidence; although it is necessary to restate the importance of a number of principles - beginning with the presumption of innocence - drawn up over centuries to protect individuals against the worst effects of the inquisitorial approach, it is also important not to place "doctrinal" obstacles in the way of legitimate undertakings to combat the abuse of those principles, which is doubtless easier now than is used to be.

12. The effectiveness of punitive justice, beginning with the search for evidence of crimes and their perpetrators, is beyond all doubt a key factor in the fight against crime. That effectiveness also depends on citizens' active support for the justice system - support such as to break down the barriers of silence which often make it impossible to detect offenders and, above all, such as to disprove the widely held opinion that the countervailing powers constituted by crime are more reliable than state institutions.

In order to gain that support, judicial institutions themselves also need a high degree of credibility. I have already mentioned the reasonable length of proceedings, which is a key aspect of such credibility - its importance is undeniable both from the viewpoint of the rights of the defence (and above all of the innocent defendant) and from the viewpoint of justice for the community itself, which otherwise all too easily falls prey to the attractions of summary justice. To this we should add the need for greater - and more transparent - endeavours to achieve real equality in the administration of justice, without which citizens will never co-operate with the judicial institutions in a consistent and sincere manner.

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Is it not true that the credibility of domestic legal systems - and consequently the chances of obtaining the entire population's full, active co-operation in the prevention of crime - are largely measured by the courts' capacity to take action against the corruption of senior officials of the State, and even of those in its own midst? On a quite different level, the capacity of the permanent organs of international criminal justice to enforce the fair but severe punishment of crimes against humanity is clearly an essential requirement, going beyond the steps taken - and also the controversies arising - from the Nuremberg trials to the courts set up by the UN to judge crimes committed in the former Yugoslav territories and in Rwanda. From a quite different viewpoint, it has already been observed that impunity is not the most appropriate solution to the problems of petty crime.

Finally, at the risk of appearing repetitive, we must always remember that most elementary requirement of equality between persons on trial, the need for effective legal counsel - and, in general, legal aid - to represent those who are most off both financially and socially. Indeed, it is in the name of such "effectiveness" that the European Court has handed down many of its judgments against respondent governments.

13. A modern democracy is under an obligation not only to discard the barbaric rituals of the death penalty and other inhuman forms of punishment, but also - one might even say this is its greatest duty - to ensure an effective and credible system of punitive justice, which is still an essential part of any strategy to combat crime.

We must, however, be increasingly conscious that such action, however essential, can only be second-best - a kind of sticking plaster that cannot deal with the underlying causes of disease, of which serious crime is one of the most alarming manifestations. We are concerned not only with the long-standing dualism "prevention-suppression"; the complexity of modern life confers new dimensions on this dualism, if only from the standpoint of organising controls over certain activities (notably the production and sale of arms or drugs).

Moreover, awareness of the purely subsidiary nature of criminal justice - ie the awareness that punitive measures to tackle crime are only partial, belated and insufficient solutions - helps us to concentrate on other possible solutions further "upstream". This seminar has the merit of giving a special place to the discussion of these aspects, and jurists can only listen and try to learn. They will see for themselves that the question of human rights is more firmly rooted than ever at the heart of these same problems "of context", in the form of the right to a family life, to education and to work and so forth, that is, in the form of rights which are no less essential than those that have been discussed in greater detail in this report. It must, however, be acknowledged that it is less easy to safeguard such rights through democratic forms alone, because they require the highest degree of positive action by public institutions and society as a whole so as to gather and distribute the material and spiritual resources needed to exercise them, while at the same time giving rise to some of the most acute forms of tension and interaction between the members of a national community and between one population and another.

Hence the importance, not only of ethical principles and policies concerning the family, youth, spatial planning, full employment, social welfare and so on but also of new problems and new prospects - for example - involving immigration and the right to asylum, especially when a large part of the population is convinced - rightly or wrongly - that certain phenomena have been aggravated by a massive influx of new ethnic groups into their territory: in fact an

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understandable demand for law and order and security is easily and dangerously interwoven with racism, although this may in itself, by way of reaction, bring about an unexpected return to pride in a nation's long-established traditions of welcoming the world's poor and persecuted. The recent events in France this summer - though far from being exceptional in Western Europe -were good illustrations of this phenomenon.

14. The effectiveness, credibility and subsidiary nature of criminal law are all factors essential to the success of everything our societies do to combat serious crime without infringing human rights. These are goals that can only be achieved if they receive the support of the moral forces in society, ie the force of formed and informed individual and collective conscience, so that we are capable of not giving up or losing our way under the often violent impact of first impressions. This is why the last part of the seminar, focusing on a discussion of the role and responsibility of the media, is so important.

Education and the media - in particular the latter - are always tempted to try the case before it goes to court; they become hawkers of partial and sometimes distorted images of crime, police inquiries and criminal proceedings. However, both are also indispensable sources of support for, and democratic control of, justice administered in the name of a free people. It is also their duty to ensure that the collective memory does not lose that sense of the message embodied in the various human rights texts that has inspired clandestine resistance to dictatorship.

A "united" Europe, at least in the (by no means definitively established) sense of a shared commitment to pluralist democracy, is the result obtained above all by virtue of "hoping against hope": thanks to the commitment of countless individuals, often paid for in bloodshed, and thanks to the long and bitter patience of peoples capable of resisting without self-annihilation, of struggling in silence most of the time, and also capable of overturning, by the force of conscience, oligarchies and tyrannies established in their countries. The long-hidden banner of human rights has sometimes been a source of strength and courage for these individuals and peoples. This is why legal experts and institutions which have made the protection and promotion of these rights one of the main aims of their discussions and their work, now bear a heavy responsibility. This banner must not become a mere decorative flag whose splendour pales and finally disappears when touched by the problems and tribulations of daily life.

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Written communications relating to the introductory report: serious crime and the respect for human rights in european democratic societies

Written communication by Mr Pier Luigi VIGNA, Procuratore nazionale antimafia, Florence (Italy)

Review of Italian institutions in the fields of criminal and procedural law, investigation and prison affairs for the prevention of organised crime

1. Foreword

The presence and activity of organised crime for almost thirty years in Italy have compelled our country to devise ever more effective methods of intervention for preventive and punitive action against criminal groups whether of the subversive or the mafia type, or the two combined.

It has been aptly observed that these crime factors are a kind of deadly cancer making deep inroads into the economic and social fabric and generating metastases capable of posing a direct threat to the very nucleus of the state (report on Italy, an introductory document presented by the Ministry of Justice at the World Conference on Organised Crime held in Naples in November 1994).

Current regulatory and organisational measures to counter organised crime have as their salient feature a multiple approach attuned to each developmental stage of crime. Methods range from prevention to punishment, taking in the various ways of dealing with crime through penalisation, judicial procedure and imprisonment.

These measures are characterised by their strong interconnection and interaction, so that each is to be understood in the broadest possible operational context. An example is the provision made for special prison treatment as a "reward" for mafia members who co-operate with justice. The "investigative productivity" of this method is closely correlated with the opposite procedure of sentencing mafia members very severely where they refuse to co-operate by taking an "intractable" attitude.

Despite the co-ordinated planning of the measures, the system seems open to further improvement having regard to the organisational and operational complexion of criminal associations, not to mention the obvious need to strengthen international co-operation arrangements in order to cope with supranational criminal phenomena.

2. A workable definition of organised crime

Strange though it may seem, the Italian system outlined above lacks a definition of organised crime.

However, the complex regulatory system under discussion has definitely grown out of the awareness that action should be targeted not at classes of bandits or criminals but against

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criminal associations with "pervasive" qualities of a political and economic kind, demonstrated by the ambition of bringing parts of the territory, with their residents, under a kind of "alternative sovereignty".

This is no doubt the crux of our organised crime, according to the concept evolved by crime policy and criminal sociology specialists.

Close examination of the applicable law - although it does not embody any definition of the phenomenon - nevertheless shows that the legislator contemplated three categories of organised crime.

The first consists of offences within the jurisdiction of the National Anti-Mafia Prosecution Authority and its district offices, and comprises offences bearing the mafia stamp e.g. mafia-style criminal association, conspiracy to commit drug offences, kidnapping for the purpose of extortion and in general all offences perpetrated by mafia methods or to abet the activity of mafia associations (see Article 51.3-bis, Code of Criminal Procedure).

The second category is made up of subversive terrorist crimes (massacres, attacks, forming armed gangs...) and the offence of non-mafia criminal association.

Where investigations concerning these offences are not co-ordinated, the General Prosecution Department attached to the Court of Appeal can take over by subrogation to the State Prosecutor who has jurisdiction according to the rules normally applicable (Article 372.1-bis Code of Criminal Procedure).

The third category comprises a range of offences in which organised gangs of criminals may be instrumental, while not necessarily identifiable as the instigators (e.g. armed robbery, extortion, firearms offences or drug trafficking).

The differing typology presupposes that these three categories receive different treatment. A kind of "diminishing force" is thus applied depending whether the crimes dealt with are mafia crimes or organised crimes in general. For instance, preventive interceptions and searches of entire buildings or building complexes (Article 25-bis and ter, Legislative Decree 306/92) are allowed only for mafia offences, and the various grades of strict confinement are applied according to whether the prisoners were convicted of mafia offences or other acts of organised crime (Article 4-bis, Law 354/1975).

3. New crimes relating to terrorism and subversion, and means of protecting persons who co-operate with justice

The action of terrorist organisations has prompted the legislator to create new classes of offences, necessitated by the gaps which would otherwise have appeared in the criminal justice system. Indeed, in 1978 - after Mr Moro's illegal confinement - such acts for purposes of terrorism and subversion were defined as specific offences, as was conspiracy for terrorist ends or to subvert the constitutional order at the end of 1979 (Article 270-bis Penal Code), together with attacks perpetrated with the same aim (Article 280 Penal Code).

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In addition, a specific aggravating circumstance has been introduced in respect of crimes committed with terrorist intent, but also a special mitigating circumstance for anyone who co-operates with the judicial and police authorities in connection with such crimes.

This is the first legal policy move towards developing procedural collaboration or regulations encouraging the "pentiti" phenomenon.

However, it should immediately be demurred that this term, with its journalistic usage, gives a distorted idea of the phenomenon by imparting an ethical connotation which is somewhat alien to the principles of "reward". These are applied regardless of the subject's inner motivation and rely rather on objective factors ie removal from the criminal group and assistance in the investigations.

The "reward" technique has also been used occasionally in cases of kidnapping for extortion (under Law No. 894 of 30.12.1980) and drug offences (Articles 73 and 74 TUS -Consolidated Drugs Act), up to 1991 when the "two-track" method tested on terrorist crime was applied to mafia offences through the introduction of a special aggravating circumstance for the perpetrator and a mitigating circumstance for anyone co-operating in the relevant investigations (Article 7, Legislative Decree 152/91).

Subsequently, Legislative Decree No. 8 of 15 January 1991, enacted as Law No. 82 of 15 March 1991, introduced a body of provisions to protect persons co-operating with the justice authorities; previously, such protection depended on the initiative of the investigating authorities, somewhat sporadic and disorganised.

Under the new system, persons facing a certain risk because of statements made for the purpose of co-operation are eligible for a special programme of express protection at the proposal of the State Prosecutor conducting the investigations. The programme is applied by a central commission answerable to the Ministry of the Interior, headed by an Under-Secretary of State and made up of magistrates and police officers. Admission to the special protection programme secures personal security and financial assistance measures in addition to special conditions of imprisonment, viz. unrestricted applicability of non-custodial measures (e.g. probation under the supervision of the Welfare Service, house arrest, or prison leave as a reward).

A central service (with a number of local units at present) conducts the special protection programme.

At present, over 7,000 persons (collaborators and their families) benefit from the protection programmes arrangement introduced in 1991. It is precisely this large number of beneficiaries which is liable to cause breakdown, so much so that possible reforms are under consideration.

In order to stimulate collaboration, there is further provision for "investigatoryinterviews" with prisoners which can be conducted either by the State Prosecutor responsible for anti-mafia measures or by suitably qualified police officers.

In contrast to the "privileged" arrangements for collaborators, there are "stringent" ones for obdurate mafia stalwarts who not only receive an extended sentence for the crimes committed but may also be subjected to conditions of imprisonment which differ from those

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applicable to ordinary prisoners, with their committal to special prisons or special divisions where appropriate restrictions are placed on their contacts with the outside world.

This is the outcome of practical experience proving that the ringleaders used to take advantage of visits or correspondence to continue commanding their gangs from inside the prison.

4. Adjustments made to criminal procedure and investigating authorities

In the wake of the Capaci massacre, regulations were issued (Legislative Decree 306/92) to enable the criminal procedure system to deal more effectively with perpetrators of highly criminal offences.

Summary of innovations:

- arrangements for use of records of investigation in court proceedings and more flexible transfer of evidence between inter-related proceedings;

- protection of the confidentiality of sources of evidence;

- re-definition of the object, methods and timing of investigation.

These moves have come under criticism from investigators and defence lawyers on the ground that they jeopardise certain basic principles of the adversarial proceedings which have obtained in Italy since October 1989.

The well-foundedness of the criticisms must be acknowledged but it is also indisputable that the innovations have ruled out the possibility of pre-trial interference by criminal organisations which would disrupt the normal conduct of investigations, and that they enable the prosecution departments to carry out secret enquiries (into mafia crimes) at a stage which is most important having regard to the demands of these special procedures.

In 1991 the state authorities also reinforced the investigation structures.

That year saw the introduction (under Article 12 of Legislative Decree No. 152/1991) of centralised services in the various police forces (SCO for the state police, ROD for the Carabinieri, SCICO for the Guardia di Finanza) and, in the closing months of 1991, the ANTI-MAFIA INVESTIGATION DIRECTORATE (staffed by members of all police forces concerned), the National Anti-Mafia Prosecution Authority and corresponding district authorities.

The powers subsequently assigned to these investigation authorities include:

- interceptions (in criminal society too) for the purpose of "preventive detection and intelligence concerning mafia crimes";

- under-cover operations (with the aim of infiltrating the gang) concerning drugs, arms and money laundering;

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- monitored operations (in order to register the developments of criminal procedure), also concerning extortion, kidnapping for extortion, and usury;

- use of information from the Security Services, whose information activity is currently directed at organised criminal groups threatening the institutions and the well-being of civil society (Article 2.1, Legislative Decree 315/1991).

5. Further substantive law developments

The adaptation to mafia criminal activity of the Penal Code provision (Article 416) defining criminal association as a punishable offence raised a further need which was met in September 1992 by Law No. 646, enacted that year. It was necessary to make provision for the offence of criminal association of a mafia nature (Article 416-bis of the Penal Code) relying on the use of violence committed or instigated by the criminal group and on tacit complicity and intimidation in order to control economic activities (government contracts in particular) or to interfere with the free exercise of the right to vote. The same purpose is served by Article 416-ter of the Penal Code (in addition to Legislative Decree No. 306/1992) which makes it a punishable offence to promise votes for payment.

The new definitions (introduced in August 1993 by Law No. 328) of the crimes of money laundering and re-use of resources derived from crime, and also the arrangements for disclosure of suspect banking transactions introduced in May 1992, are of equal significance for fighting organised crime.

Lastly, in March 1996 the offence of usury was revised under Law No. 108.

In order to stamp out this form of crime, action was also taken on the prevention side by establishing a special fund, and concerning assistance to usury victims (comparable to that prescribed for extortion victims) by making appropriate financial provision.

In conclusion, considering the widely held opinion that confiscation of mafia assets is an indispensable step for effective - and possibly final - repression of the gangs, a positive assessment must be made of the clause (Article 12-sexies of Legislative Decree 306/92 supplementing Law 501/94) whereby it is possible to attach (during court proceedings) and seize (upon conviction) all "suspicious" assets where they are discovered to be unjustified and excessive by comparison with the declared income or occupation of the person accused or convicted of mafia offences.

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Written communication by Mr Sergei SIROTKIN, Former Deputy Chairman of the President's Commission for Human Rights, Director, Moscow Legal Resource Centre, Moscow

Tension between the fight against serious crime in countries in transition and the requirement of respect for human rights

“Sure! We are prepared to violate human rights in case one of these humans should turn out to be a criminal.”Sergei Stepashin, Chief of the Federal Counter-intelligence Service (former KGB)

The problem under discussion in our seminar, “Serious crime and the requirement of respect for human rights in European democracies” postulates several possible approaches. On the one hand the accent could be laid on purely criminological aspects; but there is then a risk that our seminar will resemble some international congress on the fight against the criminality. Alternatively we could concentrate on the human rights aspects of the problem and how best to guarantee them – in which case, our seminar in this wonderful town will be just one more meeting, useful and interesting but lacking in innovation.

In my opinion we have here a chance to add something new to discussions of this important and topical problem.

The problem of the struggle against criminality is widely discussed in Europe and all over the world; and not less has been said on the questions of respect for human rights. This is justified, because one can see a rapid growth in the problem on an international scale. Strictly speaking, we are dealing with two sides of one and the same global problem - that is a problem of stability and security in the world.

Crime is clearly a threat to this security, just as, in its turn, respect for human rights is a precondition for it. Much has been said about both topics. But less has been said on the link between two, that important connection binding the fight against criminality and respect for human rights.

Russian legal writings contain some brief mentions of the problem, and there are a few articles devoted to this particular aspect. I intend to examine further Russian practice in this area. On the whole, it is reasonably true to say that Russia has not mastered the problem, either in theory or in practice. It is this which encourages me to view the question in a wider context than I had at first intended.

My approach is as follows:

- firstly, I should like to touch briefly on the necessity of taking a global view of the fight against crime together with respect for human rights. This will establish the basis for what follows;

- secondly, I shall look at aspects of this problem as they affect all societies in transition. This discussion will necessarily be restricted to only a few examples;

- lastly, I shall examine the role that international instruments have to play.

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The fight against crime is a function of the State. Traditionally, human rights are regarded as concerning the relations between an individual and the State; but the fight against crime is part of a legal system designed to protect and promote human rights. In this sense, criminality poses a real threat to human rights.

Criminality is on the increase, and it should be noted that with the growth of serious and organised crime, involving the corruption of the machinery of State, terrorism is one of its principal tools.

In recent years the issue has become more problematic, since serious crime is now organised more and more on a transnational basis, posing threats not only to national security but to the world democratic order.

The most dangerous forms of crime, therefore, are organised crime and terrorism.

Criminal law measures alone cannot suffice to tackle this form of criminality. Action should also be taken in the administrative and economic fields. Nevertheless, the criminal law is still the main weapon, which can lead to special complications.

The specific nature of this criminality requires special measures to combat it. Such measures may encroach upon other social values, such as human rights. I have in mind actions such as the infiltration of criminal associations, the use of agents provocateurs, inducements offered to members of criminal organisations in exchange for co-operation with the police, controls on the circulation of goods and people, wire-tapping, etc.

The need for such measures is obvious; on the other hand, they pose a clear threat to human rights - including the right to peaceful enjoyment of possessions, the right to privacy, the right to inviolability of the person and other basic rights and freedoms.

So we are faced with a contradiction: security of the person is an absolute social value, and guaranteeing this security requires that criminality should be suppressed. Human rights are based on the concept of security of the person; but measures taken to combat criminality may themselves be a threat to human rights.

To be precise, they may become a threat if the situation arises where restrictions on civil rights are a permissible, even essential element in maintaining the democratic legal order.

The competition of these values, and the indirect character of their interdependence, are obvious.

All analogies have their weaknesses, but nevertheless I should like to draw one here: the situation resembles a well-known dilemma, that of whether it is permissible to allow industrial development at the expense of damage to the environment. There is no simple solution. Here, too, we are confronted by a conflict of interests, and the only answer is to aim at a compromise solution which limits industrial development, thus minimising ecological damage.

In the case of human rights, the compromise takes the following form:

- establishment of a legal framework restricting human rights where absolutely necessary for an effective fight against crime;

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- setting up of a legal control mechanism covering those measures which could infringe human rights;

- creation of institutions to ensure the defence and restoration of the right violated.

The above concerns a stable and democratic regime, but even in these circumstances there is no simple, once and for all solution. Abuses may come about, for example, because of insufficient controls on administrative practices, which may not meet legal norms.

The opposing interests mean that potential, and sometimes actual, conflict cannot be avoided. This is true, I repeat, even in a democratic state governed by the rule of law.

I would not presume to pronounce on general western views of the fight against crime and the protection of human rights. But these ideas and their development have met with some support in Russia.

That was natural only a few years ago, in a Russia where the liberal, western-oriented intelligentsia made a fetish of everything related to the market economy and pluralist democracy. It was an epoch when it seemed that the solution to all our economic and social problems would be found by the simple conversion of Russia to a free-market economy. In the same way, respect for human rights was considered as a solution to all social problems. The possible clash of values, the fact that there was a price to pay for freedom and democracy, was not realised for a long time.

Today comes the realisation. Sometimes it assumes extremely painful and nihilistic forms. The pain is all the sharper because in Russia the conflict defined above has taken on an extreme character.

Earlier on I tried to summarise my approach to the problem “Serious crime and the respect for human rights” as a whole. In the societies in transition, however, the problem takes on new features. Factors common to these societies ensure that the problem takes on a particular aspect which is peculiar to them.

I am speaking about Russia and the Russian experience. Although I believe that all the states in transition are confronted with the same problems, in Russia the conflict is all the more acute and intense because of two circumstances:

- firstly, the difficulties caused by factors inherited from the communist totalitarian period are greater in Russia than in most other eastern European states;

- secondly, despite the costs, both financially and otherwise, Russia has made more progress in modernising than in other post-Soviet republics. Strictly speaking, some of the CIS countries are not yet even in the transition stage.

I'd like to touch on what, to my mind, are the most important and obvious circumstances and reasons why the situation has developed in such a way in the post-Soviet republics at the beginning of the transitional period. These are: (1) an increase in crime during the period when the totalitarian regimes were collapsing; and (2) the role and place of the legal mechanisms best placed to minimise the conflict.

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1. As a matter of principle, a set of common guidelines should be worked out to cover the protection of human rights within the context of the fight against crime during the specific conditions of transition.

The essence of totalitarian regimes is complete control by the State, penetrating into all aspects of the life of individuals. The USSR had a planned economy, and there were considerable restrictions on personal property. It was extremely difficult to conceal any property or enterprise in private ownership.

Society contained within itself latent social and national unrest which in other circumstances might have led to terrorism and major crime; the society was as if frozen.

Self-regulation was ineffective. What did work was the Party's administrative mechanisms, distorted though they were. Different conflicts were not solved on the basis of the concordance of interests, but they were solved; on the whole, it worked, society was managed. This is the positive aspect.

On the negative side, only lip-service was paid to the idea of privacy, confidentiality of communications, human rights. It was all a fiction. The police (militia), the state security committee, the KGB and all the apparatus of state were considered above the law. All social activity was under close scrutiny. The organs of state had a total view of what went on in society. This had the effect of facilitating the fight against crime, but at the expense of human rights, which were entirely disregarded. Criminality was therefore able to be kept below western levels.

It is a sad, but recognised, fact that the tighter the control on the individual and the greater the repression, the easier it is to achieve certain goals of undoubted social value.

This is of course a simplified picture of the situation in the former Soviet Union. Crime, including organised crime, did exist, but it took peculiar forms. A clandestine operation for making men's shirts was regarded as an economic crime. The impossibility of concealing such an enterprise from the eyes of the control agencies led to illegal arrangements with corrupt state officials. Corruption grew rife. A whole section of the economy, created to make up for the deficiencies of the state economy, was in fact illegal. This was the so-called black economy. But I digress.

The accession to power of Mikhail Gorbachev, together with widespread political changes at the beginning of the 1990s, acted as a catalyst for the dismantling of the totalitarian regime. The “frozen” society began to thaw, affecting both the economy and all aspects of social life.

The historical and progressive character of this process is indisputable; but in reality, in Russia it took place and is continuing in abnormal, very painful ways.

I shall not suggest here possible models for implementing change. But I should like to stress that in Russia there was an almost complete collapse of the totalitarian system, and an absence of any self-regulating mechanism in society, based on market, democratic and legal principles. Thus, changes in Russian society took on a spontaneous, unregulated and uncontrolled character.

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It is clear that a major role in the fight against organised crime is played, not by the criminal law, but by administrative and economic preventive measures. International conferences on the fight against criminality have repeatedly stressed this fact.

In a society in transition, economic, social, and even socio-psychological conditions, combine to produce a growth in criminality. In Russia, the process of redistribution of ownership and power was followed by a rise in crime levels, and in particular in major crime.

A sharp upturn in crime during a period of transition is therefore a fact to be expected. The fight against crime therefore becomes of prime concern. Further elements also enter into play.

Society is frightened by rising crime, and by the types of crime portrayed by the media. Political leaders have complied with public pressure to “get tough”.

The potential is there for a clash of interests. Human rights are under threat. If this threat becomes a reality, the question whether or not a balance can be struck between the repression of crime and the respect for human rights depends on several factors.

First and foremost, legal mechanisms must be set up to regulate the conflict of interests. This is the single most important point to be kept in mind when considering legal problems in the post-Soviet republics.

2. Under a totalitarian regime the law has a very different function from that which it occupies in democratic states governed by the rule of law. The law plays a purely instrumental role, and has no independent social value. It is simpler to illustrate it graphically:

The State

The Law

The Individual

In this system, I repeat, the law has only a nominal function. It is an instrument by which the government manages society. Relations are vertical, and each element is subordinate to the one above it. State apparatus is not restrained by the law. The law does not protect an individual from the arbitrary exercise of power. The essence of legal reform in the post-Soviet societies as a necessary element of transition to democracy requires a change in the relationships linking “The Law”, “The State” and “The Individual”.

In a state governed by the rule of law the relationship looks like this:

The Law

The State The Individual

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The law is not merely an instrument in the hands of the State. It is a mechanism of the State which directly affects the citizens, but at the same time it protects them from arbitrary rule by the State. It helps to find a balance between the interests of the State and the interests of a person or group of individuals.

This broad diagram can be applied to the subject under discussion today. It is possible, using legal controls, to strike a balance between the requirements of the fight against crime and those of respect for human rights. I have already mentioned the components which are necessary for such a balance.

In totalitarian regimes the law does not operate like this, and so there is no balance between the different interests.

An unstable, unbalanced and intermediate situation in the relationship “Law-State-Individual” is characteristic of societies in transition. The police, the state security committee (KGB or whatever it may be called) and the Prokuratura cannot act according to their internal procedures without legal control; the law is no longer an instrument determining merely hierarchical relations, but something which law-enforcement agencies are obliged, to a certain extent, to take into account.

On the other hand, the whole system is very unstable, and still a far cry from the standards expected in a state governed by the rule of law. In addition to those points already mentioned, there are a number of other weaknesses:

- the quality of the new legislation, which represents a step in the right direction, but still does not completely satisfy the requirements of respect for human rights;

- a lack of democratic tradition in observing the laws (including on the part of state bodies and state employees);

- the weakness and lack of authority of the judiciary and of the control mechanisms in general.

To sum up, I am referring to the insufficiency of those legal mechanisms that in a democratic society establish an acceptable compromise between the needs of the fight against crime and the respect for human rights.

Finally, I must refer to another factor. The values of human rights and liberalism are in fact perceived neither by the mass consciousness nor by the political élite. I have already spoken of the paradoxical evolution of the liberal consciousness in Russia. Now it is being reflected on the political level. The inevitable populism of the politicians of the transition period reflects precisely the fluctuations and evolution of the mass consciousness.

From 1989 to 1993 the problem of human rights was to the fore in the phraseology and slogans of political leaders. From about the end of 1993 we begin to see political slogans becoming more militant and rigid with regard to the fight against crime, with terms like “the iron hand”, “restoring order”, etc. Human rights are no longer mentioned, or figure only marginally in political campaigning. All this is reflected in actual practice.

This is something I wish particularly to emphasise.

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All this is not the result of purely theoretical speculations. My conclusion is based primarily on an analysis of the political and legal development in Russia during the last six years. The lack of balance between the fight against crime and the demands of respect for human rights, the pendulum “liberalism/anti-liberalism”, “human rights/fighting crime at any cost” - all this I see as an obvious characteristic of the transition period.

Here are two illustrations.

-The death penalty

1991:59 persons executed, including some sentenced before 1991.1992:18 executions, a further 54 not carried out.1993:I have no figures, but the statistics resemble those of 1992.1994:19 executions.1995:86 executions.1996:No statistical data as yet. But according to the chairperson of the president's commission

responsible for commuting death sentences, none of the 50 appeals supported by the liberally minded commission has been approved.

- Developments in the legislation on fighting crime which directly affect human rights

The years 1990 to 1993, with all their contradictions, were still the time when the legal status of the law enforcement agencies was determined, and when minimal guarantees for the protection of human rights were set up.

In December 1993 the new Constitution of the Russian Federation was passed, securing essential rights and freedoms to internationally accepted standards. However, the legislation relating to the law enforcement agencies was not all in conformity with the constitution. Let me give the most outstanding example.

On 14 June 1994 the President of the Russian Federation signed a decree on combating banditry and organised crime. The decree permitted imprisonment of up to 30 days without a charge being made; failed to protect the confidentiality of financial and commercial transactions; enlarged the use of search operations in producing evidence before the courts, and so on. All of these measures ran counter to the constitution and the criminal code - and certainly were in violation of the principles of human rights protection. And this is not only my opinion, but is shared by the State Duma and practically unanimously by the professional legal community.

The president's commission on human rights - on which I was then serving as deputy chairman - wrote to the president protesting about the possible and even inevitable violations of human rights implied by this decree. We asked the president to repeal it. Instead, the commission was given some extra powers to control its implementation. We were thus unable to reduce its negative consequences, but the information we received proved that our concerns about the violation of human rights were not groundless.

In 1994 began the intensive process of passing amendments to the laws of 1990 to 1993 pertaining to this sphere. Generally speaking, these amendments extended the authority of the law enforcement organs without creating parallel control mechanisms. Among those laws affected were those covering search procedures, the Federal Security, some amendments to the criminal code, etc.

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This tendency seems to be general, and I could give more examples; but I feel it is time to pass on to my conclusions.

So, by objective standards we see a dramatic increase in crime taking place in the societies undergoing transition. The criminal policy of the State is losing its political orientation, but on the whole becomes more repressive. At the same time, there are no functioning legal mechanisms which are able, if not to remove, at least to lessen tension in the dichotomy between the fight against crime and the protection of human rights.

A tension between the needs of fight against crime and the demand to respect human rights has no permanent sharpness. This conflict has a waving character. The successful development into true democracies of the countries in transition might permit the establishment and assessment of the legal mechanisms necessary to guarantee a balance between the two sides. But this is a controversial process, and not as rapid as we should like to see.

Finally, I'd like to touch on the possible role to be played by the Council of Europe's mechanisms.

It is universally recognised that, with the exception of some non-derogable rights, it is sometimes necessary to place restrictions on human rights because of other social considerations. A clause covering this exists also in the Constitution of the Russian Federation. But the governing power may not impose these restrictions arbitrarily. The Council of Europe has shown, through the case-law of the European Commission and European Court of Human Rights, that the degree of restrictions, and the circumstances in which they may be exercised, are precisely determined. According to the European Convention on Human Rights, restricting human rights and freedoms is possible only "in accordance with a procedure prescribed by law and where necessary in a democratic society". In some particular cases the Commission and the Court have established criteria by which these values may be judged.

As yet there are no reliable mechanisms or instruments in the Russian legal system which are able to use the Council of Europe's criteria to judge restrictions on human rights which may be imposed by legal or quasi-legal means.

Theoretically, this should be a function of the Constitutional Court; but very often this court's activities are limited to what is, to my mind, a purely formal attitude to the letter and spirit of the constitution.

I should like to cite the Chechen case, where the court confined itself to the question of whether the president was competent to issue decrees, decrees which led ultimately to the military action in Chechnya. There proved to be no legal check on questions of proportion and whether the measures applied were “necessary in a democratic society”.

In this sense, the Council of Europe's expertise and standards concerning human rights can fill the gaps in the legal systems of countries in transition, and so can be of great use in countering the difficulties experienced in striking a balance between the control of crime and the respect for human rights.

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Written communication by Mr Michel de SALVIA1, Deputy Secretary to the European Commission of Human Rights, Council of Europe, Strasbourg

1. From time immemorial, human societies have studied the question of how to react to criminal behaviour.

In the very earliest days of our civilisation, such behaviour was regarded more as a personal attack on the victim than as an assault on the social order which should reign in the community.

In the most developed societies, the response was generally proportionate to the injury caused: an eye for an eye, a tooth for a tooth. Then came the possibility of redress in the form of financial compensation, where the victim agreed to this.

In other societies, on the other hand, it was left up to the victim or their clan as to how to respond. In reality, this was a more or less disguised form of revenge, in which there was no room for any attempt to strike some balance between injury and punishment. Alas, far from being extinct, these practices can still be found today in the criminal-law systems of certain countries, in the face of which the international community appears impotent or even resigned.

2. In western societies, and particularly in those countries which are now members of the Council of Europe, the criminal law is based on the great principles of the rule of law and respect for human dignity.

As Cesare Beccaria says in Dei delitti e delle pene (Of crimes and punishments), a work which contains the fundamental principles on which our modern criminal-law systems are based, justice simply means "the necessary link between individual interests". It follows that "any penalty which goes beyond what is necessary to maintain this link is inherently unjust".

Any form of penalty is regrettable. To quote Cesare Beccaria's conclusion, if a sentence is not to be an act of violence against an individual, it "must be, essentially, a matter of public knowledge, prompt, necessary, as light as possible in the circumstances, proportionate to the offences and prescribed by law". Cesare Beccaria's passionate pleas in favour of the presumption of innocence, against torture - which he describes as a veritable act of cruelty - and against the death penalty - neither effective nor necessary - are today enshrined in a body of international conventions and European case-law which have provided a framework for the strengthening of solidarity between nations with a common heritage of ideals. This means that any country which departed from a significant number of the principles referred to above could not be considered "civilised", in the European sense of the word.

3. Obviously, a person who breaches the rules of a democratic society will not find any justification for their actions in the European Convention on Human Rights, unless such actions constitute the legitimate exercise of a right or freedom which the Convention protects.

The difference between ordinary crime, i.e. an act by one or several individuals acting in isolation, and organised crime, which involves a deliberate intent to subvert values and

1 The opinions expressed are the author's own.

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constitutes a continuing act of revolt against the rules of democratic society, is more than a question of degree. Organised crime attacks the very principles of legality and the rule of law; it shatters the citizen's confidence in the social order. By the term "organised crime", I mean the most sophisticated, and thus most dangerous forms of systematic lawlessness, as well as violence used as a means of political struggle, as in the case of terrorist violence. This large-scale criminal phenomenon is not merely a scourge of society, but often manifests itself in dangerous acts, frequently involving the loss of human life. It may also lead democratic institutions themselves astray as they attempt to deal with it, by obliging the national legislature to adopt extreme and restrictive legal provisions whose aim is to combat this criminal phenomenon but which may at the same time weaken protection of the freedoms traditionally enjoyed by the citizens of our countries. The legal history of a number of countries which have been confronted with particularly serious forms of criminality is littered with exceptional measures - whether investigative (e.g. telephone tapping), evidential (e.g. "former members of the mafia turned informers" who are said to be "co-operating with the police") or financial (e.g. laws authorising the "seizure" and "confiscation" of the proceeds of crime, even outside criminal proceedings).

4. A democratic State in the sense of the European Convention on Human Rights cannot simply deal with such problems in any way it chooses. It must, at all costs, display moderation and weigh the real danger posed by organised crime against the need to respect those values on which every society which truly and passionately wishes to be democratic is based. Where, then, should we strike the balance, where should we draw the line between what may be permissible and what must always be forbidden? It would be foolish to gloss over the fact that the challenge is considerable, and the balance difficult to maintain. The European Court of Human Rights itself recognises this fact, for example in the following judgment which relates to the fight against terrorism and specifically to a law authorising the covert monitoring of private communications:

"This does not mean that the Contracting States enjoy an unlimited discretion to subject persons within their jurisdiction to secret surveillance. The Court, being aware of the danger such a law poses of undermining or even destroying democracy on the ground of defending it, affirms that the Contracting States may not, in the name of the struggle against espionage and terrorism, adopt whatever measures they deem appropriate."(Court H.R., Klass, paragraph 49)

In this spirit, the case-law of the Strasbourg organs has succeeded in fixing strict limits which the States cannot overstep with impunity, while at the same time allowing them, with regard to certain aspects of the legitimate struggle against organised crime, a wide margin of appreciation to take specific measures, the necessity for which is proven and which, of course, are compatible with the obligations which the States assumed when ratifying the Convention.

5. As for the procedural aspects of implementing an anti-crime policy, the Convention organs have, from the start, rigorously applied the Convention guarantees as to deprivation of liberty and a fair hearing to everyone charged with a criminal offence, however serious -regardless of the risk, however great, which this criminal conduct may have posed, or poses, to society.

Thus, a person thought to be involved in criminal activity can be arrested only on the basis of "reasonable suspicion", as laid down in Article 5, paragraph 1 (c), of the Convention. According to case-law, the existence of a "reasonable suspicion" presupposes the existence of

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facts or information which would satisfy an objective observer that the person concerned may have committed the offence.

For example, it has been acknowledged that terrorist crime falls into a special category and that because of the attendant risk of loss of life and human suffering, the police are obliged to act with the utmost urgency in following up all information, including information from secret sources.

Nevertheless, as the case-law of the European institutions clearly states, the exigencies of dealing with terrorist crime cannot justify stretching the notion of "reasonableness" to the point where the essence of the safeguard secured by Article 5, paragraph 1 (c), is impaired. Therefore, there must be evidence which is objective, and which can be seen to be objective, to corroborate a suspicion which, in the absence of such evidence, however unimpeachable the bona fides of the arresting officer, would not suffice to legitimate an infringement of the suspect's personal freedom (Fox judgment, paragraphs 29-35).

The same applies to swift judicial control of any deprivation of liberty, as laid down in the Convention (Article 5, paragraph 3), which exists to prevent such deprivation where it is unjustified. Thus, anyone who is taken into custody must be brought "promptly" before a judge or other officer authorised by law to exercise judicial power, in order to minimise the risk of arbitrariness inherent in any deprivation of liberty.

It is true that "the investigation of terrorist offences undoubtedly presents the authoritieswith special problems", and that, subject to the existence of adequate safeguards, the context of terrorism "has the effect of prolonging the period during which the authorities may... keep a person suspected of serious terrorist offences in custody before bringing him before a judge or other judicial officer". However, this period must still be very brief. Where a person is kept in custody for more than four days without any judicial control and without being brought before a judge or other judicial officer, there is a violation of the Convention, regardless of the maximum period fixed by national law (see Brogan judgment, paragraphs 58-61).

Criminal cases, particularly complex ones such as those involving organised crime, frequently oblige the courts to make choices as to the conduct of the case which may adversely affect the rights of the defence, with the result that the fairness of the trial may be prejudiced. This applies particularly to the area of evidence. The difficulties confronting the courts in such a delicate area, particularly in terrorist or Mafia cases, are well known.

However, the rule in every criminal case is that all the evidence must be produced in the presence of the accused at a public hearing with a view to adversarial argument. If, however, the circumstances require the use of witness statements obtained at the pre-trial stage, the accused should be given an adequate and proper opportunity to challenge the witness against him, either at the time the witness was making his statement or at some later stage (see Kostovski judgment, paragraph 41).

Experience shows that, in order successfully to prosecute organised crime, given the difficulty of gathering sufficient evidence to prove the charges, it is frequently necessary to resort to statements by "anonymous persons" and police officers who have "infiltrated" the criminal organisation.

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Such procedures naturally pose problems with regard to the principles governing a fair trial. Must these principles be ignored in the interests of effective crime-fighting?

The answer from Strasbourg could not be clearer. While recognising that the growth in organised crime undoubtedly demands appropriate action, the case-law states that in a democratic society, "the right to a fair administration of justice holds so prominent a place... that it cannot be sacrificed to expediency". The Convention does not preclude reliance, at the investigation stage of criminal proceedings, on sources such as anonymous informants. However, "the subsequent use of anonymous statements as sufficient evidence to found a conviction... is a different matter" (see Kostovski judgment, paragraph 44). The same problem arises with regard to the use of statements by an undercover agent (that is, a police officer sent to infiltrate, for example, a drug-trafficking ring) where such a witness has neither been examined by the court nor confronted with the accused. In such cases, it is imperative to ensure that evidence obtained in this way is used only to corroborate other evidence which has been obtained in full compliance with the adversarial principle and the rights of the defence. Where this is not done, there is a violation of the rights of the defence and of the principle of a fair trial.

6. Moreover, as regards "punishment", that is, sentences which may be imposed on those convicted of offences, the supranational courts have, in principle, no jurisdiction regarding the question whether the sentence - however severe - fits the crime. However, it must be observed that the requirement of respect for the inviolability

- both physical and mental - of the human person creates particularly strict limits which the States are bound scrupulously to respect, both in fixing and enforcing sentences.

It goes without saying that treatment which may be described as inhuman or degrading or, worse, as torture, is prohibited. Article 3 of the Convention sets an absolute barrier in this regard, however despicable a crime the person so treated is deemed to have committed.

Hence, resort to such treatment is never admissible, whatever its dissuasive effect, and even if it is believed to be, or actually is, an effective deterrent or aid to crime-control (see Tyrer judgment, paragraph 31). The Convention organs have developed a body of case-law from which it can be deduced, inter alia, that national authorities cannot remain passive in this area; they cannot hide behind their alleged inability to enforce national law and the Convention so as to justify treating individuals in detention, who are by definition in an inferior position and thus vulnerable, in ways which could be described as inhuman or degrading. Human dignity must be respected, whatever the circumstances. In the search for those responsible for such treatment, the Strasbourg organs go so far as to authorise a kind of reversal of the burden of proof, since the Government are obliged to prove that it was not carried out by police or prison officers.

The death penalty raises a different problem, as it is formally authorised by the Convention itself. In that respect, the Convention bears the stamp of the age in which it was conceived (the years immediately following the end of the Second World War). Since that time, ideas have of course progressed and the death penalty is in a fair way to being abolished throughout Europe, despite the doubts expressed by the public when faced with the problem of crime, particularly organised crime, and above all its more insane manifestations. Protocol No. 6 to the Convention, which prohibits recourse to this extreme form of punishment, has now been ratified by 24 out of the 34 States Parties to the Convention. This Protocol can therefore already be said to express a profound consensus in favour of outlawing an ineffective and unnecessary punishment (to use Cesare Beccaria's words), especially as the death penalty has generally

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ceased to be enforced in the majority of European States. It should be added that the fact that certain countries - mainly outside Europe - resort to this penalty threatens a form of international judicial co-operation which is indispensable to the effective fight against the scourge of organised crime, by making it extremely difficult, and sometimes impossible, for a State which is party to the Convention to hand a fugitive over to a third country, for example in the context of extradition proceedings. We can only applaud, in this regard, the recent judgment of the Italian Constitutional Court, which declared unconstitutional an extradition treaty allowing individuals to be handed over to States whose criminal law still permits the death penalty.

7. Does this mean that the protection of rights and freedoms afforded by the European Convention on Human Rights may result in an excessively formal approach which could provide organised crime with "aid and comfort" in its campaign to destabilise democratic institutions?

Certainly not. The case-law of the Strasbourg institutions offers several examples which have, rather, provided "aid and comfort" to the democratic State in its legitimate fight against subversion, whether terrorist or the result of organised crime.

It is well known that the concept of balance is inherent to the Convention system. Individual rights must be preserved, while at the same time safeguarding the legitimate interests of the community. The demarcation line is determined by the requirement of respect for human dignity; anything which may contribute to the defence of democratic institutions without overstepping that line can be tolerated up to a certain point. Even the use of "lethal" force may be permitted, albeit within narrow confines since it must be shown to be "absolutely necessary". Extreme caution is called for in such matters, as demonstrated by the rigorous approach adopted in this field by the Convention organs. The European Court's judgment in the McCann case is an example.

Strasbourg offers no encouragement to anyone who seeks to use an individual right or freedom to endanger the rights and freedoms of all. Suffice it to recall Article 17 of the Convention, which aims to prevent abuse of the Convention rights and freedoms by extremist groups, whose aims are contrary to those pursued by that instrument. Obviously, this means only those rights and freedoms which could be used to broadcast a message of hate and violence, such as the freedom of expression, the freedom of association, or even the right to property.

To take but one example, it can be seen that, with respect to the right to property, the States enjoy a wide margin of appreciation, given the exigencies of crime prevention and punishment.

Dispossessing those involved in organised crime of their assets, by seizing and confiscating property which cannot be proved to have been acquired lawfully, is one of the practical weapons - and perhaps the most effective - of eroding the financial muscle of organised crime. Such measures have a substantial effect on the right to peaceful enjoyment of possessions, but they may be justified under the Convention since, in certain circumstances, they are demonstrably proportionate to the threat to democratic society represented by organised crime. In this regard, it may be observed that Mafia-type groups are so dominant in certain regions of Europe that the powers of the State are significantly weakened thereby -all the more so since, as the European Commission of Human Rights has stated, the enormous profits made by these organisations from their unlawful activities, particularly international drug trafficking, "gives them a level of power which places in jeopardy the rule of law within the State".

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8. There can be no doubt that the case-law of the Strasbourg organs contributes, within the limits of those organs' jurisdiction, to supporting the legitimate battle waged by democratic institutions in order, precisely, to re-establish the pre-eminence of the law in a State adhering to the principle of the rule of law.

In a modern society, respect for human rights presupposes great self-control. This is equally as true for individuals as for public opinion, which can sometimes be manipulated, taking advantage of circumstances or getting on an election bandwagon, for the purpose of achieving aims which usually have only a veneer of respectability: that is, order at all costs.

However, even supposing that this aim can be realised, which is far from certain, particularly in our open and complex societies, what would be the cost?

The experience of the last fifty years shows that where order is based on contempt for fundamental rights and liberties, it cannot, in the long term, withstand the battering-ram of European public opinion, which has largely been won over to the ideals of the Council of Europe.

So let us keep our heads. Is it worth the risk of losing the honour of being a truly democratic State for results which are as chancy as they are short-lived?

For it is certain that the best way to fight crime, the way which is likely to win, and to retain in the long term, the informed consent of citizens, whose cooperation is essential, is the way based on respect for human rights: that is, on the values upon which our social contract, as citizens of a democratic State, is based.

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Interventions concerning the introductory report

Mr Guido RAIMONDI

The concept of balance is crucial to this meeting. It embodies the principles of proportionality and moderation, which show through in the Human Rights Convention system both in the letter of the Convention itself and in the case-law of the Court and the Commission.

One might be forgiven for thinking that these so logical and fundamental principles were immutable. Yet it has to be said that there is a risk of their being eroded: influenced by a public which feels a growing sense of insecurity, political leaders are, in fact, liable to adopt repressive policies that pay little heed to human rights.

Of course, serious crime does pose a threat to the very foundations of society, and can undermine the rights of all citizens. The authors of the Convention took due account of this fact and, while laying down a whole series of individual rights, also gave consideration to the question of possible abuses of these rights. The result was Article 17 of the Convention, which is designed to block any attempts to abuse the provisions of the Convention, or to destroy any of the rights and freedoms it enshrines.

The protection of human rights thus also requires the protection of society against the scourge of serious crime. However, the responses to crime must be appropriate and must remain within the limits of the law and of the international undertakings entered into by individual states. What is at stake here are the genuinely democratic nature of the latter and their membership of the Council of Europe family.

The question of the death penalty cannot be tackled properly from the angle of the law as it stands (de lege lata). De lege ferenda, the shift towards heightened awareness of the inviolability of life should mean our ruling out the application of the ultimate penalty. However, this position needs to be defended, in particular against public opinion which may lean in the opposite direction.

Mr Pierre-Henri IMBERT

This seminar should enable us to examine most of the numerous aspects of the chosen theme. However, whether we like it or not, the question of the death penalty will continue to be at the heart of the debate. There are factual reasons for this: we have heard that, in certain member States of the Council of Europe, there have been more executions in one single year than in all the other member States since the Council of Europe came into being. There are also reasons of a substantive nature in relation to which I would like to share some personal thoughts, stressing a number of aspects which are less frequently touched on, concerning the function and the nature of the death penalty.

It is said that the death penalty serves as an example and a deterrent and prevents further crime but we know that this is not true. All the statistics illustrate that there is no connection between abolition of the death penalty and crime rates, since crime falls within the realm of passion rather than that of reason. When committing their crime murderers do not think and do not plan ahead. They may fear death but only after the trial, not before committing the murder.

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Moreover, it is impossible to believe in the "virtues" of capital punishment. In order to be exemplary the penalty would have to be terrifying, not abstract (or virtual). Executions would have to take place in broad daylight and in public; children would have to be made to watch the execution and it would have to be shown on television. In reality, however, executions take place at night in the greatest secrecy (in some countries the person's body is not even handed over to his/her family). This is clear proof of a vague feeling that violence (even sanctioned by the law) may incite further violence and appeal to sadistic instincts.

This lead us to perceive the true function of this form of punishment, namely to eliminate the offender. We do not know what to do with certain types of criminal and our prisons are overcrowded... So, instead of facing up to the problem, we suppress it.

This "easy way out" is the sign of a twofold failure: society has not been able to prevent individuals from committing such crimes and it does not know what to do with them when they do commit such crimes.

So, it is a "cover up operation". As long ago as 1954, a French judge used the phrase "administrative assassination" which reflects the unease we feel because the function we make the death penalty fulfil is totally alien to its very nature.

We sense full well that this penalty is not like other penalties and not just one of a list (sentenced to 10 years'/30 years'/life imprisonment/death). We can see that the death penalty is different if only because it entails the permanent, irreversible elimination of a human being.

Leaving aside the miscarriages of justice and variations as between juries, I wish to stress the extent to which this type of penalty tells us a great deal about a particular society - because it is a matter of life and death. It is a society's conception of life that is at stake, the value that society attaches to life in general and so to any one life in particular. It also raises the question of one human being's right to inflict death on another, in cold blood, legally and in the name of what? There are many answers to this question but none of them are totally convincing. On analysis, we can perceive two basic grounds which can motivate recourse to the death penalty.

Firstly, society demands revenge. This is the lex talionis (which is moreover often misunderstood). Vengeance may be kindred with our nature and our instincts but not with law. The law cannot obey the same rules as nature. Murder may come naturally to mankind, but the law is not made to imitate or reproduce nature. The law is crafted to correct nature.

The death penalty also incorporates the idea that certain individuals are beyond redemption and that there is no hope for them. It should be remembered that, originally, in the West, the death penalty was a religious penalty, at a time when belief in life after death and the immortality of the soul meant that there was a possibility of redemption - if only in the hereafter. Nowadays the world has no more illusions. But that is all the more reason for preserving those few areas where some measure of sacredness can still survive - and what could be more sacred than life itself?

However, human life ceases to be sacred when it is considered acceptable to kill.

This is clearly something central to any society that claims to respect human rights - over and above rules and the law, it is about shared values. Let us stop this hypocrisy about public

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opinion not yet being ready or mature. Is there any country in which public opinion has ever been ready? And on what grounds can public opinion be considered ready or not? In France, for example, juries had been systematically refusing to inflict the death penalty for several years before it was abolished. Saying yes to the death penalty in an opinion poll is quite different from doing so in a jury passing judgment on an actual person, after learning at least something of his or her life story.

The public authorities do have a responsibility to mount a large-scale programme to educate the public. But first of all they themselves must be convinced - that will make them all the more convincing.

I have borrowed extensively in my remarks from Albert Camus' Réflexions sur la guillotine (1957), from which I should like to quote the final sentence:

There can be no lasting peace in the hearts of individuals nor in society until death has been outlawed. [Original: Ni dans le coeur des individus ni dans les moeurs des sociétés, il n'y aura de paix durable tant que la mort ne sera pas mise hors la loi.]

Is it really so absurd to think that Europe should be the first continent to enter the third millennium having outlawed the death penalty?

Mr Andrew RUTHERFORD

Although there is an extremely serious problem with the death penalty, it must be born in mind that - in numerical terms - the incarceration of troublesome people by the State plays a far greater role than their extermination through capital punishment. It is noted that in periods of anxiety the States make use of general fear about serious crime as a cover to remove from society people regarded as undesirable. We seem to be in the midst of one of these phases today. Everybody is familiar with the figures in the United States, where the prison population quadrupled since 1970. Similar developments are taking place in Russia and in the United Kingdom.

As for the latter, there are many people in Britain who are deeply concerned about the trend towards a massive increase of an unprecedented sort which is taking place in this country. This is the result of a populist political and media discourse about crime and criminal policy, one striking feature of which is the absence of any real challenge by the opposition Labour Party. One of the challenges for people concerned about human rights in this massive leap towards incarceration is how to play some sort of limits on this.

At the same time, the challenge for people in other countries, other than the United Kingdom, where many of these issues may not be too far from the surface, is how to get the discussion about crime and criminal policy - in dealing sensibly with serious crime - back on to a rational level.

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Mr Erik PROKOSCH

This seminar is considering the question of "serious crime and the requirement of respect for human rights." But the requirement of respect for human rights has to include the abolition of the death penalty. The death penalty violates the right to life and the right not to be subjected to cruel, inhuman or degrading punishment. It is not possible for a government to respect human rights and use the death penalty at the same time.

This is the basis for Amnesty International's opposition to the death penalty. Inspired by our abhorrence of the death penalty, we are working hard for its abolition throughout the world.

The progress towards worldwide abolition is undeniable. Fifteen years ago, in 1981, there were 27 countries which had abolished the death penalty for all crimes. Today there are 58. The number has more than doubled. Today more than half the countries in the world have abolished the death penalty in law or practice. The numbers grow each year. Yet it seems that the battle has to be fought over and over again, from country to country. Each country has to go through a process which is often long and painful, examining for itself the arguments for and against, before finally - we hope - rejecting the death penalty.

Even after abolition, there may be calls to bring the death penalty back. If the calls are serious enough, the arguments have to be gone through again.

What is the place of public opinion in the battle over the death penalty?

The decision to abolish the death penalty has to be taken by the government and the legislators. This decision can be taken even though the majority of the public favour the death penalty. Indeed, it is probably correct to say that historically, this has almost always been the case. Yet when the death penalty is abolished, usually there is no great public outcry; and once abolished, it almost always stays abolished.

This must mean that although a majority of the public favours the death penalty in a given country, it is also the case that a majority of the public is willing to accept abolition. This is a feature of public opinion which is not usually revealed by the polls. If the questions were more sophisticated, the polls would probably give a better sense of the complexities of public opinion and the extent to which it is based on an accurate understanding of the present situation of criminality in the country, its causes and the means available for combatting it.

It has been said that no one believes in the deterrent effect of the death penalty - that is, that the death penalty deters crime more effectively than other punishments. But many members of the public do believe in it. Their belief flies in the face of the scientific evidence. In other words, the public does not have a scientific understanding of the deterrent effect of the death penalty.

As the United Nations Secretariat suggested as long ago as 1980, governments should take on the task of educating the public on this point. A better public understanding of crime prevention and criminal justice would produce more support for anti-crime measures which are genuine and not merely palliative. At the very least, politicians should not make demagogic calls for the death penalty, misleading the public and obscuring the need for genuine anti-crime measures.

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For Amnesty International, the human rights argument is paramount. But in practice, it is only one of several powerful arguments against the death penalty which need to be part of the national debate.

In coming to accept the human rights argument, people have to change their way of thinking about the death penalty. They must come to see execution as an unacceptable punishment. The guillotine, the noose and the electric chair should be seen as only museum pieces, alongside thumbscrews, the rack and other medieval instruments of torture.

While Amnesty International is making the human rights argument, others need to make the other arguments. Statements from religious leaders, other respected public figures, influential organizations and the news media can create a moral climate in which the legislators will be more willing to vote in a way which they know will be unpopular with many of their constituents.

Often the national debate on the death penalty is conducted in purely national terms. The international dimension needs to be brought in. Countries can learn from other countries' experience in the realm of criminal policy.

The European Ministers of Justice concluded over 15 years ago that the abolition of the death penalty in many member states of the Council of Europe has not been shown to have adverse effects in the realm of criminal policy. That conclusion is still valid, in Europe and other parts of the world.

Meetings such as the Council of Europe seminar in Taormina can play a valuable part in fostering an international exchange of views and experiences on the death penalty - an issue of paramount importance to human rights.

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SECOND SESSION

Theme 1: means and action to combat serious crime effectively while respecting human rights

i. legal means (penal and prison fields, police action, etc.)

Report presented by Mr Juraj KOLESÁR, Professor of Law, Vice-Dean, Faculty of Law, Comenius University, Bratislava

Human rights in connection with the growth in the rate of major crimes is a subject which for some years has stimulated discussion both between experts and among the public at large. The public is influenced to a certain degree by the media, which may exploit the subject for populist motives; experts, on the other hand, have a duty to treat the problem seriously and to seek possible solutions.

In central and eastern European countries these discussions acquire a different dimension, due to the fact that before 1990 the phenomenon of specifically major crimes was negligible. If such crime occurred at all it was generally marked down as an anomaly.

Western countries, meanwhile, had learned to live with the awareness of major or organised crime, and in conditions where its existence was accepted as a fact of life. But long before the opening of the borders, experts in criminal and penal law had been pointing out that it would only be a matter of time before the same situation arose in our country, as well as in Poland, Hungary, and other states at more or less the same level of political development. Their warnings, however, were not taken seriously, although some attempts were made to introduce preventive measures. Before 1990 I worked for several years as secretary to the commission which was established to counter these phenomena among young people. Six years later, to my great surprise, material compiled by me during that period reappeared with remarkably few alterations.

The opening of the borders only helped to shorten the time needed for major and organised crime to appear in our country. In most cases, however, the arrival of this type of crime caught the former socialist countries unprepared. True, some measures were taken, but their effect was negligible. Besides, these measures were largely based on the experiences of western countries. It is always tempting to make comparisons, but in this case it must be emphasised that the starting points were completely dissimilar. The police and criminal law systems were different, systems of civil organisation were different, above all state protection against such forms of violence was different. Major and organised crime had no difficulty in finding our country's weak points.

Human rights and their protection are by their nature special. In examining the protection of human rights in the context of the fight against such antisocial acts we must not forget this point: before 1990 official government policy discouraged public discussion of the protection of human rights. In the international arena the question of human rights was presented as posing no problem, with human rights being universally guaranteed. Even during that period I had close contacts with sources of information in the sphere of criminal law enforcement, and I must confirm that the situation really was so in most cases. However, we must not forget that during

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that period perfectly normal acts, such as leaving the republic, were considered crimes. Today it is unimaginable - even ridiculous - that one should not have the basic human right to leave and re-enter one's own country freely. Similarly, acts of subversion against the republic were considered a crime - a device used by the regime to protect itself. (I would rather not mention here possible moves to reintroduce this “crime” into the Criminal Code.)

In the former Czechoslovakia, knowledge of human rights abuses was gained through the foreign media, chiefly radio. Up to a certain point people were unaware of the extent of the problem. The first change came in 1977, when the group Charter 77 drew attention to the observance of human rights required by the Collection of Laws of 1976. Charter 77's activities, however, reached only a limited audience. In Slovakia the number was very low. At that time I was with the Court Martial and Charter 77 was identified to us as a secret affair against which we should be on the alert. When we asked what we were supposed to be watching out for, and what Charter 77 was, we were given no answer. Even the fact that someone was casting doubt on the observance of human rights was confidential. It took over ten years to change the situation.

Although we may hope that political crimes are now a thing of the past, we cannot deny that they have given way to another evil. It is difficult to say whether this new evil is greater or lesser. Many people, especially laymen, take the view that in post-1968 Czechoslovakia at least people did not get killed, whereas today human lives are being lost in violent crimes, murders and even contract killings. They believe, therefore, that the evil is definitely greater. Personally I disagree with the idea that evil can be classed as greater or lesser. Evil remains evil, and it is the task of lawyers - especially criminal lawyers - to combat it.

Alas, it must be recognised that the concept of human rights protection is both used and abused today. The hierarchy of values espoused by the authoritarian State has disappeared, and as yet nothing has fully taken its place. Talk of human rights is frequent: talk of duties and responsibilities less so. The basis of human rights protection is the duty to respect also the opinions of others. To the question “What hinders human rights protection?” I can offer this brief answer: lack of tolerance and a reluctance to accept the views of others.

I have visited several countries in Europe. I have studied and lectured in Canada and the United States. I make comparisons. There is a general lack of tolerance - not only in Slovakia -in the very sensitive area of criminal law. Very often it can be summed up in one sentence: people do not listen. For “people” you can substitute other words, such as judge, prosecutor, policeman, solicitor, or journalist, state official or even member of parliament.

However, my task is not to dwell on general reflections on human rights but to concentrate on the part they play in legislation. When we speak of the role of law as a protection against rising crime, what we are generally talking about is criminal legislation. It is not so simple, though. We have a number of laws designed to protect us against the rise in crime: amendments to the legislation on guns and ammunition (the gun being the means of both attack and protection), laws on prosecution, courts, advocacy and expert witnesses, the Misdemeanour Act, the Act on the Police Force, etc. But it must be said that our legislation, as well as the comparable legislation of neighbouring countries, suffers from many shortcomings. These originated early on in the preparatory stages of the acts, and even more often in the changes and amendments. Constant, and often unconsidered amendments, are the plague of modern law-making. In the words of the Czech lawyer, Professor Ota Novotny:

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"I see the most serious deficiency in the State's care of respecting the valid law [including human rights]. It is the State's entire duty to secure the obeyance of law and of other legal norms. The State has at its disposal a number of controlling mechanisms. While these mechan-isms work properly, socially favourable climate will be created for law and its observance, as well as an unfavourable situation will arise for infesting the society with crime rate. I take this general connection between the rule of law and its respecting, and the development of the crime rate as a matter of course."

Professor Novotny goes on to say:

"I apologize to everybody for declaring such trivial truths here. However, unless they are observed, it is inevitable to talk about them."

For one reason I can share the professor's view. When I give lectures to my students at the faculty, they rarely see these “trivial” truths as trivial. They nod their heads in agreement that these really are things which do not need to be pointed out, which will be at the forefront of their minds at all times and in all places. But I also meet many of them in my job as a barrister and as a participant in conferences and meetings. And then they have a different view of these truths. Their view changes according to the circumstances. The truths are being replaced by other truths, often following the argument which says that the changing situation necessitates a change in beliefs. What is the reason for such a change in thinking? Is it a common phenomenon, or something peculiar to our national circumstances? Am I supposed to believe that it is a manifestation of a certain general schizophrenia of the contemporary world? I am unable to give the correct answer, nor do I feel competent even to suggest one. But we must search for it together, since that might be one of the sources of the solution to our problem, the answer to the question: Why is there still a disparity between legislation (including all types of codified law) and what is happening in real life?

When discussing the observance of human rights in the context of major crime it is necessary to examine the state of the legislation. I should like to speak about Slovak legislation in the area of criminal law and related provisions. I am familiar with Czech legislation, with which we share a common inheritance, and I have some knowledge of the legislation of other neighbouring countries. In addition, I have had the opportunity to acquaint myself with the legislation of countries which are generally known as “advanced western democracies”. On this subject I should like to draw your attention to the publications of our Dutch colleague J.F. Nijboer of Leiden University, in particular his paper delivered at the International Conference on the Rights of the Accused, Crime Control and the Protection of Victims, held in Jerusalem in December 1993. Many of the ideas he puts forward are relevant to this conference too.

I am very glad that our standards in criminal law were appreciated by all the foreign delegations of recognised experts in criminal law. However, they did express doubts on some ambiguities. I should say here and now that, unlike in certain other European countries, the criminal law we have today will have to suffice until it can be completely redrafted. It is not a question of minor amendments. There is no reason to hurry. My colleagues and I still smile at the memory of one of the first visits by a team of lawyers from the United States in 1990. In their lecture they insisted on the importance of the accused's rights, particularly the right to a defence counsel. They were highly surprised when we cited the relevant paragraphs from our Criminal Code; their information had been completely different. My good friend, the excellent criminal lawyer Adam Bennett Schiff, gave a lecture to students on the need to solve the

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problem of racial conflicts in the post-Communist era. This was on the very day that the tragic race riots broke out in Los Angeles. We are rightly resentful when foreign lawyers lecture us on matters which have long since formed part of our legislation. Again, the difference is between the law on paper and the law in practice. It is a problem of application.

The Slovak Criminal Code and the Code of Criminal Procedure date back to 1961. The latter has (as of July 1996) been amended twenty-two times. I must confess that the way the amendments were made was not always ideal. But we are here to study the legislation pertaining to major crime. Considerable progress has been made in this area. Notable legislation includes the Act on the Police Force (1993) and its amendment covering major crimes (1994), together with the Act on Combating the Laundering of Income from Major and Organised Crime, often known simply as the Act against Organised Crime. I suppose that recent legislation gives the Slovak Republic a good basis for such “combat” to be conducted successfully and within the legal limits. But none of it is perfect. Despite their positive features, each of these laws has its ifs, buts and ands. Let us have a look at some of the problems.

The above-mentioned amended Code of Criminal Procedure states that imprisonment can only be imposed by a judge or a court. (Before the amendment it could also be imposed by a prosecutor or by an investigator with the previous consent of the prosecutor.) Thus, the role of the independent court has been strengthened. Also strengthened was the guarantee that imprisonment, which entails a considerable restriction of constitutionally granted human rights, would be decided upon exclusively by a person or an authority of the highest qualifications. But its application met with problems initially, in that there was a shortage of judges in some administrative districts. The judge involved in the preliminary proceedings was barred from conducting the main proceedings, as his or her impartiality might have been in doubt. The lack of criminal judges meant that civil judges were sometimes called in to decide on questions of imprisonment. Very often the freedom or liberty of the accused was in the hands of a judge who, although possessing the necessary criminal law qualifications (as all judges are required to), had not exercised them for years. Judges came to their conclusions in accordance with the law, their education and their conviction, and not in accordance with the wishes of the police who often wanted to have accused persons safely in prison but lacked justifiable reasons for keeping them there. This proves to be the right step in legislation. The problem lay not in the act itself, but in the number of judges, in their qualifications, lack of means, etc. It took some time before the organs active in criminal proceedings could adapt to the new situation, and the process is not yet complete.

Shortages of appropriate personnel and lack of material means are not, and must not be, the reasons for abandoning the basic rights and freedoms which have been granted by the Constitution and other acts.

In this connection I should like to point out the statement or question mentioned in the “Note to rapporteur”, page 2, at the end of section 3, about reorganising courts and establishing special courts or tribunals for particular major crimes such as terrorism, drug-related crime, etc. In my opinion this is not the right approach. In our system today it would be a breach of the Constitution, since everyone is guaranteed the right to a fair trial. Today, the accused knows he or she will end up in court, but not who the judge or the members of the tribunal might be. Setting up extra judicial bodies proved wrong in the period of political trials, when special tribunals were established to judge political crimes. They very soon became routine in their character. The accused were always treated as if they were guilty, and the only doubt was as to the length of the sentence. (I note in passing that we have also abolished special tribunals for

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traffic offences.) The judge who practises the law in several spheres retains a greater sense of justice and objectivity. It is enough for major crimes to be dealt with by specialists in the preliminary hearings. That is the appropriate place for their expertise. So as far as courts are con-cerned, I do not recommend special tribunals.

The amended code has created new institutions which permit more effective and faster action following the commission of a crime or which help prevent crime during the preliminary proceedings. Among other things, it covers the procedure for house searches or searches of other premises and properties (paragraphs 82-85b), the possibility of changing the contents of articles (paragraph 87a), the tapping and recording of telecommunications (paragraph 88), checked delivery (paragraph 88a), the institution of an agent (paragraph 88b) and the institution of witness protection. I hope the content of these provisions is clear enough. In any case, my per-sonal opinion is that checked delivery and the agent belong to a different legal standard, to be precise to the above-mentioned Act against Organised Crime. They cannot be applied generally, but are appropriate only in matters covered by that act. Moreover, the institution of an agent is generally problematic. If an agent is to infiltrate an organisation he or she must necessarily commit crimes. How far can they go? Do they have the right to sacrifice one life in order possibly to save many others?

A very positive step is the institution of witness protection. Intimidation of witnesses, or potential witnesses, lies at the root of many unsolved, or even undeclared, crimes. People rightly ask what action discharged criminals may take towards those who gave evidence against them. Even while they are in prison, what is the possibility of the group to which they belong taking revenge on their behalf? A criminal organisation has many means at its disposal.

Slovakia's problem in this respect is that it is a small country. Over fifty years ago one of my teachers said that in Slovakia it was difficult to work in secret or to hide as “everyone knew everyone else”. I share this opinion today, and I have had it borne out on several occasions. There are certainly some solutions, but we should not hold out the hope that this will be a major weapon in the fight against organised crime.

I discount the possibility that we might solve such crime by the reintroduction of the death penalty or by imposing disproportionately long prison terms. I am against the death penalty, although I know that some of my colleagues can argue rationally for its restoration. Few of them, however, are criminal lawyers and those that are are willing to sentence but not to execute. Is this a solution? Personally I perceive this as the institution of a public bogey. We know of many bogeys already which are better than the electric chair or the gallows, and the debate on alternatives to prison sentences, or changes in prisons themselves, is wide open.

There is no proof that imposing tougher sentences would be a deterrent. The most effective means are fast detection, just punishment and adequate publicity.

After a profound study of the data and statistics, after case analyses, after discussions with both experts and the public at large, I have come to the conclusion that contemporary legislative conditions for combating major and organised crime are satisfactory. At this stage it is not advisable to weaken in any way the protection of human rights as guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms. That is not the way to eliminate, or even reduce, this kind of crime. We cannot change the rules of the game to suit ourselves while the match is in progress, no matter how harsh that may sound when human lives are at stake.

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An immediate measure to be implemented is the strict observance of existing law. As far as Slovak criminal law is concerned, I repeat that the present legislation offers enoughscope for strict observance of the existing law. Secondly, combating crime should not be left to chance or amateurism. We must constantly bear in mind that most offenders are professional criminals. An amateur has very little chance against them. Such a combat – and it is often literally an armed combat – requires a professional approach. There can be no room for the beliefs of laymen or the public at large who want to see so-called “new” or “perfected” methods.

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Written communications relating to theme 1.i: legal means (penal and prison fields, police action, etc.)

Mr Vladimir EVINTOV, Doctor of Law, Director of the Ukrainian Centre for Human Rights, Kyiv

The death penalty in ukraine

The problem of the death penalty is at the heart of the debate on policies for combating crime in a sovereign and independent Ukraine. Legal experts, criminologists, judges and public prosecutors, politicians, human rights activists, people who are referred to as "ordinary citizens": all want to have their say on the subject, and the media give many of them the opportunity to do so. Should we or should we not abolish the death penalty? This question - or rather the answer to this question - is part of a much wider and very important issue involving one of the two following options: either an anti-crime policy based on professionalism, the prevention of crime and the safeguarding of human rights, including the sacred right to life; or increasingly severe punishment with, as the ultima ratio, the death penalty as a means of intimidation in the fight against the steady increase in crime.

The reply to the question will be neither expeditious nor simple in a society in difficulty which is seeking to establish its identity and which is still profoundly marked by the blemishes of both its close and distant totalitarian history.

Following the attachment of Ukraine to Russia in the 17th century, Russian legislation was extended to the new colony, in particular Alexei Mikhailovitch's Code of criminal laws which was adopted in 1649. This Code recognised capital punishment as a major penalty for more than sixty different crimes. The said Code listed five methods of execution, notably at the stake, by quartering, by impalement, etc. Under Peter I, the application of the death penalty was extended even further. The laws at that time authorised the death penalty for 123 crimes. The number of persons executed during his reign attained unprecedented levels. There were months where over one thousand persons died in this way.

In 1832 and 1845 the death penalty was introduced in Russia for treason. Capital punishment was applied with increasing frequency during the second half of the 19th century on account of the every-growing revolutionary movement. Over a period of thirty years (1866-1895), following 226 political prosecutions, 137 persons were sentenced to death, 44 were executed and the death sentence of 93 others was commuted to a life sentence of forced labour.

A bloody repression took place during the revolutionary events of 1905-1907. 574 persons were executed in 1980, 1,139 in 1907, 1,340 in 1908 and 717 in 1909. This bloodbath swung public opinion in favour of abolishing the death penalty. Eminent lawyers spoke out against the barbarity (MM. M. Guernet, N. Tagantsev, A. Piontkowski, S. Vikterski and others).

Following the Soviets' accession to power and the outbreak of civil war, the death penalty became one of the main instruments for terrorising the masses. Both revolutionary tribunals and non-judicial bodies were given the right to apply the death penalty. The following figures bear clear witness to the extent of the repression: in no more than nine months (from June 1918 to February 1919), the Extraordinary Committee (vétchéka) alone sentenced and executed 5,496 persons in twenty-three of the country's governments.

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Repression, and the death penalty as a key instrument of repression, became an institutional component of the new State. V. Lenin wrote the following to the Commissioner of Justice, D. Kourski: "Justice must not do away with terror; if we promise to do that we would be deceiving ourselves or deceiving others; we must prove the merits and the legality of terror as a principle in a clear manner, without beating about the bush or lying (V.I. Lenin, complete works, v. 45, p. 190, Ukrainian version).

Terror and disregard for human life were thus raised to the status of a principle governing the administration of justice. The force of this Leninist theory was to be proven several times in Soviet history.

In 1927 a new Criminal Code was adopted in Ukraine which remained in force until 1961. Under the terms of this Code, amended by the Law of 7/08/1932 and a number of other laws, forty-two crimes and offences became subject to capital punishment. The laws in question served as a "legal" basis for the terror imposed by Stalin and his accomplices on their own people in the 1930s. The judicial bodies of the totalitarian regime, which had nothing whatsoever to do with crime, sentenced millions and millions of Soviet citizens to death. According to certain sources, almost twenty million persons were executed or tortured to death in Stalin's gulags.

In 1961, a new Ukrainian Criminal Code introduced the death penalty for a whole series of offences. In the 1960s and 1970s, capital punishment was more widely applied. In the 1980s fifteen offences were subject to the death penalty in Ukraine: treason, espionage, terrorism, terrorist acts against the representatives of foreign States, sabotage, aggravated theft, actions designed to disrupt the functioning of prison establishments by dangerous persistent offenders or persons having committed serious crimes, the forging of currencies or stocks and shares on a regular basis, currency or currency and stocks and share speculation on a wide basis, substantial misappropriation of public or social funds, murder with aggravating circumstances, rape with particularly aggravating circumstances, attempts to murder a member of the militia or a voluntary policeman, the hijacking of an aeroplane entailing death or serious bodily injury to persons.

Even a very brief general view of historical development illustrates the importance of the traditions influencing those who are convinced that the death penalty is the panacea, or at least an effective instrument, for combating crime. Unfortunately it must be noted that in Ukrainian society this type of opinion is not only shared by many Ukrainian citizens but is part of the general mentality of the (in Soviet terminology) so-called "protectors of the law" (the militia and the procuratura).

One tragic example of this mentality is the case of Mr Ivanov, a businessman accused of tax evasion, who was remanded in custody for the duration of the preliminary investigation by the examining judge. As Mr Ivanov was suffering from a serious heart disease, his lawyer lodged several appeals with the relevant public prosecutor and the investigating judge against this inhumane measure. The Code of Criminal Procedure enables these State officials to apply non-custodial sentences or even not to impose any sentence at all. However, neither this provision of the Law, nor the supporting medical evidence, nor the media nor public outrage at the vicissitudes of Mr Ivanov were able to save his life: he died of a heart attack in Kyiv prison after several months of "remand in custody". Consequently a man who, pending his trial before a

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court, should, by law, have been considered innocent until proven guilty, was sentenced to death.

Following Ukraine's independence, the Parliament reduced the number of crimes subject to the death penalty. The current Ukrainian Criminal Code prescribes this penalty for crimes involving murder (or attempted murder) with aggravating circumstances: attempt to murder a statesman (Article 58), attempt to murder a representative of a foreign State (Article 59), sabotage (Article 60), intentional homicide with aggravating circumstances (Article 93), attempt to murder a member of the militia, a voluntary policemen or a soldier responsible for maintaining law and order, with aggravating circumstances (Article 190-1).

In 1991, 112 persons were sentenced to death, 109 under Article 93, 2 under Article 190-a and 1 under former Article 56; 42 persons were executed. In 1992, 79 persons were sentenced to death, 77 under Article 93 and 2 under former Article 117; 78 persons were executed. In 1994, 143 persons were convicted, all under Article 93; 60 were executed. In 1995, of 191 convicted persons, 190 were convicted under Article 93 and 1 under Article 190-1; 149 were executed.

It is important to point out that whereas persons who have committed an offence punishable by the death penalty have a legal status which is clearly defined by criminal law, the status of those sentenced to capital punishment is unclear and is governed not by law but by administrative instructions. Once the convicted person has exhausted all the remedies open to him, he may appeal to the President of the Republic to pardon him. This is a long procedure which may take months and months, thus prolonging and aggravating the person's suffering. He may, of course, become mentally (or quite simply) ill. In such cases, the judgment must be suspended and the prisoner taken care of but there are no laws governing this. In practice there have been no cases of suspension of the death penalty.

Nor is the situation of the convicted person's nearest and dearest enviable. The death penalty is a state secret. The prisoner's family are not informed of the date and place of execution until several months after the execution has taken place. The corpse is not handed over to the family and they are not informed of his place of burial.

Ukraine's accession to the Council of Europe in 1995 was a historic breakthrough. At the same time Ukraine entered into important international commitments, including the undertaking to sign Protocol No. 6 to the European Convention on Human Rights on the abolition of the death penalty within the following year (as of October 1995) and to ratify it within three years of accession and to implement a moratorium on executions immediately after accession.

As the time-limit for the honouring of this commitment draws nearer, opposition to the abolition of the death penalty is growing in strength. What, very briefly, are the arguments ofthose in favour of maintaining this form of punishment in Ukrainian criminal law?

Crime-rates are currently soaring in the Ukraine and abolition of the death penalty would only encourage crime.

It is undeniable that in 1995 the number of crimes reached 641,860, i.e. 12% more than in 1994 or 2.6 times as many as in 1986 (248,600). Serious and very serious crimes represented 38.7% of the total number. The need to protect the life and the health of the citizens is a serious

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problem. 4,783 murders were committed in 1995, an increase of 69.4% compared to 1990. There were 214 contract killings, a new form of crime.

Violence is at the heart of social relationships and insecurity is focused on the daily violence perpetrated through assaults on persons or property. However, the existence and the application of the death penalty do not have a sufficiently deterrent effect on indictable offences. Punitive measures have fallen short of expectations. The growth of delinquency is due, to a very large extent, to the weakness of the State and the ineffectiveness of the institutions called upon to deal with this social evil. A large proportion of the population no longer believes that the "protectors of the law" are capable of protecting the law or the people. The tendency towards crime and the corruption of those in power gives rise to mafia-like structures. The legal nihilism and general laissez-faire are causing social pessimism.

Under such conditions the death penalty will never be a magic wand. The machinery of the State must be put in order, corruption done away with and the police and other "protectors of the law" must be organised so that they perform their duty of protecting and defending the people and their property with the true professionalism that they currently lack; and they must be given the means they require to accomplish this task.

Some people claim that if the death penalty were abolished and replaced by a life sentence, it would be necessary to establish a new and very expensive type of prison which is out of the question in the present economic crisis that Ukraine is going through.

The current penitentiary system in Ukraine is open to criticism and in no way corresponds to the humanitarian requirements of the civilised world. There are plans to reform the system along with the criminal law on which work has already begun. A reform of the penitentiary system would help to make Ukrainian society and the Ukrainian State more humane.

Some legal experts believe that there can be no rapid or positive reply to the conditions laid down in Protocol No. 6. Some senior judges and public prosecutors claim that the death penalty is and will continue to be applied, since the criminal law, which prescribes this type of punishment, has been neither repealed nor amended.

It is true that the Law is the Law and that it must be observed just as the international commitments entered into by our country must be observed. Ukrainian law is clear on this subject: the "pacta sunt servanda" principle is acknowledged as a cornerstone of the country's foreign policy.

The plan of action proposed by the Council of Europe and approved by Ukraine contains measures which make it possible to solve the problem gradually and to follow it through. It has been proposed that, after acceding to the Convention, Ukraine should order a moratorium on executions without interfering with criminal law. This decision can only be taken by Parliament which, alone, can suspend the relevant provisions of criminal law.

The three-year time-limit within which the Convention should be ratified will be used to prepare the necessary changes and amendments to the criminal law in force or to fully integrate the abolition of the death penalty in the draft of the New Criminal Code currently under discussion.

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The legal basis required to carry out these absolutely essential changes already exists in Ukraine, namely the new Ukrainian Constitution adopted on 28 June 1996, which is based on the fostering and safeguarding of human rights, and in particular Article 3 which reads as follows: "Human beings, their life and health, their honour and dignity, their inviolability and safety are acknowledged in Ukraine as supreme social values".

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Written communication by Mr Hartmuth HORSTKOTTE, Judge at the Federal Court (retired), Berlin

The judge and serious crime

It is not easy to explain the place of the judge in a setting defined by terms such as "to combat serious crime" (theme 2 of this Seminar). No doubt, judges in Italy and elsewhere who have lost their life on duty have died because they fought for justice; we owe them respect and gratitude. And we admire those judges and prosecutors who, being obedient only to the law, resist pressure exercised by the state, by politicians or by private organisations - pressure which aims for example, at avoiding the detection and prosecution of large-scale corruption. Nevertheless, the judge, at least the trial judge and the appeal court judge, is no soldier on the battle-field were prosecutors and policemen combat crimes, as medical researchers "fight" diseases. Interestingly, we usually use less warlike terms in describing activities directed against poverty, neglect of children, homelessness, urban decay, xenophobia or deadly traffic accidents, though such activities may be the more effective way to fight for the preservation of life, health and an agreeable community. Whatever linguistics may reveal or obscure: the judge will try to develop a more detached position and attitude, even though he is bound to take the final decisions.

Indeed, the judge has to play an active role in reacting against serious crime: his decisions before, during and after trial have to be law enforcement in the strictest sense of the word. Before trial, the judge has to see to it that all preparatory measures are in accordance with procedural law. The trial judge has to lead the procedure to a verdict that clearly defines an act as a criminal breach of the law, or to an acquittal. If it comes to sentencing, the punishment has to be adequate (proportional) to the gravity of the offence and the degree of the guilt, thus demonstrating the rule of law, and confirming that crime does not pay and warning others. However - and here we begin to leave the battle-field - the sentence should be of such a nature that the chances for the offender's future life in the community are not impaired more than absolutely necessary, given the gravity of the offence and the guilt. Last but not least, the judicial decisions should demonstrate that the procedural rights of the offender are meticulously respected, even if this seems to be counterproductive under the aspect of effectively combatting crime.

So the judge does not fully fit into the marching-order on the battle-field against crime. This is not to say that the others on that battle-field do not respect the limits set by procedural law. But the perspectives, and hence the attitudes, ought to be different: the law limits the scope of police and prosecutorial activities: procedural law gives the objective of bringing someone to trial and conviction no absolute priority; that objective must be pursued only within the limits set by procedural law (and the Constitution plus international Human Rights instruments). For the judge, procedural law (the Constitution, the Human Rights instruments) is not a limit to his/her proper activities. Rather, the task of the judge is primarily to apply the law, both substantive and procedural law. From the judge's perspective, an acquittal for lack of sufficient evidence or in application of the exclusionary rule should be a demonstration of the law in the same way as a conviction used to be. Hence, there is no equality of weapons between the judge and the defendant; the judge has to carry the heavy armour of the law, while the defendant finds no restrictions in choosing his tactics. Still, it is true what Vivien Stern writes in her paper (H/Coll (96) 5): "Lawlessness is not being met with lawlessness but by a firm reassertion of the supremacy of law" (p. 8 of the English version).

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The supremacy of law is demonstrated in the protection of human rights including procedural rights as defined in Article 6 of the European Convention on Human Rights. It has been argued that individual human rights have to be interpreted against the background of the basic human right to "liberty and security of a person" mentioned in Article 5, paragraph 1, of the Convention. This is a problematic item of interpreting not only the Convention but also the International Covenant on Civil and Political Rights (Article 9; cf also the preamble to that Covenant: "... recognising the ideal of human beings enjoying civil and political freedom and freedom from fear and want." which is a citation from the Virginia Bill of Rights of 1776, and the "right to security (sûreté)" in Article 2 of the French Declaration of Human Rights of 1789/1791). The idea that security has a human rights quality has attracted the interest of constitutional doctrine in Germany (cf. J. Isensee, Das Grundrecht auf Sicherheit, 1983; Isensee/Kirchhof -ed-, Handbuch des Staatsrechts der Bundesrepublik Deutschland V, 1992, pp. 137 et seq.). No doubt: it is one of the central tasks of the state to guarantee a sufficient degree of security; people cannot fully enjoy their individual rights in a condition of pervasive insecurity. Still, there are good reasons to assume that "security" in the sense of Article 5 of the Convention relates only to the individual's security of the face of state power (cf. Frowein/Peuckert, Europäische Menschenrechtskonvention, 1985 ad Article 5, note 4). The guarantee of human rights would be in danger if common security would be seen as an aspect which limits the reach of a given human right in the same way as in cases where different individual human rights are in conflict; the precise wording of the Convention in defining exceptions from rights, as, for example, in the second paragraphs of Articles 8 to 11 would be undermined by such a general recourse to the aspect of security. Hence, the functioning of Criminal Justice is not in itself a device restricting individual rights. This does not exclude the consideration that an individual human right must not be interpreted in a way that would make the reasonable functioning of the criminal justice system under the rule of law impossible.

The human rights problems which come up in the context of judging serious crime are not different from the challenges and deficiencies originating elsewhere in the criminal justice system. But the context of serious crime makes some of the issues, including structural problems and temptations, more visible. The following account of human rights implications is far from being complete:

First, the presumption of innocence (Article 6, paragraph 2, of the Convention) is of primary importance. The bearing of this principle is not yet fully clear. Let us take a judge who has, in order to meet the "reasonable time" requirement under Article 6, paragraph 1, of the Convention, selected for the verdict some few, exemplary offences from a more comprehensive charge (indictment). May he consider, in sentencing, the larger context of these offences? The answer will be negative; but this will discourage the prosecutor from agreeing to such a beneficial restriction of the charge. May prior similar offences, convincingly proved in the trial but not being the object of the charge, be considered in terms of evidence and as factors for sentencing? The answer is doubtful: does the requirement "proved guilty under the law" (Article 6, paragraph 2, of the Convention) imply a proper charge before evidence is taken?

The most important aspect, related to the presumption of innocence as well as to the fair trial and the defendant's right to defend himself (Article 6, paragraphs 1 and 3), is the right of the defendant to choose silence as a means of defending himself: the defendant has to be informed of this right before the first questioning by police; the freedom of his choice must not be impaired. This implies, in my interpretation of Article 6, that any factor which could discourage him from choosing silence as a defence, has to be avoided; in order to guarantee this freedom of

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choice, the silence may not be used as an argument for assessing the evidence or, more important, for sentencing. Moreover, any information given by the defendant owing to lack of information of his rights, should not be used for evidence or sentencing. Such an exclusionary rule appears to be gaining ground in Europe (cf. for Germany BGHSt 38,214) while the U.S. Supreme Court has expressed some second thoughts on its landmark Miranda decision of 1966 (384 US 436).

Secondly, the right to defence implies the right to have legal assistance, the information of the defendant of this right before questioning, and the real availability of such an assistance, if necessary, free of charge (Article 6, paragraph 3 b). Giving such an information, which may interrupt the flow of the defendant's words approaching a confession, is unpopular among the police, but necessary; it may even be legally required for the police to help an inexperienced or foreign defendant to get access to counsel, e.g. by giving him the telephone number of the attorney's emergency room (for Germany: cf. BGH StV 1996,187). Such rulings may seem to be too subtle under conditions where a sufficient number of defence lawyers is still lacking. But it is imperative that human rights are not only fixed on the paper but realised in practice.

Thirdly, in cases concerning serious crime, the management of evidence creates enormous problems. This applies especially to witness evidence. What to do if a witness called by defense counsel lives far away in a foreign country so that tracing his address, the often cumbersome machinery of international legal cooperation and possibly his unwillingness to appear in court threaten to prevent a trial or its conclusion "within reasonable time" (Article 6, paragraph 1)?

To what extent may written statements be read, and which are, in this context, the precise requirements of Article 6, paragraph 3d? In the field of drug trade and some other organised crimes (trade in weapons, etc) Article 6, paragraph 3d, of the Convention is in the very centre of the procedural problems: the eye-witness is frequently unavailable because the police department (Ministry of Interior, etc.) refuses to reveal the identity of an undercover agent or a private informant of the police. The reasons for such a refusal may be plausible: the life of the witness may be in danger; further work of the anonymous witness in the drug scene may seem to be indispensable in the interest of reconnaissance; or a promise of confidentiality shall be honoured. Here, the situation of the judge is quite uncomfortable. He is no longer effectively leading the procedure, being dependant on the willingness of the police to cooperate. Of course, a policeman may testify in open court, explaining what his undercover colleague or the private informer has told him. In as far as hearsay evidence is basically accepted, such a hearing is possible; yet it does not meet fully the requirements of Article 6, paragraph 3d, as the defendant and his counsel cannot directly examine the "real" witness (as different from the witness appearing in court). Some new legislations, such as the Dutch, merit close screening and may serve wholly or partly as an example for other countries; decisions of the Swiss Federal Court are coping with the problem plausibly. The decisions of the European Court of Human Rights in the Kostovski (1989) and Lüdi (1992) cases emphasise in an impressive way the need to take Article 6, paragraph 3d seriously. Many national courts, however, find loopholes in these decisions and seem to have, rightly or wrongly, the impression that the European Court of Human Rights has not yet fully arrived at drawing a clear borderline between the requirements of examining the real witness and the needs of "combating serious crime effectively". In many places, a formula is still in use according to which that special type of hearsay evidence may suffice if additional evidence is available. But what is "additional" evidence? One which renders the anonymous witness marginal? Or one which is relevant, however only in combination with the outcome of the hearsay evidence? In the latter case, the hearsay evidence remains a decisive

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factor for giving the verdict. The whole issue is so critical because the hitherto anonymous witness is far from being a typically reliable witness. Private informants who seek a promise of confidentiality may have a special interest in terms of gaining impunity from their own prosecution; they frequently act without any control. The problem with special methods is that they have, after being employed in combatting very serious crimes, the tendency to be gradually accepted also in other types of criminal procedure, thus diluting clear principles of human rights protection.

Fourth: sentencing. Capital punishment should have no place in Europe; the Council of Europe should be very strict in emphasising that the 6th Protocol is now an integral part of the European system of protecting human rights. The law requires from citizens that they respect human life under all circumstances. The credibility of this requirement is undermined if the state intentionally takes life itself. Moreover, the availability of capital punishment changes the ethics and self-definition of the judge, who should always be conscious that he may err and that therefore, even in the case of the last instance, some remedies are available in case such an error is detected. Capital punishment is based on a judicial self-definition that aims at infallibility.

Sentencing in the field of serious crime implies a lot of crucial problems. The longer the prison sentence, the less definable the criteria: who will argue that a ten-years sentence is moreappropriate than an eight-years punishment? With less serious offences, a difference of two years is of fundamental importance. The concern about the threat of organised crime must not obscure the fact that, with a view to individual guilt, there are many graduations, and that most of the participants of organised crime who are caught are of the lower echelons. How should we assess the individual guilt of a Columbian women who imports, knowingly in the service of an organised group, three kilograms of cocaine, hoping that the salary promised to her might improve the desperate situation of her family? She may claim that she was afraid of the reactions of the group in the case of her defection; how do we prove that this defence is wrong. Further: is it really necessary to react with very long prison sentences against those, who participate at the lower or medium levels in the organised international smuggle of stolen cars? The emerging European consensus on principles of sentencing (prison only as a punishment of last resort; reduction of length of prison sentences; assessment of individual guilt; avoidance of disruptive effects of the punishment as far as possible) should be effective also when perpetrators of serious, organised offences are sentenced. It must be avoided that the high level of prison sentences for dealers of hard drugs has a general impact on the sentencing system in the sense that the level of severity will increase generally.

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Written communication by Mr Shlomo Giora SHOHAM2, Professor of Law, Tel Aviv University, Tel Aviv

The situational aspects of crime prevention: the theoretical and philosophical foundations

The differences between the causal models of crime and the situational ones have already been highlighted by Sutherland who said,

"Scientific explanations of criminal behaviour may be stated either in terms of the processes which are operating at the moment of the occurrence of the crime or in terms of the processes operating in the earlier history of the criminal. In the first case, the explanation may be called 'mechanistic', 'situational' or 'dynamic', in the second, 'historical' or 'genetic'... Criminological explanations of the mechanistic type have thus far been notably unsuccessful, perhaps largely because they have been formulated in connection with the attempt to isolate personal and social pathologies among criminals. Work from this point of view has, at best, resulted in the conclusion that the immediate determinants of criminal behaviour lie in the person-situation complex."3

In the present paper, I would like to highlight the interactional model of situational violence, examine how violence may be predicted, and discuss possible modes of its prevention. There is indeed a link between predisposing factors on the biological, personal and social levels and the situational interaction, but the predisposition and situational aspects express themselves in different dynamics.

Predisposition to violence, as gleaned from various studies, may eventually be expressed as probability profiles, which would estimate the likelihood of an individual, displaying a given set of characteristics, to commit a violent act. However, the actual sequence of events precipitating the violence would in some cases take the form of a causal chain of interaction between criminal and victim. This sequential pattern could be ignited on the spot by exposure to a compromising situation; e.g., the ever-loving wife and her lover in the husband’s nuptial bed. Words hurled with obvious intent to offend would have the effect of switching Ego’s action (Ego being defined as the acting individual, plus his cognitive perceptions, and Alter as how the other in the dyadic interaction is perceived by Ego) to a different cognitive level, i.e., he would "see red". Other expressions may have this triggering effect on Ego because he defines them subjectively as humiliating, due to peculiarities of his own personality. The word "bugger" thrown at a latent homosexual or an expression questioning the virility of a man who has anxieties about his potency, may have the same effect. The conventional form of an offensive gesture, such as the twisting of a moustache and the emission of a snore in the presence of a devout Moslem, may have an even stronger escalatory effect. Such an exchange of words and gestures would not trigger immediate arousal to another cognitive level, but depending on the reaction, may gradually lead to the "point of no return", the threshold of violence.

The interaction between the perpetrator of violence and the victim operates as sequential cycles, with each situational cycle limiting the rational choice of each actor, so that in the end, the violent act erupts as an almost indeterministic sequence with very little rational choice. This, of course, assumes that each actor in the dyadic interaction picks up the cue which leads him to

2 Mr Shoham was not able to attend the Seminar.3 E. H. Sutherland and D. R. Cressey, Principles of Criminology, 7th ed. (Philadelphia: J. B. Lippincott, 1966).

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another limitation of rational choice and of violence-precipitating action. As we shall show, there could be a violence-non-precipitating decision effected by the rational choice of one of the actors so that the dans macabre situational sequence would be pushed away from the violent eruption.

THE SITUATIONAL MODEL

The structure of the relationships, which I hypothesise as determining acts of violence, would be as follows:

1. Alter transmits to Ego a pattern of communication, which is overtly or latently provoking;

2. The narrowing of the range of non-violent reaction leads Ego swiftly and inexorably to a limitation of rational choice and to a ‘point of no return’ where the violent option becomes highly probable;

3. In the course of the interaction, Ego makes an outward commitment to Alter or a relevant other, to commit the act of violence. This would further accelerate the generation of tension, and rational choice of violence-precipitating actions;

4. The violent act would be the cathartic release of this tension;5. It would be followed by a sense of fulfilment or homeostatic contentedness.

1. The provoking communication

The offender may be exposed to words, gestures or actions, which are culturally defined as provoking; e.g., gestures of obscenity which are performed by different fingers in different cultures. The communication pattern may also be provoking within the specific context of interaction between the offender and the victim, such as reference to some very touchy personal episodes or vulnerable character traits known only or primarily to the partner in the dyad. Finally, there may be words or acts neutral to Alter but interpreted as offensive by Ego. This could occur in confrontation of individuals from different cultures. We admit that a violent reaction, or one that may further accelerate the violent interchange, occurs where sublimation has not been possible in a small percentage of cases only; but these are the ones which we are studying. We shall first dwell on the types of non-violent reactions when the rational choice would be of violence-non-precipitating actions.

2. The alternatives to violent reactions

As I have assumed that the ‘point of no return’ involves the narrowing of the range of reactions to those which lead to a rational choice towards violence, I may proceed by eliminating the non-violent alternative choices. It is evident that the dynamics of the interaction are not one-directional towards violence, and the various forms of perception are not mutually exclusive. One form is the twisting of the incoming perception to fit Ego’s previously internalised stances, which can be analysed in the following categories:

a) Selective perception, which is not a "face-saving" mechanism, as described by Goffman, but a non-awareness of the provoking communication. This may happen when the communication seems so painful that its perception is evaded in self-defence;

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b) The differentiation process is another technique for utilising some demographic or social stratification characteristics of the provoker so as to avoid taking offence, such as "he is only a child", "what can you expect of a woman?", "these bums just have to be lewd and dirty-mouthed", or "I shall not lower myself to his level by answering him". The best illustration of this premise is in O. Henry’s The Coming-out of Maggie, where Dempsey Donovan, the Irishman, finds out that his opponent, O’Sullivan, is nothing but a ‘Dago’, to use O. Henry’s terminology, in disguise: "…and then Dempsey looked at O’Sullivan without anger, as one looks at a stray dog, and nodded his head in the direction of the door. 'The back stairs, Guiseppi,' he said, briefly. 'Somebody’ll pitch your hat down after you'". This rational choice process might also guard against taking offence even if the provoker is in a position of authority. Elia Kazan’s America, Americaand the numerous instances depicted in the novels of Kazantzakis describe the Greek as disregarding the insults hurled at him, since a barbaric Turk could never hurt the serene inner dignity of a Greek;

c) Finally, there are techniques for explaining away provoking behaviour. A prostitute interviewed in one of my previous studies4 related how her boyfriend had had sexual intercourse with a new girl in her presence. She did not mind, she said, because "The new girl had to be 'broken in' for business", while she herself was her pimp’s only true love.

The situational aspects of violence prevention, when applied to provoking communication, may be directed in mass immigration countries towards the media, law enforcement agencies, and social services. This should highlight the facts that provoking communications are culture bound, and that acceptable communication in one culture may be very offensive in another. As for the outward commitment, social services as well as law enforcement officers should be alerted to the fact that any outward commitment in the domestic scene between the members of tension-laden family is bound to exacerbate the possibility of violence; threats, displays of arms, positive verbal undertaking of violence should not be taken lightly, since any outward commitment fixates one of the parties on a violence-precipitating course, which becomes more and more difficult to cut. Hence, any threat within the domestic scene should be treated as a violence-escalating outward commitment, which might have fatal consequences, and treated appropriately by the social services and law enforcement agencies.

THE CYCLES OF VIOLENCE

The various types of interaction described above can be analysed as cycles of stimulus-response. A chain of cycles accelerates towards violence in the form of a positive feedback cycle which culminates in the blowing of a fuse, i.e., the violent act. When the interaction does not end in violence, the interchange may be likened to a negative feedback cycle. It should be pointed out that such acts may be further analysed into meaningful typologies, and the interaction can be related both to the involved and the passive actors. The following paradigm may be a useful framework for a typology of the differential perception of stimuli and the corresponding reactions towards violence, for each given cycle.

Figure 1.Differential perceptions and reactions towards violence or non-violence for each cycle of interaction.

4Shlomo G. Shoham, Social Stigma and Prostitution, British Journal of Criminology (1968).

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The axes of the paradigm represent the classical stimulus-response relationship. Stimuli may be either neutral or intentional. It may be pointed out that even at this stage the neutral stimulus is not detached from the probable reaction. The fact that a neutral stimulus appears in our paradigm of violence suggests the possibility that the perception of this stimulus might not be at all neutral. In other words, the stimulus specified as neutral is expected not to be perceived as such by the violence-prone, reacting Alter.

The interrelationship between the stimulus and its perception by Alter may be described by the four property spaces around the intersection of the axes. Of these, only two are relevant to our present context. These are the violent-realistic perception of the stimulus and the illusive-violent one. These may be arranged at the extreme planes of a space in a scalogram, utilising the Guttman-Lingol technique.

The main vectors portray the nature of stimuli as related to the perception of these stimuli. A positive stimulus would mean that Alter relates to Ego in a cordial or any other culturally approved manner. The positive perception of these positive stimuli would not, of course, result in violence, e.g., neighbourly exchanges of "good morning" and ritualistic predictions of the weather. If the stimulus is negative and the perception of it by Alter is either neutral or positive, Alter performs some perceptual juggling, which amounts to explaining away the offensive nature of the stimulus, e.g., when a gracious lady mutters to herself that this coarse and vulgar type cannot possibly hurt her feelings. A positive stimulus when perceived as violent, would be related to an illusive perception by Ego of Alter’s intention, e.g., a benign smile by a lad at a passing girl may be perceived by her as an offensive leer which calls for a violent reaction.

The predisposition towards violence can be measured by some standard instruments for perceptual twisting, e.g., the Petrie Augmentor and Reducer5. Another possibility may be the negative perception of a negative, i.e., offensive stimulus. This is, of course, the realistic perception of a fist in the eye as what it is meant to be. It should be stressed that the decision on the nature of a stimulus, as well as on the nature of a response to a stimulus, with a positive, neutral or negative grading, permits a wide range of stimuli-ranking vis-à-vis perceptual ranking. The dichotomy of violent and non-violent solutions is clearly apparent in our scheme, so that the cycle of interaction which constitutes an acceleration towards a violent solution is only displayed in the lower half of our paradigm.

Other components which may be correlated with our main axes are as follows: the magnitude of the stimuli would be ranked on the stimuli axis, according to an objective violence prone stimuli typology. The form of the stimulus could be physical (i.e., actual assault or other physical contact performed by Alter on Ego), gesture, mimicry, or other stances which are culturally defined as offensive, and verbal insults or provocation. These forms of stimuli cannot be ranked, because the magnitude for the first form might be the amount of force used as related to the physical perception of pain by Ego. The second may be related to a typology of gestures as related to the magnitude of obscenity or offensiveness as defined in a given culture. The third, verbal provocation, could be ranked not only by the offensive content of the words, but also by their pitch and volume.

5A. Petrie, Individuality in Pain and Suffering (Chicago: University of Chicago Press, 1968).

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The variables which relate to the perception axis are linked to the twisting of incoming perception, so that it better fits Ego’s previous normative internalisation6. This involves the various defence mechanisms, differentiation techniques and other processes of "explaining-away", which would influence Ego’s rational choice.

Figure 2.The dyadic interaction process, analyzed in terms of stimulus, perception, definition of the situation and response.

THE ESCALATION

The research model proposes to analyse the different steps of the rational choice of violence-precipitating actions within the context of the interrelationships among the stimuli by Ego, the perception of it by Alter, and Ego’s reaction. This model synchronises the various cycles into a continuous chain.

The vertical line represents the objective ranking of stimuli and responses (from neutral to negative) according to the average severity of the provocation they present to individuals in a given representative sample of the population. On this line, the first stimulus at the bottom of the line will be the trigger, and the last response at the top, the violent outbreak.

The model represents the interaction between Ego and Alter. The spiral curve delineates the dyadic process of interaction. Each loop stands for one cycle. Ego perceives the stimulus by Alter, and Ego’s response becomes the stimulus for Alter’s rational choice in the second cycle, which Alter is supposed to perceive and to which he is supposed to react in turn. In the case of escalation towards violence, the distance between the subjective perception and the objectively ranked stimulus increases with each cycle. For analytical purposes the process should be differentiated into two dimensions, represented in our model by the spiral curve and its shadow. The first dimension, the spiral line itself, is the process of perception of the stimulus. This perception is deepened, interwoven with, and at times is perverted by, the person’s background and personality, which constitute the second dimension - the shadow of the line. The outcome of these two dimensions is the definition of the situation which comprises the actor’s perception of the stimulus, the various factors which tend to augment or reduce the provocative meaning of the stimulus, and the sensitivities described previously when the actor relates the stimuli to himself. This definition of the situation includes also the individual propensity to react violently as measured by some biological factors, e.g., the amount of alcohol in the individual’s blood or a hypoglycemic condition, the degree of anxiety, fear and central nervous system excitation, or other aggressive traits which may be measured by various personality inventories and projective techniques.

The definition, as used here, of the situation is described by MacIver7 as a process of "dynamic assessment" which includes three stages:

1. A choice between alternatives which is made by the actor, based on his salient values and psychological needs in the given situation;

6Shlomo G. Shoham, Society and the Absurd (Oxford: Basil Blackwell Ltd.; New York: Springers, 1974).7R. MacIver, Subjective Meaning in Social Situations, in: Sociological Theory, 2nd ed. L. Coser & B. Rosenberg, eds. (New York: Macmillan,

1964), 252-7.

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2. With the decision, certain external factors are selectively rearranged and given subjective significance. This dynamic assessment brings the external world selectively into the subjective realm;

3. Finally all the factors which belong ‘to different orders of reality are determining conscious behaviour and are brought into a single order’. The single order is the definition of the situation directing and determining the response of the actor, which closes the cycle.

The responses are also scaled objectively for severity in the same manner in which we have ranked the stimuli. The responses may also be physical, verbal or gesticulative. Their ranking is carried out in relation to their cultural significance and legal severity as determined by the courts. It may be assumed that the stimulus-response relationship could be predicted. Deviations from this prediction may then be used as a hypothetical indicator for distorted perception and an illusory definition of the situation by the dramatis personae of the situational dyad of violence.

THE CYCLES OF INTERACTION IN VIOLENCE

In this section I shall deal with the situational aspects of violence, suggesting that a violent act may be best explained and understood by regarding the act as an escalating series of stimulus-response interactions between two persons. The basic unit of such a series is the cycle which is described and explained. A scale for measuring the intensity of the cycle may be constructed, and it could be adapted to different cultures. The scale is used to verify the suggested hypotheses that the intensity of stimulus decides the form taken by the interaction, and that the escalation towards violence occurs more rapidly when the provocative intensity is high.

The study of violence as a situational phenomenon contained in an interactional matrix of Alter and Ego has several important connotations. The first, obviously, is to add a new dimension to our understanding of violent acts. Second, it has important legal connotations. If a violent act is accepted as the inevitable result of a series of escalating stimulus-response cycles leading to a "point of no return", the overall importance of mens rea and criminal responsibility, as conceived by the criminal law, may be left open to doubt, as the question whether it is Ego or Alter who inflicts the final (legally-defined) violent blow is seen to be solely a result of the structure of the situation. Third, there are preventive connotations. Once the perspective is placed on the situational aspect, the position of contributory factors (such as availability of weapons, use of alcohol, etc.) becomes clear, and preventive policies with regard to these factors may be implemented.

The main hypotheses are that the outbreak of violence is the result of a series of interactions, called cycles, between Ego and Alter. Each cycle consists of stimulus and response, and given favourable circumstances, will effect a new cycle with a higher level of provocation and consequent reaction, until a "point of no return" is reached, after which the eventual eruption of violence is inevitable.

The following points are relevant to the primary description of our premise.

1. Subjective perception of stimulus: the stimulus may be either positive (provocative) or negative (non-provocative). The perception may be either realistic or non-realistic.

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The manner of perception of the stimulus may affect:

2. corrective techniques, leading either to escalation of violence (in the case where a stimulus is perceived, realistically or non-realistically, as provocative)

or away from violence (in the case where the stimulus is perceived, realistically or non-realistically, as non-provocative)8;

3. form taken by the cycles: in the event of violence, this is seen as a causal chain of interaction between Ego and Alter.

The form of the cycles will be effected to varying degrees by:

4. Content of the cycle: this involves the degree of provocation, objective and perceived, contained in the stimulus. The provocation may take the form of an action, gesture or verbal expression, and may have varying degrees of effect, in the light of specific cultural or personal connotations.

The interactional nature of these four factors, and their mutual effect on the nature of the cycle, can be represented diagramatically, as in figure 3.

Figure 3.

Negative ResponseNon-violentculturally approved interaction

Negative Stimulus

Conformity based on non-violent twisting of perception

Positive Stimulus

Illusive perception towards a violent solution

Realistic perception towardsa violent solution

Positive Response

The study of the actual process of eruption of the violent act does not take into consideration the predisposition to violence as measured by biological and personality variables. We feel that the interactional dynamics of violence have sufficient independent processes to warrant their separate treatment.

The study may concentrate on a stimulus-response interaction, and examine the nature of the provocation, the nature of the reaction, and the relationship between the two factors. These three components constitute one cycle, and each cycle acts as stimulus to the subsequent one.

8E. Goffman, Interaction Ritual: Essays in Face-to-Face Behaviour (Chicago: Aldine, 1967).

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A full-scale study of violence should include not only a study of the escalatory processes leading towards an eruption of violence (that is, verbal communication, gestures, and mutually understood symbols), but also a study of the factors which are linked to the avoidance of violence. The non-violent sequel to a tension laden interaction may be explained using the cognitive dissonance and balance models in social psychology9. It is feasible that homeostatic and congruity mechanisms may induce the actors to solve their dispute in a non-violent way. The present study, however, confines itself only to those interactions which escalate towards violence.

Similarly, many violent situations involve more than the two principal actors. Observers, both non-participant and participant, often play a part, even to the extent of an all-out brawl. Our theoretical model, however, involves the conception of violence as a dyadic type of interaction between Ego and Alter, or two groups in a dyadic interrelationship. This interaction takes the form of cycles, and our hypotheses are based on the assumption that the interaction towards violence takes the form of an escalating series of stimulus-response cycles as follows:

1. The nature of the response is in direct relation to both the form and content of the nature of the stimulus, so that the possible number of responses, and hence cycles arising from a specific stimulus, is limited;

2. The intensity of the interaction is inversely proportional to the number of cycles leading towards violence: that is, the lower the intensity of the interaction, the greater the number of cycles leading to violence, and the higher the intensity, the lower the number of cycles leading to violence.

Discussion

This study is only the beginning of the empirical verification of the intricate and vast field of the situational aspects of violence. I have established that the situational interaction of violence may indeed be quantified and measured, and have devised a measuring instrument. The cyclic conception of the escalation towards violence has been shown to be tenable, and we have also demonstrated that the escalation towards violence is related to the perceived intensity of the initial provocation. Finally, I have shown that there is a distinct relationship between the number of cycles, the intensity of the interaction, and the escalation towards violence. When the intensity is high, the number of cycles is less and the duration of the interaction is shorter. Per contra, when the intensity is low, the number of cycles is larger and the duration of interaction longer. We realise that our measures may be crude, and that their application to different cultural settings may involve the design of new scales. However, the first step in the investigation of the situational aspects of violence has been made, and any further contemplated research may do well to take our study as stepping-stone.

As I have shown, the situational aspects of violence may be quantified and predicted and situational crime prevention may be geared towards the aggressor-victim relationship when the violent person is a public official, a public servant or a law enforcement officer. In these cases, the public official and officer are, so to speak, ‘captive audiences’ and we could train them not to react to violence-precipitating cues by the potential victim. Training programs may be envisaged for police officers and public officials as well as prison officers, labor exchange personnel, health personnel, especially in geriatric and mental hospitals, as well as social

9Roger William Brown, The Principle of Consistency, in: Social Psychology (New York: Free Press, 1965), chapter 12.

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workers in underprivileged areas. In Israel, 35% of violence cases occur within the situational interaction of public officer and a client who becomes a potential violence victim or perpetrator10.

The essence of situational crime prevention in our context is to stress different aspects than those that have hitherto been highlighted. First, any threats within a domestic arena must be given full attention by law enforcement agencies, since any threat within the context of the pressure cooker of emotions within the family could lead to and accelerate the slide towards violence and murder. A special unit for domestic relationships should be established in conjunction with the women’s shelters, and any tell-tale signs of violence-escalating and precipitating behaviour within the family should be monitored. The idea is that any violence-precipitating actions which could lead to other cycles of violence-escalating interaction should be cut by police intervention or removal of one of the participants before the escalation leads to violence. As for the services, some training manuals should be structured and tested which show violence-precipitating actions, gestures, and words. Then serious attention should be given to adjust the verbal and action cues to the cycles of violence and to find ways and means to cut the escalation towards violence and to enhance violence-non-precipitating alternatives. The programs should, of course, be different for police officers, social workers, school officials, mental care facility personnel, retirement institution personnel, and for the staff of all other ‘total institutions’ in which patient-worker relationships could lead to violence. It is suggested that the various programs for situational violence prevention should be adapted to various cultures, since cues, interaction, words and gestures have different meanings and connotations in different cultures.

10Israeli Ministry of Police Reports, 1995-96.

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Interventions concerning theme 1.i.

Mr Gavril-Josif CHIUZBAIAN

At the end of the 20th century, respect for human rights has risen to the status of a religion and organised crime has begun to pose a serious threat to democracy.

The states of Europe have begun to create a genuine European legal area, in which the Council of Europe and the European Union play a major role in safeguarding and promoting the values they share. National authorities and domestic courts would benefit from knowing more about the abundant and well-balanced decisions of the Court and Commission. I will therefore reiterate my earlier proposal concerning the establishment of an Institute of European Law for the benefit of all the countries of central and eastern Europe. Romania is offering to provide the seat for such an institute.

Romania is currently carrying out a programme of reform and modernisation of its prison system, with three main aims: to establish an institutional set of standards, make its prison system more humane and modernise the prisons themselves thanks to technical and financial subsidies.

It seems obvious that it is impossible to achieve these aims without first ensuring that they are understood and have the backing of the entire government, of all the political parties and of society at large. It is with this in mind that the Ministry of Justice and the General Directorate for the prison system are endeavouring to open up to the media and co-operate with both Romanian and foreign non-governmental organisations. Finally, I would just like to mention that a prison-staff training programme has been set up in conjunction with "International Penal Reform", the Dutch Helsinki Committee, and Professors Turkens and King, well-known specialists in criminology.

Mr Alessandro ATTANASIO

The purpose of this intervention is to focus on the practical implications of the right to a fair trial with regard to the situation in Italy, where many lawyers express their concerns about this fundamental right being today jeopardized.

We will address three main violations of human rights in relation with the anti-mafia struggle engaged by the State in order to combat "organised crime".

The first area of human rights violation concerns the passage of the accused - both innocent and guilty - through the justice system. Under Italian law, for investigations to be carried out, there must be, first of all, a crime. Investigators are then obliged to collect evidence of involvement in such crime. What there ought not to be is a general suspicious attitude towards a specific person, family or area followed by investigations which then seek to establish links and complicity in whatever crimes occur a posteriori, for this leads to thinking that a person, family or area must be - at some point - guilty of something.

A second area of human rights violation concerns the position of the civil society in relation to people who, after being involved in mafia crimes, decide to collaborate with the State

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("pentiti"), therefore enjoying protection by the same. Before the mass-collaboration phenomenon, criminals could confess to their own crimes and those of their direct accomplices;in this sense, criminals who turned witnesses could give only disinterested evidence. But the gradual introduction of vested plea-bargains whereby people who committed crimes have an interest in "naming" other "criminals" in order to remain free, has resulted in a vast population of "ex-criminals" who are only formally supervised and who, in many cases are actually still in a position to engage in more criminal activities. By a tangled logic which seeks to place the "pentito" lifestyle above the safety and welfare of ordinary citizens, the State is, in fact, the underwriter of such criminal activities and breaches its obligation to protect its own citizens.

The third area of concern relates to the interpretation of the Law qua Law. In this respect a mention can be made to infliction of pre-trial custody in cases which do not fall within the framework provided for by the laws ("danger to public safety", "danger of tampering with evidence" and principle of proportionality between the measure, on the one hand, and the gravity of the alleged crime and the sentence likely to be imposed, on the other).

Mr Mario CHIAVARIO

I should like to begin by quoting paragraph 17 of the recent Recommendation R (96) 8 of the Committee of Ministers, which states that "rules governing evidence should be designed in such a manner as to pay due attention to the requirements of fighting against economic and organised crime". I have already addressed this issue in my written report, in the hope that the legal mind will analyse the problem in such a way that certain permanent guarantees, such as the right to a defence, do not become a pretext for putting obstacles in the way of legitimate efforts to obtain evidence of offences.

I understand the reservations and concerns expressed on this subject, both directly and indirectly, by Mr Kolesàr, Mr Horstkotte and Mr Attanasio. I share several of these reservations and concerns. However, our attitude to the matter should be both cautious and positive. It is in no way a question of giving up an approach focused on the rule of law and human rights as inalienable personal guarantees. Rather, we must free ourselves from a static and constricting view of guarantees and develop a more dynamic outlook.

The same applies to Article 6, paragraph 3.d, of the Convention, rightly considered as one of the pillars of the principle of adversarial proceedings. Should it be interpreted without taking due account of a context in which criminal organisations increasingly have the means to intimidate witnesses and tamper with evidence? Should it be interpreted as a clause which absolutely prohibits the use of the resources offered by new technology in order to combat such abuses and more generally overcome certain drawbacks? The cost would be too great, as the possibility, for example, of hearing testimony without the witness appearing in court seems desirable - and sometimes necessary - in certain circumstances: not just to guarantee the safety of "repentant" criminals but also to shield children or victims of sexual abuse from fresh psychological stress arising from direct contact with their attackers. From that angle, the right to adversarial proceedings requires adjustment in respect of witnesses.

Recent Italian legislation seems to offer a fairly good illustration of that need for adjustment. Article 147bis, added to the provisions of the Code of Criminal Procedure, provides that the examination of witnesses not present in court must fulfil the conditions concerning the

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visibility of persons summoned as witnesses and the context. In any case, the first signs of a response, albeit a partial one, to this new challenge for the proper administration of justice in Italy confirm that it is a sensitive area.

Mr George ANTONIU

In Romania, the transition to democracy has been accompanied by a resurgence of crime that the population cannot accept as the price to be paid for its integration into Europe. This seminar should provide solutions which can help Romania to find effective methods of dealing with the problem by means of legislation.

The new methods used in organised crime must be countered by new judicial resources. Traditional legal methods are by no means capable of dealing with crime. With this in mind, the European Convention on Human Rights should be studied with great attention.

Mr Aldo GRASSI

The fight against organized crime has led the Italian State to introduce some important modifications of its laws, including - among others - two new crimes which made possible to consider as independent indictable offences such crimes as mafia-type criminal association (more severely punished than ordinary criminal association) and terroristic criminal association. In addition, a "reward legislation" has been introduced, considerably reducing sentences and allowing for favourable prison treatment for those (pentiti) who detach themselves from the criminal organization and decide to cooperate with the State.

The pentiti have made it possible to identify a number of criminal associations as well as many criminals belonging to the same and quite a considerable amount of committed crimes. Their declarations, together with the principle of the compulsory nature of penal action (entailing that even those who cooperate with the judicial authorithies must be tried for all the offences committed by them), have led to the need to take proceedings simultaneously against a large number of defendants and has given rise to "maxi trials" of hundreds of people accused both of associative and other crimes.

Although these massive trials derived from the necessity to combat organized crime, the phenomenon of "maxi trials" is not necessarily linked to organized crime. Experience in the administration of justice leads to believe that the so-called logic of thinking in large numbers will cause the dangers and the risks of these large scale enquiries to outlive the specific phenomena which gave rise to them (e.g. massacres, railway or sea disasters where the damaging effects involve a very large number of victims, and again mass illegality phenomena like petroleum smuggling or traffic in medicine price-tags). Such dangers and risks concern specifically the role of the public prosecutor: there must inevitably be a limit to the attention that judges can pay to their requests. Moreover, the public prosecutor will hardly be able to be acquainted with all the documents regarding the proceedings, while the exceptional duration of the debates makes it impossible to be present in person to every single hearing.

Coming to a conclusion, my personal experience as a member and president in charge of the Court of one of the maxi trials held in Italy, leads me to express the fervent hope that in the

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future the recourse to maxi investigations and debates for the simultaneous trial of hundreds of people will be kept to a minimum, for the price to be paid in terms of money, hard work and risk is not necessarily compensated by the validity and usefulness of the results.

Mr Jens MEYER-LADEWIG

While it is true that there is a considerable increase of serious crime and a correspondent pressure from the public opinion on the States to adopt draconian penal measures, it is also true that political systems based on democratic principles must have the force to resist the temptation to take such measures which jeopardize the protection of human rights.

This is obviously an easier task to perform if the country can count on legal provisions estabilishing guarantees for the protection of human rights, especially at constitutional level, where it is more difficult to introduce modifications. International cooperation is also paramount in this respect, the European Convention on Human Rights having particularly proved to be very efficient. It must be emphasized, however, that an international system of protection of human rights cannot work properly if there are no reliable mechanisms and instruments within the single States. When politicians are faced with public desire for the strong arm of the State, it is also easier to resist if there exists a judiciary system that is in a position to combat serious crime in an efficient way.

A second important point is that in public discussion as well as in legislation it is not only the rights of the offenders that have to be protected, but also the rights of the victims. I feel that this is a fundamental point for public discussion, because people do not believe that they can safely live in a country if there is not sufficient protection for the victims as well.

Finally, it must be said that attention must now focus on implementation. The legal systems of most European countries, in fact, are in themselves sufficient to both combat crimes and protect human rights. The problem is therefore a better implementation of norms which already exist.

Mr Régis de GOUTTES

May I remind you of the example of the abolition of the death penalty in France:

In October 1981, at the initiative of the Minister for Justice, Robert Badinter, the French Parliament abolished the death penalty. At that time a referendum would probably have resulted in retention of the death penalty. The Minister for Justice therefore considered it the duty of Parliament to take the decision in a matter on which public opinion was not ready. I refer you to Mr Pierre-Henri Imbert's remarks on this point.

This courageous decision changed France's international image and marked the end of her isolation on this matter, particularly in the Council of Europe. It also signalled the end of the serious problems France encountered when it requested the extradition of criminals from countries which had abolished the death penalty: such countries required guarantees that the extraditable person would not be executed, which gave rise to complex problems from the standpoint of the French Constitution. It became possible to discuss other problems which had

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previously been overshadowed, eg thorough reform of the criminal justice system. Moreover, the abolition of the death penalty did not have the consequences which it was feared it would have on crime rates.

Now, due to the media coverage given to violent crime, and particularly to crime affecting children, the debate has been reopened and there is pressure in some quarters in France for the death penalty to be restored.

However, the French Government, which, as you know, ratified Protocol No. 6 of the European Convention on Human Rights in 1986, has successfully withstood this pressure.

Mr Robert FICO

There are several special circumstances which need to be taken into consideration when dealing with the fight against organized crime in post-communist countries and, particularly, Slovakia. Firstly, there are serious difficulties in determining the extent of organized crime: the police and the State do not provide the public with data or indications of relevant measures to be adopted. Secondly, the police is characterized by a high level of corruption. Thirdly, the State is incapable to ensure protection not only to victims and witnesses, but also to judges and prosecutors. In the fourth place, the adoption, in 1994, of a law against money laundering has not proved as effective as it was hoped. Finally, Slovakia has adopted measures providing offenders with a rather high standard of protection, which have generally been interpreted by the public opinion as a weakness of the State in the fight against crime.

All the aspects mentioned above have resulted in the citizens loosing confidence in the State, which is regarded as not capable to deal with organized crime and protect the civil society. In order to reintroduce this confidence, cooperation with the other post-communist countries and the Council of Europe is absolutely necessary.

Mr Loukis LOUCAIDES

Our topic of today is the compatibility of human rights with combatting serious crime. It is clear that the European Convention on Human Rights makes no distinction between serious crime and other types of crimes; you cannot have different standards in order to help the effort to combat crime. At the same time, it is not possible to have an effective campaign against crime, if there is a strict compliance to the Convention.

There has been an effort to adjust the demands of the Convention in order to combat crime effectively. Personally, I express my concern, because this may eventually lead to the undermining of the credibility of the Convention. The acceptance of compromises and solutions, which are not in strict compliance with the Convention, will open the door to the collapse of the values, which are enshrined in the Convention.

What else can be done to fight effectively against crime, while respecting the Convention at the same time? I think the solution is given by article 15 of the Convention itself. This article permits any High Contracting Party to take measures derogating from its obligations under the Convention in time of war or other public emergency. In my opinion, a situation of serious and

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organised criminal activities of the Mafia type (killing of judges and police officers, threatening politicians, etc.) could be considered as public emergency. It is better to have a clear solution under the Convention and to derogate from the obligations, such as those under articles 5 and 6, instead of finding solutions outside the scope of article 15, which will undermine the efficiency and effectiveness of the Convention. However, I have personnally noted, that there exists an understandable reluctance of applying this article by the Member states, for political reasons.

Mrs Kathleen MAHONEY

Guided by the principles of equality and the right to equal protection and benefit of the law, it seems to me that victims of crime must be entitled to have their human rights respected to the same degree as that of the offender. It has to be noticed that serious crimes of a particular nature are unique to certain groups in society, such as women and children: these crimes need to be considered as serious as the ones committed against the dominant majority. Therefore, a first way for the legal system to combat efficiently serious crime is to ensure that it is an inclusive concept, otherwise some forms of serious crime could go unnoticed. Examples of crimes which may fall under this category are: rape, commercial trafficking in women and children, domestic violence and child pornography.

I would like to share with you some suggestions that are being made in this context both in Canada and in the United States. In the area of rape, for example, the whole issue of consent is being reexamined to see if it is relevant at all to the crime, particularly in areas of position of trust between the victim and the perpetrator, and so are the issues related to age and consent given by third parties to sexual assault. Human rights concerns suggested considerations with respect to children and victims of domestic violence giving their evidence safely without experiencing extreme trauma or threats to future safety. Concerns have been voiced as well regarding the existence of provisions to warn victims with respect to the release of their offenders from prison. In addition, it has been noticed that scarce efforts are made in general to document crimes against children, and the consequent lack of data entails that there is no official recognition of this as a serious crime. Furthermore, international cooperation has not succeeded so far in reaching an agreement on what is to be meant by "child" and without such a definition it is very difficult to design legal measures that will assist in the protection of the same, even for the purposes of commercial and sexual exploitation. Finally, very few efforts seem to be directed by international trade agreements to address the problem of the billions of dollars in trade of both child pornography and women and children: these serious crimes lack therefore of the protection that would be available through the sophisticated mechanisms which have been developed by the drafters of such agreements to prevent other forms of crime.

Ms Lynda HEIMS

I would like to return to the topic of the collaboration programme in Italy, which was ealier presented by Mr Attanasio. I will continue by talking about what we have called the "fluid interpretation" of the law and how it pertains to pre-trial custody. Under Italian law, there are only two criteria for pre-trial custody, namely "danger to public safety" and "danger of tampering with evidence". Between jail and freedom there is a spectrum of other alternatives, such as home arrest or reporting regularly to the police. Every measure must, by law, be proportionate to the gravity of the alleged crime and projected possible sentence. This is

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obviously in contrast with the use which has been made of pre-trial custody in several cases where guilt by fragile association has been utilized as a pretext for the pursuit of careerism or the persecution of political opponents on the part of law workers.

In Italy it is perilously easy to become linked to organized crime, because the link is in the eye of the beholder, namely the state instrumentalities, police with overactive imagination, ambitious crime-busters and politicians looking for an easy vehicle. What is always last on the agenda is the protection of human rights. Errors in criminal investigation are often predictated on the assumption that there is something peculiarly Sicilian about the phenomenon of organized crime, yet it must be said that organized crime is precisely that, whether in Sicily or other parts of the world.

The extinction of organized crime is an issue to which the whole community aspires. But this is tangential to the emergent problems of the erosion of human rights by a well-organized and equipped state: we must bear in mind that the construction of immanent social collapse has been a common element in paving the way for repressive measures to be imposed on whole communities.

Moving to the sequence of the trial itself, the lawyers are extremely restricted in the exercise of their duties. The examination of evidence is traditionally conducted in the presence of the accused, but when we consider the cross- examination of collaborants, we find that they are sometimes not even present and that, when they are, they do not speak to the court, but they face the magistrate screened by a barrier of police even when answering lawyers' questions. Furthermore, the collaborant answers the questions of the persecution, but he may refuse to answer the cross-examination.

Mr Bertel ÖSTERDAHL

Within the Council of Europe's programme for support to eastern nations in reforming their prison systems, it has become natural for the nordic countries help the closest neighbours: Estonia, Latvia and Lithuania. For almost two years, there have been formal agreements between the authorities in each of these countries and the Prison and Probation Services in our countries.

The Council of Europe has estabilished a working party called "The Nord-Balt Group", consisting of representatives from each one of both the nordic and the baltic countries. This group coordinates the supporting activities. One result of the coordination is that in the future Denmark and Finland will concentrate their efforts towards Estonia, Norway towards Latvia and Sweden towards Lithuania. All activities carried out are based on the inspection reports produced by the Council of Europe.

The first step in the Swedish engagement was to provide information about the European prison rules and the main principles and ideologies behind western european policies, penal codes and regulations concerning prison and probation. A system of so-called twin prisons has been established between Sweden and Estonia: three Swedish prisons have each got their counter-part in Estonia (the same system has been established also towards Latvia). The idea behind the system is to estabilish personal contacts between basic staff in the prisons involved, for it is believed that, in the long run, these face-to-face relationships might be the best way to

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implement a new attitude towards prisoners. What has been done so far could be described as an attempt to reform the system through the staff and the civilian service and some concrete and positive results have been achieved already.

Mrs Ilina TANEVA

While the legal reforms in Bulgaria are being carried out efficiently and meet european standards, we face serious problems with regards to the implementation of the law, which are due to different reasons. As far as criminal law is concerned, it must be noted that with the fall of the totalitarian regime, society has undergone sudden changes, which allowed organized crime to penetrate in the state itself while both society and state authorities were completely unprepared.

A second problem concerns the lack of new well prepared staff which could replace the communist regime officials. In addition, at the moment there is no law in Bulgaria concerning the status of state officials so that people who work within the state authorities are not sure about their future. This aspect, in combination with the economic situation, makes them easy preys to corruption.

Thirdly, when dealing with crime, state authorities do not have an appropriate human rights approach; on the other hand, the society itself is not ready to cooperate with the authorities they have lost confidence in. The result is - on a human rights level - that both the criminals and the victims are not protected.

It seems to me that the role of the Council of Europe in this field should be to give assistance through practical suggestions. It is not the law that needs to be changed, but the implementation that must be rendered more effective. Seminars should be organized during which prison administrators and police officers can exchange practical experiences.

Mr Carl-Henrik EHRENKRONA

This intervention aims at making three remarks on different issues which have been faced in the seminar so far. Firstly, this session has shown that combining a discussion on serious crime and human rights is difficult due to the wide notion of serious crime, which includes, on the one hand, "traditional" serious individual crimes such as murder, rape and child abuse and, on the other, organized crime. The problems that arise within these two crime categories are different. While it should be beyond doubt that the first category of crime can be dealt with by using the ordinary legal procedures, including the existing legal safeguards to protect the rights of the defendants and detainees, one could question whether it is possible to manage organised crime which creates a situation which threatens the very fundaments of the State, while ensuring the legal protection accorded to the individual under international law and human rights standards. It is important to clearly differentiate between these two categories but it is obviously necessary to uphold respect of human rights in both cases.

With respect to the derogation contained in Article 15 of the Convention, to which other speakers have referred, it must be stressed that this provision is applicable only in extreme situations threatening the life of the nation to use the wording of the Article. Derogation must be

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regarded as a last resort and states should not rely on it as a means to combat crime. When a state is forced to apply Article 15 this very fact can be said to constitute a failure regarding how to handle a critical situation in the state.

A final remark should be made concerning the Convention states' educational responsibility. In order to combat public pressure towards the restoration or maintenance of the death penalty or the setting aside of the principle of guilt beyond any reasonable doubt, the Convention states have a duty to provide education and to inform the public so that upholding human rights obligations, even when combatting serious crime, is an absolute primary concern and that the death penalty must be regarded as an obsolete criminal sanction which serves no purpose in a modern society. Should the states fail in this respect, this might imply a serious threat to the democratic system for - in the long run - it is not possible to maintain a legislation which does not enjoy the support of the community and public opinion.

Mr Domenico CUCCHIARA

One of the most alarming phenomena of our time is the sudden rise in organised crime, which flouts inalienable human rights and damages the cohesive fabric of society. The population is made to feel insecure both by the methods used by criminals and by the impunity from which they benefit as a result of the inefficacy of the methods used by the police.

If we are to talk about organised crime, then we must also broach the subject of terrorism. This phenomenon has gradually evolved from the elimination by a clan of some of its own members to the elimination of representatives of political power. This obviously also applies to the evolution of the mafia in Italy.

At the same time there is a resurgence of organised crime with the development of phenomena such as illegal data processing, money laundering and the "tangentopoli" ("bribesville").

The challenge facing crime policies is not to eliminate organised crime but to keep it within limits acceptable to society. It has therefore become necessary to have a balanced policy of crime prevention which respects fundamental human rights.

In Italy, we are obliged to note that the increase in the number of legal rules, following opposing trends, has proved ineffective. At first, Parliament passed severe laws in the hope that the increased severity of penal sanctions would bring down the crime rate. This failed to have the desired results and subsequently led the Italian Parliament to introduce diametrically opposed solutions, i.e. a series of extenuating circumstances for criminals who helped to identify other criminals. This new policy gave rise to a moral controversy, for this system is based on the use of informers and gives repentant criminals power over the lives of others, not because they are presumed to have been morally rehabilitated but simply in their own interests.

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With a view to speeding up proceedings, changes were also made to procedural law and resulted in the introduction of a new code of criminal procedure in October 1989. This code emphasises the accusatorial nature of the proceedings by distinguishing the tasks of the public prosecutor in charge of the preliminary investigations on the basis of which the charges are brought from those of the judge, who is now only responsible for "rubber stamping" the evidence adduced, without due process of law. As a result the endeavour to combat crime has led to the introduction of rules which are incompatible with human rights and in particular the adversarial principle.

In view of such aberrations, the Italian Parliament has devoted its attention to various bills amending the 1989 code of criminal procedure and it is hoped that they will result in court proceedings which respect fundamental human rights more fully.

Mr Mihai MAROZ

After 1992, steps were taken by Parliament to bring Romanian legislation into line with international human rights law.

Let us first consider the Constitution. Section II of the 1992 Constitution embodied a whole series of fundamental rights of the first, second and third generation. Moreover, Article 20 of the Constitution lays down the principle that the interpretation of constitutional provisions must be compatible with the Universal Declaration of Human Rights and with the international treaties to which Romania is party. In cases in which domestic laws and international rules are incompatible, the latter take precedence.

Secondly, let us look at the legislation. Laws Nos. 40/1990 and 26/1994 stipulate that one of the main duties of the Ministry of the Interior and of the police is to safeguard life, physical integrity and the freedom of the individual. Amendments to the criminal code and to the code of criminal procedure mean that the death penalty has been abolished, torture and ill-treatment are punishable by law and legal safeguards have been introduced with regard to criminal investigations and pre-trial detention.

Lastly, Romania has ratified important international instruments for the protection of human rights, including the European Convention on Human Rights.

The 8th and 9th United Nations Congresses on the prevention of crime and the treatment of offenders were of considerable importance in ensuring that the police applied these principles to its work in these fields.

The current resurgence of crime has led to the conclusion of international agreements on how to combat this phenomenon effectively and to the establishment in 1995 of an advisory board responsible for co-ordinating the work of ministries and non-governmental organisations on preventing and combating crime and for ensuring prevention by non-repressive means.

Following Romania's ratification of the European Convention for the Prevention of Torture, the European Committee visited Romania in September 1995. As a result the Romanian police re-examined their crime prevention strategies, attaching particular importance to the use of non-repressive methods. The recommendations made by the European Parliament

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in its resolution of 16 September 1996 with regard to the training of police officers and their supervision also aroused particular interest. In this connection, the Romanian police-force is currently being modernised and the international standards laid down in the Code of Conduct for Law Enforcement Officials adopted by the United Nations in its Resolution No. 34/169/1979 is now being applied.

Mr Juraj KOLESÁR

During the seminar, the issue of protection of both the witnesses and the victims has been discussed on several occasions. In Slovakia as well as other countries such a protection, although provided for in the law, is very difficult to ensure because of the small size of the country. Therefore, my suggestion concerns a possible cooperation between states which could guarantee to the person who collaborate with the judicial authorities due protection outside the country. This obviously entails cooperation between the police of the states involved.

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THIRD SESSION

Theme 1: means and action to combat serious crime effectively while respecting human rights

ii. other means (crime prevention, social action - employment, young people -, urban policy, etc.)

Report presented by Mrs Marie-Pierre de LIEGE, Judge, seconded to the Institute of the Arab World, Paris

Crime prevention and social development in france

A look back through history shows that periods known for insecurity and higher crime invariably saw profound economic or social change, such as industrialisation, rapid urbanisation, economic crisis, political transformations and even war. This simple fact is sufficient to demonstrate that, statistically at any rate, crime as a phenomenon is not unrelated to other forms of disorder or difficulty.

Whether in the United States and western Europe since the 1970s or in central and eastern Europe more recently, the question of "insecurity" has gone hand in hand with economic, social and political upheaval, becoming a matter of priority for many States and decision-makers. All seek better strategies to contend with this phenomenon, but as yet, no one seems to have found the "panacea".

Responses to crime have varied quite widely from one period to another and from one country to another, ranging from a failure to recognise difficulties and an abdication of responsibility on the part of the public authorities to policies focusing exclusively on punishment, involving large-scale reliance on prison and harsh sentencing. Between these two extremes, there have been attempts to deal with the problem by emphasising social and economic development, equal opportunities and, hence, the reduction of social tensions, and by giving priority to crime prevention, the rehabilitation of offenders and the fight against recidivism.

In an effort to deal with crime, France itself has attempted a variety of methods, from which a number of lessons may be learned.

First, however, some comments are called for, as the work of this session is concerned with means other than strictly punitive ones to combat serious crime, namely preventive action in the fields of social policy and urban development.

One cannot discuss crime prevention and social development in a meeting on the subject of serious crime without first making a number of preliminary remarks.

• For a long time, no distinction was drawn between the different types of crime; the response was the same: treatment through punishment or nothing.

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• Then the interest of the international community focused for a while on two types of crime originally perceived as being separate:

- on the one hand, there is serious crime, whether organised or not, which leads above all to a mobilisation of the state law-enforcement apparatus, at times requires the use of technology and considerable means to fight it and entails international cooperation, harmonised legislation and effective prosecution and punishment. When we talk about this form of crime, we are referring, more or less consciously, to a small number of crime "professionals". Italy was one of the pioneers in this area. It is a form of crime that is not very visible, but has a heavy impact: the cost of economic crime alone is estimated to amount to 90 % of the overall financial cost of all crime;

- on the other hand, there is everyday, ordinary, less serious crime, often known as urban crime. It is much less professional, but many more persons, especially young people, are occasionally or regularly involved. It is also much more visible (accounting for 80 % of crime statistics), and is closer to people, engendering a sense of insecurity. It is very directly linked to social development, people's difficulties, unemployment, consumer attitudes and the sense of a bleak future: in a word, it is intimately associated with the economic crisis.

In the light of this crisis, the usual penal responses often seem inadequate, belated and inflexible, and to have a desocialising effect. Treating such crime means treating society and its ills. During the 1980s, France made this type of crime a priority and produced entirely new strategies involving in a local partnership all those active in the penal process and social development.

In an approach that is confined to these two phenomena, it may appear naive or in any case inappropriate to speak of "other means" of combating serious crime: "professional" criminals (large-scale traffickers or financial criminals who offer or accept bribes) often come from a sort of elite which knows no social problems (businessmen, elected officials, lawyers) and thus need no help with social reintegration.

The only reason why this question of "other responses" for combating serious crime makes any sense is because today there is a much better understanding of just how interrelated serious and petty crime are.

For serious crime, petty criminals often serve as:

- a "breeding ground", one of the first places for recruitment being prison;

- a "support" that major criminals rely on for back-up work: preparing the crime, being on the lookout, disposing of the merchandise, seeking customers. This essential cooperation is particularly visible in the area of drug trafficking and terrorism, but also in mafia organisations.

One element that is new in this regard is the increasingly frequent involvement, among petty criminals, of entire family or social groups, which at first tolerate and eventually support them. This phenomenon is associated with unemployment and the lack of other resources, in a context in which the fruits of crime constitute a real "substitute income".

These people regard serious crime as something positive, because:

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- it provides income;

- perpetrators of serious crime often invest in difficult neighbourhoods in order to "launder" money there (shops, restaurants, etc.);

- it ensures a degree of local social order, because major criminals do not want to be disturbed in their activities by a too frequent presence of the police;

- lastly, those concerned often do not notice the adverse consequences of such activity for society.

Hence the importance of combating economic stagnation, the social crisis and the growth of less serious crime by conducting a crime and recidivism prevention strategy and attempting to keep serious and petty crime more separate from one another.

There are a number of ways that this might be done, for example by keeping the two kinds of criminals apart in prison, ensuring that the public authorities control the drug supply and promoting social resistance to crime by furthering education, instilling values and providing people with other ways of achieving social and economic fulfilment so that they can see that, even if they are unemployed, they have the potential for things other than committing crime.

In the light of these two types of crime, there is a need to introduce new, coherent and complementary strategies and ways of organising social and penal machinery:

• the fight against organised crime calls for specialised police and courts which often need to be organised at a high level, and indeed internationally;

• the fight against ordinary crime calls for:

- local police and courts that are well integrated in the community and in close contact with all elected officials, public and social services, etc;

- police and courts organised for some purposes on generalist lines and for others (drug addiction, victims of violence, etc) on specialist lines.

Having concluded these comments, we shall now briefly review the various aspects of penal policy in France and then consider in greater depth the strategy experimented with in recent years of crime prevention based on social development.

I. HISTORY OF THE FIGHT AGAINST CRIME

I.1. Human rights as foundations of social and criminal policies

The French Declaration of the Rights of Man and of the Citizen of 1789 recognises a number of fundamental principles, which have been reasserted since then in the various French constitutions and in the Universal Declaration of 1948.

These include:

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1. the principles of equality and fraternity;2. the principles of liberty and security.

Since then, successive political strategies have sought to give substance to these principles.

• On the basis of the principles of equality and fraternity (today one would tend to say "solidarity"), a tradition has been built of sound social policies guaranteed by State and community: state-funded compulsory education, a system of social security (to guarantee the right to health), pensions and family benefits, paid holidays, maternity and child welfare, housing benefits, guaranteed minimum wage, etc.

In the name of these principles, the community sets out to maintain a certain balance between citizens and to offset inequalities to the greatest extent possible, usually by providing assistance in the form of benefits for individual recipients.

• The principle of "safety", described in the 1789 Declaration as a "natural and inalienableright of man guaranteed by a public power instituted for the benefit of all", is the foundation of our system of law and criminal justice. At the same time it creates a permanent legal and political tension between safety (now usually referred to as "solidarity") and "liberty".

For a long time, the State responded in a completely different manner to these two categories of obligations, which were perceived as unrelated to each other:

• social policies served to "assist" people in danger of becoming alienated from society;

• criminal policies were designed to ensure security, punishing those who undermined it by breaking the law; that was another way in which people became alienated.

For many years, combating crime was thus confined to prosecuting and punishing offenders. In actual fact, the choice of punishment was limited to fines, imprisonment - a kind of "banishment" from society - or capital punishment.

Immediately after the end of the second world war (under the impetus, it is said, of "decent people" who had experienced prison), France saw the first signs of change, the two hitherto separate strategies gradually becoming more and more interdependent. Criminologists and those in charge of criminal policy grew increasingly interested in possibilities for treating crime as a social problem.

I.2. Punishment and/or rehabilitation?

The first step, and by no means the least important one, was taken by introducing the possibility for the children's judge to impose, instead of the usual forms of punishment, educational measures for juvenile offenders and for minors in danger. Later, laws were passed making provision for release under certain conditions (judicial supervision, release on parole and probation), which increasingly took on a socio-educational character, and alternatives to imprisonment (suspension of various licences, confiscation of property, community service). In the 1970s and especially the 1980s, emphasis was clearly placed on the need to give priority to

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the rehabilitation of offenders; this often implied a better socialisation, i.e. a return to employment, health care, housing ...

All these measures helped and assisted the offender, in exchange for varying degrees of supervision by the police, the courts or social workers. Aimed above all at preventing recidivism, some of these measures may, owing to their coercive nature ("either you comply with them or you'll return to prison"), violate certain freedoms to an extent (prohibition on frequenting certain places or keeping company with certain persons, obligation to submit to treatment, seek employment etc.). However, given that there are measures applied in accordance with judicial decisions, the restrictions that they place on the rights of the individual, in so far as they do not violate his or her fundamental rights (dignity, privacy, integrity, procedural rights, etc.), do not pose any particular problems.

I.3. From punishment of crime to its prevention

The beginning of the 1980s saw a shift from a policy of treating the offender, of responding a posteriori, to one that focused on crime prevention as a social problem.

Crime soared throughout the 1960s and above all the 1970s, and with it came a perceptible heightened sense of insecurity (twice the number of offences in 1975 as in 1967, five times as many armed robberies, twice the number of hold-ups). This development affected towns in particular, with a noticeable increase in the less serious offences (theft, damage to property, etc) that created a strong feeling of insecurity among the population, 67% of those questioned stating at the time that they felt less safe.

This situation came about and worsened against the backdrop of an incipient economic crisis.

In this context, the usual ways of fighting crime seemed insufficient: reliance on the police and the courts to respond to urban crime, whose perpetrators are difficult to identify (success rate in solving cases: about 20%), remained the exception, procedures and penalties were often considered too cumbersome and ill-suited to "petty offenders", and imprisonment was denounced as encouraging recidivism (approximately 50%) and even the transition to serious crime.

Politicians could not remain indifferent to these developments, insecurity having become a major concern of the State.

The government of the time, after attempting a strategy that focused on treating the phenomenon as a social problem rather than relying on punishment after the fact (Peyrefitte's report on violence11), yielded to the pressure of public opinion and eventually, just before the presidential election of 1981, passed a repressive "security and freedoms" act which was sharply criticised by the opposition.

Several months later, the Left came to power and immediately was faced with an outbreak of urban violence requiring it to find novel responses to a number of problems.

It had to:

11Réponse à la violence; Documentation Française 1977.

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- deal with the problem of crime, not ignore it;

- cut short the exploitation of this phenomenon for political purposes;

- come up with new and more effective ways of combating crime, not through massive additional expenditure, given the already difficult economic situation, but through a redeployment of resources.

I.4. A pragmatic approach and partnership structures

Aware that France's problems were not confined to a problem of urban crime but also reflected real difficulties of urban social development, the government of the time commissioned two reports:

- in May 1982, the Prime Minister entrusted 36 mayors of all political leanings with the task of carrying out, under the guidance of Mr Gilbert Bonnemaison, a study of problems relating to security and making proposals for contending with the growth in the less serious types of crime. More than 800 mayors were consulted, and the final report, unanimously approved in December 1982, proposed specific measures, based on the local experience of the members of the commission and their colleagues.

The main thrust of the report12 can be summarised as follows:

"Security must not be a matter for the police and the courts alone: it must be a matter for all. Criminal acts must not go unanswered.";

- another mayor, Mr Dubedout, was asked to analyse the difficulties that certain urban neighbourhoods were encountering in all spheres and to make proposals for furthering their social and economic development. This report laid the foundations for an integrated, partnership-based urban social development policy.

At first, these two problems - crime prevention and urban social development - were addressed independently. Then, in 1988, the two national commissions were merged, to form the "Interministerial Delegation for Urban Affairs". This body received fresh impetus in 1991 with the setting up of a Ministry of Urban Affairs, which has continued in different forms under all subsequent governments, including the present one.

Today, "crime prevention" is one of the priorities of the Ministry of Urban Affairs, alongside urban planning and social and economic development, this all being part of one and the same overall integrated approach, known as "urban policy".

II. THE FIGHT AGAINST CRIME SINCE 1982

The recommendations of the Mayors' Commission on Security have profoundly marked French strategy in fighting crime, and urban crime in particular. The very title of the report was highly programmatic: "Combating crime: prevention, punishment, solidarity".

12Face à la délinquance, prévention, repression, solidarité - Commission des maires sur la sécurité -Documentation française 1983.

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II.1. The diagnosis

The most important elements of the diagnosis, drawn from the experience of all these mayors and forming the basis for the new strategy, are as follows:

- The traditional approach in terms of police and the courts is insufficient for controlling crime;

- The factors involved in crime are very similar to those that lead to suicide, alcoholism, drug addiction and mental illness, notably: grave changes in family life, worsening housing conditions, unemployment, the disappearance of informal or traditional methods of social control and the absence of leisure or cultural activities. Needless to say, these factors are exacerbated in a context marked by large-scale and long-term unemployment, expanding drug trade and the presence of more and more consumer goods which are inaccessible to a large part of the population;

- To be effective, a long-term policy for curbing crime must combat these factors and must be open-ended and able to adapt to local circumstances. Such a challenge must bring together all those involved at local level: the police, the courts, social services, the departments responsible for public health, education, youth and sport, culture, housing etc., but also elected officials and other representatives of the population, such as trade unions, associations and voluntary organisations. Such a strategy must prevail over bureaucracy behaviour, facilitate the redeployment of resources and educate the public so as to overcome the stereotypes which media exploitation of crime helps to perpetuate;

- To fight crime effectively, punishment must be combined with an approach that tackles the phenomenon preventively as a social problem and the law must be applied in a clear-sighted unambiguous and consistent manner;

- Lastly, the report stressed the fact that to reduce the sense of insecurity, an effective strategy to combat crime must not focus solely on offenders and their treatment but must also contain a strong component of assistance to the victims of crimes.

II.2. Structures

On the basis of this report, things began to change very quickly:

- In 1983, a National Crime Prevention Council (Conseil National de Prévention de la délinquance) (CNPD) was set up with its own (at first very modest) budget; it was composed of elected local officials from the various political parties, representatives of the voluntary sector, trade unions and employers' associations, and representative of the various ministries. The purpose of the Council was to propose to the public authorities appropriate measures for preventing crime and reducing its effects, offer advice and support local crime prevention initiatives.

- A Departmental Council (Conseil départemental) was set up in each department; most importantly, a Municipal Crime Prevention Council (Conseil communal de prévention de la délinquance) (CCPD) was set up at municipal level wherever this seemed necessary, involving all the relevant local officials. One hundred CCPDs were established in 1983; today there are 820, and all major cities have introduced a crime prevention strategy. This highly flexible

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organisation makes it possible to define very precisely and coordinate the goals of local crime prevention policy and to carry out activities geared to needs, thanks to financial commitments and the pooling of staff and equipment by the various parties concerned.

Starting in 1985, a system of contracts ("contracts for action on crime prevention and security"), at first annual and later several times a year, enabled financial support for local bodies to be organised at national level (first CNPD, and then, as from 1988, the Interministerial Delegation for Urban Affairs).

These contracts, drawn up at local level in the framework of the CCPD and approved by all the local parties involved, describe the local situation, diagnose the most worrisome local forms of crime and their causes and give an account of the coordinated plan of action drawn up at local level to attempt to deal with this problem, as well as the resources that everyone plans to commit.

II.3. How the Municipal Council works

The CCPD, a key element in urban crime, operates in the following manner:

Of the 820 CCPDs, it is generally estimated that one-third are actually inactive, one-third operate on a more or less formal basis and one-third can really bring about change.

The Councils are chaired by the Mayor and comprise the Public Prosecutor, representatives of the police, the social services, schools and associations, and all those regarded as being able to help in the fight against crime. The biggest Councils are headed by an official recruited by the municipality.

The largest cities (such as Marseille) may have a Council in each large neighbourhood. These Councils meet several times a year.

Increasingly, the large conurbations also have intercommunity crime prevention councils.

In practice, their functions are as follows:

- meeting with various local officials, pooling and exchanging information, often from a wide variety of sources, for a better qualitative understanding of local crime;

- jointly analysing specific local difficulties relating to crime;

- devising coordinated overall strategies involving all participants;

- drawing up a concerted plan of action in the form of "contracts for action on crime prevention and security".

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Every year, the Councils and local officials receive an interministerial circular (Prime Minister, police, the courts, social affairs) identifying national priorities for combating crime and formulating recommendations. All contracts contemplating initiatives consistent with these priorities may receive co-financing from the national level. In 1994, 150 million French francs were earmarked nationally for these initiatives, making it possible to finance some 600 contracts, or approximately 2000 initiatives. It is estimated that on average, for each franc allocated at national level, local officials contribute four. These contracts, concluded between the local authorities and the central government, enable local and national strategies and initiatives in the private and public sectors to be coordinated.

The contracts involve such initiatives as:

- primary crime prevention initiatives: school support, combating illiteracy and school absenteeism, initiatives to promote citizenship, maternity and child welfare...;

- social and occupational integration, assistance in seeking employment and housing, improved access to care;

- cultural and leisure activities of all kinds;

- assistance to victims, mediation between the offender and the victims;

- prevention of recidivism, assistance to offenders serving non-custodial sentences, support upon release from prison, promotion of educational activities in prison;

- situational prevention, of a defensive nature, to reduce opportunities (for example, armour-plated doors, lighting, electronic surveillance, etc.);

- siting of police and judicial services in neighbourhoods in difficulty;

- initiatives to combat alcohol and drug abuse;

- specific crime prevention strategies at sensitive locations, such as shopping centres, schools, public transport, etc.

III. A PROVISIONAL ASSESSMENT

III.1. The situation in France

Fifteen years later, despite many changes of government and a number of structural reforms, the spirit in which these problems are addressed and the method for doing so have changed little.

All courts now receive assistance from associations and municipalities, which participate in the implementation of non-custodial measures and take preventive action to help persons in difficulty (community service, support upon conditional release, etc). Apart from one or two exceptions, all the departments in France have set up free arrangements for assisting victims, under which any victim of assault can receive moral support, information and help in carrying out administrative formalities. A national Institute for assistance to victims and for mediation

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has run this entire network since 1986, working continuously to improve legislation on the protection of victims.

Thus, notwithstanding an economic and social context that relegates more and more people to the margins of society and makes their reintegration increasingly difficult, and in spite of the spread of drugs and related offences, crime, although it has not been stopped, has at least been contained (decline between 1984 and 1988 and reasonable increase since then, followed by a recent renewed downturn).

But over time, problems have changed and with them the priorities, which today are as follows:

- the fight against drug addiction and the growth of an underground economy;

- prevention of juvenile delinquency (10-15 years of age), strengthening of the role of parents and closer supervision of serious cases (juvenile repeat offenders);

- the fight against crime at sensitive locations (transport, shops, schools);

- prevention of recidivism and assistance to victims.

Several years of partnership have in some cases led to considerable changes in attitudes and practices: social workers, teachers and police officers now have greater confidence in each other and work together to prevent crime. The courts and the police have been reviewing their working methods (community policing, court branches in sensitive neighbourhoods, mediation etc.), and the jobs themselves have changed13. Experience has shown that there are no miracle or universal solutions, but that the evolution of crime requires untiring observation and an equally untiring ability to adapt professional strategies and practices to local situations, taking their special nature into account.

Thus, alongside a criminal policy based on punishment, which still plays a very important role alongside rehabilitation goals, a socially-oriented crime prevention strategy or, more accurately, a strategy of crime prevention through social development, has also developed.

Attention should, however, be drawn to a number of difficulties:

- Despite continuous encouragement to work together on a partnership basis, the various public services and government departments, at national and local level alike, have a strong tendency to return again and again to their own specific practices; partnership requires very strong and constantly reasserted commitment and mobilisation;

- This partnership has, in fact, had little success in involving local people themselves (parents, neighbours, etc); it is often confined to local associations specialising to varying degrees in particular areas of work;

13Prévention de la délinquance et modernisation de la justice, Marie-Pierre de Liège - Revue des Sciences criminelles, 4th quarter 1992 and 1st quarter 1993.

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- People working in the various fields must constantly ensure that they are not isolated and be careful not to forget their responsibility towards the others;

- These crime prevention strategies are of a long-term nature. They call for determined and reliable teamwork. But how can enthusiasm and commitment be maintained in a world in which all too often the media define the "fashion", dictate priorities and are more interested in reporting than in analysing the policy issues involved? How can exhaustion and discouragement be avoided in a deteriorating economic situation?

- How can the simplistic call for harsh punishment, so quick to be heard whenever a serious crime is committed, be countered once and for all?

- How can a sustained, large-scale effort be made to fight the less serious types of crime when authorities are more concerned about organised crime, gangs and terrorism? After all, serious crime often finds an ideal breeding ground among young people with no prospects who have been relegated to a marginal existence as a result of the recession.

Only a determined and tireless effort on all fronts involving everyone in the field, with the firm support of political leaders, can achieve these goals.

III.2. Assessing these strategies from the point of view of human rights

"Soft" policies do not mean that it is no longer necessary to pose the question of human rights, in particular social and economic rights.

With regard to the prevention of recidivism, measures involving supervision and help with rehabilitation do not give rise to any problems. In France, measures to keep an offender out of prison or provide him with support on his release from prison are always taken under the supervision of a judge - the judge responsible for the execution of sentences - monitors the social services in charge of implementing those measures.

The strategy of crime prevention "upstream", namely through social development, aims above all to restore social equilibrium, facilitate access to housing, education and employment and promote the right of everyone to family life. In so doing, it tends to strengthen human rights, especially as the method chosen is designed first and foremost to encourage collective prevention arrangements and the provision of services rather than assistance to the individual, which often entails a degree of control of a normative character which may be in violation of individual freedoms.

Thus, for example, magistrates, prosecutors or juvenile judges who attend CCPD meetings naturally refuse to make any reference to particular cases, citing not only their independence but also the protection of the individual.

Increasingly, however, in both France and English-speaking countries, an effort is being made to involve the community and instil a sense of responsibility for these problems of crime and even to bring the community to participate directly in crime prevention strategies. This is useful and may prove effective, because family and friends constitute a first bulwark against risks of criminal behaviour, but once institutionalised, it can also be dangerous from the point of view of human rights. It is a known fact that in certain contexts, social control by the community may be very constraining, normative and inhibitive, ie it may violate rights and

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freedoms. This means that the powers of elected and court officials must be limited and closely supervised so as to ensure strict respect for human rights and freedoms.

III.3 Transposing this policy

Can such a policy be of use to others?

No experience or "solution" to a particular problem is directly transposable. What works in one case might at most serve as a basis for what might be tried elsewhere, after having been "adapted".

Nevertheless, the practice developed in France and described above has two features which suggest that it might be useful and usable for others.

- It is not claimed that this practice offers universally applicable solutions for crime: there are no "recipes", models that can deal with all problems of crime in all contexts. But by confining itself to suggesting a "methodology for action", it proposes a flexible and adaptable approach which appears to be appropriate in many situations. This method was conceived in France precisely in order to respect local diversity and to allow local protagonists to take over the strategies developed for fighting crime and make them their own. It functions in both big cities and in rural areas, in prosperous regions and poor.

- This strategy is part of a "subsidiarity" system coordinating the various levels of action.

- An inexpensive strategy. This approach is suitable in many contexts, regardless of the level of development, because it does not require the injection of considerable additional resources. It stresses the identification, stocktaking and possible redeployment of existing resources, i.e. the possibility of putting them to different uses. The point is not to have a large number of services and staff fighting crime, but to mobilise, logically and simultaneously, all social forces around the same objectives and to make them work more "intelligently". These social forces exist in all contexts and at all levels of development, even though they are different and even though, depending on the particular case, they may be answerable to national governments, municipalities or the community itself. Everywhere there are structures or groups, some of them formal and some of them less so, whose objective and function are to ensure public order and respect for the law and to promote efforts in the areas of the family, youth, health care, housing, economic activities, leisure, etc.

These are the persons that must be singled out and encouraged to work together, once there is agreement on the assessment of the local situation. Energy and resources are squandered when efforts are not combined. Introducing more rational approaches improves efficiency, even without additional resources.

In those areas in which fresh additional resources are available, they will be better used if they serve to stimulate, notably through agreements on objectives, the mobilisation of all and the development of new working methods aimed at preventing crime rather than financing the consequences of a purely punitive policy.

Regardless of the context, a crime prevention policy is invariably less costly than a policy of large-scale incarceration, the cost of supervising and monitoring persons in open institutions being vastly inferior to the cost of keeping them in prison.

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Lastly, a properly conducted crime prevention policy is also advantageous in that, in the medium or long term, it perceptively reduces the cost to society: a person in difficulty, treated on time and appropriately assisted, will cost society much less in the long run than a permanent social "outcast" who is incapable of being rehabilitated once released from prison. In the end, investing in development and rehabilitation is less costly than investing in coercion, even if, admittedly, it does require greater political courage.

This approach has aroused interest in the international community, the spirit and the method described above having been embodied in a resolution adopted by the United Nations General Assembly laying down guidelines for cooperation and technical assistance in the field of urban crime prevention (ECOSOC 1995/9), the basic principles of which are as follows:

- local, coordinated diagnosis of crime problems;

- joint framing of integrated crime prevention plans taking in all the areas concerned (education, health care, employment, housing, police, the courts);

- support at national level for local initiatives and centralised policies through agreements on objectives.

In recent years, these principles have also inspired initiatives for curbing crime in Europe (United Kingdom, Netherlands, Spain), North America (Canada and several states in the USA), Latin America, Australia and even Africa. In Europe and Latin America, in order to work towards urban security, "forums" of towns and cities have recently been set up, bringing together local authorities with severe crime problems who would like to share their experience and develop a common methodological approach.

The French and Canadian governments have also created an "international Centre for crime prevention" (CIPC), an institute affiliated with the United Nations whose goal is to offer advice and training to all those wishing to adopt strategies of this type for combating urban crime.

* * *

In many countries, social development and greater social cohesion are essential to fighting urban crime effectively on a day-to-day basis so as to reduce the sense of insecurity in the population and improve the quality of life.

But these efforts are also very useful in connection with the fight against organised crime. In many areas - drugs, prostitution, various forms of trafficking and even terrorism -, organised crime exploits the vulnerability of entire sectors of the population, where it finds potential petty criminals who will form the networks on which their pernicious activities are based. Fighting petty crime thus deprives organised crime of this resource. Hence, all states must strive to wage this battle at both levels simultaneously, because just as serious crime is an encourages petty crime, the latter serves as a breeding ground for serious crime.

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Report presented by Mr Nick TILLEY, Professor, Faculty of Economics an Social Sciences, Nottingham-Trent University, Nottingham (United Kingdom)

Crime prevention precepts and principles

Experience shows that effective crime prevention is certainly possible. The causes of crime, however, are complex. Moreover, we know that new sources of crime emerge over time. Thus, there are and can be no simple crime prevention panaceas. What we do have, however, are a number of precepts for successful crime prevention. These, in turn, raise a number of matters of principle.

Crime prevention precepts

The following ten precepts or rules are stated quite baldly. They are distilled from the by now quite extensive literature describing successful crime prevention efforts. What they show clearly is that crime problems can be addressed realistically without resorting to repressive or brutal punishments, including capital punishment, whose effect on overall crime rates is far from clear. The approach to crime prevention suggested by the following precepts offers a way of addressing crime problems rationally, realistically, effectively and economically.

1. Reduce opportunities for crime14

The simple expedient of blocking opportunities for crime has been shown to reduce it. In practice this means increasing the real or perceived risks to the offender, increasing the real or perceived effort needed to complete the offence, or reducing the real or perceived reward from the crime. This type of response is often termed "situational crime prevention". The sorts of measure taken include various methods of access control - such as locked doors, physical diversion and exclusion - to increase the effort; various forms of surveillance - such as airport baggage-screening, closed circuit television, and neighbourhood watch - to increase the risk; and various ways of reducing the utility of the offence - by removing the target, as with some car radios, making property identifiable, as with cattle-branding, or taking away the inducement, as when rapidly cleaning off graffiti deprives the artist of satisfaction at seeing his or her work on display - to lessen the reward.

2. Reduce sources of criminality15

Criminality is unevenly spread through the population. Whilst most of us have committed a crime at some time, a few are chronic offenders. Crime is concentrated amongst young men. Those from disrupted and dysfunctional families, with poor schooling and few prospects are most likely to become heavily involved in crime. High quality pre-school provision for those at risk, efforts to involve the children in school, training parents in the

14See R. Clarke (ed.) (1992) Situational Crime Prevention: Successful Case Studies, New York: Harrow and Heston; R. Clarke (1995) "Situational crime prevention", in: M. Tonry and D. Farrington (eds.) Building a Safer Society, Crime and Justice, Vol. 19, Chicago: Chicago University Press.

15See D. Farrington (1996) "The explanation and prevention of youthful offending", in: J. David Hawkins (ed.) Delinquency and Crime, Cambridge; Cambridge University Press; R. Tremblay and W. Craig (1995) "Developmental crime prevention", in: M. Tonry and D. Farrington (eds.) Building a Safer Society, Crime and Justice, Vol. 19, Chicago: Chicago University Press.

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management of their children, and behavioural programmes for those who have become involved in offending have all been shown to have crime prevention effects.

3. Reduce the resources available for crime16

Physical and human resources may be needed for crime, or may facilitate crime. Reducing their availability can make crime more difficult. Guns are a clear example. Cars are another. Gun control leads to fewer crimes of violence and fewer fatalities where they are committed. Improving the security of cars not only inhibits their theft for sale, but also creates difficulty in accessing them for use in crime. One reason for avoiding concentrating offenders in institutions or in residential areas is that doing so creates networks of criminals who are able to draw on one another's skills in planning and committing offences.

4. Protect victims17

Research indicates across a wide range of offences, such as domestic and commercial burglary, vandalism, robbery, domestic violence and racial attacks, that those who have already been victims of crime become at higher risk of revictimisation. Making them safer has been shown to be an efficient and effective way of reducing crime. With limited resources, a focus on reducing repeat victimisation has been described as a way of getting the crime prevention grease to the crime squeak.

5. Prevent communities from spiralling into high crime18

Crime occurs at a much higher rate in some places than it does in others. It is consistently found to be higher in cities than in villages, and within cities to be concentrated in particular areas. The failure to deal with early signs of incivility, such as minor vandalism and rowdyism, can allow communities to appear neglected. This attracts further problems. Stronger members of the community able to provide effective leadership leave. Offenders become more confident and intimidate others. An avoidable spiral of community decline and increasing crime ensues.

In so far as the criminogenic, economic and social decline of communities follows from global economic developments, the potential effectiveness of local efforts at crime prevention may be limited. National governments may appropriately include crime prevention amongst their aims when they attempt to effect economic regeneration.

6. Use the criminal justice system imaginatively19

16For a thorough overview on firearms, see T. Gabor (1994) The Impact of the Availability of Firearms on Violent Crime, Suicide and Accidental Death: A review of the Literature with Special Reference to the Canadian Situation, Ottawa: University of Ottawa. More generally, see Clarke (1992), op. cit.

17See G. Farrell (1995) "Preventing repeat victimisation", in: M. Tonry and D. Farrington (eds.) Building a Safer Society, Crime and Justice, Vol. 19, Chicago: Chicago University Press; G. Farrell and K. Pease (1993) Once Bitten, Twice Bitten: Repeat Victimisation and its Implications for Crime Prevention, Crime Prevention Unit paper 46, London: Home Office.

18See J. van Dijk and J. van Kestern (1996) "Criminal victimisation in European cities", European Journal on Criminal Justice and Research, Vol. 4, No. 1, pp. 9-21; J.Q. Wilson and G. Kelling (1982) "Broken Windows", Atlantic Monthly 249(3), pp. 29-38; N. Tilley and J. Webb (1994) Burglary Reduction: Findings from Safer Cities Schemes, Crime Prevention Unit paper 51, London: Home Office.

19See R. Homel (1995) "Can Police Prevent Crime", in: K. Bryett and C. Lewis (eds.) Contemporary Policing: Unpeeling Tradition, Sydney: Macmillan Australia; L. Sherman (1990) "Police Crackdowns: Initial and Residual Deterrence", in: M. Tonry and N. Morris (eds.) Crime and Justice: A Review of Research Vol. 12, Chicago: University of Chicago Press; A. Leigh, T. Read and N. Tilley (1996)

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At first sight the criminal justice system appears to be poorly placed to achieve much by way of crime prevention. The causes of crime seem to lie beyond it. It is sobering to realise that, for example in Britain, of every 100 offences committed, only 50 are reported, 30 are recorded by the police, 7 are cleared up, 3 result in a caution or conviction, and 2 result in a conviction of which only about 10% involve a custodial sentence. It appears, nevertheless, from rapid crime increases that occur when police services have been withdrawn, that their mere presence is enough to prevent a good deal of crime. It is much less clear that simply increasing the numbers of officers has much impact. With regard to prison, the incarceration and thus temporary incapacitation of very high-rate offenders may have some short-term impact on crime outside prison. We know, however, that incarceration often also has unintended criminogenic side-effects: improving the skills of offenders, extending networks of co-operating criminals, and creating difficulties for ex-inmates to find legitimate opportunities on release.

Imaginative work within the criminal justice system can, however, enable it to have an impact on crime. Though of course risking provoking riots in some high crime areas, in others police crack-downs have been known to drive crime down for a while. Whilst community confidence increases, other crime prevention measures can be put in place, reducing the ease with which offenders can return and resume their offending. There is also evidence that where police adopt a problem-solving approach, rather than relying wholly on traditional enforcementmethods, they can reduce identified crime problems. Recent developments in "restorative justice" and "family group conferencing" are promising crime prevention alternatives to traditional ways of dealing with offenders. Here, those who have admitted their offences meet with family, victim and others close to the offender who have been touched by the crime, and are confronted with the consequences of their behaviour. They are made to feel ashamed, they apologise and they show contrition. They also undertake some form of reparation. They are then re-accepted and reintegrated within a community that cares for them. The crime prevention idea is that stigmatisation, exclusion and the attendant problems of resuming a law-abiding life are avoided.

7. Monitor emerging changes affecting crime and crime prevention opportunities20

Technological, commercial, social and political developments create new opportunities for crime, new resources for crime and new sources of friction. If they are monitored effectively pre-emptive action can be taken.

With regard to technology, developments have led to the mass-production of light, high value, anonymous goods, which are easily stolen and can easily be disposed of. Design and technology may also be used to design crime out - by individualising products, by rendering them unusable by the thief, for example coded car radios, or by making them less movable, for example car immobilisers. The Internet is likely to become a major resource for criminals anxious to learn new crime methods, and ways of overcoming obstacles. This produces new challenges for those trying to design out crime. Diversification of crime obstacles, perhaps turning new technological developments to crime prevention advantage, may make it more

Problem-Oriented Policing: Brit Pop, Crime Prevention and Detection Series paper 75, London: Home Office; Tilley and Webb, op. cit; J. Braithwaite (1992) Crime, Shame and Reintegration, Cambridge: Cambridge University Press; G. Masters (1996) "Something old something new: family group conferencing and probation practice", Vista, September, pp. 78-86.

20See M. Felson (1994) Crime and Everyday Life, Thousand Oaks, CA: Pine Forge Press. The section also draws loosely on discussions with Professor Ken Pease and Dr. Paul Ekblom.

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difficult for an offender to plan a crime with confidence that she or he will have the appropriate tools and know-how to overcome the built-in crime obstacles.

In relation to changing commercial practices, an example is the transition from the over-the-counter shop to the self-service supermarket. This has created a new set of shop-theft temptations and opportunities, which have provided effective apprenticeships in crime for many who have gone on to more serious offending. So far as changing social practices go, examplesinclude increases in the rate at which women work and greater geographical mobility. These have reduced levels of natural surveillance and informal social control in the community.

Finally, government policies can be unintentionally criminogenic. For example, with regard to unemployed youth, reducing benefits to save costs and motivate efforts to find work may inadvertently create marginalised poor groups of youngsters many of whom may believe they have little to lose and more to gain from succumbing to temptations to become involved in crime.

New strategies are needed for new situations.

8.Persuade individuals and organisations to accept responsibility for crime prevention21

It is one thing to identify a crime problem. It may even be possible to devise promising ways to responding to it. It is another to persuade those able to act that they should do so. In one study, for example, a retailer only agreed to introduce suggested measures to prevent shop theft when the police threatened no longer to respond to calls to deal with shop thieves caught by store detectives. Manufacturers of cars have likewise been reluctant to increase their costs by building anti-theft devices into their products. Within local authorities, the decisions by individual departments, such as education, leisure, housing, planning and social services, can all impact on crime situations though, without explicit responsibility, none will take the lead and all may be reluctant to attach priority to crime-impact in formulating and implementing their policies. Much the same goes for central government. Responsibility needs to be imposed where it is not accepted voluntarily.

9. Work in partnership22

Successful, systematic crime prevention depends on agencies working together, though this can be difficult to achieve in practice, since agencies for whom crime reduction is not a central part of their mission are often reluctant to be moved from their own agendas. Most crimes are committed when a motivated offender meets a suitable target with nothing or no one to keep them apart. A wide range of agencies - across the public, private and voluntary sectors -influence the frequency with which this happens. Some affect the supply and movement of motivated offenders. Some affect the supply and movement of suitable targets for crime. Some affect the supply and movement of those who might keep offender and target apart either by

21See G. Laycock and N. Tilley (1995) "Implementing Crime Prevention", in: M. Tonry and D. Farrington (eds.) Building a Safer Society, Crime and Justice, Vol. 19, Chicago: Chicago University Press; G. Laycock (1996) "Rights, roles and responsibilities in crime prevention", in: T. Bennett (ed.) Preventing Crime and Disorder: Targeting Strategies and Responsibilities, Cambridge: University of Cambridge Institute of Criminology.

22See M. Liddle and L. Gelsthorpe (1994a) Inter-agency Crime Prevention: Organising Local Delivery, Crime Prevention Unit paper 52, London: Home Office; M. Liddle and L. Gelsthorpe (1994b) Crime Prevention and Inter-agency Co-operation, Crime Prevention Unit paper 53, London: Home Office; N. Tilley (1992) Safer Cities and Community Safety Strategies, Crime Prevention Unit paper 38, London: Home Office.

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protecting potential targets, or exerting informal social control on would-be criminals. There are also organisations, most notably the police but also for example probation services, insurance companies, fire services and local authorities, which have records showing where and when there are particular crime problems. With this information, we know where organisations need to work together to prevent the ingredients for crime from coming together. In many towns and communities now, across Europe, local crime prevention partnerships exist, with publicly funded community safety officers. In Britain, close to two-thirds of local authorities are involved in multi-agency groups. In the more urban, higher crime areas over half have a full-time co-ordinator funded with public monies.

10. Think through the appropriateness of the crime prevention measure to the context of the problem23

There are no magic bullets in crime prevention. Crime prevention is rendered a disservice and resources are wasted unless measures are carefully thought through in terms of the ways in which they might bring about intended outcomes in specific, local contexts. This is hard work, but there is no alternative if we want to be effective. It is not measures per se that work, but their capacity to trigger preventive mechanisms in given contexts.

There is a rather sad and long history of supposedly "failed" crime prevention efforts. To begin with, a carefully implemented novel measure reports initial success. Its achievements are trumpeted, and picked up by politicians or opinion leaders anxious to be seen to be taking advantage of the latest opportunity to reduce crime. It is then treated as a cure-all, and uncritically advocated for general adoption. It is widely implemented without much thought as to its suitability for any particular crime situation. "Scientific" evaluations are then undertaken of typical or representative examples. Because the specific conditions needed for the measure to work will seldom happen to be in place, these evaluations ordinarily come up with disappointing findings. Unless some political or other imperative means that it cannot be dropped, confidence in the crime prevention potential of the measure wanes, and it is dropped. A new search for a new answer to the crime problem begins. And we are back into the cycle. Such is the story, for example, of offender rehabilitation and of neighbourhood watch, and such is predictably going to be the case with closed circuit television which is currently being very widely introduced in Britain. In the case of rehabilitaiton and neighbourhood watch it has taken some years to realise that they can work for some, but only if the contextual conditions are met.

Principles and crime prevention: equity, utility, rights, and responsibilities

Crime prevention can address crime problems effectively whilst avoiding attaching blame for it only to individual offenders who are themselves often victims of conditions beyond their control. Crime prevention does, however, raise its own ethical questions.

Crime prevention methods which operate by blocking crime opportunities raise the problem of crime displacement - the deflection of crime from one target, method, time, or technique to another. There is no evidence that there is a fixed volume of crime, and that it merely manifests itself in one way rather than another - if that were the case we might collectively do just as well to dispense with locks to our houses and cars! Some crime will, however, be displaced in some circumstances, whether the crime prevention measures are by

23See N. Tilley (1996) "Demonstration, Exemplification, Duplication and Replication in Evaluation Research", Evaluation, Vol. 2, No. 1, pp. 35-50; R. Pawson and N. Tilley (1997) Realistic Evaluation, London: Sage; Laycock and Tilley op. cit.

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individuals or by public bodies. This means that crime prevention is inexorably drawn into considerations of crime distribution24. The issue is made more poignant by what we know, as already indicated about the uneven distribution of crime. Though policitians may be reluctant to address them, crime prevention policies and practices raise thorny questions about distributive justice, this time of a bad rather than a good. One response could be to say that all crime prevention should be up to individuals, but given the traditional role of the state in securing internal security from predation this might be difficult to defend convincingly.

Issues of utility are also raised. The interests of the community at large may conflict with those of individuals. Individuals might maximise their freedom from crime by excluding those others they consider undesirable, for example from gated communities and privately owned shopping malls. These are already common in parts of the United States and now making an appearance in Europe also. Yet the divisions in society resulting from such developments may help create a fractured society of mutual mistrust that reduces overall levels of utility. There is also a utility problem in regard to the allocation of efforts to prevent criminality. Resources available are, of course, limited. Universal services sufficient to affect those most at risk would be very costly. Yet diverting resources only to those deemed most at risk of becoming involved in crime can risk their stigmatisation.

Views on rights issues raised by various crime prevention methods may differ from country to country. In Britain, there is little or no disagreement that the individual's rights to own a gun should be strictly limited, whilst in the United States the right to bear arms is enshrined in the constitution, and efforts to make restrictions meet with a barrage of resistance. In Britain also, there has so far been only muted resistance to the widespread introduction of closed circuit television in public places as a crime prevention measure. In most continental European countries it is thought much more likely that CCTV would be objected to because it is deemed a threat to rights to privacy25. In New South Wales in Australia police undertaking random breath-testing for drivers to check that they have not been drinking excessive alcohol appears to have been accepted, and to have been very effective in reducing deaths on the road26. It is doubtful whether this would be accepted in many other countries, even Britain. In many continental European countries identity cards are taken for granted. In Britain compulsion to carry them is anathema.

The issue of responsibility-allocation is problematic. It is widely believed important to hold offenders ultimately responsible for their crimes. There is, though, much that potential victims can do to reduce their own crime risks, and many crimes occur where victims have failed to take what might be considered reasonable precautions. There is reluctance to attribute any responsibilty to them, however, as this is seen to involve unfair victim-blaming. Even where responsibilities might seem obvious, for example in the case of manufacturers and distributors of goods vulnerable to crime or even designed as tools of crime, the rights to manufacture and distribute in accordance with market principles may be taken in some countries to take priority over responsibilities allocated to and enforced on business.

24See R. Barr and K. Pease (1990) "Crime placement, displacement and deflection", in: M. Tonry and N. Morris (eds.) Crime and Justice: A Review of Research, Vol. 12, Chicago: University of Chicago Press; T. Hope (1996) "Communities, Crime and Inequality in England and Wales", in: T. Bennett (ed.) Preventing Crime and Disorder: Targeting Strategies and Responsibilities, Cambridge: University of Cambridge Institute of Criminology.

25On the rights issue with regard specifically to closed circuit television, see S. Davies (1996) "The case against: CCTV should not be introduced", International Journal of Risk, Security and Crime Prevention, Vol. 1, No. 4, pp. 327-331.

26See Homel (1995) op. cit.

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Conclusions

- There is ample scope for effective crime and criminality prevention, if the precepts outlined are followed.

- Crime prevention is not once for all. It requires continuous attention to emerging national and local crime problems.

- In planning effective crime prevention, it is necessary to think through how the measures being contemplated will work in particular contexts to bring about intended outcomes.

- Crime prevention policy-makers and practitioners need to be aware of and to be able to defend the moral assumptions built into the approaches they adopt.

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Written communications relating to theme 1.ii

Written communication by Mr Jean-Marc ELCHARDUS, Member of the Criminological and Scientific Council, University Professor, Lyon (France)

The role of psychiatry in the treatment of criminals

Among the methods of combating serious crime, the most efficient until now have been incentive or punitive measures designed to encourage respect for laws and punish infringements. Medical treatment or therapy can only play an incidental role, even if there was a period, albeit a short one, when positivist criminology attempted unsuccessfully to impose a medical approach as the frame of reference for the identification and treatment of criminals.

Nonetheless, medicine and, more particularly, psychiatry have always played an integral part in the criminal justice system. Ever since the establishment of a retributive, egalitarian justice system, justice and psychiatry have been inextricably linked. The relationship between the two has varied from collaboration to subordination and from competition to alliance. Broadly speaking, it can be said that the relationship is dominated by actions which are vital for the functioning of justice and in which psychiatrists play an irreplaceable role.

Psychiatrists are vital to judges for two main reasons and make a useful contribution towards the functioning of justice in several other areas. The two main reasons relate to the psychiatrist's function as an expert who is capable of providing a scientific view of the workings of the human psyche and any anomalies present. Psychiatrists have to identify and describe in their reports any mental illnesses that the accused may be suffering from which would nullify or diminish their criminal liability. They must also evaluate the danger the criminal might present in criminological terms, ie in terms of the risk of recidivism.

In a number of European countries, a third task assigned to psychiatrists forms an integral part of the criminal justice system. In institutions which combine the serving of a sentence with therapeutic measures, psychiatrists treat criminals with psychological disorders, in the hope that this treatment will make them less dangerous.

These three summarily presented duties form the hard core of society's demands on psychiatrists in the area of justice. They constitute the fixed and unchanging criminological basis of the role of the psychiatrist in any criminal justice system, whatever the methods and arrangements used in each individual country for its performance. The justification for this is very simple: the courts cannot punish madness without debasing themselves, and only the scientific knowledge of a doctor can provide them with an objective basis for a judgment and propose an alternative or an addition to the punishment which, in the guise of a cure, offers a means of assuaging violence then qualified as pathological.

In addition to this criminological hard core which is vital for justice to function, another duty is assigned to psychiatrists. Compared to the main objectives described above this aspect of the psychiatrist's work may seem incidental but in fact it is the one which has developed most in the last ten years or so in western countries.

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It concerns the health of the prison population. The presence in prisons of psychiatrists or, preferably, psychiatric teams is fully justified by the high proportion of inmates with mental illnesses.

This summary description of the role of psychiatrists in the judicial field would seem to indicate that, in theory, psychiatrists are only concerned with questions of health and pathology, with other people being responsible for implementing social measures or for the behavioural rehabilitation of dangerous criminals. Though we should not lose sight of these principles, it would be pointless and unrealistic to leave things at that, without looking further at the complex interactions around these problems.

I. THE ROLE OF EXPERT APPRAISAL

Psychiatric appraisal involves assessing responsibility or, to be more precise, identifying psychological disorders likely to nullify or diminish the criminal responsibility of the accused. It also involves an assessment of the danger the accused presents. This exercise raises a number of specific difficulties.

The first of these relates to problems of language and communication. Psychiatry is far from speaking with one voice, and the criteria for analysing and interpreting comparable observations vary significantly according to the prevailing frames of reference for psychiatric practice in each country. Neither legal rules nor sociological principles provide an appropriate basis for the diagnosis of mental illness; all diagnosis must be related to the case history of the individual concerned and this is why it is difficult to generalise.

Nonetheless, some effort to standardise psychiatric terminology is being made through the major international classifications of mental illnesses (ICD 9, ICD 10, DSM IV, etc.) and, at least at the descriptive level, there is a point of reference which, although not dealing with concepts, establishes a common language for psychiatric practice as a whole.

The second problem lies in the way in which information is communicated between medical and legal circles. The expert's opinion relates not to legal concepts but to clinical observations. Information in the two fields is subject to two separate systems of logic, and some interpretation is required when it passes from one to the other. This requirement is not always acknowledged and it is too often the case that clinical data are interpreted de facto, as objective facts, and sometimes virtually as evidence. Communication between psychiatrists and judges therefore calls for a special effort on both sides to ensure that ideas are not distorted by being transposed carelessly from one context to the other.

This is a very delicate issue in major criminal cases where psychiatric reports can be interpreted either as an attempt to excuse the accused's actions on grounds of madness or as scientific evidence of incurability. In either case, the sentence passed will tend to be more severe.

The problems of psychiatric appraisal and admissible presentation of findings are less crucial when the accused is obviously suffering from a serious pathological problem. Depending on the country, these patients are sent to specialised prisons or state-run psychiatric hospitals. However, the current trend in forensic psychiatry is to avoid regarding mentally ill offenders as not responsible for their actions on the ground that, however deranged these offenders might be,

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a failure to take their actions into account in the public reaction represented by a trial would be tantamount to "psychological death".

Interpretation becomes more difficult in cases of less serious mental illness or personality disorders. Here the scope for uncertainty is greater and forces the expert to talk in terms of probabilities and areas of doubt, which arouses the court's misgivings. The problem is clearly illustrated by the example of antisocial personalities and psychopathic personalities whose emotional disturbances prompt them to commit offences but who present no psychological disorder obvious enough to suggest lack of responsibility for their actions. Generally, individuals of this sort are shunted between psychiatric hospitals and prison with no truly satisfactory solution for dealing with them. The experience of psychiatrists working in prisons shows that it is possible to treat these violent individuals and that beneath their apparently uniform behaviour lie profound and complex pathologies. Therefore, neither doctors nor judges should be content with categories based exclusively on acts, in what BERNHEIM called a negative conflict of responsibilities.

Assessments of dangerousness have been much criticised owing to their lack of reliability. Research in this area still focuses for the most part on statistical criteria, which cannot be applied without the risk of presenting a falsely positive or falsely negative picture of the path of a given individual. Suffice it to say that in this area we should attach more importance to arranging regular, multi-disciplinary reviews rather than rely solely on the expert opinion of the psychiatrist, who is not always the person best qualified for making what is more of a prediction than a prognosis (CANEPA). The question of violence is as much present in the psychiatric field as it is impossible to give a clinical definition of dangerousness.

Another type of request which judges make of both psychiatrists and psychologists is to include in their appraisals details gathered during their examinations of the accused which may enlighten the court on the subjective and psychological factors underlying the defendant's actions. Alongside the criminological appraisal referred to above, the purpose of this report is to give the court a psychological portrayal of the person before them to shed light on the offence being tried. In a sense the psychiatric expert then ceases to be merely the recognised source of knowledge on mental disorders and becomes the person who explains the perpetrator's ego and possibly also what the act meant to him or her.

Throughout these activities of appraisal, the duties of doctors, although determined by the courts, must still be performed in accordance with their professional code of ethics and with reference to human rights. Therefore, the presumption of innocence and the need for the person concerned to give his or her consent and for confidentiality to be respected regarding facts which are not associated with the work of appraisal are among the ethical rules which should determine the position of the expert vis-à-vis the person he or she is examining. Seen from this point of view there is much to support the notion that expert appraisal, though not an act of therapy in itself, does have therapeutical or anti-therapeutical properties.

II. PSYCHIATRIC TREATMENT OF THE PRISON POPULATION

A 1993 report of the French High Committee for Public Health advances figures which appear in a number of other publications suggesting that 20% of inmates need psychiatric treatment. Depending on the prison, between 45% and 60% of prisoners admitted suffer from psycho-pathological disorders or have a personal or family history of psychiatric problems. As regards the pathological profile of patients, the most frequent diagnoses, according to the criteria

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set in DSM III R, are antisocial personalities, borderline profiles and passive/aggressive personalities.

Therefore there is a need to provide effective treatment for this large group of people, more with a view to improving public health than in the criminologically motivated hope of reducing dangerousness. Though it is not a priority, this latter objective is acknowledged and is sometimes emphasised in certain countries or for certain types of crime. Be that as it may, setting up psychiatric units in prisons calls for major re-organisation and considerable resources. Quality psychiatric treatment cannot be provided by one psychiatrist alone but requires a team capable of functioning as an institution.

The relationship between the justice system and psychiatry cannot therefore be based on strict demarcation of their respective spheres, with each dealing with its own "clients" after an initial sorting process legitimated by a scientific examination. Despite this self-evident truth, the "founding myth" of this distinction continues to shape the response of institutions to the confused and confusing field of violence, crime and madness. For want of any success in setting up wholly unambiguous systems which everyone can recognise and in which punishment and rehabilitation are the responsibility of the penal system and treatment and cures the responsibility of the health system, we have to accept a modus vivendi in which prison sentences have to take account of mental disorders and psychiatric institutions cannot ignore criminological concerns.

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Arrangements for this essential co-operation can take varying forms according to the country or cultural tradition involved. In France, for example, a substantial proportion of psychiatric care in the prison system is performed by psychiatric units administered by the public health system and based in remand prisons. In theory therefore these units are technically independent of the prison authorities, both in the methods they apply and the aims they pursue. The object is clearly to provide prison inmates with treatment comparable to that dispensed in public hospitals, in accordance with the same code of ethics as for the general public. More specifically, and paradoxical as it may seem, this means that there is no question of forcing a prisoner to attend one of these "in-house" clinics against his or her will, since prisoners can only be given treatment according to the ordinary rules of ethics requiring the patient's free and informed consent.

In other countries such as Italy or Germany, hospital institutions within the judicial system take care of prisoners requiring psychiatric treatment. In these institutions priority is given to the requirements of care and the service is organised according to the dictates of treatment, which may include the implementation of transitional measures such as conditional release and a gradual return to life in the community. Nonetheless, the medical teams in these institutions still have a major share of the responsibility for security and to a certain extent doctors may be called to account for any recurrences of criminal behaviour on the part of the patient placed in his or her care.

It becomes apparent from this that, irrespective of the quality of care provided, there are two fundamentally different approaches to the role of psychiatrists among the prison population. In the first scenario the psychiatrist is there simply to allow prisoners the same access to treatment as the general public, with no expectation of any direct criminological benefits, even if it is obvious that, for certain individuals who have been exposed to violence, a better psychological balance will prevent them from committing further crimes. In the second scenario the health service becomes involved directly in the penal process not only in treating psychological disorders but also, and perhaps even above all, in attempting to alter violent or criminal behaviour with the aid of psychiatric techniques.

The decision on whether or not psychiatric care in prisons should embrace the criminological objective of reducing recidivism among its aims and methods of treatment depends on a number of factors. Among these brief mention may be made of the fact that, depending on the country, responsibility for prison health services is assigned either to the prison authorities or to the Ministry of Health. This is where crime policy options have their place, allowing the development of probation services to a greater or lesser extent, the implementation of goal-orientated prison reforms or the setting up of specialised prison sections for certain crime categories. These options are also influenced by medical tradition and health policies which, depending on the country, make the management of major social maladjustments the responsibility either of public psychiatric services or of the welfare support system. In some places the main concern is the treatment of the pathological problem and in others the emphasis is on the social reintegration work required.

In France the organisation of somatic and psychiatric medicine for prisoners is the direct responsibility of the Ministry of Health, as stipulated in the law of 18 January 1994. Clearly implicit in this approach is the recognition of the technical independence of clinical practice from the prison authorities. The aim is to allow the prison population the same access to treatment as the general public. In the psychiatric field, the regional medical and psychological services (SMPR) working in the remand prisons of each prison district are genuine prison

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psychiatric units and are fully integrated into the general medical provisions for mental health. This provides a structural guarantee of the technical independence of medical personnel in prisons.

In most other countries, the prison authorities are in charge of medical services and therefore it is up to the doctors to establish the framework and set the limits for their work in prisons.

The question of technical independence is of such importance because it constitutes a major dividing line between, on the one hand, matters of a medical nature and, on the other, programmes of rehabilitation and behavioural change involving psycho-social work more than actual treatment.

Techniques to change behaviour are not the prerogative of doctors, psychologists or medical teams and can be implemented by other persons who have learnt these techniques, without there being any clear therapeutic aim in what becomes the implementation of a programme. This lack of clarity as regards aims, much more than the technical decisions themselves, may entail the risk of sometimes quite insidious slippage between a position determined ethically and clinically for the provision of the appropriate treatment for a properly identified pathology and normative measures using medical techniques or even medicines not for the purposes of treatment but in order to correct deviant behaviour.

The risk of excesses of this kind is insidious because the references justifying and determining the action can be completely distorted: this is the case with prison doctors who systematically prescribe excessive doses of neuroleptics or with the suggestion systematically put to certain types of offender that they follow rehabilitation programmes which are presented to them as to all intents and purposes a form of probation. It should come as no surprise that the debate becomes keenest when the perpetrators of certain types of crime are offered help, placed on rehabilitation programmes or subjected to treatment. We are talking here about violent acts which seriously offend our moral sense or break the most sensitive social taboos, e.g. sex crimes, paedophilia, apparently gratuitous violence, serial killings...

Whereas the large majority of inmates are offered little in the way of therapy, and this amid a general indifference, the above-mentioned violent criminals become the focus of public attention, giving rise to calls for draconian measures going beyond the strict enforcement of a prison sentence.

III.DO CERTAIN TYPES OF CRIMINAL REQUIRE SPECIAL TREATMENT?

The question of how to categorise criminals becomes most pressing when dealing with these violent criminals: are they ill or are they criminals? It is no wonder that it is in relation to the most scandalous offences that the fundamental question referred to above is also being raised in reality. It would seem that, particularly where the murder of children is concerned, the notion of a social responsibility shared between the main institutions reaches its limit. However, by abolishing the death penalty, society has chosen to keep within its midst those people to whom it cannot relate. This being so, there should be no question of condemning these people to a "social death", which would be less severe and no doubt less noticeable if presented as therapeutic relief. Nor should there be any question, despite the severity of their sentences, of establishing a small group of individuals who, because of their inhumanity, are denied the benefit of the ordinary law.

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This brings us to the question of "special" psychiatric treatment for certain types of offender. Should specialised therapies be provided exclusively for those guilty of certain types of crime? Some countries have already answered this question in the affirmative, and a typical example of this is the P.PINEL Institute in Montreal. The North American context lends itself to the spread of programmes of psycho-social work on the criminal population, and the PINEL Institute would seem to be the illustration of this trend in the medical field. It seems that ethical standards and technical independence can be maintained because this is a large-scale institution with a world-renowned scientific influence.

Returning to the example of France, it is in connection with especially serious sexual offences involving paedophilia that the principle of separation and independence between Justice and Psychiatry seems to have been called into question. Recently, in response to public revulsion at such crimes, an array of legislation has been introduced in this area. Purely punitive measures (life sentences, extension of sentences not subject to remission) have been backed up by others relating to therapy for and medical supervision of these criminals. Accordingly, under the decree of 4 August 1995, it is now compulsory for sexual offenders to receive medico-psychological treatment as part of their sentence and for a psychiatric assessment of the danger they represent to be drawn up before they are released.

However, these statutory measures should be not be regarded in too absolute a light. Even if our initial inclination is to regard them as an admission of the judiciary's powerlessness before the scandalous excess of delegating to a medical institution of a responsibility it cannot assume, there are other possible interpretations. The courts are not entirely lacking in means to neutralise these violent individuals and thereby meet the public's expectations. Lengthy sentences not subject to remission assuage public resentment and partly reassure people that the "monster" has been removed. According to this strict penal logic, psychiatric treatment seems rather incidental and verging on an excess of sympathy or humanity...

It is in reintroducing the notion that society has a responsibility towards criminals that the law acknowledges, in specific provisions, the duty to allow criminals access to treatment. If we look at the wording of the decree of 4 August 1995 we see that there is no question of compulsory treatment to be systematically applied to sexual criminals so as to change their behaviour and allow them to be released in complete safety; it talks instead of a duty to make treatment available throughout a prison sentence without giving any a priori definition of what the treatment should consist of or anticipating any particular positive results or even indicating whether the person concerned should accept treatment. In short, what is proposed is a duty to provide the means of treatment, with which doctors can but agree, and this does not imply compulsory treatment and still less any obligation as to results.

Therefore, instead of taking a simplistic and distorted view which would reason in ideological terms about areas of knowledge which are greatly over-valued and divided along artificial lines, we should pay attention to the interplay of different functions, characterised by different aims and methods, and performed by institutions of varying types. The whole problem lies in ensuring that the relationship between these institutions does not become authoritarian whenever the public's feeling of insecurity is exacerbated by events.

The temptation for all major social institutions to resort to totalitarian methods should not be underestimated. The system of justice is particularly prone to this because an inadequate separation of powers would place it under the control of political authorities. Punishment was

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after all the original reason for setting up the judicial system, and its structures are still largely geared towards imposing punishment. The altruistic aim of rehabilitating convicts through their punishment has still to prove itself in too many cases. It is precisely because lawyers, judges and, most importantly, legislators are able to transcend this logic that justice is not just the secular arm of social vengeance, but a founding institution of citizenship and respect for human rights.

Medicine clearly does not have such a marked institutional influence and founding function, but its ethical codes embody the right of access to treatment for all people whatever their faults and a guarantee that all available means will be used to relieve suffering and, if possible, to cure it. Any risk of authoritarian excess would stem from an abuse of medicine's power over human beings, whereby a human being would be subjected to medical techniques regardless of the fact that doctors are responsible firstly to their patients and only then to society. This temptation has been illustrated on numerous occasions in recent history, when medical or psychiatric techniques have been misused to further not only reprehensible ideologies but also respectable social purposes in breach of the ethical rules of free consent, confidentiality and individual therapeutic benefit.

The risk of authoritarian excesses is ever present and is increased enormously by social pressures. In the area of sexual crime, there is very little room for manoeuvre, and a recent tragedy in a prison hospital in one member country of the European Union has provided a reminder of this. When on conditional release authorised by the chief medical officer of the establishment, a patient murdered a child in the immediate vicinity of the hospital. Understandably, the public reacted with extreme outrage and accusations. The tragedy had terrible consequences for the hospital, in terms both of the fate of the other patients and of the stability of the medical teams and their projects. The intensity of the tragedy, which crudely spotlighted the responsibility of the institution and made it total, destroyed all scope for assessing or interpreting facts that had now become completely exaggerated. With no attempt at justification, all arguments about a degree of uncertainty, an inevitable element of risk or an attempt to supervise the patient were doomed to failure. The psychiatric institution was brutally and negatively reminded of the authority vested in it, by which I mean that in these circumstances it had to assume full responsibility for what was regarded as an unpardonable mistake, the implication being, of course, that it should have complete control over its inmates.

Even if the general public is unable in the heat of the moment to appreciate the fact, it is only marginally - in a situation more of powerlessness than of control - that the medical and judicial institutions can adapt society's response to the perpetrators of serious crimes of this kind. This is probably the best antidote to the temptation of all-powerfulness and totalitarian control. In the field of therapy, the whole scene is still dominated by the embittered conclusion reached some twenty years ago that, as far as their beneficial effect on recidivism was concerned, the whole range of medical and psychiatric treatments applied to prison inmates had failed, that nothing works.

For all that, the treatment of extremely violent criminals is far from being completely worthless, as is demonstrated by many published results of experiments (Balier, Duncker, Bernheim, etc.). Treatment of psychiatric disorders in prison is as successful as in the world at large provided that it observes the same rules and is provided with the same means. Though success has been limited, there have been far-reaching changes in the last fifty years in the way the mentally ill are treated and in the outlook for them.

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The way in which psychiatric services in prisons are organised in European countries takes full account of the complexity of these problems and nowhere is there a system in which psychiatrists are made wholly responsible for controlling the dangerousness of those criminals who appear to be the most uncontrollable or the most insane. The Italian system of prison hospitals has been largely abandoned, and the major Belgian and German institutions for social protection are governed by very precise rules which avoid leaving psychiatrists to manage and be wholly responsible for "difficult" patients. The residual danger would be the establishment of "special psychiatric units" which, with the aid of allegedly successful techniques and the promise of constant review, managed, despite dozens of earlier failures, to convince people that criminological security was to be had in programmes designed to change the behaviour and the personality of individuals taken collectively and treated in the light not of their personal records but of their membership of a particular category of criminal. We have known for a long time that criminal categories and clinical categories do not coincide and that although treatment of prison inmates is largely justified, it should be carried out according to medical rules and not according to the demands, however legitimate, of the public's desire to feel safe.

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Written communication by Mr Saulius KATUOKA, Professor of International Law, Chairman of the Council of the Lithuanian Centre for Human Rights, Vilnius

The role of the Lithuanian centre for human rights in human rights protection

This seminar addresses a very topical issue which is of vital importance if we are to protect human rights and freedoms and, in doing so, contribute to the development of democracy.

As a representative of a non-governmental organisation (NGO) - the Lithuanian Centre for Human Rights -, I am particularly pleased that NGOs have been invited to take part in this event.

First of all, I should like to describe the work of the Lithuanian Centre for Human Rights.

This NGO was founded in December 1994. Under its statute, registered at the Ministry of Justice on 5 September 1995, the Lithuanian Centre for Human Rights is responsible for:

- raising awareness of, and ensuring respect for, human rights;- running training programmes;- organising academic research on human rights;- analysing human rights problems and submitting its proposed solutions to Parliament

and the Government;- developing cultural activities related to human rights.

The Centre now has about a hundred members, of whom the majority are lawyers.

It is my belief that all NGOs working in the fields of training, education or information can help to protect human rights and freedoms.

When a crime is committed, both offender and victim have dealings with certain public institutions which, particularly at this stage of their activities, are required to protect and respect human rights and freedoms. All persons who are held for questioning should know their rights. Experience shows that the police and other state institutions do not always take the proper steps to inform persons held in custody of their fundamental rights. Judge A. Goda, in association with the Lithuanian Centre for Human Rights, has prepared a clear and concise aide-mémoiresetting out the fundamental rights of persons who have been arrested.

Under Lithuanian law:

- no one may be detained for longer than 48 hours without a court judgment;

- all persons held in custody must be informed of the criminal offence with which they are charged;

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- all persons must be questioned in the 24 hours following their detention. Such persons have the right to remain silent. Remand prisoners may not be forced to give evidence against themselves or admit guilt. Torture and humiliation are prohibited.

The law provides that all accused persons or remand prisoners have, in particular, the right to be assisted by an interpreter free of charge, if they do not understand or speak Lithuanian.

All accused persons have the right to defend themselves and to be assisted by a lawyer of their choice or, if they cannot afford to do so, to have, free of charge, the assistance of an officially appointed lawyer.

The public has responded favourably to the preparation by the Lithuanian Centre for Human Rights of an aide-mémoire on the fundamental rights of remand prisoners, because many people did not know what the rights of accused persons and remand prisoners were.

In May 1993, Lithuania became a member of the Council of Europe. In 1995, Lithuania went further and ratified the Convention for the Protection of Human Rights and Fundamental Freedoms, including its Protocols Nos. 1, 4, 7 and 11. Nevertheless, few people were familiar with the international machinery set up to protect human rights and freedoms or knew what remedies were available for violations of rights and freedoms. This explains the great success of the Conference on the Implementation of the Convention for the Protection of Human Rights and Fundamental Freedoms in Lithuania, organised in November 1995 by the Lithuanian Centre for Human Rights. In our view, training and information programmes have achieved their goal.

Another widely discussed issue in Lithuania is the death penalty. This phenomenon is not restricted to primitive cultures or uncivilised countries, as people would sometimes have us believe. All states have their share of both advocates and opponents of capital punishment. Moreover, many intellectuals and politicians have argued for or against the death penalty.

According to A.G. Amsterdam, three basic ideas recur in the arguments of supporters of the death penalty: firstly, the notion of retribution; secondly, the notion of removal from society; and thirdly, the idea of a deterrent. Opponents of the death penalty stick to the same framework, arguing that it is not an effective deterrent, that the desire to use it brutalises society and, lastly, that application of the death penalty never entirely satisfies the public's desire for retribution.

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The criminal code of Soviet-occupied Lithuania provided for the death penalty in sixteen articles for crimes against the State (10 articles), crimes against property (Article 95), crimes against the life, freedom or safety of an individual (Articles 105-118), crimes committed by public officials (Article 180), crimes against public authorities (Article 203) and crimes against public safety and public order.

After Lithuania became independent, the Law of 3 December 1991 on supplementary provisions and amendments to the Criminal Code was adopted. This Law removed the death penalty from the Criminal Code and abolished it for all crimes against the State and for other crimes, with the exception of premeditated murder in aggravating circumstances (Article 105).

According to the Lithuanian Law Institute's information, since Lithuanian independence, death sentences have only been passed under Article 105 of the Criminal Code. Between 1990 and 1995, thirty-one murderers were sentenced to death: the sentence was carried out in four cases and commuted into life imprisonment in the other twenty-six cases.

To judge from sociological surveys, the majority of Lithuanians are in favour of the death penalty. These are the figures:

- in December 1990, 60% of those interviewed supported and 27% opposed the death penalty;

- in September 1992, the figures were 66% and 19% respectively.

The imminent elections to the Seimas made it difficult for members of parliament to adopt the law abolishing the death penalty. The President of Lithuania therefore took the initiative and proposed resolving the problem of the death penalty in three stages. The first involves not carrying out death sentences, the second refraining from passing such sentences and the third, legal abolition of the death penalty in Lithuania. One would hope that upon reaching stage three, Lithuania would ratify Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms on the abolition of the death penalty.

The majority of the Board of the Lithuanian Centre for Human Rights supports abolition of the death penalty.

The famous Italian thinker Cesare Beccaria, one of the most influential theorists in criminal law, was explicit on this point: "... if I can prove that the death penalty is neither necessary nor useful, I shall win the case for humanity". It could equally be said that if the Lithuanian Centre for Human Rights can prove that the death penalty in Lithuania is neither necessary nor useful, it will win the struggle for humanity by consolidating man's natural right to life.

It is my heartfelt wish that the Lithuanian Centre for Human Rights should win this battle.

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Written communication by Mr Francesco BRUNO, Chair of Forensic Psychopathology, Department of psychiatric sciences and psychological medicine, University of Rome La Sapienza, Rome

The phenomena of pentiti in the fight against serious crime

1. Introductory remarks and legal sources

Seventeen years ago, Italy began to utilise the so-called "repented" (pentiti) as a decisive tool in the fight against that crime which aroused remarkable social alarm.

At the beginning, it was simply to allow and to favour the destruction from the inside of criminal terrorist groups strongly connected from links of fanatical connivance.

Afterwards, given also the undeniable success of the initiative, this method was applied also to other forms of crime, not without discussions and hesitations.

Through a long period, in the 1980s, the different prosecutors who took the first initiatives of organic fight to the organised crime strove as well as they could to apply each possible legal tool to favour the big first "repented" of the criminal system, but it is only at the beginning of the 1990s, that, by means of a fragmentary legislation, it has been come to a regulation of the matter.

From this moment the "repentance" stops to be a peculiar condition that affected few person, and becomes an important phenomenon involving thousands of subjects, affecting not only the judicial practice, but also the entire system and even the future of the crime.

To give an idea of the bumpy and complex path that the legislation on the "repented" people followed it is enough to observe the different normative sources which have regulated the phenomenon of the "repented" during this time. In short, in Italy the first legal provision on "discounts of punishment" for those who had collaborated with justice: admitting their own guilt, denouncing accomplices, indicating the bases and eventually preventing the accomplishment of future criminal actions, is foreseen in article 4 of the Law no. 625 of the 15/12/1979.

The first true measures based on the recompense of the collaborators against the organised crime have been issued with the DPR 9 October 1990 no. 309 known as "law on drugs" and then the law 15/3/91, no. 82 modified through the law 8 June 1992, no. 306 that foresees an organic discipline of the matter focused on the protection of those subjects that collaborate with the justice.

The provisions of such law regard in particular: "the people exposed to serious and actual danger because of their collaboration or their declarations in the course of the preliminary investigations or of the trial, in relation to the crimes foreseen in the article 308 of the penal procedure code".

They regard even "the near relatives, the partners and those who are exposed to serious and actual danger because of their relationships with the collaborators". The law has created a "central commission for the definition and application of the special program of protection".

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This Commission is composed "of one under-secretary of State, two magistrates and five experienced officers in this matter".

They can be supported for education and assignments by the secretariat of the office for the co-ordination and the planning of the forces of Police".

The admission to the special program is decided by the commission on proposal of the government local authority (Prefetto) with the favourable opinion of the prosecutor.

In case of urgency, the head of police can take the decision and afterwards inform the minister.

The collaborators to admit confirm "to select their residence in the place that the commission establishes, to release to the proponent authority each documentation regarding the own personal state, the state of their family and of their income. They designate an own general representative pledging themselves:

1. to comply with the prescribed rules of security and to collaborate actively to enforce the program;

2. to make the declarations and to work out the activities and the deeds in relation to the adopted program;

3. to fulfil the foreseen law obligations and the drawn engagements;4. not to release to different subjects from the judicial authority and from the forces of

police declarations focusing relevant situations for the trials in relation to which they have paid their collaboration.

The programs are developed from the central service of protection that is located within the department of public security".

Besides "discounts of punishment", that could also become very sensible, taking into account that the new penal trial allows the application of different procedures, which could arise to the defendant others improvements just in terms of punishment, some counterweights to reduce the danger of false declarations and in the same perspective the foreseen punishment of calumny. In these cases, the punishment is largely increased.

The law has granted important benefits regarding the penitentiary treatment to those that chose to collaborate with the justice.

Still once to the concession of the benefits is associated an aggravation of the penitentiary treatment for the prisoners for crimes of "mafia".

Among such benefits, we can remember "the possibility to work out of the prison, the permissions as reward for behaviour and the different alternative measures to the detention, such as: the commitment to the social service, the detention at home, the partial liberation and the anticipated liberation".

The above said benefits can be given also if the collaboration is not relevant from an objective point of view. In this case, nevertheless, sufficient evidences should be obtained to exclude certainly an actual connection of the subject with the organised crime.

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The call of accomplice becomes then the only proof of the break of each connection with the organised crime, and in this perspective, it represents that role of amends foreseen in view of the benefits from the penitentiary code.

A year later, on 8 August of 1992, finally the so-called Law "Martelli" of the 7/8/92 no. 356 came into force.

It is based on the homonym decree (DL 8/6/92 no. 306) in force from the 9 June of the same year.

The crucial moment of the legislation on the "repented" can be collocated certainly between 1990 and 1992. This was a very troubled period that corresponded to the years of the passage from the first to the second republic and it is also the moment in which the challenge of the criminal system to the State achieved the maximum levels with the so-called "season of the massacres and bombs".

In the 1980s, the Italian system of the penal justice changed through relevant reforms like the penitentiary and that of the new code of penal procedure, and through many other particular modifications and revisions of the legal provisions.

Finally new offices have been created as the National Direction Antimafia (DNA) on the judiciary side and on the police side the Investigative Direction Antimafia (DIA).

At the same time, the whole system has evolved towards an ever higher specialisation and the utilisation of rewards.

These changes sometimes confused and often not homogeneous with the structure and the general principles of the system nevertheless appeared very effective, at least in achieving some immediate objective.

The reform in preparation of the new penal code could constitute an adequate instrument to reduce such developments in a new and rational frame.

Up to now the changes have appeared mostly extemporaneous and not enclosed within a more general and strategic plan.

The text of the law "Martelli", for example, has been realised as reaction of the State to the aggression of the "mafia" against the institutions, and culminated in the massacres of "Capaci" and of "via d'Amelio" in which the judges Falcone and Borsellino lost, among the others, their own life.

It has shown all its effectiveness as tool of fight against the organised crime and, among other norms that foresee modifications to the penal and to the penal procedure codes, in penitentiary matter, on the measures and the activities of prevention. It also contains specific "new measures for the protection of persons who collaborate with the justice."

The DL 29/3/1993 no. 119 finally has arrived to regulate the change of the names and addresses for the protection of the subjects, who collaborate with the justice.

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2. The phenomenon of the "repented": elements for description and evaluation

According to several high officers of the penal justice system, the phenomenon in these years became a decisive instrument of investigation in the attainment of highly positive results. Among the more remarkable effects, the following have been identified:

1. Informative contribution on the structure and on the function of the criminal groups;2. Contribution to the investigations;3. Crushing effect of the not known revelations within the hard core of the organisations.

Among the possible problems which the phenomenon can cause, in particular, the following have been suggested: the incorrect usage of the declarations that can, in such a way, become sources of misinformation and of informative intoxication.

Few people believe in the hypothesis of the existence of false "repented", who could be used by the "mafia" as instruments of misinformation.

In fact, up to now, its verification has not been demonstrated.

Besides this, the relationship between the collaborators and the investigator is clear and framed in precise and encoded rules.

Finally because of the magistrates who are sufficiently crafty and expert for understanding the truth.

Today nobody doubts the effectiveness of the tool of the "repented", even if many people retain that such a delicate question should be still well regulated and firstly collocated in a harmonic legislative and constitutional framework.

However, it is also sure that many political parties and many experts and scholars of the law are very doubtful on the tool of the "repented" in general, and on the effects that it could cause not in terms of effectiveness, but in terms of costs-benefits analysis.

Likewise surely nobody could resolve these problems, in fact the matter has never been faced from a scientific and planning perspective and the results have never been submitted to analysis and to an adequate evaluation.

Up to now this seemed a taboo, almost a question of faith, and the supporters of the tool arrived to such a degree of silencing each critical voice accusing it to do the play of the "mafia"and to weaken the struggle against the octopus, finally to leave alone the magistrates of front line, exposing them and the "repented" to the atrocious revenges of the criminal system.

If we think that those who openly defend the "repented" are just the prosecutors, that they are responsible to start the penal action and finally that this country invented the crime of "external support to organised criminal association", it is well understandable how any critical voice could be suddenly silenced; the difference between the role of critic of a system and that of supporter of the opposite system could become very slight and disappear with the possibility of an overlapping of the two roles and of a personal involvement as object of penal action.

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Some examples of this aberrant path unfortunately occurred even to very well-known persons.

Only from August 1996, with the so-called "affaire Brusca", it seems become permitted to intervene and to criticize the system of the "repented". On that occasion, a head of "mafia", such Giovanni Brusca - just captured - decided to collaborate with the State. At the beginning the news has been maintained secret, then just in the period of mid-August it has been diffused with a consequence of dramatic unexpected happenings.

First the former lawyer of Brusca confessed, without any stimulation, that his former client had played an important role in the contact of an important political personality and to negotiate with him, not only his repentance, but also the indictment of other big political personalities.

In a second phase, the content of some declarations of Brusca has been divulged. According to these, he would have substantially contradicted many facts cleared by all the others "repented".

Finally, in a very hot climate, the most important police officers and the judges who were interrogating Brusca declared that he had confessed his preliminary planned project aimed especially at the purpose of defaming and misinforming, but also that the same "repented" would have soon abandoned it.

The real consequence of the "affaire Brusca" seems to have strongly decreased the reliability of the "repented" who for the future wanted to be believed by the State.

Substantially it has been said that the reliability of a "repented" does not depend as much on the content of his assertions, as instead on the judgment of the prosecutor who interrogates him and, for our system, is the unique guaranteeing authority.

It means that anything the "repented" wishes to say, he will take into account all things officially accepted and that each dissonant voice will be evaluated in terms of reliability, only on the basis of the unique and undisputed judgment of the prosecutor who has him in charge and will continue to be the only authority that can propose the subject for a program of protection and for the foreseen benefits.

Finally, the possibility that the "repented" could lie has been admitted, and the chance of criticism has been admitted too, but the foreseen solutions to change the system seem to move only in the direction of a confirmation of the arbitrary way of decision making by the prosecutor, who in the next future should transform himself in a filter able to substantially reduce the growing number of "repented", only on the basis of the coherence of the new declarations with the majority of information earlier collected and believed reliable.

In this work, the prosecutor can be supported only from his experience, specific sensibility and individual preparation.

It seems almost that Brusca has felt the worry of the government for the uncontrollable increase of the number of the "repented" and has offered the occasion to restrict the criteria of the future enrolment of the people in the role of "repented".

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As in the recent past, it can be said: "Few, but good, and over all in dominant positions".

We do not know if our malicious interpretation of the Brusca case is right, but it seems to us that again the government are going to close to the "repented" what it had just opened, and again in a completely arbitrary way without any reasonable evaluation neither forecast of the effects, of the costs and of the particular and general consequences that they involve.

The proof of our hypothesis is contained in the report to the parliament for the period 1 January-30 June 1996 that the Minister of interior sent just after the "Brusca scandal". From such document, we can draw a set of data that quantifies the phenomenon only in a very general manner, without any adequate element for a more deep analysis. The comments and the changes suggested by the report are oriented in the above indicated direction.

According to the ministerial report, on 30 June 1996 the collaborators of justice were totally 1,244, 125 more than on 31/12/95.

The relatives protected were 4,997 against the 4,898 on 31/12/95; 6,241 subjects are totally in charge of the Protection Central Service.

The offices of prosecutor that have presented a major number of proposals are in the rank: Naples, Catania, Palermo, Milan, Bari, Catanzaro, Torino and Lecce.

On the total of 1,244 collaborators, 1,177 are "repented" and 67 "witness".

Of the 1,177 "repented": 430 come from the "mafia", 224 from the "camorra", 158from the "'ndrangheta", 101 from the "Sacred United Crown" and 264 from other criminal groups.

Of the 67 witnesses, 22 are for "mafia", 36 for "camorra", 12 for "'ndrangheta", 10 for "Sacred United Crown", 8 for other.

Of all the population of the subjects under the protection program: 743 are free, 248 are in prison, 106 have alternative measures to the detention, 7 are resident in foreign countries, 65 are arrested at home, 8 have held in structures out of the prison.

Of 1,244 collaborators: 1,139 are masculine and 105 female.

Of 1,107 "repented": 1,037 are masculine and 70 female.

Of 67 witnesses: 32 are men and 35 are women.

61% of collaborators are married, 18% are not married, 9% are divorced, and 10%are living together.

From 1991 to present day, 160 programs have been modified, 441 programs are less than one year old, 393 are from one to two years, 154 from two to three years and 44 are from three to four years.

The special programs cancelled in the last six months are 24. The collaborators identified for their inadequate behaviour are 131.

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The Central Service of Protection declares that around 16,000 travels have been realised last year to escort the collaborators in the places where they had to participate in different trials.

Each day, 50-60 collaborators move across the national territory.

The first data that catches our eye from this presentation is represented by the really geometric increase of the subjects under program of protection and of the total number of relatives. In five years, this number totals more than 6,000 subjects.

If we compare this data with the not more than 15,000 persons protected by the Witness Security Program in the U.S.A. (with a population four times bigger than that of Italy) in around 25 years of life, we must consider the Italian figures as pathologic, and not as natural phenomenon that, just for this reason, must be scientifically analysed and understood.

Other comments on this data would imply even a least effort of analysis and of evaluation of the results in terms of efficiency and effectiveness.

Unfortunately, official sources do not give such a service, despite the existence of a Direction Investigative Antimafia, and of a Direction National Antimafia, that beyond their operative targets should study the phenomenon in criminological terms identifying practical elements of assessment, monitoring and forecast.

Among our activities and studies, as chair of criminology at the University of Rome La Sapienza, we are just working out a research of this type and we started to collect data regarding a specific and selected set of indicators among which we mention at least the following:

1. Number of subjects imprisoned as consequence of call as accomplice by "repented" persons;

2. Typology of the subjects catch as consequence of call as accomplice by "repented" persons;

3. Course and trend of the trials and number of sentences and acquittals in the different phases and degrees of the judgment;

4. Seizures of "mafia" patrimonies and goods;5. Behaviour of the subjects accepted in the programs of protection;6. Number and typology of the "mafia" reactions aimed to combat the phenomenon of

"repented", diagonal and right revenges, misinformation strategies, countermeasures of protection, etc.;

7. Number of "repented" subjects gone back to undertake criminal activities;8. Number of the "mafia" homicides;9. Trends of the indicators of the "mafia" activities and of the indexes of criminality.

The research is not yet complete but some data is already catching our eye with drastic evidence. Firstly, it is true that the "repented" have made possible the first big trials against the organised crime and that, in the majority of the cases, they have implied heavy sentences for the most important "godfather" and it is also true that up until now some of such sentences have generally resisted to the critical analysis of the Supreme Court of Cassation.

It is also true that the "repented" have caused the arrest of several tens of thousands of persons in the whole of Italy.

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In fact the district of Catania alone, during the last years, ordered 8000 arrests of subjects suspected of connection or of contiguity with the "mafia".

A third true consideration is represented from the fact that the "repented" have caused all the most important arrests of these last years, among which, for instance, those of Francesco Madonia, Salvatore Greco, Scarpuzzedda, Pippo Calo, the boss of the bosses Toto Riina, Leoluca Bagarella, Giovanni Brusca, Nitto Santapaola, Pulvirenti, etc.

Finally, nobody can deny that only with the support of 15-20 "repented", it has been possible to realise the big trials focused on the possible connivance of the criminal system with the political and economic world, but just such trials are the most contested from who sustains the unreliability and the impossibility to utilise the contribution "de relato" of the "repented".

However, if we go to consider which is the real damage that the above said individuals have caused to the criminal system, we must see that it is just perceptible, in fact, for admission of some branches of our police, in Italy still hundreds and hundreds of criminal families could be listed.

They have the control of the territory in the four southern regions: Sicily, Calabria Campania and Puglie, but are spreading in activities that cover all the Italian Country and, over all, they are in connection with international local groups outside of Italy and inside with immigrant criminal associations. The businesses in the countries that have risen from the break-up of the Soviet block are by now preponderant and have led the national and international groups of organised crime to levels of economic productivity never touched until today.

For instance, in Italy, the police forces have identified at least 15-20,000 subjects still free, associated to the criminal groups of the different "mafie".

Old bosses, like Bernardo Provenzano, and new, like Pietro Aglieri, have rapidly taken the place of those just imprisoned, while the criminal works are made always more by young people coming from Albania, Russia, Chine, Nigeria, etc. In some places, there is never a day in which a death related to "mafia" is not recorded, while all the indexes of the traffic of drugs point out the survival of a traditional market of heroin to the maximum achieved levels and the continual growth of the market of the cocaine and of the chemical drugs from disco.

In a word, the criminal system is more active and strong today than ever before.

There are even unequivocal signals of an active participation of the criminal system to the crisis of the political Italian system and of its interest to tighten new connections and connivance with the new governing powers.

The behaviour of more famous "repented" always appears more open to criticisms and sometimes reprehensible. They in fact exhibit a very rich and glamourous lifestyle, some of them write books, others give interviews, many frequent fashionable restaurants.

However, the worst is that there are clear signals and the founded suspect that some of them come back to accomplish personal revenge, to traffic again in the drug market or even to establish new criminal connections that should have been destroyed for ever.

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Some, indicated to the public admiration for their courage, have finished by appearing as interested slanderers losing every reliability, others appear manipulated from unknown and criminal forces.

Some "repented" have demonstrated the signs of serious psychic disorders as far as suicide, others have appeared protagonists of bewildering events and many, despite the protection programmme in action, have missed several relatives and friends through "diagonal revenge".

Almost all have problems with their own sons and with their own partners. In this case, the service of protection is not completely able to assure them the necessary, psychological support.

For almost all, there are various problems related to their work, legal assistance, economic needs, etc. This is the reality despite the total budget of the Central Service of Protection being beyond 100 billions of lire and despite the fact that every "repented" is paid on average at least 3.5 million lire every month.

It can be said that in Italy the phenomenon represents different contradictions, many dark sides and problems, that should be resolved through a rationalisation of the system which, if neglected, could become very dangerous.

In fact, instead of allowing the victory on the "mafia", it would produce new types of crime and would favour, at the end, a stronger consolidation of the criminal system.

The analysis of the American experience which began at least twelve years before that of Italy and that has taken on, from the beginning, relevant dimensions, seems to demonstrate well that the success of the utilisation of the phenomenon over all depends on three different elements:

1. The presence of precise and encoded rules on the management of the phenomenon;2. The efficiency of the executive mechanism and the professionality of the operators;3. The presence of a precise technical and juridical framework that regulates the activity of

the agents and that protects the witness and the society from the possible dysfunction of the same program.

In the Italian system, the things that could be practically made in order to adequate it, to correct and to increase its efficiency and efficacity can be listed as follows:

1. Distinction of the activities of assistance and of protection;2. Rationalisation and optimisation of the human resources employed for the assistance and

protection of the subjects under special programs;3. Educational and professional adjournment of the agents and operators employees in the

services of assistance and of protection;4. Adequate psychological and behavioural study in order to predict and to control the

behaviour of the subjects from under special programs;5. Psycho-social and family counselling, aimed to control and to manage the stress of the

subjects and to prevent eventual future troubles;6. Strategies to avoid the feeling of eradication and to establish a psychological continuity

in the personalities of the subjects;

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7. Strategies of environmental insertion and of adjustment to new lifestyles with mechanisms of protection of the subjects and of the contact environment;

8. Development of management projects, overcoming crises and planning of long term needs and events;

9. Control of the conditions of security, of privacy, of secrecy and of undercovering;10. Prevention of eventual new crimes committed by the subjects.

The problems related to the selection of the cases to admit are less frequent, but important and they could not neglect some fundamental principles:

1. Independent evaluation of the requisite foreseen in the law;2. Objective evaluation of the reliability of the subject and of the witness;3. Evaluation of the collaboration compared to eventual assessed alternatives and to the

costs benefits analysis;4. Utilisation of a clear and analytical protocol of agreement that should contain defined

rules on the use, the modalities and the limits of the contribution offered from the collaborator.

3. Conclusive considerations

Notwithstanding the attempts made by the magistrates and some political forces to make the "repented" actions acceptable in public opinion, notwithstanding the change of the name in that more presentable of "collaborators of justice", people never show appreciation of their behaviour, and, in fact, the press continues to call them "repented".

The meaning of this adjective contains indeed a component of falsity, that characterises the behaviours of people motivated from opportunism rather than from ethical change.

Many continually say that the law is not interested in the ethical change of the subjects, but only in their actions that allow to achieve a result of big relevance, but they forget that a law which denies the moral principle on which it should be based does not exist.

The idea, which looks at the purpose rather than at the means, is of politics alone, but it is absolutely inadequate for the law.

We do not think that the presumption of innocence, which is a right of every citizen, or that the value of fines related to the punishment are useless tinsels of a Byzantine State. We believe instead that they constitute still the principles and the basis of the State founded on the rights and that their crisis just represents the crisis of the law.

In the consciousness of the people, they remain the "repented", or better, the false "repented" who, up until today brought in jail thousands and thousands of persons, but they have not allowed to resolve the problem, they have not consented the real victory on the organised crime.

In conclusion, on the basis of what we are told, it is clear that, in our system, the problem of the "repented" cannot be simply retouched. It is instead necessary to go towards a complete revision of this judicial mechanism, at least reasoning on the following points:

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1. The "repented" criminals and the relevant witnesses against the organised crime could bring contributions of big importance on the side of the investigations, over all giving mechanisms of understanding of the events and the necessary information for the capture and the sentence of the subjects involved with the criminal system, but only such individuals do not consent the victory on the organised crime;

2. The management of information that arises from the "repented" and from the witness is very delicate and implies many problems that can be resolved taking into account the most important values. Among these we can list: the guarantee that the law assures to all citizens, the quality and the legitimacy of the justice, the freedom of the person and the stability of the political and governmental powers. Such information can be used at judicial level only when they are corroborated from an objective verification and when the reliability of the sources has been adequately verified;

3. The management and the protection of the subjects must be insured from the State through qualified and sufficiently numerous personnel, appropriate means, under the provisions of clear and agreed programs that contain rights and duties and eventual sanctions for the parts that break the rules. The efficacity of the protection should be evaluated. It is necessary to avoid any privileged relationship or overlapping of functions between the personnel to which the subject is entrusted for the protection and those who instead ask, collect and utilise his information;

4. The whole of the first phase of the management of the "repented" and of the witnesses must be entrusted to the forces of police, while the judge can grant the benefits and use the information only once the reliability of the subject is ascertained and once the program of protection is established;

5. The benefits of law must be evaluated, motivated and given from a judge who should be different than the proponent.

The criminal system for its same definition cannot be won except through the supremacy of the law of the State and surely not through its betrayal.

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Interventions concerning theme 1.ii.

Mr Andrew COYLE

We should exercise great caution when considering the part which the prison and imprisonment can play in crime prevention. In the first place, we need to distinguish between the punishment of the person who has committed the crime and the prevention of crime. Longer and harsher punishments do not necessarily lead to less crime: one can say with certainty that imprisonment should not be the first tool in a strategy of either crime prevention or crime control.

English criminal justice legislation is quite clear in respect of who should be sent to prison. The Criminal Justice Act 1991 indicates that people should be imprisoned for only one of two reasons, the first being that the crime committed is so serious that imprisonment is the only reasonable punishment, and the second - particularly in the case of crimes of a violent or sexual nature - that the protection of the public requires it. While the legislation seems appropriate, its application in individual cases is very much open to question: the prison population in England and Wales is currently increasing at the rate of 1,000 prisoners each month, but there is no indication that this is a consequence of a sudden rise in crime.

Criminal justice is about a balance between the rights of the victims and the rights of the offender and injustice occurs when this balance is disturbed: it must be born in mind that speaking up for the victims does not mean opposing the offender nor vice versa. Our present criminal justice system tends to marginalize the victim: it is the State which takes over from the victim and pushes her or him to the margins. On the other hand, in making the criminal justice system impersonal, the state allows the offender to overlook the fact that there is indeed a victim, a person who suffered as a consequence of his actions.

Prison should only be used when there is no alternative and for the shortest necessary time and strong links should be built between the prison and the community that it serves. The manner in which we treat people who are in prison, the manner in which we treat those who have broken the law, is a good measure of our civilisation. It is a test of our humanity.

Ms Maria Luisa CESONI

Governments sometimes use organised crime as a pretext to avoid dealing with the protection of the economic and social rights of citizens; this was the case in southern Italy. Studies in this country show that the economic policies for the southern regions, far from producing real economic development, on the one hand, have resulted in a continued high level of unemployment, constituting a labour pool for criminal organisations, and on the other hand have left these regions increasingly dependent on public funds and have made politicians and officials vital links between the population and such funds. Consequently, opportunities for corruption have become more frequent, and the economic and political influence of criminals is on the rise.

Corruption and organised crime are actually two different phenomena. In areas in which they interact, however, they often become two aspects of the same problem. The fact that the

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countries of eastern Europe employ the same term, namely organised crime, to designate diverse phenomena, including corruption, is revealing. This underscores the need to fight corruption in order to combat organised crime effectively; to this end, priority must be given to prevention before any punitive response.

Mr Nicholas McGEORGE

Observing the various ways in which the states deal with the problem of drugs and the results achieved, I would say that anti-drugs policies are, in general, a total failure. Most of the money laundering within organized crime is based on money from drug trafficking: this money gives those involved in such activities the power to fund police and customs corruption. These examples strongly suggest that through the current policies on drugs we tend to increase corruption, we cause a great number of criminal offences and we have extremely active organized crime.

However, trying to get this topic discussed rationally and calmly is very difficult, at least at public level. Privately, there are several people who would encourage a reform of drugs policy. My suggestion is that it should be made possible for us to have a rational discussion about the consequences and the effectiveness of policies on illegal drugs, in particular considering whether a radical change is needed to regard the use of drugs as a health problem instead of a crime problem.

Mr Gavril-Josif CHIUZBAIAN

Above all I wish to inform you of the efforts undertaken by Romania to combat organised crime.

The fact that such crime is only in its infancy in Romania does not mean that the country is not paying close attention to the development of the phenomenon at international level. Political, economic and social transition does indeed provide fertile ground for the development of this social evil. The emphasis must therefore be placed on the prevention of crime and this requires a comprehensive, interdisciplinary strategy, involving both the institutions of civil society and the mass media, which can contribute to raising awareness among the public, as well as international co-operation, which is the only possible means of undermining the economic basis of organised crime.

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I will finish with a statement by Professor Marcel Merle, to the effect that the European Convention on Human Rights is the legal expression of the type of civilisation that European states are endeavouring to uphold.

* * *

Reply of the rapporteur, Mrs Marie-Pierre de Liege

It is well known that imprisonment tends to be counterproductive as far as reintegration is concerned. For the last twenty years or so, many democracies have therefore sought to make increased use of alternative sentences, with varying degrees of success. In times of economic crisis, the use of such alternative sentences is more difficult. The current economic and social crisis is making it much harder to achieve the goal of reintegration through such sentences or when prisoners leave jail.

An unpublished study by the University of Lausanne (Switzerland) puts the proportion of crime related to drug-taking at 50-60%. Clearly, it is drug users' need to obtain drugs and not their addiction in itself that causes crime.

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FOURTH SESSION

Theme 2: increasing public awareness of the need to respect human rights when combatting serious crime

i. Education

Reports presented by Mrs Vivien STERN, Secretary General, Penal Reform International, London

Summary

If we wish to provide education to increase public awareness of the need to respect human rights we need first to understand three factors in the current environment which are strongly influencing public perceptions. These are:

- a redefinition of rights to set the rights of victims against the rights of offender;

- a belief in a new emergence of evil;

- an increase in terrorism.

These factors have led to a questioning of the basic principles underlying the treatment of defendants and convicted offenders. The human rights principles embodied in the Council of Europe were set down and codified after the atrocities of the Second World War and are based on analysis of how those atrocities happened. Half a century has now passed. It is necessary to explain again what are the lessons of the Second World War and how these came to be expressed in the European Convention on Human Rights.

Education in the theory, origins, history and practice of human rights needs to be incorporated into school and university studies. Governments need to establish human rights education units. Non-governmental organisations working for the promotion of human rights need to be encouraged to undertake active and convincing public education work. The Council of Europe should consider establishing a major human rights education programme.

Background

Undoubtedly we are now seeing in Western Europe a diminishing respect for the human rights of various groups of people who seem to disturb the peace or prosperity of the majority. The consensus about human rights that was established after the Second World War and embodied in the European Convention on Human Rights is no longer so strong. It has become more common to hear arguments suggesting that the human rights protections put in place since 1945 are not sacrosanct and may be flawed in certain respects.

One group whose rights are being seriously questioned are foreigners, be they refugees, asylum seekers or other immigrants. For example, in France and in the United Kingdom new measures are in place to make it more difficult for immigrants or asylum-seekers to come to those countries. A similar impatience with the requirements of the international human rights

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framework is seen in attitudes to convicted criminals and accused persons. Examples come from several countries. In the United Kingdom a longstanding principle deeply embedded in the legal structure, i.e the right for an accused person to remain silent without this affecting the judgement of the case, has been diminished. In the Netherlands, long seen as a beacon of humanity and decency in its treatment of convicted criminals, prisoners in a top security unit, the TEBI, in the prison in Vught have been kept in handcuffs whenever they leave their cells, seemingly in contravention of the requirements of Rules 39 and 40 of the European Prison Rules.

A gulf is opening up between those who understand human rights discourse, and those who do not. Many people who care about society and the way it is going, people who accept an ethical basis for life, do not understand many of the arguments used by human rights proponents. For example, it is asserted that democracy is the most desirable form of government. Democracy means that the people should choose. But when it is clear that a majority wants capital punishment or corporal punishment, the assertion is made that these methods are an abuse of human rights and unacceptable in a country that wants to be a member of the Council of Europe. This assertion is not readily understood and no consistent programme of work is underway to explain it. No organisation or group has been given the task of working to inform and explain.

Justice as a commodity

It is important to ask the question "How do we explain these developments?" I suggest that three factors are important. One arises from the very desirable and necessary development of a movement to campaign for better treatment of the victims of crime. Support for the plight of victims and arguments that the state should recognise the damage done to them and make some recompense to them has been widely advocated by reformers and human rights proponents for many years. As a result many countries have established victim support schemes and compensation arrangements for those who have suffered a crime against them. This development represents a very welcome extension of rights in the criminal justice field.

However, what is essentially a progressive movement has features that are moving beyond the call for better treatment of victims. Some proponents of victims' rights are taking the argument much further. They are asserting that it is in the interests of victims that offenders should undergo more suffering in their punishment. Justice is being seen as a commodity that the state offers to citizens, like health and education. It is also seen as finite and limited. There is only so much of it and offenders get a great deal of it, through all the legal processes and the protection of their rights, whilst victims get very little. In this line of argument victims have an entitlement to a certain "amount" of justice from the State and not enough is left for them. They feel they should be entitled to more. What this means is that they are entitled to see their offender being charged at a level that reflects the victim's view of how serious the crime is. Then they feel the defendant if found guilty must be punished severely. If the punishment is not enough, victims feel cheated. "I did not get a good enough service. I should have got more. Other people have got more when something like this has happened to them. My judge was not as good as another judge because another judge gave more", they think.

The language of rights is used to justify this position. Some victims' representatives begin to argue in the following way: "Defendants and offenders have been given all these rights and they are set down in international conventions. What about my rights as someone who has suffered a crime? What about the human rights of victims? How can someone who has committed a heinous crime be entitled to protection and consideration in the same way as the

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person who has suffered the crime? How can the criminal be equal to the victim when rights are being considered?"

In a sense a "rights competition" has been set up. Whose rights should win the competition, the victim or the criminal, "decent law-abiding people" or "bad people"?

This understandable way of thinking has consequences that are damaging not only for the process of justice but also for the work of resocialisation of offenders. The view is becoming widespread that people who work for the resocialisation of offenders are in opposition to the people who support victims. In this view it is not possible to respect the rights of victims as well as to respect the rights of offenders. The two would be incompatible. Contempt for convicted offenders extends to contempt for those who work with them to try and resocialise them. This makes the task of resocialisation, which is very important for public safety, doubly difficult.

New emergence of evil

The second important background factor is the widespread view that serious crime has got worse. In the United Kingdom, the case that seemed to symbolise this shift in public opinion was that of James Bulger, the two-year old boy killed by two ten-year old boys. Such an act is so horrific and inexplicable that it leads people to move away from rational responses and enter a framework where reasoned argument holds less sway. The facts, that murder of children by children is very uncommon, that in the United Kingdom there has been about one case a year for the past twenty years, have little effect on the way people respond to such an event.

Sexual abuse of children has also sprung to public attention and the UNICEF conference held in August 1996 in Stockholm has given it worldwide publicity. Abuse of children has undoubtedly always occurred. Now however it seems much more common. What seemed in the past to be innocent is now regarded with suspicion. The recent case in Belgium of the alleged paedophile organisation and the abduction of teenage girls, widely publicised through globalised television channels, and the case of the Wests in the United Kingdom, who abused and murdered their own children, arouse fear and hatred. People are very shaken by them and they begin to wonder about their neighbours, themselves and the world we live in: "Are there dreadful people in the next street? Has a new form of evil emerged?"

These cases of the torture and murder of children are in a sense the ultimate test of respect for human rights. To argue against the death penalty in such cases and to support the humane treatment of the perpetrators of such horrific crimes is a task of enormous difficulty.

Terrorism

The third factor is the increase in political terrorism in West European countries. The Irish question has familiarised the citizens of the United Kingdom with the limitations imposed on everyday activities and the implication of bombing campaigns. The Basque question has had the same effect in Spain. Now in France as a result of the Algerian situation there are similar experiences. It is becoming a commonplace in Europe for main line railway stations to have no litter bins and no place to leave luggage as a precaution against the planting of bombs. People are searched when entering public buildings. There is considerable pressure on Governments facing terrorist situations to bypass the rule of law and move onto a war footing against terrorist crimes. The result of this would be the carrying out of extra-judicial executions. Allegations of such a response are being investigated in Spain.

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Public reactions

These events - child abuse and murder, terrorist bombs - induce real fear and horror and seriously affect people's view of the nature of the environment they live in. They begin to see the world as a hostile, threatening, unsafe place. They stop their children going out and they alter their own behaviour so as to feel safer. They resent these changes and they look to politicians to take action to deal with them. In this climate it is difficult for society to restrain itself - or to understand why it should. In a democratic society politicians find it very difficult to resist the pressure and few, if any, have the courage to speak out for the human rights values embodied in the establishment of the Council of Europe and the Convention on Human Rights.

The role of the mass media

The mass media is becoming more a producer of stereotypes about crime and criminals and the dangerousness of the contemporary world. In many countries crime stories are featured every day on the television and in most of the newspapers with no indication of how common they are or how rare. To the consumers of this media the world thus begins to look very frightening. In some countries the concentration of the ownership of the media in the hands of a few powerful people who have no particular commitment to the well-being of any of the countries whose means of communication they monopolise has great dangers for human rights education. The media moguls are committed to the profitability of their businesses and the profitability of business in general. The main aim of much of their media is not to inform and educate but to entertain.

The United States

Developments in the United States show where this process can lead. There, rights of offenders are being rapidly eroded. Boot camps have been set up where a form of inhuman and degrading treatment is the basis of the regime. Ritual humiliation is deemed to lead to the recovery of self-respect. Chain gangs were set up in Alabama. According to Amnesty International prisoners from the Limestone Correctional Facility are taken to a work site wearing white work suits and caps with "Alabama chain gang" emblazoned on the front. There they are linked to each other at the ankle in groups of five. Amnesty International has described the operation of the chain gangs as:

cruel, inhuman or degrading treatment, in violation of international standards on the treatment of prisoners.

In Arizona and Florida chain gangs are also being operated. The death penalty is being applied even more widely, albeit selectively, and legislation has just been brought in to end the funding to the law centres dedicated to working with poor prisoners on death row.

The influence of the East

Also of importance in the debate is a view of human rights that comes from the economically very successful countries of South-East Asia. There we see a major questioning of the whole basis of the European human rights ethos. It is suggested that this ethos places a premium on individualism, leading to crime, drug abuse and other Western inner city evils. The attitude of the Eastern cultures, stressing collective rights and duties, is said to be much more

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socially and economically beneficial. It is commonly said in the West when justifying the human rights protections that surround the legal process: "It is better for many guilty people to go free than for one innocent person to be convicted". The response from the South-East mightbe: "Why?".

The educational process

Against this background, those who argue for a fair legal procedure for suspected persons, oppose the death penalty and support humane treatment of people who are in prison face a complex task in putting the arguments across. It is a long philosophical journey to make, a deep educational process, for people to say they are prepared to respect the rights of all human beings, even child abusers and bomb planters. It is therefore necessary to retrace the steps of the argument which led in 1953 to the entry into force of the European Convention on Human Rights. Fifty years have passed. For a large proportion of the population of Western Europe the Second World War is distant history.

We need to remind ourselves what are the steps on that philosophical journey. We need to ask ourselves why we, the participants in this seminar, feel we have to fight for the human rights of for example a man who abused and terrorised small children, an activist who planted a bomb that killed many innocent people or a person who murdered in cold blood for financial gain?

One step on the journey is the process of understanding the abuser or the terrorist, not in order to find an excuse for what has been done but to have an insight into how someone who has carried out terrible acts has become able to do so. Many studies show how terrible childhood experiences can lead, though by no means always do, to the perpetration of terrible deeds later. A detailed study of twenty children who had committed homicide, carried out by a British psychiatrist, showed that:

They come from backgrounds of unstable family lives, absent fathers with a history of alcoholism, psychopathic disorders, and violence at home. Mothers had a history of depression and found it increasingly difficult to look after the children as they got older.

Second there is a need to explain how mass abuses of human rights become possible. We need to make it very clear how ignoring the basic human rights of any single group, however undeserving of respect they may seem, leads society down a dangerous path. We can start by accepting that it does not matter what society does to a child abuser. The crime is so horrific that it puts the person beyond the pale of decent treatment and respect. So it becomes acceptable to treat one sort of person, for example child abusers, in this way. The rest are not so bad. It is agreed that it will stop there.

But the idea moves on. It is not just the child abuser who can be ill-treated without any regard to his human rights. Anyone who looks like a child abuser can get similar treatment, even those against whom the case is unproven. Then people ask: "why just child abusers?" Those who break into houses at night and steal belongings are also causing fear and ruining people's peace of mind. Why should their rights be protected either? Once it becomes acceptable to put one single human being beyond the reach of common humanity many people will be at risk.

The third element in the journey to understanding is an appreciation of what a society can be like when the rule of law ceases to run, when everyone can do what they like. Bosnia is a

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clear example here. Peter Maass, in his book about the Bosnian war, quotes the Bosnian writer Ivo Andric. Andric, writing of the outbreak of the First World War in 1914 says:

"That wild beast, which lives in man and does not dare show itself until the barriers of law and custom have been removed, was now set free. The signal was given, the barriers were down. As has so often happened in the history of man, permission was tacitly granted for acts of violence and plunder, even for murder, if they were carried out in the name of higher interests."

We need to understand the importance of creating and maintaining institutions strong enough to resist populist calls for vengeance and respected enough to be accepted by the public when they carry out their functions without succumbing to populist pressure. The importance therefore of the War Crimes Tribunal set up to deal with the atrocities committed during the break-up of the former Yugoslavia is immense. Radovan Karadzic is not being hunted down to be shot. He is being sought in order to go on trial. Lawlessness is not being met with lawlessness but by a firm reassertion of the supremacy of the rule of law.

The need for human rights education

Is there a need for human rights education? Would such education be effective? Some survey results from the United States may throw light on this question. The results come from public opinion surveys on the death penalty. Opinion on this topic is surveyed in the United States every year. In 1995 the question was asked: "Are you in favour of the death penalty for a person convicted of murder?" 77% were in favour. Another question was asked: "In your view, what should be the penalty for murder - the death penalty or life imprisonment with absolutely no possibility of parole?" The proportion supporting the death penalty fell to 50% with 32% supporting life imprisonment without parole. The figures also show that attitudes can change greatly over time. In 1995 77% were in favour of the death penalty. In 1966 only a minority of those questioned, 42%, were in favour and the figures of those in favour and opposed were very similar until 1972 when the number of death penalty supporters started to increase.

These figures show that attitudes on these difficult human rights matters are not fixed, inborn, fundamental, deeply rooted in human nature. People can respond and react to debate, facts, discussions and campaigns. They can listen to arguments and change their minds.

Since the coming of democracy to countries of the former Soviet bloc and their inclusion in the Council of Europe many programmes of human rights education have been developed and supported. Lawyers and teachers have been trained and materials produced. The process cannot stop there. Western Europe is in similar need of a major programme of human rights education. The commemoration of the end of the Second World War in 1995 was an excellent opportunity that was well-used to remind those who might have forgotten, and tell those who had never known, what happened in Europe between 1939 and 1945 and why an international framework to protect human rights had been put in place. But such opportunities are rare. A planned and consistent programme is needed that ensures frequent exposure of the arguments and the debate. Governments should consider establishing human rights education units to stimulate such programmes.

An impetus must be given to start a substantial educational campaign with five elements.

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First, it must be based on people's understanding of the world as it is today. The human rights arguments must be made as relevant to people growing up in 1996 as they were in 1949 when the Council of Europe was established. Second, the teaching of history provides an excellent opportunity for analysis and thought about man's inhumanity to man, the circumstances that lead to major human rights abuses and the safeguards that need to be in place. Third, courses in the basic international human rights framework and the mechanisms in place need to be established and supported in colleges and universities. Fourth, teachers need to be trained to use literature and drama that throw light on human rights abuses and the processes that lead to them. Fifth, funds should be found to support media projects that debate and develop the arguments about protecting the human rights of criminals, why corporal punishment is wrong, why the death penalty is wrong.

The role of non-governmental organisations

The international organisations that promote human rights are very distant from the citizens of the member states and can seem remote and irrelevant. The bridges between the international level and the people in the member states are the non-governmental organisations (NGOs). A major role can be played by NGOs working to protect human rights. There are many international, regional and domestic NGOs in the human rights area. NGOs have taken the lead in the struggle against the death penalty. Amnesty International has campaigned for many years against the death penalty and has supported the production of films and other materials to support the case. Through its groups and donors in 170 countries and territories and a world membership of over 1.1 million people it campaigns in many different and imaginative ways to draw to the attention of the public the abuses that occur throughout the world and the many cases of individuals sentenced to death.

Penal Reform International (PRI) works throughout the world to strengthen existing ngos which work for penal reform and to help set up new organisations. PRI has been experimenting with new ways of bringing an awareness of the need for penal reform to the public. In 1992 PRI joined with the Hungarian Association for Penal Reform to organise a three-day festival of prison films. Films which highlighted the possibilities for human rights abuses in prison were shown and the films were followed by debates with film-makers and leading thinkers about the intentions and implications of the films. The event aimed to bring to the attention of the public the human rights problems associated with imprisonment and to promote penal reform. A similar international event, this time about women in prison, was organised in London in 1993 by the National Association for the Care and Resettlement of Offenders, a United Kingdom-based NGO and opened by a senior official of the Council of Europe.

NGOs have many strengths and a great deal to contribute to public education on human rights. They are composed of committed people. They have an ethical basis for their activities. They are able to draw on much volunteer effort and creative ability. They are often free of cumbersome bureaucracy and can respond quickly and flexibly to the needs of the moment. They often find it easier than state agencies to relate to minorities and to young people.

If they are to make their maximum contribution to dealing with the human rights crisis faced in Europe they will need support. It is always much easier for NGOs to raise funds for their practical project work aimed at concrete changes than for the less tangible but equally vital task of influencing public opinion. NGOs active in penal reform for instance are more easily able to find the money for specific projects such as improving prison conditions and

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resocialising offenders than for their education work, which aims to bring to the attention of the public the human rights questions involved in the treatment of offenders.

The role of the Council of Europe

The engine that promotes the educational campaign for human rights must be the Council of Europe. The importance of the Council of Europe is enormous and it is regarded as a source of inspiration and strength by those concerned with human rights. In 1999 the Council will be fifty years old. It is an appropriate time to renew and reformulate the basic ideas and concepts that have guided its development so far and to find new ways of working that reflect the 21st century.

Conclusions

The situation in Europe is moving rapidly towards a worsening of human rights protections for convicted criminals. Public attitudes are hardening. Prison populations are rising. The search for scapegoats is intensifying. The individualisation of justice and the move towards seeing it as a commodity bring great dangers. These developments diminish the balancing power of the state and open the door to mob vengeance and lynch law. The agreement that there is a need to treat people with a minimum of humanity, whatever they have done, is wearing very thin.

However, whilst developments in the United States have moved very far from the human rights consensus of the post war world, in Europe many protections are still in place. The punitive and exclusionary attitudes prevalent in the United States are not so deeply embedded in European traditions. A philosophy of re-integration into society for offenders still underpins legislation and practice. A philosophy of social cohesion governs institutions. The assumption is that offenders, although they must undergo criminal sanctions and pay back in some way for what they have done, keep their citizenship and must be welcomed back into society.

These beliefs are part of European democratic ideals. They have considerable strength. In some countries activists put their lives at risk by fighting for them. If they are to remain strong, much energy will need to be put into supporting and maintaining them in penal policy in the years ahead. A major education programme should be launched by the European institutions, working with governments and with NGOs, to heighten awareness of the reasons why there is a human rights framework and the horrors of a world without one.

The events in Bosnia have shown how fragile are the values of tolerance, respect for others, humanity and decency firmly believed to be the basis of European civilisation. As Peter Maass says:

"The wild beast had not died. It proved itself a patient survivor, waiting in the long grass of history for the right moment to pounce."

* * *

References

Amnesty International

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(1) United States of America: Reintroduction of Chain Gangs - Cruel and Degrading;(2) Report 1996; London, Amnesty International, 1995

Coyle, AndrewThe Prisons We Deserve London, Harper Collins, 1994

Christie, NilsCrime Control as Industry London and New York, Routledge, 1993 revised 1994

Donziger, Steven RThe Real War on Crime: The Report of the National Criminal Justice Commission New York, Harper Perennial, 1996

Maass, PeterLove Thy Neighbour: A Story of War New York, Knopf, 1996

Maguire, Kathleen and Pastore, Ann, edsSourcebook of Criminal Justice Statistics 1994 Washington DC, US Department of Justice, 1995

Penal Reform InternationalPRI Newsletter no. 20 London, 1995

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Report presented by Mr Max SNIJDERS, Professor, University of Groningen, Specialist in the ethics of communication, Utrecht (Netherlands)

It is not too difficult to define a number of general rules journalists should adhere to in their reporting crime in general and on serious crime in particular. Although, in setting out these rules, it will become clear very quickly that there are marked differences in what is acceptable or not in different countries, even those of the western, democratic world.

To give but one, simple example: in Anglo-Saxon countries it is quite normal to print the full name and address of a suspect, once he or she has been arrested. In the Netherlands only initials are used and never accompanied by the full address. France has very strict rules in this respect which are somewhere between those of the two former countries. By law it is forbidden, for instance, to publish photographs of bloody crimes27. And also to publish facts which may identify the victim of rape is prohibited by law, whereas in the Netherlands this is just "not done" on a voluntary basis.

But the real problem is to decide on rules of journalistic behaviour - or even on journalistic codes of conduct - when it comes to the elaboration of individual cases.

And an even larger source of disagreement lies in the question of who, or which institution, is to lay down what the role and responsibility of the media is or even ought to be.

I intend to address both elements in this introduction.

First the question of what the profession itself thinks is acceptable in the field of publishing on serious crime and on its connections with criminals in order to receive information from that corner.

Is undercover journalism, also termed "cloak and dagger", allowed and under what circumstances?

The Code of Bordeaux, an international declaration adopted by the International Federation of Journalists as a standard of professional conduct for journalists engaged in gathering, transmitting, disseminating and commenting on news and information and in describing events, states that "The journalist shall use only fair methods to obtain news, photographs and documents".

Still, since the German reporter Günther Wallraff wrote on the treatment of Turkish immigrant workers in his country and later on about the way in which the boulevard-paper Bildcollected its material, the general feeling about this subject has received more nuance.

27Les droits et les devoirs du journaliste, textes essentiels. Les guides du CFPJ, Paris, s. a.

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I venture to say that it is now commonly accepted for journalists not to disclose their profession or their aim, if they pursue a story - particularly in the field of crime - of which it is highly unlikely if not sheer impossible to collect data if they would announce their purpose. Also, the case under investigation should be of general interest to society to allow for this specific method.

And what if the material the journalist bases his story on, is clearly stolen? From the office of the Attorney general? And if, furthermore, by publishing that material, the reporter creates the opportunity for the counsel of the defense to use that otherwise non-public material to strengthen the case of his (criminal) client?

This happened in a case against the boss of a drugs-syndicate in the Netherlands28. The reporters in question - there were two of them - assured that they had not ordered the material to be stolen, nor did they know who put it in their letterbox.

The Attorney general brought them to court and the Council of journalism decided, without having received a complaint, to judicate the case because of its importance for the profession.

The Attorney of Amsterdam stated that "The office of the public prosecutor does not want to open a witch hunt on journalists, but we find it of great importance that the courts of law define the boundaries of how far a journalist may go in procuring and using information". In preparation of the case the police raided the houses of the two journalists to see if they could be accused of fencing.

There is no specific law regarding the press in the Netherlands - and that is as it should be. I will come back to that later.

So when there was no proof of the crime of fencing, the court had to acquit the two reporters.

The judgment of the Council of Journalism is more interesting, because of the nuance it gave in its considerations.

The Council stated: "Journalists are only allowed to make stolen information public if the interests served by publication amply offsets the unlawfulness of the way in which the information was procured. This process of weighing", the Council added significantly, "ought to be carried out by those who are journalistically responsible for the publication"29. Which means that this decision in the Council's opinion should not be taken by the police or even by a court of law.

The German press code seems to be more restrictive in this field, where it states in article 7 that "The responsibility of the press towards the general public precludes the publication of editorial matter which is influenced by the private or business interests of third parties"30. Although this article is clearly meant to prevent an influence by advertisers, in the case I

28Max L. Snijders, The Case of the Stolen Police Information in: Case by Case, Journalistic Decision-Taking in Europe, Edited by Urte Sonnenberg and Barbara Thomasz, European Journalism Center, Maastricht 1996.

29Quoted in De Journalist, February 1995.30Deutscher Presserat, Guidelines for publishers and journalists based on the recommendations of the German Press Council, March 1992.

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mentioned it could be applicable, because the suspect in question clearly profited from the publication.

I should add, that the two Dutch reporters only published those elements of the material they received which shed a light on unlawful methods of the police and that they handed over the copies to the police authorities after they had made use of them.

Quite a few so-called crime-journalists have discovered that it is profitable for their information to establish contacts with the underworld.

The risk of this is twofold. On the one hand the criminals might give away more than is safe for them. On the other the journalist, knowing too much, is enticed to leave information unpublished because publishing might dry-up his source for good or, in a worse case, might endanger himself.

Criminal enterprises have developed a strategy in dealing with the media, including crime-journalists.

Nicolas Gage of the New York Times has put forward a theory, which as received the name of the law of Nicolas Cage, about the way in which journalists can be encapsulated31.

First stage: tell them very much, rather everything, which makes it impossible for them to publish it. If they still would, they commit treason in the criminal's view with all the consequences involved. There are quite a few cases known where journalists, in possession of incriminating facts, were withheld from bringing these out into the open for this reason. In order to prevent mistakes of this respect, sometimes agreements regarding the control of the criminal organisation over the published news items is put in written form.

In the Netherlands we even know of a case in which the financial gains of publications would be shared 50-50 between the criminal source and his journalistic outlet.

The second phase is the one where violence is not shunned. This is what so often has happened in Italy, when attorneys, judges, journalists, were either wounded severely as a warning, or right-out killed. Recently, at the end of June, for the first time in Western Europe a killing of a crime-journalist took place, when Veronica Guerin, who worked for Dublin's Aengus Fanning was murdered. The perpetrator is supposed to come from the Irish drugs syndicates.

If murder does not help to silence an inquisitive media, the third phase is put into operation. It consists of an incessant barrage of court-cases against the newspaper or radio station concerned. This, generally, does not have much juridical effect in the sense that the journalistic media is condemned, but it costs an enormous amount of money and energy, which might bring the management of the media concerned to order their journalists to desist from further persecuting the criminal enterprise.

What do the written or unwritten codes of conduct of journalists say in these matters?

31Quoted by Bart Middelburg: Een wederzijds profijtelijke relatie (a mutually beneficial relationship), Het Parool, 4 April 1996.

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I think it is generally accepted that we do not publish facts which might endanger the lives of citizens.

Again an example: when Moluccan partisans hijacked a train in the north of the Netherlands in the seventies, the military tried out a tactic to free the hostages and to capture the hijackers. We, and I assume other newspapers, had pictures of that quite spectacular tryout. And although we could not imagine that our paper would be delivered at the train, none of us published the picture for fear it would be mentioned on radio which could be listened to by the hijackers in the train.

Similarly, the British media did not publish a word of a hijack in an Italian restaurant in London until the moment the police successfully stormed the place and freed the hostages.

But how far should this reticence go? In general, I would say, it is not our task to hinder the authorities in apprehending criminals. But we would fall short of our role as watchdog of democracy and human rights, if we would not mention misuse of authority by the police, as much as they might dislike that.

And very often in the last couple of years the media - I would say the printed press more so than the electronic media - have disclosed criminal activities which subsequently gave rise to investigation by the police. I assume our Italian colleagues can give many examples of this.

There is a tendency in society to cover up mistakes and in silence try not to make them again. If we, journalists, get to know this and can establish the relevant facts, it is highly unpleasant for the authorities that these facts are published. They may even lead to the fall of a minister or a whole cabinet. It still remains the task of the media to make this known. Because once we start giving in to pressures to withhold publication, there is no end to the measure in which the press will be used to silence similar unpleasant facts.

But if it is not our role to hinder the authorities in apprehending criminals, it is also not our task to assist them.

If a press photographer has taken pictures on the scene of a crime, they should not be handed over to the police voluntarily, but only on the basis of an injunction. The same, of course, goes for video footage. Because if we would hand these possible elements of evidence over voluntarily, it might most certainly make it harder to do our work on the next occasion without raising the suspicion of the people involved.

This brings me to the second part of my introduction: the question of who, or which institution is entitled to lay down what the role and responsibilities of the media are in general and what they are in relation to serious crime in particular.

We all probably remember only too well the disputes which emerged from the effort within UNESCO to ascribe "duties" to the media and to make states responsible for the activities of the media within their jurisdiction32. The communist bloc, together with authoritarian governed development countries expected that such rules would help prevent undesirable criticism on the one hand and make media a tool of government policy towards development

32Many Voices, One World, Communication and Society, Today and tomorrow, Report by the International Commission for the Study of Communication Problems, UNESCO; 1980.

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and the process of nation-building. Now after the Unesco-sponsored conferences at Windhoek in 1991 and subsequently in Almaty, Santiago de Chili and Sa'ana nobody any more speaks of such drastic forms of fettering the press. As the Windhoek Declaration says in Article 2: "By an independent press, we mean a press independent from governmental, political or economic control or from control of materials and infrastructure essential for the production and dissemination of newspapers, magazines and periodicals"33. But there are still many who think that it is their task as representatives of the people or as politicians to make sure that the public is well-informed according to their definition of that word.

Is there, for instance, a task in this respect for a body which has deserved great respect in its fight for the institutionalisation of human rights in Europe, the Council which is our host during this seminar? After all, "the requirement of respect for human rights in European democracies" has been defined by the Council of Europe on several occasions and has, in general, been beneficial to the observance of these rights.

Still this leads us on dangerous terrain.

The Parliamentary Assembly of the Council of Europe, of course, is not entitled to prescribe what rules media should adhere to in pursuing these aims of respect for human rights in European democracies. So in that respect there might be no danger in its expressing forms of behaviour it deems desirable. But once the Council of Ministers accepts recommendations by the Parliamentary Assembly, governments are invited to create the legal instruments to implement these recommendations. Now this is fine in the field of human rights in general. If we only think of situations in Turkish prisons, the use of such recommendations and the pressure that emanates from them on member states is benevolent. The same goes for measures in the field of environment, equality of gender and many more.

But media ought to be an area of exception, an area of "hands-off". Not because journalists are holier than other people, or should be beyond the reach of law. But because states are party in the activities of the media. It is in their interest - or very often at least in the interest of the ruling party - that certain practices are not divulged, that no criticism is levelled against certain people or certain institutions. And it would be too much to expect that states, in making regulations intended to protect their citizens against possible misdeeds of the media, would not also take into account their proper interest of being able under certain circumstances to silence these cumbersome media. There are examples - I need not stress that in this country in particular - where ministers have engaged in criminal activities. Is it not natural for human nature, if a person who has the power and whose fraudulent or otherwise criminal activities threaten to be disclosed, to try and silence the media, when they are after those facts?

If he has the power. And that exactly is a reason why he should not. An important principle is at stake here. That is: once states are entitled to regulate certain activities of the media, there is no limit to how far they can go. It is for that reason that the American Constitution prohibits Congress from making any law limiting the press.

It is therefore, too, that states should not have press laws at all. "The right to freedom of opinion and expression, says Article 19 of the Universal Declaration of Human Rights, adopted by the General Assembly of the United Nations on 10 December 1948, includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any

33Final report Seminar on Promoting and Independent and Pluralistic African Press, Windhoek, Namibia, SEPIC Paris, 1991.

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media and regardless of frontiers". The first word of that declaration - and I stress that very strongly - is "Everyone". Everyone has the right. Which means there is no such thing as a specific right for journalists. And the consequence of that is that those who do practice these rights as their profession, also ought not to be subject to restrictions to which their fellow citizens are not subject. There are laws against stealing, against fencing, against conspiracy to overthrow a government, against slander and libel, which are applicable to each and everyone. So there is no need - stronger: in principle there is no justification - to adopt specific laws about the way journalists can perform their profession.

There are too many examples of what happens to press freedom and, hence, to democracy, if this hands-off policy is not followed.

Let me give one only, because the restriction sounds so reasonable at first hearing. In Indonesia the rule is: the press is free but responsible. Who would not agree that the press ought to be responsible? But what it means in practice, is that the State Security System, called Kopkamtib, dictates to newspapers (radio and television are completely under governmental control) exactly what they can and cannot publish. And if they do not obey these instructions, mostly given over the telephone, their licence or the licence of individual journalists can be withdrawn. Papers are closed down regularly because the government judges they are not acting responsibly.

Countries that have specific laws in this respect of course are no better. In Turkey these laws, once copied from the press law of Mussolini, are not applied when the regime is more or less liberal, but they are applied when the regime is restrictive, which is more often the case than not. The courts, once cases are brought before them on the strength of these antiquated laws, can do no other but apply them and pronounce the ridiculously high minimum penalties which are prescribed.

Should it then be left to the media themselves to decide what rules and codes they apply? Yes, it should.

Does this then mean that they will always act responsibly, justifiably, fair, in the public interest? No, it does not.

But the alternative is worse. Because it does more harm to press freedom and by that to democracy, than it improves the respect for human rights.

Journalists and media in general are accountable to the laws which are applicable to every citizen. They are also accountable to their public in cases where the law does not supply guidance. They have, in most democratic countries, entered into obligations to defend their actions at Councils of Journalism, which are manned by colleagues and a few members of the general public. And these rules generally ensure behaviour that is in accordance with the ethics of the society in which they operate. So, in the Netherlands, media do not publish the extra-marital love affairs of government people - as long as these have no direct bearing on their public functioning. But in Great Britain public morale says ministers should not have girlfriends, or at least should make sure that the boulevard papers do not discover they have. So, if such a fact is discovered, it is also being disclosed.

Members of parliaments, be it national or European, should be aware that making regulations in this field - with all the good intentions they might have - is counterproductive to

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the professed aims of these measures. It may prevent certain activities of the media which are regarded as unpleasant or even damaging, but the disadvantages are so much greater to press freedom and thereby to the functioning of the democratic processes, that abstention is the only right behaviour.

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Written communication relating to Theme 2

Mr Ralph CRAWSHAW, Human Rights Consultant, fellow of the Human Rights Centre of the University of Essex, former Senior Police Officer, Stratford St. Mary (United Kingdom)

Training of law enforcement officials

"Ainsi que la vertu, le crime a ses degrés."34

The prevention and detection of crime are virtuous activities, but not unreservedly so. The degree of virtue present in those activities can be, and is, diminished by the means adopted to carry them out. Sometimes those means are themselves criminal and take on varying degrees of criminality so that they can become more heinous than the crime against which they are directed. Crimes such as torture or those which subvert the right to a fair trial, committed by people dignified by the authority of the state to exercise power over their fellow citizens, are at least as serious as most crimes committed by common criminals.

Social, political and economic changes taking place at national and supra-national levels present significant challenges to police agencies and to police leaders throughout Europe. Some forms of serious criminality and some current concerns about policing derive from, or are exacerbated by, these changes. Concerns about policing revolve not only around the extent to which police are able to prevent and detect crime and maintain or restore order, but also around police behaviour.

It is a fundamental function of police to maintain social order and the rule of law so that change within and between societies can take place constitutionally, lawfully and peacefully. For this function to be fulfilled it is necessary for police leaders to have a sophisticated awareness of the nature and extent of that change and of its implications for the ends and means of policing. The ends of policing include the prevention and detection of serious crime, and the means of policing include the requirement to respect human rights.

Police leaders then have to adapt the organisations they command and manage so that those organisations can respond effectively, lawfully and humanely to the changing environment within which they function. Training of police leaders to manage change is an essential element, perhaps the essential element, of a policing response to serious crime which requires respect for human rights. Furthermore leadership training must focus on the normative aspects of policing and police leadership, as well as on the technical aspects of policing and the technical aspects of the command and management of police organisations. In this way police leaders can be equipped to command and manage their organisations in such a way that the prevention and detection of crime become and remain entirely virtuous activities.

In this paper it is argued that the normative and the technical aspects of policing are inextricably linked; that there is no conflict, nor even tension, between human rights and policing; and that not only must police respect human rights in the process of policing, it is actually a function of policing to protect human rights. These arguments are made and illustrated by reference to human rights standards on the treatment of detainees, which

34 Racine (1677), "Phèdre" 1V.ii.

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include especially the prohibition on torture, and international standards on interrogation of suspects - a technical policing skill significant in relation to the investigation of crime and, when it is lacking, significant in relation to serious human rights abuse.

Ways in which normative aspects of policing are dealt with through courses, seminars and workshops for police arranged by organisations disseminating international human rights and humanitarian standards are considered, as are, to a lesser extent, national initiatives. However, it is first necessary to consider the relationship between human rights and policing.

Human rights and policing - A symbiotic relationship

In countries where democratic forms of government and the rule of law prevail, respect for human rights and effective policing are mutually dependent upon each other. Democratic government requires, in fact subsumes, democratic policing, for government by consent includes the notion of policing by consent. Principles of democratic policing are set out in United Nations General Assembly resolution 34/169 of 17 December 1979 by which the United Nations Code of Conduct for Law Enforcement Officials was adopted. The resolution requires, inter alia, that "every law enforcement agency should be representative of and responsive and accountable to the community as a whole".

A number of human rights35 are essential for democracy to prevail but, at the same time, human rights are more likely to be respected and protected under democratic government where policing is representative, responsive and accountable to the community. One of the factors necessary for effective policing in democratic states is the support and cooperation of the community for the police. This is more likely to be forthcoming if the relationship of the police with the community is governed by the principles of democratic policing and characterised by lawful and humane exercise of power by police. Lawful exercise of police power is another aspect of the relationship between human rights and policing.

THE LAWFUL EXERCISE OF POWER

Human rights are protected by law, international law and the law of states, which expresses human rights and their legal limitations, and defines police powers which are largely a reflection of those limitations. For example Article 5 of the European Convention on Human Rights guarantees the right to liberty and security of person. It then defines the limits on that right by stipulating that there shall be no deprivation of liberty "save in the following cases and in accordance with a procedure prescribed by law"36. This terminology means that the list of six permissible reasons for deprivation of liberty is exhaustive, and that, if deprivation of liberty is to occur, domestic law must establish procedures for the exercise of lawful power to arrest or detain.

35See for example the right to freedom of thought, conscience and religion, the right to freedom of opinion and expression, and the right to freedom of peaceful assembly and association in Articles 18, 19 and 20 respectively of the Universal Declaration of Human Rights, and Articles 9, 10 and 11 respectively of the European Convention on Human Rights.

36The cases listed are lawful detention after conviction by a competent court; lawful arrest or detention for non-compliance with the lawful order of a court in order to secure fulfilment of any obligation prescribed by law; lawful arrest or detention for the purpose of bringing a person before the competent legal authority on reasonable suspicion of having committed an offence; the detention of a minor by lawful order for the purpose of educational supervision or for the purpose of bringing him before the competent legal authority; lawful detention for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts, or vagrants; lawful arrest or detention to prevent unauthorised entry into the country or with a view to deportation or extradition.

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Clearly the exercise of power in this domain, deprivation of liberty, as in all other domains, must be lawful. However in every state, to a greater or lesser extent, the power to arrest and detain, and other powers, are abused by police for a variety of reasons. These include ignorance of law and procedures, inadequacy of technical policing ability, and "necessity". This last reason is in fact a justification for violating human rights in the interests of some perceived higher public good such as securing the conviction of a suspect in a particular case or maintaining social order generally. All of these reasons are destructive of human rights and of effective policing, but the last one is particularly so.

Basic police functions include enforcing the law, upholding the rule of law, and maintaining social order. When police break the law, for whatever reason, they subvert their own functions. They undermine the rule of law, and they commit a grave breach of social order -they create the disorder of criminal abuse of power. Considered in these terms effective policing must include the notions of lawfulness and respect for human rights. Policing cannot be judged according to such limited criteria as the prevention and detection of a number of crimes, or the restoration of social order when social unrest has occurred on particular occasions. In democratic states governed by the rule of law the technical aspects of policing cannot be considered separately from the normative aspects, they are inextricably bound together.

That is the principal strand to the argument that the relationship between human rights and policing is symbiotic. It is also the main justification for stating that abuse of power by police is destructive of effective policing, but there are other justifications. In the long term human rights abuse by police leads to loss of confidence by the community in the police and, hence, to diminishing support and cooperation. Furthermore systematic or large-scale abuse of human rights seriously impedes the development of technical policing skills necessary for effective policing.

RESPECT FOR AND PROTECTION OF HUMAN RIGHTS

Two other aspects of the relationship between human rights and policing need to be considered briefly. The first is self-evident but needs to be expressed - human rights are to be respected in the processes of policing. Human rights standards stipulate the ways in whichpolicing is to be carried out. The second is rarely expressed but needs to be more so. The protection of human rights is a function of policing. It is so closely bound up with the other, more generally expressed, functions of policing that it deserves to be expressed as a function in its own right.

Police perform this function in a variety of ways. For example the protection and delivery of various categories of rights - civil, political, economic, social and cultural - are dependent upon sophisticated forms of government and of social organisation. For these to function there needs to be a certain level of peace and order in society, and one of the purposes of policing is to maintain that peace and order. In this sense policing contributes to the protection and delivery of every type of right - including rights not normally associated with policing. When the different rights are considered individually it can be seen that police protect these in very specific ways. For example treaty provisions protecting the right to life37

require that the right to life should be protected by law. One of the ways in which states meet

37The right to life is protected, for example, under Article 2 of the European Convention on Human Rights, and Article 6 of the International Covenant on Civil and Political Rights.

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this obligation is to outlaw certain forms of killing. It is a function of police to prevent and detect crimes of homicide, and in this way police contribute to the protection of the right to life.

From this account of the relationship between human rights and policing it follows that training in the normative aspects of police work is of paramount importance, and that effective, lawful and humane policing is dependent upon this type of training as well as on training in technical aspects of policing. This point is revisited when training in relation to the treatment of detainees and the technical policing skill of interrogating suspects of crime are considered.

Before that, however, it will be useful to review the work of some organisations whichare involved in disseminating international human rights and humanitarian standards on policing, and to attempt to gauge the extent and nature of national initiatives in this area.

Human rights and policing - Training initiatives

INTERNATIONAL INITIATIVES

Earlier efforts in this field appear to have involved displacing and disorienting groups of high-powered international lawyers by flying them halfway around the globe and asking them to lecture groups of bemused police officials on the finer points of jus cogens, the travaux préparatoires for the Standard Minimum Rules for the Administration of Juvenile Justice, and the arcane workings of the Human Rights Commission.

This, somewhat overstated, parody of what actually did happen is concocted to make the point that, whilst training in technical policing cannot and should not be attempted in a human rights seminar or workshop, the content of such programmes should be related to day-to-day policing concerns.

The United Nations Centre for Human Rights, located in the Palais des Nations at Geneva, was one of the pioneers in this field and the dedicated and industrious officials of the Centre responsible for organising human rights programmes for police very quickly developed a set of nine working principles on which such programmes should be based38. The principles are designed to ensure that human rights programmes for police are presented by resource persons who have expertise in policing; are relevant to the needs of each specific group of participants; contribute to the spread of good policing practice; and that there is maximum dissemination of human rights standards within the client agency.

38These principles are set out in a background paper prepared for a Council of Europe Seminar on Human Rights and the Police held in Strasbourg between 6-8 December 1995, and in Chapter 1 of the Centre for Human Rights publication Human Rights and Law Enforcement - A Manual on Human Rights Training for Police (Professional Training Series No. 5). The Principles require, for example:

-collegial presentations (presentations on programmes to be made by resource persons expert in policing and training police);-the training of trainers (so that the impact of programmes is multiplied through a commitment of trainers to conduct training programmes based

on the one they attended);-practical approach (providing practical information and examples of good practice in relation to each aspect of police work considered);-teaching to sensitize (by extending the goals of programmes beyond the imparting of standards and the dissemination of good practice to include

exercises designed to sensitize participants to their own potential to violate standards).

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The United Nations Centre for Human Rights draws from a continuously developing list of resource persons to conduct its programmes in a wide variety of countries. The principles have been successfully applied to training programmes for police officials engaged in United Nations peace-keeping operations.

The Crime Prevention and Criminal Justice Branch of the United Nations, which is located in Vienna, has also organised training programmes for police officials in a number of countries. These combine a substantial practical element with human rights standards, and standards of particular relevance to the activities of the Branch39.

The presentation of practically based programmes, which at the same time are not attempts to provide technical training for police, is one of the objectives of the International Committee of the Red Cross (ICRC) in its dissemination activities in this particular field. The ICRC is best known for its primary activities of providing protection and assistance to military and civilian victims of armed conflicts, and for its dissemination of international humanitarian law - particularly through training programmes for members of armed forces40.

The increasing number of internal conflicts; the difficulty on occasions of distinguishing between armed conflicts (in which military are generally deployed), and conflicts falling below that threshold (in which police or paramilitary police agencies are deployed); and the fact that police operations to control internal violence increasingly give rise to humanitarian problems comparable to those arising during armed conflicts are all factors which led the ICRC to develop a dissemination programme for police.

Its programmes which are flexible, and adaptable to the needs of specific audiences, focus on the rules of international humanitarian law (and particularly those of relevance to police officials), as well as on appropriate human rights standards. Teaching material, including role play exercises, has been produced for these programmes, and, whilst the programmes and material have proved relevant and acceptable to civil police agencies not for the time being confronted with any form of conflict, they are particularly relevant to the needs of para-military police agencies and to civil police agencies responding to internal tension or conflict.

Another institution with expertise in international human rights law and international humanitarian law is the Raoul Wallenberg Institute of Human Rights and Humanitarian Law based at the University of Lund in Sweden. The Raoul Wallenberg Institute offers programmes based on these disciplines to politicians, government officials, the judiciary, lawyers, the military and police in many countries. It is particularly active in Africa. The Institute draws on the talents of its own staff and on external resource persons with the necessary expertise. Its programmes are practically based and, because of its administrative efficiency and the adaptability of its staff and resource persons, the Institute can respond at short notice to meet requests for a wide variety of training and educational needs.

In addition to the programmes it runs abroad the Institute holds seminars for a variety of officials, including police officials, at its premises in Lund. It also organises study visits for

39For example, as set out in the Compendium of United Nations Norms in Crime Prevention and Criminal Justice, United Nations, New York, 1992. (United Nations Publication Sales No. E.92.1V.1 ISBN 92-1-130148-3).

40The mandate for the activities of the International Committee of the Red Cross is based on the four Geneva Conventions of 1949 and the Additional Protocols of 1977, as well as its own Statute.

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such officials. Some participants in the seminars in Lund have already benefited from programmes offered by the Institute in their home countries and, by attending the Institute, are able to extend their knowledge and awareness of human rights and humanitarian standards.

The final, but not the least significant, player on the international scene referred to in this context is the Council of Europe which seeks to promote its statutory principles of parliamentary democracy, and respect for human rights and the rule of law. The Directorate of Human Rights of the Council of Europe has taken a number of initiatives in relation to police training which include: the publication of a handbook41 "Human Rights and the Police" by John Alderson, a distinguished former chief officer of police; the holding of a meeting of directors and representatives of police academies and police training institutions in Strasbourg in 1990; the publication and distribution of a document42 on "The Police and the European Convention on Human Rights" by Peter Duffy, a barrister; human rights training for Turkish police officials through study visits to Sweden, the United Kingdom, Belgium and Germany; human rights training for Albanian police officials and members of the Albanian Police Academy through seminars, workshops and study visits; and the holding of a Seminar on Human Rights and the Police in Strasbourg during December 1995.

Other Directorates of the Council of Europe have undertaken activities in this field, including a number of training courses for police organised by the Directorate of Legal Affairs for the countries of Eastern and Central Europe.

NATIONAL INITIATIVES

For the purposes of the Seminar it organised in Strasbourg in December 1995, the Directorate of Human Rights of the Council of Europe requested participants who were directors or representatives of police academies or police training institutions to provide details of human rights training for police in their own countries. Representatives from all member States were invited together with representatives from Belarus, Croatia, Russia, "the former Yugoslav Republic of Macedonia" and the Ukraine.

Representatives from eleven member States43 responded to this request and, of these, it appeared that human rights were dealt with as a separate and specific subject in training institutions of four states44, and that instruction on international instruments expressing human rights was included on the curricula of training institutions of five states45. Other responses indicated that human rights were taught during lessons on other subjects such as "constitutional law" and "police theory".

Clearly this is inadequate data from which to draw very firm conclusions because of the small number of states responding and because the amount of detail provided varied considerably. Furthermore, it is not possible to evaluate the extent or quality of the teaching provided from the responses, and it may be that an institution incorporating the teaching of human rights with other lessons is dealing with the topic adequately.

41J. Alderson, Human rights and the police. Council of Europe Press, Strasbourg, 1994.42Peter Duffy, The Police and the European Convention on Human Rights. Council of Europe Human Rights Information Centre, Strasbourg, 1995. (DH-AW-PO (95) 23).43Denmark, Finland, France, Hungary, Iceland, Norway, Poland, Romania, San Marino, Sweden and Turkey.44Denmark, Norway, Poland and Turkey.45Denmark, Finland, Poland, Romania and Turkey.

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However, it is possible to form some idea of the state of human rights teaching or training from these responses, and the author of this paper is able to supplement this information with his impressions having conducted seminars and workshops on human rights for police in many states in Europe, Africa, the Middle East, Central Asia and Asia.

The responses of participants as described above and the author's impressions from his teaching experiences enable him to conclude, with a fair degree of certainty, that most national training programmes do not address human rights as a separate and significant topic, and that the international dimension of human rights protection is not covered to any great extent. Furthermore, the author concludes from his own involvement in teaching human rights to police that there is fairly widespread resistance to the notion of human rights among police, and that many police officials do feel that they are entitled to violate, or justified in violating, human rights in the course of their duties.

The author also concludes that, whilst the extent to which human rights are respected or protected in the numerous countries in which he has conducted programmes varies enormously, the attitudes of police officials to human rights, and expressions of the perceived justification for violating them, do not vary to the same degree.

These conclusions emphasise the importance of human rights training for police officials; the importance of proper command, management and supervision of police officials; and the importance of ensuring the legal accountability of individual police officials for their own acts or omissions. The conclusions also suggest that, with few exceptions, human rights training for police officials is inadequate, and this is inimical to enjoyment of human rights and to effective policing.

Concomitants - The normative and technical aspects of policing

The effective performance of the profession and craft of policing depends on awareness of, and compliance with, the rules according to which it is to be practised, and the application of technical skills. Whilst many police officials emphasise, and take a pride in, the practical and pragmatic approach they bring to their duties, and their ability to apply "common sense" to situations they face, all of the technical skills they require have sound theoretical bases and they ignore these at their peril.

These essential links between the normative and the technical aspects of policing, and between the theory and practice of policing, are particularly apparent in the area of policing taken to illustrate these points - that concerning the treatment of detainees and, more specifically, the interrogation of detainees suspected of crime. The power and ability to deprive a person of his or her liberty and to question that person is an essential element of the investigative process, especially in relation to the investigation of serious crime.

INTERNATIONAL STANDARDS ON THE PROTECTION OF DETAINEES

In essence the international standards on the treatment of detainees express the total and absolute prohibition on torture and other cruel, inhuman or degrading

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treatment or punishment46, and they express the right to humane treatment as a detainee47. They also set out a number of other rights and safeguards upon which these are contingent for example rights designed to prevent incommunicado detention and to ensure basic standards of hygiene and comfort for detainees48.

Torture is defined in Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment49, and part of that definition reads:

"The term 'torture' means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or confession."

The definition also stipulates that torture is an act committed "by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity". As far as police officials are concerned, the prohibition on torture under international law is expressed in the following way in Article 5 of the United Nations Code of Conduct for Law Enforcement Officials50:

"No law enforcement official may inflict, instigate or tolerate any act of torture or other cruel, inhuman or degrading treatment or punishment, nor may any law enforcement official invoke superior orders or exceptional circumstances such as a state of war or threat of war, a threat to national security, internal political instability or any other public emergency as a justification of torture or other cruel, inhuman or degrading treatment or punishment."

In spite of the fact that torture is universally condemned and outlawed, the United Nations Special Rapporteur on torture, in his report to the 43rd Session of the United Nations Commission on Human Rights, stated that torture remains a "widespread phenomenon" and that "no society, whatever its political system, is totally immune"51. Furthermore, since the Special Rapporteur on torture was first appointed in 1985, most of his annual reports to the Human Rights Commission stress the importance of training police in the prohibition on torture and the humane treatment of detainees.

Recommendations of this nature echo provisions of the Convention against torture (referred to above), and the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment52 which require training of police officials to take full account of the prohibition against torture53. Both of

46For example: Universal Declaration on Human Rights (Article 5); International Covenant on Civil and Political Rights (Article 7); European Convention on Human Rights (Article 3).

47For example: International Covenant on Civil and Political Rights (Article 10); Body of Principles for the Protection of all Persons under Any Form of Detention or Imprisonment (Principle 1).

48For example: European Convention on Human Rights (Article 5.3 and 5.4); International Covenant on Civil and Political Rights (Article 9.3); Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (Principles 12, 16, 17 and 19); Standard Minimum Rules for the Treatment of Prisoners (Rules 9-20).

49Adopted and opened for signature, ratification and accession by General Assembly, resolution 39/46 of 10 December 1984.50Adopted by United Nations General Assembly, resolution 34/169 of 17 December 1975.51Reference E/CN. 4/1987/13.52Adopted by General Assembly, resolution 3452 (XXX) of 9 December 1975.53See Article 10 of the Convention and Article 5 of the Declaration.

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these instruments also require states to keep under systematic review interrogation methods and practices as well as arrangements for the custody and treatment of detainees54.

In his report dated 18 December 198955 to the Commission, the Special Rapporteur called for training of police officials to incorporate teaching in "how to interrogate in a manner which recognises and respects the detainees' rights and dignity". This recommendation is important because, whilst his other recommendations could be read as calls for training simply in the standards on the treatment of detainees, this is an explicit call for training in a technical policing skill. The question then arises as to what should form the basis of such training.

INTERNATIONAL STANDARDS ON INTERROGATION OF DETAINEES SUSPECTED OF CRIME

One source could be found in a recommendation of the Committee for the Prevention of Torture (established under the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment). In seeking to compile standards, the Committee recommended56 that legislative provisions could be usefully supplemented by a code of conduct for interrogations which would cover such issues as the systematic informingof detainees of the details of officials conducting the interrogation; rest periods between, and breaks during, interrogation; places where interrogation may take place; and the questioning of vulnerable suspects.

Whilst provisions of this nature express standards of behaviour, and do not address the technical, or skills based, aspects of interrogation, the proposal to add to the, all too few, standards on technical policing matters is noteworthy. Such standards can provide a sound guide for action and a solid basis for training.

The Convention against torture, and the Declaration, require states to keep interrogation methods and practices under review, but provide no benchmark for such reviews - apart from the fact that torture and ill-treatment should not form part of those methods and practices. Some standards on the actual practice of interrogation are, however, set out in the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment57, and this is an example of how an instrument expressing international human rights standards can also express standards on a technical policing matter.

Another set of international principles doing this, and doing so more completely, are the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials58. The fact that international instruments, essentially setting norms of behaviour and conduct, should also embody standards of a practical or technical nature supports the argument that the normative and technical aspects of policing are inseparable.

The standards on interrogation in the Body of Principles are brief and succinct, and they are informed by an awareness of some of the psychological processes involved during

54See Article 11 of the Convention and Article 6 of the Declaration.55Reference E/CN. 4/1990/17.56Recommendation referred to in a paper by Professor Jim Murdoch, The European Convention for the Prevention of Torture and Inhuman or

Degrading Treatment or Punishment and its Relevance to Police. Presented at Council of Europe Seminar on Human Rights and Police at Strasbourg, December 1995 (DH-AW-PO (95) 3).

57Adopted by United Nations General Assembly, resolution 43/173 of 9 December 1988.58Adopted on 7 September 1990 by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders.

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interrogation, and by insights into what amounts to "bad practice" in police interrogations of persons suspected of crime. Principle 21 prohibits taking "undue advantage of the situation of a detained or imprisoned person for the purpose of compelling him to confess, to incriminate himself otherwise or to testify against any other person". It also prohibits subjecting a detained person, while being interrogated, "to violence, threats or methods of interrogation which impair his capacity of decision or judgement".

These provisions represent a tentative step into a technical, skills-based area of policing. It is a tentative step because it does not venture very far into that area, and because it expresses prohibitions rather than positive examples of good practice.

Concluding remarks

International standards expressing norms of good behaviour for policing are well established and are probably complete. There is now a pressing need for the formulation of international standards which address key areas of policing and which are informed not only by existing normative standards, but also by sound theory and existing best practice on the technical aspects of those key areas. The absence of standards combining the normative and the technical is one reason why the plethora of normative standards continues to be breached.

The interrogation of persons suspected of crime is an example of one such key area. The results of research into the psychological processes involved in interrogation and confessions provide the necessary theoretical basis59, and examples of good practice in lawful and humane interrogation methods can be found in the publications of various people who have developed and who teach those methods60.

Especially in the absence of standards which expressly and convincingly combine the normative and the technical, police training programmes need to seriously and systematically address the requirements for good behaviour in policing. Good behaviour in policing means police respecting human rights without reservation, and acknowledging and embracing their function to protect human rights. This, in turn, means that human rights must be treated as a separate and significant topic in police training programmes, and that all aspects of technical training must be fully imbued with the requirement to respect and protect human rights.

One way of achieving this is to encourage more extensive cooperation between police academies and the various organisations, referred to above, which already offer human rights training programmes for police. Teaching the international dimension to human rights protection is an indispensable element of human rights education. Good behaviour is an indispensable element of effective policing.

59See for example Gisli Gudjonsson, The Psychology of Confessions, Interrogation and Testimony. Wiley, Chichester, 1992.60See for example E. Shepherd (ed.), Aspects of Police Interviewing. Issues in Criminal and Legal Psychology, No. 18. Leicester: British

Psychological Society.

Teaching of "investigative interviewing techniques" (psychologically based interviewing techniques for questioning victims of crime and witnesses to crime, as well as suspects of crime) is also undertaken, for example, by Aspley Limited of St Albans, Hertfordshire in the United Kingdom.

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Interventions concerning theme 2

Mr Imre BÉKÉS

The arguments for or against the death penalty depend on the values we have chosen to defend and it is necessary to identify the origins of the death penalty. To start with a historical point of view, capital punishment is linked to the history of nations: the death penalty has always been a part of European society, including Greek and Roman, then Christian societies up to the 20th century. From a geographical or comparative law standpoint, it can be noted that abolitionism is limited to Europe, where it has its sole institutional basis. Indeed, world religions such as Islam acknowledge and insist on the death penalty in a number of cases and even a great white civilisation such as the United States reintroduced the death penalty in 1976.

The role played by public opinion in this debate cannot be ignored. In Hungary the death penalty has been applied as an instrument of terror over the past fifty years and public opinion has become accustomed to its use. Consequently the death penalty was declared unconstitutional in 1990, not by referendum but by the Constitutional Court. The Hungarian Constitution guarantees the right to life and the Constitutional Court considers that only a living person can enjoy dignity. As the right to life and to dignity are closely linked, we are entitled to conclude that the death penalty is at variance with the very substance of human rights.

Mr Samson BELIAEV

The existence of post-Soviet organized crime is a threat to the Russian transition to democracy, for it may, on the one hand, tend to limit personal freedom, the development of independent media and free elections and, on the other, thwart foreign investments and market economy.

The Organized Crime Study Center at the Law Faculty of Moscow State University is a joint Russian-American effort to combat post-Soviet organized crime. Its aims are: helping in developing an efficient anti-organized crime policy, carrying out research and training and providing journalists with information on relevant strategies.

The project addresses a problem which is extremely grave and alarming in Russia and in the world at large: organized crime has received growing attention in the political discourse in Russia and many members of the new parliament have actually been elected on anti-crime platforms. Therefore, in the absence of an effort to inform both policy makers and the public on democratic alternatives, there is a real danger that the Russian authorities will feel compelled to resort to further authoritarian tactics, which could undermine Russian democracy in general.

There are parallels between the conditions which were present in Western countries at the time criminal organizations emerged, and the conditions existing in Russia nowadays; for this reason, the experience gained by Western democracies in their fight against organized crime is extremely valuable for Russia. The struggle against this type of crime in Italy over the

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past 15 years has been successful because of several pre-conditions: in the first place, the awareness of the population and the existence of informed media able to address the issue of organized crime in a sophisticated way and advocate a democratic approach, together with the development of a significant literature to teach law students about problems relating to this phenomenon. Secondly, the adoption of an appropriate legal framework and a law apparatus which has the capability to address problems related to organized crime and to introduce institutional bodies to discuss them at a parliamentary level.

Many of this pre-conditions, necessary for an effective fight against organized crime, exist in Russia at the moment.

Mr Robert FICO

In Slovakia, as in other post-communist countries, media do not play an important role in the fight against organized and serious crime. So far, they have not even been able to initiate an anti-crime campaign or a campaign for the protection of the victims in cooperation with relevant state bodies.

Although it is obviously important to use the media to inform the community about campaigns against crime, my view is that it is even more necessary to convince the community that crime is no longer a matter which can be dealt with by the state alone. This means that citizens should be made, to a certain extent, responsible and aware of the fact that only close cooperation between the state and its citizens may be successful in the fight against crime. Some western european countries have elaborated similar strategies. I feel that the Council of Europe could play an important role in the estabilishment of a system through which its member states could exchange their practical experiences in this specific field.

My final remark concerns the role of the media with respect to death penalty matters. I am covinced that, provided that there is the necessary political will in a country, media can significantly influence public opinion in favour of the abolition of the death penalty, even if the community strongly supports this punishment.

A few years ago, the Law Institute of the Ministry of Justice of Slovakia conducted a research on the extent to which the public could be influenced on death penalty matters. After the research, we came to the conclusion that the State - by using methods which are obviously different from the ones utilized in the research - can significantly change public opinion on death penalty related issues.

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Mr Loukis LOUCAIDES

The position, expressed by Professor Snijders, that we should have no press laws at all, cannot be supported, in my view, especially when examining the question of how to combat organized crime.

First of all, as he stated, press has to be independent; in order to achieve this goal, there must be laws to ensure that it does not fall in the hands of certain interests. Failing the safeguard of independence, the risk is that the press could contribute to crime rather than fight it, for it could serve the interests of corrupted politicians or groups engaged in or supporting criminal activities.

Furthermore, there are certain rights which can only be protected through regulation of the press. These are, for instance, the right to reputation and the right to information: it is indisputable, in fact, that - without subjection to any law - the media may easily distort information at the expenses of the due right to information enjoyed by the citizens and in favour, in the worst of cases, of criminal activities.

Finally, it must be emphasized the duty incumbent upon us jurists to inform people about human rights values and the necessity to protect them at all times, also at risk of becoming impopular.

Mr Mario CHIAVARIO

I should like to put a question to Mr Max Snijders. I should like to have your opinion on a journalistic practice that I would describe as "seeking special relationships" with investigators or law officers. Such relationships raise certain problems with regard to journalists' professional ethics, respect for human rights and the proper administration of justice. I should particularly like to have your opinion on the common practice of conducting interviews in which members of the public prosecutor's department are asked to give their views on a wide variety of issues, including legislation currently in force, the country's crime policies, and even investigations for which they - or their colleagues - are responsible.

Mr Nigel RODLEY

The position, expressed by Mr Snijder, favouring freedom of press is to be supported: it is in fact difficult, for instance, to imagine that by relying on control set up by corrupt politicians we can ensure the existence of a press to uncover corrupt politicians. At the same time, it cannot go unnoticed that freedom of investigation and serious journalism imply a price to pay and that a judgment may need to be made on whether the contribution to information and understanding put out by the so-called quality press is not outweighed by the contribution to hate, intolerance and anti-human rights culture promoted by the "popular press".

I also support the view that it is a false dichotomy to talk about victims' rights versus criminals' rights. This is certainly true before conviction as a result of a fair trial, for the assumption that we are dealing with criminals when people have only been accused of a criminal act or are in police custody is in deep contrast with a fundamental human rights norm,

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namely the presumption of innocence. At the post-trial level, when we can assume -at least for legal purposes- that we are dealing with criminals, the problems that arise are of a different nature, especially if they involve the death penalty. In this respect, it must be stressed that the fact that people are generally in favour of the death penalty does not necessarily imply that it is a priority to them: an analysis should be carried out on the exact degree of commitment the public devotes to this issue. In addition, political leadership challenging publicly the capital punishment at risk of losing popularity plays an absolutely crucial role. Obviously, the right arguments must be found and made, suggesting, for instance, an incoherence of values in those who consider, on the one hand, "minor" corporal punishment as illegal and degrading treatment and deliberately arrange, on the other, a scheme by which people end up being hanged, electrocuted or shot.

Mrs Kathleen MAHONEY

This intervention addresses some of the points made by Mr Snijders in his paper. Firstly - concerning the assumption that the media is independent - it must be stressed that there is an increasing monopolization of the media by certain individuals and that this seriously undermines and corrodes the principle of the free market of ideas which the freedom of the press principle rests on.

A second assumption which can be challenged is that more harm is likely to come from regulation than from absence of regulation. In fact, this seems to depend greatly on the subject of the communication, the person who is harmed by it and, ultimately, the nature of the harm. The balance of rights is essential in determining the scope of the freedom of the press: when the harm produced to human rights of other people and groups outweighs the benefits of unfettered media, there cannot be absolute freedom of expression in the media.

Media are profoundly different from individuals and should not therefore be treated the same as all other individuals under the law: they should obviously be protected from state's interference, but not granted rights to absolute freedom of expression. Especially when the exercise of this freedom engages other constitutional or human rights of people which will cause harm to security, to equality and to their freedom from inhumane or degrading punishment, regulation appears necessary.

Mr Leonard LEIGH

When dealing with questions related to freedom of press, there is no global world rule or point of balance which can be set as a general principle.

A more correct way to face these issues would be, in my view, to proceed by subjects, clearly defining, on the one hand, the subjects which are open to the press and those which are protected and, on the other, the terms upon which the protection is accorded. The problem should be approached in the context of the structure of particular laws existing in a given state.

A system which selects topics for control -in the way that what is said about them forms an offence against a specific substantive law- seems to be more appropriate than trying to estabilish a machinery which will in general control the press as such.

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Replies of the rapporteurs

Mrs Vivien STERN

It is very important that we end on a note of optimism. Human rights ideas are today under threat and threats to democracy increase as the gaps between the systems and the people grow wider. On the other hand, we have to consider that the ideas that we are supporting can be very inspiring and meaningful for people right across society, as the number of people and organizations fighting to promote them show.

Three priorities emerge from the discussions we have had. Firstly, greater support should be given to people who fight for promotion and respect of human rights and their organizations.

Secondly, a practical programme of concrete activities that are meaningful to the general public is necessary, for much of what we say is perceived as deeply abstract and theoretical.

Thirdly, it is paramount that we strenghten the links between the people involved in the promotion of human rights, in particular estabilishing a european-wide network of people who can exchange experiences and ideas and support and help each other.

Mr Max L. SNIJDERS

In this intervention I will address some of the remarks which have been made concerning my report on the role and responsibility of the media.

With respect to the role of the media in the fight against criminality, it has been suggested that - in the absence of regulation - the press could contribute to crime instead of fighting it. It should be noted that the state should not be in a position to order or force the press to fight crime, for the press should not be considered as an instrument of the state: this would indeed mean the very end of the freedom of the press and a return to a totalitarian regime conception of it.

As for the concerns expressed for a press spreading racism and inciting to hatred, the solution seems to lay in applying the appropriate existing laws which criminalize such behaviours, irrespective of whether the offender is connected with the media or not. This observation replies in part to the further remark according to which absolutely unfettered media should not be supported: restrictions on journalists are perfectly justifiable if inflicted upon on illegal behaviour grounds and not on the grounds of their acting as journalists.

In connection with this, it has been pointed out that media are profoundly different from individuals in terms of position of power and control which derives from the phenomenon of monopolization. A clear distinction must be made between the power of the

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media as an institution, on the one hand, and the power of the individuals who exercise their rights to collect and impart information, on the other. It is necessary to restrict the first power, by use of rules which can be either of a legal or of a voluntary nature: legal measures, self regulation and rules granting independence of editorial bodies can contribute to avoid the dangers of monopolization.

Finally, I would like to address the concern that freedom of press allows the "popular press" to flourish and profoundly influence its readers with ideas which are often in contrast with human rights. Although the real impact that this press has on the public could be not as strong as generally imagined, it should be emphasized that it nevertheless constitutes part of the risk involved in having a free press. The message that the Council of Europe should deliver to the new democracies should in fact be that if one allows for democracy, then he allows for freedoms and societal developments that did not exist before and that can no longer be controlled by a government.

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CLOSING SESSION

General Report presented by Mr Bronislaw GEREMEK, Chairman of the Parliamentary Commission on Foreign Affairs, Warsaw

I would like to start by telling Professor Zanghi how much I admire the Centre he directs and its activities - not just the one in which we are particpating here, but also the other work it does on human rights and the fight against crime. I also admire Mr Imbert and Mr Guarneri for the image they have given this seminar and for bringing together judges, public prosecutors, lawyers and senior officials from states and international institutions, as well as officials whose work brings them face to face with the practical, everyday problems.

This kind of exchange between theorists and practitioners, between those who know what the law says and those who know how it is applied, is particularly useful and is, it seems to me, enough in itself to make this seminar a success. But the sheer amount of material it has given us, starting with Professor Mario Chiavario's introductory report and continuing through the various reports, statements and discussions, makes it hard for me to present you with conclusions. Indeed, I feel neither able nor qualified to do so. What I would like to give you -knowing all the time that I have a privilege no one should have, the right to speak without anything I say being subject to debate or discussion - is my personal reading of this seminar and its findings.

It has been concerned with serious crime and the requirement of respect for human rights in European democracies - a big topic if ever there was one. It has been held in Taormina; we have all been struck by the beauty of the Sicilian landscape, in spite of occasional fog and the gusts of the Mediterranean sirocco. And we have been struck by the warm and likeable qualities of the local people. But we are also in a place which is synonymous with serious, organised crime. In a way, we are here as tourists and are seeing Magna Graecia through tourists' eyes. Looking out from the coasts of Sicily, we can imagine Greece in the distance, and perhaps that far-off image may remind us that, whenever it has thought seriously about democracy and public life, humanity has always had to choose between two models, Athens and Sparta.

At the end of this century, we feel closer to the tolerance and openness of Athens than to the more authoritarian values of Sparta, and this is one of the cultural factors which condition our approach to the question of crime and punishment.

This seminar's organiser, the Council of Europe, is the purest European institution -and the clearest in the old meaning of "clara" as the opposite of obscure; in the process of European integration, it has been distinguished by its moral consistency, its body of conventions and its political philosophy of pluralist democracy, the rule of law and human rights. In the spirit of this same philosophy, I shall take the risk of stating at once two certainties which I should like to make the starting point of my own approach.

First and foremost, the death penalty must be banned throughout Europe. As Albert Camus said in 1957, it must be outlawed. Capital punishment serves no purpose, answers no need and is totally unjustified. It is incompatible with a system of penalties based on justice, not vengeance. Protocol No.6 should be made an integral part of the Rome Convention, and

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new member countries should accept it at once as one of the Council of Europe's achievements. Some of the things that certain eastern European countries have said on the subject merely confirm the need for this. Abolition of the death penalty expresses Europe's recognition of the dignity of the human person as the basic principle on which its values and constitution rest.

The second certainty I put to you is that, under this same fundamental principle, we must acknowledge that respect for human rights must also be the basis of all our crime policies. Any suspension of those rights - even temporary - undermines the foundations of our civilisation. We must never forget that there are two sides to any violation of human dignity: it affects both the person who suffers it and the person who inflicts it. The "reasons of the head" and the "reasons of the heart", of which Pascal spoke, also go hand in hand here. The case-law of the European Commission and Court of Human Rights reflects a growing sense of the grave threat which organised crime poses to our European societies. For all that, however, the fundamental rights of individuals must always be respected.

One of the points made here in Taormina is that social change leads to changes in the patterns of crime. A look at the social history of crime does indeed show that at various times there has been public alarm at new forms of crime or an increase in the crime rate. In early modern Europe, begging was regarded as a dangerous crime since the refusal to work threatened the social structures of emergent capitalism. Likewise, the brutal repression of vagrancy was intended to intimidate those who opted out of the community and in so doing threatened public order. In earlier societies, the judicial and policing systems were weak, and this meant that penalties had to be exemplary. They were thus made severe to compensate for the weakness of the state and civil society. It is, however, significant that, even before human rights became a concept, these societies felt that theft was justified in situations of extreme urgency. In modern times, the increasing power of the judiciary and the police has been accompanied by the emergence of a new philosophy on the penal system.

The thing that gives serious crime its new dimension today is its connection with the emergence of criminal counter-powers. This is a danger which we must confront. In the name of human rights, organised crime must be effectively combated. There is no defence or, still less, justification for terrorism or the mafia. At this seminar, we have listened with horror to the long list of the Italian mafia's victims, including judges, politicians, journalists and police officers. Indeed, the things we have heard about mafia terrorism and its international ramifications strongly suggest that the mafia is coping more effectively than states and societies with the challenge of globalisation.

The wave of terrorism, particularly in the 1970s and 1980s, seemed to threaten European order as a whole. In the most seriously affected countries, such as Germany and Italy, there may have been a temptation to strike back with state terror, but the European democracies proved capable of opposing organised crime with organised legality andterrorism with the rule of law.

In fighting organised crime, it is vital to attack its economic foundations and strike at its finances. This is an area where effective strategies must be found: suspect goods and assets, which cannot be shown to have been lawfully acquired, must be confiscated and impounded. In doing this, we are working in the community's interests and also respecting the rule of law. In fact, the means we employ in trying to punish crime effectively must always remain within the bounds of law. Effectiveness cannot be bought at the expense of human rights, since

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human rights must be respected under all circumstances. Faced with these dangers, we must not allow the climate of fear or panic which crime engenders to get the better of us. Europe's hard-won democratic values must form the basis of everything we do to counter the threat.

The same danger now applies in the East. The countries of central and eastern Europe are reminding us of the well-known and almost hackneyed truth that freedom, too, has its price and that nascent freedom brings problems in its wake. There is also a price to be paid for breaking out of a deadlocked society. In this part of Europe, unemployment, poverty, a certain breakdown of community links, and the transition to a market economy have combined to create a highly volatile situation. There are two great dangers here. One is crime itself, the other is populism, which feeds on anxiety and exploits people's fears.

Dangerous problems are developing in the former communist countries, particularly at the point where politics and economics meet. Corruption and clientelism, which are both a kind of continuation of the communist party's monopoly and a parasitic outgrowth of the transition, must be regarded as the sources of this new wave of crime. The best way of getting rid of the problems is to reduce the state's role in the economy, bring in an open system of public contracts to limit corruption, and establish international co-operation, first of all to combat trafficking in drugs, but also to combat trafficking in women, cars and weapons, which, although all very different, are the real source of organised crime in the eastern European countries. Since the accent at this seminar has been placed on the danger from the East, I am sure you will forgive me for pointing out that this danger from the East is connected with the West, that both sides have problems and that the people who cause them are actively working together.

The new democracies are vulnerable, firstly, because powerful crime syndicates are trying to influence or dominate the democratic processes, and particularly elections. Recent elections in some of those countries have shown how the mafia and organised crime networks can infiltrate in the very workings of democracy. In cases like this, the machinery of democracy seems itself to be working against democracy.

A second problem lies in the fact that social frustration and insecurity together make people receptive to populist, authoritarian government, prompting them to look for strong leaders, "men of destiny", who will impose an iron grip on politics. We must not exaggerate this danger, but we need to be aware of it, so that we can do something about it.

The big question we face is how the law-governed state should react to organised crime?

First and foremost, we must focus on prevention. While trying to come up with social policies to meet present challenges, particularly that of unemployment, I feel we should not cling to the illusion that full employment is possible; we live at a time when jobs are becoming a rare commodity. This is a new situation and we need something more than yesterday's remedies to deal with it. We also have to cope with the problem of migration. We must accept that cultural integration of immigrants is a necessity and steer clear of repressive policies.

We also need to devise new prevention policies and set up structures based on partnership. The "Crime prevention boards" tried out in France, which rely on the subsidiarity principle so dear to the European Union, illustrate the need to have local structures and consult local communities. This is an area where British schemes have often worked particularly well,

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pointing the way to the future. Minor crime leads on to serious crime, and this is why this kind of grass-roots work in the community is so important, since it helps us to cut organised crime off from its main roots. Another thing we need is strategies to reduce opportunities for crime, strategies which can be implemented in the economy and in the community. At the same time, we all know that prevention will never get rid of crime completely.

We must therefore face up to the need for effective strategies to combat organised crime itself. Italy's experience with pentiti, or repentant criminals, seems important for countries trying to find more effective ways of coping with organised crime, but the big question is how to protect court witnesses without violating the principle of a fair public hearing.

Everything depends on the judges. We need to realise that judges are the key factor in all our efforts to protect society from crime - judges who are respected, who have a moral standing in the community which rubs off on the institutions they represent, and who are constantly concerned to seek out the truth. We must not forget that, in authoritarian and totalitarian countries, judges were the mainstay of oppression and tyranny. If organised crime is to be defeated, it is vital that the judiciary should recover its legitimacy. And it is vital that "the right to liberty and security", provided for in the Convention, should be exercised publicly, and that everyone should see that this is so.

Finally, the prison system must be governed by humanitarian principles, and must respect the dignity of the individual, apply psychiatric methods to prisoners and be subject to supervision by non-governmental organisations and public opinion. We need to remember that the prison system is still one of the weakest links, if not the weakest link, in respect for human rights in modern democracies. It must make room for the principles of reintegration and, above all, reject the permanent exclusion of convicts or criminals from society.

In short, what we need is rapid crime detection, fair punishment and adequate information for the public. That is the best way of fighting crime. And it is also the best way of ensuring that the victims of crime get justice too.

This brings me to my final point, the question of civil society. It must be said that this is the area where the scope for action is greatest and also where the questions are biggest. To get the public consciously involved and on our side, we shall have to make an enormous educational effort. First of all, we need to get them involved in protecting order and liberty, giving prosecutors and police the feeling that public opinion is solidly behind them - a feeling they can have only if they know that they are acting in the name and in defence of human rights.

Educating people to a sense of human rights and their importance is still one of the major tasks which await us. Perhaps this is one of the major challenges of the end of the twentieth century? To build this human rights culture, we must first convince people that crime, organised or not, must be combated for the sake of human rights and then convince them that human rights themselves must be respected in doing it. Of course, this means training and educating police officers and prison warders in the principles of human rights. But it also means a sustained and general effort to inculcate the principles of human rights and respect for human rights, starting in schools and extending all the way to the media.

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The problem of media freedom is one which could form the subject of a separate seminar or indeed a whole series of seminars. It raises questions which we should not try to answer too quickly. To say that journalists and the media should not have a legal framework, that there should be no press law, might well be rash; and to say that the media should be government instruments would be striking at the very foundations of democracy, since media freedom means freedom of the private media. In eastern Europe, we know from experience what the price of state ownership of the media is; we know that this is where the loss of civil liberties begins. That is why guaranteeing media freedom is important - but it is also important that journalists should not be placed in some sense above the law. They must also be subject to the normal workings of society and the rules by which it lives.

One might think that the media should take on the job of educating people in the values we have been talking about. They could avoid propagating dangerous stereotypes relating to crime, and become a means of extending the human rights culture instead. However, they can do this only if they are free and if they accept and respect Kant's moral imperative.

The future of democratic society depends on respect for human rights. And human rights should also be respected when crime is being punished. If I may step out of my role as rapporteur general for a moment, I should like to give you an example from my own experience. A historian and an academic, I now find myself in politics. I have the feeling that the biggest challenge for political elites in the former communist countries is overcoming a sense of insecurity. Insecurity is a huge danger in those countries. As a member of parliament, I am working on laws to remove it. But life has also brought me one experience for which I was totally unprepared. I never expected to find myself behind bars and in prison. Prison was something I had read about in books, texts on the past and Foucault's remarkable description. Yet one day I found myself in prison, with "ordinary" offenders - from petty thieves to major criminals - because the communist countries did not recognise "political prisoners". With those "ordinary" offenders, I had an experience which I still like to think about and which still moves me when I do. After a hunger strike, in the middle of the night, one of them threw some tinned meat and tea through the window into my cell. A few days later, we met briefly and hetold me why he had done it. "Prison's my home", he said, "it's where I live all the time - and you can't imagine how much it's changed since Solidarity got going in 1980-1981". This is something I have never forgotten. It reminds me, when I have to take decisions on the criminal code, that I should be thinking of the people on the other side as well.

The Council of Europe is an organisation where all the three powers converge, and civil society as well. This is a major advantage for an institution of this kind, an institution which can look at the realities of crime and punishment in close and accurate detail, analyse and comment on them, and also make changes in the way human rights are envisaged and applied. No other institution can do this. It is now up to the Council to act on this seminar. We have raised various questions. Those questions must not remain unanswered, in other words, without a follow-up. And I hope you will not think that I am being merely rhetorical when I say, in conclusion, that behind those human rights which we want to establish in modern democracies, there must always be human beings - and concern for human beings.

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Appendix : List of Participants

ETATS MEMBRES DU CONSEIL DE L'EUROPEMEMBER STATES OF THE COUNCIL OF EUROPE

ALBANIA/ALBANIE

Mr Muhamet RRUMBULLAKU, Colonel, Director of the Criminal Police, Ministry of the Interior, Skanderbeg 3, AL - TIRANATel: (355.42) 64361 Fax: (355.42) 63607

M. Ylli KUMRIJA, Major, Chief of the Foreign Relations Department, Ministry of the Interior, Skanderbeg 3, AL - TIRANATel: (355.42) 64361 Fax: (355.42) 63607

BULGARIA/BULGARIE

Ms Ilina TANEVA, Head of Council of Europe Division, Human Rights and Humanitarian and Social Affairs Directorate, Ministry for Foreign Affairs, 2 Alexandre Zhendov Str., SOFIA 1113Tel: (359) 2 73 63 48 Fax: (359) 2 73 84 21

REPUBLIC OF CROATIA/REPUBLIQUE DE CROATIE

Ms Ivana IMAMOVI_, Senior Counsellor, Department for Human Rights, Ministry of Foreign Affairs, Trg N. Š. Zrinskog 7-8, 10000 ZAGREBTel: (385.1) 4569 953 Fax: (385.1) 4569 936

CYPRUS/CHYPRE

Mr Petros CLERIDES, Senior Counsel of the Republic, Office of the Attorney-General, CY -NICOSIATel: (357.2) 30 22 42 Fax: (357.2) 44 50 80

CZECH REPUBLIC/REPUBLIQUE TCHEQUE

Mr Martin CEJP, Sociologist, Institute of Criminology and Social Prevention, nám. 14, _íjna 12, PB. 87, 15000 PRAGUE 5Tel: (42.2) 54 44 08 Fax: (42.2) 54 64 37

ESTONIA/ESTONIE

Mrs Triin PARTS, Second Secretary, Legal Department, Ministry of Foreign Affairs, Rävala pst. 9, EE0100 TALLINNTel: (372) 6 31 7414 Fax: (372) 6 31 7099

FINLAND/FINLANDE

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Mr Hari HANNULA, Counsellor of legislation, Ministry of Justice, P.O. Box 1, SF - 00131 HELSINKIFax: (358.0) 18 25 77 37

FRANCE

M. Bruno NEDELEC, Magistrat détaché à la Sous-Direction des droits de l'homme, Direction des affaires juridiques, Ministère des affaires étrangères, 37 quai d'Orsay, F -75007 PARISTél: (33.1) 43 17 53 17 Fax: (33.1) 43 17 43 59

GREECE/GRECE

M. Nicolas TSIGAS, Directeur Général de politique pénitentiaire, Ministère de la justice, 96 rue Messoghiou, GR - 11527 ATHENESTél: (30.1) 802 9975 Fax: (30.1) 771 7182

HUNGARY/HONGRIE

Mr Ákos KARA, Senior Desk Officer, Department of Criminal Codification, Ministry of Justice, Szalay u. 16, H - 1055 BUDAPESTTel: (36.1) 311 96 48 Fax: (36.1) 311 78 52

ICELAND/ISLANDE

Mr Tryggvi THORHALLSSON, Legal Advisor, Ministry of Justice, Arnarhvoll, 150 REYKJAVIKTel: (354) 560 9010 Fax: (354) 552 7340

ITALY/ITALIE

Mme Cristina ANTONELLI, Conseillère, Service du contentieux diplomatique, Ministère des affaires étrangères, 1 Piazzale della Farnesina, I - 00196 ROMETél: (39.6) 323 60 37 Fax: (39.6) 323 60 02

REPUBLIC OF LATVIA/REPUBLIQUE DE LETTONIE

Ms Inese SVIKŠA, Senior Desk Officer, Department of Public Law, Ministry of Justice, Brivibas Bulv. 36, LV -1536 RIGATel: (371.7) 33 31 82 Fax: (371.7) 28 55 75

LITHUANIA/LITUANIE

Mr K_stutis VAGNERIS, Chief Prosecutor, Information and International Relations Department, Smetonos Str. 4, 2709 VILNIUSTel: (370.2) 61 21 31 Fax: (370.2) 61 19 26

LUXEMBOURG

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M. Carlo SCHOCKWEILER, Attaché de Gouvernement 1er en rang au Ministère de la justice, 16 Boulevard Royal, L - 2934 LUXEMBOURGTél: (352) 478 4541 Fax: (352) 227 661

REPUBLIC OF MOLDOVA/REPUBLIQUE DE MOLDAVIE

M. Vitalie NAGACEVSCHI, Chef de la Division des relations internationales, Ministère de la justice, 82 str. 31 August, Ministerul Justitie, MD 2012 CHISINAUTél: (373.2) 22 33 15 Fax: (373.2) 23 47 97

NORWAY/NORVEGE

Ms Hilde INDREBERG, Legal Adviser, Department of Legislation, Ministry of Justice, Box 8005 Dep. N - 0030 OSLOTel: (47) 22 24 53 85 Fax: (47) 22 24 27 25

POLAND/POLOGNE

Mr Andrzej KALI_SKI, Lawyer, Counsellor at the Ministry of Foreign Affairs, Al. J.ch Szucha 23, PL - 00580 WARSAWTel: (48.22) 62 39 769 Fax: (48.22) 62 12 342

PORTUGAL

Ms Maria Candida DE ALMEIDA, Procureur Général Adjoint, Procuradoria Geral da República, Rua da Escola Politécnica 140, P - 1294 LISBONNE CEDEXTél: (351.1) 395 5296

ROMANIA/ROUMANIE

M. Mihai MAROZ, Colonel, Chef de la Police du département de Ialomi_a, Ministère de l'intérieur, R - BUCARESTTél: (40.1) 615 1108 Fax: (40.1) 311 3555

SLOVAK REPUBLIC/REPUBLIQUE SLOVAQUE

Mr Robert FICO, Ministry of Justice, _upné nám. 13, 813 11 BRATISLAVATel: (42.7) 535 3179 Fax: (42.7) 531 2435

SLOVENIA/SLOVENIE

Mr Primoz TREBE_NIK, State Prosecutor, Ferrarska 9, 6600 KOPERTel: (386.66) 33 881 Fax: (386.66) 34 334

SWEDEN/SUEDE

Mr Lars SJÖSTRÖM, Deputy Assistant Under-Secretary, Ministry of Justice, S - 10333 STOCKHOLMTel: (46.8) 405 4682 Fax: (46.8) 405 4382

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TURKEY/TURQUIE

Mr Turhan FIRAT, Director General, Council of Europe and Human Rights Department, Ministry for Foreign Affairs, Büyükelçi - AKGM, Di_i_leri Bakanligi, BALGAT - ANKARAFax: (90.312) 287 1581

UKRAINE

Mr Vjacheslav YARENKO, Second Secretary, European Regional Co-operation Department, Ministry of Foreign Affairs, 1 Mykhaylivska sq., 252018 KYIVTel: (7.044) 212 83 02 Fax: (7.044) 226 31 69

ETATS NON MEMBRES DU CONSEIL DE L'EUROPENON-MEMBER STATES OF THE COUNCIL OF EUROPE

REPUBLIC OF BELARUS/REPUBLIQUE DE BELARUS

Mr Uladzimir KRAMYANKA, Second Secretary, Department of Humanitarian Affairs and Human Rights, Ministry of Foreign Affairs, 19 Lenin Street, MINSK 220030Tel: (375.17) 227 48 34 Fax: (375.17) 227 45 21

OTHER PERSONALITIES / AUTRES PERSONALITES

M. George ANTONIU, Directeur Adjoint de l'Institut de recherches juridiques de l'Académie roumaine, Rue 13 Septembrie, nr 13, RM - 76117 BUCARESTTél: (40.1) 410 4059 Fax: (40.1) 335 4496

M. Alessandro G. ATTANASIO, Avocat, Via Ramondetta 31, I - 95129 CATANIA (Italie)Tél: (39.95) 38 64 71 Fax: (39.95) 38 64 71

M. Francesco BASILE, Conseiller, Intercenter, Via Ghibellina 59, I - 98100 MESSINA (Italie)Tél: (39.90) 71 05 54 Fax: (39.90) 71 92 63

M. Imre BÉKÉS, Professeur à l'Université de Budapest, Membre de la Commission européenne des Droits de l'Homme, Czévi Köz 11/A, H - 1025 BUDAPESTTél: (36.1) 266 3313 Fax: (36.1) 266 3313

Mr Samson BELIAEV, Co-ordinator of the Organised Crime Study Center, Faculty of Law, Moscow State University, B. Zhigulyenkova 6-6, 105118 MOSCOWTel: (7.095) 366 0023 Fax: (7.095) 939 2949

M. Carlo BELLITTO, Magistrat, Palazzo di Giustizia, I - MESSINA (Italie)Tél: (39.90) 71 32 94

Mr Francesco BRUNO, Professor of Forensic Psychiatry, University of Rome La Sapienza, Via Prati Fiscali 184, I - 00141 ROMETel: (39.6) 88 64 01 76 Fax: (39.6) 88 32 74 93

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Mr Alexander CAPMARI, Inspector, Interpol of the Republic of Moldova, Bld Stefan cel Mare 75, MD - 2012 CHISINAUTel: (373.2) 25 59 15 Fax: (373.2) 22 50 45

Mme Maria Luisa CESONI, Maître Assistant, Faculté de droit (CETEL), Université de Génève, Uni-Mail, CH -1211 GENEVE 4 (Suisse)Tél: (41.22) 705 8607 Fax: (41.22) 705 8414

M. Mario CHIAVARIO, Rapporteur, Professeur de droit, Université de Torino, Via Giacosa 22, TORINO (Italie)Tél: (39.11) 65 90 37 Fax: (39.11) 66 99 037

M. Gavril-Josif CHIUZBAIAN, Président de l'Union des juristes de Roumanie, Rédacteur en chef de la Revue "Palais de Justice", 22 Bld. Magheru, Sector 1, RM - 70158 BUCARESTTél: (40.1) 659 6820 Fax: (40.1) 659 6820

Mr Andrew COYLE, Governer, HM Prison Brixton, P.O. Box 369, Jebb Avenue, LONDON SW2 3XFTel: (44.181) 674 9811 Fax: (44.181) 678 0834

Mr Ralph CRAWSHAW, Human Rights Consultant, Fellow of the Human Rights Centre of the University of Essex, former Senior Police Officer, South House, The Old Factory, Bells Lane, Glemsford, SUDBURY, Suffolk, CO10 7QA (United Kingdom)Tel: (44.1787) 281 732

M. Domenico CUCCHIARA, Président Adjoint honoraire de la Cour de Cassation, Via S. Eustochia 14, I - 98100 MESSINA (Italie)Tél: (39.90) 770 131

M. Régis de GOUTTES, Président du Comité directeur pour les droits de l'homme du Conseil de l'Europe, Avocat général près la Cour de Cassation, 1 quai de l'Horloge, 75001 PARISTél: (33.1) 44 32 74 77 Fax: (33.1) 44 32 77 10

Mme Marie-Pierre de LIEGE, Rapporteur, Magistrat, détachée à l'Institut du monde arabe, 1 rue des Fossés St. Bernard, 75236 PARIS CEDEX 05Tél: (33.1) 40 51 39 48 Fax: (33.1) 43 54 76 45

M. Michel de SALVIA, Secrétaire adjoint de la Commission européenne des Droits de l'Homme, Conseil de l'Europe, F - 67075 STRASBOURG CEDEXTél: (33.3) 88 41 23 68 Fax: (33.3) 88 41 27 92

Mr Istok EGETER, Assistant Lecturer, University of St. Gallen, Tigerbergstr. 21, CH -9000 ST. GALLEN (Switzerland)Tel: (41.71) 224 21 63 Fax: (41.71) 224 21 62

Mr Carl-Henrik EHRENKRONA, Member of the Bureau of the Council of Europe Steering Committee for Human Rights, Assistant Under-Secretary, Ministry for Foreign Affairs, P.O. Box 16121, S - 10323 STOCKHOLMTel: (46) 8 405 50 83 Fax: (46) 8 723 11 76

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M. Jean-Marc ELCHARDUS, Membre du Conseil scientifique criminologique, Professeur des Universités, Médecin des Hôpitaux, Hôpital Edouard Herriot, Place d'Arsonval, 69437 LYON CEDEX 03 (France)Tél: (33.4) 72 11 00 09 Fax: (33.4) 72 11 61 33

M. Vladimir EVINTOV, Director of the Ukrainian Center for Human Rights, 64 Chervonoarmiiska str., 252005 KYIVTél: (380.44) 227 2124 Fax: (380.44) 227 2398

Mr Isi FOIGHEL, Professor, Judge at the European Court of Human Rights, Nyhavn 35, DK -1051 COPENHAGEN KTel: (45) 33 91 22 01 Fax: (45) 33 91 38 01

M. Jean GAUTHIER, Professeur à la Faculté de droit de l'Université de Lausanne, Boulevard de Grancy 3, 1006 LAUSANNE (Suisse)Tél: (41.21) 616 2005

Mr Bronislaw GEREMEK, General Rapporteur, Chairman of the Parliamentary Commission on Foreign Affairs, c/o Sejm, Chancellory of the Diet, ul. Wiejska 4/6/8, 00902 WARSAWTel: (48.22) 694 1820 Fax: (48.22) 694 1900

M. Iskandar GHATTAS, Sous-Secrétaire du Ministère de la Justice, 28 rue Assiout, ET -ELIOPOLIS-CAIRE (Egypte)

M. Mocu_a GHEORGHE, Procureur en chef-adjoint, Section du Parquet général près la Cour suprême de justice, Ministère public roumain, Unirii nu. 2-4, secteur 5, BUCARESTTél: (40.1) 410 5435 Fax: (40.1) 410 5435

M. Aldo GRASSI, Conseiller, Cour suprême de Cassation, Vice-Président d'Intercenter, Vicolo Sforza Cesarini 55, I - 00186 ROMETél: (39.6) 687 3903

Ms Lynda HEIMS, PhD Candidate, Victoria University, Via della Madonna deil Monti 96, I -00184 ROMETel: (0338) 831 7172

Mr Owe HORNED, Chief Lawyer, Swedish Prison and Probation Administration, S - 60180 NORRKÖPING (Sweden)Tel: (46.11) 19 30 00 Fax: (46.11) 19 38 02

Mr Hartmuth HORSTKOTTE, Judge at the Supreme Court, Oldenburgalle 58, 14052 BERLINTel: (49.30) 320 9246 Fax: (49.30) 322 8164

Mr Jerzy JASKIERNIA, Member of the Committee on Legal Affairs and Human Rights of the Council of Europe Parliamentary Assembly, Chancellory of the Sejm, ul. Wiejska 6, PL -00902 WARSAWTel: (48.22) 694 1591 Fax: (48.22) 621 2341

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M. Saulius KATUOKA, Professor of International Law, President of the Council of the Lithuanian Centre for Human Rights, Gedimino 22, 2600 VILNIUSTél: (370.2) 62 88 58 Fax: (370.2) 62 89 60

Mr Juraj KOLESÁR, Rapporteur, Professor of Criminal Law, Vice-Dean, Faculty of Law, Comenius University Law School, _afárikovo nám. 6, 81806 BRATISLAVATel: (42.7) 32 42 00 Fax: (42.7) 36 61 26

Mr Nickolay KOLLEV-BOSSIA, Journalist, President of the Foundation "Consent", 134 Rakovski Str., BG - SOFIATel: (359.2) 584 122

Mrs Ninel KUZNETSOVA, Head of the Criminal Law Department, Faculty of Law, Moscow State University, ul. 26 Bakinskikh, Komissarov 10-1-37, 117526 MOSCOWTel: (7.095) 433 4360 Fax: (7.095) 939 2949

Mr Ahti LAITINEN, Associate Professor of Sociology of Law, Faculty of Law, University of Turku, Calonia 342, SF - 20014 TURKU (Finland)Tel: (358.2) 333 5512 Fax: (358.2) 333 6570

M. Mario LANA, Président, Union italienne des avocats pour les droits de l'homme, Via Emilio De Cavalieri 11, I - 00198 ROMETél: (39.6) 84 12 940 Fax: (39.6) 85 30 08 01

Mr Leonard H. LEIGH, Professor of Criminal Law, London School of Economics, University of London, Ground Floor Flat, 30 Eccles Road, GB - LONDON SW11 1LZTel: (44.171) 955 7254 Fax: (44.171) 978 5529

Mr Kaspar LINKIS, Deputy Director of Public Prosecutions, Rigsadvokaturen, Christians Brygge 28, DK - 1559 COPENHAGENTel: (45) 33 12 72 00 Fax: (45) 33 14 70 08

Mr Uno L_HMUS, Judge at the European Court of Human Rights, Kalda Tee 44-6, EE 2400 TARTU (Estonia)Tel: (372.7) 44 10 87 Fax: (372.7) 44 14 57

M. Giovanni LONGO, Président de Chambre, Cour de Cassation, 4 Via della Fontanella, I -00187 ROMETél: (39.6) 68 89 70 36 Fax: (39.6) 688 3420

Mr Loukis LOUCAIDES, Deputy Attorney-General of Cyprus, Member of the European Commission of Human Rights, 7 Aranizou Street, CY - NICOSIA Tel: (357.2) 30 2430 Fax: (357.2) 36 7498

Mr Nicholas McGEORGE, Criminological psychologist, Quaker Council for European Affairs, Pendle Bank, Sway Road, Hampshire, GB - LYMINGTON SO41 8LR (United Kingdom)Tel: (44.1590) 67 66 37 Fax: (44.1590) 67 66 37

174

Mrs Kathleen MAHONEY, Professor, Faculty of Law, University of Calgary, CDN -CALGARY, Alberta (Canada)Tel: (1.403) 220 7254 Fax: (1.403) 282 8325

M. Emil MARINACHE, Directeur adjoint, Institut roumain pour les droits de l'homme, Piata Aviatorilor no. 3, RM - 71260 BUCARESTTél: (40.1) 222 57 24 Fax: (40.1) 222 42 87

Mr Carmelo MARINO, Judge, Via XXVII Luglio 61, I - MESSINA (Italy)Tel: (39.90) 67 50 06

M. Vito MAZZARELLI, Avocat, Segretario consulta giustizia europea diritti delli uomo, Via Barberini 3, I - 00187 ROMETél: (39.6) 474 36 90 Fax: (39.6) 48 37 15

Mr Jens MEYER-LADEWIG, Vice-Chairman of the Council of Europe Steering Committee for Human Rights, Ministerialdirigent, Federal Ministry of Justice, Heinemannstr. 6, Postfach 20 03 65, D - 53170 BONNTel: (49) 228 58 44 40 Fax: (49) 228 58 45 25

Mr Arne OUGAARD, Deputy Director-General, Department of Prisons and Probation, Klareboderne 1, DK - 1115 COPENHAGEN KTel: (45) 33 11 55 00 Fax: (45) 33 32 24 94

Mr Bertel ÖSTERDAHL, Director-General, Swedish Prison and Probation Administration, S -60180 NORRKÖPING (Sweden)Tel: (46.11) 19 30 00 Fax: (46.11) 19 38 02

Mr Ion POTLOG, Commissioner of Police, Police Colonel, George Enesau Str. 19, MD -2012 DROCHIA (Republic of Moldova)Tel: (373.2) 52 25 000 Fax: (373.2) 52 22 880

Mr Eric PROKOSCH, Theme Research Coordinator, Amnesty International, 1 Easton Street, GB - LONDON WC1X 8DJTel: (44.171) 413 5500 Fax: (44.171) 956 1157

M. Paolo PUCCI DI BENISICHI, Ambassadeur, Représentant permanent de l'Italie auprès du Conseil de l'Europe, 3 rue Schubert, 67000 STRASBOURGTél: (33.3) 88 60 20 88 Fax: (33.3) 88 60 65 64

M. Guido RAIMONDI, Membre du Bureau du Comité directeur pour les droits de l'homme du Conseil de l'Europe, Magistrat, Co-agent auprès de la Commission et de la Cour européennes des Droits de l'Homme, 3 rue Schubert, F - 67000 STRASBOURGTél: (33.3) 88 60 20 88 Fax: (33.3) 88 60 65 64

Mr Monty RAPHAEL, Chairman of the Business Crime Committee of the International Bar Association, Senior Partner, Peters & Peters, 2 Harewood Place, Hanover Square, LONDON W1R 9HBTel: (44.171) 629 7991 Fax: (44.171) 499 6792

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Mr Nigel RODLEY, Professor of Law, University of Essex, Department of Law, Wivenhoe Park, GB - COLCHESTER CO4 3SQ (United Kingdom)Tel: (44.1206) 872 562 Fax: (44.1206) 87 34 28

M. Carlo RUSSO, Juge à la Cour européenne des Droits de l'Homme, Via Paleocapa 3, I -17100 SAVONA, (Italie)Tél: (39) 82 97 84

Mr Andrew RUTHERFORD, Professor of Law, Faculty of Law, University of Southampton, GB - SOUTHAMPTON SO17 1BJ (United Kingdom)Tel: (44.1703) 59 36 34 Fax: (44.1703) 59 30 24

Mme Thaima SAMMAN, Avocat, 12 rue Degas, F - 95120 ERMONT (France)Tél: (33.1) 30 72 54 62

Mr Sergei SIROTKIN, Director, Moscow Legal Resource Centre, Pr. Mira 36, 129010 MOSCOWTel: (7.095) 280 4511 Fax: (7.095) 280 7016

Mr Max L. SNIJDERS, Rapporteur, Professor at the University of Groningen, Specialist in the ethics of communication, Royestein House, Oudegracht 175, 3511 NE UTRECHT (Netherlands)Tel: (31.30) 2 318 753 Fax: (31.30) 2 304 092

M. Alphonse SPIELMANN, Ancien Procureur Général d'Etat, Juge à la Cour européenne des Droits de l'Homme, 108 rue des Muguets, 2167 LUXEMBOURGTél: (352) 43 51 34

Mrs Christina STEEN SUNDBERG, Chief Prosecutor (retired), Uggleviksgatan 9, S - 11427 STOCKHOLMTel: (46.8) 411 4989 Fax: (46.8) 21 38 74

Mrs Vivien STERN, Rapporteur, Secretary General, Penal Reform International, 169 Clapham Road, LONDON SW9 0PUTel: (44.171) 582 6500 Fax: (44.171) 735 4666

Mr Jacob W F SUNDBERG, Professor, Director of Studies, Institutet för Offentlig och Internationell Rätt, Uggleviksgatan 9, S - 114 27 STOCKHOLMTel: (46) 8 21 62 44 Fax: (46) 8 21 38 74

Mr Knut SVERI, Professor emeritus, Trädgårdsv. 3B, S - 18246 ENEBYBERG (Sweden)Tel: (46.8) 758 5971

Mr Gyózó SZABÓ, Vice-President of the Supreme Court of the Republic of Hungary, Markó u. 16, H - 1055 BUDAPESTTel: (36.1) 269 2643 Fax: (36.1) 269 2880

Mme Maria TERRACINA, Via S. Licandro Alto "Il Refugio", I - 98168 MESSINA (Italie)Tél: (39.90) 36 23 22

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Mr Nick TILLEY, Rapporteur, Professor, Department of Social Sciences, Faculty of Economics and Social Sciences, Nottingham Trent University, Burton Street, GB -NOTTINGHAM NG1 4BUTel: (44.115) 948 6812 Fax: (44.115) 948 6813

Mr Christian TRØNNING, Director General, Department of Prisons and Probation, Klareboderne 1, 1115 COPENHAGEN KTel: (45) 33 11 55 00 Fax: (45) 33 32 24 94

Mr Antonie C. VAN DER SCHANS, Advocate-General, Court of Appeal, the Hague, Willem III laan 12, NL -4835 LB BREDA (Netherlands)Tel: (31.76) 561 44 08

M. Piero Luigi VIGNA, Magistrat, Procureur de la République, via Strozzi 1, I - FLORENCE (Italie)Tél: (39) 55 21 17 12 Fax: (39) 55 21 23 88

M. Claudio ZANGHI, Président d'Intercenter, Professeur de droit à l'Université de Rome La Sapienza, Via Ghibellina 59, I - 98100 MESSINA (Italie)Tél: (39) 90 71 05 54 Fax: (39) 90 71 92 63

M. Salvatore ZAPPALÁ, Assistant juridique au Tribunal pénal international pour l'ex-Yougoslavie, Viale Tirreno 31, I - 95123 CATANIA (Italie)Tél: (39) 95 51 60 65 Fax: (39) 95 51 60 65

* * *

SECRETARIAT DU CONSEIL DE L'EUROPECOUNCIL OF EUROPE SECRETARIAT Fax: (33.3) 88 41 27 93

M. Pierre-Henri IMBERT, Directeur des Droits de l'HommeTél: (33.3) 88 41 23 20

M. Giuseppe GUARNERI, Secrétaire du Séminaire, Chef de la Section des Droits de l'Homme, Direction des droits de l'hommeTél: (33.3) 88 41 23 24

Mme Françoise MANTION, Assistante administrative principale, Direction des droits de l'hommeTél: (33.3) 88 41 23 33

Ms Heather STEWART, Administrative Assistant, Directorate of Human RightsTel: (33.3) 88 41 35 63