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I. PRINCIPAL FEATURES OF THE CUBAN CODE OF SOCIAL DEFENSE OF 1936
A. Concept of the penalty.
The penalty-punishment theory under the Spanish Code of 1870 has been replaced, under the new Code, by the penalty-treatment theory which is based principally on the idea that it is necessary to defend society. Under the latter theory, the imposition of a sanction is justified only when the fundamental laws of the social order are violated, such as in the commission of a misdemeanor or any other act which produces an alteration in the social order, although not of & "grave" nature.
In order to leave no doubts that this was the intention of the lawmaker, the original name Penal Code, no longer fitting to the new Code, was changed to Code of Social Defense.
Book IV contains regulations on security measures destined precisely to defend society and to avoid the repetition and consequences of crime. These security measures are not considered penalties per se.
An interesting point is that at the time the Cuban Code of Social Defense entered into force; i.e., in 1938, no country in the world had adopted a penal code bearing such a name. Only the Mexican state of Yucatan had its Code of Social Defense enacted and in force at this time (April 25, 1938), although as aforementioned, the Cuban Code was enacted earlier in 1936, although enforced two years later. B. Danger to society as fundamental criteria for sanctioning.
In order to determine the sanction for the commission of a felony (delito) or misdemeanor (contravención), the danger the criminal represents in society must be considered ; that is, the extent of his anti-social behavior, the fear he inspired, his capabilities of causing damage or of placing the social order in danger or disruption. Professor Ferri used to say that “a grave crime committed by a less dangerous criminal and a simple crime, on the contrary, may reveal the symptoms of an abnormal or very dangerous personality." Therefore, when sentencing, judges shall apply the sanctions, taking into account these fundamental circumstances. In order to accomplish this, the law must grant judges sufficient flexibility with regard to the length and manner of imposing a sanction. The Cuban Code adopts this criterion and grants judges a wider flexibility than the previous Code regarding the imposition of a sentence. This, on the one hand, allows a more severe sanctioning procedure against habitual delinquents or those more dangerous to society either by congenital or acquired tendencies ; on the other hand, it allows a less severe procedure against a great majority of occasional or less dangerous offenders. C. Criminal liability.
Under the theory of social defense as opposed to retributive justice by the State, legal liability (imputabilidad) derives from moral liability. The Code adopts this criterion, not only because it is absolutely inseparable from the idea of social defense or danger of the criminal, but also because the lawmakers agreed with Professor Ferri that this should bring positive benefits to the administration of criminal justice. This principle is found in Article 18, which states that “No one may be sanctioned for the commission of an act provided by the Code, unless the action or omission which determined said act was desired by the agent who at the sime time wanted to cause or foresaw the results of his act or omission." D. Criminal liability of juristic persons.
The Code establishes, in addition to the criminal liability of juristic persons, the criminal liability of those natural persons involved in the commission of a punishable act by juristic persons. E. Political crimes. They are defined in Article 21 of the Code as “any crime which violates a right or a political interest of the state or a political right of the citizens."
When, in addition, the criminal act violates any other right, or that the commission of a political crime concurs with the commission of any other crime, the rules on concurrence of crimes shall be applicable.
F. Consummated and frustrated crimes.
The concepts of frustrated crime and tentative [to commit a crime) disappear. They are replaced by a distinction between consummated crime (delito consumado) and frustrated crime (delito imperfecto). The criminal forms of frustrated and tentative crime fall into the latter form. G. Concealment of the commission of a crime.
Concealment of the commission of a crime (encubrimiento) became a crime against the administration of justice. H. Exempting and justifying circumstances.
Among the first ones we found:
(1) Insanity and mental alienation. The old concept of insanity is suppressed. Instead, the definition of Professor Sanchiz Banus adopted by Article 8, Section I of the Penal Code of the Spanish Republic which includes transitory insanitary, is adopted. Determination of insanity is vested in doctors.
(2) Drunkenness and temporary insanity. Drunkenness that is complete, accidental, nonhabitual and not preconceived may be considered grounds for exemption from criminal liability. The same may be said of temporary insanity that is complete, accidental, nonhabitual, not preconceived and not caused by the absorption or injection of narcotic substances.
(3) Minority. For the purposes of criminal liability, the Code sets minority age as up to twelve years.
(4) Deaf-mutes. They are exempt from criminal liability, thus following the Spanish Penal Code of the Republic (Article 3, Section VIII).
(5) Physical force and intimidation. Together with physical force, the Code includes intimidation as grounds for exemption from criminal liability.
(6) Error of law. This becomes an exempting circumstance, only with regard to the commission of misdemeanors (contravenciones) by aliens who have been in the country for a short period of time.
Among the second ones, there are :
(1) State of need; that is, in case an individual acts in self defense, provided a) that he is unjustly attacked and b) that for his protection, he rationally employs an adequate way of defending himself.
(2) Stealing as caused by hunger or starvation (hurto famélico). To be applicable, however, the amount of goods stolen should not exceed that amount which is strictly indispensable for the immediate subsistence of the culprit, that property does not suffer any unnecessary damages, that there is no duress or intimidation of the victim, that the act does not reveal that the agent is dangerous, that he is not a vagabond, an alcoholic, a beggar or a drug addict.
Among the circumstances that may modify criminal liability, we find the following:
(A) Attenuating circumstances. Here we find some new attenuating circumstances such as repentance, influence of the environment, fatigue caused by work, mental unbalance in women due to menopause, pregnancy, menstruation or a pathological condition caused by childbirth, and old age which is fixed at 60 years.
(B) Aggravating circumstances. Among those the Code mentions the use of automobiles, vessels, aircrafts or any similar medium capable of achieving the impunity of the agent by insuring his rapid escape from the site of the crime.
Book II: Felonies (iclitos).
This book of the Code deals with specific crimes (delitos). It is based on the principle that crime as an act committed against the law (acto antijuridico) constitutes a violation of criminal law. The classification of punishable acts is made, therefore, in accordance with the rights violated by the commission of an illegal act.
Death penalty. It is established for certain crimes such as piracy when it is accomplished by homicide or abandonment of the victim without facilities to survive. Also, for those persons who for the purpose of stealing cause a vessel to list or sink and consequently, someone dies. It is also applicable to the commission of the crime of murder and parricide, inclnding in the latter the murder of one's mother, father or child or any legitimate or illegitimate ascendant, descendant or spouse. Death penalty is also applicable to cases of homocide caused by the use of explosives.
Commission of a crime while practicing a sport. This crime is included in the provisions of Article 471-A of the Code. Where the injury is caused with intention to violate the rules of the game, it is punishable. Should the referee or umpire consent to the breaking of the rules of the game in question, he shall be brought to trail as an accomplice.
Book III: Misdemeanors (contravenciones).
These are minor violations of the law committed without malice or the more or less marked characteristics of those violations which constitute a felony (delito). Penalty for the commission of misdemeanors (contravenciones) cannot exceed the term of six months in jail.
Book IV: Security measures.
Security measures are applicable to individuals who commit an act which the law qualifies as a crime, regardless of the fact that the individual may not be criminally liable (inimputable) or that he may not be punishable. They are also applicable to those individuals who have symptoms of a permanent dangerous condition which particularly inclines or may incline them to commit a crime, even though the commission of said crime has not occurred.
Security ineasures may be applicable for an undetermined period of time until the purposes of cure, instruction, education or rehabilitation (rehabilitación) of the individual is achieved.
In order to apply security measures, the following criteria should be followed :
(1) They shall be applicable only to socially dangerous persons who have committed a crime, regardless of the fact that they are not criminally liable. They also shall be applicable to persons who have not committed a crime but evidently reveal permanent symptoms of being dangerous to society.
(2) The law regulates the cases where a socially dangerous person may be subject to security measures.
(3) Security measures shall be decreed following previous determination of the dangerous status of the person who committed a crime.
(4) Generally speaking, any person who is believed to be a potential criminal shall be reputed as socially dangerous.
II. CRIMINAL PROCEDURE
As aforementioned, criminal procedure is not regulated by the Code of Social Defense but by the Law on Criminal Procedure enacted in Spain, pursuant to the provisions of Royal Decree of September 14, 1882, and later extended to Cuba and Puerto Rico by Royal Decree of October 19, 1888. It became enforceable in these islands on January 1, 1899. It is still in force in the Republic of Cuba.
Basically, we may say that the preliminary handling of a criminal case involving the commission of a felony (delito) is conducted in an Instruction Court (Juzagdo de Instrucción). It takes place after the police turn the matter over to the judicial authorities (within 24 hours after detention of the individual). This preliminary proceeding is conducted in secret and has the elements of crime investigation assigned to the judicial branch, terminating in the indictment or release of the accused. Trial is held in provincial courts (Audiencias) before no fewer than 3 judges (magistrados). No jury is involved. Parties to the trial are: the accused or person under indictment (procesado), the attorney for the defense, the public prosecutor (Fiscal) and in certain cases a private prosecutor (acusador particular) who represents the rights of the injured party. Trial may end in a verdict declaring the accused guilty or not guilty. Sentencing in the first case then follows.
An appeal of the sentence may be filed before the Supreme Court, only on arguments that the lower court decision violated the provisions of the Law on Criminal Procedure (quebrantamiento de forma) or substantive provisions of penal law (infracción de ley). An appeal on questions of fact is not missible.
The Supreme Court, in the first case, may order the lower court a new trial; in the second case, the upper court may amend the issued by the lower court and increase or decrease the sanction, a may be, or even absolve the accused.
Cases involving misdemeanors (contravenciones) are heard before (Juez correccional). Likewise, no jury is involved. After hearing the the defense and evaluating the evidence submitted to him, the judge 1 his decision. It is non-appealable. The sentence cannot exceed the te six months in jail.
Matters concerning execution of sanctions are governed by a special statute known as Law on Execution of Sanctions of April 4, 1936,3 enforceable as of October 8, 1938, which is the same date set forth for the enforcement of the provisions of the Code of Social Defense.
This law creates a technical body known as the Superior Council of Social Defense (Consejo Superior de Defensa Social), charged with the execution of sanctions and security measures involving deprivation of liberty. It exercises broad technical and administrative powers.
Consequently, the classification of inmates with regard to the kind of treatment that shall be applicable to them becomes essential. This is the keystone of the Cuban penitentiary system. It is based on the premise that the Administrative Organ of a Penitentiary has the right to determine the moment the sanction of deprivation of liberty shall cease, within the limits set forth by the Court in the corresponding sentence. Therefore, the base for the individualization of the execution of the sanction is really the undeterminable sentence, which has as a corollary the conditional liberty of the inmate.
Corrective treatment. The law adopts a system of correction based on compulsory studies and work.
Olassification of penal establishments. They are divided into two groups: Institutes of Repression and Institutes of Prevention. The former function as prisons where persons penalized to deprivation of liberty are committed; the latter are the centers where the execution of the security measures established by the Code of Social Defense are enforced.
Probation officers. The law also makes provisions for probation officers, with powers and functions similar to those of Probation and Parole officers in the United States. They are civil officials subject to the administration of the penitentiary and are charged with the observation, care and supervision of those individuals placed on probation.
Since the Code of Social Defense was conceived on the theory of penal. treatment, it thus follows that a penitentiary must be, in effect, a reformatory; i.e., a social institution. The culprit is considered to be arrested society, not as a penalty, but for the purposes of his instruction, reeducation, rehabilitation, discipline and regeneration.
CZECHOSLOVAKIA Question 1:
The Czechoslovak Criminal Code of November 29, 1961,' as amended, has 301 sections and is divided into three parts: Part One, General Part (Secs. 1-90), Part Two, Special Part (Secs. 91-295), and Part Three, Transitional and Final Provisions (Secs. 296-301).
Part One consists of the following chapters: The Purpose of the Penal Code: The Foundations of Criminal Liability; The Applicability of Penal Laws; Penalties; The Extinction of Criminal Liability and Punishment; Protective Measures; Special Provisions Concerning the Prosecution of Juveniles; and General Provisions.
Part Two has the following chapters: Crimes Against the Republic; Economic Crimes; Crimes Against the Public Order ; Crimes Causing Common Danger; Crimes Grossly Violating Good Civil Relations; Crimes Against the Family and Youth; Crimes Against Life and Health ; Crimes Against Liberty and Human Dignity ; Crimes Against Property ; Crimes Against Humanity; Crimes Against Military Service; and Military Crimes.
Part Three has one chapter, entitled “Transitional and Final Provisions." Question 2:
The numbering of the sections of the Code is consecutive. If an amendment to the text is made, the wording of the affected section is changed and the number remains the same; if an additional section is needed, then the number of sections is extended by adding the letters a, b, c, etc., after the section where the new material most appropriately belongs.
# Gaceta Oficial, April 11, 1936, Extraordinary issue.
INDIkino zakonu teskoslovenské socialistické republiky (hereinafter referred to as SA No. 140/1961.
In order to be a crime, an act must have been committed intentionally, unless the present Code expressly provides that an act committed through negligence is punishable as a crime (Sec. 3, Subsec. 3).
The present Code makes use of two kinds of culpability: "intent" (Sec. 4), and "negligence" (Sec. 5). The following is the text of Sections 4 and 5 of the Code :
Sec. 4.-A crime shall be [considered to have been] committed intentionally, if the offender
(a) wished to violate or endanger in a manner specified in the present Code an interest protected by the Present Code, or
(b) knew that his action could cause such violation or danger and, in the event of causing it, accepted the result.
Sec. 5.—A crime shall be [considered to have been] committed through negligence, if the offender
(a) knew that he could, in the manner specified in the present Code, violate or endanger an interest protected by the present Code, but without adequate reasons depended on not causing such violation or danger, or
(b) did not know that his action could cause such violation or danger although, considering the circumstances and his personal situation, he should have known it.
The intent may be direct (knowledge is required--Sec. 4, letter (a)) or inestat direct (volition is required-Sec. 4, letter (b). In both forms of intent, the
offender must have known that by his act he might violate or endanger an Emende interest protected by the present Code in a manner specified in the present
Code; however, in the case of direct intent, the offender directly wished to violate or endanger such an interest, whereas in the case of indirect intent; the offender did not wish to cause the violation or endangerment of such interest directly, but realized that such a violation or endangerment would take place. The intent must be established by the court on the basis of the facts and evidence.
Section 5 recognizes two kinds of negligence, which the theory terms 'conscious' and 'unconscious' negligence."
Conscious negligence is present when the offender knew that he might violate or endanger said interest; however, he did not understand that he would cause such a violation or endangerment, but trusted without adequate reasons that his act would not cause it. There is a lack of volition in the person of the offender which makes the difference as regards indirect intent.
Unconscious negligence is present when the offender did not know that his action could cause such a violation or danger. The difference between an unintentional violation or danger (i.e., not a criminal case) and unconscious negligence is that the offender should have known it considering the circumstances and his personal situation.
Guilt must be established, not innocence. Section 2, Subsection 2, of the Code of Criminal Procedure reads :5 "No person prosecuted in penal proceedings shall be viewed as being guilty until his guilt has been pronounced in a judgment which has become legally valid.” Question 4:
The "proximate cause” between conduct and result is not expressly mentioned in the Code; however, in the chain of causation, such proximity must he established in order to find the offender guilty. The proximate cause is present if the result could not have taken place without the offender's action. If his action is one of the proximate causes of the result, then it is necessary to establish a so-called degree of causation in bringing about the result. Of course, the offender is criminally liable only if he caused the result intentionally or by negligence.
The text is taken from an official translation of the Union of Czechoslovak Lawyers, Bulletin of Czechoslovak Law, 1962.
: Trestní zákon; Komentár. Praha, Orbis, 1964 (hereinafter Komentár), p. 43-47. !18 at 47-49 The Czechoslovak Code of Criminal Procedure of November 29, 1961, No. 141/1961 Sh., as amended (hereinafter referred to as (CP).
Komentár, supra note 3 at 31–32.