The principle of subsidiarity of criminal repression

Criminal responsibility and the associated legal consequences can only be applied in cases that are socially harmful, where other legal provisions are insufficient. The principle of subsidiarity of criminal repression represents a strong argument in criminal defense.

The Principle of Subsidiarity of Criminal Repression: Criminal Law as a Last Resort

Criminal law is a powerful tool of the state designed to protect important societal interests from serious illegal acts. Its existence is essential because some illegal acts can be so severe that other means of legal protection for important societal interests may not be effective enough.

However, due to the power of this tool, it is crucial to ensure that it is not abused by the state apparatus and that it interferes with human rights and freedoms only in necessary cases and to the necessary extent. Many countries use criminal law more as a tool of state repression against opponents of the ruling regime than as a legitimate means of protecting important societal interests.

To prevent the misuse of criminal law, legal systems in democratic states incorporate various checks and balances designed to protect individual rights in the face of a repressive state apparatus. For instance, courts, not rulers or legislatures, decide on guilt and punishment, and these courts must be composed of independent and impartial judges. Guilt and punishment are determined only based on public prosecution and laws that precisely define and specify individual crimes.

Here, as one of the means of protecting human rights and freedoms, the principle of subsidiarity of criminal repression comes into play, stipulating that criminal law should be used only as a last resort when protection of society cannot be achieved through other, milder means. 

The concept of subsidiarity of criminal repression and its rationale

he principle of subsidiarity of criminal repression, sometimes referred to as the principle of ultima ratio, expresses the idea that criminal prosecution should be pursued only when other means of protecting societal interests have failed or are insufficient (especially means within the realms of civil or administrative law).

The principle of subsidiarity emphasizes respect for human rights and freedoms. A state-imposed criminal sanction represents a serious infringement on the rights and freedoms of the individual being punished, and therefore, it should be used with the utmost caution. Subsidiarity helps prevent the misuse of criminal law and protects individuals from disproportionate and unjust penalties.

The principle of subsidiarity of criminal repression also ensures the efficiency of the criminal process. Criminal prosecution and punishment are relatively costly and lengthy processes involving a range of actors, including law enforcement agencies, witnesses, defense attorneys, forensic experts, and possibly interpreters.

In many cases, less repressive measures may be more effective and less burdensome for both the state and the victim.

Negligence

The principle of subsidiarity of criminal repression, sometimes referred to as the principle of ultima ratio, expresses the idea that criminal prosecution should be pursued only when other means of protecting societal interests have failed or are insufficient (especially means within the realms of civil or administrative law).

The principle of subsidiarity emphasizes respect for human rights and freedoms. A state-imposed criminal sanction represents a serious infringement on the rights and freedoms of the individual being punished, and therefore, it should be used with the utmost caution. Subsidiarity helps prevent the misuse of criminal law and protects individuals from disproportionate and unjust penalties.

The principle of subsidiarity of criminal repression also ensures the efficiency of the criminal process. Criminal prosecution and punishment are relatively costly and lengthy processes involving a range of actors, including law enforcement agencies, witnesses, defense attorneys, forensic experts, and possibly interpreters.

In many cases, less repressive measures may be more effective and less burdensome for both the state and the aggrieved person.

Manifestations of the principle of subsidiarity of criminal repression

The principle of subsidiarity is reflected both in the overall criminal law system and in individual criminal cases. In the criminal law system, this principle can manifest in the following areas:

• Decriminalization: Some acts that were previously considered criminal have been decriminalized over time, with their punishment either being shifted to the realm of administrative law (as minor offenses) or completely abandoned. This decriminalization often corresponds to societal developments, where acts previously seen as dangerous and worthy of punishment have been reassessed.
• Diversions: Diversions are methods to streamline the prosecution of less serious crimes. For example, reconciliation or conditional suspension of prosecution is when, although there was reasonable cause to initiate criminal proceedings, if the offender has shown remorse and compensated for the damage, the state may conclude that punishment would be disproportionate and end the prosecution (conditionally) before a conviction is reached

The principle of subsidiarity of criminal repression in individual cases

Apart from its influence on the entire criminal law system, the principle of subsidiarity also manifests in individual cases through the discretion of law enforcement agencies in deciding whether an act constitutes a criminal offense and whether it should be punished by a conviction.

In practice, it is not uncommon for the police to assess a criminal report and determine that the described act, while potentially illegal, does not constitute a criminal offense and should be addressed through civil or administrative means, if it is a minor offense.

Similarly, after an investigation and before the case is sent to court, the court may determine that an act is less socially dangerous and does not reach the level of a criminal offense, referring it to administrative proceedings as a minor offense.

The principle of subsidiarity of criminal repression can provide a suitable direction for defense strategy.

It is particularly applicable in cases of petty offenses but is not excluded in serious crimes.

If it is clear that the act occurred and was committed by the accused, an experienced defense attorney might argue that criminal law should be seen as a last resort, urging the court to consider the act as a civil dispute (which the alleged victim must address through a standard lawsuit) or a minor offense (to be handled in administrative proceedings, where the penalties are typically milder than criminal convictions involving imprisonment, criminal records, etc.).