Criminal Law and Human Rights - Some Examples from the Emergence of European Criminal Law
Authors: Kruessmann Thomas 
Published: December 2020

Criminal law is often described as the field of law that expresses the strongest national characteristics of a given jurisdiction and is the least amenable to change. Naturally, social rules providing some kind of penalty when violated have existed throughout the history of mankind. In Europe, the current understanding of criminal law has been shaped by Enlightenment thought, the ideas of human rights, liberalism and finally the national movements which led, inter alia, to the famous codifications of criminal law of the 19th century. In Russia, criminal law has certainly (not been isolated from the developments that took place in 19th century Europe. For example, the abolition of corporal punishment is but one good marker of humanisation. But compared to Europe, codified criminal law in Russia has been much less understood as the magna charta of the offender (Franz von Liszt), eventually leading to the study of human rights in criminal law. Rather, it has been viewed as the expression of the Tsars unfettered power to mete out punishment, - a line of thinking which indicates the continuing difficulty in Russian criminal law doctrine to accept limitations on the power of the legislator to criminalize. This paper will not deal with Russian doctrinal approaches to criminal law in a direct way. Instead, its purpose is to demonstrate the European Unions (EUs) current thinking on the effects that human rights have on the development of criminal law. As of today, criminal law is under a variety of influences among which the changing understanding of human rights is a very important one. In the Western world, there is a large amount of literature dealing with human rights and criminal law in general1 [1; 2], and it is hardly possible to come to an overall systematization. To be sure, there are parts of criminal law which have experienced very little change in light of human rights. One central tenet of human rights, for example, is the equality of men2 (in a pre-modern reading to include also women) which leads to the criminalization of slavery, slave trade, forced labor and trafficking in human beings. The smuggling of humans, on the other hand, is a much more controversial topic due to the fact that states show a strong desire to criminalize irregular migration. Another pillar of human rights is the human right to property3 which informs a whole range of criminal law provisions for violations of the right to property on land (theft, robbery, etc.) and on water (piracy). By comparison, the right to life is a more difficult concept. Human rights are behind the global drive for abolishing the death penalty4, but a number of other life-related issues are determined less by human rights than by religious and ethical views, such as the criminalization of abortion, aiding and abetting suicide, and euthanasia. Finally, a number of human rights are experiencing a very lively debate, e.g. freedom of speech5 [3] and freedom of religion, consequently there is also a high impact on the development of criminal law. European criminal law, understood as the total of the harmonized national criminal law systems of the EU Member states, offers a good example to study the effects of human rights. In the literature, there is the argument that changes in the understanding of human rights can lead both to criminalization and to de-criminalization. This has also been described as the «sword» function of human rights (using human rights to call for criminalization) and the «shield» function (using human rights law to call for limits to the use of criminal law and even de-criminalization) [1]. Both functions can be observed in a nutshell when analyzing the European criminal law that has emerged in the course of the last decade. For Russia, this article represents a (hopefully timely) contribution to the still nascent discussion on the effects of human rights on criminal law. Despite the Preamble to the newly adopted Constitution of the Russian Federation (RF) which affirms the role of human rights, Article 15 (4) Constitution RF limits the direct impact of human rights law to the universally accepted norms and principles of international law as well as to treaties concluded by the RF. The Constitution therefore appears to be closing the door to cutting-edge developments in international human rights law which are still not universally accepted.