APOROPHOBIA AND CRIMINAL LAW
Financed by Ministry of Science, Innovation and Universities
The main objective of this project is to analyse how the criminal law and criminal policy treat marginalised people nowadays, with the final aim of elaborating de lege ferenda proposals to improve the current situation. On the one hand, the project will denounce an existing fact: the current drift toward a system of “criminal law of aporophobia”. On the other hand, it will suggest an alternative model of social justice. This main objective could be broken down into three necessarily interrelated objectives:
1. To study the reality of aporophobia in the criminal system, which will include, on the one hand, a criminological analysis of the phenomenon, and on the other hand, a review of the ideological foundations of the so-call “criminal law of aporophobia”. Initially, such foundations have been identified in the postulates of ideological trends like radical funcionalism, new public management and punitivism. These three theories will be analysed, likewise others that could be identified in the course of the project.
2. To identify and analyse the different shapes of the “criminal law of aporophobia” in current legislations. This project will mainly focus on the Spanish law, although it will also pay attention to the situation in other European and Latin-American countries in which the criminal law of aporophobia also exists. In order to achieve this objective, the project will involve experts from Spain, Germany, Italy, the Netherlands, Brazil, Colombia, Cuba and Uruguay. These shapes of the criminal law of aporophobia have been preliminary identified in the criminalisation of bagatelle, of immigration (crimmigration) and of petty drug dealing, which are behaviours typically carried out by marginalised people.
3. To suggest de lega ferenda proposals to build a new model of social justice. The idea is to design a new legal framework to avoid the criminalisation of marginalised people and to protect them from discriminatory attacks based on its condition of poor. The proposals will mainly focus on two aspects: decriminalization of some behaviours, which are not (or almost not) harmful for relevant legal interests and criminalization of conducts whose victims are basically marginalised people.
To this end, there are two research groups: USAL (conceptualisation and denounce of the current system of “criminal law of aporophobia”) and Deusto (design of alternative policies of social justice).
The researchers involved in the project have a solid career. They add their participation in more than 50 competitive projects, more than 30 “sexenios” (research periods) and other research achievements, like a Ramon y Cajal grant.
The coordinated project aims at producing results that are valid not only for the science of law, but also for institutions and society in general.
Key words: aporophobia, criminal law, criminal policy, funcionalism, new public management, marginalised people, punitivism, rule of law.
SUBPROJECT 1. CURRENT SHAPES OF THE CRIMINAL LAW OF APOROPHOBIA: THE CRIMINAL LAW OF EXCLUSION
Aporophobia, “Criminal Law of the Friend“, “Criminal Law Of Exclusion”, Criminal Policy, Crimmmigration, Functionalism, New Public Management, Punitivism,
The main objective of this project is to denounce the current drift toward a system of “criminal law of aporophobia”. This objective could be broken down into three:
1. To carry out a criminological analysis of the system of criminal law, which can be defined as aporophobic. The project will study empirical data concerning each of the type of offences that have been selected given its impact on the social exclusion of poor people. The project will mainly focus on the Spanish reality, although it will also include a research on other European countries.
2. To study the ideological foundations of the criminal law of aporophobia. Initially, such foundations have been indentified in the postulates of ideological trends like radical funcionalism, new public management and punitivism. These three theories will be analysed, likewise others that could be identified in the course of the project. The aim of this analysis is to suggest a critical review of the aforementioned theories and to propose to turn into other theories which offer more guarantees, and which are more respectful to the legitimating principles of the Criminal Law in the social and democratic rule of law.
3. To analyse the different shapes of the “criminal law of aporophobia” in the Spanish law and other foreign laws that could be of interest given the impact of the aporophobia phenomenon. This objective will include a comparison between the “criminal law of the friend” and the criminal law of exclusion. The idea behind this objective is to compare how the criminal law treats one and the other. Particularly, concerning the first one, the following issues will be studies: some forms of white-collar criminality, specially, the tax fraud, and the exclusion of criminal liability of legal persons. Regarding the criminal law of exclusion, the following issues will be investigated: the criminalisation of bagatelle (minimal thefts, peddlers…), of immigration (crimmigration) and of petty drug dealing, which are behaviours typically carried out by marginalised people. Other issue to be studied will be related to prisons, whose population is essentially poor, and the deprivation of freedom derived from the subsidiary criminal liability for non-payment of a fine; a fact that typically affects the marginalised people.
To sum up, this project will offer a critical review of the current system with the aim of generating awareness in policy-makers and society in general, with respect to the poor people. To this end, it has been designed a dissemination program that combines scientific publication, information, conferences and congresses.
The project involves almost 20 researchers with a solid career and with expertise in topics narrowly related to the one of the project: the criminal law of aporophobia.
SUBPROJECT 2. TOWARDS A MODEL OF SOCIAL JUSTICE: CRIMINAL-POLICY ALTERNATIVES
The main objective of sub-project 2 is to offer an alternative proposal of Criminal Policy with the aim of building a model of social justice. The project stems from the hypothesis that current Criminal Policy is “aporophobic”, which has as a result that the criminal law system has more negative impact on marginalised people. And that is so notwithstanding the fact that criminale behaviors carried out by poors have its origin, precisely, in its condition of marginalization. In this sense, this project will elaborate de lege ferenda proposals to try to put an end to the current system of exclusion. In addition, the system of aporophobia can also be observed in the scarce protection of marginalised people when they become victims of offences only because they are in that situation. This is why this project will also offer proposal to review the law to overcome this issue.
The fundamental objective of this project could be broken down into the following ones related to the general part of the criminal law, as well as the special part of the criminal law:
1. To study the foundations of a model of social criminal responsibibility and the consequences that this new concept of “culpability” could have on marginalised people.
2. To analyse the suitability of including the aporophobia as aggravating circumstance of Article 22.4 criminal code.
3. To study the “social vulnerability” as a possible defense (Article 22.5, criminal code), which should include more than the classical famine-motivated theft, as well as to study the “social vulnerability” as a possible cause to exclude imputability (responsibility) (Article 22.3. criminal code).
4. To define the element “situation of vulnerability” that is used in several type of offences along the criminal code. It will stem from the meaning provided by the Directive 211/36/EU on preventing and combating trafficking in human beings and protecting its victims.
5. To identify the most relevant attacks to labour rights and to offer a proposal for an effective criminalisation of those. The idea behind this objective is that people who more suffer those attacks are, precisely, marginalised people. In addition, they are not in a position to denounce those attacks given the situation in which they live.
6. To carry out an analysis of the current law concerning environmental criminality because it more intensively affects poor people.
7. To offer a proposal for an effective criminalisation of gender attacks. The idea behind objective is that marginalised women have more possibilities to become victims of specific crimes like sexual exploitation or force marriage.
8. With respect to hate crimes, to analyses the treatment of these crimes when related to aporophobia.
The results of this project will be convey to policy-makers and society in general through a dissemination system, which will include scientific publication, information, conferences and congresses, with the aim of contribute to a change in the actual system in favor of a model of social justice.
Principal investigator of the coordinated project:
Subproject 1 (University of Salamanca): current manifestations in criminal law aporofobia: "Criminal Law of exclusion"
Subproject 2 (University of Deusto): Towards a model of social justice: alternative political-criminal
EUROPEAN UNION LEGISLATION