Pope Francis tells Law Congress "Our societies are called to advance towards a model of justice founded on dialogue..." Full Text - Video
SPEECH OF THE HOLY FATHER FRANCIS
TO THE PARTICIPANTS IN THE XX WORLD CONGRESS
OF THE INTERNATIONAL ASSOCIATION OF CRIMINAL LAW
Sala Regia
Friday, November 15, 2019
Distinguished Ladies and Gentlemen,
First of all I want to apologize for the delay. Excuse me, it was a miscalculation: two big appointments that last ... The opposite of what happened in the Book of Joshua happened: there the sun went back; here the clock, the sun, went on. Excuse me, and thank you for your patience.
I cordially greet you and, as in our previous meeting, I express my gratitude for your service to society and for the contribution you offer to the development of a justice that respects the dignity and rights of the human person. I would like to share with you some reflections on questions that also involve the Church in its mission of evangelization and service to justice and peace. I thank Prof. Paola Severino for her words.
About the current state of criminal law
For several decades, the criminal law has incorporated - especially from contributions from other disciplines - different knowledge about some problems related to the exercise of the sanctioning function. I referred to some of them in the previous meeting [1].
However, in spite of this epistemological openness, the criminal law has not succeeded in preserving itself from the threats which, in our days, hang over democracies and the full validity of the rule of law. On the other hand, criminal law often neglects the data of reality and in this way assumes the appearance of a merely speculative knowledge.
We see two relevant aspects of the current context.
1. Market idolatry. The fragile, vulnerable person finds himself defenseless before the interests of the divinized market, which have become the absolute rule (see Evangelii gaudium, 56; Laudato si ’, 56). Today, some economic sectors exercise more power than the States themselves (see Laudato si ', 196): a reality that is even more evident in times of globalization of speculative capital. The principle of profit maximization, isolated from any other consideration, leads to a model of exclusion - automatic! - which violently attacks those who suffer in the present its social and economic costs, while future generations are condemned to pay environmental costs.
The first thing jurists should ask themselves today is what they can do with their knowledge to counteract this phenomenon, which puts democratic institutions and the very development of humanity at risk. In concrete terms, the present challenge for every criminal lawyer is to contain the punitive irrationality, which manifests itself, among other things, in mass imprisonment, crowding and torture in prisons, arbitrariness and abuses of the security forces, expansion of the sphere of the penalty, the criminalization of social protest, the abuse of preventive imprisonment and the repudiation of the most elementary penal and procedural guarantees.
2. The risks of criminal idealism. One of the major current challenges of criminal science is the overcoming of the idealistic vision that assimilates having to be to reality. The imposition of a sanction cannot be morally justified with the alleged ability to strengthen trust in the normative system and in the expectation that each individual takes on a role in society and behaves according to what is expected of him.
Criminal law, even in its normativist currents, cannot disregard elementary data of reality, such as those that manifest the concrete operation of the sanctioning function. Any reduction of this reality, far from being a technical virtue, helps to hide the most authoritarian features of the exercise of power.
The social damage of economic crimes
One of the frequent omissions of criminal law, a consequence of the sanction selectivity, is the scarce or null attention that the crimes of the most powerful receive, in particular the macro-delinquency of the corporations. I am not exaggerating with these words. I appreciate that your Congress has taken this issue into consideration.
Global financial capital is at the origin of serious crimes not only against property but also against people and the environment. It is responsible for organized crime, among other things, the over-indebtedness of states and the plundering of the natural resources of our planet.
Criminal law cannot remain extraneous to conduct in which, taking advantage of asymmetrical situations, a dominant position is exploited to the detriment of collective well-being. This happens, for example, when the prices of public debt securities are artificially reduced, through speculation, without worrying that this influences or exacerbates the economic situation of entire nations (see Oeconomicae et pecuniariae quaestiones. Considerations for an ethical discernment about some aspects of the current economic-financial system, 17).
These are crimes that have the seriousness of crimes against humanity, when they lead to hunger, poverty, forced migration and death from avoidable diseases, environmental disaster and the ethnocide of indigenous peoples.
The legal and penal protection of the environment
It is true that the penal response comes when the crime has been committed, that with it the damage is not repaired or reiteration is prevented and that it rarely has dissuasive effects. It is also true that, due to its structural selectivity, the sanctioning function usually falls on the most vulnerable sectors. I am also aware that there is a punitivist current which claims to solve the most varied social problems through the penal system.
Instead, an elementary sense of justice would impose that some behaviors, of which the corporations are usually responsible, do not go unpunished. In particular, all those that can be considered as "ecocide": the massive contamination of the air, of the resources of the earth and water, the large-scale destruction of flora and fauna, and any action capable of producing an ecological disaster or destroy an ecosystem. We must introduce - we are thinking - into the Catechism of the Catholic Church the sin against ecology, the "ecological sin" against the common home, because a duty is at stake.
In this sense, recently, the Synod Fathers for the Pan-Amazonian Region proposed to define ecological sin as an action or omission against God, against others, the community and the environment. It is a sin against future generations and is manifested in the acts and habits of pollution and destruction of the harmony of the environment, in the transgressions against the principles of interdependence and in the breaking of networks of solidarity among creatures (see Catechism of the Catholic Church, 340-344) [2].
As has been reported in your works, "ecocide" means the loss, damage or destruction of ecosystems of a specific territory, so that its enjoyment for part of the inhabitants has been or may be severely affected. This is a fifth category of crimes against peace, which should be recognized as such by the international community.
In this circumstance, and through you, I would like to appeal to all leaders and representatives in the sector to contribute to their efforts to ensure adequate legal protection of our common home.
About some abuses of sanctioning power
To conclude this part, I would like to refer to some problems that have worsened over the years since our previous meeting.
1. Improper use of pre-trial detention. I had reported with concern the arbitrary use of preventive detention. Unfortunately, the situation has worsened in several nations and regions, where the number of prisoners without conviction is already well over fifty percent of the prison population. This phenomenon contributes to the deterioration of the conditions of detention and is the cause of an illicit use of the police and military forces for these purposes [3]. Preliminary imprisonment, when imposed without the occurrence of exceptional circumstances or for an excessive period, affects the principle that every defendant must be treated as innocent until a final conviction establishes his guilt.
2. The involuntary incentive to violence. In several countries reforms of the institution of legitimate defense have been implemented and an attempt has been made to justify crimes committed by agents of the security forces as legitimate forms of the fulfillment of duty [4]. It is important that the juridical community defend traditional criteria to prevent punitive demagogy from degenerating into an incentive to violence or a disproportionate use of force. They are inadmissible behaviors in a state of law and, in general, they accompany racist prejudices and contempt for socially marginalized groups.
3. The culture of waste and that of hatred. The culture of waste, combined with other psycho-social phenomena widespread in welfare societies, is showing the serious tendency to degenerate into a culture of hatred. There are unfortunately not isolated episodes, certainly in need of a complex analysis, in which the social problems of both young people and adults find their outlet. It is no coincidence that emblems and actions typical of Nazism sometimes reappear. I confess that when I hear some speech, some person in charge of the order or of the government, I am reminded of Hiltler's speeches in '34 and '36. Today. These are typical actions of Nazism which, with its persecutions against Jews, Gypsies and people of homosexual orientation, represent the negative model par excellence of a culture of waste and hatred. This was done at that time and these things are reborn today. We need to be vigilant, both in the civil and in the ecclesial sphere, to avoid any possible compromise - which is assumed to be involuntary - with these degenerations.
4. The lawfare. It is verified periodically that recourse is made to false charges against political leaders, advanced in concert by the media, adversaries and colonized judicial bodies [5]. In this way, with the instruments proper to the lawfare, the always necessary struggle against corruption is instrumentalized in order to fight against unwanted governments, reduce social rights [6] and promote an anti-political sentiment which benefits those who aspire to to exercise authoritarian power.
And at the same time, it is curious that the use of tax havens, an expedient that serves to hide all sorts of crimes, is not perceived as a matter of corruption and organized crime [7]. Similarly, massive phenomena of appropriation of public funds go unnoticed or are minimized as if they were mere conflicts of interest. I invite everyone to reflect on this.
Appeal to responsibility
I would like to address an invitation to all of you, scholars of criminal law, and to those who, in different roles, are called to perform functions concerning the application of criminal law. Bearing in mind that the fundamental purpose of criminal law is to protect the most important legal assets for the community, every task and every task in this area always has a public resonance, an impact on the community. This requires and at the same time implies a more serious responsibility for the justice operator, in whatever degree it is, from the judge, the official of the chancellery, to the agent of the public force.
Every person called to carry out a task in this area will have to constantly keep in mind, on the one hand, respect for the law, whose prescriptions are to be observed with an attention and a duty of conscience adequate to the gravity of the consequences. On the other hand, it must be remembered that the law alone can never achieve the purposes of the criminal function; its application must also take place in view of the effective good of the persons concerned. This adaptation of the law to the concreteness of cases and persons is an exercise as essential as it is difficult. So that the criminal judicial function does not become a cynical and impersonal mechanism, we need balanced and prepared people, but above all passionate - passionate! - of justice, aware of the grave duty and of the great responsibility they carry out. Only in this way the law - every law, not only the criminal law - will not be an end in itself, but at the service of the people involved, whether they are the perpetrators of the crimes or those who have been offended. At the same time, by acting as an instrument of substantive and not just formal justice, the criminal law can fulfill the task of real and effective protection of the essential legal assets of the community. And we must certainly go towards a restorative criminal justice.
Towards a restorative criminal justice
In every crime there is an injured party and there are two damaged ties: that of the person responsible for the fact with his victim and that of the same with the company. I pointed out that between the punishment and the crime there is an asymmetry [8] and that the fulfillment of an evil does not justify the imposition of another evil as an answer. It is about doing justice to the victim, not executing the aggressor.
In the Christian view of the world, the model of justice finds a perfect incarnation in the life of Jesus, who, after being treated with contempt and even with violence that led him to death, ultimately, in his resurrection, brings a message of peace , forgiveness and reconciliation. These are values that are difficult to achieve but necessary for the good life of all. And I resume the words that Professor Severino said about prisons: prisons must always have a "window", that is, a horizon. Look at a reintegration. And we must, on this, think deeply about the way of managing a prison, the way to sow hope of reintegration; and think if the penalty is able to bring this person there; and also the accompaniment to this. And seriously consider life imprisonment.
Our societies are called to advance towards a model of justice founded on dialogue, on encounter, because where possible the bonds affected by the crime are restored and the damage caused is repaired. I don't think it's a utopia, but it's certainly a great challenge. A challenge that we must all face if we want to deal with the problems of our civil coexistence in a rational, peaceful and democratic way.
Dear friends, I thank you for three things: for your double patience: to wait an hour and, the other patience, to listen to this long speech. And I thank you for this meeting. Thanks. I assure you that I will continue to be close to you in this arduous work in the service of man in the area of justice. There is no doubt that for those of you who are called to live the Christian vocation of your own Baptism, this is a privileged field of evangelical animation of the world. Everyone, even those who are not Christians among you, we need God's help, source of all reason and justice. I invoke for each of you, through the intercession of the Virgin Mother, the light and strength of the Holy Spirit. I cordially bless you and, please, I ask you to pray for me. Thanks.
FULL TEXT + Image Source: Vatican.va - Unofficial Translation
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[1] Cfr Discorso alla delegazione dell'Associazione Internazionale di Diritto Penale, 23 ottobre de 2014.
[2] Cfr Documento finale del Sinodo dei Vescovi per la Regione Panamazzonica: Nuovi Cammini per la Chiesa e per una Ecologia Integrale, 26 ottobre 2019, 82.
[3] Cfr Discorso alla delegazione dell'Associazione Internazionale di Diritto Penale, 23 ottobre 2014.
[5] Cfr Omelia, 17 maggio 2018. L’Osservatore Romano (17 maggio 2018).
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