Penal Populism and (Ab)use of Criminal Law

Matić Bošković, Marina and Kostić, Jelena (2024) Penal Populism and (Ab)use of Criminal Law. In: Revisiting the Limits of Freedom While Living Under Threat: 9-10 November 2023, Riga: collection of research papers in conjunction with the 9th International Scientific Conference of the Faculty of Law of the University of Latvia. University of Latvia Press, pp. 79-88. ISBN 978-9934-36-230-9

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Abstract

Over the last decades, it has been recognized that criminal law in some jurisdictions is used by governments in response to crises with a view to regain citizens’ trust. COVID-19 pandemic required prompt reaction, and many governments resorted to the criminal law to implement restrictive measures, to define new crimes within the legislation in order to combat pandemic, and to endanger the procedural rights of defendants to ensure fast-track procedure. Similarly, the mass shooting in Belgrade primary school in May 2023 triggered discussion on amending criminal legislation to prevent minors from committing similar crimes in the future, but also to provide an immediate response to public request. The discussions included the possibility of lowering the age of criminal responsibility from 14 to 12, restricting civilian gun ownership and introducing stricter sanctions for violation, but also introducing death penalty or more severe penalties for certain crimes. The subject of this paper is the effectiveness analysis of the overcriminalisation, especially as the prompt reaction to crises. Discussion will include comparative experience, especially from European countries, such as reaction of Norwegian authorities after the Utoya attack and response to crimes committed by juveniles. Bearing in mind the aforementioned previous experience, the authors start from the assumption that rapid changes of the criminal law, without proper identification of needs and impact assessment lead to failure of reforms. In order to give recommendations for reducing the risks, the authors analyse the comparative response to crises and the extent of criminal law revision.

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