Although theoretical work on the concept of punishment still focuses almost exclusively on custodial sentences (i.e., imprisonment), statistics show that the principal penalty (at least in in quantitative terms) employed by European justice systems is the fine. In Germany, for example, approximately 80% of criminal penalties imposed on individuals are fines. The fine has significant advantages over imprisonment: It is a less de-socializing form of punishment, relatively economical, and easy to administer. Moreover, fines can be adjusted to reflect the offender´s culpability by altering the extent and severity.
Despite their many advantages, fines also exhibit a fundamental weakness. Since the enforcement of a fine does not concern a personal, non-transferable good (life, liberty, or physical integrity), but a highly transferable one (money), it is relatively common that the person convicted is not the same person who ends up bearing the cost of the fine. Think, for example, of the employer who pays fines imposed on their workers who commit crimes for the benefit the company, or the convicted person who pays the fine but passes the cost on to his or her family by cutting expenses that affect their quality of life. In both cases, the fine ceases to be a personal punishment, since the subject of the censure and the subject of the pecuniary detriment do not coincide. On the one hand, the transmission of a fine is unfair to those who have to suffer for a crime they did not commit. On the other hand, the trivialization of this kind of punishment – by accepting its transferal to a third party – is an important barrier to the desirable progressive replacement of custodial punishments with fines.
In response, this project has a twofold set of objectives. Firstly, it seeks to analyze whether, as some authors suggest, the monetary fine is a qualitatively different sanction from that of imprisonment and, consequently, whether it should be governed by different principles. Is it really significant who pays the fine or is it an impersonal sanction? Secondly, assuming that the monetary fine must be conceived as a personal punishment so that the addressee of the censure and the subject of the pecuniary detriment overlap, it aims to analyze the legal options for minimizing the risk of fines being transferred to third parties. In particular, the project is interested in studying whether the payment of a monetary fine by a third party might constitute an obstruction of justice. By examining the foundations of (monetary) punishment and methods to ensure its non-transferable character from a transnational perspective, this project will advance several key components of the Department of Criminal Law’s research agenda.
Expected outcome: Two articles published in English and German or Spanish (2020–2021).
Forschungsprogramm Strafrecht: Transnational Criminal Law Theory Abteilung: Strafrecht Projektstatus: laufend Projektdauer: Projekt Startdatum: 2020