Why decriminalization is sometimes the better form of prevention

Author: Turker Mollahasan

The ratification procedure of the Istanbul Convention has generated numerous publications in the media, as well as discussions on social networks. A similar reaction was also expressed by many media outlets [1] when the Russian Federation adopted amendments to its legislation, which decriminalized [2] the so-called "domestic violence", regulating it as an administrative offense. In my opinion, many of them (either due to ignorance or bad faith) are inaccurate and give rise to misconceptions in the reader.

This publication aims to recall the importance of criminal lawmaking by clarifying:

• the forms in which the state deals with undesirable public manifestations; and
• the criteria that it must take into account when establishing a particular form of counteraction.

The state fights against encroachments on individual members of society through various methods. This is usually done in the following way:

• first, the laws provide that certain harmful acts by individuals give rise to a certain type of liability for them; and
• Secondly, different ways of realizing (implementing) this responsibility are envisaged.

Legal theory generally distinguishes four types of different responsibilities: (1) criminal liability; (2) administrative-criminal liability; (3) civil liability; and (4) disciplinary liability.

When the state is fighting against attacks on the person, it combines these measures. For example, the same act - theft - gives rise to both civil and criminal liability. Specifically, the owner can return the stolen property and receive compensation for the damage suffered in order to protect his personal interest. At the same time, the prosecutor can press charges in order to "re-educate" the offender through punishment and "intimidate" other potential thieves in order to protect the interest of society.

It is assumed that the protection of the public interest is achieved through the implementation of criminal or administrative-criminal liability. Therefore, when the state criminalizes or decriminalizes an act, it must examine in great detail at least the following essential circumstances:

• the degree of public danger of this act;
• how widespread this act is;
• the possibility of realizing criminal liability for this act, including whether the relevant act is subject to social control;
• the appropriateness of the criminal law prohibition, including:
  • what resources should the state spend to prevent these acts;
  • whether the appropriate penalties envisaged can rehabilitate the perpetrator and improve the life of the specific society affected; and
  • how these punishments can be carried out.

For the above reasons, if an act that does not pose a very high public danger but occurs on a mass scale, in my opinion it is more appropriate to decriminalize it by declaring it an administrative violation.

If we take into account Bulgarian law, this is so for at least the following reasons:

• the implementation of administrative liability is carried out much faster than the implementation of criminal liability, since administrative violations are established under different procedural rules and in much shorter terms;
• The appeal of the administrative penalty takes place in only two instances, while the criminal proceedings are in three instances;
• The implementation of administrative liability results in much less costs for the state compared to the implementation of criminal liability.'
• administrative responsibility can be exercised by a very wide range of state bodies;
• the investigation into a crime is conducted by investigating police officers and investigators, the charge is brought only and solely by a prosecutor, and the crime is established only and solely by a court, i.e. for such a process the state engages numerous highly qualified lawyers - magistrates, depriving them of the opportunity to concentrate their efforts on acts of greater public danger;
• The implementation of criminal liability for some common acts becomes almost impossible because this blocks the activities of prosecutors and criminal courts, which have much more limited human resources compared to all state bodies that have the right to implement administrative liability.

For the above reasons, I believe, contrary to the general trend, that the criminalization of acts "on a wholesale basis" without conducting the relevant impact analyses and assessing them according to the above criteria is a very dangerous phenomenon. Therefore, when commenting on certain legislative decisions, it is also appropriate to take these circumstances into account without abusing the emotional state and (lack of specific) knowledge of readers who are interested in the given topic.

I remain hopeful that this publication clarifies at least a little the high seriousness of criminal lawmaking and the fact that any comment on such a topic without the necessary detailed analysis is simply either the fruit of ignorance or the fruit of bad faith.

[1] I am referring mainly to unscrupulous headlines in local media such as “don’t beat your wife more than once a year” or “in Russia you can beat your wife, but only once a year” and foreign media such as “Russia decriminalized domestic violence with support from the Russian orthodox church”, which aim to create some tension without clarifying the essence of the problem and the measures taken;

[2] Criminalization is the declaration of a given human act as a crime, while decriminalization is the exclusion of the act from the circle of crimes;

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