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TIPOGRAFIJA PUBLISHING

Gorazd Meško and Helmut Kury (eds.)

CRIME POLICY, CRIME CONTROL AND CRIME PREVENTION – SLOVENIAN PERSPECTIVES

LJUBLJANA, 2009

Gorazd Meško and Helmut Kury (eds.) CRIME POLICY, CRIME CONTROL AND CRIME PREVENTION – SLOVENIAN PERSPECTIVES

Peer review: Charles B. Fields and Richard Wortley Technical editing: Katja Eman Faculty of Criminal Justice and Security, University of Maribor Design and threshold: TIPOGRAFIJA, d.o.o. Illustrations on a cover page: Philip Spence, Fellow of Wolfson College, Cambridge, UK Copyright © Faculty of Criminal Justice and Security, University of Maribor, Slovenia, 2009. Published by TIPOGRAFIJA

CIP - Kataložni zapis o publikaciji Narodna in univerzitetna knjižnica, Ljubljana 343.9(497.4)(082) CRIME policy, crime control and crime prevention - Slovenian perspectives / Gorazd Meško and Helmut Kury (eds.). - Ljubljana : Tipografija, 2009 ISBN 978-961-91261-4-1 1. Meško, Gorazd 247149824

This publication is financially supported by the FP6 CRIMPREV project of the European Commission, headed by the CNRS, Paris, France. No. of contract 028300 and internal research fund of the Faculty of Criminal Justice and Security, University of Maribor, Slovenia.

CONTENTS

Gorazd Meško and Helmut Kury On Crime Policy, Crime Control and Crime Prevention – Slovenian Perspectives ............................................................................

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Part I

Reflections on Crime Control Policy and Crime Control and Prevention Gorazd Meško Transfer of Crime Control Ideas – Introductory Reflections .........

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Alenka Šelih General Trends of Crime Policy in Europe and Slovenia ..................

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Zoran Kanduč On Various Aspects of Prevention in the Post-Modern Society ...

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Nina Peršak Contemporary Crime Prevention: Some Popular Myths and Conceptual Contradictions ..................

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Part II

Prevention of Specific Crimes and Alternative Approaches in Crime Prevention Darja Zorc-Maver Youth Unemployment Management as a Form of Social Prevention ..................................................................................... 123 Mitja Krajnčan Prevention in Elementary School ............................................................ 139

Dragan Petrovec and Mojca Plesničar Perception of Female Criminality through Sentencing .................... 165 Katja Filipčič Community Service – New Method of Correction of Juvenile Offenders in Slovenia ........................................................... 203 Danijela Frangež, Anton Dvoršek Situational Prevention of Child Sexual Abuse .................................... 231 Bojan Dobovšek Prevention of Corruption in Practice – Integrity Plans .................... 253 Indexes Author index .................................................................................................... 283 Subject index ................................................................................................... 287

On Crime Policy, Crime Control and Crime Prevention – Slovenian Perspectives Gorazd Meško and Helmut Kury

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Crime control and prevention have become more and more an important topic in Western criminology and crime control policy in the last decades. Crime and especially fear of crime got an important political subject. Since the second half of the 1960s empirical social science methodology has got an increasing influence on criminological research, the first dark number/ victim surveys are carried out (Ennis, 1967) and began to “measure” not only victimizations or the dark number but also attitudes to punishment and the role of the criminal justice agencies, as well as fear of crime and fear of victimization. Fear of crime has been an important topic, not just for people but also for politicians. Politicians have learnt that crime and especially fear of crime is also helpful to follow their own interests: to be elected again. Results of the surveys showed people’s perception of crime and their ideas how to curb crime. Their prevailing answer has been: …more severe punishment. It seemed that the “solution” was an easy one and the logic hidden in their beliefs was: “More severe punishment leads to less crime.” Give people what they want to have - more punishment, harsher laws and more severe crime control (Lee, 2001) and problems will be “solved”... It is easy and cheap to make the laws harsher but consequences of such policies lead to the “unintended consequences”: a higher incarceration rate, and three strikes and you are out mentality. This consequence can be seen very clear in the country of the beginning of this development: USA. Here the incarceration rate increased dramatically since the beginning of the 1970s until today, without any substantial effect on the crime rate (Kury, Brandenstein & Yoshida, 2009a). More sophisticated analyses and especially measurement of the variables like “fear of crime” and “punitiveness” the last years showed that the concepts are relatively unclear, that fear of crime very often is not only fear of crime but “fear of risk”, that we measure a mixture of different “fears” and we call it summarizing “fear of crime” (Sessar, 2006). New methodological more accurate surveys showed that in early surveys and also until today fear of crime is regularly overestimated (see, e.g., Farrall, Bannister, Ditton & Gilchrist, 1997; Kury et al., 2004a; Kury & Obergfell-Fuchs, 2008a). The same could be shown for the punitiveness. A more precise measurement of the concept of punitive orientation (on an individual and institutional levels) (Kury & Obergfell-Fuchs, 2008b). Punitiveness is a very unclear concept (Kury et al., 2009b). Mathews (2005: 178) speaks about “the

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myth of punitiveness” and points out: “Although the term “punitiveness” is widely used in the literature there is little effort to define or deconstruct it. The consequence is that punitiveness remains a “thin” and undertheorised concept. Punitiveness has different dimensions which are not separated in discussion regularly so very often it is unclear about which parts of the concept one is speaking (Kury et al., 2004b; see also Kury & Ferdinand, 2008). Since the beginning of the 1990s “Crime Prevention” has became a topic of great interest for criminologists, policy makers and criminal justice experts in Western European countries. An increasing discussion about crime prevention, repression and responses to fear of crime led to simple solutions for crime, criminality and fear of crime, and people friendly crime prevention. Some of these ideologies have impacted Slovenian criminology, crime control policy and practice of social control. Nevertlehess, Slovenia has quite a tradition of criminological research based on principles of humanism and respect of one’s dignity. Criminological research on crime control and crime prevention started in the 1930 with texts of Maklecov and the first Slovenian book on criminology “Introduction to Criminology “has a subtitle “With a Special Attention on Crime Control Policy” (Maklecov, 1947). In the 1960s, Slovenian criminologists critically wrote about crime control policy and defender an idea that crime control and especially crime prevention serve to the progress of a nation (Bavcon, 1968). Bavcon (1968) reflected upon the need for a coordinated action in crime prevention, revisions of criminal offences and punishment, preventative plans, non-custodial punishment, and the need for a scientific research in the field of crime control and prevention. Every decade up to the mid 1990s was characterised with progressive research on crime control and prevention and resulted in a humane and permissive treatment of offenders, community sanctions, local restorative justice councils (from the 1960s to the end of the 1980s), treatment of juvenile delinquents, responses to domestic violence, violence in school and children’s rights, and situational crime prevention in supermarkets, etc. In the mid-1990s, the Slovenian government decided to start preparations for a new national crime prevention and control programme based on democratic principles, the rule of law and human rights. Bavcon (1995) and associates prepared a literature review on crime prevention in a global context and studied closely all prevailing methods of crime prevention. This research

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served as an attempt for knowledge or better said research based policy making. Jager (1999) has critically assessed principles of policy making and crime control in Slovenia. Theory and practice did not go hand in hand and criminological knowledge on crime prevention became internationalised and transfer of prevailing western ideas was more and more present in reflections in discussions of Slovenian criminologists. The Faculty of Criminal Justice and Security, Univeristy of Maribor in cooperation with the Slovenian society of criminal law and criminology organised the first national criminological conference in 2002. In 2003, the conference was co-organised by the Institute of Criminology at the Faculty of Law in Ljubljana and the Slovenian society of criminal law and criminology. The 2002 conference dealt with the state of the art of Slovenian criminology research (Meško, 2002). The 2003 conference was a good attempt to discuss crime prevention and crime control issues. Discussions on crime prevention from the second national criminology conference were published in a book entitled Crime prevention – theory, practice and dilemmas (Meško, 2004). Both conferences served as a meeting point of researchers, practitioners and policy makers. Despite intensive efforts of criminologists to contribute to the development of the national programme, the government decided to employ a working group of CJ practitioners (ex police chiefs) who prepared a draft national crime prevention and control programme which was adopted by the Slovenian Parliament in spring 2007. This experience could be understood in two different ways. First, criminologists need more knowledge about policy making and presenting their ideas more clearly in a certain social context and express more willingness to cooperate with members of other professional communities. Second, practitioners were much more goal oriented and have less considerations about often paradoxical crime preventative initiatives. Nevertheless, Slovenian criminologists studied closely a huge amount of literature and studied quite a number of crime prevention initiatives which served as a basic material for the new national crime prevention and control programme. Comparing this experience with Bavcon (1968) and Šelih (2005), Slovenian criminology lost its position in knowledge based and participatory policy making process as it was the case before 1991. The period of Slovenian criminology in the last decade could be called retreat from administrative orientation towards critical and public criminology. Trends in crime prevention and control show that the Slovenian society is becoming harsher on crime and criminals which can be understood as a

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withdrawal from the old orientation in these fields. We are also facing a new phenomenon – a public opinion led policy making which is hugely supported by the media – and the exclusion of expertise in crucial crime prevention and control issues. This phenomenon requires from criminologists to become able to confront with other public and be convincing in expressing their ideas. It is also important to know that there is not only one criminological opinion about a certain matter. Therefore, we can talk about criminologies instead of one criminological thought only which is often expected by those who wanted to have clear and simple answers on questions about complex problems. The intense development and discussions on crime prevention took place especially in western industrialized countries, like USA, Great Britain, France, Germany and Scandinavian countries. After the collapse of the Soviet Union end of the 1980s, the independence of the former Soviet countries and the opening of the boarders to these countries they are more and more influenced by the development in western industrialized countries. With the separation of Slovenia from former Yugoslavia in 1991, Slovenia opened the boarders to the West. It is a small country but has nevertheless a very active and innovative development in criminology even before 1991. An intensive inclusion of Slovenian criminological thought to international criminology is proved by this volume. The papers present (1) Slovenian perspectives on crime control and (2) prevention ideology and prevention of specific criminal offences. This volume comprises reflections of Slovenian criminologists on global and national crime control and crime prevention issues previously presented on Slovene national criminology conferences and publications in Slovenian language. It is well known that a national criminology does not belong to an international criminology if papers, articles, book chapters or books are not published in English or national criminologists do not attend international conferences, seminars, and research projects. Therefore, the effort of authors and editors of this volume is to introduce Slovenian reflections on crime, crime control and prevention to international audience.

Part I – Reflections on Crime Control Policy and Prevention Gorazd Meško discusses “Crime control policies transfer” and the role of criminology and criminologists in crime control policy. According to him there are different cultures of crime control and he discusses the question

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if a unification of control policies on EU-level is the best way. What can criminologists do to influence the crime policy – a crucial question. Are criminologists too reluctant in having influence on a more rational crime policy? (see also: Indermaur, 2008; 2009). The United States is the biggest exporter of crime prevention and politics, but their influence is shrinking, it is more and more obvious which problems their crime policy has. These days California has no more enough money to pay for the costs of the state, also the huge number of prisoners so thousands of them are planned to be released. “Americanization of Social Control” is obviously not the best way to deal with problems of crime and security. Incarceration does not really help. Crime very often is presented as “the” problem of society, but only one part of crime, so called “street crime”, is discussed, regularly not political crime or economic crime.

Alenka Šelih presents “General trends of crime policy in Europe and Slovenia”. Crime policy changed in the last decades strongly, especially in Slovenia and other former Soviet countries. More and more also the victims of crime are seen – and have influence on crime policy also. Crime policy has also strong economic aspects on the background of “privatisation of security” people spend a lot of money for their crime prevention measures. Crime is more and more a political topic, it was in all times a threat for a society. Countries present new measures to fight crime, sometimes by questioning the human rights, for example also in USA. If we look on inner security as the most important point Thomas Jefferson, the 3rd USPresident and author of the Declaration of Independence, is right when he finds out: “A society that will trade a little liberty for a little order will lose both, and deserve neither”. Zoran Kanduč discusses “Various aspects of prevention in the post-modern society”. The author proofs what is really new in prevention. Prevention is mostly seen positive and always good. Crime is a construct and which part of this construct we want to prevent, a very important question. What is seen as crime in crime prevention. “What is the difference between organized crime and other, legal forms of organized capital?” Is it correct if in these times the government helps “bad banks” to solve their financial problems by public money and the same time the bank directors get a huge “Salary” although they might be responsible for the collapse of their banks. Crime prevention meanwhile is not only a “political” but also an economic Business. “Fearful” people are willing to spend

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money or to vote for sharp politicians for their safety. “A society of risks is … (also) a society of prevention or a conglomeration of “preventive individuals”…” The preventive function of penal law is discussed critically. Can sanctions really solve the problem? “In the post-modern society, prison is in again. Prison works!” Is there a development from “Nothing works to prison works”? Soering (2004) points out in his book that imprisonment is “an expensive way to make bad people worse”. The author emphasizes correctly: “… there is no convincing evidence available that a decrease in criminality unambiguously, consistently, or automatically follows a stricter punishment policy…” Shouldn’t we more prevent the prevention?

Nina Peršak deals with the important question of “myths and conceptual contradictions” of contemporary crime prevention. Does prevention distinguish from the “cure” that is the punishment, is prevention less intrusive than punishment. In USA and Great Britain more and more the question rises if the Human Rights are violated by crime preventive measures. There are also developments in Slovenia which might be seen critically, for example the so called Anti Alcohol Act or the Minor Offence Act. These examples show a repressive tendency. The author discusses the development in USA and Great Britain in accordance with expectations that everybody wants to be as “safe” as possible and we never “safe” enough. The author also discusses critically a “shifting responsibility” for crime prevention and the “community myth”. Communities get more and more responsible for inner security, the state withdraws the same time (see Garland, 2001). The expectation that communities can prevent crime very often are a myth, often they are not the solution but the problem itself (Dölling et al., 2003). The public have the “knowledge” that harsh laws prevent crime, especially weak states refer to harsh punishment. Crime prevention has to do with factors like reducing of poverty or more education for everybody.

Part II - Specific Prevention Programmes and Alternative Approaches in Crime Prevention Darja Zorc-Maver discusses a very actual problem: “Youth unemployment as a form of social prevention”. Unemployment of juveniles has to with formation of identity of people. To have no job creates a risky situation, is

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a stress. The problem is if we should see employment in a new way. The process of inclusion in a society is a difficult process, especially today.

Mitja Krajnčan gives an overview of important aspects of “Prevention in elementary school”. Social pedagogic conceptualisations of prevention in elementary school and different models of prevention are presented. An important point is a good cooperation with the parents. The different concepts presented are discussed on a practical level. Dragan Petrovec and Mojca Plesničar present information about a topic neglected in criminology: “Perception of female criminality through sentencing”. They are right if they point out that sentencing is the “illegitimate child of the criminal law” (see Kury et al., 2009a). The education of penal lawyers in sentencing is in most countries, also in Germany for example, very weak. They learn sentencing mostly not at universities but in practice more or less. The authors present very interesting results about sentencing of female offenders who committed homicide in Slovenia. The role of sentencing guidelines, as the American system of corrections has utilized them, are discussed in this paper. How specific is sentencing in cases of female offenders. Nearly all criminological studies show clear differences in sentencing between cases of male and female offenders. Women are mostly punished more leniently than men. If female offenders differ from typical “female behaviour” they risk to be punished more severely. The authors demonstrate differences on the level of single cases. Katja Filipčič discusses “community service” as a “new method of correction of juvenile offenders in Slovenia”. 1995 Community Service was introduced in cases of juvenile offenders in Slovenia. 10 years later it is according the own research not yet a common practice in courts. The author presents research results about the practice of Community Service. Danijela Frangež and Anton Dvoršek present a literature review of an actual problem in Western societies: “Situational prevention of the sexual abuse of children”. The authors present a concept of situational crime prevention in cases of sexual abuse of children. According to them especially sexual misuse can be prevented effectively by situational measures. Opportunity structures in families play an important role in cases of sexual

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misuse of children. In public spaces more control can help to prevent child misuse.

Bojan Dobovšek discusses a crucial problem of contemporary societiescorruption. Corruption is an old phenomenon, for example also the Romans had experience with it (Badian, 1997). Beside terrorism and organized crime corruption is the biggest problem of a society. The chance to find specific corrupt acts is low so offenders are more or less safe. Repression here has nearly no effect. The author especially presents prevention measures on the basis of integrity plans. Because repression is not effective, prevention is more important. In cases of corruption the old rule is valid: “It is better to prevent than it is to cure”. According to the author “civil society and the media are by far the best controllers of a government. Corruption has little chance to succeed in a corruption sensitive society…” Let us conclude this introduction with thoughts of Ljubo Bavcon (2004), a Slovenian criminologist and lawyer, who in Introductory chapter of the Crime Prevention – Theory, Practice and Dilemmas (Meško, 2004) emphasised that bright and holy ends do not justify all means and some basic principles should be applied in crime prevention: the rule of law, respect of one’s dignity and human rights. The authors of the texts in this volume have had these principles in their minds when reflected upon crime prevention and crime control issues. We believe that the volume presents a broad variety of papers about important topics of modern criminology and shows excellent criminological discussions on crime, crime control and crime prevention by the Slovenian authors. We wish to thank all the authors for their contributions to this volume, Katja Eman for technical editing of the volume and our dear colleagues Professor Charles B. Fields and Professor Richard Wortley for reviewing the texts.

Ljubljana, Slovenia - Freiburg, Germany; June 2009 Gorazd Meško and Helmut Kury Editors

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REFERENCES Badian, E. (1997). Zöllner und Sünder. Unternehmer im Dienst der Römischen Republik. Darmstadt: Wissenschaftliche Buchgesellschaft. Bavcon, L. (1968) Kriminalna politika v sodobni družbi. Revija za kriminalistiko in kriminologijo, XIX (4), 178-193. Bavcon, L. (2004). “Svetli in plemeniti” cilji ne upravičujejo vseh sredstev. In: Meško, G. (Ed.). Preprečevanje kriminalitete: teorija, praksa in dileme (pp. 15-18). Ljubljana: Inštitut za kriminologijo pri Pravni fakulteti. Bavcon, L., Brinc, F., Jager, M., Kanduč, Z., Pavlović, Z., Maver, D., Repe, B. (1995). Izhodišča kriminalne politike v Republiki Sloveniji. Ljubljana: Inštitut za kriminologijo pri Pravni fakulteti. Dölling, D., Feltes, T., Heinz, W., Kury, H. (Eds.) (2003). Kommunale Kriminalprävention – Analysen und Perspektiven – Ergebnisse der Begleitforschung zu den Pilotprojekten in Baden-Württemberg. Holzkirchen/Obb.: Felix Verlag. Ennis, P.H. (1967). Criminal Victimization in the United States. Washington, D.C.: Government Printing Office. Farrall, S., Bannister, J., Ditton, J., Gilchrist, E. (1997). Questioning the Measurement of the‚ Fear of Crime’. British Journal of Criminology, 37, 658-679. Garland, D. (2001). The Culture of Control. Crime and Social Order in Contemporary Society. Oxford: University of Oxford Press. Indermaur, D. (2008). Reducing Punitiveness: Strategies for Engendering a more Informed Crime Policy. In: Kury, H., Ferdinand, T. (Eds.). International Perspectives on Punitivity (209-226). Bochum: Universitätsverlag Brockmeyer. Indermaur, D. (2009). What Can We do to Engender a More Rational and Less Punitive Crime Policy? European Journal on Criminal Policy and Research, 15 (1-2), 181-200. Jager, M. (1999). O sedanjem načinu snovanja kriminalitetne politike v Republiki Sloveniji. Revija za kriminalistiko in kriminologijo, 50 (4), 318-323. Kury, H., Brandenstein, M., Obergfell-Fuchs, J. (2009b). Dimensions of Punitiveness in Germany. European Journal on Criminal Policy and Research, 15 (1-2), 63-81. Kury, H., Brandenstein, M., Yoshida, T. (2009a). Kriminalpräventive Wirksamkeit härterer Sanktionen – Zur neuen Punitivität im Ausland (USA, Finnland und Japan). Zeitschrift für die Gesamte Strafrechtswissenschaft, 121, 190-238. Kury, H., Ferdinand, T. (2008) (Eds.). International Perspectives on Punitivity. Bochum: Universitätsverlag Brockmeyer. Kury, H., Kania, H., Obergfell-Fuchs, J. (2004b). Worüber sprechen wir, wenn wir über Punitivität sprechen? Versuch einer konzeptionellen und empirischen Begriffsbestimmung. Kriminologisches Journal, 8 (36), 51-88. Kury, H., Lichtblau, A., Neumaier, A., Obergfell-Fuchs, J. (2004a). Zur Validität der Erfassung von Kriminalitätsfurcht. Soziale Probleme, 15, 141-165. Kury, H., Obergfell-Fuchs, J. (2008a). Measuring the Fear of Crime. How Valid are the Results? In: Kury, H. (Ed.). Fear of Crime – Punitivity. New Developments in Theory and Research (pp. 53-84). Bochum: Universitätsverlag Brockmeyer.

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Kury, H., Obergfell-Fuchs, J. (2008b). Methodological Problems in Measuring Attitudes to Punishment (Punitivity). In: Kury, H. (Ed.). Fear of Crime – Punitivity. New Developments in Theory and Research (pp. 277-303). Bochum: Universitätsverlag Brockmeyer. Lee, M. (2001). The Genesis of “Fear of Crime”. Theoretical Criminology, 5, 467-485. Maklecov, A. (1947). Uvod v kriminologijo: s posebnim ozirom na kriminalno politiko. Del 1, Obči del. Ljubljana, Pravna fakulteta. Mathews, R. (2005). The Myth of Punitiveness. Theoretical Criminology, 9, 175-201. Meško, G. (1996). Nekatere strategije kriminalne prevencije (Some Strategies of Crime Prevention). Revija za kriminalistiko in kriminologijo, 47 (3), 241-254. Meško, G. (1998). Strategije preprečevanja kriminalitete v zahodnem svetu (Crime Prevention in the Western World). Socialna pedagogika, 2 (4), 37-55. Meško, G. (2000). Pogledi na preprečevanje kriminalitete v pozno modernih družbah (Aspects of Crime Prevention in Post-modern Societies). Teorija in praksa, 37 (4), 716-727. Meško, G. (2002). Osnove preprečevanja kriminalitete (Basics of Crime Prevention). Ljubljana: Visoka policijsko-varnostna šola. Meško, G. (2004). Preprečevanje kriminalitete: teorija, praksa in dileme (Crime Prevention – Theory, Practice and Dilemmas). Ljubljana: Inštitut za kriminologijo pri Pravni fakulteti. Meško, G., Frangež, D., Dvoršek, A. (2008). Status Report Slovenia - Current endeavours in crime prevention training in Slovenia. In: Coester, M., Marks, E., Meyer, A. (Eds.). Qualification in Crime Prevention: Status Reports from Various European Countries (pp. 17-39). Mönchengladbach: Forum Verlag Godesberg. Meško, G., Nalla, M.K., Sotlar, A. (2005). Cooperation on Police and Private Security Officers in Crime Prevention in Slovenia. In: Marks, E., Meyer, A., Linssen, R. (Eds.). Quality in Crime Prevention (pp. 133-143). Norderstedt: Books on Demand. Sessar, K. (2006). Warum Man Abends Nicht das Haus Verlässt. Kriminologische Ergebnisse aus einem Europäischen Forschungsprojekt zu Unsicherheiten in Großstädten. In: Obergfell-Fuchs, J., Brandenstein, M. (Eds.), Nationale und Internationale Entwicklungen in der Kriminologie. Festschrift für Helmut Kury zum 65. Geburtstag (pp. 265-293). Frankfurt/M.: Verlag für Polizeiwissenschaft. Soering, J. (2004). An Expensive Way to make Bad People Worse. New York: Lantern Books. Šelih, A. (2005). Inštitut za kriminologijo pri Pravni fakulteti v Ljubljani in njegovih petdeset let. In: Kanduč, Z. (Ed.). Kriminaliteta, družbeno nadzorstvo in postmodernizacijski procesi (pp. 11-24). Ljubljana: Inštitut za kriminologijo pri Pravni fakulteti.

PART I Reflections on Crime Control Policy and Crime Control and Prevention

Transfer of Crime Control Ideas – Introductory Reflections Gorazd Meško

Transfer of Crime Control Ideas – Introductory Reflections

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INTRODUCTION

The discussions on crime control policies include the comparisons of known admissible forms of control, control practices, and ideas and ideologies between different countries. Those questions are not new, but they reappear again and again, since the changing of social conditions requires seeking new content and solutions at an organisational level. Contemporary discussions on transfer of ideas in the field of crime control policy emphasise the re-interpretation of western models (at least in the European culture) more than seeking owned original solutions for the problem of criminality and other numerous problems (Castells, 2001). Strong evidence for such assertion is the latest demand regarding harmonisation and unification between member states of the European Union, and candidates for new members. However, the harmonisation and unification in these cases are not as ideal as it first seems. Things get more complicated when one makes analysis of local and governmental social control policy practices (Meško, 2002; 2004) and their eventual effects. In 2009, the EU and their members still hadn’t unified or integrated their crime control policies (or criminality prevention programmes). There is no common European Union crime control and crime prevention policy due to the differing legal and social control traditions among the various nations. While it is surely a challenge for the future, it does not mean that some standards, legislation and ideas do not exist. The language and social control practices are becoming very similar due to intensive transfer of information (Garland, 2001). This refers to international standards, legislation, and intellectual streams. Apparently simple mechanisms, orientations, and results of crime control policy ideastransfer are, in fact, complicated. Their verification with mere empirical methods or theoretical discussion about them is not as easy as expected from practical people, orientated to instant effects. In the comparative studies of politics one may find some general guidelines that emphasises the transfer of crime policies (Stone, 1999), diversity of policies (Rose, 1993), similarity of policies (Bennett, 1991) and dispersion of policies (Eyestone, 1977). The generally known fact is that, at the most, ten out of each hundred ideas presented continue to be, at least, partially realised in practice. It is similar with ideas in the field of social control (Newburn & Sparks, 2004: 3).

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A crime policy transferring refers to knowledge on the comprehension of criminality, responses on criminality, and separate policies and institutions (domestic and foreign). The source, circumstances, legislation and socioeconomic context of a certain idea, policy or practice are very important. We must be aware of the fact whether such an idea was originated by the authorities, civil society, as the result of efforts of criminology experts, or in common cooperation by all of these. It is very common that such discussions are in the domain of intellectual and administrative elites, reflecting the wishes of the leading political structures (Meško, 2002). Changes in criminality response policies may appear in cases when society detects a significant increase or decrease of criminality or when people in general become more frightened or threatened by criminality. All this, of course, requires thorough analyses of circumstances prior to any change in crime policy. The key question for the transfer of crime policies is: who actually generates the transfer of ideas, policies and practices. As stated by Rogers (1995: 7), innovations do not inherently sell themselves. This “sale” of ideas involves numerous agencies, institutions, governments, lobbies, and “think tanks”, and also international corporations, entrepreneurs, non-governmental organizations, international non-governmental organization networks, private security companies, and different specialists. What exactly is transferred in the field of crime control policies, or what kind of transfers do we know and how do are they reflected in certain social practices? There are numerous traps in this field, relating to understanding of foreign concepts, context, and social conditioning of certain policies. The policies, effective in a certain socio-political or geographical location, are not necessarily applicable somewhere else. Even more importantly, they might become contra-productive. We must consider the history, traditions, and legal system. Therefore, comparative studies are indispensable if we want to avoid such pitfalls. Garland (2001) and Young (1999) have ascertained that, in a topographical sense, the United States of America are the greatest exporter of ideas and practices in the field of social control. Here we must also consider the influence of British criminologists, due to the very intensive transfer of ideas between Great Britain and the USA and their mutual influence in the design of policies, ideologies, and practices of social control.

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The awareness that there is always a possibility of misunderstanding, wrong interpretation, exaggeration, or excessive simplification in the transfer of crime-control policies, from one to another environment, is very important. Another important question is efficiency and success of crime-control policies, strategies and practices. Viewed from a black and white perspective, such transfers might be a success, or failure, but crime policies include numerous invisible effects that cannot be instantly detected or even measured. There is a similar problem in the execution of crime prevention programmes with simultaneous evaluations. We can speak about different types of evaluations here, among which are the self-evaluation of the programme performers (usually with positive results), evaluation of the client, who ordered the project (also, usually positive) and scientific, independent evaluation (which usually gives a negative results). There are numerous problems regarding the measurement of the success in implementing crime prevention programmes, related to programme execution, bad implementation, and abandoning the execution of the programmes (Meško, 2007).

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COMPARATIVE CRIMINOLOGY AND ITS CHALLENGES

The transfer of ideas on crime control policies is also related to problems of comparative criminology which has a lot of potential here since, somewhat different to partial dealing of certain criminological problems, it requires consistent knowledge of compared contents and qualitative interpretation of similarities and differences between problems, legal cultures, priorities, socially elite networks, sensitivity of the public, among others. Nelken (2000) believes that comparative criminology is still in its embryonic phase of development and, therefore, consequently unfulfilled. Comparative criminology is facing the challenges of multi-cultural understanding of the concepts, ideas, policies, and practices. Comparative research is facing significant comprehension, interpretative, and ethical challenges; the researchers, or the research teams, must try to assume a neutral position and ignore ideological “mental patterns” of their local and individual experiences at all levels of research and theorising (Giddens, 1991). Exclusive distinguishing between European social control types on Anglo-Saxon (Great Britain) and continental Europe, as a consequence of transfer (in both directions), of the socio-control ideas in the past, may lead to over-strict separation of both types and to ignoring the complexity of socio-control practices.

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We face similar problems when comparing “countries in transition” (not only East European ones) with western “economically well-developed societies”. Comparative studies have shown that institutions and practices in transitional countries adopted the names and concepts characteristic of the United States of America and Great Britain. Despite identical names there was a significant difference in the content of those institutions at organizational and functional levels. The conceptual problems appeared also in the field of crime prevention activities and understanding of fundamental concepts, such as: community and safety, crime prevention, and assurance of public protection, which shows the sensitive nature of differences between certain ideas (an especially important issue is an understanding of those differences in social practice) and their implication (Crawford, 2000; Melossi & Selmini, 2000). The globalisation of social control is also detectable in the “sale of ideas” about efficient methods, strategies, and philosophies in the field (especially) of proactive response on criminality. Some American criminologists supported this idea at the round-table on police work in community and assurance of safety at the 2004 Annual Conference of the European Society of Criminology in Amsterdam. It was said that police work in the community is the best selling product of American criminology in the last twenty years but, unfortunately, not consistently tested in its actual effects. It was asked whether any decent, law-obeying citizen would oppose police work containing a friendly approach of the police supporting citizens, reassuring them and fighting against criminals who threaten our society. The analyses of police work in the community showed that police work in the community was somewhat understood as police work in communities with zero tolerance and that that community was comprehended merely as a geographical term; the police in such a community operated, above all, with repressive activities (Meško & Lobnikar, 2005a; 2005b). Lately, we have been witnessing globalisation of zero tolerance in protection assurance, as the consequence of terrorism and, the so-called culture of fear (meaning both fear of possible violence, and ruling with the help of bullying and intimidation) and the fact that the American penal policy is penetrating Europe (Wacquant, 1999). It is similar with fear of criminality, which turned to fear extinction, due to Al Gore’s efforts for ecological consciousness. The fear of crime becomes less relevant in comparison with the possibility of the extinction of the human species. This creates new rituals, panic, anarchy, and also creative social movements.

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The response to criminality contains the use of technologies, technical language, and rhetoric, especially slogans. The contribution of criminology (Zedner, 2003) lay not only in empirical research and theorising, but also in vocabulary that enables debates and discussions on criminology and the legal penalty system. Ideas, language, and conceptual frames, developed by criminologists sometimes have a significant influence on politicians and creators of policies. Even more, they may affect international socio-control streams and exert their influence on persons, authorised for formalisation and execution of crime control policies. Jenkins (2001) ascertains that “Americanization of social control” would be a more appropriate term instead of “globalisation”, and that we should discuss American hegemony in criminology and studies of criminal justice with extreme influence in different lobbies and associations worldwide. The influence of American culture of response to criminality is comparable with Hollywood movie production that has the most powerful influence on the global movie-market and plays an important role on the American global “export of ideas” and the creation of social reality in many fields of social life. The following discussion present several cases of questioning “universal” models of response to criminality that are very attractive and interesting at first sight, but may cause cultural conflicts in social control on their implementation; those cases represent a similar response as the slow-food movement in response to the fast food industry (“slow-food” vs. “fastfood”). Therefore, comparative criminology must take in consideration universalisms and also particularities of certain societies when discussing differences and similarities in crime control issues.

3

TRANSFER OF NEW IDEAS OR JUST A REVIVAL AND MODIFICATIONS OF GOOD OLD PRACTICES?

The extent and method of including the policy in the criminal justice system varies from country to country. Social control cultures depend on numerous social, cultural, political, and economical factors; and social context. The readiness to accept and adapt foreign models to domestic practice is very different in different societies. Therefore, the ideas, prac-

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tices and policies travel amongst different cultures with different speed and intensity and acquire different final designs. The understanding of similarity and difference of different criminal justice and socio-control systems is an important challenge for criminologists. The political culture should be understood as the recognizable sample of political philosophy that contains the solutions for organisation of administration, and political life, in certain societies. Political cultures create frames for political change and are an inseparable part of governments and other groups. Mere translation and direct transfer of foreign models are impossible, according to Melossi (2000: 144). Translated and transferred models acquired in a new cultural environment a new meaning and a symbolism of the new milieu. The cultures, of course, are not tightly sealed, which enables transfer of practices, policies, and rhetoric, and their testing and development in new surroundings. Apparent similarities of models in new surroundings may be a mere illusion – packing old practices into a new, seemingly more democratic appearance, may occur instead. The discussions on penalization or penal orientation in different cultures may express a different discourse regarding the quality content of discussion. Penalization may be understood in the sense of cultural meaning or exclusively, as an instrument to achieve a certain objective. Therefore, the question appears, what is the meaning of penalization in different social environments? Social control practices may be viewed in the context of development of capitalism, the social control industry, investment of the government in control activities and, also, in the context of the private sector and civil society. The role of the civil society is actually very limited despite some assertions on its active influence on the level of social control rhetoric. Newburn and Sparks (2004) believe that we must make a distinction between liberal economies and coordinated market systems. The weakness of liberal economies is that they create very favourable conditions for the criminality and exclusive social control policies and practices. Coordinated market systems are more orientated towards cooperation and seeking social peace. Beside comparison of social control systems it is absolutely necessary to also compare the politically-economical characteristics of societies where certain policies, practices, and rhetoric, was originated and the characteristics of societies where policies, practices, and rhetoric, are transferred.

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When studying the political cultures in exchange, and spreading ideas on social control, it is extremely important that we do not dictate speed and excessive rationality, or neglect the specificity of social control practices in a certain cultural environment. This, in practice, may appear as intolerance and disrespect of cultures to where ideas are transferred. In the mid 1990s, the Slovene Police reinvented community policing. In 1991, when Slovenia became an independent country, old practices of social control (even those which had been proven to be in accordance with democratic values) were abandoned. The reinvention of community policing was based on two models, the American and the British. Both countries supported a young democracy in its development and social control practices were also the case. Meško and Klemenčič (2007) emphasise this reinvention which brought new values in seemingly old policing practices. Smith (2007) quoted Meško and Klemenčič (2007: 35):

“Community policing” existed in Slovenia prior to 1991. Its underlying principle was however as much or more about social and political control in all spheres of community as about safety, security and problem solving. It was an endeavour of “big brothers and sisters” controlling “little brothers and sisters”. Because of this experience, contemporary community policing is not perhaps as popular as it could and should be; coupled with the historical experience it can even produce negative results.” An often presented slogan, not only in criminology, crime control and especially in crime prevention is: “What works, what doesn’t and what is promising?” I have borrowed this from Sherman’s analysis (Sherman, Reuter, Eck, MacKenzie & Gottfredson, 1997) of crime prevention. In addition to those questions additional questions should be posed: “For whom, in what circumstances and at that price?”

4

TRANSFER OF IDEAS AND PROBLEMS OF CONTEXTUALISATION

Karstedt (2004) speaks about anglophiles in France (especially Voltaire) who was convinced that British institutions significantly influenced the discussions on human rights and development of political institutions in the

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continental part of Europe. According to Karstedt, Great Britain is the greatest exporter of institutional models, not only the colonial one but also a number of other models. Marx and many other philosophers admired British models and tried to transfer their mirror images into their own cultural environments. The Olympic movement, started by Baron de Coubertin, is a perfect example. De Coubertin got the idea for the Olympic movement from a mixture of ideas about English gentlemen (who play every sport in accordance with the rules of fair-play), his own education (especially his cosmopolitism), and French nationalism. Lately, the idea has been completed with the “McDonaldisation” (e.g. by substituting the role of the Great Britain, as the leading European force, with the global Americanization) and has acquired a completely new image. The general idea of the Olympic Games remains the same only at a fundamental level; what really counts today is success – in accordance with the principle “the winner takes all” (Karstedt, 2004: 17; Buruma, 2000). The British models were offered to numerous countries all over the world, but they were not always successful since in those environments there was already certain accumulation of knowledge, research, and numerous intellectual projects in many areas of social life. Such models may lose their form during their journey from Great Britain to a destination country, and there is always a possibility that they are not in compliance with the country’s structure, and that they may cause a cultural conflict in transfer of ideas. There is also a possibility that such ideas never reach the target population. In present times the designers of policies have access to much more information since the stream of ideas has become very quick and intensive. Foreign policies and models are not directly transferable. Before their introduction, they should be thoroughly considered and carefully translated into the new environment. Here, we must pay especial attention to the effect, called “lost in translation”. We have to avoid unprofessional translation of the important documents that describes structure, policies, and different practices. Moreover, when transferring American policies into other environments, we should always consider the fact that there is a great number of policies and practices in the United States, and that it is difficult to find a common denominator. This is similar to a statistical analysis when comparing two groups, where the heterogeneity inside one group is larger than between two groups. New strategies of crime prevention, methods of proceedings against criminals, treatment of victims, and response to criminal activities, interventions against minors and adult criminals, are quickly circulating amongst

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the epistemological society of criminologists, crime justice experts, police experts, and practitioners. Cohen (1982) warned criminologists about the problem regarding transfer of crime policies and practices into new cultural environments, and forcing third world countries, into contemporary social control practices of western civilization. Such transfers of social control ideas lead only to increased repression, rigorous crime policies, and to enlargement of the population of prisoners. Naivety and insufficient knowledge regarding the specific culture were Cohen’s reproaches to the exporters of social control ideas. He also emphasised the excessive generalization of criminological theories that mostly originated in the developed countries of the western civilization. Lacey and Zedner (2000) compared local crime prevention in Great Britain and Germany. They have discovered that Germans tried to introduce the British ideas on local crime prevention and assurance of safety. When experimenting with the new crime prevention ideas, Germans provoked a form of politically-administrative (cultural) conflict, since there is a common belief in Germany that safety and crime prevention is a domain of well trained professionals and not volunteers. The British model of local crime prevention, based on “authoritative communities” (or responsible citizens), acquired in the German decentralised environment completely new forms of a crime prevention partnership that generated the development of completely different institutions to Great Britain. Ideas, policies, and practices are rarely transferred directly from one country to another. An important role in such transfers is played by professional associations, informal networks, cooperation between governments, and supranational institutions, such as Europol. Europe is facing numerous challenges in standardisation and unification of the crime policies and practices (Loader, 2004). The pressure of the United States of America regarding the introduction of American crime response policies in Europe after the terrorist attack in New York on the 11 September 2001 are evident through the operations of the FBI, DEA, and intelligence services. Regarding that, Hebberecht (2007) warns that the structural transformations, mechanisms, social cohesion, gender differences and “European strategies for the reduction of conflicts” must be considered here. Another important fact is that in European countries, this applies especially to former totalitarian countries introducing models, strategies, and practices

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that were already rejected as inefficient, and sometimes even contra-productive in the western world. Another important issue is so called bridging cultures which connect different cultures. Slovenia has been in such a position since the collapse of Yugoslavia. On the one hand, a republic which separated from Yugoslavia, did nod enjoy much sympathy from other Yugoslav republics but on the other hand, it was connected with the Western world and seemed to be a story of success. It has often been used as an example of good legislation, good practices and creative solutions. It is necessary to stress an interesting example of the transfer of legislation on private security or private policing from Slovenia to some other former Yugoslav republics. In 2002, the author spent three months at the Faculty of Criminal Justice Sciences in Sarajevo, Bosnia and Herzegovina, as a visiting professor. In addition to other teaching commitments, was asked to help my Bosnian colleagues to translate Slovenian legislation to their language and introduce them Slovenian experiences in the development of private security (Sotlar & Meško, 2009; Meško, Sotlar & Tominc, 2007; 2008; Meško, Sotlar & Kury, 2007; Nalla, Meško & Sotlar, 2006; Meško, Nalla & Sotlar, 2005; 2004) and discuss possible developments in the future. Slovenia legislation was translated and in a very short time and with minor modifications adopted in the Bosnian Parliament. A role of the Slovenian Chamber of Private Security in organising regional private security conferences had also an important role in the transfer of ideas. Before the Chamber conferences, Anžič (1997; 1998; 1999) and Sotlar (2001) organised four national conferences on private security with international participation, mainly from neighbouring Slavic countries. Those conferences were an attempt to study private security in an inter and multidisciplinary manner as well as the goal of their efforts was making a new law on private security which would follow mainstream ideas in the western world with taking into consideration Slovenian specificities. In addition to the transfer of ideas about legislation, their impact on the development of critical reflection on private security in the republics of former Yugoslavia has been quite significant (Sotlar, 2009; Meško, Cockcroft & Hope, 2009; Gerasimoski, 2009; Sotlar & Meško, 2009; Bakreski & Miloševska, 2009; Spaseski, 2009; Davidović, 2009; Nalla, Manish & Meško, 2009). Another example is a national Crime control and crime prevention programme in Slovenia, adopted by the National Parliament in 2007 (Resolucija o nacionalnem programu preprečevanja in zatiranja kriminalitete za obdob-

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je 2007-2011, 2007). This programme has a long path prom an idea to the adoption in the Parliament and even more challenges are expected in the implementation of the Programme. The beginnings of its preparation go back to the 1990s when the Institute of Criminology prepared a literature review on crime control and crime prevention literature and the Ministry of the Interior invited a group of experts to work on the programme. Since the mid-1990s several groups tried to prepare a comprehensive and feasible programme but in vain. In 2004, a group of former police chiefs took over a preparation of the Programme. A draft programme was ready for the parliamentary discussion in 2006 and adopted in 2007. What was the most typical in this crime control policy making “adventure”? First of all, criminologists and other social scientists were excluded from the preparatory efforts due to their inefficiency and indecisiveness. All previous research and comments of criminologists and other professionals who study crime and deviance were simplified to the maximum. Second, preparation was quite efficient but not connected to the reality of crime problems due to mainly police perspective on crime and criminality. In addition, a third specific of this “quick and dirty” attempt to make an effective and efficient policy was a lack of international comparison even if it was stated that a comparative research of crime control programmes was conducted. This is an example how more than ten years of comparative research and national research on crime, deviance and crime prevention was almost absolutely ignored and in some parts misinterpreted, perhaps due to ignorance or political interests. My comment on the Programme at a national criminology conference in 2007 was: “We are at least having a programme which luckily is not being implemented due to the lack of finances and other priorities of the government! If it would be implemented, we all would be in trouble - suspects, criminals, social control agents and criminologists... and it (the programme) would need an immediate profound fix....” (comment on Minič’s (2007) critical reflection on the National Resolution on Crime Prevention and Crime Control (Meško, Cegnar, Cerar, Gavez & Ulčar, 2007).

5

WHAT IS ACCOMPANYING THE CRIME POLICY?

New practices, strategies, and crime prevention technologies are emerging everywhere. Numerous communities, institutions, and even commercial buildings are using the video surveillance systems. Private police activ-

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ity developed differently in different parts of the world, and the number of private policemen somewhere already exceeds the number of public police forces (Braithwaite, 2000). The ideas about private prisons and electronic monitoring of convicted persons penetrate new environments much slower than other contemporary social control ideas. The private prisons, already generally adopted in Great Britain, is scarcely in the discussion phase in Germany, while some countries still haven’t started to play with the idea. Neighbourhood watch programmes are well established in British practice, while the idea in Germany didn’t receive an actual introduction, especially in former Eastern Germany, where such new practices recall memories of forms of the totalitarian regime under the patronage of the Soviet Union. The collective memory on their totalitarian history is still too strong to accept the contemporary practices of social control since it recalls memories of the times of “total control” (Karstedt, 2004) and similarly in Slovenia (Meško & Klemenčič, 2007). Crime control policies contain more than mere technologies, practices, and strategies. They are, in fact, integrated concepts that appear in a certain institutional environment, legal frameworks, and public culture of crime prevention at national and local levels. Specific values and symbolical context of preventive and repressive practices are as important as the institutional level of those control activities. The problems appear when we translate a certain concept literally, word for word, which leads to difficulties regarding modernization, import, and export, or with other words of translation into the new culture and back to developed western society. The key problem regarding this is in comprehension and implementation of those ideas. Some conceptions and terms sounds attractive in English, while they completely lose their meaning and general message when translated into other languages. Crime control policies have their own terminology; there are certain debates and discussions after implementation of a certain policy which leads to specific rhetoric and use of the specific terminology. Transfer of crime control policies and acceptance of certain concepts is, in practice, implemented with political rhetoric and specific practices. Lacey and Zedner (2000) have ascertained that the idea about crime prevention in the community is very popular in European countries and has become a part of important rhetoric of specialist networks, social movements, and non-governmental organizations.

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Lately, it has become very popular to talk about a war against different sources that endanger social welfare. The idea is based on the use of military strategies, tactics, and methods for solving such problems; and the imitation of American practices. We have to emphasise that those practices are very specific and are very precisely defined in the documents. They are based on the common sense logic that appears to be prevailing in contemporary ideologies of response to different types of criminality. The use of the term “war” also reflects the meaning of social-mobilization, since the purpose of such social actions is to mobilize the entire population and social institutions. In other words, we are speaking about mass management rhetoric.

6

WARS AGAINST DIFFERENT KINDS OF MENACES

The idea regarding the war against poverty has spread across the entire world (and it is a leading rhetoric of most African countries today), the war against cancer is fought by doctors (Cancer Prevention Coalition, 2007) and articles in web-pages show that doctors are more and more convinced that they are losing this war. War against drugs employs the common sense logic that enemies, threatening the domestic population, are foreigners, trafficking drugs. This lead to such internationalization of the problem that the United States in the past interfered in the internal affairs of some Latin American countries, ruled by kleptocracies, where well organized criminals produced drugs. The war against criminality, especially against organized crime in the United States of America, assumed unthinkable proportions. It lead to lack of discussions on the real causes of social problems, emphasising retribution as the only cure for criminality, transfer of funds from health, and social care and education, for intensive financing of social control practices with zero tolerance, filling the prisons with prisoners (as a rule convicted for minor crimes), focusing on street criminality and neglecting white-collar criminality, hostility to political and ideological opposition, and disregarding the social policy that reduces conflicts and social differentiation, exaggeration regarding the extent of problems, representation of local problems as epidemic, and introduction of some symbolical, sophisticated forms of racism (The War on Crime: or how to remain both ignorant and free, 2007).

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At present, special attention is dedicated to the war against terrorism, which creates a fear of catastrophic destruction of buildings and population. This creates the culture of fear and uncertainty regarding an unexpected terrorist attack. The critics of the war against terrorism say that safety gained on the account of liberty, is no safety at all. This leads only to the oppression of minorities, corruption, frauds, organized crime, militarization, and reduction of the general quality of life for all. The largest threat of war against terrorism is general loss of human rights. The military salvation of problems in peace leads to erosion of human rights and their total disappearance. The society of total control, with intrusive and disturbing forms of social control, can no longer allow restoration of the “pre-war conditions”. The critics of the war against terrorism require thorough consideration regarding the justification and implications of intensive control, especially its price, not only in financial terms, but regarding all consequences of solving the social problems with military means for the quality of life in general (The War on Crime: or how to remain both ignorant and free, 2007). Environments that emphasise the meaning of war against criminality do not accept social policy or social crime prevention as a suitable option. The idea of the war against criminality is that some external enemy threatens the internal safety of the country. This is actually a concept “foreigner as a source of endangerment” and ignorance of the fact that every society is facing as much criminality as deserved, and that the majority of criminals are derived from the society where they live and commit their crimes. The search for an enemy in such wars is frequently merely misleading the people; re-direction of their attention to threat sources, and neglecting discussions on the quality of life in society in general. Moreover, the fear against an external enemy even strengthens the people’s confidence in government and repression.

7

CONCLUDING REMARKS

Taking a look at the development of Slovenian criminology from the 1950s, it is obvious that several stages of development of criminology in relation to politics and policy making have existed. The first stage, roughly 1954 to 1970, could be called criminological positivism and seeking for

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truths about crime, deviance and criminality. A second stage, in the 1970s, is a stage of criminological experimentation and contributions to social practices and penal institutions (especially homes for juvenile delinquents and prisons) and reflections about the role of police in society. The next stage is related to the appearance of reflections on domestic violence, children’s and human rights, and violence at schools and prisons. The next stage which started after the independence of Slovenia could be called a retreat from empirical research and critical criminology, mainly in relation to fast changes in the Slovene society, privatisation (called also a theft of the century), and appearance of police studies outside mainstream Slovenian criminology. The last stage is related to the last decade when the Slovenian society has faced quite many significant changes, inter alia joining the NATO, joining the EU, and the adoption of Euro, and possibilities of new crimes, can be called a stage of internationalisation, multiplication of criminologies and exclusion of criminology and criminologists from policy making. With the appearance of new academic institutions dealing with criminological research and above all the inclusion of Slovenian criminologists in European criminology projects Slovenian criminology entered into a new stage of possible intensified contributions to a global criminological knowledge. In the last two years attitude towards the role of criminology by politicians and administration has changed somehow. An “embargo” on criminological active participation in policy making and “quick fixes” of crime problems has brought new a quality to Slovenian criminology less involvement in national policy making projects and consequently gathering new knowledge, internationalisation and learning from the best made criminology (also criminal justice and security studies) one of the most popular disciplines for students perhaps due to the media portrayal of crime, criminals and social control, mainly policing and sometimes a total exclusion or better said ignorance of criminological arguments in a professional debate on crime control issues. This movement can be perhaps called a shift from the administrative to public criminology. Slovenian criminology has now less impact on policy making but more on raising awareness of the public and especially a contribution to social sciences in general with a growing number of articles in peer reviewed journals and books in English and other languages. Criminology in the Slovenian context is still considered quite a “leftist social science” due to its nature (a scientific field “criminology and social work”) and the tradition of criminological contributions in social problems solving ideologies and policies.

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To conclude my paper, I will use some thoughts of an eminent British criminologist who debated the present power and role of British criminology. Newburn (2007), at an Irish Criminology Conference in Dublin discussed power and the role of British criminology that is generally acknowledged in western society as the most powerful and influential European criminology. Great Britain, in comparison with other countries, spends much more money researching criminality and deviations in society, than in any other European country. This is a country that serially produces criminological studies “as from a conveyor belt”. Newburn was invited to the Dublin conference to present to some facts about tradition, development, and the challenges of contemporary British criminology. His lecture included the following sections: the origins of British criminology, contemporary British criminology, social and political context of criminological research, criminology and its influence on government, criminology in general, criminological research, and future challenges. The British Society of Criminology is perhaps the third most powerful professional association of European criminologists immediately after the European Society of Criminology and GERN (Groupement européen de recherche sur les normativités). The British criminology journals are also known to have, besides American ones, the largest impact factor in the field of criminology and penology, which proves the high level of quality of British crime research and theory. Great Britain is also a cradle of administrative criminology and has the largest European research institute at the Home office. In recent years, criminology in Britain has become a large industry in post-graduate criminology studies. The interesting consequence of the scientific consistency and high quality of research in distinguished British universities is that criminologists that don’t belong to the administrative elite are generally in conflict with government politics in crime control policies and have a merely marginal role in the design of crime control policies, strategies and practices. At present, as denoted by neo-liberal capitalism, is the period of intensive politicization of social control practices, stimulation of the penal populism, and introduction of new management in the field of safety assurance and risk management. Britain is facing modernisation of public administration and formal social control (by implementing every possible control technology and study of friendly people, but exclusively in productivity and efficiency orientated behaviour). The number of political interventions in the public administration and work of the formal social control institutions is increasing. In the past years they have witnessed the rise and fall of crime control policy,

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based on information and evidence. The Home Office was criticised by criminologists, who proved in their studies that the governmental crime prevention programmes had no, or reverse, effects. Newburn is certain that Great Britain has more criminological schools than anywhere else and that there are “paradigmatic wars” between criminologists, which actually causes the diversity of British criminology. Politicians, in seek of simple and quick answers on reasons for criminality and response possibilities are not happy with such diversity; they believe that this shows the complete confusion of British criminological theory and questionable applicability of criminological knowledge. The common sense way of thinking, a foundation for all strict policies, leads to the conclusion that such solutions are generated by people in power, who are in seek of instant solutions, and who don’t care about long-term consequences of such decisions. It is quite common that the ruling elites simply “tick off” another policy implemented during their mandate. The key question is whether the political elites allow expert criminologists to take part in decisions regarding crime control policies design and to what extent such policies acquire legitimacy with the support of the public, since the (ideal) final product of policy making is an appropriate policy supported by the general public. In the context of above discussion, I believe that contemporary criminology should pay more attention to comparative criminology by studying of criminological problems, lately disregarded by the mainstream or prevailing criminology. I also believe that criminologists are often scientifically self-sufficient and that there are several important challenges we have to face if we want to make criminology scientifically useful. At present there are literally screams for professional criminology, intended for social control experts. Criminology, and the making of policies, is an important challenge, since most criminologists are not sufficiently qualified and unfamiliar with policy design mechanisms. There is also critical criminology that should not become self-sufficient, but be critical and constructive (perhaps this ambition is too big); criminologists should take an active part in changing social practices and learn new skills. Finally there is public criminology, or criminology for different publics, which should be adapted to different target groups; many criminological mental frames and concepts are frequently only understandable among the scientific elite or amongst a small group of people. The mobilization of the public for appropriate crime control policy begins in public – and that is

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where we should address the prejudices and misjudgements about criminology. We have to be aware of the fact that ruling with the help of the safety, security and crime is a serious and strong temptation of more and more politicians. Besides that, many criminologists are facing the question whether to decide on an administrative criminology orientation (serving politicians and government administration), to assume a critical position, or to choose the hardest path and assume a critical and perhaps a constructive approach. The Slovenian society and Slovenian criminology are therefore not too far away from the British ones. Siegel (2000) believes that every criminological research includes political implications, meaning that some interpretations of criminological research gives answers regarding possible solutions of problematic crime control and are in line with certain political orientations. Therefore, the task of the criminologists is to draw attention to society’s crime problems, based on objective, truthful, valid and reliable research; to appear as the critical expert public, and to strive for qualitative improvement of social control practices.

8

REFERENCES

Anžič, A. (Ed.) (1997). Zasebno varovanje in detektivska dejavnost: dileme in perspektive: zbornik posveta. Portorož, oktober 1997. Ljubljana: Visoka policijsko-varnostna šola. Anžič, A. (Ed.) (1998). Zasebno varovanje in detektivska dejavnost: novi izzivi: zbornik posveta. Portorož, oktober 1998. Ljubljana: Visoka policijsko-varnostna šola, 1998. Anžič, A. (Ed.) (1999). Nove možnosti zasebnega varstva v Sloveniji: zbornik posveta. Portorož, oktober 1999. Ljubljana: Visoka policijsko-varnostna šola, Društvo za zasebno varstvo in državljansko samovarovanje. Bakreski, O., Miloševska, T. (2009). Links between Private and Public Sectors in the Republic of Macedonia. Varstvoslovje, 11 (2), 286-304. Bennett, C. (1991). What is Policy Convergence and What Causes It? British Journal of Political Science, 21, 586-606. Braithwaite, J. (2000). The New Regulatory State and the Transformation of Criminology. In: Garland, D., Sparks, R. (Eds.). Criminology and Social Theory (pp. 47-69). Oxford: Oxford University Press. Buruma, I. (2000). Voltaire’s Coconuts or Anglomania in Europe. London: Phoenix. Cancer Prevention Coalition, Retrieved November 15, 2007, from http://www.preventcancer.com/press/conference/feb4_92.htm.

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Castells, M. (2001). The Internet Galaxy: Reflections on the Internet. Business and Society. Oxford: Oxford University Press. Cohen, S. (1982). Western Crime Control Models in the Third World: Benign or Malignant? Research in Law, Deviance and Social Control, 4, 85-119. Crawford, A. (2000). Contrasts in Victim/Offender Mediation and Appeals to Community in Comparative Cultural Contexts: France and England and Wales. In: Nelken, D. (Ed.). Contrasting Criminal Justice (pp. 3-38). Aldershot: Dartmouth. Davidović, D. (2009). Public - Private Security Sector Partnership in Serbia: Problems and Future Development. Varstvoslovje, 11 (2), 345-351. Eyestone, R. (1977). Confusion, Diffusion and Innovation. American Political Science Review, 71, 441-453. Garland, D. (2001). The Culture of Control. Oxford: Oxford University Press. Gerasimoski, S. (2009). Experience and Perspectives of Private Security. Varstvoslovje, 11 (2), 316-328. Giddens, A. (1991). Modernity and Self-identity: Self and Society in the Late Modern Age. Cambridge: Polity Press. Hebberecht, P. (2007). Opinion on the Book Governing Through Crime by Simon Jonathan, ESC Conference. Bologna: University of Bologna. Jenkins, P. (2001). How Europe Discovered Its Sex-offender Crisis. In: Best, J. (Ed.). How Claims Spread: The Institutional Diffusion of Comparative Advantage (pp. 115137). Oxford: Oxford University Press. Karstedt, S. (2004). Durkheim, Tarde and Beyond: The Global Travel of Crime Policies. In: Newburn, T., Sparks, R. (Eds.). Criminal Justice and Political Cultures (pp. 22-44). Cullompton: Willan Publishing. Lacey, N., Zedner, L. (2000). Community and Governance: A Cultural Comparison. In: Karstedt, S., Bussmann, K.D. (Eds.). Social Dynamics of Crime and Control (pp. 152-163). Oxford: Hart Publishing. Loader, I. (2004). Policing, Securitisation and Democratisation in Europe. In: Newburn, T., Sparks, R. (Eds.). Criminal Justice and Political Cultures (pp. 125-153). Cullompton: Willan Publishing. Melossi, D. (2000). Translating Social Control: Reflections on the Comparison of Italian and North American Cultures Concerning Punishment, With a Few Consequences for “Critical Criminology”. In: Karstedt, S., Bussmann, K. D. (Eds.). Social Dynamics of Crime and Control (pp. 403-424). Oxford: Hart Publishing. Melossi, D. (2004). The Cultural Embedding of Social Control: Reflections on a Comparison of Italian and North American Cultures Concerning Punishment. In: Newburn, T., Sparks, R. (Eds.). Criminal Justice and Political Cultures (pp. 152-176). Cullompton: Willan Publishing. Melossi, D. and Selmini, R. (2000). Social Conflict and The Microphysics of Crime. The Experience of Emiglia-Romagna Citta Sicura Project. In: Hope, T., Sparks, R. (Eds.). Crime, Risk and Insecurity (pp. 146-165). London: Routledge. Meško, G. (2002). Osnove preprečevanja kriminalitete. Ljubljana: Visoka policijskovarnostna šola.

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Meško, G. (2004). Preprečevanje kriminalitete – teorija, praksa in dileme. Ljubljana: Inštitut za kriminologijo pri Pravni fakulteti. Meško, G. (2007). Crime Prevention in Slovenia: Reflections on the Slovenian Experience. CRIMPREV Meeting, 7-8th June 2007. Leeds, University of Leeds. Meško, G., Cockcroft, T., Hope, T. (Eds.) (2009). Varstvoslovje, 11 (2). Meško, G., Nalla, M.K., Sotlar, A. (2004). Youth Perceptions of Private Security in Slovenia: Preliminary Findings. In: Meško, G., Pagon, M., Dobovšek, B. (Eds.). Policing in Central and Eastern Europe. Dilemmas of Contemporary Criminal Justice (pp. 745-752). Ljubljana: Faculty of Criminal Justice. Meško, G., Nalla, M.K., Sotlar, A. (2005). Cooperation on Police and Private Security Officers in Crime Prevention in Slovenia. In: Marks, E., Meyer, A., Linssen, R. (Eds.). Quality in Crime Prevention (pp. 133-143). Norderstedt: Books on Demand. Meško, G., Lobnikar, B. (2005a). The Contribution of Local Safety Councils to Local Responsibility in Crime Prevention and Provision of Safety. Policing – An International Journal of Police Strategies and Management, 28 (2), 353-373. Meško, G. and Lobnikar, B. (2005b). Policijsko delo v skupnosti: razumevanje uvoženih idej, njihova kontekstualizacija in implementacija. In: Meško, G., Pagon, M., Dobošek, B. (Eds.). Izzivi sodobnega varstvoslovja (pp. 89-109). Ljubljana: Fakulteta za varnostne vede. Meško, G., Sotlar, A., Kury, H. (2007). Polizei und Private Sicherheitsdienste in Slowenien: Ergebnisse einer Empirischen Untersuchung. Kriminalistik, 61 (1), 31-40. Meško, G., Sotlar, A., Tominc, B. (Eds.) (2007). Kriminaliteta in varnost v postmoderni družbi: zbornik povzetkov. Nacionalna kriminološka konferenca z mednarodno udeležbo. Ljubljana: Fakulteta za varnostne vede. Meško, G., Klemenčič, G. (2007). Rebuilding Legitimacy and Police Professionalism in an Emerging Democracy: The Slovenian Experience. In: Tyler, T.R. (Ed.). Legitimacy and Criminal Justice: International perspectives (pp. 84-144). New York: Russell Sage. Meško, G., Cegnar, K., Cerar, I., Gavez, T., Ulčar, M. (2007). Attitudes towards Punishment in Slovenia. The Essay Presented at The Irish Criminology Conference. Dublin: University College of Dublin. Meško, G., Sotlar, A., Tominc, B. (Eds.) (2008). Social Control in Contemporary Society - Practice and Research: Policing in Central and Eastern Europe: Conference Proceedings. Biennial International Criminal Justice Conference. Ljubljana: Faculty of Criminal Justice and Security. Minič, D. (2007). Preprečevati ali zatirati kriminaliteto: kje je Slovenija danes – resolucija o nacionalnem programu preprčevanja in zatiranja kriminalitete za obdobje 20072011. In: Meško, G., Sotlar, A., Tominc, B. (Eds.). Kriminaliteta in varnost v postmoderni družbi. Nacionalna kriminološka konferenca z mednarodno udeležbo (pp. 11-12). Ljubljana, 10. in 11. oktober 2007. Ljubljana: Fakulteta za varnostne vede. Nalla, K.M., Meško, G., Sotlar, A. (2006). Professionalism, Goals and the Nature of Private Police in Slovenia. Varstvoslovje, 8 (3/4), 309-322. Nalla, K.M., Manish, M., Meško, G. (2009). The Role of Perceived Relationships between Slovenian Police Officers vis-a-vis Private Security Personnel in Predicting Job Satisfaction. Varstvoslovje, 11 (2), 329-344. Nelken, D. (2000). Contrasting Criminal Justice. Aldershot: Dartmouth.

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Newburn, T. (2007). Criminology and Contemporary Crime Policy: Some Reflections. Dublin: Irish Criminological Conference, Plenary Speech. Newburn, T., Sparks, R. (Ed.) (2004). Criminal Justice and Political Cultures. Cullompton: Willan Publishing. Newburn, T., Sparks, R. (2004). Criminal Justice and Political Cultures. In: Newburn, T., Sparks, R. (Eds.). Criminal Justice and Political Cultures (pp. 1-15). Cullompton: Willan Publishing. Resolucija o nacionalnem programu preprečevanja in zatiranja kriminalitete za obdobje 2007-2011 (ReNPPZK0711). 2007. Uradni list RS, št. 40/2007. Rogers, E. M. (1995). The Diffusion of Innovations (4th Edition). New York: The Free Press. Rose, R. (1993). What is Lesson Drawing? Journal of Public Policy, 11, 3-30. Sherman, W.L., Reuter, P., Ecj, J., MacKenzie, D., Gottfredson, D. (1997). Preventing Crime: What Works, What Doesn’t, What’s Promising. Darby: DIANE Publishing Company. Siegel, L. (2000). Criminology (Seventh Edition). Belmont: Wadsworth. Smith, D. (2007). The Foundations of Legitimacy. In: Tyler, T.R. (Ed.). Legitimacy and Criminal Justice: International perspectives (pp. 30-58). New York: Russell Sage. Sotlar, A. (Ed.) (2000). Normativna in funkcionalna ureditev zasebnega varstva med željami in možnostmi: zbornik posveta, Portorož, november 2000. Ljubljana: Visoka policijsko-varnostna šola, Društvo za zasebno varstvo in državljansko samovarovanje. Sotlar, A., Meško, G. (2009). The Relationship between the Public and Private Sectors in Slovenia - from Coexistence towards Partnership? Varstvoslovje, 11 (2), 269-285. Sotlar, A. (2009). Post-Conflict Private Policing – Experiences from Several Former Yugoslav Countries. Policing – An International Journal of Police Strategies and Management, 32 (2) (www.emeraldinesight.com/1363-951X.htm). Spaseski, J. (2009). Private Security as an Integral Part of the Single Security System. Varstvoslovje, 11 (2), 305-315. Stone, D. (1999). Learning Lessons and Transferring Policy across Time, Space and Disciplines. Politics, 19 (1), 51-59. The War on Crime: or How to Remain both Ignorant and Free. Retrieved November 15, 2007, from http://faculty.ncwc.edu/TOConnor/111/111lect15.htm. Wacquant, L. (1999). How Penal Common Sense Comes to Europeans: Notes on the Transatlantic Diffusion of Neoliberal Doxa. European Societies, 1 (3), 319-352. Young, J. (1999). Exclusive Society: Social Exclusion, Crime and Difference in Late Modernity. London: Sage. Zedner, L. (2003). Useful Knowledge? Debating the Role of Criminology in Post-war Britain. In: Zedner, L., Ashworth, A. (Eds.). The Criminological Foundations of Penal Policy: Essays in Honour of Roger Hood (pp. 153-176). Oxford: Clarendon Press.

General Trends of Crime Policy in Europe and Slovenia Alenka Šelih

General Trends of Crime Policy in Europe and Slovenia

1

45

INTRODUCTION

If crime policy is understood as a theory-based practical activity for prevention and management of crime, even a very superficial survey of the theory and practice reveals that this is a dynamic, and therefore changing, activity. This feature becomes even more obvious if we try to measure it during a prolonged time period, and if we try to establish its possible general characteristics in a specific period. If we agree with the assumption that “modern” society started after the French revolution (1789), then protection against crime, in the widest sense, in such a country, was trying to find a balance between protecting human rights from repression on one hand; and ensuring the safety of people and property, as well as “society” in general, on the other. In the beginning the pendulum was swung very strongly in direction of providing security; the situation then slowly started to shift to greater protection of human rights, and has again swung around during the last decades. Part of these trends and the situation that we perceive today will be presented in the following paper. The trend, which started to gain momentum at the beginning of the 20th century, and became prevalent in the 1950s, was characterised by the treatment (in Europe) and rehabilitation (in the USA); in Slovenia, where we came upon it only at the beginning of the 1960s, we characterised it as the “school of new social defence”. This description was common on the European continent. Reformers from the beginning of the 20th century came from utilitarian, but humane, standpoints, and were convinced that criminal offence and guilt cannot be the only measures for punishment, and that perpetrators’ personality, their social environment, and the possibility of re-integration into society after serving a sentence, must also be taken into account. The new trend was based on an individualised procedure and on the idea of treatment during the implementation of the sanction, and on the possibilities of perpetrator’s re-socialisation after this. In a wider sense the trend significantly stressed the prevention of crime. Today, in retrospective, contemporary authors characterise this period as the era of “penal welfare state”; as the era of “correction” (of perpetrators of criminal offences) (Garland, 2001: 34). In whatever way we choose to

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characterise this period and our relationship to it, the fact remains that this was a system which, up to the mid seventies, kept crime within limits that society could tolerate; and the number of prisoners at a level where there was no talk about overcrowded prisons.

2

CRITICISM OF “CRIME POLICY OF THE MODERNISM”

2.1

Social Changes Influencing also Crime Policy of the Last Three Decades

While the 1950s, and especially the 1960s, were the time of steep economic growth and social development in the developed world, and the time in which the welfare state was not only developed but firmly established, 1973 shattered that image with the oil crisis: the growth of oil prices on one hand caused economic stagnation, but on the other it also encouraged thinking about the negative effects of the welfare state. In the following years the key areas in the capitalist system changed drastically – changes in technology, transport, and communications, searching for new markets, cutting costs, and many other events brought about a change of the economic image of the developed world, especially in the 1980s. The social environment also went through transformation. Family structures began to change, with an increase in the share of employed women who were married with children; the number of divorces rose considerably, consequently increasing the proportion of single-parent families. By prolonging life-span, populations of developed countries began to grow older, although this was not so obvious at first. Migration processes from rural to urban areas were intensive.1 Since these were predominantly migrations of under-privileged social groups to urban areas, the outskirts of cities grew ghetto settlements with predominantly young and marginalised population. As the accessibility of the car altered spatial ties to a specific place, so has modern telecommunication, especially television, changed social and 1

Compare Hobsbawm (2000: 289-319).

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individual environments. All areas influenced by modern media cannot even be described here; it should suffice to mention that availability of information to an individual has increased, in positive and negative ways – transparency of actions of certain public figures and institutions has increased in comparison with the past, and the methods of modern public information and communication systems have changed our perceptions of society, the state, its bodies, and ourselves (Garland, 2001: 87). This was also the period when the institutions and support options, typical of the welfare state, started to withdraw and be reduced – which had great impact upon that part of the population that was also the most exposed to the risk of crime.

2.2

Crime and Its Control

The majority of social changes, which marked the transformation of the modern (capitalist) society into the late modern or post-modern one, occurred in the 1970s and 80s of the 20th century – but this is also the period when crime in the developed European countries and the United States was on a continuous and steep rise. Although the scope of this paper does not allow for a more detailed description of the key circumstances, a few should be mentioned. One cannot avoid the conclusion that the growth of this post-modern society contributed to the increase in the crime rate. Authors are discovering numerous reasons and circumstances that contributed to the state: the population groups which were at “risk” of committing criminal acts had expanded; effectiveness of social regulatory mechanisms had decreased; also, other forms of self-control had lessened. Informal social control, especially in the family and school, was loosened. The consumer society with its flood of goods offered more opportunities for committing a crime, and actually lowered the physical obstacles for acquiring those goods. In the developed countries the influence of the welfare state was shrinking and fading; at the same time the state institutions were not able to solve crime related problems, but as a rule were only able to discover new problems and new needs that should have been resolved. On the other hand, the expectations of people increased: in the decades after World War II living standards were constantly improving – improved

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housing and living conditions, schooling conditions for youth, possibilities for health insurance and social benefits, conditions for employment and retirement. During the 1970s and 1980s, the developed countries were unable to keep up the same growth rate and had to face increased expectations from underprivileged groups, and their own powerlessness. It must not be left out that these administrative systems developed strong bureaucratic networks, which were stiff and often criticised for their poor response to people’s needs. All these conditions were, in themselves, an appropriate breeding ground for the inception and rise of crime.

2.3

Politicization of Crime Policy

Another condition can be added to the considerably changed view of crime. In the time of the “late modern era” the issues of crime became important political issues. According to the authors form the English speaking world, Reagan in the US (1981) and Thatcher (1979) in Great Britain won the elections predominantly because they were able to turn to their advantage, among other things, the accusations directed toward previous governments that they were “soft on crime” (Fijnjaut, Goethals, Peters & Walgrave, 1995). Then the discourse on crime policy moved from the small expert circles to the level of public political debate, and thus the crime policy issues became one of the central focuses of every political campaign since – in all developed countries.

3

THE SEARCH FOR NEW WAYS

3.1

Crime as a Threat to Society, and Reactions to It

Since the 1970s, crime in the developed western countries was growing at a high and continuous rate. It has become reality that an individual, as well as society as a whole, had to live with. In the 1990s the (police) figures showed that it had increased up to 10-fold within the last four decades. Crime was starting to get treated as an everyday risk – one of many, to which an individual was exposed to in a (post) modern society.

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One of the consequences of this point of view was a tendency to start “managing” crime, very much like other risks of modern society. This notion led to several completely different approaches on how to tackle crime. Governmental agencies and the society started to react in different ways that were sometimes contradictory, and gave the appearance that the systems are not synchronised and directed towards a single goal (Fijnaut et al., 1995). In the 1980s and 90s we witnessed the emergence of different programmes and plans, whose common aim was to decrease the crime rate, but it did not seem that creators of these programmes were sure about their effectiveness. Reorganisation of different parts of the penal system (the police, courts, prosecutors) was one of the forms of the administration’s response (Garland, 2001: 114). In the developed countries, especially the US and Great Britain, this system became a target of public criticism at the end of the 80s. Interventions into the system were diverse and sometimes vastly conflicting: among the goals were rationalisation of the system, and greater professionalization – which can be paradoxical; the question of the cost of the system and its benefits became crucial. The system was becoming increasingly commercialised, especially with the privatisation of some parts, for example in connection with private security, in execution of prison sentences, in formation of public-private partnership, in execution of correctional measures, and elsewhere. One of the efforts to unburden the criminal justice system was an attempt to de-criminalise – a process, with which some of the forms of punishable behaviour could be defined as less serious violations (misdemeanours), and thus excluded from the criminal system. A similar attempt was made with implementation of sanctions implemented in the local community. Due to these sanctions the importance of the local community, and its responsibility to provide security increased considerably. The consequences of crime gained importance throughout the entire system: the importance of the victim and victim support increased; within this framework a special model was formed – the restorative (restitutional) justice,2 which focuses on restitution of damages in its widest sense and fosters reconciliation between the victim and the offender. 2

Compare with Bošnjak (2000).

50

3.2

Crime Policy, Crime Control and Crime Prevention – Slovenian Perspectives

Excessive Punitive Responses to Crime

While these programmes were predominantly the government’s response to crime, the legislatures were, as a rule, much less rational, and did not take into account the warnings that excessive punitive response does not bring positive effects. Consequently, almost all Western Europe, and before that the US, from the 90s onward, were adopting acts, which were based on the premise that stricter penalties, increased use of prison and other, more punitive measures, lead to lower crime rates, and on the conviction that it can be implemented by giving more authority, particularly to the police. These led to the adoption of legislation, which is distinguished for its extraordinary (entirely irrational) strictness – the slogans “law and order”, “zero tolerance”, “three strikes and you’re out”, special provisions for “sexual deviants”, publically accessible paedophile registries, reinstitution of prisons for juveniles and even children – all these are the expressions of this punitive orientation, which gained new power and determination after 11 September 2001 (Thomas, 2004; Russell, 2005; Hetzer, 2004).

4

CRIME POLICY IN THE POST-MODERNISM

4.1

New Punitiveness, Its Origins and Forms

The origins of the new punitiveness clearly come from the concept that the risk of crime, or the risk of becoming a victim of crime, is an everyday risk of a modern society; that crime is something ordinary, normal, a part of our social and individual reality, and daily life. This provides justification for the authorities to use certain means in the “fight” (sometimes also “war”) against this social evil. The new punitiveness was at first, during the mid-1970s, recognised by the motto “law and order”, which later developed into a whole number of slogans, all speaking in favour of being “tough on crime” (Garland, 2001: 99). This was implemented through the increased authority afforded to the police; by expanding the field of criminal acts to minor offences (Crime and Disorder Act, 1998 in Great Britain), where the acts, which had not been considered criminal before, became criminal. In the area

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of penal sanctions the prison sentence again rose to the leading role: the maximum penalties for sentences expanded; mandatory minimum penalties had been introduced; the importance of the judge’s discretion on the choice and duration of a prison sentence decreased (mandatory US Federal sentencing guidelines); a “three strikes rule” meant, that an offender, who has been sentenced three times for a crime (even though it was not a dangerous one), gets life in prison; the number of maximum security prisons increased; parole requirements were tightened. A prison sentence was also instituted for children (in the known British case against Boulger); institutional care in strict regime facilities for juveniles was widely spread – to mention only a few. Another sign of increased punitiveness is the central role provided for the victims of criminal offences. The victim again enters the arena of the criminal justice system as the central figure: victim’s feelings became the justification for the punitive response to crime. Decades ago the victims were pushed into the background; now, however, their right to “revenge” was emphasised, and became a kind of a driving force of the justice system (Garland, 2001: 143; Petrovec, 2005). Finally, it must be pointed out that during this time the entire field became very political – in countries like Great Britain, France, and the Netherlands, crime policy became one of the central questions of every election campaign. Populism of individual politicians, who presented their views on the subject, played an important role in defining the election outcome (Estrada, 2004; Garland, 2001: 94-102).

4.2

New Culture of Crime Control

Numerous authors in western countries are warning about the formation and creation of a new universal attitude towards crime and offenders; they are warning about a new culture, which has started to control this field. Its shape is becoming clearer and easier to distinguish.3 The state’s response to crime has changed considerably within the last thirty years. While up to this time this response was characterised and 3

For example Pakes (2004).

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dominated by the paradigm of “penal welfare” (Garland, 2001: 147), the punitive paradigm became prevalent in the post-modern era. The legislative field has become increasingly controlled by explicitly repressive legislation, which is supported, especially and almost exclusively by penal punishment. Particularly in the Anglo-American world this legislation displays an explicit mistrust in the justice system, because its operations are increasingly regulated at the legislative level, with mandatory rules, which tolerate zero, or very little free judgement. Another characteristic of today’s’ reaction to crime at the legislative level can be observed in the expansion of what is prohibited: since the adoption of the idea of a “broken window” as a sign of threat and danger, the actions, which had been only a form of public dis-orderliness (misdemeanours in Slovenia), have been gradually introduced into the criminal legislation.4 We must also add that some European continental justice systems (for example in the Netherlands), in spite of increased repression, established a conscious division of crime into two fields: dangerous crime, which should be dealt with punitively, and non-dangerous crime, which they are trying to exclude from the justice system (de-criminalisation, diversion, restorative measures). Regarding the application of legislation, today it is obvious that these legislative procedures have brought a renaissance of prison punishment in the US. The numbers of convicted persons, or persons who are imprisoned in different prisons in that country, are so high that some of the authors compare them to the Soviet gulags.5 According to some, prison works as a type of an expulsion system in the post-modern era and is helping to create what today many consider an exclusive society (Šelih, 2004: 28-30). Within the framework of state’s reaction it is impossible to overlook an extraordinary increase in the influence of the victim in the criminal justice system. The key issue is not only the implementation of victim support measures, to increase the chance of victim’s involvement in the court proceedings – in some US states the victims can propose the type and severity of the sanctions for the offender, whose victim they have become 4 5

Wilson and Kelling (1982) defended the premise that untidy environment (broken windows) also represents an environment, where crime can be found. As stated by Garland (2000: 178); similarly Christie (2004: 7-8).

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(Garland, 2001: 179). Nils Christie, the author of the idea that the “conflict” between a victim and offender, must be taken away from the state and returned to them, surely had not foreseen such a development when proposing the idea (Christie, 1977). In addition to the state controlled system, personified by the police, the prosecutor’s office, judicial system, and the prison system, a strong private system providing security has developed. The transfer of execution of some alternative forms of penal sanctions to the local community, engaging the community to ensure its own safety, the transfer of certain activities from this field to the private sphere (“private security”), support of public-private partnership with preventive activities in the local community – all these activities helped that, in the western countries, reactions to crime have been developed not only by public but to a certain degree also by private agencies, who have also been professionalized. Providing security and control have thus extremely expanded; also, this produced genuine interests for the existence and development of such services. Today, this sector is an important and established branch of social control and is firmly entrenched, especially in the local community, and also at the various levels of public administration (Šelih, 2004: 26-28). An assessment of the crime control system from the human rights viewpoint is rather disconcerting. Economic, especially the neo-liberal development strategy, explicitly defends and demands incentives for such economic management, which has at least one negative outcome: it causes more and wider social stratification; a division of society to haves and have nots. In the field of crime policy the idea of the post-modern society as the society of risk created the circumstances and need for protection of a part of society, which is defending itself with physical and other barriers, and created the other, larger part of the society, which is excluded from it. Such circumstances are an ideal basis for crime increase, to which the systems respond with increased demand for providing safety. This can, again, be achieved only by restricting the rights of individuals – first and foremost these are actual and potential perpetrators of crimes (and increasingly other forms of deviant behaviour). This vicious circle then expands to increasingly wider layers of society, which are further and further removed from crime: we all consent to video surveillance in numerous

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public and private places, we all consent to increased security measures at borders (especially at airports), the large majority is silent about the measures such as those in Guantanamo. The danger of such measures lies not (only) in the measures themselves, but especially in the fact that they, in their nature, spread to other areas, and that it is in their nature to spread over larger and larger groups of population. The respect for human rights, which was the key driving force of the democratic systems of government in the second half of the 20th century, is thus losing its meaning and is fading away (Bavcon, 2002: 11-18).

5

CRIME POLICY IN SLOVENIA DURING 1995-2006

5.1

Danger of Crime and Responses to It6

One of the key, but not especially accurate, methods for monitoring changes in crime rates is undoubtedly the number of criminal offences, reported to the police, and those reported by the police. This figure depends on several variables; for example, social changes, especially if they are fundamental, influence the number of reported criminal offences; changes of police organisation, changes in procedural and substantive law can considerably influence the extent of what is considered criminal, as well as of what should be the object of a crime report or prosecutor’s charge; organisational changes in the police itself, or in the criminal justice system, have a similar effect, and they also influence the number of terminated cases, and consequently the number or convictions. Methodological changes in recording criminal offences can greatly influence the number of reported criminal offences. Due to these, and numerous other factors, the assessment of the data on the number of reported crimes calls for caution. The figures of reported criminal offences show continuous growth in the last decade: there were 36,578 such acts in 1995 and 90,345 in 2006. Here, it must be mentioned, that during this period, almost all the variables described above were present, so it would be too hasty to assume it 6

When providing statistics on the crime rates I used the following sources: Brinc (2005), Svetek (2006), Lukan (2006) and Resolucija o nacionalnem programu preprečevanja in zatiranja kriminalitete za obdobje 2007-2011 (2007: 5545)

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was an extreme rise in crime only on the basis of these figures. If we use another measure, the number of convicted persons, which is also one of the measures to gauge crime level, we can see that the numbers, in spite of growth from 1995 (3,961 persons) to 2005 (7,718 persons), did not reach the number of convictions in 1990 – 10,839. If we remain within the scope of police data, it must be mentioned that analyses are revealing the following trends: the number of most serious crimes against life and bodily security has been decreasing (murder and grievous bodily harm); the number of acts against sexual inviolability has been too (during 2005 and 2006); the number of crimes against property has been on the rise (in 2005 and 2006), especially those connected with the use of violence (burglary, theft, robbery); economic crime has been is on the rise (in 2005 and 2006), with the most frequent offences having been fraud, business fraud, and writing a bad cheque; organised crime has been on the rise (in 2005 and 2006), with the most frequent crimes of production and trade of illicit drugs and illegal border crossing (in group, armed, or organized); in 2006 the abuse of prostitution was recorded; an increase in the number of criminal offences of corruption (in absolute numbers from 17 in 2005, to 44 in 2006); the number of criminal offences committed by minors has been declining for a few years consecutively. The analyses reveal that criminal offences are often connected to self-interest, consumerism, the increasingly fast pace of life, and the search for instant gratification. When looking at the next method for assessment of the crime rate - the number of convicted persons per 100,000 persons - we discover that this number has increased from 1995 (when it was the lowest: 31.8), to 58.8 in 2003. Similarly, the number of imprisoned persons has increased: according to the figures from the Council of Europe, on 1 September 2004, there were 1,126 such persons; there were 56.1 prisoners per 100,000 persons, which puts Slovenia toward the bottom of the Council of Europe members` list, together with Finland, Norway, Croatia, and Cyprus; while Ukraine is top, with 406.3 persons per 100,000. When assessing the threat of criminal offences and ways of reacting to them, the structure of penalties must be mentioned. The penal policy in Slovenia is characterised by a very frequent use of conditional sentence or

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probation; by the fact that in 15-16 %, a prison sentence is imposed, which is considerably more than in other western countries; by the fact that the use of fines has dropped to the minimum (2 %). These very rough statistics on the threat of crime, and about how the judiciary responds to it, lead to a conclusion that this is a serious, but manageable, phenomenon. The change in crime rate is not as alarming, as one could assume from periodic reactions from the media and some of the political leaders. Social control agencies are tackling it effectively enough, and there is no reason to implement any major changes in the crime policy. The large share of prison sentences could be lowered, especially since it seems that pecuniary penalties, as the most appropriate for offenders of the majority of the property related offences (especially some categories of economic crime), are not used at all.

5.2

Crime Policy, as Understood from the Resolution on the National Plan on the Prevention and Combating of Crime for the period 2007—2011 (ReNPPZK)

On 7 May 2007, the National Assembly adopted a Resolution, which defines the key problems in the field of crime policy, and provides guidelines for responses to crime, for the period of the next five years. The Resolution would require an in-depth review. However, I concentrated only on the examination of its basic aims, which I consider the most important. In the introduction, the Resolution states that Slovenia is a safe country and that its citizens assess it as such. During the last years the threats that endanger life, health, personal safety, and property of people, are increasing in number and are manifested in forms that had been unknown until now. Recognising these dangers and responses to them are the challenges to which the experts must respond, taking into account the research findings. Safety, the Resolution states, is not only a police matter (which is entirely self-evident), but rather: “…is the responsibility of every individual, who can, with his/her self-protective actions, contribute to lesser victimisation. Safety must be a priority of every organisation, business system, self-governing local community, non-governmental organisation and, of course, state bodies.” (ReNPPZK, 2007: 5545). If this brings us to a conclusion that the use of means of repression in response to crime is only the

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last resort measure, then we can agree with this formulation. The Resolution defines, above all, the problem of preventive actions as the basic aims in the crime control. Then presents the most important groups of crime problems, which it believes to be dangerous: urban, property, economic, organised crime; illegal drugs, youth violence, family violence; environmental protection; the Resolution then deals with the fear of crime, and with the help for the victims of crime; refers to the legislation and actions to enable judicial decision “within reasonable time”; it goes on to mention the inter-institutional cooperation; requisition of the illegal proceeds of crime; the sentencing policy and, finally, the implementation of penal sanctions. The Resolution foresees the establishment of a special consultative and coordination body, responsible for monitoring its implementation. In the end, the Resolution defines the methods of financing. As can be seen from the given sections, some of the areas overlap; urban crime overlaps with property, economic and probably organised crime, and also with the issue of illegal drugs. Here, I cannot assess individual sections and activities/strategies, which are given as the operative forms of work. Also, one cannot start a debate whether the Resolution covers all the most urgent crime problems (for example, road safety, crime in the marginalised groups, especially the Roma people). However, one can say that the Resolution never takes a purely punitive viewpoint; it does not lean toward stricter substantive legislation, but builds on numerous preventive programmes with educational elements, trainings, better cooperation and greater harmonisation. Execution of these activities in everyday practice is another matter. At first glance it seems that the Resolution is an act which could retain the response to crime in Slovenia on a level, and within the scope, that we know today – this should be kept within the `Scandinavian quadrant´, which we feel close to. The Resolution enables us to avoid the paths which lead to great punitiveness, excessive use of repressive means, and thus into a society, riddled with tension and conflict. If crime policy in Slovenia begins to deviate from the demand for respect of human rights, and replaces it with the need to provide security at any cost, we might come to e what Thomas Jefferson had foreseen: “A society that will trade a little liberty for a little order will lose both, and deserve neither.”

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REFERENCES

Bavcon, L. (2002). Človekove pravice in težnje sodobne kriminalitetne politike. In: Meško, Gorazd (Ed.). Vizije slovenske kriminologije (pp. 11-18). Ljubljana: Ministrstvo za notranje zadeve Republike Slovenije, Visoka policijsko-varnostna šola. Brinc, F. (2002). Gibanje kriminalitete in kaznovalna politika v Sloveniji v zadnjem deletletju. Revija za kriminalistiko in kriminologijo, 56 (1), 3-28. Bošnjak M. (2000). Teoretična, ideološka in kriminalitetnopolitična izhodišča obnavljalne pravičnosti. Zbornik znanstvenih razprav Pravne Fakultete, 60 (1), 17-51. Christie, N. (1997). Conflicts as Property? British Journal of Criminology, 1977, 1-15. Christie, N. (2004). Re-integrative Shaming of National States, Crime and Crime Control in an Integrating Europe, HEUNI. Helsinki: HEUNI. Council of Europe (2006). Penological Information Bulletin. May 2006, 25 & 26. Brussels: Council of Europe. Estrada, F. (2004). The Transformation of the Politics of Crime in High Crime Societies. European Journal of Criminology, 4 (1), 419-443. Fijnaut, F., Goethals, J., Peters, T., Walgrave, L. (Eds) (1995). Changes in Society, Crime and Criminal Justice in Europe, vol.1. The Hague: Kluwer. Garland, D. (2001). The Culture of Control: Crime and Social Order in Contemporary Society. Oxford: Oxford University Press. Hetzer, W. (2004). Terrorbekämpfung – Strafverfolgung oder Kriegsführung? Kriminalistik, 8-9, 508-516. Hobsbawm, E. (2000). Čas skrajnosti. Ljubljana: Znanstveno in publicistično središče. Lukan, A. (2006). Kriminaliteta v letu 2006. Revija za kriminalistiko in kriminologijo, 58 (2), 115-132. Pakes, E. (2004). The Politics of Discontent: The Emergence of a New Criminal Justice Discourse in the Netherlands. The Howard Journal, 43 (3), 284-298. Petrovec, D. (2005). Raba in zloraba žrtve. Revija za kriminalistiko in kriminologijo, 56 (1), 48-49. Resolucija o nacionalnem programu preprečevanja in zatiranja kriminalitete za obdobje 2007-2011 (ReNPPZKO711). (2007). Uradni list RS, št. 40/2007. Russell, S. (2005). Since September 11, All Roads Lead to Rome. Critical Criminology, 13, 37-53. Svetek, S. (2006). Kriminaliteta v letu 2005. Revija za kriminalistiko in kriminologijo, 57 (2), 95-108. Šelih, A. (2004). Preprečevanje kriminalitete – razvoj in dileme. In: Meško, G. (Ed.). Preprečevanje kriminalitete – teorija, praksa, dileme (pp. 19-30). Ljubljana: Inštitut za kriminologijo pri Pravni fakulteti. Thomas, T. (2004). When Public Protection Becomes Punishment. EJCPR, 10 (4), 337351. Wilson, J.Q., Kelling, G. (1982). Broken Windows. Atlantic Monthly, March 1982, 29-38.

On Various Aspects of Prevention in the Post-Modern Society Zoran Kanduč

On Various Aspects of Prevention in the Post-Modern Society

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INTRODUCTORY NOTE

What is prevention? Roughly speaking, this expression usually refers to some sort of hindrance or preliminary protection against a real or perceived (or, as it happens, just imagined) threat or danger. Also, prevention could be defined as endeavour to avoid (or reduce) some imminent or remote damage, e.g. more or less complete destruction (or reduction) of something that is valuable or meaningful for a subject concerned (obviously enough, prevention, at least if understood in this quite abstract manner, is by no means a new or even specifically post-modern – nor characteristically human – phenomenon). What we consider a value (and what we try, for that reason, to protect or guard from some sort of danger, by possibly rationally chosen means) can be something that we already have in our possession (such as life, body, energy, time, freedom, health, material assets, moral or legal rights, social status, well-being, security, prestige, power etc.), or something that we want to have, obtain, create, produce, attain, become or be. So, it is quite evident that at the very beginning of every preventive action (or omission) there is an implicit or explicit value judgment (e.g. of moral or political kind). Namely: what, whose or which values are we going to protect, e.g. in the roles of a citizen (“political animal”), of a member of particular society (social animal), of a family person (domestic animal), of a worker (humanised – or, perhaps even more often, dehumanised – animal), or of a “super-man” (i.e. the subject in a strict sense of the word). The next step is, clearly, much more theoretical (or technical). Namely: from where does a concrete or abstract danger originate? How serious is it? Where does a threat, a potential source of harm or an enemy abide? What is that threatens, first and foremost or to the greatest extent, various most precious goods, such as, for example, one’s self-realization/actualisation or possibilities of acting in a self-defining/determined or independent way (or, if you want, political values, such as democracy, justice, equality, freedom, peace, interpersonal trust, and so on). Finally, how to resist effectively specific dangers? Nowadays, “prevention” is, in general, not perceived in an emotionally neutral way, e.g. as some sort of a pale terminus technicus. Rather the opposite. The word has a strong positive and in many cases nearly sacred connotation (sometimes it seems that the negligence of culturally expected preventive actions has even become some sort of “sin” par excellence). Who would not, at least in theory, agree with the value judgement

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that prevention is better than cure? Be as it were, such an acceptance should not be generalised too quickly. Why not? “Cure”, normally, means medical treatment of an illness or other health issues, injuries or impairments. Illness (and similar biological inconveniences) is, however, not a state one would naturally (either consciously or willingly) wish to “have” or try to “obtain”. On the contrary, almost everyone wants to avoid this sort of negative states or processes (and eo ipso medical treatments and doctors). Yet, the notion of prevention does not appear only in medically curative contexts, but everywhere that risks, threats, dangers and harms occur, which is practically at all levels of our personal and social life. And that is exactly why preventive actions (and omissions) cannot be easily liberated from manifold conflicts and antagonisms, e.g. between individuals (and often even within particular individuals), between an individual and a group, or between groups. To illustrate this thesis in abstracto: what X wishes to attain (e.g. happiness, freedom, wider objective possibilities for self-determined or autonomous activities and, in this process, for creating him - or her self as subject, better social wage, elimination or reduction of exploitation, humiliation and repression, social and economic equality, less polluted environment and less destroyed planet, improved general quality of life, respect of human rights etc.), Y would endeavour to prevent (of course, Y will usually try to disable X’s project, because it jeopardises his interests, privileges, material assets, property, privileges, moral norms, ideological beliefs, authority or social power). Needless to say, prevention maintains its controversial character also when related to crime. Undoubtedly, one could easily enumerate a large number of criminal offences that are more or less unanimously condemned, e.g. violations of fundamental moral norms, that provoke rather unambiguous and uniform emotional disapproval, as they result in evident damage and, at the same time, the distinction between the guilty offender and the innocent injured party (or – to use the fashionable label – the “victim”) is very clear. Generally, prevention or restriction of such crime-related risks does not present a remarkable problem. Nevertheless, even in such cases the situation can become complicated, mainly on the level of the tricky question of how to achieve this goal by means of criminal justice system (e.g. by punitive, therapeutic, compensatory or conciliatory interventions). This is assuredly a rather serious difficulty. What is more, even if we agree that some kind of dangerous actions (or behaviour patterns) should be prevented, this does not necessarily mean that the best way

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to accomplish this purpose is by criminal law or within criminal justice system (let us not forget that abolitionists – although a marginal “de-constructivist” group in the modern criminological field – are, in fact, a priori against criminal law measures as a way of solving interpersonal conflicts or social problems). Finally, there are many already formally incriminated acts of which punishment is extremely controversial, since a lot of “lay people” and experts are firmly convinced that the state/society should not prevent them by means of criminal-law sanctions (nor perhaps even in any other way). On the other hand, we should be aware of the fact that the normative border between criminal and non-criminal activities has become, particularly in our post-modern times, very blurred, evasive, porous, flexible or changeable (Lea, 2002: 134–160). This is especially evident in the vast area of capitalist economy, to a large extent because of the controversial nature of the following questions: What should belong to whom? Which methods of acquiring material assets (or money, their universal equivalent) are morally, legally or politically acceptable (and thus permissible)? What is, as the matter of fact, the difference between conventional organised crime and legally organised capital (or, if you want, organised religion, e.g. Catholic Church)? How or on what normative and value grounds to justify the right to private profits? Are the current (evolving and expanding) differences in income and wealth legitimate and compatible with the normative conception/doctrine of human rights? What is the distinction between the economic “order” and the criminal “disorder” (e.g. as far as the quest for money and social status is concerned)? How to justify private control over means of production (especially in the times marked by increasingly stronger interactions and organic interdependence of specialised work functions, i.e. by ever expanding socialisation of the production processes)? How to defend private control over natural (and biological) resources that are not the product of human/social work? When does a normal trade or business project change into a fraud (or a theft), and vice versa? How to evaluate the repression and exploitation of “labour power” (and regular destruction of nature) deriving from the altogether normal, i.e. perfectly legal operations of the world capitalist system? How to appraise the accumulation of wealth in the light of its inevitable “by-product” that is widespread poverty (or various relative deprivations)? And so on. (It should be stressed, by the way at least, that in the post-socialist or transitional societies both legal and illegal thefts – e.g. those realised in the form of denationalisation, privatisation and spoliation

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of public, state or socially owned/produced resources – have been probably the most important factor of social stratification and generation of privileged elites). So, it should be taken into account (and firmly kept in mind!) that in the field of economy (which has actually subdued the entire society and nature in the post-modern development of capitalist production and consumption), there are many activities that are indisputably harmful (indeed much more than both conventional and unconventional crime), but are not subject to stigmatisation, incrimination, practical criminalisation, penalisation or any other forms of political control and social prevention. These activities (e.g. legal, semi-legal, hardly-legal, not-sure-if-legal and illegal) are neither exceptional nor socially or individually pathological. For instance, they do not originate from deficient socialisation of their proud protagonists or loosened connection between an individual and a group. Very often they are closely connected to wealth, power and other forms of ideological, cultural, economic, political and social capital (Ruggiero, 1996: 155).

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PREVENTION IN THE “RISK SOCIETY”

The “risk society” (Beck, 1998) is not only characterised by changes at the level of extent and nature of various dangers (e.g. by increase in humanly or socially produced threats), but also by a modified sensibility and a specific way of facing hazardous situations. Needless to say, risks are by no means a social or historical novelty, for wo/men and social groups have always been exposed to numerous real and imaginary dangers. The special feature of the post-modern society and its “casino economy” (characterized by the dominance of “impatient” financial capital and a cumulative, endemic, chronic and ever deepening structural crisis) is the fact that it is the individual him- or herself that is more and more responsible for his or her own “risk management” (and no longer – or at least increasingly less – the society or the national welfare state). This is an emerging phenomenon that O’Malley (2001) calls private prudentialism. Briefly, in the world of economic, cultural and political globalisation, characterized by growing stupidity and deepening precipice between the lucky winners (who take it all or almost all) and the unlucky losers (who are left with practically nothing or merely with their own labour power, sur-

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rounded by a number of recurring and never really solved problems), it is an atomised individual who is for the most part responsible for his/her own destiny (+ for those persons who are emotionally close to him/her, e.g. children), or for his/her particular “story of success” (e.g. prosperity, employment, economic and social standing, security or safety). The ideological message is, therefore, quite clear and unambiguous: rely upon yourself – e.g. on your own entrepreneurship, ingenuity, aggressiveness, will-to-compete, knowledge, persistence, initiative, linguistic abilities, learning skills, creativity, diligence, and so on – and “God” (read as: the logic of the capital that creates/destroys the world and people according to its own image) will help you, if… If you also have a large share of luck (or if – to put it another way, if you prefer – a favourable constellation of celestial bodies is on your astrological side), which is about the same as in a lottery, where somebody always wins, while the majority (countless “millionaires in waiting” hoping to be the lucky ones) naturally end up in the less favourable fashion, which is similar to what is regularly going on in the capitalist economy (paradoxically, those with the least resources available – and, therefore, with the least freedom, understood as an assortment of possible life/behaviour options, and with lowest possibilities of controlling the practical and normative effects of their actions – will often take the greatest risk (Ruggiero, 2001: 178–180), while the rich and privileged can much more count upon a help of the more or less hidden solidarity of national government or trans-national organisations). The grim fact that it is primarily an individual (extended up or chained to the family cell) the one who has to take care of him- or herself (almost in all areas of his/her life) means, among other things, that (s)he should not count too much on the social/welfare state, because this specifically modern political organisation is ever more strongly refusing (and is even structurally forced to do so) to function as a tool for asserting strategic/developmental societal interests, social solidarity, public well-being, human rights, safety and socio-economic security. Consequently, it is the labour market that has become probably the most important social control mechanism possessing the (supposedly “hidden”) discipline power over a proletarian’s destiny. Namely: a favourable position in a hierarchically organised world of heteronymous/abstract work implies or results in a favourable position in the world of consumption, i.e. on the market of commercial services and products. In order for an individual to obtain/maintain some more or less acceptable position in the pyramid structure of paid jobs, (s)he has, of

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course, to do and omit quiet many – more often than not very unpleasant – things (e.g. compete with other sellers of work power and accumulate, as soon and as much as possible, all kinds of social, human and cultural “capital”). While doing this, it is very wise to act also in a preventive manner, e.g. in order to make sure that others do not run over or step on you in the merciless competition and performance race (which often means the following: forget about establishing mutual solidarity and set out on a furious economic war against everybody: to the great joy of increasingly stronger “employers” having the structural possibility of choosing the “lucky ones” who get the evermore desired and precious privilege of serving them loyally and diligently, with their body, soul and hart). Although it is primarily atomised individuals that should, in their everyday life and work, face all sorts of risks (and endeavour to prevent them from evolving into some sort of damage), they are not completely alone in this never ending process (Furedi, 2002: 131–139). Namely, market individuals are surrounded with a mass of various experts and professionals (both public and private – the difference does not really matter) who keep warning them of ever new and changing threats, alerting them of dangers, and, intentionally, instilling fear/anxiety in their souls, while offering them help, support, information, advice, encouragement, “empowerment” and numerous other products and services, such as medicines, therapies, programmes, workshops, training, management or consulting, and whose purpose is (explicitly or at least implicitly) prevention: decrease of all kinds of risks (whereas symbolic implications of that assistance is normally less noticeable, e.g. a suggestion that modern risk situations are so complicated that an individual without professional help is actually no longer capable of preventing a negative outcome or at least of reducing the probability of things not going well). This is evident in almost all life areas, even in those that seemed until recently more or less unproblematic, natural or “primal”, such as: (a) nutrition (the first “God’s” commandment says that one should only or mainly consume foods that improve health and prevent the beginning or development of various diseases; whereas the second categorical imperative refers to paying attention to body weight and food intake, not only because over-eating jeopardises or disfigures the aesthetic aspects of one’s personality, but also because fatness runs the risk of health problems); (b) sexual behaviour (what the traditional morals considered as sinful, improper, perverted, perverse or indecent behaviour, is nowadays interpreted as irresponsible, inappropri-

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ate, unhealthy, dangerous or hazardous sexual practices, signalling that an individual is not sufficiently preventive, i.e. cautious and self-restricting); (c) upbringing and dealing with children (this activity has developed into a real science, and the parents have become responsible for nearly every detail in child’s development: everywhere and at all times they have to act preventively in order to avoid anything negative happening to their dearest creature); (d) leisure (the market offers countless more or less “useful” recommendations about what to do and what to omit once we come from work, e.g. where and how to spend safe holidays; how to prevent negative repercussions of stress, resulting from the overload of work obligations, performance pressures or poor work conditions; what to do to slow down the development of signs of ageing; how to repress the agonizing and even shameful departure/deviation from a youthful appearance; how to avoid the unpleasant feeling of having bought a product at a higher price that we could get somewhere else; how to do sport and recreational activities so as not to suffer an injury or jeopardise health, but to improve it instead…). It is quite often argued (particularly in critical criminological literature) that, in the post-modern society, the fear of criminality (and of its protagonists) is rather exaggerated and intensified by the commercial media (and that this emotion is more or less disproportionate compared to the “real” risks in this area). Be as it were, the fear (usually combined by anxiety) that you will become an object of criminal victimisation (e.g. theft, robbery, burglary, fraud, assault, rape, sexual harassment or even murder) seems very widespread nowadays, especially because there is an overwhelming impression that everybody is a potential victim (“It could be you!”) and that criminal offenders (whose traditional/modern identity has become increasingly blurred) are in (too) many cases powerful enough to neutralise the preventive/repressive activities of criminal law enforcement agencies and communities (Lea, 2002: 149–159). What is more, it seems that nobody is safe, anywhere and with anybody: danger follows you on almost every step (everybody is a potential perpetrator). This (paranoid?) state of emotional affairs requires more or less permanent caution (“nothing may surprise you”), and, after all, a range of more or less imaginative and resourceful preventive measures. The implicit commandment that everybody should take care of their own safety against criminal (and other kind of) victimisation has been, in general at least, taken rather seriously (among other things, also because people are aware that the national state with

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its criminal justice system is rather helpless in this area; in the best case, it can take action only post delictum, which is understandably often too late, at least for the actual victim), although their preventive activities (and omissions) substantially differ in quality and quantity (and often depend on their social status, level of education, bank account, personality resources, life style, job characteristics or residence). However, it is definitely true that nowadays individuals (+ households and other private organisations) are ready to do and to omit myriad of things in order to prevent a criminal offence and also other forms of victimisation. The range of preventive measures aiming at risk avoidance (or risk management) is of course quite extensive, e.g. security doors, barred windows, reinforced locks, high fences, hedges, barbed wires, open lights, sophisticated alarm systems, hidden (or intentionally visibly exposed) cameras, Intercoms, guard dogs, safes, hiding valuable possessions, renting private security services, neighbourhood watches, architectural “barricades”, defining a curfew, firearms, use of a personal vehicle instead of public transport, inconspicuous or non-provocative behaviour in public places, a priori suspicion to strangers (“you cannot trust anyone”), living in a gated community, learning martial arts, avoiding hazardous people or places, drug detectors, entrance control systems in buildings (or certain areas), staying at home in the evening ... Adults are especially careful and circumspect in the safety of children, especially their own (Furedi, 2002: 109–125). To protect a child to the greatest extent possible against various threats and dangers, parents will go to great measures. To illustrate: (a) parents drastically restrict their children’s freedom of movement (“for a child it is better – in fact, safer – to sit at home, in front of a TV or a computer, than roam around alone/independently, hanging around with peers we do not know, or cannot trust”); (b) parents inculcate into their children distrust and fear of strangers (“you can never know what appearance hides a paedophile, kidnapper or perhaps even a murderer”); (c) parents reduce the number of situations in which their child is not under their control or accompanied by another trustworthy adult (which implies that a child has increasingly fewer opportunities to play stricto sensu, i.e. to participate in activities that are not structured, programmed, controlled, managed or guided by adults and that can function as training in facing unexpected, new or dangerous situations and individuals). Nowadays, prevention has obviously become a very powerful discursive figure (for instance, if some programme is labelled as “preventive”, it is practically the same as saying it is good, quite often even if we do

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not know – and in most cases we probably cannot know – whether it is actually competent to achieve what it promises), which also has many ideological repercussions of non-negligible importance. For example: if it is primarily an individual who has to protect their fundamental assets/ goods (and, for this purpose, act preventively whenever and wherever possible), this also implies that social problems – namely problems whose causal determinants lie in societal central structures and processes – are no longer existent. What supposedly still exists are individual or, in the best of cases, interpersonal problems, which are the responsibility of – who else than – problematic individuals alone, regardless of whether they are problematic due to inborn, socialisation, (sub)cultural, personality or moral deficiencies. What is more, the core of preventive actions should be aimed at ensuring safety from problematic or dangerous persons (Stenson, 2001: 15–19; Sullivan, 2001: 32–39; Hudson, 2001: 147–150). In addition, safety, which is supposed to improve, thanks to preventive actions, is defined rather narrowly (and narrow-mindedly): usually it does not denote socio-economic security (or possibility of effectively enjoying human rights, or acting in a self-determined manner), but safety from the most elementary victimisation, such as criminalised attacks to person or property. In other words, we are dealing with safety that is threatened mainly by criminals (especially those from lower social classes) and, nowadays, also by terrorists, but not by the normal performance of the global capitalist system and the state politics, which works mainly for – as the Marxist classics established, quite correctly – long-term interests of collective capital (which are, naturally, not always identical to short-term interests of individual capitalists). To conclude this section, a society of risks is, by all means, (also) a society of prevention, or a conglomeration of “preventive individuals”, e.g. of those who actually act preventively and of those who do not act preventively (enough), although they should; namely, preventive activities have become some kind of a cultural norm (Furedi, 2002: 147–167) and are even one of the central ways of “politically correct” moralising in the post-modern society. What used to be labelled as moral weakness, indecency, sin or immoral behaviour, is nowadays increasingly acquiring the meaning of unhealthy or hazardous behaviour, in the sense of turning the meaning of “immoral” into violations of rules of healthy life, as if sinning may damage your health.

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CRIMINAL JUSTICE SYSTEM AND PREVENTION

The modern criminal justice system drew its legitimacy and “work philosophy” mainly from its supposed efficiency in preventing crime and criminality (let us not forget that an important reproach that classical criminology addressed to pre-modern punishment practices was their apparently inadequate efficiency, e.g. because they were too unsystematic, sporadic, arbitrary, cruel, unreliable, unpredictable or uncertain). When discussing the preventive performance of criminal justice systems (and not just particular criminal sanctions), we usually think of four fundamental ways to prevent criminal offences (Pavarini, 1997: 87–90; Niggli, 1997: 34–39). Let us quickly examine them. General “negative” prevention is based on intimidation of potential perpetrators, who are dissuaded from the realisation of their wish to commit a crime by the threat of criminal sanction. In this case the criminal law system endeavours to change the utilitarian structure of criminal behaviour by reducing its usefulness, e.g. by an “artificial” increase in costs or negative consequences for the discovered and convicted perpetrator (this is normally possible in two ways: by increasing the probability of arrest, criminal prosecution and conviction of discovered offenders, or by intensifying the imposed criminal sanctions, e.g. longer deprivation of liberty or deteriorating living conditions in a custodial institution). A penal sanction is, therefore, aimed at an individual’s instrumental rationality having a key role in the “calculation” or weighing up the advantages and disadvantages of consciously anticipated behaviour options (or even life alternatives). Special “negative” prevention has two aspects. On one hand, it is based on the intimidation of actual/convicted perpetrator, by means of the imposed penalty that gives him a lesson about imprudence (or irrationality) of their criminal behaviour, and demonstrates to him that crime does not really pay (“sooner or later you will get caught and punished”). The logic of prevention in this case is the same as with general “negative” prevention, except that it applies to an individual/concrete perpetrator. On the other hand, special “negative” prevention derives from a simple fact that a convict serving the deprivation of liberty cannot, during time of imprisonment at least, commit criminal offences on the other side of the prison wall, since he is physically separated from the normal social environment (while dangerous criminals are in prison, potential victims are safe from them). This dimension of the preventive function of the criminal law system is called incapacitation (the most drastic variant of this sort of prevention is capital punishment,

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the irrevocable and absolute exclusion of a bad individual from the “good” society). Special “positive” prevention is a consequence of a rehabilitation programme within which the convicted perpetrator is integrated back into society, or of some other individualised penal treatment/correction, which implies an offender’s re-socialization, re-education (e.g. general or professional education), instilling work habits, learning social skills, selfcontrol and constructive problem-solving (of course, in the framework of punishment). Such treatment measures are usually based on positivistic criminological theories, aimed at eliminating, reducing or at least neutralising the perpetrator’s criminal and anti-social (pre)disposition (or criminality), and replacing it with pro-social, socially acceptable motives, ways of thinking, skills, attitudes, value orientations and behaviour patterns/ norms. The rehabilitation model aims at changing connections between the perpetrator and the world (external and internal), i.e. at a culturally desirable/wanted (or socially functional) change of his structure of preferences. In other words, it is aimed at an individual’s value rationality (trying to convince him that his value scale is unacceptable and consequently incorrect and that is in short, something that needs to be renounced). General “positive” prevention is the effect that the criminal law system achieves by indirectly reinforcing or protecting social integration, system “stability” (or reproduction of the social order) and the collective moral conscience (in order to prevent widespread demoralization). In this case, punishment practices are not addressed to potential perpetrators (and less so to actual criminal offenders), but to the apparently disciplined and conforming (“moral”) majority (of individuals who mostly want to act in compliance with the legal norms and follow the culturally prescribed or at least tolerated life objectives). In short, criminal law symbolically confirms the unquestionable validity of fundamental social values and norms, or makes sure that the straight individuals do not get the feeling that the normatively expected behaviour is senseless/meaningless or irrational. In this respect, punishment is an instrument of maintaining long-term value rationality at the macro-social level. Namely, would there be any sense in respecting social norms in an environment where perpetrators remain largely unpunished? The punishment apparatus communicates to law-abiding citizens that conforming behaviour eventually “pays off”, if not in other ways than in the form of the suffering for those who violate the criminal laws. Therefore, one should not be too surprised by the fact that the most zealous advocates of strict punishments for “criminals, ruf-

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fians, and other scoundrels” are from the social classes whose life style is connected with substantial hardship, deprivation, frustration, “sacrificing” socially unacceptable wishes, self-restriction, and hard but honest work (Scherer & Hess, 1997: 117–118). Undoubtedly, it is highly questionable whether or to what extent criminal law actually fulfils its preventive functions in concrete social and historical contexts. Expert opinions about this differ significantly, and in addition such controversies cannot be solved by rigorous empirical verification (Pavarini, 1997: 87; Pavarini, 1994). Polemics about the pragmatic efficiency of criminal law will be continued for a long time. Nevertheless, it is not senseless to assume that the effects of criminal law are most modest at the level of general “negative” prevention and special “positive” prevention, although modern criminal justice systems paid much attention to sufficiently credible threats to potential perpetrators and to scientifically/professionally designed treatments and rehabilitation programmes, tailored to individualised requirements of actual convicts. The result was, as is well known, not very encouraging (Garland, 2001: 53–73), and provoked a serious crisis in the criminal law system (and its work philosophy) that is still going on. Since the deprivation of freedom has been the central modern penal sanction, it is not at all surprising that it was imprisonment that was subjected to most criticism because of insufficient efficiency of criminal justice system, i.e. its inadequate preventive effects. The main evidence in this regard was increasing crime/criminality and high rates of recidivism. These reproaches reached their climax in the late 1960s and early 70s, in a highly turbulent period of massive and fierce rebellion against the disciplined regime of the capitalist society, and all key institutions of modernised society (Gorz, 1999: 9–11), when it almost seemed as if the paradigmatic penal institution was coming to an end (or that it would survive only as a true ultima ratio, an extreme sanction for the most serious and, consequently, quite rare criminal offenders). However, in the following decades, something completely different happened (that has been in no way expected or anticipated). Namely, prison was resurrected (Young, 1999: 121–147) and, what is more, it has intensified and extended its functions (first and foremost in the USA, followed by a number of other countries). So, in the post-modern society, prison (in its various forms) is in again. Also, more often than in the past, it can be heard that prison works (Garland, 2001: 132), allegedly even in a preventive way (the fact that “something works” is nowadays nearly a synonym for “good”). However, post-

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modern prison works largely in a very special way (if at all, as many critical criminologists seriously doubt): not so much at the level of the general “negative” prevention or at the level of the special “positive” prevention (even less so, as a matter of fact), but, on one hand, as an apparatus of exclusion and segregation (or “selective” incapacitation) of problematic individuals (or) – i.e. as a “gulag in the Western style” (Christie, 1997), managing somehow aggregate criminality rates – and, on the other hand, as an mechanism for expressing public emotions, stimulated (and often simulated) by the media (e.g. anger, indignation or revenge). We can, therefore, see that prison has, after a relatively long development, full of continuous reformist commitments and optimistic expectations, ended in its most basic function (where it practically cannot fail). Namely, safe storage of dangerous or otherwise problematic individuals (classified in various safety regimes, depending on formalised assessment of their risk), where control over perpetrators is becoming increasingly self-serving and not a means for achieving higher or more constructive purposes, e.g. social re-integration (Garland, 2001). According to this point of view, it is better to carefully control a convict (even if it is not really necessary) than to not control them when they would commit a new criminal offence. Even though there is no convincing evidence available that a decrease in crime/criminality unambiguously, consistently or automatically follows a stricter punishment policy, harsher penal repression (plus the obviously illiberal policy of “zero tolerance”) enjoys substantial support from the frightened public (who supposedly wants “safety first”). Consequently, a larger number of imposed custodial penalties or longer prison sentences increase the quantity of incarcerated population. More rigorous punishment practices (in the spirit of hysterical authoritarian and populist policies of “law and order”), on the other hand, increasingly refer to the “democratic” imperative that the public (= potential victims) has to be protected from crime risks, possibly by spectacular measures supported by the commercial media. The key paradox in this is probably the fact that no matter how cruel or “archaic” is a punishment (with rather obvious pre-modern or at least anti-modern characteristics), it cannot soothe the feelings of endangerment (or fear connected with anxiety) which derives basically from heightened economic, social and cultural precariousness (+ politically extremely uncertain future). Expressive, retaliatory or “populist” punishment gestures (packed in quasi-militaristic and heavy moralistic rhetoric of eternal war between Good and Evil, e.g. against conventional

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crime, terrorism and illegal drugs) can mainly offer only magic compensation or the subjective illusion of safety. To illustrate this: however intensive and extensive the performance of a punishment devices may be, it cannot reduce the “environmental risks” (i.e. destruction and pollution of the natural environment), ideologically normalised economic, legal and political violence, structural unemployment (and, on the other side, unnecessary overwork), unjustified economic inequalities, tyranny of the “free” market, exclusion and marginalisation of many disadvantaged social groups, absolute poverty, relative deprivations, or lack of interest in the needs of other people (and even of their rights!). Last but not least, it should be mentioned that in our bizarre post-modern times the generally positive preventive functions of the criminal law system has slightly changed. The shared moral feelings and convictions (so called mechanic social solidarity), defended traditionally by the criminal law apparatus, are becoming increasingly “negative” (Boutellier, 2000: 149–152), particularly in the sense that they are not based on agreement about the answer to the question, what is or should be a good common life (and eo ipso a rational, democratic or just society). In other words, post-modern social solidarity is increasingly based upon normative attitudes to what we do not want or what we refuse and condemn, e.g. cruelties and various phenomena causing suffering, pain, damage or humiliation (usually, of course, on condition that they are accompanied, explicitly or at least implicitly, by the adjective “undeserved” or “intolerable”). The problem is that, in the hegemonic cultural/ideological perspective, the choice of suffering & damages, that deserve public attention, consideration and formal control reaction, is very selective (in the Marxist language: class-biased), as it is mostly concentrated on “classical” or paradigmatic criminal offences, and not on the suffering resulting from the apparently preventive effects of criminal law, crimes committed by powerful individuals, institutions and organisations, and the normal activities of the global capitalist system.

4

POSITIVIST CRIMINOLOGY AND PREVENTIVE POLICY

The functioning of criminal law, that follows theoretical guidelines of classical criminology, focuses on motivated – basically rational and egoistic – perpetrator whose passage à l’acte has to be prevented. In this respect,

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positivist criminology has made an important step forward. Its goal can be, grosso modo, formulated like this: first, we have to discover (by rigorous scientific methods, of course) the causes of criminal behaviour (or even one single and all explaining Cause); second, we have to try to eliminate or restrict them, largely with the enlightened assistance of a given political authority (in short: knowledge and power should work together against criminals that jeopardise the good society and its ordered/structured everyday activities). The positivist programme is evidently very ambitious. Namely, it aims at influencing, wherever possible, the key factors that create and maintain criminal dispositions, what will assuredly decrease the number of motivated perpetrators and consequently also crimes in concrete society (that this preventive project is socially desirable is of course beyond any reasonable doubt). Be as it was how is crime policy, based on positivist (psychological and sociological) theories, doing in our post-modern times? Not well, as it seems. The socio-political influence of specifically modern positivist criminology has substantially lessened, whereas actual preventive policy deals much more with reducing harmful consequences of crime than with eliminating social, economic and cultural causes of criminal behaviour (e.g. arrangements aiming at helping and supporting victims, reducing costs resulting from criminal offences and preventing or at least decreasing the fear of criminal victimisation and associated feelings of endangerment). Regardless of the type of social and cultural transformations that most contributed to the fading of positivist theories, it should be pointed out that these criminological explanations are deficient already in themselves (Young, 1999: 30–55; Roshier, 1989: 20–39). During its relatively diversified development, positivist criminology has studied a great number of – structural and process, micro and macro, biological-psychological and sociological – variables, which have been described as the apparently key cause(s) of criminal behaviour (or of criminal disposition). By now, the number of candidates for the central aetiological role generating criminal behaviour patterns has grown to such an extent that it is quite difficult to say what is not (or at least cannot become) the causal or “criminogenic” determinant, e.g. absolute poverty, bad parenting practices, (sub)cultural impacts, unemployment, failure at school, low IQ, lack of legitimate opportunities for achieving culturally prescribed goals, low social status, labelling, stigmatisation, discrimination, traumatic episodes in childhood, boredom, desire for amusement or adrenaline experiences, sexual frus-

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tration, patriarchal ideology, jealousy, consumer mentality, disorganised social environment, low (or high) self-esteem, peer or institutional pressures, need for self-actualisation, relative economic deprivation, ontological uncertainty, rugged individualism, political marginality, exploitation, alienation and so on (it is evident that this explanatory pluralism will generate a kaleidoscopic multitude of crime policy proposals). However, the problem is that only some people being exposed to the same “independent” causal variables will actually commit a criminal offence. In addition, positivist criminological explanations usually do not provide a satisfactory answer to the question why this is so. Another problem is that a person ostensibly showing a disposition to criminal offences (e.g. proneness to solving problems aggressively or violently) does not always act in opposition to the criminal law norms, but, on the contrary, behave in an intolerable/forbidden way only in specific situations or circumstances. Also, it has to be pointed out that criminal offences are often committed by persons with no noteworthy “criminal disposition” (this often happens in a context where the would-be perpetrator assume he will suffer no inconvenience by violating a legal norm). However, there is still another paradox, namely the fact that at one point the cause of criminal behaviour seem to be the variable X, and at another point it is its very antithesis, i.e. non-X (Ruggiero, 2001: 2–14). For instance: sometimes the cause of criminal behaviour is poverty (or lack of legitimate opportunities, dysfunctional or disintegrated family, weak emotional connection with the group and conventional social order, failed socialisation, inadequate selfdiscipline, inefficiency of informal or formal control mechanisms, exclusion from the dominant culture, unemployment, undistinguished job, bad learning or problem-solving skills, low income, political powerlessness, social disrepute etc.), and sometimes it is wealth (or an abundance of legitimate opportunities, well integrated and altogether functional family, strong connection with the group or the conventional social order, successful socialisation, excessive self-discipline, efficiency of informal and formal control mechanisms, integration into the dominant culture, employment, good learning and problem-solving skills, excellent job, high income, prestigious social status, powerfulness, social reputation etc.). In the positivist perspective, a perpetrator – some kind of homo criminalis, to intentionally simplify or caricature the issue – is mainly a person with some sort of deficiency, e.g. an inadequately civilised, socialised, cultivated, self-controlled or disciplined individual. The deficit can either

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be internal (e.g. low IQ, weak moral feelings, inadequate empathy, under-developed Freudian Superego or non-internalised dominant values and behavioural standards etc.), or external (e.g. lack of goods, such as material compensations, acceptable job, high social status, recognition/ respect from the reference group, formal or informal social support network etc.). It is also important that criminals are usually described as a social minority, even as somehow objective category differing in one or another aspect from the normal or moral majority (Lea, 2002: 43–48). If we set aside a handful of incorrigible or die-hard criminals (from whom the society can only defend itself by elimination or selective incapacitation and segregation), according to positivist criminologists, violators of criminal law norms can be cured, re-socialised, re-educated, rehabilitated or recycled, and so, in short, be made to be more or less like “we” are. The barrier between the good “us” and the bad “them” is, in principle at least, permeable (Young, 1999: 5–6). Moreover, criminological positivists were generally quite optimistic about the possibility of efficiently preventing criminal behaviour. Namely, on the one hand they bet on the treatment and rehabilitation model, on the other hand, they believed that economic growth and social progress will gradually eliminate most social problems (so called roots of crime) that generate pathological or anti-social behaviour, such as poverty, unemployment, housing problems, low level of formal education, desolate neighbourhoods, low living standards, and so on. However, in the “golden” post-war period of a social and economic boom, crime rates in several western societies increased substantially. How has this bizarre phenomenon been accounted for? Very influent explanation has been offered by the contra-revolutionary “New right”: (a) rehabilitation does not work; (b) social/welfare state does not solve problems, it aggravates or even creates them, e.g. because it encourages laziness (or disinterest in work, especially work that is connected to bad conditions and low wages), non-initiative, non-entrepreneurship, “dependency culture” and other kind of socially irresponsible behaviour (this leads into a crisis of core family, religion/church, community cohesion, conventional morals and traditional values); (c) the processes of expanding individual freedom, loosening of cultural restrictions, eroding all sorts of social authority and political democratisation have gone “too far” (so far, indeed, that democracy has become “excessive” and politically dangerous). And what could be the solutions? The neo-liberal and neo-conservative recipe is no secret (in fact, it is generally well known), namely more control, such as architectural and spatial, situational, technological, functional, system-

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ic, institutional, managerial, family, community, social and, last but not least, criminal-law control (Garland, 2001: 196–201). Key stress is placed on the fact that discipline should be extended and intensified. The decisive factors in this sort of social control are market discipline (the market should replace the interventionist state wherever possible) and moral discipline, what implies strengthening the family values (and accompanying ideology of familiarity and domestication), traditional sexual morals, order in educational institutions, individual responsibility, (slavery) ethics of hard work (in school, at work and in “free time”), patriotism, sobriety, moderation, severity and many other things that were dramatically put under question mark by social and cultural revolution of the late 1960’s and early 1970’s (Gorz, 1999: 9–11). The key paradox, perhaps even the paradox of all paradoxes, of this new-right-wing politics (which is not primarily interested in social solidarity and justice, but mainly in “law and order” enabling the capitalist chase for profits) is that it advocates control in all areas of social and private life, except where political/democratic control would actually be most needed, namely in the de-regulated and faceless capitalist economy, from where stem all or at least the majority of the most serious modern risks and harmful effects to individuals, states, societies, communities and nature. Anyway, particularly in the post-modern times, the fundamental hypotheses of positivist criminology (and consequently of its preventive crime policy) are becoming ever more anachronistic. Is there still anyone who would dare to argue that it is just the minority of mal-adjusted or somehow deficient individuals from the lower classes (i.e. conventional internal “enemies” of law-abiding people) who are exclusively responsible for crime and safety problems and against whom the good and innocent (or “morally and politically immaculate”) society has to fight, using a scientifically based and professionally justified crime policy? Has it not become perfectly clear that perpetrators of criminal offences (and other protagonists of unlawful and harmful actions) are practically everywhere, in all spheres of the social structure, e.g. in all (top, middle and bottom) classes? Even if we limit ourselves only to “scandals”, “affairs” or “irregularities” being exposed extremely regularly by the media, we can see that there is a huge and astonishing number of respectable and enviously wealthy, privileged and powerful individuals from the top control positions (in the public institution and private organisations) who have joined more or less conventional protagonists of criminal behaviour (the borderline be-

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tween them is, of course, rather blurred and is even becoming increasingly muddy). They are, for instance, heads of states, prime ministers, ordinary ministers, higher or lower public officials or civil servants, party leaders, members of parliaments, mayors, judges, public prosecutors, lawyers, medical doctors, managers, directors, charismatic businessmen, bankers, accountants, insurance specialists, brokers, financial magicians, owners of huge amounts of private capital, traders, functionaries of sport clubs, church dignitaries, cultural workers, priests, intellectuals, academics, artists, humanitarian workers, journalists and so on. What is more, it has to be stressed that the diversified damage caused by “the crime committed by holders of social power” is incomparably greater and more serious than the damage produced by the crime committed by individuals, against whom preventive crime policy has been traditionally oriented (and, as a matter of fact, still is).

In abstracto, the idea of prevention (of heterogeneous phenomena socially or politically evaluated as harmful or labelled as problematic) is based on the following basic hypotheses: (a) the borderline between non-problematic and problematic is generally unambiguous and easily recognised; (b) the non-problematic wrestles against the problematic and endeavours to eliminate or reduce it; (c) the non-problematic subject is in principle stronger (or more powerful) than the problematic object. How does all this work today? In short: in a very complex and complicated way. Namely, all of the above-mentioned surmises have become rather questionable. To begin with, the borderline between problematic and non-problematic is nowadays extremely controversial. The national state tends to deal with social issues/problems less and less successfully (or it just tries to turn them magically/ideologically into private issues/problems). The state – that is the subject of preventive policy par excellence – is not only increasingly less capable of ensuring security, but even threatens or decreases it through various acts and omissions. Paradoxically, this often happens in the name of “protecting safety” of potential victims, e.g. against threats of international terrorism. Let us, for example, consider the USA that are, in their holy war against the global Evil, capable of inflicting more damage and agony than all the other terrorists together (e.g. in Iraq and Afghanistan). Moreover, how could the state reduce or eliminate structural economic violence (being often successfully legally, culturally and ideologically normalised or even naturalised), when this particular political organisation generally function as “a committee for managing the com-

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mon affairs of the whole bourgeoisie” (Marx) and is, in addition, rather helpless in the context of economic globalisation (numerous regulative functions are transferred from a national state to supra- or trans-national political entities or private businesses)? How can a state resist the harmful activities of international corporations and the new globally mobile speculative finance (or “fictitious”) capital that are so often de facto (and even de iure!) stronger? How can a national state conduct a preventive crime policy, when the interests of its highest and most powerful officials are often closely intertwined with the conventional organised crime (e.g. in many ex-socialist transition societies), or when the state is itself involved in illegal trade in arms, abusive privatisation and de-nationalisation, extensive informal networks of clientalism and corruption or unlawful appropriation of public assets? On the other hand, many other social institutions, normally defined as key ingredients of informal social control mechanisms (aiming at preventing socially problematic phenomena), are not a very good example of moral and legal faultlessness (or “integrity”), innocence, uprightness or virtue. Let us think of the family (and of the diverse forms of violence breeding in its supposedly warm shelter, or else of the criminal projects that family members carry out together), church (e.g. sexual abuses, fraud, unholy finance operations and insidious political intrigues of its officials), charity organisations (that are often most generous to its leaders, members and business partners – “I donate and get even more”, “We like to help, mostly to ourselves and our own”), nongovernmental organisations etc. The prevention policy was (and still is) often – and contrary to the suggestions of sociological positivist criminological tradition – based upon the assumption that the key reasons for criminal actions are situated somehow outside the fundamental structures and processes of mainstream society (the so called “factory of morality”) and in its dominant culture, i.e. as if crime/criminality were only a slightly bigger pimple on an otherwise beautiful societal skin (so that this aesthetic problem can be easily removed by a proper cosmetic substance) or a malign foreign body, corpus alienum, in an otherwise healthy organism, or as if the key factors of criminal behaviour mainly originated in the fact that offenders are not sufficiently socialised or integrated into the social and cultural mainstream. Obviously, this is not always the case, since much more serious social, cultural, ecological and human damage is normally caused by individuals of exemplary socialisation and integration into their social en-

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vironment or reference groups (Hall et al. 2008: 116–141). With reference to this, Young (2002: 254–255) insightfully warns about the irony that the core values of a “market society” (Currie), such as Darwinian competition (“the big fish eat the little fish”), acquisitiveness, short-range planning (“as soon as possible, as much as possible, and with as much ease or little costs as possible”), aggressive individualism (“my own success at any price!”), risk-taking (“he who doesn’t take the risk, gains nothing”), contempt for normative restrictions and consumer hedonism, are actually very close to those that can be found in the background of numerous criminal offences (so that a well socialised person looks more like a “criminal character” than a badly or inadequately socialised individual lacking appropriate cultural standards or core values of capitalist system). Lea (2002: 127–133), on the other hand, points out that perpetrators of criminal offences (wanting to achieve material success and social status through alternative, yet normatively unacceptable means) are increasingly less “innovative” (Merton), since they simply do what “more or less everybody does”. Namely, they simply grasp lawful or unlawful opportunities available, take risks and endeavour to take from given circumstances as much of the subjectively valuable goods as possible, while avoiding negative consequences (it even seems that criminal offenders have an increasingly smaller need for “neutralisation” or rationalisation of their normative violations: why “neutralise” or rationalise something that is, in fact, in so many social fields quite normal and often even expected?). Therefore, it comes of no surprise that criminological mainstream is increasingly less interested in criminal motivation (i.e. readiness to break a criminal law norm – the variable that has been traditionally in the foreground of sociological and psychological criminology theories), but it assumes that sort of motivation in almost every “normal” individual. Consequently, post-modern crime prevention policy should strive first of all for raising costs and decreasing profits of criminal behaviour (and not for decreasing the criminal motivation). This sort of preventive policy has nowadays a firmly established name, namely “situational crime prevention”. The positivist preventive policy has been often derived from the hypothesis that crime and criminality are marginal or peripheral phenomena. However, this assumption is rather questionable in the post-modern society. It seems that crime is becoming one of the central social phenomena. To be more precise, crime/criminality has become increasingly normalised, not only statistically and culturally, but also economically and po-

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litically (the borderline between criminal and non-criminal activities and their protagonists seems ever more unclear and blurred). In short, criminality is not just an episodic or marginal disorder in an otherwise harmonious performance of social systems, but is becoming an increasingly important ingredient in the ever more destructive reproduction of social, political and economic life, e.g. at the level of capital accumulation (Lea, 2002: 143–160), acquisition of income and wealth and everyday survival (especially in very poor environments being further affected by internal disintegration/disorganisation, decline of the post-war welfare state, social fragmentation, unemployment, insecure jobs, low wages and growing ecological problems). As Lea (2002) has shown, criminal behaviour is increasingly more integrated into the “normal” social, economic and political dynamics of the post-modern capitalist or market society and into the life strategies of both the weak and strong groups (and individuals). In this sense, the normalisation of crime is by all means one of the very important dimensions of the degenerate and destructive capitalist system (similar to the emergence of the authoritarian state that replaced integration of the excluded with repressively preventive management of their exclusion).

5

SITUATIONAL PREVENTION

“Crime policy” is a complex notion, usually encompassing two principal objectives: (a) control over crime and criminality (aiming at decrease in the number of criminal offences); (b) control over negative/harmful consequences of criminal offences (e.g. by paying more attention to the needs of victims). Also, operative mechanisms of crime policy are often open and indefinite, especially when they refer to non-penal preventive measures that are normally very difficult (if not even impossible) to separate from a policy in a broader sense, e.g. from social, economic, employment, traffic, tax, education, environmental, family and housing policies. In these cases, it is only with regard to the subjective intentions of designers and performers of a particular political measures that one can discern whether we are dealing with prevention aiming at ensuring greater safety of potential victims from would-be criminals or with projects protecting the rights of threatened and under-privileged individuals and groups (Baratta, 1998: 5–9). On the other hand, modern crime

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policy mainly try to achieve two basic goals: (a) improvement of social, economic and cultural conditions in order to eliminate so-called roots of crime and prevent the emergence of a criminal dispositions; (b) transformation of criminality (if this sort of motivational disposition has been somehow already formed) into predominantly non-criminal orientations, pro-social attitudes and culturally acceptable behaviour patterns, possibly to such a degree that the “corrected” and disciplined individual can be safely integrated into a dominant value and normative consensus, the apparent foundation of the social order. Moreover, prevention of crime has been mainly conducted in three ways, i.e. by the penal system (e.g. through intimidation, incapacitation and re-socialization), by the regular functioning of the police and by social prevention. On the other hand, post-modern crime policy is much more characterized by the ascent of socalled situational engineering (replacing social engineering) and systemic integration (replacing social integration). The essence of situational prevention can easily be understood from its very name (Felson & Clarke, 1997: 197–202). Namely, this sort of crime policy tries to eliminate criminal (and other problematic) behaviour by changing various criminogenic variables in concrete situations (and in accordance with the calculation of expected costs and advantages of interventions of this kind). Generally, situational prevention struggles to achieve the following objectives: (a) increase of risks accompanying criminal projects; (b) increase of efforts needed for successful realisation of criminal’s intentions; (c) decrease of rewards or advantages provided by criminal behaviour in a given context; (d) description of targeted criminal offences as morally/legally unjustifiable, e.g. by making “neutralisation” or rationalisation of a normative violation more difficult. Situational prevention is derived from the hypothesis that an individual’s behaviour is more or less changeable in accordance with different circumstances, so that it can be also described as contextually conditioned. Therefore, interactions between individual and various situational variables are supposed to have greater criminogenic importance than a relatively stable personality structure of potential offenders (apparently acting in similar and rather predictable ways under different circumstances). Briefly, situational prevention does not deal meticulously with the question from where does the motivation for criminal behaviour stem, since it is mainly interested in situational factors allowing an individual to act in a way leading to his positive/desirable internal or external state of affairs (or providing

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him with information about the possible outcome of criminal behaviour). Situational prevention is, in fact, some sort of elaborated derivation of the folk wisdom saying that opportunity makes a thief. Its fundamental goal is to eliminate or at least decrease the number of criminogenic opportunities (and accompanying temptations), e.g. by reinforcing the safety and protection of potential targets. Situation prevention is not at all a criminological invention. Criminologists started writing about it (and recommending it, of course) when it had been already well established and spreading in social practice, especially in the private sector (or in the so-called civil society). Soon after its scientific “discovery”, it was upgraded with the theory of limited rational choice (Cornish & Clarke, 2002: 291–296; Opp, 1997: 47–56; Tilley, 1997: 96–99) that is grounded upon the following premises: (a) perpetrators are in general self-serving and opportunistic persons, striving to maximise advantages or benefits, as they perceive them (i.e. in the perspective of their scale of preferences, which can of course change in times to come); (b) offenders are susceptible to external stimuli, that either encourages (incentives) or deters (disincentives) them from criminal activities (in this regard, they are often described as “situational persons” without a strong moral compass and characterized by “consumer” preferences that cannot be easily changed, yet they can be nevertheless hindered from unlawful access to desired goods); (c) when deciding about future behaviour options, would-be criminals balance the benefits and costs of alternative/possible acts (even if, in reality, perpetrators are not always so rational and astute, they should be treated as such within preventive activities); (d) perpetrators are supposed to decide instrumentally rationally, although they are usually limited by the pressure of time, cognitive abilities and availability of relevant information; (e) criminal offences are reasonable, purposeful, target-oriented behaviour, resulting from a choice and meeting myriad of wishes (e.g. needs for money, social status, recognition, attention, sexual gratification, excitement, domination, revenge, entertainment, relaxation, release of tension, acquisition of assets, delight in transgression or crossing over everyday/”mundane” life routines etc.). Unlike positivist criminological theories that deal with – biological, psychological and sociological – factors of criminal dispositions (which can be inborn, acquired by learning or resulting from self-defined activities), the theory of rational choice pays much more attention to specific types of criminal offences (e.g. burglaries) and to concrete circumstances enabling or facilitating successful

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implementation of criminal projects (e.g. to characteristics of the “target” and its surrounding, including the victim’s behaviour). On the one hand, theory of rational choice endeavours to explain various psychic processes that determine readiness to commit criminal offences or influence decisions referring to continuation of criminal involvement and quitting a “criminal career”. On the other hand, it tries to explain decision-making that results in performance of specific criminal offences (event decisions). The theory of rational choice suggests that the decision for a criminal offence of type X is often different from the decision for a criminal offence of type Y, while at the same time the initial decision for a criminal offence of type X may differ from posterior decisions for criminal behaviour of this sort (e.g. because the perpetrator become more experienced). Needless to say, situational prevention could not avoid numerous critical objections. Some authors complain that it leads to a panoptic and fortified society. Some caution that it is convenient mainly for relatively wealthy individuals and powerful organisations, which can afford to purchase preventive products and services, sold on the market by the flourishing private security industry. And, finally, some authors point out that measures not aiming at elimination of the “real causes” of criminal behaviour (especially criminogenic factors influencing the development of criminal dispositions) end up, in the best of cases, only in some sort of displacement of criminal offences. Situational prevention is, despite criticisms, widely spread in social practice (and remarkably influential in theory). This is, in fact, not very surprising, because one needs to take into account that situational prevention – as a pragmatic, “amoral” (or at least morally neutral), technological, technocratic, apolitical and instrumentally rational approach (Garland, 2001) – is well harmonised with the predominant neo-liberal spirit of the time (Zeitgeist). Namely, situation prevention does not talk much about social injustices, exclusion of numerous categories or fragments of people from the social mainstream (e.g. the labour and consumer markets), criminogenic societal processes, systems and institutions or structural violence (e.g. ideologically normalised and legally/politically protected violence in the sphere of production, distribution and consumption). Its discursive repertoire only includes criminal opportunities (or temptations that proverbially “make thieves”), crime generating situational/contextual variables, “hot spots of crime”, risky (or victimogenic) behaviour of potential victims, vulnerable targets and similar ideologically and politically correct themes. The objective of situation prevention is not to develop a value and normative con-

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sensus (or to improve social integration/cohesion), but to ensure a smooth functioning (with minimal disturbances) of various social systems, e.g. in shopping centres, at airports or in housing, recreational, holiday or school complexes. Another reason for the attractiveness of situation prevention is that it is useful in eliminating/reducing many non-criminal problematic phenomena that can jeopardise order or conditions for a normal systemic performance (e.g. condition being necessary for generating profit). Key protagonists of situational prevention are private individuals, families, “active communities” and other civil society’s institutions or organisations. In this regard, the state functions mainly as a co-ordinator, facilitator (e.g. by addressing citizens as potential victims or suppliers of criminal opportunities, who are obliged to act cautiously, self-protectively and self-restrictively, i.e. somehow in a “self-policing” fashion), animator, motivator, informer (e.g. how protect oneself or one’s dependent persons, property, apartment, neighbourhood, school or business premises) or partner (collaborating with various agents of civil society). Situation prevention is, in fact, a specific way of disciplining post-modern subjects (i.e. social control mechanism that is embedded into the core of everyday routine activities). Moreover, we are dealing with an informal and strictly immanent form of (more or less unobtrusive, unproblematic and subtle) social control, which function without explicit moral grounding, as it does not aim at individualised “training” or “improvement” of the soul (as the moral centre of a human being), but it is based on maintaining order in the primarily instrumental sense, e.g. the order that is sine qua non for regular economic performance and profitable business. A close parallel to situation prevention, as far as control over drug-abuse is concerned, is the model of harm reduction, which, already by its very name, explicitly announces that it is not about criminal prosecution and imposing penal/formal sanctions (O’Malley, 2001: 92–94). This approach – or its various measures such as replacing used needles with new ones, providing safe places for injecting, counselling, help, methadone maintenance, and so on – is typical for the spirit of liberal utilitarianism (in this particular case, we are dealing with its “negative” variant, guided by the following idea: as little damage as possible for as many people as possible). The policy of harm reducing is derived from the hypothesis that a drug-user is, in general at least, a rational being that needs to be provided with access to reliable information and “objective” knowledge in order to reasonably take everyday decisions, especially those concerning drug

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use. Moreover, a user of illegal drugs should be considered and treated as an altogether normal consumer (similarly as the user of legal drugs that can also cause several harmful effects) that should therefore not be stigmatised (also because stigmatisation could increase risks). Moreover, the policy of harm reduction does not exclusively and unconditionally aim at absolute abstention. On the contrary, its aim is to ensure that a drug user functions as an economically/socially functional and non-problematic person taking responsibility for his actions and their consequences. The policy of reducing damage is, in fact, a rather restricted, modest and careful attempt of preventing many negative consequences of the repressive (penal and medicinal) approach to (ab)using illegal drugs. Namely, it is penal/repressive intervention into the field of illegal drugs that is perhaps the most informative example of a “cure” that causes more damage than the “disease” it tries to eliminate. A consistent damage reduction policy should, therefore, first take care of the elimination (or “deconstruction”, if you want) of the artificial and theoretically unjustified division of psychoactive substances into legal and illegal (Young, 2002: 268).

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BRIEFLY ON THE PREVENTION OF ALL PREVENTIONS

Social order is a precarious formation, the result (or “essentially by-product”) of myriad of various human activities. Social order is never and nowhere established once and for all. Obviously, it has not been created (or reproduced) by divine will, nor by laws of nature (Scheerer & Hess, 1997: 105–112). On the contrary, social order is constantly being reproduced and modified by people, i.e. social workers stricto sensu (and that with a lot of human effort, inventiveness, creativity, self-sacrifice and self-denial). In other words: social order is always a more or less problematic creature of formal and informal, proactive and reactive, transcendental and immanent, personal and structural social control. Primarily, social order is of course the order of a class and stratified society (that is nowadays even increasingly fragmented), in which the governing groups (a thin minority of the population, as a matter of fact) and their dependants/supporters have to constantly make sure that their reign – i.e. economic, political, legal and social power/dominance (+ all sorts of privileges) – is not restricted and, especially, overthrown. They have to protect their leading socio-economic and political positions (including systemic/capitalistic logic of production,

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distribution and consumption) from being questioned by subordinates (e.g. by oppressed, exploited, humiliated or otherwise abused people). This is the very essence of the prevention of all preventions (in any class society, not only within the globally capitalistic system), of which aim is to (pro)actively produce conformity (+ loyalty or obedience), what in the modern society happens mainly with the help of a ramified archipelago of “disciplinary institutions” (Foucault, 1984). The most important scene for this preventive policy par excellence is – the brain, which is the key organ for thinking. Namely, as particularly Marxist theory has shown, the thoughts of the dominant groups have to be transferred “organically” (and as inconspicuously and unobtrusively as possible) into the heads of the subordinate, so that they become somehow their own thoughts (Reiman, 1998: 165–171). It is quite obvious that the powerful cannot rule by brute force alone, first of all because they are always and everywhere in the remarkable minority (however, it should be acknowledged that coercion and threats, accompanied by direct – and in many social contexts also evidently terrorist – force of police and military apparatus, are important and indispensable instrument of government control, especially in relation to the most combative and recalcitrant members of “dangerous classes”). Moreover, subordinates have to participate voluntarily in reproducing central social institutions and structures. In other words, serving (or “performing one’s duties”, both at work and in “free time”) or – to put it even more bluntly – wage slavery (which has become in post-modern society increasingly flexible, horizontally mobile, precarious and insecure) has to be chosen freely (and not as a result of force, threats or fraud). In addition, this sort of voluntary servitude has to be perceived by sellers of work force as more or less rational, sensible, morally acceptable, normal or even “natural” fact of life. And what is even more, its context, namely the capitalist socio-economic order, has to be interpreted as basically just and good (or legitimate), non-abusive, nonoppressive and (structurally) non-violent, or – to put it more realistically – at least not too much abusive, unjust, irrational, oppressive, exploitative, unbearable, violent, destructive… However, if it cannot be any other way, the institutional system has to be presented (e.g. by official propaganda system) as a social and historical “must”, i.e. as something like absolute historical necessity that exists without a serious alternative (that could be put in practice here and now or at least tomorrow), and as such, of course, massively accepted. It seems that precisely this is the case with the

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post-modern, neo-liberal global capitalism, described proudly as undisputable winner of the “cold” war with its great “competitor”, namely the socialist/communist model of society modernisation. Of course, the governing ideology does not deny the numerous striking deficiencies of the actual capitalist system, but it interprets them mainly in the perspective of the following modalities: (a) the first (and optimistic) one claims that key dysfunctions will be sooner or later removed, mainly by the favourable effects of the “invisible hand” of “free” market (and that it is probably more likely that this will happen sooner than later); (b) the second (and more “realistic”) one points out that there is no system without bad, negative, seamy sides, and that capitalism, particularly when compared to other socio-economic arrangements, has them less, so that any alternative would be nothing but worse (that is why it is best that everything remains fundamentally as it is). In short: “ideology” – or, in other words, the predominant ways of thinking about the world and societal economic, cultural and political structures – is one of the key proactive mechanisms of systemic prevention, protecting interests of the governing classes (and preventing a radical social transformation or structural revolution). That is why, the class that governs the means of material production (and in addition owns enormous amounts of material wealth) also has to control the means of “mental production” (Reiman, 1998: 165–171), e.g. it is obliged to supervise “information management” in the broadest sense. To put it extremely simply: holders of economic and political power also have to control the production of “representations of social reality”, e.g. the institutions that create and communicate them to the masses, e.g. central media, education and research institutions. In the “society of the spectacle” (Debord, 1984), it is of special importance that the powerful have effective (although usually hidden) control over the most influential mass media (e.g. television), i.e. integrated and diffuse apparatuses for mainly one-sided “communication” with extensive segments of the population (and eo ipso for fabrication or manipulation of public opinion, first of all by seemingly a-political or non-ideological advertising), because they have de facto monopoly on what masses can see or hear and, consequently, also on what “exists” in contemporary society (in should be pointed out that the media & spectacle production works as if it was consciously and explicitly controlled from a single, central domineering position, although, needles to say, such a “control of all controls” does not exist in social reality).

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FINAL OBSERVATIONS

It could be argued that the modern crime prevention policy has been based on the principled coalition between classic and positivistic orientations within the field of mainstream criminology. Its self-evident and frequently inexplicit supposition was that the subject par excellence of preventive activities is the nation state, i.e. sovereign (and typically modern) political organization which monopolizes means of legitimate coercion on its own territory (or – somehow in Hobbes’ Leviathan manner – exercises unquestionable “transcendental” authority over the “its” society, nation or “people”) and has, among other things, the right to define, prohibit and sanction criminal offences (in fact its perpetrators). Moreover, it was the nation state that also articulated and realized numerous non-repressive preventive programs (i.e. outside criminal justice system), at local or social level (e.g. by means of interventions that referred to deficient individuals, dysfunctional families, disorganized communities or wider social-economic problems). Such a prevention policy results from an implicit supposition that key individual and social criminogenic factors are located in places that are under the effective control of the sovereign state (and that “merely” external enemies, against which the nation defends itself with the armed forces, exist outside its territory). But in post-modern times, both the status of the apparently sovereign state and the nature of security problems (or safety risks) have, in many aspects, changed (Hogg, 2002: 186–196). Namely, numerous criminal and other security risks – for example, international terrorism, trans-national crime and uncontrollable movement of the poor segments of world population – originate from places that are not under national state control, and this holds true also for the causes behind these phenomena (moreover, many criminogenic factors that significantly influence dynamics, forms and extent of the “internal” crime refer to various globalization processes which are, for particular contemporary governments at least, to a large extent variables being beyond effective political control). So, security in a particular area does not depend merely on the (in)efficiency of the preventive actions of the nation state (or of disciplinary and social control institutions scattered within the so-called civil society), but also – and perhaps even increasingly so – on the safety and political or economic situation in many other, geographically more or less remote territories (Lea, 2002: 149–151), e.g. in societies where the central legally organized political authority has lost its legitimacy and/or monopoly on means of coercion,

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or it has not yet established it effectively by the pacification/subjugation of concurrent political actors; such environments are often marked with chaotic, anarchic conditions where extremely destructive and violent (or even cruel and “barbaric”) battles rage among various types of police or armed groups (and where civilians are regularly the most numerous victims) and where the distinction between political and criminal is usually very blurred and hard to define. Modern social-preventive policy can be reproached as being too superficial or that it lacks consistency and “transformability”, first of all because it does not affect fundamental sources of unjustified or unjust inequalities (Young, 2002: 179–189). Namely, it leaves essentially untouched basic political-economic structures of capitalist production, distribution and consumption routinely generating not only excessive crime rates but also diversified forms of structural violence, such as exploitation, oppression, alienation, commodification, reification and humiliation of labour force sellers, ecological destruction and endless dissatisfaction being the condition sine qua non for perpetuation of the post-modern “opiatized consumer society” (Scheerer & Hess, 1997: 118–120). Well, the field for political manoeuvring of the neo-liberal/post-modern state (which still remains – despite the increasing power of supranational political entities and private business and finance organisations – the main collective operator/player in the nationalised society and the international system) has become even more limited, e.g. by the imperative of strengthening the competitiveness of the national economy (even in countries where “the new social democrats” have swung into power, the policy of “including” socially marginalized and excluded or otherwise disadvantaged individuals is formulated extremely cautiously and, as a matter of fact, in fear that such measures would not annoy “the satisfied majority”, the supposed political base of “the radical centre”). But beware! Even if some “deviant” government were to decide to radically reduce differences in wealth and income (e.g. in order to come as close to a meritocratic ideal as possible), this would, in no way, solve problems originating from polarization on a global level (or between nation states) and security risks originating from this fact. But, of course, in a capitalist system this is quite improbable to happen, at least in our chaotic, disorientated and uncertain times (evidently, national governments do not even think about some form of transformation of production processes nor of radical redistribution of material resources, day dreamt about by several critical criminologists).

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Generally speaking, the post-modern preventive policy is more and more showing the two faces of Janus. On the one hand, safety is changing into various sorts of commodities that individuals, institutions and organizations (even the national state itself!) buy on the capitalist market (Scheerer & Hess, 1997: 125–126). On the other hand, the state is, so to say in a quasi-sovereign way, stretching the muscles of the repressive military-police apparatuses (the dividing line between the two is becoming more and more blurred) that fight – mostly with remarkable support of the domestic public – numerous bizarre wars, e.g. against crime, drugs, trans-national organized crime and international terrorism (especially against the one that is marked with Islamic fundamentalism which has, so it seems, very successfully replaced the communist “empire of evil” as the enemy par excellence of the western civilization). The first violin in this holy (somewhat Manichaean or Messianic, if you want) battle between Good and Evil is played by the USA, i.e. for a long time the main and most powerful (and, in addition, extremely violent) guardian angel of the global capitalist system. The results, left behind by the most triumphant repressive and ideological machinery in human history, are depressing, fear and horror generating, astonishingly destructive. Let’s think of gulagization of American society and of Iraq that (because of illegal – or, in one word, criminal – aggression of the American and British forces, helped by some other vassal governments, which occurred after deadly economic sanctions and routine “preventive” bombing) has been transformed into a chaotic, anarchic and dangerous land with extremely dim promises for the future. But such negative repercussions of the moralistically-militaristic security policy (manipulated by the media) which aims at the exclusion and segregation of risky populations (on a national and trans-national level) are maybe just “Pyrrhic defeats” (Reiman, 1998), i.e. failures that are actually success for the governing structures, masters of the world, for they increase their own safety and the security of the economic-political system which warrants their privileges, positions of power and exceptional – i.e. successfully (and often in accordance with the law) stolen – wealth. Namely, it could be argued that the fears of the inferior and exploited members of society are perhaps the most effective emotional fuel for the stupid/irrational and more and more destructive activities of the world capitalist system (and, indeed, regardless of whether these fears and anxieties originate from economic fragility, ontological uncertainty, need to survive in a wild competitive war or various safety risks in the narrower sense of the word). In this regard, particularly functional

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are fears of “criminals”, “terrorists”, “outsiders” or “illegal immigrants”, i.e. fears of seemingly dangerous or harmful persons that the loyal majority (normally working and normally consuming members of community) can be protected from only by authoritarian/populist state’s repressive and ideological machinery of social control (Scherer & Hess, 1997: 126– 130). What is more, such fears and anxieties can, with considerable ease, be mobilized into general hatred (or at least into a hardened indifference, a frivolous “all-the-sameness” and emotional distancing) towards “those on the bottom” and “those coming from afar” or into a belief that the ones responsible for poverty and un- or underdevelopment (on a national or local level) are the poor themselves or, maybe even more precisely, the cultural or social frame they belong to (and identify with). It can often be heard that the ambitious project of modern criminology has failed: scientific research has not managed to unfold individual and/ or structural causes of crime, criminality or criminal behaviour. Proof: if true criminogenic variables or causal mechanisms (covered by scientific “laws”) were discovered, then the enlightened state would long ago have abolished, reduced or at least neutralized them, so that today crime would be a minor and negligible social phenomenon. In reality, it is, of course, not so. But this story runs too smoothly to be accepted without hesitation. Namely, in its development (long or short?), modern criminology has nevertheless performed a great job in terms of explaining and understanding manifold criminal phenomena. Moreover, it has to be kept in mind that theoretical and empirical criminological research is one thing, while crime policy is something quite different and politically extremely delicate. In addition, it could be reasonably enough to suppose that various (e.g. biological, economic, social and cultural) factors having perhaps the greatest impact on the nature & extent of criminal offences are in practice the hardest to change, eliminate or reduce, while factors that are relatively easy to manipulate have often limited effects on dynamic and quantity of crime in certain socio-historical formation (Young, 1999: 127–128). But in connection to this, it is necessary to explain what is meant by “the hardest”. Quite usually, this expression refers simply to a lack of political will and not an objectively insolvable problem or structural impossibility to take action (it would surely be naïve to expect that the national state – and wider public for that matter – would, in the name of the “fight against crime”, decide to radically change the fundamental social structures, especially in the field of economy). So, if a project of prevention

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referring to key crime factors (and even more to central generators of structural violence) continues to remain a political utopia, we are really left only with a “realistic” crime policy which aims merely at restraining, not at fundamental reduction of crime, e.g. by means of “actuarial” penal managing at-risk populations, situational prevention schemes, private security services and techno-prevention. What is more, this sort of postmodern prevention policy will almost necessarily include also control over many other (technically non-criminal) incivilities and disturbing behaviours provoking considerable unease, disapproval, anger or hatred of loyal citizens, because they threaten the “quality of life”, so hard earned in the sweat of their body and particularly by the hardship of their soul.

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REFERENCES

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Contemporary Crime Prevention: Some Popular Myths and Conceptual Contradictions Nina Peršak

Contemporary Crime Prevention: Some Popular Myths and Conceptual...

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INTRODUCTION

Apart from some basic theoretical questions on prevention, such as what prevention actually is and what exactly it prevents, crime or any kind of socially undesirable phenomena in general, and if crime, which type of crime etc. –, some recent social control ideas and trends are taking away from prevention that “warm”, positive connotation which makes it so different from the post-delictum repressive punishment. Already slightly undermined (tarnished) with the instrumental, probabilistic actuarial approach,1 prevention is now conceptually-theoretically acquiring some new negative dimensions which are casting a strong doubt in the old saying that prevention is better than cure. In the light of recent developments, the question arises as to whether prevention differs at all from the subsequent “cure”, i.e. punishment? In the present paper, we intend to discuss three conceptual sets of contemporary crime prevention trends and myth. In this way, we will first discuss a trend that could be called “punitive prevention”, next we shall discuss “responsibilisation” and the community myth, and finally, we will also touch on the subject of the modified concept of deterrence and the role of laws. In this context we shall refer to various background social developments, to the interaction between the authorities, the media and people, as well as to public reactions to perceived crime and reasons for the absence of organised rebellion against the restricting of human rights. The analysis of social developments will not be limited to Slovenia alone, but will, instead, be placed into a wider context of developments and trends from around the world, which volens nolens substantially impact upon Slovenian crime policy as well.

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Actuarial justice has given dispersed economistic approaches a more formal, coherent shape. We are not talking about an ideology in the narrow sense of the word, but instead about a string of practices (e.g. regarding incapacitation, preventive detention) that cannot be reduced to one specific technology. It is this shapelessness, amorphism, the lack of a clearly articulated ideology and the fact that it is not being tied to a specific technology that gives it power (Wasik, 1999: 66). Actuarial criminology, which is based on the risk-assessment of groups of people, is being reproached for having a dehumanising approach, subject objectification (Nelken, 1994: 68) and managerial, business ethos (Garland, 1996).

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Crime Policy, Crime Control and Crime Prevention – Slovenian Perspectives

REPRESSIVE (PUNITIVE) PREVENTION

Prevention should by nature be something other than or different from the sanction, which follows or should follow an already committed and proven criminal offence. “Cure” in the form of a pronounced criminal-law sentence or criminal prosecution represents the negation of the negation of the norm, the post delictum handling of offenders by the state. “Pre-vention” should “pre-ceed” the actual commission of a crime, which in a way may seem paradoxical in the sense that if prevention is successful it does not really “pre-ceed” the commission of a crime because the latter does not even occur. Hence it also follows that prevention, as a reaction policy to crime, is useful and necessary only where there is something to prevent. Although a lot has been written about what should be the correct punishment for a perpetrator of a crime so as to perform its function of deterrence, relatively little has been written about what should be (except for “effective”) the appropriate preventive measure. Certainly, the principle of proportionality between the level of interference into the individual’s liberty and the danger that the individual’s conduct represents to some other legally protected good (Rechtsgut)2 should be taken into account, as well as other criminal-law principles (e.g. the ultima ratio principle) – a set of legal norms, therefore, that regulate the actions of state authorities post delictum. However, as we are dealing with prevention – with the lesser evil, so to speak – where a crime as the negation of the norm had not yet occurred, criminal-law principles should be strengthened further or even new, additional principles and criteria introduced to justify state interference with one’s fundamental human rights and freedoms in the name of preventing eventual future criminal harm. This, at least, would be the opinion of lawyers raised in a liberal democratic spirit, but everyday reality paints a different, inverted picture. The United States of America have, for example, introduced the concept of the “preventive war” and in the name of “the war on terror” in many ways violated hu2

Here the question arises on ranking of legally protected goods (Rechtsgüter). Are they all equal or can they be placed into Kelsen’s pyramid structure? Do they therefore stand on a par or are some perhaps included, subsumed under larger legal goods, and thus originate from these? The question of striking the balance, which is even more pertinent, if we conclude that the values hold equal weight, can, in the concrete case, be a question either for the legislator or judge (or both), but in any case, it is a profound normative question that depends on normative criteria, on the morals of the individual or society under consideration.

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man rights (among other to the numerous detainees in Guantanamo, detained without a valid legal basis and regulated legal status). With the Crime and Disorder Act 1998, the UK introduced a rather disputable instrument called ASBO (Anti-Social Behaviour Order),3 while an important role in the prevention of crime is also played by the so-called CCTV (closed-circuit TV), which continually, in a Big Brother style, captures events in public places, on streets, on the Underground etc. In Slovenia, the anti-social conduct is being dealt with through The Protection of Public Order Act and more indirectly, in the case of anti-social acts connected to the abuse of alcohol, through the recently adopted Act Restricting the Use of Alcohol (known also as the AntiAlcohol Act). We will now take a closer look at the above mentioned acts and instruments as typical representatives of “punitive prevention”, deeply embedded into the governmental discourse on law and order. The “Anti-Social Behaviour Orders” or ASBOs, introduced in the UK by the Crime and Disorder Act 1998, represent a repressive measure that would – taking into account the severity of state intervention into the individual’s autonomy – in a modern liberal democratic society in principle be allowed only after the crime had been committed (and of course after ascertaining the perpetrator’s guilt). ASBO is, on the contrary, used against individuals who have not done anything criminal, but only acted inappropriately, anti-socially, which supposedly had a negative impact on the quality of life in the community (Budd & Sims, 2001: 1). The definition of what counts as “anti-social behaviour” is extremely vague4 and includes everything from gathering and lingering in courtyards to littering, trespassing and drawing graffiti – which can, on the other hand, be a description of actions of a typical teenager. Additionally, the legal nature of the order is also not that clear, for we are dealing with a civil-law order (for which a lower standard of proof is sufficient); however, a violation of this order amounts to an offence for which a sentence of imprisonment of up to five years can be pronounced5 (which casts a doubt on 3 4

5

We can notice a similar development in Canada, France, Sweden and The Netherlands, to name a few. According to the above mentioned law anti-social behaviour means that the offender acted “in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself”, and the order is issued when it is estimated that it is “necessary to protect the people that reside in the same community from future antisocial actions of the offender”. This is why some call it a “two-step criminalisation” (Simester & von Hirsch, 2006) or a “hybrid procedure” (Ashworth, 2000).

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the proportionality of the sentence), whereby the order can be issued already against a child at least 10 years of age (or 16 in Scotland). The idea alone is obviously based on the Broken Windows thesis6 which – applied to the individual – presupposes that “what Johnny learns, Johnny does” or that small things tend to grow into big things. A juvenile delinquent should, according to this reasoning, grow up into a hardened criminal under, more or less, a natural stream of events, if society does not do something sooner7 – where this “something” is not educationally oriented, but rather excluding and stigmatising.8 Critics of the above mentioned orders mention these as a typical example of “punitive populism” (Burney, 2002: 469), which is pervading the policies of the New Labour Party.9 A recently conducted research, though, among other findings, sheds light on the power of the official discourse (which is mirrored in governmental policy and legal documents) to conceptually frame the above-mentioned social phenomenon within the media discourse, i.e. on its role in the (co)creation of media representations and, consequently, social representations.10 Video surveillance in public areas with CCTV cameras as a form of prevention is, on the other hand, problematic mainly from the point of view of interfering with the individual’s right to privacy. The basis for the above mentioned surveillance is problematic also in the light of incompatibility with the fundamental principles and procedural safeguards of the modern criminal procedure, which requires that the police usually obtain an explicit approval from a designated body – generally a court order – for such 6

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“The “broken window” thesis assumes a direct causal relationship between a lack of informal social control [...] and the existence of high levels of crime.” (Crawford, 1997: 72). Untidy neighbourhood, broken windows, litter and similar signs of a deteriorating community seem to attract or give rise to crime. “It is empirically questionable, however, whether there is any direct link between incivilities, crime, fear of crime, and informal social control.” (Crawford, 1997). “Anti-Social Behaviour Orders (ASBOs) are civil orders that were designed to deter antisocial behaviour and prevent the escalation of such behaviour [...].” (Campbell, 2002: 2). A similar opinion is shared by Ashworth (2000), see Burney (2002: 471). “In criminological terms, the party had lined up with “left realism” in recognising that the pains of crime and disorder were sharpest in poor neighbourhoods least wellequipped to deal with them, but adopted “right realism’s” zero-tolerance responses.” (Burney, 2002: 471). The study thus shows how the content of the word “anti-social” has been changing in the past decade (before, in between and after the introduction of ASBOs and other ASB legislation) namely, how the term’s meaning narrowed and transformed in the direction of the official contents of the word “anti-social” (see Peršak, 2007b).

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an intervention. If we follow the general logic of the criminal procedure (especially pre-trial procedure) which allows bigger interventions into the individual’s rights commensurate with the increase in probability that the suspect is indeed the perpetrator of the crime,11 then the legal grounds for the justification of such video surveillance is surprising. Namely, here we have persons that are not even suspects, i.e. persons for whom the police have no “grounds for suspicion”, yet the interference with their rights is more than minimal. Furthermore, the efficiency of such a measure is also highly doubtful. The British Home Office claims that CCTV works, and that is why, already since 1996, it enthusiastically finances the above mentioned programme (Wasik, 1999: 70), although results of empirical studies present us with different and contradictory information. Some studies reveal that there, indeed, has been a decrease in crime in the areas under surveillance (for example in Newcastle, England, where CCTV is said to have reduced burglary, theft and vandalism by 57 %), others again show that no fundamental changes had occurred, especially that CCTV has no effect on the commitment of a crime, that at the most it helps to identify the perpetrators, thereby helping to reduce the dark figure of crime.12 However, in this case, CCTV acts already as a tool of “enforcement”, which should be distinguished from “prevention”. CCTV as a prevention tool works only if people (including offenders) are aware that cameras are in place, not if surveillance is “discrete”.13 Furthermore, as Wasik (1999) points out, there 11

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In this way, in Slovenia, for example, an informative interview or “collecting information” from citizens is allowed already in the initial “grounds for suspicion” phase, while for the use of the special method of “covert observation” or “surveillance of electronic telecommunications by bugging and recording” a higher standard of “reasonable suspicion” (that a particular person has committed, is committing or is planning or organising to commit any of the defined criminal offences – see Art. 149a and 150 of the Criminal Procedure Act) is required. The sweeping video surveillance, such as CCTV, requires fulfilling none of these conditions. In a research conducted in Norway that was presented in August 2002 at the European Society of Criminology’s annual conference by Stig Winge from Norway’s National Police Directorate, cameras were installed on the main railway station in Oslo and when the research was finished noticed a big rise in the documented criminal offences which they attributed to a higher degree in the detection of offences. Within individual criminal offence categories they noticed a decrease only in criminal offences connected to robberies and thefts, similarly small were the changes in the perception of crime, disorder and security by the local population. The problem with “discrete surveillance” with video cameras is – apart from the fact that we cannot talk about prevention – also that the rules of the game are not known. The individual that is under surveillance is not informed about the surveillance, so there is no “fair play” between the state and the individual.

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is no reliable information on whether (and to what degree) cameras really do prevent crime or do they perhaps only shift it to other, less secure and poorer areas. Moreover, the problem is evident also in the further use of the above mentioned videotapes, i.e. in the scope and limits of such prevention. In England, for example, the CCTV footage that covers one of the busiest streets in London (Oxford Street) was shown on BBC, the national British television. In Slovenia, one can observe what is happening on several city streets and markets where cameras are placed on a local television channel. Can we still count this as prevention activities or is this something else, perhaps a new-age electronic shaming (which perhaps better fits into the category of the punishment in the broad sense)? Namely, if many people who are being recorded are not doing anything criminal or against the law, but rather actions of a more intimate or hygiene nature (perhaps believing they are alone or invisibly hidden in the crowd), which they would still prefer to keep to themselves and might cringe at the thought that they are being recorded (and that, moreover, the recordings will be broadcast on television), it is hard to imagine how such stigmatisation could contribute to a reduction in social or individual exclusion and marginalisation – which are often referred to as fundamental aims in the area of crime prevention.14 Additionally, in the above mentioned example, stigmatisation was promoted in the case of socially improper conduct, not for criminal conduct alone. Even if the broadcasting of the videotapes was, in this way, pursuing some preventive – not simply punitive – purpose, CCTV had in this example proven itself in the role of preventing uncultured behaviour rather than in the role of crime prevention. Such expansion of the “competence” of the video surveillance should, however, surely step aside in favour of the individual’s right to privacy. In Slovenia one can find legislative examples of the repressive prevention (primarily of the “harmful consequences of alcohol” and consequently of crime arising therefrom)15 in the so-called Anti-Alcohol Act.16 Apart from its questionable efficiency, which was already pointed out by doctors, one 14

15 16

As such it is, for example, mentioned also in the Slovene Resolution for the Prevention and Oppression of Crime (RePZK), Official Gazette of the Republic of Slovenia, No. 43-1838/2006. According to the Resolution draft from the former footnote “important promoters of crime (are) alcohol and illegal drugs” (Point 4.3.). Act Restricting the Use of Alcohol (ZOPA), Official Gazette of the Republic of Slovenia, No. 15/2003.

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can find in this act the previously-mentioned mentality of “small things tend to grow into big things”. Article 3 of the Act, for example, refers to the “co-ordination of activities for identifying persons who have problems with alcohol, and their entering preventive programmes”, as one of the measures taken to prevent harmful consequences from alcohol abuse.17 Basically, the Act is using situational prevention, which is focused on the removal of opportunity – for all people – to acquire alcoholic drinks (in a specified time frame and place) and particularly to take away the opportunity to have access to alcohol from a specific segment of the population (e.g. from minors or people who show “obvious signs of alcohol intoxication”18).19 Interest in why people abuse alcohol in the first place and in whether they have any other alternative for entertainment – insofar as they reach for alcohol for fun – is not the purpose of this Act. The state does not seem that interested in these questions – or at least, not to such high degree – and so it rather 17 18

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3rd indent of the 3rd ZOPA Article. “Obvious signs of alcohol intoxication are generally recognisable signs, evident either in the general appearance, behaviour, walk, speech and trouble with balance, which are recognised also by non-experts (Art. 2).” Apart from the criticism on account of legal paternalism, mentioned in the main text, of the act, which forbids adults, be they intoxicated or not, to dispose freely with their bodies (more precisely, to indulge in further alcohol consumption) “for their own good”, another problem lies also in the very definition of “obvious intoxication”. First, it presumes that, for example, salespeople have during their life already seen a representative sample of “persons intoxicated with alcohol”, on the basis of which they acquired the knowledge of what “generally recognisable signs” are. The Act does not describe these signs more precisely; it merely lists certain non-exhaustive criteria. Thus, when it comes to an “intoxicated person” there should be, for example, something wrong, something deviant, immoral and exceptional as far as behaviour is concerned. What this is supposed to be – talking too loud, laughing at one’s own jokes or at jokes salespeople do not find funny or something else – is not clear. “Trouble keeping one’s balance” is also on the list. Does everyone who, for example, trips at the entrance, have trouble keeping their balance? Does the salesperson have to keep an eye on him every 5 minutes in order to establish whether it is a case of having trouble balancing or only a momentary stumble or perhaps even a disabled person? The doors to the arbitrary decision-making of salespersons of alcoholic beverages – what counts as “normal” and what as “intoxicated” – are wide open. Together with the fact that, from now on, some third party will decide what we do with our own liver, the Act is, in this way problematic from the point of view of respecting the principle of legality, more precisely demands for lex certa and stricta, even if we look at it from a purely legal point of view. The terms are too loose, they allow for too broad an interpretation and because this is a repressive statute that restricts the individual’s autonomy, such broadness can be considered unacceptable. The first and second paragraph of Article 7 of ZOPA.

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resorts to prohibition, proscription and restriction, than to the elimination of causes. The question is not, of course, whether the individual has a right to the 24-hour access to alcohol. Individuals have a right though to freely dispose with their body (provided they are adults and mentally sane), as well as the right not to have their rights that had already been acquired reduced without a very good justification – particularly when these interventions are justified with the argument that the state is intervening in “their interests”, i.e. “for their own good”.20 An example which is even closer to the British treatment of anti-social behaviour can be found in the law on violations. The new The Protection of Public Order Act21 thus, for example, criminalises offering of sexual services in public places in an intrusive manner as a form of so-called indecent behaviour (Art. 7, paragraph 3), insofar as it “disturbs people, causes alarm or indignation“. While in the UK alarm is caused by the above-mentioned anti-social behaviour, in Slovenia, it is the alarm that passers-by experience in the face of indecent behaviour that is considered legally relevant. Apart from the previously-mentioned looseness of definitions and consequent lack of legal certainty, the problem lies in the fact that the state is repressively reacting at all (and through criminal-law no less) to the simple “alarm” or distress of people. As the sensibility or threshold of alarm differs from person to person, it is thus impossible to achieve some objective, equal treatment of offenders for the same conduct. The mere existence of the offence and consequent prosecution will namely depend on the sensibility of its audience, i.e. whether they have been alarmed or not, rather than on the offender’s conduct itself. All the examined examples share a certain repressive tendency and violate the ultima ratio principle, which is not only a classical criminal law principle, but a general legal principle in liberal democracies of today. The principle that limits state repressive tendencies supersedes criminal-law frame and should thus not be understood as solely limiting criminalisa20

21

Such argumentation, on the basis of which criminalisation or some other repressive state intervention into the individual’s liberty is argued for, is in legal philosophy known as “legal paternalism” and is generally not considered a legitimate grounds for criminalisation. See, for example, Feinberg (1986). Zakon o varstvu javnega reda in miru (ZRJM-1), Official Gazette of the Republic of Slovenia, No. 70/2006; in force since 21st July 2007.

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tion or criminal law but any state repression against citizens, reducing it to the “the last resort”. The ultima ratio principle is the state’s promise to its citizens that the power invested in it though voluntary restrictions of certain freedoms on the part of the individual (as elements of the fictitious “social contract”) will not be misused, or that it will be used only minimally, to the extent that is strictly necessary,22 but will otherwise not interfere with the individual’s liberty. This principle is not only a thoughtful, civilisational achievement of a liberal society, i.e. society committed to the individual’s liberty and supporting a minimalist approach to criminalisation, but also a logical derivation of Durkheim’s finding that any attempt at crime eradication through greater repression is futile. “By closing down areas of freedom through increasingly repressive legislation, previously trivial acts of nonconformity become serious transgressions. In response, the net of legal sanctions is spread even wider, forever criminalising more and more acts.” (Tierney, 1996: 86). The ultima ratio principle is closely connected to the legality principle and the proportionality principle. The latter is violated in such a way that preventive measures, which infringe upon the individual’s liberty, erode human rights and procedural safeguards, are not proportional to the danger threatening. Even if the contentious interventions were effective (although empirical studies show a somewhat different picture), they are thus unjustified, illegitimate. The contemporary liberal democracies or modern criminal law systems - which put great emphasis on the individual’s autonomy, liberty and their personal (waivable or disposable, disponibel) goods – must be particularly careful when it comes to means, the form or procedure; for it is with these that we get good content and good ends (as the form also determines the substance). The current political crime control strategies often represent a criminological restitution of Machiavellism, where “the end justifies the means” and where the value-end of “security” is given priority over the value of “freedom” (i.e. over the individual’s autonomy, his rights and liberties).23 22

23

In the contxt of the “harm principle” this means only when and to the extent that it is necessary to prevent harm to others. See, for example, Mill (1849), Feinberg (1984), Peršak (2007a). A striking example of the latter can be found in legal acts, measures and actions of “war on terrorism” (later more often referred to as “war on terror”), for example, in the infamous The USA Patriot Act.

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But what exactly is “security”? It seems that we are dealing here with another passpartout formula as in the example of terrorism, with another vague concept under which we can subsume anything we want. What we can witness today is the narrowing down of the definition of security, its reduction to mere public security against crime, forgetting other types of security such as, for example, social and economic security. What about the so-called legal security? Although it partly sounds similar, it seems to conflict on many levels with the prevailing definition of general, public “security” in the name of which repressive laws are swiftly passed and secondary legislation quickly spread. Along with striving for brighter goals - which may turn out not to be so bright after all – we could also claim that at the end of the day it is the means in particular that represent the dividing line between “good” and “bad” societies. Machiavellism seems hardly compatible with liberal democracy and the idea of “white” violence that would justify the use of state violence as prevention of “black” violence (crime) to preserve good values, the democratic regime etc., is extremely problematic. How can we create a “good society” (a society without crime or with a minimal level of crime) through violence against its members? And we are not talking only about violence against its weakest members,24 but also against everybody else – CCTV or video surveillance of public areas as an example of “social panopticism” (Pečar, 2002: 323)25 namely does not discriminate, it interferes with everybody’s privacy and could as such be considered as violence. There is continual talk of “fear of crime”, but what about “fear of the prevention of crime”, “fear of the state”? The use of violence, the terrorising (even if only by forcing preventive security measures) of society in the name of preserving or defending the same democratic society, is an oxymoron. The use of the language and rhetoric of “defending democracy” for vindicating or even justifying violence against presumed attackers, serves as a smoke screen, the purpose of which is to prevent people from seeing what is really happening. 24 25

Although we could claim that it is how society treats its marginal and other weakest links that represents the litmus test of democracy. The author also points out that most pre-crime measures are often introduced without regulation and “completely taken out of the juridical framework and pushed into the field of particular professions and scientific disciplines, into a self-protected response and into the selling of preventive and security services on the regulatorysecurity market.” (Pečar, 2002: 323).

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But, apparently, the smoke screen works, for the attitude of the public, of civil society, towards this new-age phenomena, is surprising. The allpresent and universal increase in surveillance (e.g. in the form of CCTV cameras or the employer’s surveillance of web-sites visited and checked by employees)26 greatly interferes with human rights and fundamental freedoms of the individual, but still it seems that the public, at least for now, does not perceive this as something particularly controversial. Why is this so? Maybe we are dealing with apathy, with resignation or perhaps with the fact that people are simply used to it by now. Maybe it is a fear of Goliath in the form of the state and its powerful institutions, and that is why, believing there is much to lose in fighting the state, they are inclined to think pragmatically, in a utilitarian way, preferring to choose their battles or to find loopholes rather than to raise their voices on principle. One should not disregard also the role of the media and the small marketing tricks that disrupt our chain of thought in critical moments. In stores, for example, a person is informed that the building is protected with cameras “for your (our) safety”. The phrase “for your safety (only)” is very clever – to a random person reading this statement (e.g. inside a changing room in one of the shops in a shopping centre) in case they should start to feel uncomfortable while reading it, or should, god forbid, start to examine their rights, this phrase would re-channel their thinking, re-direct their chain of thought, shifting the focus in one direction only – in a direct causal connection to the value of “safety”. As everyone wants to feel “safe”, the matter seems fine and at this point the thought process stops, we cease to question the actual justification or correctness of this imposed causal connection or to wonder about other possible causal connections. Because the act alone (state interference) no longer seems controversial, we also stop asking Quis custodiet custodes? or who will guard the guardians, watch the watchers interfering with our rights.

26

One could perhaps argue that we are here often dealing with a private employer not the state and that there is a distinction between the two, which is why they should be dealt with differently. However, this is not entirely so; if we only take an example from labour law – the state can intervene even if a private employer violates the employee’s rights, as in the case of discriminatory employment, an employment contract that is drafted against the law etc.

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SHIFTING THE RESPONSIBILITY AND THE COMMUNITY MYTH

An additional problem which contributes to the blurring of the problem concerning new trends in crime prevention is the so-called “responsibilisation” or the “responsibilisation strategy”, i.e. the devolving of prevention tasks from the state level onto private, non-state organisations, particularly onto local communities. The author of the term, Garland, defines the strategy as a new form of crime prevention that has been developed by the British government during the past 10 years, the key terms of which are “partnership”, “inter-agency co-operation”, “the multi-agency approach”, “activating communities”, “creating active citizens”, “help for self-help”, while according to him, its primary concern is “to devolve responsibility for crime prevention on to agencies, organizations and individuals that are quite outside the state and to persuade them to act appropriately.” (Garland, 1996: 452). The mentioned state strategy as one type of state adjustment to “the new predicament for governments”,27 makes use of different approaches. The “soft” approach positively rewards (e.g. it advises insurance agencies in areas where “neighbourhood watch” is practised to offer discounts and other benefits). A harsher approach appears, for example, in the shape of a kind of governmental “extortion” of retail firms in the sense that those who are not seen as doing enough to reduce shoplifting are threatened with having to carry the costs of theft prosecution themselves (Garland, 1996: 453). Garland also observes that the idea of introducing a private prosecution system shows very well how the “responsibilisation strategy” goes hand in hand with the privatisation and the reduction of public expenditure, both of which were widely supported by the conservative governments in the 1980s and 90s. On the one hand, the development of this trend and the shifting of focus on the people and especially on communities were to be expected. There is a small step from the finding that “nothing works” or at least “not any more” (rien ne va plus) - meaning that the state is rather limited or unsuccessful in solving of the crime problem – to the decision (be it justified or not) 27

This “new predicament” was created, it is argued, as a consequence of the normality of high crime rates (Garland, 1996: 445).

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that the community’s cooperation is needed. For this reason, the state was prepared to devolve a good deal of its jurisdiction to the community and, in this way, de facto gradually withdraw from the field of crime prevention. The withdrawal of the state itself is, on the other hand, somewhat more surprising and unexpected as it seems quite contrary to the atmosphere of law and order (Wasik, 1999: 69) which despite its name puts order first and goes hand in hand with a very powerful, centralised, autocratic state. The transfer of jurisdiction and tasks onto the community thus seems like an interesting turn; the state that just moments before treated us either as criminals in the making or as children who do not know what is good for them (see above) suddenly “relies on us”.28 The turnabout seems all the more surprising, for it is not in the nature of “the powerful” (and a state, by all means, is “powerful” vis-á-vis the individual), to voluntarily give up their power or freely hand it over to someone else.29 The surprise, however, ends with the realisation that the state actually turned over only its tasks and, consequently, the responsibility (especially for failure), while when it comes to turning over its power and authority (and the financial benefits it reaps in the form of taxes), the situation is very far from an anarchist’s paradise. With the apparent transfer of jurisdiction (meaning, the shift of responsibility) onto the local community, the state has found a potential new scapegoat, just in case it turns out that this thing “does not work” (either). Even if new programmes such as Neighbourhood Watch turn out to not work, because the causal 28

29

“We need to look to individuals [...] to help us re-build those values and a sense of individual responsibility which prevents crime from taking a hold. It is only when these values fail that we come to rely upon the police and the courts. Rebuilding values will in many cases also involve rebuilding communities. Crime flourishes in neighbourhoods with shallow roots, where there is little sense of pride or loyalty and where the disapproval or neighbours does not matter [...].” (Patten; in Crawford, 1997: 70-71). This is also the opinion of Mathiesen (1998: 466) who claims (criticising beliefs of actuarial criminologists that by providing their numbers and risk percentages to the authorities, they will actually have an influence on them in the sense of limiting certain sentences, for example, long incarceration): “In the law and order atmosphere of today, decision makers can hardly be expected to limit the use of given sanctions when confronted by prediction variables showing correlations of, say, 0.34, 0.36, 0.42, or whatever low coefficient. Rather, what they may be expected to do is to continue wide and indiscriminate use of given sanctions (in fashion of collective incapacitation) while combining them with a particular upgrading of sanctions toward those showing high values on the prediction variables (selective incapacitation). In other words, what may be expected is an average increase of punishment level.”

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connection between failure and the state has been interrupted, the programme’s inefficiency or non-functioning can no longer be attributed to the state and its authorities alone, but instead to communities. And what is the reasoning behind the trend of decentralisation of crime prevention? It rests on the idea that it is necessary to strengthen the community, which is intimately connected to another idea or belief in the functioning of the informal social control that the community should efficiently execute.30 But what exactly is this thing called community? Politicians constantly refer to it, especially when they draw attention to numerous social problems which are supposedly the result of community deterioration, but nowhere do they really say what a community actually is or what it entails (Crawford, 1997: 71). Theoreticians cracking this hard nut warn us that in such and similar statements different meanings are applied to community. According to the Broken Windows thesis, a community is seen as “a powerful site of social order and control” (Crawford, 1997: 72), sometimes as a social cause or consequence of crime, as “a place”, “a set of attitudes”, as a means to an end and, at the same time, an end in itself.31 We are dealing with a myth, a myth about some ideal community where community spirit,32 social cohesion and social integration of individuals thrive, so that a (modern) collective consciousness can develop; 33 a place where individuals first think of their community and only then of themselves, and where – if they were to go astray – the com30 This is connected to the myth (originating from the Broken Windows thesis) which links the increase in crime to the decrease of informal social control – for which there is no empirical proof, however. In her 1995 research, for example, Foster discovered that informal control mechanisms were not missing in all of the areas with a high crime rate which puts in question the above supposition (Crawford, 1997: 73). 31 Crawford (1997) stresses the circularity of this version of “community” and, particularly, of argumentation with the use of this version. The community, he says, is both “the vehicle to better life and the better life”. The community (as an end) is cleansed of any negative connotations; it is an ideal that should be strived for. 32 Pečar (1998: 53) is of the same impression when he says that “interventions in a community often depend on the state which often gives the impression that “the community” is a fiction and that these are real attempts to form a “communal spirit” that should help the community (state) sustain the social situation…”. 33 The modern collective consciousness is, according to Durkheim, a collective consciousness that develops in modern societies where “organic solidarity” prevails and represents the central moral focus, the central driving force of social morals which is – in contrast to the collective consciousness in traditional societies of “mechanical solidarity” - flexible enough to allow for a high rate of individualism (see Tierney, 1996: 84).

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munity, promptly, starts its informal social control mechanisms and the crime rate drops (or even disappears completely). However, the reality of contemporary, particularly urban, plural societies (where the crime rate is considerably higher than in rural areas) appears to be different. Apart from the fact that the community myth is based on the thesis that empirically often does not hold, other assumptions, on the basis of which the community is idealised, are false as well. Namely, the community is often not the solution, but instead the problem, the generator of crime: as, for example, in the case of hooligan football supporters who, in spite of their behaviour (but probably due of it), belong to and share strong values with their “community”, which in turn stimulates such behaviour.34 When planning a community policy, it is also often overlooked that a community is also a set of institutions, while situational prevention always treats community merely as a place, which leads to anomalies because various social factors are neglected on account of stressing place characteristics (Crawford, 1997: 75). Furthermore, involvement of community in the sentencing process through community alternatives to incarceration (e.g. the alternative sanction of community service), albeit considered as a step in the direction of liberalisation of criminal law, may lead to unwanted results, such as increasing the involvement of individuals in the system or criminal law institutions (Crawford, 1997: 82). Some studies have, namely, shown that judges tend to impose this alternative sanction only on those who would otherwise be released, not prosecuted, have their charges dropped (e.g. because of the bagatelle nature of the committed crime), while now even those who otherwise would not be processed get into the system (Crawford, 1997: 81-82).

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THE CHANGED CONCEPT OF DETERRENCE AND THE ROLE OF LAWS

Usually, deterrence is discussed in connection to punishment, more precisely, in the context of the rationale for punishment. Deterrence can be a part of a judgement (the pronounced sentence), a part of a legal norm (the proscribed sentence) or a part of crime policy. In the latter two “types” it is 34 “Recent British research into criminal subcultures has reiterated the long established criminological truism that the collective values of a community may serve to stimulate and sustain criminality...” (Crawford, 1997: 73).

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not the courts that deter, but instead the legislative and executive branches of government. In the latter two instances, we are namely dealing with the so-called general prevention, while with the pronounced sentence the courts are said to pursue both general and special preventive goals. In spite of the numerous criticisms of the theory of deterrence,35 its unimpressive track record and the bad reputation it enjoys,36 it cannot be really claimed that it has vanished from the face of the earth. On the contrary, a part of situational crime prevention (the part that is not concentrated on the “elimination of opportunity”) to a great deal relies on the mechanisms of deterrence, with slight adjustments. Deterrence is namely no longer aimed only at possible potential offenders (more precisely, at a group of “the deterrable”) with the aim of preventing their crimes, but is, instead, aimed at the entire public in general, with the aim of creating a feeling of danger and insecurity, which consequently paves the way to the faster passing of some very controversial, half-baked legislation that will, in turn, grant even greater powers and legalise (even legitimise) future even more controversial and truly threatening state interventions into the individual’s liberty.37 35

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Critics of the deterrence theory stress that the latter is based on a set of assumptions about criminal behaviour, which do not, however, have a real basis. The theory, for example, assumes that the perpetrator will stop and think about the consequences of his actions before committing a crime, while many criminal offences are committed in the spur of the moment or by perpetrators under the influence of drugs or alcohol (see Martin, 2002: 177). Garland (1996, in footnote 14), on the other hand, stresses that order and conformity are mainstream social processes and not the product of the “background threat of legal sanction”. Of course, we could, at this point, add that these processes are not mutually exclusive as intimidation is also a part of everyday upbringing, of socialisation as a mainstream social process which generates conformity. Studies show that the connection between the potential offender’s conduct and the strict sentence that had been passed to somebody else is extremely weak. Moreover, deterrence relies on publicity, that is, on being informed about the sentences passed, whereby journalists often report only on interesting cases (meaning those where a high sentence has been passed), so regarding others, the general prevention will not even have the opportunity to work. The idea that punishment is justified if it prevents others from committing a crime (deterrence as rationale for punishment) is also accused of being unfair, for often the passed sentence is not in line with the proportionality principle (regarding the weight of the committed act) and the convicted person is under this theory not the end in itself, but instead a means, for he serves as a warning to other potential offenders. Deterrence is thus neither effective nor is it in accordance with the principle of fair trial (see Martin, 2002: 178). Garland notices (1996: 447) that this phenomenon coincides with the noticed change in official discourse which reduces the problem of crime to the problem of costs.

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The “new” deterrence thus seems to have a somewhat different function and range, which also points to the changed role of laws. Through criminal-law norms and their inherent sanctions the state not only intimidates a particular potentially criminal segment of the population that is “deterrable”,38 but the whole population, with the goal of creating a favourable climate for new repressive laws, minimising possible resistance and in this way legitimising future repressive measures to be adopted, which will then bear the stamp of “legality”. The law is no longer a medium that would carry, among other things, a preventive message – messages are carried by mass media;39 the law mostly serves as providing grounds for repression, as a medium for state punitiveness. Interestingly, instead of being critical to the above-mentioned conduct on the part of the state, the public similarly puts great emphasis on laws to the point of perceiving them as saviours; as if all that is needed is to pass some new law or raise the proscribed sentence and everything will be alright again (there will be no more deviations). According to the “old” deterrence theory, the (correct) punishment should be strict, certain and fast. The strictness lies in the domain of legal norms, certainty of the sentence depends a lot on the efficiency of the criminal justice system, as does the speed of the sentence. Although numerous studies have shown that the strictness of the sentence has, out of the three, the least deterrent impact on crime (while certainty the most) (see Pogarsky, 2002: 451; and especially Beccaria, 1764), the public seems deaf to the above-mentioned findings. The punitive public of today focuses only on “the searching for culprits”40 and positively reacts to “demands for higher sentences”. In addition to the political and sociological reasons 38

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Pogarsky (2002) classifies people into three groups according to their responsiveness to the threat included in legal sanctions (deterrence): acute conformists, the deterrable and incorrigible. Deterrence has an impact on the second group, for with “incorrigible” the threat of punishment does not help, while with the first group it is unnecessary, as the social informal control makes sure that they act according to the law. Ever since ratings take priority over the quality of the programme, the mass media gladly participates in the marketing of threat – threat and fear namely “sell” very well. The media plays, according to Beck (1992), a key role for it is the media that primarily identify risks. Appealing for higher sentences is triggered almost automatically as a sort of conditional reflex when a new “scandal” is revealed. The said phenomenon is in criminological texts often referred to as “popular punitiveness”. For more on this see, for example, Faulkner (1996).

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(the power of the state, media propaganda etc.) for the above-mentioned phenomenon, reasons could be sought in psychology as well. The finding that only “weak” states rely on intensively punitive sanctions (Nietzsche & Durkheim; in Garland, 1996: 445) holds true on a more individual level as well, on people who are with regard to deviance of exclusively punitive persuasion. Sometimes individuals feel similar criminal impulses themselves and, consequently, feel guilty for them. Which they tend to suppress or neutralise (Sykes & Matza, 1957) by verbally distancing themselves from the matter; such as by condemning the deviant act, the culprit and demanding higher sentences. On the other hand, tracking down culprits often also has a sort of “cathartic” influence on people – people feel better when somebody is found guilty, for they get the feeling that they have done something (or their society has) – and, in this way, neutralise the unpleasant emotional response triggered by crime, i.e. they re-establish the psychological balance that was shaken by crime or, more precisely, by the awareness that the crime had been committed. This unrest, however, often has no direct causal link to the criminal offence committed. Instead, we are dealing with various anxieties springing from the individual’s social, economic, or wider ontological insecurities that get redirected onto a convenient victim – an individualised scapegoat in the form of the suspected offender. Last but not least, the morally indignant and excessive punitive reactions of the public, following immediately after the discovery of the act that increased the collective feeling of fear, can also be understood in the light of the finding that the emotion of fear is a primary emotion which often overflows consciousness and leads to an automatic response (Le Doux; in Jarymowicz & Bar-Tal, 2006: 372), even aggressive response, to the perceived source of the threat.41

5

CONCLUSION

Instead of fighting metaphoric wars on crime in some other battlefield – in the field of actual causes and proactive programmes (that would focus on e.g. eliminating poverty and discrimination, easier access to education and re-training, greater and more long-term employment, possibilities for 41

For more on this and on the connection between security and emotion see Peršak (2008).

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young people etc.), many countries of today prefer to resort to increasing repression as early as in the phase of prevention. This repressive wave, which usually comes to us from the USA or UK and manifests itself as a kind of great import product for the “new Europe”, is dangerous not only because of what it is, but also because of what it can become. It is particularly dangerous because of the potential it carries. This trend is, namely, expansive and no one can promise that the development will stop at this point: why shouldn’t, for example, in the next phase all preparatory acts be (in principle) criminalised, i.e. raised to the level of independent criminal offences (and, in fact, we can witness this trend to some degree already)? The hidden potential of this repressive stream of events can, in this way, lead ad absurdum. As long as we are dealing with “prevention”, i.e. as long as the above-described state conduct is being justified in the name of prevention – whose first association is not connected to “repressive” state intervention into the individual’s autonomy –, the danger to individual liberty is even greater, for it stretches onto the whole population and is often not subject to supervision, i.e. to safeguards of the criminal procedure. Security is certainly one of the most important values of each individual and society as a whole; it is a legal good, a human need etc. Ensuring safety as such is not an idea that would contradict modern liberal democratic societies. The main difference between societies is in the manner in which a society goes about securing. Securing should not, for example, cause greater harm than a potential attack on protected goods or values would cause. Security should not encourage xenophobia or intolerance of any kind. It should be carried out with the use of lawful and legitimate means, respecting the rule of law, the social state, human rights and general principles of humanity. In these times it seems that what is needed the most is a focused and critical view, particularly of means and methods for reaching praiseworthy goals. Here, we should also keep an eye on the seemingly neutral techniques and rhetorical figures, such as, for example, the popular balancing metaphor. Even if we were to accept the omnipresent official argument that in securing and preventing crime (at least to some extent) one should balance the value of the individual’s liberty, autonomy and human rights against the value of security, it could be maintained that there exist certain civilisational postulates (fundamental human rights and basic criminal-law principles being part of them) that simply do not allow (i.e. must preclude) any sort of balancing.

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REFERENCES

Ashworth, A. (2000). Is the Criminal Law a Lost Cause? Law Quarterly Review, 16, 252-253. Beccaria, C. (2002, orig. 1764). O zločinih in kaznih. Ljubljana: Faculty of Law and Cankarjeva založba. Beck, U. (1992). Risk Society: Towards a New Modernity. New Delhi: Sage. Budd, T., Sims, L. (2001) Antisocial Behaviour and Disorder: Findings from the 2000 British Crime Survey. Findings 145. London: Home Office. Burney, E. (2002). Talking Tough, Acting Coy: What Happened to the Anti-Social Behaviour Order? The Howard Journal, 5 (41), 469-484. Campbell, S. (2002). Implementing Anti-social Behaviour Orders: message for practitioners. Findings 160. London: Home Office. Cohen, S. (1979). The Punitive City: Notes on the Dispersal of Social Control (extract). In: Wasik, M., Gibbons, Th., Redmayne, M. (Eds.). Criminal Justice (pp. 81-83). London: Longman. Crawford, A. (1997). The Local Governance of Crime (extract). In: Wasik, M., Gibbons, Th., Redmayne, M. (Eds.). Criminal Justice (pp. 70-78). London: Longman. Faulkner, D. (1996). Darkness and Light: Justice, Crime and Management for Today (extract). In: Wasik, M., Gibbons, Th., Redmayne, M. (Eds.). Criminal Justice (pp. 1416). London: Longman. Feinberg, J. (1984). Harm to Others - The Moral Limits of the Criminal Law. United Kingdom: Oxford University Press. Feinberg, J. (1986). Harm to Self - The Moral Limits of the Criminal Law. United Kingdom: Oxford University Press. Garland, D. (1996). The Limits of the Sovereign State: Strategies of Crime Control in Contemporary Society. The British Journal of Criminology, 4 (36), 445-471. Jarymowicz, M., Bar-Tal, D. (2006). The Dominance of Fear Over Hope in the Life of Individuals and Collectives. European Journal of Social Psychology, 36, 367-392. Martin, J. (2002). The English Legal System. UK: Hodder&Stoughton. Mathiesen, Th. (1998). Selective Incapacitation Revisited. Law and Human Behaviour, 4 (98), 455-469. Mill, J.S. (1991, orig. 1849). On Liberty and Other Essays. Oxford: Oxford University Press. Nelken, D. (Ed.) (1994). The Futures of Criminology (extract). In: Wasik, M., Gibbons, Th., Redmayne, M. (Eds.). Criminal Justice (pp. 65-70). London: Longman. Pečar, J. (1989). Neformalno nadzorovanje v lokalni skupnosti in soseski. Anthropos, 1-2 (20), 45-60. Pečar, J. (2002). Zmogljivost in uspešnost preprečevanja kriminalitete – nekaj dilem. Revija za kriminalistiko in kriminologijo, 4 (53), 316-326. Peršak, N. (2007a). Criminalising Harmful Conduct: Harm Principle, its Limits and Continental Counterparts. New York: Springer.

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Peršak, N. (2007b). Representations of the Anti-Social (M.Phil. thesis). Cambridge: University of Cambridge, Faculty of Social and Political Sciences. Peršak, N. (2008). Varnost, vznemirjenost in kazenskopravni odziv. Varstvoslovje, 1 (10), 32-44. Pogarsky, G. (2002). Identifying “Deterrable” Offenders: Implications for Research on Deterrence. Justice Quaterly, 3 (19), 451-472. Simester, A.P. and von Hirsch, A. (2006). Penalising Offensive Behaviour: Constitutive and Mediating Principles. In: Hirsch, A. von and Simester, A.P. (Eds.). Incivilities: Regulating Offensive Behaviour (pp. 173-194). Oxford: Hart Publishing. Sykes, G., Matza, D. (1957). Techniques of Neutralization: A Theory of Delinquency. American Sociological Review, 22 (6), 664-670 Tierney, J. (1996). Criminology – Theory and Context. London: Prentice Hall. Wasik, M., Gibbons, Th., Redmayne, M. (1999) (Eds.). Criminal Justice. London: Longman.

PART II Prevention of Specific Crimes and Alternative Approaches in Crime Prevention

Youth Unemployment Management as a Form of Social Prevention Darja Zorc-Maver

Youth Unemployment Management as a Form of Social Prevention

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INTRODUCTION

“The society of work” denotes a form of a contemporary society where an individual achieves socialization mostly, and above all, by work; people are forced to maintain full employment to gain the necessary means for their existence. Employment has material and social effects, visible on other spheres of life, and is reflected in the self-image and identity of an individual (Daheim & Schoenbauer, 1993: 5). Understanding this “society of work” is important, since it shows how paid work represents a social activity around which the “normal” models of life and socialization in contemporary industrial society are gathered (Galuske, 2002: 35). The society of work, with its dynamics and logic of distribution, defines pedagogical tasks and pedagogical science is responding to those tasks with critical reflection. Work, comprehended as paid employment, began in industrial capitalism, which is denoted by a great reduction of space and time distances (modern communications, internet) (Giddens, 1996: 25). From the mid-18th century work became a “prevailing structural principle of social differentiation, as much as the royal path of social integration and thus a development model for the individual and collective life samples and plans” (Galuske, 2002: 33). This socio-historical reconstruction of the term “work” shows what today’s comprehension of work is, an “invention” of the industrial society, which has become a natural category ever since. The social modernisation processes in a sense of “reflective modernization” (Beck, 1986) and “post-modernity” (Giddens, 1991) are reflected in de-standardisation of status levels in the life cycle (Hurrelmann, 1994). The status cycles in a modern society, education – employment – retirement, represented a normal course, or the biography of an individual. The foundation of the status cycles was employment as the basis for social integration. Today’s flexibility between the employment market and education leads to individualization and de-standardization of a normal life cycles, which means that the dynamics of status cycles can no longer be viewed in the context of the institutionalized life courses; the subjective perception and the dynamics of status cycles is becoming more and more prevailing. Understanding individualised youth status cycle transition management, competencies, and sources, is becoming more and more important. Individualization at a subjective level causes more and

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more uncertainties and break-downs. Every individual has to manage and reflect them inside their biographic cycle. Individualization is narrowly connected with self-thematizing, where youths have to be able to understand, and be responsible for, their own perceptions of reality, decisions, and for management of their own uncertainties. The biographic perspective of an individual is narrowly connected with the existing institutional structures of the life-cycle and represents a biographic construction of reality. The increased complexity of transitions is also reflected in subjective management strategies. If we take a look at the society of work from a pedagogical point of view, we can see that paid work is in the centre of those activities that form the socialization and life-cycles of an individual. Entering into the employment system is defined as an important factor in achieving the “adult” status in classical sociology. The important role here is played by the autonomy regarding the possibility of youth to acquire the means for survival and social integration, where youth by employment achieves the status of an adult person, and becomes a part of society. Such comprehension of adulthood is based on the general presumption of the existence of normal employment, which is based on a genderspecific distribution. The transition of youths into adulthood depends on social institutions and the “integration attainability model” (Boehnisch & Schefold, 1985: 39). Whenever employment attainability is not assured, it results in diminishing adult-life integration possibilities, as long as those are under the cultural dictate of “normal employment relations”. Due to hindered transition to adulthood from the end of the eighties, we are facing the prolongation of the youth period, which results in the prolongation of the educational period. Full participation in social life, connected with transition into the employment cycle, must be again and again re-established through further education, pre-qualification, and adult education. Education, in this way, becomes both the future investment and present survival mechanism that reduces the threat of exclusion from normal life-cycles (Walther, 1996: 17). We are more and more applying the formula that certificates of qualification are no longer satisfactory but, on the other hand, more and more indispensable to acquire a position in the employment system (Beck, 1986: 244).

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The term society of work, therefore, reflects the conflict between work and capital and the socially-structural power of work and its social-integrative function. Employment is not only the means to create a fortune, but also a specific person, type of human being, needed in the present society: a person that is normalised-standardized, in accordance with society’s needs. Employment does not produce only wealth and fortune, but also the “soul”, certain mental, psychological, or spiritual stands, motivation, and dispositions that enable solid social samples. With all this individualization, pluralisation of life-models and life-plans, all heterogeneity of truth and reality, it seems that only one thing that remains constant and stable: our normal reflections and feelings, our model of the normality, is based on the more friendly and formulated presumption that people should give to their lives materially and socially-psychological contentment, through paid work. Paid work is an instrument of life possibilities: distribution, poverty, fortune, educational possibilities; paid work is the connective tissue of society, the great” integrator of society (Galuske, 2002: 37). The processes of the youth life modernization could be understood as liberation processes. Youths, in those liberation processes, are not merely passive objects; they perceive and evaluate their own biographic situation, and develop strategies of their operation and struggling with problems. This means that they are experimenting with new life patterns and that the “normal life course”, from the youth’s everyday perspective, no longer offers a certain orientation (Walther, 1996). Youth represents the top of a glacier of liberated life forms, where the normal life-course loses its efficiency. This establishes a new “strategic social group”, who is testing the new models of social integration beyond the “normal life course”. Such youths are pioneers of the “multi-option society” (Kroehnert; in Walther 1996: 27). Their knowledge and management strategies represent the source for the future models of social integration, and they are the key factor of change in society. The social changes in work, and consecutive modifications of the socialintegration model, have a powerful influence on all socialization and educational institutions, and on the social interactions between them. Numerous sociologists (Castel, 2000; Beck, 1986; Boehnisch, 1994) are emphasising that the crisis of the modern work society lays in its socialintegrative function of work, which means that there is not enough work

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for everybody, which disables the average course of normal life, based on full employment. What is disappearing and changing here is not the society of work, but mostly paid work, family, and social integration, and this represents the most important element of the modernization processes (Boehnisch, 1994).

2

RESEARCH AND METHODOLOGY

The transition research, orientated to this subject, is dedicated to analyses of subjective biographic uncertainties, and the management strategies, of analyses of socio-economical conditions and institutional regulative processes. The work presented here is part of a larger research project: “Concepts and Strategies of the Social Pedagogical Interventions in the field of Social Exclusion of Youth.” We have explored the subjective experience of work in the biography of juveniles, the experiences of juveniles with unemployment, and subjective management strategies, used for youth risks. The research involved twenty youths, aged 18 to 25, at the time of their unemployment. We used qualitative methodology, and an interview to answer the following questions: 1. What is the youth’s view of employment and what is the meaning of employment in their life biography? 2. Which strategies do they use for managing unemployment and how are those strategies included in their perception of life? 3. How can we develop new preventive, compensating forms of interventions to offer protection, support, and help to young people who have experienced unemployment?

2.1

The Experience of Unemployment and Management Strategies

For the youths interviewed, the experience of unemployment is similar to other experiences of unemployment of young people in general. The fear of unemployment is a significant stress for contemporary youths. Unem-

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ployment is a critical situation in the biography of the juvenile, since work represents the crucial factor of an individual’s identity. Work represents a possibility of self-fulfilment, social recognition, and inclusion for most of the youths interviewed. The consequences of unemployment are social insulation, living on the edge of existence, and long-term dependence on parents: “When you have no work, you are worthless and socially useless. I lost many friends and its getting harder and harder for me to cope with this problem” (Tomaž, 23 years). The interesting recognition is that the symbolic meaning of the term work is getting more and more value with the increasing unemployment; work fulfils the youth and brings them pleasure. Therefore, work represents the foundation of existence and fulfilment of the youth’s life. Most of the youths interviewed are orientated to a traditional professional biography, where the occupation represents the main element of an individual’s identity. Due to changes in contemporary society, this is a very risky situation for a young person. Exclusion from work for most of the youths interviewed significantly “shakes” the sense of their own importance, since they feel like “socially useless” persons. The strategies of youths to deal with unemployment can be classified as productive and unproductive. Unproductive dealings with unemployment are showed in feelings of uselessness (“I don’t do anything” Milan, 20 years) and in unstructured everyday life. Others get lost in illusions; all the objectives of their lives are submitted to search for work, but they don’t do anything to achieve those objectives. The third group has problems with different forms of addiction, which represent additional problems. Another group of youths is facing their problems more productively – they try to achieve better conditions for employment with additional education or pre-qualifications. The research showed that different social networks play an important role in facing and overcoming unemployment experiences. The family is a chief social-support for most youths; but a few cases show that a family may become a hindrance factor where there are no proper relationships inside the family (different addictions, violence).

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Exclusive orientation of the personal biography into an occupation may present a risky situation; youths, building their identity exclusively on acquiring employment, quickly fall into identity crises. They build their identity on firmly fixed future objectives; when the objective is not reached, they probably face great disappointment.

2.2

Importance of Work for Building Individual Identity

Individual’s identity is not acquired at birth; it is developed in the process of life. Identity is understood as a progression process of life formation, re-constructed in single everyday situations. Identity is always about adaptation, and negotiation with different requirements. The present identity project is an open identity project where the objective is an imaginary fixed point that is constantly changing (Keupp, 2002). An acceptable identity enables a certain level of coherency, authenticity, recognition, and capability of operation for an individual. Keupp (2002) emphasize that we need the subjective capabilities and social material sources to achieve an acceptable identity: • We need the material sources to achieve an acceptable identity. This increases the social differences in today’s ideologically and politically market dependant society. Social issues are individualized due to individualization; an individual must seek their own solutions for their life position. • The individual also needs social inclusion and recognition. Employment presents not only an acquisition of material sources but also social inclusion and recognition - a social network. The importance of other social networks that offer social help and possibility of inclusion to individuals (friends, neighbourhood, and help groups) is increasing, due to increased erosion of traditional communities, and unemployment. People from the social edge are usually in lack of such sources. • An individual in the contemporary world needs the capability to negotiate with different possibilities and identities. Different partial worlds require from an individual different roles and behaviour samples when they are facing different situations, roles and requirements. This requires a certain level of sensibility, reflectivity, and conflict management capability.

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• The important psychological presumption for an acceptable identity is the capability of the subject to constantly adapt to different situations and peoples and not to operate in accordance with the principle “all or nothing”. An individual needs sources to establish an everyday identity. It is of great importance how they precept and use available sources and not only what kind of sources are available. Bourdieu (in Keupp, 2002) developed a concept of sources as different capital. He defined them as economical, cultural, and social sources. Economical sources are an individual’s material sources for building an identity. These are the sources, directly translatable into money, such as money, salaries, property, etc. Cultural sources have 3 forms; incorporated, objective, and institutionalized capital. Incorporated capital is the internal property and stands of an individual, and acquiring such capital requires time and energy (e.g. education). Objective cultural capital is in the books, art, etc, institutionalized capital is the acquired certificates and awards. Social sources present a totality of actual and potential sources, connected with the network of more or less institutionalized relations of the mutual acquaintance. While building an identity it is important, how the individual translates different forms of capital into others, e.g. how they use their social sources, and exchange them for material or cultural sources. The terms and conditions of transforming social into economical capital (acquiring the possibility of work, or other forms of existence, independent of work) are very important for unemployed youths in Bourdieu’s theory (in Keupp, 2002). In his research, that confirms the results of our research, Keupp (2002) analysed the relationship between unemployment and identity. He has ascertained the following: • Contemporary society has de-standardised occupational biography. The normal occupational biography as a part of an occupational identity has almost disappeared. Present occupational identity is established through different, constantly modernized, modified, and supplemented projects. • In time of erosion of instances that could offer some sense to young people, work becomes a more and more important identity-building factor. Youths crave for work, which brings them pleasure.

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• Employment defines the social position of people in society and remains the foundation of an individual’s identity. Unemployed people never build their identity over their families or free time, but over the absence of work and consecutive loss of the meaning of life and social inclusion. This may result in psycho-social consequences and destructive forms of behaviour, and in firm orientation to subjective, sensible work. Absence of work, therefore, increases the importance of work for identity development. • Employment brings the experience of social recognition and self-fulfilment. Work becomes an “instance, which gives meaning to life” and cannot be replaced with anything else inside given social conditions. Unemployment is an aggravating circumstance. The question is how can we master the experiences of de-motivation and risk different positive experiences and acquisition of new competencies for being productive, faced with risks. The psycho-social effect of unemployment, therefore, depends on the interpretation patterns and value orientations of an individual and from patterns for positive crisis management. The fundamental ascertainment of contemporary research (Stauber, Pohl & Walther, 2007; Galuske, 2002) is that subjective unemployment experiences cannot be mechanically erased from the cumulative structure of problems. Previous unemployment studies, which were oriented mostly at the cumulative effect of such circumstances, are becoming unsatisfactory and very limited when looked through the frame of contemporary knowledge of the differences in cumulative or compounded circumstances. Orientation in sources, social network research, and understanding of a youth as a creator of their own life, brings new concepts into youth unemployment management. Modern societies have implemented a cultural model where employment is a subjective sensible centre of an individual’s activities. Employment has become a central media for social inclusion, recognition, contacts, and an individual’s identity development. The other face of implementation of such a cultural model of the society of work is that eventual exclusion from the society of work does not represent only the possibility of poverty, but also the possibility for a loss of an individual’s identity (Scherr, 1991). Unemployment represents a loss of material existential safety, and the social position of an individual. Unemployment represents an existential risk for an individual, due to this fusion of an economical and cultural

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model (Scherr, 1991). By the appearance of individualization and by erosion of collective patterns, unemployment is perceived as an individual faith of an individual. The concept of social sources and networks, which bring the possibility of mobilization of socially disproportional distributed sources, is becoming important in the context of more and more de-standardised transitions. Social networks remain the only protection when youths are no longer able to lean on traditional institutional supports, such as school and family. Scherr (1991) developed a concept of the social networks for unemployed people. He emphasises that we may use social networks for a new preventive form of work, for young unemployed people. The term social network is generally understood as a group of an individual’s social relations (Hurrelmann, 1994: 239). We distinguish between personal networks, related to a specific person, and its relationships and social networks that include the entire system of relationships – neighbourhood, community. The general ideas of social network research are based on the following findings: • The more a person is involved in relations with other people (which are of importance for such a person), the easier critical life situations and smaller aggravating effects can be overcome. • The social network works as a protection shield when we are facing an aggravating situation; it is acting as a “social immune system” (Hurrelmann, 1994). Social networks may serve as a protection system and may offer help to overcome a youth’s everyday life problems. The importance of social networks for work for young unemployed people is significant in the following areas: • Development of areas for group work, e.g. help and support groups. Such groups should develop a new valuation of unprofessional work, e.g. educational work. • Social networks may serve as the innovative and experimental area for the reduction of the significance of socially accepted natural orientations. • Social networks establish new external relationships (outside work, relations, and partnership). • “Non-occupationally orientated life schemes” can be materially supported and socially accepted inside such social networks.

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Due to mobilization of social capital it becomes much easier to handle individual unemployment inside the social network. The youths in our research defined family and friends as the main social protection of unemployment management problems. But the discussion about strategies for dealing with unemployment problems showed that the youths perceive unemployment as an exclusively individual problem that may be solved with “more work, activity, and study”. The role of community and alternative movements wasn’t noted in our research. The explanation could be that there are still no organized alternative youth work forms in our community that would help youths find new forms of social inclusion and reflect their unemployment experiences.

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CONCLUSION

Due to the great significance of work in building youth’s identity and the erosion of the present society of work, we have to question whether there are any alternatives for a contemporary society of work. A pedagogical concept of a “non-occupationally orientated life scheme” (Krafeld, 2000) is oriented in enabling unemployed individuals to shift from a work society oriented biography. Such social pedagogical orientation, contrary to integration into work, tries to help youth to productively manage the unemployment situation and enables the development of a non-occupationally oriented life scheme (Scherr, 1991). Such help is oriented at youths as the productive re-makers of reality with capabilities for an “active designing of life”. We have to move away from the stand that the reasons for unemployment are socialization and qualification deficits. Those deficits are, above all, a selection criteria and not the reason for unemployment (Galuske, 1999). This represents a re-orientation from the problem to the source development. Orientation as the problem itself increases a sense of incapacity and a need for assistance for the youths. Such assistance should be focused on: • Different projects instead of the work market; • Interest and pleasure at project engagement (that should derive from the project, not from an imaginary future in the work market);

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• Help for youth to search for life models (including models not oriented to work); • Building communities and social networks, inclusion in the socio-political discourses on the distribution of work and fortune, material safety, and patterns of social inclusion (Galuske, 1999). Social pedagogy, oriented in such a way, is supposed to offer space and support to the youths in the search for new patterns of social integration. In this view, social pedagogy could be understood not only as help in the integration of youths into the society of work, but as an answer to the social processes of modernization and risks of growing up. The changed transitions of youths require new professional forms of perceptions, where deviations from standardised transitions can no longer be understood as the deviation categories. Modified transitions of the youths require a new form of professional detection of transitions, where standardised deviations are no longer understood in the deviation categories, as the deficit of an individual and adequately orientated help. We need a social pedagogy of transitions for the subjectively oriented de-standardised transitions (Stauber et al., 2007), which will build a new socio-pedagogical view on the transitions from youth to adulthood. Such social pedagogy is more oriented on the biographic competencies and uncertainty management potential than on the deficits. In the pedagogical sense the social pedagogy means the movement from compensative education and help to acquire the biographic competencies. The term biographic competence is means a reflection and formation of the relationships between demands and possibilities of society, especially on the labour market on one hand, and an individual’s personal needs and interests (Stauber et al., 2007). The basic presumption of such social pedagogic is a participation of users with their own motivation and engagement in their transitions. The participation means: • Voluntary participation and possibility of selection between different options, where an individual identifies themselves with their own choice of occupation and transition; • Flexibility of offers for the individual design of educational processes; • Time and space availability for the individual’s testing and designing of informal study;

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• Recognition of an individual as the unique subject with their own occupational demands and life plans instead of the detection of socialization deficits; • Faith in experts, opened for different biographic courses; • Perceiving the youth as a social partner in the socio-political institutions of labour market and help (Stauber et al., 2007). Subjectively oriented research of transitions enlightens and analyses the biographic perceptions, institutional, and socio-economical processes. Destandardised transitions require youths to form competencies for independence, self-formation, selection of different options; they must independently form their own transitions. For this, they require such support and protection that shall take seriously consideration of their demands. Subjectively oriented research is based on the sources of an individual; those sources may be overlooked inside the traditional institutional logic if the help is based on the traditional understanding of the social integration, where only actual employment presents a factor of successful integration. Such help ignores other socio-integrative possibilities for the transition, individual’s subjective biographic perceptions, and management strategies. Biographic research of the life situation and youth transition methods, their sources and management strategies, is opening the possibilities for the social pedagogy of transition that shall integrate in its help a reflection of the social changes and subjective perceptions of youths whereby institutional work is reflected in the biographic perception of reality. Such social pedagogy is more oriented on needs, subjective youth experiences, and institutional offers for social integration outside the individual’s occupation. Educational, juvenile and social policies should overcome models of “normal life phases” and consider different individual development and management strategies. This also requires an urgent change of policy from the reproduction of a “normal life course” to protection of a different everyday life management strategies and urgent movement from the occupational orientation to integral life orientation (Krafeld, 1989: 71). The contribution of youths in forming new social life forms is making them ideologists and, simultaneously, users of such social policy that flexibly adopts its system requirements to the needs of the young people.

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REFERENCES

Beck, U. (1986). Risikogesellschaft. Auf dem Weg in Eine Andere Moderne. Frankfurt: M. Suhrkamp. Boehnisch, L., Schefold, W. (1985). Lebensbewaeltigung. Soziale und Paedagogishe Verstaendigungan an den Grenzen der Wohlfartgesellschaft. Muenchen: Juventa. Boehnisch, L. (1994). Gespaltaene Normalitaet. Muenchen: Juventa. Castel, R. (2000). Die Metamorphozen der Sozialen Frage. Eine Chronik der Lohn Arbeit. Muenchen: Konstanz. Daheim, H. J., Schoenbauer, G. (1993). Soziologie der Arbeitgesellschaft. Grundzuege und Wandlungtendenzen der Erwerbsarbeit. Weinheim: Juventa. Galuske, M. (1999). „Integration als Problem der Jugendberufhilfe“. In: Treptov, R., Hoerster, R. (Eds.). Sozialpädagogische Integration. Entwicklungsperspektiven und Konfliktlinien (pp. 253-269). München: Juventa. Galuske, M. (2002). Flexible Sozialpädagogik. Elemente einer Theorie Sozialer Arbeit in der Modernen Arbeitsgesellschaft. München: Juventa. Giddens, A. (1991). Modernity and Self-Identity. Cambridge: University Press. Giddens, A. (1996). Konsequenzen der Moderne. Frankfurt: Juventa. Hurrelmann, K. (1994). Lebensphase Jugend. München: Juventa. Keupp, H. (2002). Identitätskonstruktionen. Das Patchwork der Identitäten in der Spätmoderne. Reinbek: Rowohlt. Krafeld, F. J. (1989). Anders Leben Lernen. Weiheim: Belz. Krafeld, F. J. (2000). Die ueberfluessige Jugend der Arbeitgesellschaft. Eine Herausforderung an die Paedagogik. Opladen: Leske. Scherr, A. (1991). “Netzwerkförderung – Eine Innovative Strategie Sozialer Arbeit zur Bewältigung von (Jugend)Arbeitslosigkeit?” In: Dewe. B., Wohlfahrt, N. Netzwerkförderung und Soziale Arbeit (pp. 62-94). Bielefeld: Kleine-Verlag. Stauber, B., Pohl, A., Walther, A. (2007). Subjektorientierte Übergangsforschung. Weinheim: Juventa. Walther, A. (1996). Junge Erwachsene in Europa. Jensits der Normalbiographie? Opladen: Leske.

Prevention in Elementary School Mitja Krajnčan

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INTRODUCTION

The principle of prevention is in the theoretical, strategic and practical contents between the basic concepts of education and schooling. Prevention is a frequently misused term, a part of cliché rhetoric, that is, an activity where the line between what is still considered prevention and what is curative work, is hard to pin down. In this article we will present primary, secondary, and tertiary forms of prevention; and some other possible classifications. There are many different approaches and methods, and here as with the methods of education, it is also hard to not only expose the successful, but also the unsuccessful methods. The purpose of this article is to compare the current concepts of prevention and present an overview of these current approaches for their applicability.

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THEORETICAL PART

The term prevention presents the combined formula of a rational and transparent approach for all those types of behaviour connected to dangers, damage, insecurity, problems, conflicts, or to sum up, everything that is considered unwanted behaviour (Schilling, 1995; Bečaj 1999). In this context, preventive discourse in a self-description of interventions made by each institution faced with the dark sides of social normalcy. Prevention is not intended as a helping device in troubled times but rather as a helping structural maxim aimed at the life of adolescents (Thiersch, 1992). In any case, the term prevention was “discovered” in the 20th century. The preventative character of social pedagogy is explicitly marked in 1929 when Gertrud Bäumer defined it as collective work of healing and prevention that should be aimed towards practical activities (Maller, 1992). The call for profiling prevention is not a new phenomena but rather a constituent element of all predecessors to social pedagogy and social work (Gilling & Pierpoint, 1999; Schaarschuch, 1998; Walklate, 2003; Magajna, Peček, Bregar Golobič, Čačinovič Vogrinčič, Kavkler & Tancig, 2005).

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Prevention strategically implies preventing problems from even arising. We need to solve problems, improve relationships, encourage development in children and adolescents, support them, and not only react after a child has already been harmed. In this context prevention is timely intervention, or appropriate reaction made in time. Either way, many people are involved with this etiquette of prevention - from those in politics to those in the fields of practical work, science, and theory. Prevention is a social assignment of the community with many individual missions. It is directly connected to the principle of timeliness. Prevention is an investment. It enables a logical and practical non-contradictory and realistic sovereignty, to help adolescents by doing voluntary work and fulfil the addressees’ legal rights ensuring them that they have been treated properly (Bauer, 2005). There is also a discourse on crime prevention in the crime department. Prevention is also mentioned in the department of social control where Cohen (1985) defines it as the “Mickey Mouse concept” that applies from early childhood until death. All interventions that are therefore aimed at people or situations and constellations of people and circumstances, are described as risks which can be considered as prevention (Meško, 2001). We have to stress that the term prevention has to be used according to its accurate meaning, as the goal of prevention is to prevent unwanted behaviour from arising and offer a child a sufficient amount of sources and support in the form of positive behavioural patterns. We will present some of the classification options, that is, taxonomically according to the object, function, and time-dimension.

2.1

Prevention Classification According to the Departments and Target Groups

The important differentiation of preventive concepts is connected to the question in which department someone, or something, has been rejected, scared, driven away, suppressed, averted, avoided, pushed away, reduced, reformed, integrated, controlled, disciplined, protected, supported, as-

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sured, insured, defended, declined, redirected, improved, substituted, or left in peace. Basically it concerns the differentiation between an object of prevention being merely an act/fact, or if it is focused on the doer, that is the perpetrator (Bauer, 2005). The prevention phenomenon aims towards the goal of taking action where it has the intention of change, which is, processing events in the sense of limiting, reducing, channelling, or preventing an unwanted future. Classifications according to target groups are very different. We differentiate according to age, sex, social origin, goal, and type of prevention, etc. (Bauer, 2005; Olk, 1995).

2.2

Differentiation of Prevention According to Function

Prevention strategies are based on changes in people, social statuses, and situations. Within the differentiations of preventions according to function, we can see a preventive function, how to form, plan and execute a preventive action that will not cause damage in a modern society taking risks. Unwanted, distracting, risk elements, therefore, need to be removed from individual sectors, or society, and at the same time risk factors need to be removed or channelled (Bauer, 2005; Olk, 1995).

2.3

Classifications of Prevention According to Time Dimension

Proceeding from medicine we differ between primary prevention (the focus is on the whole population), secondary prevention (early diagnoses), and tertiary prevention (rehabilitation), according to the time dimension. Primary prevention includes all measures that ensure improvement of the social circumstances and conditions. Secondary prevention is connected to individuals or groups who already require help. This includes treating unwanted development which is simultaneously aimed at following through with prevention or reducing damage. The distinction made at the level of secondary prevention between measures of educational help is merely symbolic (Bauer, 2005; Olk, 1995).

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2.3.1 Primary Prevention in Elementary School Supporting positive behaviour comes from behaviouristic approaches aimed at improving the possibilities in school, within the family, and the community, by creating an efficient environment. The child’s background increases the adequacy or connection of procedures confirmed by research on the environment in which the educational process takes place. Attention is put on creating support forms at the primary level (in schools), secondary (in classrooms), and tertiary (individual), for improving results connected with the way of life (personal, medical, social, domestic, business, recreational) for all children and adolescents, to reduce the influence, function, and importance of behavioural problems and increase the functionality of approved behaviour (Melzer, 2006; Rozman, 2003). We would like to prevent behavioural deviations reported in newspapers or seen on television: violence among pupils, aimed at teachers, thefts, abuses, bullying, drug abuse, etc. Research shows that the efforts in preventing these serious problems are more successful if the home environment and the school fully support children in obtaining and using professional methods. The procedures that fulfil these criteria include making pupils aware and award them for basic compliance to these behaviour criteria. For example “be reliable”, “be responsible” or “be polite”. Being responsible means staying within the boundaries and following the rules of the game. In stairways and hallways this means watching your hands and feet and keeping right (Holtappels, Heitmeyer & Melzer, 2006).

2.3.2 Secondary Prevention in Elementary School Is an act of intense and targeted intervention for supporting those pupils who do not react to the efforts invested at the level of primary prevention. Interventions are more intense within secondary prevention as there is a lower percentage of pupils possibly faced with serious behavioural problems and, therefore, requiring more support. Usual procedures in secondary prevention include smaller groups of pupils or simple individualised forms of help. Within groups this includes the social skills club, log on/ log off, and a plan on education on behaviour (Melzer, 2006; Rozman, 2003).

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2.3.3 Tertiary Prevention in Elementary School Tertiary prevention is focused on the needs of individuals with signs of serious, more permanent behavioural problems. Research showed that the efficiency of supporting positive behaviour, including those types of behaviour considered as dangerous, is very negative and hinders the learning process, and results in social exclusion and exclusion from the educational process. Supporting positive behaviour is used together with adjusting pupils’ behaviour with a very wide range of characteristics, including autism, emotional problems, disturbances in development, or pupils who have not been diagnosed, but evidently cannot solve or control their problems. Tertiary prevention is most successful in cases with a positive primary (educational) and secondary (classroom) approach. Implementing efficient support and individual support is based on a method of integration and cooperation. We should include the individual and the people who know them well, who cooperate in achieving positive change, and work as a team that supports appropriate behaviour (Melzer, 2006; Rozman, 2003). Support has to be adapted according to individual needs and circumstances. An integrated approach of understanding and reacting should be included. The goal of tertiary prevention is to minimize the problem of unwanted behaviour and increase a pupil’s abilities for adapting, and the options for increasing their life quality (Elsner, 2007).

2.3.4 Early Prevention of Lack of Interest in School Teachers in elementary schools too often discard individuals behaving badly or retreat into their own world. In order to prevent the phenomena of lack of interest in school we need to define the criteria showing that something is happening to a child. Retrospectively, teachers often formulate their perceptions in terms “we noticed something was not right, as it could have been we”. In order to solve the pupils’ problems efficiently we need systematic elaborated experiences and perceptions that detect problems on time – an alarm – and also targeted, functioning strategies, and transparent experiences.

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Prevention is an inflated miracle instrument against bad and costly consequences called “behavioural disturbances”. What should be the characteristics of this term in order for it to be used wisely in the field of prevention and lack of interest in school? Which target and age groups are included and which criteria can be successful in finding the right approach to prevent distancing from school? What should be included in the goals and relevant practical measures to free the term “prevention” from the cliché meaning and preventive rhetoric (Böllert, 2001; Peklaj, 2001)? What is prevention? The distinction between prevention, action, and curative strategies, is hard to make.

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METHOD

We would like to show some possible types of prevention with the use of a method that includes examples of good practice. As in the method of social pedagogy work (Schilling, 1995), there are no good or bad methods, or approaches, but rather more or less enthusiastic implementers of these methods, who need to be properly educated and given enough choices to make the right decision for each and every child’s, or adolescent’s, specific situation.

3.1

Examples of Good Practice

3.1.1

Recognising Risk Examples

Sensibility of indicators showing lack of interest in school and rejection presents the main part of preventive work. In every case, school experts, together with the social pedagogic department, have to focus their attention on potential individuals who behave differently in school, are dissatisfied or actively or passively showing disagreement or rejection towards school. The recognised case has to be treated properly making sure a child does not feel rejected but rather safe in the following expansion of relationships – when all subjects connected to the project are gradually invited to cooperate (the child, their parents, and teachers). The following cases can make a vital contribution towards better detection and inclu-

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sion of individuals at risk into a constructive school environment (Braun & Wetzel, 2000).

3.1.2

Change of Criteria for Achievements or Different Way of Thinking During Class

A very clear criterion which is simultaneously very “hard to crack” includes shifts at the level of requirements. School grades and requirements can be an indicator where we can search for contents interesting to the child and strong points where they can discover their potential and raise their grade score average. Another important indicator is absence from classes – not only the unexplained absence but also the excused absence - which can be an important indicator showing us that something is going on with the child. The problems of the child, their parents, fear of school, on their way home, of classmates, etc, are indicators often overlooked that can show that something is going on with the child (Braun & Wetzel, 2000).

3.1.3

Different Types of Relationships and Social Behaviour

The relationship, contact, and pedagogic ways are the main milestones on how to include the child into the educational and schooling process. According to Gogala (2005) this is not possible without an honest and loving relationship; and experience confirms this. That is why it is important how a child perceives their pedagogic leader and how they find sources in the child and themselves for the child to use. If the child has a good relationship with the teacher in the educational process there is a smaller chance that they will feel misunderstood or rejected during bad times. It is then that this type of emotional bond can prove to be a vital factor for their persistence. It is also important to understand the gender specification in socialisation of children (Gogala, 2005; Bečaj, 1999).

3.1.4

The Missing Integration

We have to control the individual parts - behaviour in integrating children into classrooms and problems (or fear) of classmates which can also be an important reason for a child’s reserved or uninterested be-

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haviour, and loss of connection to schoolwork. The children repeating grades, or those who transferred from another school, are important in this category. These children have to be monitored closely (Braun & Wetzel, 2000).

3.1.5

Helping Individuals and the Development Plan

Initiative identification and development has to be the main interest of the teacher who accurately offers support and help to the child within a certain timeframe - also after school or in an unstructured situation - for the child to gain adequate knowledge and motivation for further work, that is, for a new beginning. Clever pedagogic leadership can also be used by classmates. Children rarely seek help with trained social teachers or other social workers. Here it is important that they do not stigmatise the child. Preventive projects also include development plans. These plans are developed together with a child, goals are set together, and a consensus is reached. Then we take into consideration which goals the child can reach on their own, and those where they will need professional help, and also how these goals will be evaluated. Steps are fixed and the child can see when a certain goal is reached. In the framework of these agreements it is necessary that a high level of coherency between school, helping the child, and the parents, is reached (Kopffer, 1995).

3.1.6

Improving the Climate in the Classroom

School has to be a place where children and adolescents with problems are treated seriously and responsively. These problems play an important role as complex problematic situations are part of the school environment in the long-term. This includes developing options within school and classes where a child can feel stronger and improve their self-confidence (Liefert, 1995, in Leonhardt 2002; Marentič-Požarnik, 2002). These options, and the cooperation of children, in the school, and parents in everyday life in school, should be created simultaneously to prevent a child from experiencing any bad emotions or fear. The school has to intentionally encourage the child’s development of social competencies

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Cooperating with Parents and Helping Adolescents in School

The school and the professional education team have to find good and intensive contact with parents, and nurture it. Cooperation at the level of a partnership would be an important start. Parents need to be included in the everyday life in school; they should not be discarded, as these types of parents tend to distance themselves from the educational process due to their own lack of social competencies. Parents are an important factor for including school in the local environment. They can brighten the everyday life in school and are an important source for school quality and its environment.

3.1.8

Pedagogy Should not be Seen as a Method of Solving Problems

Kupffer (1981) wonders if the school can continue with the set school socialisation and disregard the social pedagogy. Can social pedagogy build a counterpart where the ungrateful function of help arises and creates accessible and transparent circumstances without of tension? It would be excellent to see the school and social pedagogy agree on what society truly expects from them and which of these expectations they are obliged to fulfil.

3.1.9

Transparency of Selective and Successful Mechanisms

Böhm and Böttger (1981: 63) say “that school is an institution with people who work under chronic violence of success and under the pressure of legitimacy.” The didactics of every pedagogic initiative, state: if the school wants to be humane it has to set general guidelines on success when put under the pressure to succeed. Social pedagogy will inevitably also have to experience this necessity in school. They have to put this into their considerations, and - in order to be unbiased – overcome it every day. “This environment helps create a certain mental state of the pupil. School presents the centre of his universe, and their existence is only valid through the existence of school, everything they do will further their academic

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career. The pupil is the prototype of a one-dimensional person. They also get this feeling from their parents.” (Böhm & Böttger, 1981: 62). In this type of school a person’s qualities that cannot be classified are unimportant. “School as a secondary socialising field is a meaningless thesis as persistence in a current state overshadows the true value principles of the society.” (Böhm & Böttger, 1981: 67). If schools did not primarily produce achievements but rather a belief or adequate behaviour we would be able to imagine what type of behaviour is deviant. A certain measurement is not deciding. We have to develop a type – as Böhm and Böttger call it - an average person without a profile. But despite all the fears, parents are proud if their child is successful. Anger at the school therefore arises only when their child fails. This quiet solidarity of parents and the bigger part of society shows that school is set as an instrument of objective disciplining, and that strict upbringing or discipline are part of past generation (Struck, 1995). This way school causes pain and is perceived in a negative manner. According to Kupffer (1995) the task of a critical social teacher is to influence narrow-mindedness, the one-dimensional fixation. It needs to be stressed that a parent’s point of view regarding school contains the remains of an attitude of bowing to authority and an undemocratic way of thinking. This can help in understanding today’s meaning of school teaching, the reality of many children’s and parents’ lives.

3.1.10 Confrontational Pedagogy Together with concepts, such as settlement of an argument, mediation, social skills training, etc, confrontational pedagogy also offers new, complementary, and advanced theoretical and practical drafts that deal with violent behaviour within the school system, and together with classmates and teachers, develop and train calm, creative behavioural patterns for coping with violence or other types of inappropriate behaviour. The accompanying and confrontational attitude of teachers gives the pupils in everyday interactions and confrontational discussions a known, calm, “civilised standard” of joint coexistence that also requires consist-

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ency. The highest goal of the confrontational idea is preventing victims of violence and the feeling of discomfort in school (Konfrontative Pädagogik). The concept of confrontational pedagogy consists of the following elements: The basic element includes: – The theory of confrontational pedagogy; – Methods and concepts for implementation in classroom and school culture; – Introduction to the structure and methods of “coolness training” (coolness training, trains pupils and teachers to keep calm in a stressful situation). After the conclusion the school can use the following contents according to its needs, conditions, and interests. Two important facts to abide by are: – Confrontational conversation (structure, environment, discussion techniques, training possibilities); – Setting boundaries / life and work with aggressive behaviour, behaviour in risk situation, fear and lack of power against aggressive behaviour, controlled interventions for tackling aggressive behaviour.

3.1.11 Successful Repetition Through Cooperation Work concepts are aimed at minimising the number of those pupils repeating classes. The danger for these children is that they are not fully integrated into the new environment and, thereby, are rejected or limited in their emotional and social development. This is a networking concept of elementary and professional schools. This means that after-classes teachers from professional schools have classes. Teachers from upper grades can come teach in lower grades (Melzer, 2006).

3.1.12 Classes can Help Prevent Disturbances This thesis is based on three principles that should be available at every school and classroom:

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1. Every pupil has the right to learn in peace. 2. Every teacher has the right to teach without being hindered. 3. Everyone has to respect the rights of others. Disturbing others is a sign of a lack of comradeship and disrespect. Training enables more time for efficient studying time, assuming responsibility for your own actions, exiting the spiral of conflict situation, and professional monitoring of reflective behaviour as the grounds of change (Melzer, 2006).

3.1.13 Solving Disturbances During Classes (Conflicts, Aggression and Violence at School) Following and evaluating values are the basic premises of this type of work. This includes social skills training, systematic family therapy, pedagogic role play, gestalt therapy, mediation (Konfrontative Pädagogik).

3.1.14 Educational Problems – Prevention 1. At school and during classes we have to practice social skills and responsibility if we want to pass this on to the pupils. 2. Further education of teachers in the field of preventive interventions has to be complete and includes many senses, such as social-emotional maturity, which cannot be achieved except in a cognitive manner. 3. Learning based on experience in further education and in the classroom is based on: – Complete; – Voluntary; – Responsible; – Mutual respect; as pupils learn what they have to study and how to obey (Schilling, 1995). Special attention is paid to the following areas:

– Handling disturbances, conflicts, stress, and violence in school and during classes. Conflicts and disturbances in everyday life in school occur due to different reasons and have many dimensions. Different

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options in conflicts and alternative suggestions should help solve them in time. The main part is based on emphasising experience, learning and working on relationships (Kury & Lerchenmüller, 1983; Tomori, 2002). – Gender aware pedagogy and reflexive co-education – an element of school development. Which tasks do today’s children and adolescents have to face in their development into women and men, and how should they act with their classmates? Results from different research work have shown how important it is to answer these type of questions and how important gender specific school work is, where we need to take a closer look at the goals and methods (Mikiča & Žorga, 2005). – Non-violent communication according to Marshall Rosenberg (2008). According to Carl Rogers (Gear, 2000) it was Rosenberg who came up with a model of non-violent communication. We can develop it in schools, educational facilities, and institutes, to prevent conflicts and develop the willingness to cooperate. It is based on 4 steps (Olk, 1995): 1. 2. 3. 4.

observation without judgement, evaluation and assessment; assessment of our emotions during the observation; formation of needs that are behind these emotions; formation of the request of what each person can do to free or satisfy their need.

And two parts: 1. to express ourselves fairly, according to the four steps; 2. to listen actively and with empathy.

- Mobbing pupils. Mobbing is nothing new in schools, and teachers know about it. It is hard to distinguish between “normal” teasing, verbal attacks, and ruthlessness among pupils on one hand, and mobbing on the other. It is important that we not dramatise mobbing in schools, we have to recognise this type of behaviour and act accordingly. We need to be sensible in distinguishing between what is considered mobbing and what is not, which types of mobbing can arise, and what measurements are available (Olk, 1995).

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- Mediation in school. Conflicts, disagreements, arguments, and contradictions, are part of life. Conflicts are usually not pleasant, we want to avoid them, but life experience tells us that conflict can also bring something more than just negative, unwanted, or even dangerous feelings. It can be the basic device for improving relationships, knowing ourselves and others, and a basis for growth and development. Conflicts arise spontaneously, and can manifest in the form of violence. From the perspective of constructive conflict solving, with the help of school and peer mediation, we would like to shift the discourse from the field of violence to the conflict area and, thereby, open up the real possibility for preventive work against violence in school. Prevention against violence in school lies in learning and education for creative and open conflict solving. Conflicts cannot be avoided – it is not a constructive solution – and that is why it is important that all “involved parties” in the school structure learn this type of conflict solving as a form of prevention. It is a shift from consequences to causes. Mediation presents a cooperating and responsible way of conflict solving where both parties find a solution together with the help of a third, neutral person who helps and guides them through the procedure by using individual techniques. Participants in mediation explain their side of the story, state their wishes, needs, and expectations, and listen to the opposing party and try to understand their point of view. The participants then try to find a solution to the conflict that will best serve both, and present a qualitative change in their communication and relationship. The inclusion of conflict management by mediation, and their use, prepares a pupil for life in society, reduces tension, and is a way for normalising mutual relationships (Lisec Metelko, 2005: 59-60). - Social skills training. The basic goal of this training is to also include social and emotional learning in the studying process. It is aimed at constructive conflict solving, strengthening the pupil’s self-value and confidence to form positive attitudes towards themselves and others. Social learning and emotional behaviour should not be taught only through points and situations; constructive social behaviour has to be taught in a structured and strategic programme starting at an early stage in life. The constituent parts of this program are: 1. Experiencing and learning how to handle the diverse characters of classmates;

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2. Recognising our own strengths and weaknesses, and learning to evaluate them; 3. Being able to consider other people’s feelings; 4. Recognising emotions and learning to name them; 5. Learning to listen; 6. Giving feedback; 7. Learning to look at the problem from different perspectives; 8. Knowing how to cooperate (Schanzenbächer, 2003).

- Strategies, concepts, and methods used in school as a system. Disturbances during classes can be a burden to everyday life in school. The majority of disturbances arise because children do not think about their actions. The concept of “responsible thinking” wants to show pupils the consequences of their actions, make them aware of them, and make them consider the consequences of their action. We emphasize two goals: 1. Disturbances during class have to be prevented. 2. Pupils have to be confronted with the options to assume responsibility for their actions and their goals during class, and to respect the rights of other pupils. Early prevention helps classes run smoothly. If pupils disturb a class they can go to the “training place” where they will think about their actions, together with a trained professional, and find new strategies for solving conflicts in the future; pupils can return to class only after they sign an agreement on how they will behave in similar conflict cases in the future. This concept presents a combination of a constructive method for developing responsibility, and the pupil’s ability to choose to develop a working environment in class. This model needs to be accepted by pupils, teachers, and students as it demands additional funds for another teacher (Dieken, Rohrmann & Sommerfeld, 2004).

– Conflict resolving, implementing help – change – after-care. Conflicts always arise when people are involved. It is not always a fair solution, but they can be solved professionally: school mediation is a concept of developing a constructive conflict culture. Pupils are trained to engage

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in a conflict situation as a non-bias third party, and find satisfactory solutions for both parties involved. This approach unburdens teachers and helps pupils gain independence and responsibility. Topics in this concept: standards in pupil education, models for conflict resolving, source evaluation, inclusion of the school environment, inclusion of parents, specific steps for on-the-spot plans, and evaluation of existing work, processing possible consequences, the possibility of repetitive events (Dieken et al., 2004). – Collegial advice on a case. Collegial advice on a certain case is an instrument for collegial processing of disturbances and conflict cases. Unlike supervision, this concept is based on collegial advice made by a specialist of an independent teaching intervention that functions at the level of a board, led independently in accordance to a specific pretraining module. The method is suitable for groups and teams of teachers processing the following areas: 1. Class disturbances and discipline problems; 2. Conflict relationships with pupils; 3. Insecurity in deciding on pedagogic measures, etc. The goals of this concept include: 1. Teachers’ professional work attitude; 2. Unburdening an individual by developing empathy, understanding, and efficient collective consulting work (Dieken et al., 2004).

- How to set boundaries? Self-implementation in the workday is important. During everyday life in school, teachers are constantly confronted with problematic school situations where they have to set boundaries, for example: 1. A teacher has a valid reason for making a pupil leave class. The pupil defies them. 2. A pupil greets a teacher by saying: “Hey baby”. 3. A teacher is faced with complete chaos in a class they are supervising. 4. A burnt-out teacher has to organise a sports event.

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Every teacher develops strategies to cope with these types of situations which are, more or less, effective; and sets boundaries that bring a certain amount of success. A teacher has to consciously evaluate and see their strategies, reflect on them, and learn to use new approaches that will use up less energy. The ability to set boundaries is an important pre-disposition for working without pressure or failure. This concept includes five areas: 1. 2. 3. 4. 5.

Body language; Distancing and unburdening techniques; The principles of self-implementation; Supervisory counselling on specific situations; Analysis on improving structured conditions in school (Dieken et al., 2004)

3.2

Children with Behavioural and Emotional Disorders

Work recommendations for children with behavioural and emotional problems offer an educational program (Škoflek, Selšek, Ravnikar, Brezničar & Krajnčan, 2004). We know: – – – –

Educational preventive programs; Compensative programs; Programs on personality integration and social integration; Curative programs (health, psycho-therapeutic procedures).

Behavioural and emotional disorders are clearly a reaction dependent on mood, and external stimulations (classmates, teachers, school subjects or learning material, class environment, etc.). The creation and development of behavioural and emotional disorders can be divided into four levels of difficulty: 1. The first level includes periodical behaviour (pupils’ reactions) which does not comply with the expectations, but can be recognised, understood, and dealt with by teachers alone. 2. The second level includes periodical occurrences and problems that hinder, disturb, or de-concentrate teachers, and force them to stop the learning process, and focus their attention on the pupil causing the

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problem (if the teacher knows, and is able to resolve, the problem successfully) or call for professional help (a social pedagogue), etc. 3. The third level includes common occurrences, problems, or disturbances that distract or hinder teachers in their work; teachers cannot solve these problems alone and, therefore, adequate specialists at school or from outside, have to help them. 4. The fourth level includes occurrences, problems, disturbances, offences that teachers (according to their self-evaluation) are not able to, or cannot, solve alone, and nor can the counselling workers, which means that they have to find specialised help outside school or temporarily suspend the child from classes (individual classes, home schooling, boarding school, juvenile facility) (Škoflek et al., 2004). The occurring forms of behavioural and emotional disorders in school vary. They can regard:

– classes (chatting during classes, not paying attention to the teacher’s lecture, playing games during class, doing school assignments irregularly (homework, studying), negligent work, “forgetfulness”, “losing work”, coming late, absence, etc.); – Relationships with classmates and teachers (clowning around, arguing, teasing, insulting, intimidating, bragging, aggressive reactions, evasiveness, different substitutes for pleasure-fulfilment: smoking, drinking alcohol, experimenting with drugs, etc.); – Failure (constantly avoiding school duties, openly rejecting studying, teachers, school, lack of interest, apathy, unexcused absence from classes, partial or general failing of classes) (Škoflek et al., 2004). School work with children with behavioural and emotional disorders is very specific. These children often show average intelligence, and are able to achieve minimal knowledge standards. As problems – consequences of asocial behaviour – usually arise in school, this requires additional training and knowledge from specialists. The school is not properly qualified to teach such a child, which only increases the problems. Specialists in school usually follow instructions of social pedagogues, but in practice these instructions are not always efficient. Preventing behavioural problems is, therefore, left to the schools’ specialists. The school has a Manual on the pupil’s rights and duties in elementary school (Official Gazette of the Republic of Slovenia, no. 31/96, 15/98, 75/04) which provides sanc-

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tions in case of minor or serious offences, but the school cannot comply with this manual in the case of pupils with behavioural or emotional disorders as educational measurements do not encourage pupils to think about improving their behaviour (Peklaj, 2001). Teachers and social pedagogues (and other counselling workers) have to interact. They cannot remain entirely in the hierarchical school system (teachers responsible for after-school classes, in upper grades, lower grades, counselling workers (psychologists, pedagogues, social workers, Vice-Principal, Principal) as it does not enable constructive relationships and working environment (joint decision-making, content analysis, structured questions, etc.) but rather produces fear of exposing an individual, which effects the non-democratic understanding of life and causes frustrations. “A teacher has to be professional – this includes areas of decision-making, and also touches on social-pedagogic perspectives. A person, who is not capable of making a decision, cannot teach. The decision-making competencies are invalid without expertise competencies, and vice versa.” (Kupffer, 1995: 103). A teacher and a social pedagogue can gradually grow in the dialogue process and interaction due to mutual understanding and cooperation.

– A social pedagogue has to contribute to reviving the neglected areas in school and expanding the roles of school. This means planning the afternoons in school, reviving free time, offering different individual activities and group activities, helping with homework, school social work, counselling, establishing contact with parents, implementing projects and including different companies. But the role of the social pedagogue does not include filling every gap and defining every occurrence from an educational point of view. They do not function as animators - keeping “guests” entertained. They have to consider the gap between the states should and is. – A social pedagogue should help change the awareness of every participant in school. They have to know the theoretical tools and weaken the irrational superficial judgements about school (for example: pupils do not learn enough today), and focus the public’s attention on the social background of today’s pupils. They have to find the mechanisms of elimination and discuss this question with teachers and the board. The least they can do is try to explore in school.

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– The social pedagogue has to be willing and able to make decisions, together with the teacher. We have to test the system of elimination and actively participate in conferences and boards; discussing important issues and the pupils’ lives.

4

CONCLUSION

There are many opportunities for this in every school. We have to emphasise some of them: communication centres (tea parties, playtime), afterschool activities, colouring corners, chat rooms, trips, street work, interest groups (roller skaters, skaters, snowboarders, etc.), experience pedagogy, classes in different courses, or help in a more attractive form, changing the way classes are usually led, openness of the school, meeting outside school, etc. This way we develop lively dynamics (Schilling, 1995) with the following consequences: tackling conflicts in the learning area, conditions that set the routine and learning in school and outside of school, and finally a changed form of school. Interests, needs, competencies, skills are encouraged. Children can feel successful and see the effects, and everything happens in a fun environment by encouraging imagination and creativity. Active participation is ensured. This work can consequently be carried out in a group or with an individual. But we can encounter obstacles. Work is hard, there are no “right recipes”, filled with conflicts, and it interferes with harmony. Rewarding alone cannot be adequate. School has to be a safe place, where teachers have the possibility to teach and students to learn; for this reason it is important to create and maintain a positive and favourable school climate, which would support achievements and the development of all children without drugs, violence, bullying and fear (Meško & Frangež, 2005: 273). Böhm and Böttger (1981) assessed that the social pedagogue is the one who builds on establishing intensive contact. In these cases a good partner can undoubtedly be found in time spent outside school. This should be intended for unburdening and relaxation. It has to be a counterpart to classes. Children like to attend such events, not only to fill their free time but to confess their problems. Same issues stresses Skalar (2004), who speaks about pedagogical super-

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vision as side effect of activities held before and after classes, during the breaks and guided by pedagogues. These are psychological and pedagogical well trained professionals, who can detect more than only manifest behaviour of children and can competently choose appropriate measures in critical situations. But we have to pose a critical question - how many different behavioural or aggressive pupils stay away from these events? This brings us to the question how to successfully include such pupils? Preventive work offers a wide variety of options. Some preventive options, especially a way of thinking, which is vital, have been presented in this article. Understanding the child’s situation is important. The greater the intensive relationship we are able to establish, the more we will know about the child and about what type of protective factors we can establish. But, either way, there is no guarantee that the child will be able to socialise according to the expectations of the established system, where norms and values are stated through interests of ruling social class. This class has important control over institutions, such as different media, scientific and educational institutions, which provide so called “representation of social reality” (Kanduč, 2004). Although there are many preventive programs in Slovenian elementary schools, the outcomes of researches among them show that there aren’t any relevant effects (Meško, 2002). Unfortunately, usually is not enough to know the professional or scientific arguments, which are clearly showing what needs to be done and change within everyday practice (also in educational institutions). Researching is one thing, but policy is quite another. And for successful implementation of policy, based on researcher’s outcomes, political will is needed. And it seems like there is certain lack of it.

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REFERENCES

Bauer, U. (2005). Präventionsdilemma. Heidelberg: VS Verlag für Sozialwissenschaften. Bečaj, J. (1999). Šola in duševno zdravje otrok. In: E.Kraševec Ravnik (Ed.). Varovanje duševnega zdravja otrok in madostnikov (pp. 170-179). Ljubljana: Kolaborativni center Svetovne zdravstvene organizacije za duševno zdravje otrok pri Svetovalnem centru za otroke, mladostnike in starše: Inštitut za varovanje zdravja Republike Slovenije. Böhm, I., Böttger, G. (1981). Reihe Materialien zur Schulsozialarbeit: Arbeit mit Problemjugendlichen in der Schule. München: Verlag Deutsches Jugendinstitut.

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Böllert, K. (2001). Lebensbedingungen von Jugendlichen in Problematischen Stadrquartieren. In: K. Bruhns in W. Mack (Ed.). Aufwachsen und Lernen in der Sozialen Stadt. Kinder und Jugendliche in Schwieriegen Lebensräumen (pp. 169-184). Opladen: Verlag Leske und Budrich. Braun, K.-H., Wetzel, K. (2000). Sozialpädagogisches Handeln in der Schule. Neuwied: Luchterhand Verlag. Cohen, S. (1985). Visions of Social Control. Crime, Punishment and Classification. Cambridge: Polity Press. Dieken, R. S. (2004). Richtig Streiten Lernen. Neue Wege der Konfliktbewältigung unter Kindern. Freiburg: Lambertus-Verlag. Elsner, K. (2007). Kinderdelinqunez. Erscheinungsbild, Ursachen, Prävention. Saarbrücken: VDM Verlag. Gear, J. (2000). Nonoviolent (compassionate) Communication. In: Gates, B., Gear, J. Wray, J. Ed.). Behavioural Distress: Concepts and Strategies (pp. 79-103). London: Bailliere Tindall – Published in Association with the RCN. Gilling, D. in Pierpoint H. (1999). Rural Crime Prevention. In: G. Dingwall in S. Moody (Ed.). Crime and Conflict in the Countryside (pp. 144-129). Cardiff: University of Wales Press. Gogala, S. (2005). Izbrani spisi. Ljubljana: Društvo 2000. Holtappels, H.G., Heitmeyer, W., Melzer, W. (2006). Forschung über Gewalt an Schulen. Erscheinungsformen und Ursachen, Konzepte und Prävention. Weinheim: Juventa Verlag. Kanduč, Z. (2004). O različnih aspektih prevencije v postmoderni družbi. In: Meško, G. (Ed.). Preprečevanje kriminalitete, teorija, praksa in dileme (pp. 45-81). Ljubljana: Inštitut za kriminologijo pri Pravni fakulteti Konfrontative Pädagogik. (26.4.2005). Berlin: Friedrich Ebert Stiftung. Retrieved June 14, 2007, from http://library.fes.de/pdf-files/bueros/berlin/50270.pdf. Kupffer, H. (1981). Reihe Materialien zur Schulsozialarbeit: Qualifizierung von Schule durch Sozialpädagogik. München: Verlag Deutsches Jugendinstitut. Kupffer, H. (1995). Berufsbild des Sozialpädagogen – Gesellschaftliche, Pädagogische, Sozialethische Aspekte. In: Merz, H.P., Frei, E.X. (Eds.). Brennpunkt Sozialpädagogik. Luzern: Edition SZH/SPC. Kury, H. in Lerchenmüller, H. (1983). Schule, Psychische Probleme und Sozialabweichendes Verhalten. Situationsbeschreibung und Möglichkeiten der Prävention. Köln: Heymanns Carl Verlag. Leonhardt, A. (2002). Einführung in die Hörgeschädigten Pädagogik. München: Reinhardt Verlag. Lisec Metelko, T. (2005). Konstruktivno reševanje konfliktov v šoli s pomočjo mediacije. Retrieved June 15, 2007, from http://www.zzsp.org/Zbornik_povzetkov_Rogla_2005.doc. Magajna, L, Peček, M., Bregar Golobič, K., Čačinovič Vogrinčič, G.,Kavkler, M., Tancig, S. (2005). Učenci z učnimi težavami v osnovni šoli: razvoj celovitega sistema

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učinkovite pomoči: raziskovalno poročilo. Ljubljana: Razvojno-raziskovalni inštitut Svetovalnega centra. Marentič-Požarnik, B. (2002). Nekatere kritične točke sistema izobraževanja v Sloveniji, zlasti izobraževanja učiteljev. In: K. Bergant, K. Musek Lešnik (Eds.), Šolska neuspešnost med otroki in mladostniki (pp. 48-53). Ljubljana: Inštitut za psihologijo osebnosti. Melzer, W. (2006). Gewalt an Schulen. Analyse und Prävention (editional psychosozial). Gießen: Psychosozial Verlag. Meško, G. (2001). Kriminalna prevencija z načrtovanjem in oblikovanjem okolja. Socialna pedagogika, 5 (4), 445-468. Meško, G. (2002). Osnove preprečevanja kriminalitete. Ljubljana: Visoka policijsko varnostna šola. Meško, G., Frangež, D. (2005). Nasilje in droge v šolskem prostoru. Revija za kriminalistiko in kriminologijo, 56 (3), 273-283 Mikič, A. In Žorga, S. (2005). Je spol v superviziji res tako pomemben? Socialna pedagogika, 9 (1), 21-38. Müller, W. (1992). Einführung in die Soziale Arbeit. Weinheim&Basel: Beltz Edition Sozial. Olk, T. (1995). Von der Wertgemeinschaft zum Dienstleistungsunternehmen, oder: über die Schwierigkeit, Solidarität zu Organisieren. In: Rauschenbach, T., Sachße, C., Olk, T. (Eds.). Von der Wertgemeinschaft zum Dienstleistungsunternehmen. Wohlfahrts - und Jugendverbände im Umbruch (pp. 11-33). Frankfurt: Suhrkamp. Peklaj, C. (2001). Sodelovalno učenje – ali kdaj več glav več ve. Ljubljana: DZS. Rozman, D. (2003). Vzgojni in preventivni programi socialnega učenja med vrstniki v osnovni šoli. Socialna pedagogika, 7 (2), 159-178. Schaarschuch, A. (1998). Soziale Ausschliessung, Bürgerstatus und Soziale arbeit. München, Basel: Ernst Reinhardt Verlag. Schanzenbächer, S. (2003). Anti-Aggressivitäts-Training auf dem Prüfstand. Herbolzheim: Verlag Centraurus. Schilling, J. (1995): Didaktik/Methodik der Sozialpädagogik. Nuewied: Luchterhand. Skalar, V. (2004). Socialna integracija otrok z vedenjskimi in čustvenimi težavami v osnovni šoli. In: Meško, G. (Ed.). Preprečevanje kriminalitete, teorija, praksa in dileme (pp. 185-196). Ljubljana: Inštitut za kriminologijo pri Pravni fakulteti Škoflek, I., Selšek, M., Ravnikar, F., Brezničar, S., Krajnčan, A. (2004). Vzgojni program. Retrieved June 11, 2007, from http://www.zrsš.si. Thiersch, H. (1992). Lebensweltorientierte Soziale Arbeit. Weinheim: Juventa Verlag. Tomori, M. (2002). Šolska neuspešnost kot dejavnik tveganja za celostni osebnostni razvoj. In: Bergant, K., Musek Lešnik, K. (Eds.). Šolska neuspešnost med otroki in mladostniki: vzroki - posledice – preprečevanje (pp. 16-18). Ljubljana: Inštitut za psihologijo osebnosti. Pravilnik o prilagajanju šolskih obveznosti (Manual on the pupil’s rights and duties in elementary school) (2004). Uradni list RS, št. 31/1996, 15/1998, 75/2004. Walklate, S. (2003). Understanding Social Control. Berkshire: Open University Press. Zalewska, E. (2005). Das Peer – Mediationskonzept als Beitrag zur Prävention von Gewalt in der Schule. München: GRIN Verlag.

Perception of Female Criminality Through Sentencing Dragan Petrovec and Mojca Plesničar

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INTRODUCTION

In this article, the authors tackle two questions: The first is the determination of the sentence, which seems to be a kind of illegitimate child of the criminal law. This statement is not only true for the penal evaluation of the Slovene legislature and practice. The same could be said for attempts at penal arithmetic in other countries, which should lead to an exact calculation, but always gets stuck halfway. Perhaps it is right that it is so. It would seem more just, however, if over time sentences persistently moved closer to lower levels of the range. However, we have been noticing fluctuations and strong increases in the last decades. This is resulting in longer sentences, fewer alternative measures, and an increased number of prisoners. In many places their numbers doubled or even tripled. All the criminal offences involving homicide, including attempted homicide, committed by women in Slovenia during the past 25 years, in order to offer a practical illustration of the unused space provided by sentencing, particularly at a lower level are presented. The sample is complete, but small. Nevertheless, it seems to be sufficiently demonstrative to warrant a recommendation that more attention needs to be paid to the determination of punishment, and in doing so to avoid the temptation of modern inventions of computer processing. These temptations should be replaced by a heightened sense for the fellow human beings - even a perpetrator has a value. The second question that has no clear answer and that mostly warrants a warning, is the position of a female perpetrator before a judge. It seems that the courts are very strict with many abused women, who have taken justice into their own hands due to the impotence or unwillingness of the social environment to help them. This is confirmed by harsh sentences for acts which are very similar to self-defence, with regard to content on one hand, and by grounds for judgements on the other, which contain strong condemnations of (of course, impermissible) self-help, when reading them plainly, or between the lines. Are we nearing the time when a woman needs to contemplate the limits of emancipation, the boundaries of which are determined by men, even when in a role of a judge?

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DETERMINATION OF PUNISHMENT

The selection of a punishment and especially the determination of a punishment is that phase in a criminal proceeding which most evades the harshness of formal and logical thinking and previously anticipated actions. The determination of punishment is, in different systems, limited by more or less loose rules, and is influenced by numerous other factors, the presence of which would be much more easily denied than explained.1 Most penal regulations try to find an appropriate balance between two fundamental principles of criminal law – the principles of equality and the individualisation of penal sanctions. The first calls for equal treatment for the same kind of cases – that is the same sentence for essentially identical cases – and, in its extreme form, requires an advanced determination of the exact criteria for penalization. The second requires adjustment of a set sentence to the severity of an individual criminal act and the personality of the perpetrator, as well as the goal regarding the fulfilment of the purpose of the punishment. This is only possible if the criteria set in advance allow sufficient consideration of certain circumstances (Tonry, in Tonry & Frase, 2001: 20; Bavcon, Šelih, Filipčič, Jakulin & Korošec, 2003: 147-150). Neither of these principles can be carried out in their entirety within the modern system; considering only the equality principle can lead to extremely unjust results (which is necessary only in certain, not numerous, segments of a case, due to a wide diversity of living experiences)2, when a circumstance that cannot be foreseen has such a fundamental influence on our perception of a case that disregarding it would be most unjust. On the other hand, complete individualisation of penalisation signifies no advanced determination of punishment and extreme legal peril, which is certainly not in line with contemporary criminal law (see Šelih, 1990: 21-24). 1 2

Numeruos theorists even today still criticise sentencing for being irrational and unable to be verified (Šelih, 1992: 207-208). The American system, which roughly represents a close approximation to such emphisizing of the equality principle at the expense of the individualisation of sentencing, has reducted the number of circumstances required in the determination of a punishment to two: the severity of the criminal act and the perpetrators prior criminal record. Tonry (1996) considers such a reduction of circumstances a depersonification of the defendant, which the courts now perceive only as “a crime-and-criminal history amalgam”.

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Sentencing Systems

The rules regarding sentencing that were shaped by individual legal systems, differ greatly from one another. Different models can roughly be classified on a scale that measures the level of rigidity binding the judge, who decides on a punishment in a particular case. On one side, we mostly have countries that are part of the continental legal circle, which are joined by numerous other countries (e.g. Canada, Australia, New Zealand), where the criteria regarding sentencing either completely falls under the judge’s discretion, or are more or less determined, in advance, by law. The American system is on the other side of the spectrum of this scale (developed by some federal states and largely followed by the adoption of legislature at the federal level), which provides the judge, using guidelines determined in advance, with numerical criteria (exact determination of punishment to a month) for the determination of a sentence in individual cases. Systems, whose guidelines are set more loosely than in the American example, but more accurately than in most continental systems, fall between the two extremes; this mainly includes the English and the Scottish system, and in some respects the Dutch model (Tonry, in Tonry & Frase, 2001: 5; see also Šelih, 1990). Some sentencing system classifications differ from the above mentioned system and illustrate to three main models (Reid, 2006: 490):

– legislative model – punishments are precisely determined by law and the judge does not have the option of making an individual judgement. In this case punishment is determinate sentence, and the individualisation of a penal sanction is not possible. – judicial model – punishments are determined by law within a certain range and the judge can make a judgment in each individual case as to what kind of punishment within the set range is appropriate. – administrative model – it offers the widest range of punishments for all criminal acts. The length of punishment in an individual case does not depend on the judge – they impose an indeterminate sentence – but rather on the parole board, which is responsible for deciding when a convicted person will be released from prison.

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Legislative Determination of Punishment

USA is the only country so far to have introduced legally defined punishments into their penal system, from which the judge is not allowed to deviate under any circumstances (predetermined length of punishment or at least minimum length of punishment). Such mandatory punishments can apply to different cases; either for individual types of criminal acts (homicide, violent sexual crimes, criminal acts involving drugs or weapons) or special types of perpetrators of criminal acts (usually repeat offenders, especially multiple repeat offenders). This group includes predetermined minimum punishments, the three strikes and you’re out policy, life sentences without the possibility of parole and similar (Tonry, in Tonry & Frase, 2001: 21). All above mentioned measures that are the result of the just deserts policy, together with mandatory guidelines that will be presented in the next section, have above all caused a much more severe sentencing system since being introduced, and consequently a sharp increase in the prisoner population – it exceeds the number of prisoners per capita in other Western countries by 5 to 12 times (Tonry, 2004: 21-33).3

2.1.2

Sentencing Guidelines

In the USA (first in individual federal States and then on the federal level), the guidelines for the sentencing guidelines emerged after the abandonment of the treatment ideology of the 70’s in the form of voluntary guidelines that were used by the States in the attempt to unify the penal system and in time they became mandatory in some places – the judges in those jurisdiction that adopted such a decision were therefore not allowed to deviate from them. The image of the American penal system changed significantly with the introduction of the sentencing guidelines; it’s a change, warranted by the loss of trust in the treatment and the desire to achieve greater definition and accuracy of the penal system.4 3

4

American lawyers have found other ways to get round the rigidity of the system – the most obvious method of avoiding predetermined punishments being plea-bargaining (Tonry, in Tonry & Frase, 2001: 21). “[The guidelines] signified the beginning of presumptive court proceedings: they were based on the position that the legislator evaluated the gravity of the criminal act in advance as well as the only subjective circumstance that can have an effect on

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The guidelines emerged in various forms and for a different set of criminal acts. It is therefore impossible to give a condensed synopsis of all variations (Frase, 2005: 1194-1208). However, we can point out a typical example of federal sentencing guideline, the essence of which is a special form that provides a numerical value for each criminal act in accordance with the estimated gravity of the crime and the perpetrator’s prior offences. The punishment is determined by the position a crime evaluated in this manner takes on the statistical sentencing guidelines grid, whose vertical axes represents the severity of the criminal act and the horizontal the perpetrator’s prior offences. A punishment a judge determines in such a manner is defined within a narrow range from which they can not deviate (Šelih, 1992: 219).5 The work of an American federal judge is in this era of information technology made easy to such an extent, where they can input individual criteria in a computer program, which offers a suitable punishment in accordance with valid guidelines.6 In 2004 and 2005, the American Supreme Court ruled the mandatory guidelines unconstitutional with a tight majority.7 The Court ruled that in accordance with the 6th Amendment of the American Constitution every defendant has the right to have a jury, and not just a judge, decide on the circumstances that may influence the length (increase or decrease) of the punishment in each individual case. With the Court’s ruling, the guidelines once again became voluntary and the judge is obligated to consider a wider range of circumstances in making their decision. The introduction of sentencing guidelines came from the desire to ensure equality in sentencing; it was based on the supposition, the error of which was quite quickly understood by its authors, was that it is possible to eliminate all personal elements from sentencing (age, gender, social status, recognition of past merit), which can only be evaluated subjectively

5 6 7

the length of the punishment (eventual prior offences), and determined the framework of the prescribed punishment and with that the presumed length.” (Šelih, 1992: 218-219). For more detailes look at the procedure and guidelines is available on the United States Sentencing Commission website: http://www.ussc.gov/guidelin.htm. The program is freely available online: http://www.sentencing.us. First at the federal state level Blakely v. Washington, 542 U.S. 296 (2004), and then at the federal level: United States v. Booker, 543 U.S. 220 (2005). Synopsys on the consequences of stated decisions of the Supreme Court (Frase, 2005: 1191-1194).

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and not objectively. 8 Even though their main purpose was mostly to unify standards and ensure equal treatment of defendants, the consequences of introducing such mandatory guidelines together with mandatory punishments were, in most cases, very different from what was desired.9 The guidelines are, in addition to the courts, in some places also being used by other state authorities. In the USA they are for example used by authorities responsible for releasing prisoners on parole (who also developed the guidelines in the beginning of the 70’s) and in the Netherlands they are used by the state prosecutor’s office when suggesting a punishment. The guidelines of Dutch prosecutors are therefore subject to additional control by a judge, who is not bound by them; and it is still too early to evaluate their effects (Tonry, in Tonry & Frase, 2001: 23).

2.1.3

Voluntary Guidelines and other Sentencing Aids

Voluntary sentencing guidelines (Great Britain, USA since 2004) are content-wise equal to previously described mandatory guidelines. However, they merely serve as an aid to a judge, who has the option of deviating from them in individual cases and rendering a verdict using different (own) criteria. For example, an American federal judge must still, even since 2004, first calculate a punishment in accordance with the guidelines and can then render a verdict outside the determined scope, but must offer a detailed explanation of such a decision. Different aids, on which judges can rely when determining punishments in individual cases, are similar to such guidelines (e.g., Canada, Australia). They emerged with the development of information technology, first in a form of simple databases of concluded cases and later in increasingly filtered databases with advanced search engines.10 The key difference with the guidelines is that these databases do not provide a numerical solution, 8

9 10

Changes in sentencing in the USA resulted from a seminar at the Yale Law School in 1974, whose authors did not intend for the new system to take a turn it later did, once it was influenced by politics. For more detailed look at the subject (see Stith, 2003: 156). Even though, the consequences were less fatal and even positive in individual federal states (Tonry & Frase, 2001: 22). For a detailed list of such aids see Hall, Calabro et al. (2005: 15-16), see also Miller (2005).

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but only information on how the sentencing was done in similar cases in the past11. However, both provide a judge with support in making their decision and not a binding solution. Tonry warns that the difference between guidelines and other types of aids is smaller than it seems. In principle, both derive from standard practice – and the guidelines take a step further from computerized databases of cases and synthesise the data from these cases into a final (numerical) proposal of a decision (Tonry, in Tonry & Frase, 2001: 23).

2.1.4

Legal Regulation of Sentencing

Legal regulation of issues regarding sentencing is present in most European countries and Slovene regulations are not fundamentally different.12 It is a system of mitigating and aggravating circumstances, which the law anticipates, but do not hold a numerical value, which offers the judge relatively wide opportunities for individualizing a punishment.

2.2

Slovene Legal Regulation of Sentencing

The Slovene sentencing system meets the criteria of the upper definition of the judicial model and follows a typical continental approach to settling these issues. Punishments are regulated by law within a certain range and a judge has the option of implementing the individualisation of punishment principle in a particular case (after having selected the type of punishment) in accordance with mitigating and aggravating circumstances. 11

12

This method actually does not appear to differ greatly from the system we are used to – even without computerized support, the judges very often refer to prior similar cases when determining a punishment, either their own or those of their colleagues – the only difference is that such databases give them the opportunity to empirically verify their “feeling” or memory. We are very lucidly warned of the dangers of relying too greatly on databases and information technology, mostly when they become mandatory (Franko Aas, 2005). For France, Austria and Germany see Šelih (1990: 5-25), for Germany see also Weigend (in Tonry & Frase, 2001: 188-221), for Finland and Sweden see Tonry (in Tonry & Frase (2001: 25), Jareborg (in Clarkson & Morgan (1995: 95-124) and Lappi-Sepalla (in Tonry & Frase, 2001: 92-150).

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The Penal Code contains a provision on general sentencing rules, that explicitly state the two main criteria for determining a punishment – the severity of the criminal act and the perpetrator’s guilt (this provision is identical both in the penal code – KZ, and in the new penal code – KZ1).13 It requires the judge to consider other circumstances that may have an effect on the length of a sentence, either it being longer or shorter. The law offers only a non-exhaustive list of mitigating and aggravating circumstances.14 These circumstances can be subjective (pertaining to the perpetrator’s guilt or responsibility) or objective (pertaining to the criminal act), but are always non-obligatory – a judge can therefore individually decide on how they will be considered in the determination of punishment: a certain circumstance can be mitigating in a particular case, but the same circumstance can be aggravating in another. Once a circumstance is established, it must be considered by a judge when determining a punishment (Bavcon et al., 2003: 418-419). The law considers recidivism and its specific forms (multiple repeat offenders, special repeat offenders, etc.) a special circumstance that influences sentencing.15 There are also other important provisions pertaining to sentencing from a penal viewpoint, mainly regarding rules on merger of offences, provisions on special mitigation or aggravation of punishment, sentencing of convicts and inclusion of time spent in detention.16 13

14

15

16

Article 41 of PC (KZ-UPB1, Officcial Gazette of the Republic of Slovenia, no. 95/2004) & Article 49 of new PC (KZ-1, Officcial Gazette of the Republic of Slovenia, no. 55/2008). The law explicitly lists the following circumstances: level of criminal responsibility, perpetrator’s motive, level of risk or infraction of the protected good, circumstances under which the act was committed, perpetrator’s prior life, personal and financial circumstances of the perpetrator, their behaviour after committing the act, restitution of damages, and other circumstances that pertain to the personality of the perpetrator. Paragraph 2, Article 41 of Penal Code (KZ, Officcial Gazette of the Republic of Slovenia, no. 95/2004), Paragraph 2, and Article 49 of new Penal Code (KZ-1, Officcial Gazette of the Republic of Slovenia, no. 55/2008). Paragraph 3, Article 41 of Penal Code (KZ, Officcial Gazette of the Republic of Slovenia, no. 95/2004), Paragraph 3, and Article 49 of new Penal Code (KZ-1, Officcial Gazette of the Republic of Slovenia, no. 55/2008). There were some changes to the provisions that deal with these issues with the amendment of the Penal Code. The new Penal Code (KZ-1) no longer contains the provision on special reason for a discharge and harsher punishments for multiple repeat offenders. In this context, the new Penal Code (KZ-1) therefore aims towards a lesser input of a judge in determining a punishment (Officcial Gazette of the Republic of Slovenia, no. 55/2008).

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175

Issues Regarding the Sentencing Procedure

There is also more than one sentencing procedure in the world. The main dividing line can be placed between the different levels of connecting the sentencing phase with the rest of the criminal proceedings. Procedures can, therefore, be roughly divided into those where sentencing represents a special, separate phase, which occurs after a guilty verdict has been delivered; and those procedures in which delivery of a verdict and sentencing occur at the same time. This form is present in the Slovene system. The establishment of guilt and sentencing occur at a joint hearing, as well as the procedure regarding the selection of evidence. Such a system is troublesome for a number of reasons; because of the collection of evidence, additional complexity it imposes on the role of the defendant, and the unpleasant situation a judge is placed in. The collection of evidence important to sentencing (but not for the establishment of guilt) is limited in this type of system and can easily become neglected. Both, the prosecution and the defence focus on the demonstration of guilt and innocence, respectively, and pay significantly less attention to the collection of evidence that is not directly related to the question of guilt. It is often limited to basic information about the defendant and some additional information can be acquired by the court, basically in passing, while collecting other evidence (e.g., examination of witnesses, etc.). Such a procedure is particularly unusual from a defendant’s point of view because, if they wish to prove their innocence, they have to focus on evidence that will support their thesis. However, proving the facts that may influence sentencing can contradict or at least lessen the credibility of the original thesis.17 Such a procedure is also unsuitable from the court’s point of view, which usually does not pay enough attention to the issue of imposing a penal sanction and sentencing, because it focuses the majority of its energy on determining the defendant’s guilt (Šugman, 2006: 278). Additionally, a judge may find themselves in a bind when they have to explain their decision about a punishment, but have insufficient evidence to offer a substantial argument. For this reason, judges often resort to standard explanations. Even though the Criminal 17

In such cases, defendants find themselves in a position familiar to that of a subject in a civil law claim, who 1st proves the primary thesis, and alternatively (if not successful in the former) a secondary thesis – to simplify, their defence would be: “I am not guilty; but in case I am, then ...” For more see Šugman (2006: 277).

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Procedure Act requires the court to state the circumstances considered in the determination of the punishment in their explanation of the sentence (especially in cases of a mitigated sentence, discharge, or suspended sentence)18, it is not sufficiently rare to find sentences which simply state that “the court considered all circumstances that effect the determination of the length of the punishment” (see example 12 given below). Holding separate hearings for the establishment of guilt and imposing of the sentence is typical of the Anglo-American legal system, which separates sentencing from other proceedings, which not only occur at different times,19 but also in front of different kinds of decision-making authority. While it is the jury that is fundamentally responsible for the establishment of guilt20, it is the judge, who is usually responsible for sentencing. In such cases the interim period gives a judge the possibility to gather the information needed to make a final decision. Quite a few countries use so-called pre-sentence reports - that is reports on sentencing, which are usually prepared by social welfare authorities (Ashworth, 1995: 304-307). They collect information about the convict in a separate proceeding that is required for the final determination of punishment: personal and social circumstances, circumstances under which the criminal act was committed, and in some places they also have the opportunity to compare different possible punishments and propose the one they feel is suitable and could be effective with respect to the collected data (Tata, Burns, Halliday, Hutton & McNeill, 2008: 836). The judge is, of course, not bound by such a recommendation, but it can provide support in their final determination.21 18 19

20

21

Paragraph 8, Article 364 of Criminal Procedure Act (ZKP-UPB4, Officcial Gazette of the Republic of Slovenia, no. 32/2007). Time division is not mandatory; in the English system, a judge has the option of choosing whether to hold a special hearing or give their sentence immediately (Šugman, 2006: 364). The mentioned must be read with a certain level of reserve, because in the American system for example, a great majority of cases are concluded during preliminary procedures and do not go to a jury trial. The 2003 federal level data show that as many as 96 % of all criminal cases conclude with a plea-bargain, and only 4 % go to trial (Federal Justice Trends, 2003: 10). For example, Scottish judges are not enthusiastic about the possibility of having social workers give punishment recommendations – they often see it as interference in their work; however, the stated depends on numerous factors and appropriately prepared reports are also received relatively positively also by judges. For more on that see Tata et al. (2008: 840-847).

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In addition to the separate collection of information needed for the determination of sentence, the interim period also signifies the last opportunity for subjecting the convict to alternative treatment. In Ireland it is possible to refer the case to a special reconciliation committee, which can achieve reconciliation between the convict and victim, based on which they can impose a more considered sanction, or entirely omit the punishment (Bošnjak, in Tata et al., 2008: 441).

2.4

Factors Criminal Law does not Consider

The times when lawyers pretended to only mechanically repeat the word of law, are over. Despite that, it is almost heretical to admit, just as it is true for other living situations it is also true for the law – namely, that it is not an entirely neutral area one enters, only after leaving all irrational and unchecked facts at the door. Aspirations to make a procedure a rational one have, of course, resulted in a relatively verifiable decision-making procedure. However, numerous pieces of research show that the influence these factors, which are not regulated by law, have on decisions, can be of exceptional importance. This is particularly true for sentencing, which is in theory considered to be the most intangible part of the penal process.22 In this respect, we are not merely referring to the fact that a court is obliged to give a substantive determination and evaluation on an individual case, with regard to circumstances listed in the regulations which can influence sentencing. We are referring to factors that have an effect on the determination and evaluation process, and are part of human nature. This is simply about every evaluation inevitably being subjective, and every judge’s decision containing their subjective perception (although objectivised) of the incident and perpetrator. A judge cannot completely turn off their subjectivity – they are influenced by numerous psychological and social patterns, from stereotypes and prejudices, to learned gender patterns, political beliefs, etc. Factors that influence sentencing can be divided into multiple groups, e.g. 1) the judge’s views on the facts of the case; 2) the judge’s views on the principles of sentencing; 3) the judge’s views on criminality and punishment; 4) demographic characteristics of a judge imposing the punish22

See footnote no. 1.

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ment.23 While the first 3 groups could still somehow be positioned within the framework of a trial, it is the last group that catches the eye. Judges often believe they are not introducing their own personal circumstances into their decisions, which is true to some extent. Nevertheless, it is true that each individual is influenced by an array of unconscious convictions, at all times, that they usually have no control over.24 The last group of factors that influence the judge, either at a conscious or unconscious level,25 usually involves the following (Ashworth, 1995: 34-35; Sisk, Heisse & Morriss, 1998: 1451-1497): age, social status, rural or urban framework, race, gender, religion, political conviction, and prior employment, affect on career, etc. In addition, judges are, more or less, also subject to other “tricks” that people succumb to in the processes of decision-making. The theory mentions cognitive illusions – for example experiential cognition prejudice (hindsight bias), egocentric prejudice, etc.26 To achieve a state where these factors would have no influence, is of course impossible. But closing one’s eyes to the fact and pretending that the procedure has been completely “cleansed” of any subjective factors, is what gives them greater value. Understanding them and having judges face them is precisely to lessen their importance in individual proceedings (Šugman Stubbs, 2006: 26).

2.5

Specifics of Sentencing of Female Perpetrators

Female criminality is, without doubt, the more poorly researched field in criminology. Female perpetrators commit a relatively small number 23 24

25 26

Division of factors in line with Ashworth (1995: 33-39). “Many of those who sit in the courts may maintain that they become accustomed to preventing their own personal preferences from influencing their decisions. However, there is no evidence of how successful they are in this, and in any event some sources of bias may be unconscious – a tendency to view matters from a particular perspective or to select certain kinds of information, which the sentencer does not realize.” Ashworth (1995: 34-35). More on stereotypes and prejudices in Šugman Stubbs (2006: 15-27). For more on that and findings of a research conducted on American federal judges, see Guthrie, Rachlinski & Wistrich (2000-2001).

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of criminal acts, which are usually also less dangerous.27 Biological theories on the causes for female criminality were prevalent for a long time and originated in papers by Lombros and Ferrer, but are today an obvious target of criticism (mostly) of feminist criminology (Kanduč, 2007: 292-296). If we ignore the causes for female criminality28 and focus on the sentencing, we get an interesting picture. Practically all the research demonstrates obvious and important differences between sentencing of female and male perpetrators of criminal acts. Those female perpetrators of criminal acts usually receive more lenient treatment and shorter sentences for the same type of crime, even in those countries which attempt to avoid any kind of discrimination by introducing more precise rules regarding sentencing (USA), are of key importance.29 Foreign research has shown that in cases involving female perpetrators, the courts consider the circumstances of the case to a greater extent with regards to sentencing and, therefore, usually impose a lighter punishment, whereas they focus more on the criminal act itself and the perpetrator’s guilt in cases involving male perpetrators (Williams, 1999: 486-487). Differences in sentencing are especially evident in property crimes and drugrelated criminal acts, for which women usually do not receive a prison sentence, while men do. The differences are less evident with regard to violent crime; although, even in these cases, female perpetrators receive shorter sentences than males (Rodriguez, Curry & Lee, 2006: 334-337; Auerhahn, 2007: 224-227). However, there are exceptions, where certain types of female perpetrators receive disproportionately longer punishments in comparison to other female perpetrators, or even male perpetrators. In most cases it involves women exhibiting “non-female behaviour” (Šugman Stubbs, 2006: 25), 27

28 29

The Prison Administration’s data for Slovenia shows that on average approximately 39 women were imprisoned in 2007 (last available report). The number is much higher for males, namely 896, signifying that women represent approximately 4 % of the Slovene prisoner population, which is comparable to numbers around the world. See Annual Report 2007: 19. The data also shows that more than half of female convicts, who were punished with a prison sentence, received a (relatively low) sentence of 6 months to 2 years (Šugman Stubbs, 2006: 23). For more on that see Walklate (2004) and Forell & Matthews (2000). See Auerhahn (2007), Williams (1999), Rodriguez, Curry and Lee (2006), Spohn and Beichner (2000) and Blackwell, Holleran and Finn (2008).

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which is not in line with the established image of the female social gender (Kanduč, 2007: 300-301. Typical examples of the latter are mothers that kill their children (Messing & Heeren, 2008: 14-17), prostitutes, etc. There are multiple theoretical explanations as to why there are differences in sentencing between male and female perpetrators. Some warn that the differences are the result of paternalism of male judges (the so called chivalry hypothesis), who treat women with more leniency than men, because of established social patterns, according to which man act as saviours and help women (being representatives of the weaker sex) back on the right track.30 Other theories have focused on distinguishing elements between individual female perpetrators and attributed the differences in sentencing to family-related reasons and the primary role of women in the family as well as gender in itself.31 Others have attributed these differences to stronger emphasis on the fight against the discrimination of women and the effects on the court, which has become even more careful in determining punishments for female perpetrators (Curran, 1983: 55). There is still no final agreement with regard to the original question. But at the same time another question is posed – whether these differences are appropriate or something we need to fight against. Based on the principle of equality, the differences that do not rest on elements the law wishes to be considered, are not only undesirable, but also a violation of basic legal postulates. On the other hand there are voices, mostly coming from the field of feminist criminology, which emphasise that the criminal procedure as such, particularly the sentencing part, is significantly different for women and perhaps that is why these differences are appropriate.32 30

31 32

The theory was popular in mid 20th century, when the staff in the justice department was predominately male, but has been becoming less important over the last decades. For example, see Finley (2007: 37-38). It is difficult to imagine this in the Slovene environment; mostly because of the great number of female judges in courts of first instance. For an example of an early criticism (see Curran, 1983). For example, see Bickle and Peterson (1991). Some authors see important differences mainly in the manner of serving a sentence; e.g. women internalise violence and it therefore has greater long-term effects on women that men; prisons are designed as male institutions and are not adjusted for women at all; a prison sentence can have more severe consequences for their future lives, mostly because of a great number of children dependant on their mothers; women face double stigma after serving their sentence – first, because they broke legal norms and second, because they broke the established social pattern pertaining to the behaviour of their gender (Walklate, 2004: 189-190).

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CONVICTIONS OF WOMEN FOR HOMICIDE IN SLOVENIA (1980 – 2008)

3.1

Short Overview of Homicide Convictions from 1980 to 1990

181

In 1990, a short analysis of criminal acts of homicide by women was part of the “Violence against women” seminar (Violence against women, 1990: 125). It involved convicted women, serving their sentence at the prison for women at Ig, near Ljubljana, during 1987 to 1990. The acts had been committed in the same decade. We selected nine cases for the article, in which women played variously distinctive roles of a victim of family, or spousal, violence (Petrovec; in Violence against women, 1991: 99-107). In some cases they were subject to long-term abuse, even sadistic torture; and in other cases, the woman was almost equal in being violent right from the start. Among these nine cases we also found a partner relationship, in which the woman played the dominant role right from the beginning. In the end, her dominance was proven with the stabbing of her husband with a knife during a conflict and killing him. On one hand we were interested in the circumstances of the act, particularly the division of the “perpetrator – victim” roles, and on the other, in the assessment of sentencing. We were curious about how courts judge individual circumstances, and/or if different judges – panels – evaluate like-circumstances distinctively and differently. To illustrate the differences that we observed in sentencing, we would like to present only three case, we feel reflect the complexity of a trial. The fact that the length of the sentence depends more on the judge’s perception of the event, their interpretation, and completely subjective perceptions of danger, than measurable circumstances – at least in these cases – is particularly important. This subjectivity is emphasized because decisions are sometimes so unusual that they baffle event the qualified observers that acquaint themselves with the judgments. These cases were actually presented at multiple seminars, and also to judges. The first case involved a year-long partner relationship, marked with frequent fights. The partners often exchanged insults, and slapping each

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other was also a common occurrence. On that fatal day they returned from an afternoon summer swim and fought during the drive home. At home the argument continued, they slapped each other a few times, and then the woman demanded that the partner leave. He went to the bedroom to collect his things, and she followed with a kitchen knife and stabbed him in the back. The victim survived only due to quick medical assistance and good physical condition. The act was, therefore, only an attempted homicide. The court established that the 31-year-old defendant was severely inebriated (from 1.7 to 2.0 parts per thousand), with greatly diminished capacity and has a predominantly asocial personality. The appellate (appeal) court agreed with the sentence of the Court of First Instance, but emphasized that the partners reconciled after the act. The defendant was sentenced to 1 year in prison. The second case involved a 26-year-old female defendant, who was married to a violent man for four years. He usually came home severely inebriated and would beat her with his hands, a pole, an awl (pointed tool), and shoemaker’s tools, and would kick her and drag her across the floor. Once he even threw an axe at her head, but she was able to avoid it. He shot at her with a small-bore rifle, but did not hit her. He would throw the child to the ground and kick the child. One time he made the child sit on a hot storage heater, until the child was completely burned. On one occasion when he beat her once again, she ran to the neighbour’s. When she returned, he was sleeping. She instantly decided to kill him. She took the cattle killing rifle from the cabinet and shot him. The court established that she and the child endured truly sadistic tortures. Considering her clean criminal record and her youth, she received a prison sentence of 6 years. The third case involved a 56-year-old woman, who lived with an alcoholic for decades. He maltreated her when he was inebriated, among other things he often demanded sexual intercourse, which she found difficult to tolerate due to having had a hip surgery and her age. Because he periodically suffered from impotence, he demanded she perform things that were humiliating. The defendant’s children confirmed the insufferable conditions of living with a father, who would sometimes chase their

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mother with a pitchfork and an axe, or would hold a knife at her throat. When he again demanded sexual intercourse one afternoon, the defendant went to the kitchen and stabbed him in the stomach. He consequently bled to death. The court established that for years she had had to endure humiliation and abusive language from her husband, as well as suffer physical pain from sexual intercourse. The high court increased the punishment of the Court of First Instance from one year to a year and a half. In doing so it stated the following arguments: “Abuse of women by their husbands is no rarity, despite the proclaimed equality of rights. Where would this lead to if all women used such methods. A punishment must also have an educational effect on others.” If we attempted to classify defendants and their partners, as victims by certain circumstances, with a certain level of subjectivity, but based on information recorded in verdicts, we might get a telling picture. We can select the level of violent behaviour of defendants and their partners as our criteria. When estimating the level of violent behaviour, we must rely on all the circumstances of a criminal act that we can extrapolate from the statement of reasons for verdicts. They are carefully recorded and offer a high-quality description of the relationship between partners and spouses, respectively. If we use a range from 0 to 10 of the level of violent behaviour of an individual person, we get the following picture (on next page): This confirms our belief that the “final” victim’s violent behaviour (the man), and the clean criminal record of the female defendant (sometimes a long-term “primary” victim), as well as her unprovocative behaviour, do not necessarily influence the court in a way that it would impose a lighter sentence. If we allowed ourselves to simplify the statistic, which despite all methodological concerns contains a grain of truth, we would arrive at a result of negative correlation. This means that the courts – or rather individual judges and panels, respectively – impose harsher sentences on women who have suffered severe abuse.

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Table 1: Case33

3.2

Victim-offender agression comparison – group 1 Defendant’s level of Man’s level of violent violent behaviour behaviour

Imposed sentence

A.A.

7

2

6 years

B.B.

2

4

8 years

C.C.

2

6

7 years

D.D.

4

4

1 year (attempt, reconciliation)

E.E.

4

4

1 year (attempt, reconciliation)34

F.F.

6

1

4 years35

G.G.

0

9

8 years

H.H.

0

9

1.5 years

I.I.

0

10

6 years

Homicide Convictions from 1990 to 2008

An introductory question poses it self – has anything changed in almost two decades and with the new penal code as well as the country’s independence? Short descriptions of the actual state of all the cases considered offer the following picture. 1. A.A. 1, 47 Years Old The defendant was a fortune-teller and that is how she came in contact with the co-defendant, who confided in her, her problems with her husband. Namely, both she and her husband were involved in human-trade, 33 34

35

Cases are presented in the same order and with the same markings as are described in the article under point 2. Circumstances were similar in both cases – D.D. and E.E. – they both remained attempted criminal acts; but the difference between that and a completed act was merely accidental. In both cases, the victim’s life hung by a thread. The first case involved a knife stabbing in the back and the man survived only because of quick medical assistance and good physical condition. In the second case, the expert witness wrote that the stabbing in the thigh was so severe that many who have been stabbed in the heart have not been in such a poor condition as the victim, who was barely saved. In both cases, the victims forgave their wives and reconciled their relationships. It seems that this circumstance particularly influenced the court in its determination of punishment. This was the only case where the victim was not a partner or a husband, but a neighbour, attacked by the defendant’s husband. The defendant only participated in it, on the husband’s side.

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involving girls who were to be used for prostitution. The co-defendant was convinced that her husband was getting involved with some of the girls he was trading. Because she was becoming more and more jealous she turned to the defendant for advice. The fortune-teller first recommended prayer and promised she herself will pray for the positive resolution of their marital problems. It later turned out that this was not successful and the wife was becoming increasingly distressed because of her husband’s behaviour. As previously when she was in great distress, she once again turned to the fortune-teller, and she threatened to end her own life, because she was in despair. That is when they arranged to get rid of the husband together. The fortune-teller was given 10,000 DEM to hire four men who were to commit the murder. The police prevented the act before it was attempted. As a result, the eventual perpetrators hired for the murder were never identified. The fortune-teller’s defence for having agreed to commit the criminal act included the claim that she received a threat against the wellbeing of her grandchild (proven in the documentation). The first court imposed a 6-year sentence and the second a 4-year sentence. The first court considered her clean criminal record a mitigating circumstance, and her persistence an aggravating circumstance. The appellate court reduced the sentence to 4 years, considering that any unlawful financial gain could not be proven, and the fact that the threat against the grandchild was serious. The defendant served a prison sentence of 2 years and 10 months.

2. B.B. 2, 37 Years Old The defendant lived with an extremely violent non-marital partner for 2 years. The deceased was often physically and psychologically abusive. Witnesses told stories about his violent nature, particularly concerning women. The police recorded numerous criminal complaints, when the defendant resorted to the police and reported him. The expert opinion included testimony about physical injuries she received just prior to committing the criminal act.

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The deceased would also beat her on the street, send her to the streets naked, and threaten to kill and stab her, respectively. On that critical day he came home, after drinking all day, and beat her. He attempted to throw her down the stairs, but she was somehow able to save herself. He attempted to throw her over the balcony and then he beat her over the head. She snapped and as he lay on the couch, she hit him over the head with an axe. The three experts were unanimous in their estimation that the act was committed in a state of severely diminished capacity. The First Court imposed a 6-year sentence with an argumentation that she “herself contributed to the conditions, because she continued to live with the abuser, despite having other options. She had a home and a husband, but she nevertheless continued to return to the deceased.” The Court of Second Instance increased the sentence to 7 years. In doing so it emphasized that the circumstance of hitting the deceased over the head 6 times was not sufficiently considered, which is a circumstance that unquestionably signifies greater severity of the criminal act not only with regard to the legal definition of the act. The defendant served a prison sentence of 3 years and a half. 3. C.C. 3, 33 Years Old The childhood of the 33-year-old defendant was difficult and filled with violence. The father drank and beat his children. There were 8 children, who often ran away from home. The mother was killed by lightning, with the defendant present at the time. She herself also felt the effects of the lightning strike. She later started drinking and lived with multiple partners, all relatively peacefully. One day she became angry with one of them and impulsively stabbed him for no particular reason, while severely inebriated. The partner barely made it due to emergency medical assistance. The expert established that the defendant suffered from signs of mild brain damage, probably also because of alcohol addiction.

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The court established that the act was committed in a state of severely diminished capacity. It also took into consideration her difficult childhood and hard current life in distant places. She is a simple person and often taken advantage of, precisely because of this characteristic. She has a clean criminal record and has also never been involved in any criminal procedure. Both, the Court of First Instance and Second Instance imposed a sentence of 2 years and 8 months. The defendant served a prison sentence of 1 year and 6 months.

4. D.D. 4, 62 Years Old A married couple argued continuously for 43 years, the leading role being played by the wife with reproaches and occasional mild physical attacks. In some old argument, the husband pushed his wife – more by accident – and she suffered a fractured femur. Afterwards, the wife’s behaviour became even more aggressive. The husband would like to get a divorce, but she disagrees, explaining that the husband should stay and suffer. One morning, when they are still in the bedroom, the defendant grabbed a meat cleaver and hit him over the head with it many times. The husband defended himself somehow, even though the wife chops off his finger in addition to causing other injuries. He took the cleaver out of her hands and the wife returned with a wood chopping axe and attacked him again. He then punched her in the face with a fist and ran away, finding refuge in a medical centre. She can in no way prove her defence that she has been abused by her husband during all these years, leaving none of her bones in one piece. Experts could also not confirm this. Their daughter testifies about her mother’s jealousy and aggressiveness. The father usually avoided her mother. When determining the punishment, the court considered the perpetrator’s clean criminal record and the fact the husband forgave her, even though he no longer wished to live with her. The First and Second court imposed a sentence of 8 years. The defendant served a prison sentence of 4 years and 3 months.

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5. E.E. 5, 52 Years Old It pertains to complicity in a criminal act mentioned in the 1st case. The defendant collaborated with her husband in organizing prostitution and human trafficking involving girls. Because of being jealous of her husband getting involved with the girls, she decided to organize her husband’s murder. The First Court imposed a prison sentence of 6 years for this criminal act, and in doing so considered family circumstances – her husband’s behaviour, the perpetrator’s clean criminal record and remorse. The court considered her persistence in planning her husband’s removal an aggravating circumstance. Because it could not find signs of unlawful financial gain, the appellate court reduced the prison sentence from 6 to 4 years. The defendant served a prison sentence of 3 years and 4 months.

6. F.F. 6, 25 Years Old The defendant lived with the victim for 4 years. During this time, the defendant’s emotional as well as psychological lability (constantly changing) was demonstrated. On one side, she was in constant conflict with her parents, whilst being strongly attached to her partner. This attachment bordered on obsession. According to the partner’s statement, she said he was either going to be with her or with no one. The partner was unable to communicate directly that he did not consider their relationship to have any prospects, but somehow maintained the relationship. During this period – according to her statement – she attempted suicide numerous times. One evening, when he was sitting in arm-chair, the defendant stabbed him twice in the back of the neck. The victim did not directly provoke this action in any way. As he was moving away to the hallway, she stabbed him again in the stomach and damaged his liver. The act was committed in a state of severely diminished capacity and moderate depressive disorder, with elements of extended suicide. She also attempted suicide after committing the act. The defendant was very remorseful; however, she does not remember committing the act. The specialist confirmed psychogenic amnesia.

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The First Court imposed a prison sentence of 2 years. The defendant served a prison sentence of 1 year and 4 months. 7. G.G. 7, 20 Years Old The perpetrator lived with her late partner as a sub-leasee. Their relationship was often full of disagreements and even more serious conflicts. On the day in question the deceased found a needle cover in the apartment and accused her of using heroin again. Later, a fight broke out, where the victim hit the offender in the neck with his fist. She was injured, which is evident from the medical documentation. She fell to the floor, and he stepped over her with nunchaku sticks and hit her over the legs. He threatened to kill her and then himself. She dragged herself to the corridor, to which witnesses testified. When they returned to the apartment, he started choking her, and she managed to grab a knife and stab him in the chest. After a while she called the police, and the autopsy showed that the deceased was under the influence of alcohol. The court took into account the defendant’s unfavourable childhood circumstances, the fact that she had been a drug addict since she was 13, had a clean criminal record, and the fact that she used excessive force in self-defence. She also demonstrated proof of all her injuries (hits with nunchaku sticks, choking). The court imposed a prison sentence of 3 years. She served 2 years. 8. H.H. 8, 61 Years Old The perpetrator had been married to the victim for 32 years; during this time they had 3 children. After moving to a residential house the husband started to drink excessively and, when inebriated, became very violent, often beating his wife, causing mild injuries and even more serious bodily injuries. After 32 years the couple divorced upon request from the wife. The wife, in spite of being divorced, stayed in the common household for 8 years and took care of their son and the former husband, who had not stopped drinking during that time. On the day in question the perpetrator, upon seeing her former husband sitting dead drunk under a tree, secretly poured almost 50 ml of highly

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toxic solvent into his bottle of wine, because she wanted him to stop drinking. Later the former husband only tasted the drink and immediately sought medical help, so there were no serious consequences. When determining the sentence the court used the option of reducing the sentence, where it took into account that this was only an attempt, that there were no real consequences, and the circumstances in which the act was carried out. As mitigating circumstances the court considered long lasting mis-understandings between the parties, and it highlighted the physical violence the victim executed over the perpetrator. As a mitigating circumstance the court considered her clean criminal record, while there were no aggravating circumstances. The defendant received 3 years in prison, which was also confirmed by the Court of Second Instance. The convicted woman, who was 66 years old at the time of imprisonment, spent almost a year in the closed regime; after almost a year she we transferred to a semi-open prison. During her sentence she was unproblematic, and regretted her actions deeply. She also established a relationship with a new partner, so she was looking forward to the time after her sentence. She was released on parole after 1 year and 8 months in prison.

9. I.I. 9, 62 Years Old The perpetrator’s late husband was a violent man, and this violence escalated when he was drunk, which happened often. He was often in conflict with his wife and daughters. The same thing happened at the time of the event. On the day in question the husband was brought home by his neighbour around nine in the morning. He immediately started to argue with his wife, who withdrew to her room and asked her daughter to continue her work. The daughter tried to calm her father down, but did not succeed, because he started breaking the glass in a door with a mallet and also hitting the door to the room in which were the wife and granddaughter. Then he entered the room, grabbed his wife’s neck and started choking her. While choking her, he told her that somebody will die that day, either him or her. He let her go only after the daughter stopped him; she took him to the hallway, where he hit her so violently she fell to the floor. The

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mother tried to help her, but the husband hit her in the head with his fist. Then she returned to the room, where the husband kept a rope under the mattress, with which he had threatened her several times before. She threw the rope over his body in order to tie him until he settled down, but he pulled a knife and got loose, then jumped over to the daughter and cut her body. The wife hit him over the arm with a log, so he dropped the knife and calmed down somewhat. The act in question happened after the granddaughter picked the knife off the floor and ran to the neighbour; the daughter withdrew to her room in order to check her injuries. When they were left alone, the wife still had a part of the rope in her hand, which she put around her husband’s neck when he turned his back to her. She tripped over the stairs together with her husband, and kept the rope tight, which lasted for at least 5 minutes, so he died from asphyxiation. The court established that the defendant was in a state of severely diminished mental capacity, which was viewed as a mitigating circumstance in the determination of the sentence. The court also took into account her admission of guilt and her previously clean criminal record; the relationships between the parties, which caused her to live in a state of fear for herself and her family, were also considered as mitigating circumstances. Due to these special circumstances the court used the option of mitigating the sentence and sentenced her to 2 years and 6 months in prison. She started serving her sentence at the age of 65. She spent almost 6 months in the closed regime, and then she was moved to a semi-open prison. While incarcerated she has shown an extremely positive attitude to work and life, she found the memories of the act and the events before it, very traumatic. She was released on parole after 1 year and 7 months.

10. J.J. 10, 40 Years Old The perpetrator had been married to the deceased for 13 years; during this period they both had serious alcohol issues, and were taking medication because of it. The husband was very violent, insulting his wife, did not allow her contact with her friends, and also physically abused her so severely she had to seek medical attention on several occasions. She re-

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tired on the grounds of invalidity, due to the injuries he had caused her. During their marriage the husband had to serve a sentence for beating his first wife. On the day in question the husband, upon coming home, found her in the bathroom, where she was drying her hair. He unplugged the cable, saying that power costs money. After that he hit her strongly several times, also after they went to the kitchen. She got up after several slaps and went to the bedroom to get the gun which was kept wrapped in a cloth. When she returned to the kitchen she shot her husband twice and ran to her neighbours, from where they called the police. The court found that the act was committed in a state of severely diminished capacity; when deciding on the sentence they took into account the victim’s contribution to the crime, especially the long-term abuse and physical violence, the defendants’ previously clean criminal record, and the fact she regretted the act. Taking into account the mitigating circumstances the court sentenced her to 3 years and 6 months in prison. Upon the appeal of the state prosecutor the Higher Instance Court again ruled on the sentence and established that the first instance court over-estimated the significance of mitigating circumstances, therefore the higher court decided on a new punishment, namely 4 years and 6 months in prison.36 The convicted woman started serving her sentence at the age of 43. She was placed in a semi-open prison and then transferred to an open prison 36

In this case the court also considered whether this might be a case of manslaughter, and (correctly) decided that such a qualification is not possible. A part of the argument for this decision is rather concerning, because it says: “As it was mentioned before, the defendant was exposed to abusive treatment and heavy insults from the deceased, and was “accustomed” to the actions from the deceased that transpired that day. The actions of the deceased on the day in question were not such as to cause an extreme emotional state, in short, they could not have caused extreme provocation, therefore in the opinion of the court, this is not a case of manslaughter, according to Article 136 of the Penal Code.” From this argument follows that beatings of a woman, who is used to such treatment, cannot cause such a state that could lead to manslaughter. This explanation even reinforces the following quotation from the same case: “The defendant was beaten, insulted and undoubtedly roughly handled by X.X. for 13 years, while the defendant did not decide to try and prevent X.X. from treating her like that (did not move away, did not divorce him). The actions of X.X. on that day, in court’s opinion, were not “surprising”.” Irrespective of the fact that that the qualification for manslaughter did not apply in said case, such reasoning is dangerous and shows deep ignorance of the distress and mental state of an abused woman (see, for example, Filipčič (2002: 94-99) and Filipčič (in Kanduč, 2002: 71).

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after more than a year. She had trouble with her new partner, also a violent man, and broke off the relationship before being paroled, which was granted to her after serving 3 years and 2 months in prison. 11. K.K. 11, 25 Years Old The defendant was having intimate relations with the victim, who was married at the time of the relationship. In spite of his promises to leave his wife and marry the defendant, the victim broke off the relationship with the defendant, and she started to threaten him. On the day in question she waited for him after work, when he was returning home with his wife. Upon meeting, a short argument ensued between the defendant and the victim (wife); then the defendant pulled a gun and shot toward the wife’s head; but the bullet grazed her chin. She then fired twice more in the direction of the husband, who got between her and his wife and got hit in the stomach and right forearm; the defendant then ran away. The court found the defendant guilty of attempted murder, and took into account the mitigating circumstances: a clean criminal record, the fact that she reported it to the police herself, and the remoteness of the act (the trial took place 16 years after the event). The court sentenced her to a joint sentence of 3 years in prison. She started serving her sentence at the age of 40, and was released on parole after serving 2 years. 12. L.L. 12, 17 Years Old Together with a friend who was also a minor, the defendant planned the murder of her parents, so that she and the friend could live alone and pay off all the debt they had collected. The defendant’s friend was the dominant person in their relationship, but they encouraged each other to commit the act. They hid their relationship from the parents, who did not approve of their friendship. On the day in question the minors skipped school and waited in the kitchen for one of their mothers. As she entered, the first minor shot her in the back. After making sure she was dead, they carried the body to the upper floor and made it look like suicide.

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In the case of the defendant’s friend (younger minor) the court imposed a correctional measure of committing her to a juvenile detention facility. In the case of the defendant, it imposed a penal sanction at the recommendation of the state prosecutor. It imposed a punishment of 7 years in a juvenile prison, where is stated that it “considered all circumstances that effect the determination of the length of the punishment”, but fails to specifically list them. This decision was confirmed by the Court of Second Instance, which states that the imposed sentence “only seems to be harsh.”37 The defendant’s punishment was later reduced by one fifth (1 year and 5 months), based on the provisions of the Amnesty Law (Official Gazette of the Republic of Slovenia, no. 97/2001), but her request for a special mitigation of punishment was denied. The defendant behaved well in the prison and was hard working, her behaviour was exemplary. She continued her schooling and took part in extracurricular activities, which resulted in a gradual passage to an open system. She was released on parole after having served 3 years in prison. 13. M.M. 13, 42 Years Old The defendant and her husband were married for 18 years. They argued a lot as well as got involved in physical altercations. They both had alcohol problems and violence usually occurred when they were inebriated. On the day in question they both had quite a lot to drink, even though they both thought they weren’t drunk (the defendant’s blood alcohol level was 2.26 parts per thousand). When they returned home they started arguing in the kitchen and then the husband moved away to the bedroom and took a nap on the bed. The defendant grabbed a kitchen knife from the kitchen and went to the bedroom, where she attempted to stab the husband with it. In her attempt she only wounded the husband, because he woke up and prevented the act. The Court of First Instance imposed a sentence of one year on the defendant, considering that the act was committed in a state of severely 37

The punishment is extremely high in light of other cases. She was only guilty of solicitation to commit a crime. In addition, the defendant committed the crime when she was an older minor. What is scary is the fact that the court of first instance did not explicitly state any circumstances it considered; how is a higher court to evaluate the appropriateness of the punishment, in our opinion remains a mystery.

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diminished capacity, the defendant’s clean criminal record, the lengths of time that has passed since the crime occurred (5 years) and the fact that defendant put her life in order during this period. At the request of the state prosecutor, the Higher Court estimated that the punishment was too low and imposed a prison sentence of 2 years. In doing so it particularly emphasized that the Court of First Instance did not consider the aggravating circumstances, considered as such by the Higher Court – the defendant continued to drink after the argument, knowing she does not handle alcohol well and the blade did not penetrate the chest merely by accident and luck. The defendant began serving her sentence at the age of 48 and did not cause problems during her incarceration. She was gradually transferred to an open system and she also found a job outside the prison. She was released on parole after having served 1 year and 4 months in prison. 14. N.N. 14, 44 Years Old The defendant was married to her husband for over 20 years and had 5 children with him. The husband was violent and would beat her and the children, particularly, when he was inebriated. He supposedly also threatened her with killing her and the children. The defendant was also being treated for a nervous condition, resulting from the difficult situation at home. In the evening of the day in question, the husband entered the kitchen, where he started to verbally abuse and beat the defendant. Her 25-yearold son came to her defence. The husband then left the kitchen and went to the yard. The defendant followed him, grabbed an axe and hit him over the shoulders with the blunt side of the axe three times so he collapsed. She then gave the axe to her son, who struck his father in the face with the blunt side of the object another two times, which caused his death. The court imposed a prison sentence of 8 years, considering the act was committed in a state of severely diminished capacity, the defendant’s clean criminal record, as well as the victim’s contribution “who to a great extend co-created the circumstances of the criminal act.” The court also considered the mitigating circumstance of her having to care for three dependent children.

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The defendant served her prison sentence in a semi-open system and later open system. But after being subject to a disciplinary action, she was again transferred to the semi-open system. The Supreme Court granted the request for the protection of legality after she served 3 years and 4 months and returned the case to be tried again, which resulted in the termination of the defendant’s serving of the sentence. She was released after 3 years and 4 months, when the request for the protection of legality was granted.

4

FINAL EVALUATION

If we once again put together a scale of the level of violent behaviour of female defendants and victims, we get the following result. Table 2:

Victim-offender agression comparison – group 2

Case

Defendant’s level of violent behaviour

Men’s level of violent behaviour

Imposed sentence

A.A. 1

0

0*

4 years

B.B. 2

0

8

7 years

C.C. 3

1

0

2.67 years

D.D. 4

4

2

8 years (attempt)

E.E. 5

0

0*

4 years (not even attempt)

F.F. 6

2

0

2 years

G.G. 7

0

8

3 years (exceeded force in selfdefence)

H.H. 8

0

7

3 years

I.I. 9

0

8

2.5 years

J.J. 10

0

8

4.5 years

K.K. 11

2

2

3 years

L.L. 12

0

0*

7 years

M.M. 13

4

4

2 years

N.N. 14

0

7

8 years

(Note: in cases marked with *, we are unable to determine the presence of violence of anyone involved prior to the commitment of the criminal act. Motives are different in these cases – e.g. jealousy, unlawful financial gain. These few cases are not considered in the simplified correlation scale.)

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Using the highest level of restraint due to the individual nature of the cases, one can still notice trial inconsistencies. In a case, where the court established the severely violent nature in the men and a single act of violence in the woman in the instance of the final settlement, it imposed a sentence of 7 years. The second case, in which the victim in no way contributed to their own victimisation and the act was committed almost for “no reason”, stemming only from the perpetrator’s impulsivity while inebriated, which was her prevailing state, the court decided to impose a sentence of 2 years and 8 months. Here we would like to immediately emphasize that this punishment does not seem too low; however, in comparison, the 7-year punishment, imposed for a criminal act, whose circumstances are not that from those of self-defence, does warrant some reflection. There are some problems with proving this unusual correlation, which would confirm that a female perpetrator received a harsher punishment, if she was abused. The sample is complete, which means it is not really a sample, but a collection of the entire population which is mathematically speaking too small to allow any conclusions without any reservations. The dispersed graph namely makes it evident that we cannot draw conclusions regarding the correlation between the variables. This is confirmed with the calculation of the Pearson’s correlation coefficient: the probability of the validity of null hypothesis is 0.230. The null hypothesis, therefore, states that there is no correlation we could speak of, unless the probability of the null hypothesis was less than 0.1. The dispersed graph already indicates that the correlation must practically not be calculated. On the other hand, we can make use of a simple calculation of mean values of punishments imposed in the perpetrators and by considering the estimated levels of violent behaviour, we already used previously. Table 3:

Court response to violence (all cases)

Men being violent Case B.B. 2

Punishment in years

No violence/both violent/only female defendant violent Case

Punishment in years

A.A. 1

4

C.C. 3

2.67

D.D. 4

8

E.E. 5

4

7

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Case

Punishment in years

G.G. 7

3

H.H. 8

3

I.I. 9

2.5

J.J. 10

4.5

N.N. 14

8

AVERAGE

4.67

No violence/both violent/only female defendant violent Case

Punishment in years

F.F. 6

2

K.K. 11

3

L.L. 12

7

M.M. 13

2

AVERAGE

4.08

This calculation shows that in those cases where the female perpetrator was a victim of her husband’s abuse prior to committing the criminal act, she on average received a 4.67-year prison sentence. In those cases where both, neither, or just the woman exhibited violent behaviour prior to committing the criminal act, the female perpetrator on average received a sentence of 4.08 years, which is a good 6 months less. We must of course again point out the small number of cases. Nevertheless, one would expect that an emphasized element of violent behaviour of the victim would benefit the female perpetrator with regard to sentencing and not harm her, even in an analysis of a small number of cases. Instead of mathematical certainty, we are left with the option to reflect on individual imposed sentences, which seem very harsh, despite the fact that some situations are very reminiscent of self-defence. If we also include the explanations for the determination of sentences which reflect an almost sexist and machoistic stance of the judges, stating that the female perpetrator was used to the long-term abuse and can, therefore, not have any reason for this momentary eruption of similar violent behaviour, when she decided to take justice into her own hands, the image of the attitude some judges have towards female perpetrators, becomes much clearer. It is reminiscent of a command from the Bible: “Woman, be obedient to your husband!”. During this period of generally harsher sentencing practices, the system of how sentences are served is also following suit. How and with what

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benefits a perpetrator will serve their prison sentence is not determined based on an estimation of the perpetrator’s level of danger they pose to society, but formally, based on the severity of their crime. In some cases, involving a similar crime with regard to severity, but the imposed punishment was lighter, we find the following mitigating circumstance: the partner, who survived the attempted murder, has forgiven the perpetrator. The partner relationship obviously continued and the victim and the perpetrator enter the trial “reconciled” in a way. Such argumentation seems very reasonable, when it pertains to crimes involving negligence. However, perhaps too much significance is attributed to the behaviour of a forgiving and understanding victim in these cases. This is not about imposing harsher sentences. This is about not handling criminal acts, such as attempted murder under the impression that we are dealing with a freely available commodity, violations against which can be partially exculpated with the victim’s nobility and kindness (which is usually the result of naivety).

5

REFERENCES

Ashworth, A. (1995). Sentencing and Criminal Justice. Second Edition. London: Butterworths. Auerhahn, K. (2007). Adjudication Outcomes in Intimate and Non-intimate Homicides. Homicide Studies, 213-230. Bavcon, L., Šelih, A., Filipčič, K., Jakulin, V., Korošec, D. (2003). Kazensko pravo – splošni del. Ljubljana: Uradni list Republike Slovenije. Bickle, G.S., Peterson, R.D. (1991). The Impact of Gender-Based Family Roles on Criminal Sentencing. Social Problems, 38 (3), 372-394. Blackwell, B. S., Holleran, D., Finn M. A. (2008). The Impact of the Pennsylvania Sentencing Guidelines on Sex Differences in Sentencing. Journal of Contemporary Criminal Justice, 24 (4), 399-418. Champion, D. J. (2007). Sentencing: A Reference Handbook. Santa Barbara, CA: ABCCLIO. Clarkson, C.M.V., Morgan R., (Eds.) (1995). The Politics of Sentencing Reform. Oxford: Clarendon Press Oxford. Curran, D. (1983). Judicial Discretion and Defendant’s Sex. Criminology, 21 (1), 41-58. Filipčič, K. (2002). Nasilje v družini. Ljubljana: Bonex. Finley, L.L. (2007). Encyclopedia of Juvenile Violence. Westport: Greenwood Press.

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Florjančič D. (2006). Izbira, odmera in izrek kazenskih sankcij. Pravna praksa, (19.1.2006), 6-8. Forell, C. A., Matthews, D. M. (2000). A Law of Her Own. New York: New York University press. Franco Aas, K. (2005). Sentencing in the Age of Information – From Faust to Macintosh. London: GlassHouse Press. Frase R. S. (2005). State Sentencing Guidelines: Diversity, Consensus, and Unresolved Policy Issues. Columbia Law Review, 105 (4), 1190-1232. Guthrie, C., Rachlinski, J. J., Wistrich A. J. (2000-2001). Inside the Judicial Mind. Cornell Law Review, 86 (4), 777-830. Hall, M. J., Calabro, D., Sourdin T., Stranieri A., Zeleznikow J. (2005) Supporting Discretionary Decision-Making with Information Technology: A Case Study in the Criminal Sentencing Jurisdiction. University of Ottawa Law and Technology Journal, 2 (1), 1-36. Kanduč, Z. (2002). Žrtve, viktimizacije in viktimološke perspektive. Ljubljana: Inštitut za kriminologijo pri Pravni fakulteti v Ljubljani. Kanduč, Z. (2007). Kriminologija: (Stran)poti vede o (stran)poteh. Ljubljana: Inštitut za kriminologijo pri Pravni fakulteti v Ljubljani. Letno poročilo 2007. (2008). Ljubljana: Uprava za izvrševanje kazenskih sankcij. Messing, J. T., Heeren, J. W. (2008). Gendered Justice: Domestic Homicide and the Death Penalty. Feminist Criminology, 4 (2), 170-188. Miller, M. L. (2005). A Map of Sentencing and a Compass for Judges: Sentencing Information Systems, Transparency, and the Next Generation of Reform. Columbia Law Review, 105 (4), 1351-1395. Motivans M. (2006). Federal Criminal Justice Trends, 2003. Federal Justice Statistics Program. Washington, DC: Bureau of Justice Statistics. Nasilje nad ženskami (1990). Ljubljana: Inštitut za kriminologijo pri Pravni fakulteti v Ljubljani. Petrovec, D. (1998). Kazen brez zločina. Ljubljana: Studia Humanitatis. Reid, S. T. (2006). Crime and Criminology. New York: Mc Graw Hill. Rodriguez, S. F., Curry, T. R., Lee, G. (2006). Gender Differences in Criminal Sentencing: Do Effects Vary across Violent, Property and Drug Offenses? Social Science Quarterly, 87 (2), 318-339. Sisk, G. C., Heisse, M., Morriss A. P. (1998) Charting the Influences on the Judicial Mind: An Empirical Study of Judicial Reasoning. New York University Law Review, 73 (5), 1377-1500. Spohn, C., Beichner, D. (2000). Is Preferential Treatment of Female Offenders a Thing of the Past? A Multisite Study of Gender, Race, and Imprisonment. Criminal Justice Policy Review, 11 (2), 149-184. Stith, K., O’Neil M. E. (2003). Federal Sentencing Guidelines Symposium Yale Law School, November 8, 2002. Federal Sentencing Reporter, 15, 156-160.

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Šelih, A. (1990). Sodna odmera kazni. Ljubljana: Inštitut za kriminologijo pri Pravni fakulteti v Ljubljani. Šelih, A. (1992). Možnosti in meje racionalne sodne odmere kazni. Zbornik znanstvenih razprav, 52, 207-226. Šugman Stubbs, K. (2006). Kategorizacija in stereotipiziranje ter njun pomen za kriminologijo. Revija za kriminalistiko in kriminologij, 57 (1), 15-27. Šugman Stubbs, K., ed. (2006). Izhodišča za nov model kazenskega postopka. Ljubljana: Inštitut za kriminologijo pri Pravni fakulteti v Ljubljani. Tata, C., Burns, N., Halliday S., Hutton, N., McNeill, F. (2008). Assisting and Advising the Sentencing Decision Process. British Journal of Criminology, 48 (4), 835-853. Tonry, M. H. (1996). Sentencing Matters. New York, Oxford: Oxford University Press. Tonry, M. H., Frase R., ed. (2001). Sentencing and Sanctions in Western Countries. New York: Oxford University Press. Tonry, M. H. (2004). Thinking about Crime. New York: Oxford University Press. Walklate, S. (2004). Gender, Crime and Criminal Justice. Portland: Willan Publishing. Williams, M. R. (1999). Gender and Sentencing: An Analysis of Indicators. Criminal Justice Policy Review, 10 (4), 471-490.

Community Service – New Method of Correction of Juvenile Offenders in Slovenia Katja Filipčič

Community Service – New Method of Correction of Juvenile Offenders in...

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1

CHARACTERISTIC FEATURE OF COMMUNITY SERVICE AS ALTERNATIVE MEASURE FOR JUVENILE OFFENDERS

1.1

Development of Juvenile Offenders’ Treatment

The idea of special treatment of juvenile offenders is not a novel concept and can be traced back to the earliest legal systems1. At end of the 19th century it flourished and received general support among legal professionals and other experts, who strived to improve the lives of children and protect their rights. With the introduction of special juvenile courts in the USA (in Cook County Illinois in 1899), an era of founding special institutions, which treated juveniles by specific proceedings and with different objectives, compared to adult criminal offence perpetrators. The basic premise for different treatment and specific sanctions stemmed from the realization that the liability of juveniles, due to their immaturity, cannot be equated with adult perpetrators. Moreover, it is possible to influence them in a positive way more successfully. Proponents of separate treatment were successful for approximately seven decades; but in the last twenty years there has been a noticeable shift towards treatment of juvenile offenders as adults2. This shift is manifested primarily in the following areas: • Procedural guarantees: the role of the judge for juveniles was within the framework of the parens patriae doctrine; it was elaborated in the USA and intended as a role of a parent who acts in the interest of a child in a less formalized, and thus child-friendlier, proceeding. Concurrently, this meant that there were fewer procedural guarantees in comparison to proceedings where adult criminal offenders were treated. Despite 1

2

The idea of criminal immunity of children who perpetrate criminal offence can be traced back as far as Roman law (and also in some older legal sources). It originated in the observation that, due to their early cognitive and moral stage, children under particular age limit cannot comprehend the meaning of their actions as to be able to tell the difference between good and evil, between legally permissible, binding, and forbidden modes of conduct. If children committed a criminal offence, the state would leave it to the family to consider and carry out punishment, as they could not be the subject of a criminal act. In Codex Justinianus from 529 AD perpetrators older than 7 years fell into several categories with respect to their ability for responsibility. (Matić, 1973; Carić, 1971). A turning point in the history of juvenile criminal law is represented by a well-known decision of American Supreme Court in the case of Gault.

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the intended role of a judge, the imposed sanctions represented an intense infringement of the state on the life and rights of a juvenile. The appeals to provide juveniles with all basic procedural guarantees in court proceedings were therefore justified. The gap between proceedings for juveniles and adult offenders thus narrowed. • Sanctions system: in the last two decades, most countries have exercised stricter treatment towards juvenile criminal offenders which, by this token, represents a shift toward the way in which adult criminal offenders are treated. More repressive treatment of juveniles is manifested primarily in lowering the age limit of criminal responsibility3, introduction of new educational measures or punitive measures with strict control or even new forms of deprivation of liberty4, and the increased possibility for the juvenile to be treated by the court for adult criminal offenders as well as the increased possibility to be sentenced to a sanction for adult offenders5. Among the aforementioned trends, it is particularly interesting to notice the lowering of the age of criminal responsibility, where the state assumes that juveniles mature earlier and are consequently responsible for their actions at an earlier stage. Simultaneously, the opposite trend can 3

4

5

England lowered the age limit of criminal responsibility from 14 to 10 years with the introduction of Crime and Disorder Act in 1998 (Graham, 2004). Poland (Stando Kawecka, 2004), France, Greece and the Netherlands (Junger Tas, 2002) lowered their age limit in the 90s. The debate on lowering the age limit of criminal responsibility has been going on in most Eastern European countries, such as Estonia, Latvia, Ukraine, Moldova, Republic of Macedonia, the Czech Republic and Slovakia (Muncie, 2005). In 2002, France introduced higher sanctions, opened new institutions and prisons for juveniles. (www.ladocumentationfrancaise.fr). Belgium, with its traditionally protective model of treatment, introduced a special type of closed-type institution in 2002; prior to this there had been no closed institutions for juveniles (www.ecolo.be). Poland introduced stricter punishment policy for juveniles in 2000 (Stando Kawecka, 2004). Between 1995 and 2000, the number of juveniles in prisons in England, Greece, Germany, the Netherlands and Portugal increased substantially (Muncie, 2005). The most extreme example of the so called transfer of juveniles into the system for adult criminal offenders is the USA. Between 1992 and 1997, all American federal states - with the exception of three - increased the possibility for juveniles to be treated by the court in proceedings for adult criminal offenders by means of the introduction of legislative changes. There is even a mandatory transfer of jurisdiction for certain criminal offences (Schaffner, 2002). In Europe, the option of transfer for juvenile treatment to the system for adult offenders exists in England, the Netherlands (Junger Tas, 2002), Scotland (Scottish Law Commission), Belgium (van Dijk, 2004) and Poland (Stando Kawecka, 2004).

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be observed and this can be seen in the reasoning that juveniles mature at a later stage and thus the state should protect them from various types of abuses, primarily those of sexual nature. Consequently, the age when a youth independently decides when to actively enter sexual relationships is increasing6. In this way, there is an obvious shortening of the childhood period, whereas on the other hand it is being extended. The increasingly repressive nature of treatment of juvenile offenders is concealing yet another paradox: while most European countries introduce stricter sanctions and more frequently pronounce correctional detention measures, with all the well-known negative effects, they forbid parents from using any form of inhumane punishment in family upbringing (here are included the mildest forms of corporal punishment and psychological affliction)7. The state thus places itself in the role of best guardian of children’s rights against parents. However, when it chooses to punish, it brushes children’s interest aside, giving priority to safety of society (despite the fact that the effectiveness of achieving a safe society by means of punishment is questionable). As far as relationship between parents and 6

7

Age of consent for sexual relationship varies throughout Europe: from 12 years for girls in the Netherlands to the most common average of 15 years (www.ageofconsent.com). The age limit in question has been increased in some legal systems (e.g. Slovenia, from 14 to 15 years in 1999); this increase is particularly pronounced in Europe in longer time period of 50 years. Sweden was the first to explicitly forbid all forms of physical punishment of children in their legislation; no form of corporal punishment is admissible, including the so called reasonable measure of punishment. Along with Sweden, the following countries have so far introduced the same ban as far as content is concerned: Finland (1983), Norway (1987), Austria (1989), Cyprus (1994), Denmark (1997), Latvia (1998), Croatia (1999), Germany (2000), Israel (2000), Bulgaria (2000), Island (2003), Romania (2004), Ukraine (2004), Hungary (2005), Greece (2006), Portugal (2007), Spain (2007), the Netherlands (2007) and Moldova (2008). (Http://endcorporalpunishment.org). In large majority of the aforementioned countries (with the exception of Cyprus, for example), the ban was included in civil law (as a rule in family law) and thus did not directly represent a new incrimination. This fact is stressed by many authors, while they, at the same time acknowledge an indirect influence of such a ban on criminal law. By this token, any slap or form of violence becomes unlawful and in this way affect interpretation of legal signs of appropriate criminal acts. With its most repressive mechanism (criminal law), in the case of a slap the state could interfere with the family and punish the parents in a formalized proceeding. In Slovenia, the pursuit for the ban of all forms of physical punishment commenced within the framework of Slovenian Association of Friends of Youth in the year 2004 (Kornhauser, 2007).

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children is concerned, the state consistently promotes the child’s interest within a family, while being less concerned for their care when it is the state itself that should provide for it. What I want to accentuate here is simply the controversial aspect of the claim that state interference in a family with legal/coercive mechanisms in the mildest forms (such as “a smack”) of physical violence benefits the child.

1.2

Differences between Continental Europe and Anglo Saxon Countries

The difference between more repressive treatment of juveniles and the simultaneous emphasis on state as the best guardian of children’s rights (especially against potential abuses) is particularly pronounced in the USA. It is therefore justified for us to ask ourselves if this is the future of juvenile offenders’ treatment in Europe. Despite the fact that the first wave of increased oppression has already reached Europe, it has been felt much more in England than in Continental Europe. In my opinion the differences between countries, which have an Anglo-Saxon legal system, and those with a Continental European system will decrease, yet still remain in the future, for several reasons (Junger Tas, 2002). One of the most important reasons is definitely different legal tradition; European legal systems developed from the inquisitorial system, whereas the Anglo-Saxon system stems from the adversarial system. The consequences of different historical development are manifested in the different role of the judge as well as in the aim of proceedings. Even more important is the different notion of the role of the individual in the society. American society puts emphasis on the responsibility of the individual for their decisions, life-style, and particular actions. Society is not responsible for their lives and, consequently, there is no need to change institutions; to the contrary, it is the individual who needs to be changed. In the criminal justice system this means that the individual is influenced by means of treatment or other forms of consultation and, recently, predominantly by punishment. As far as the fate of the individual is concerned, the roles of society and social groups - which an individual is a part of - receive more emphasis. Furthermore, Europe has developed a welfare state, which takes care of solving problems such as unemployment, poverty, and health. All this is reflected in the responsibility of the community for the individual

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rather than simple emphasis on individual responsibility in choosing their life-style. The wave of neo-liberalism has already seriously affected some of the aforementioned characteristic features of the relationship between the individual and society in Continental Europe as well. Yet basic features still remain for the time being. As far as treatment of juvenile offenders is concerned, this is shown in the notion of limited individual responsibility of a juvenile with simultaneous emphasis on the need to protect, reform and the need for state measures for rehabilitation; at least for the majority of juveniles - that is perpetrators of less serious criminal acts. In Europe in recent years, another strong trend that could stop the punitive wave from the USA has been intensifying, namely an intensive search for various alternative methods of treatment of juvenile offenders outside court. This trend can be observed in the USA as well, yet not to the same extent as in Europe, and, above all, the aims of alternative treatment are different (in the USA, it is common for the alternative treatment to be more punitive than traditional). In Europe, there are two predominant forms of extra-judicial treatment (Junger Tas, 2002): – Diversion from judicial treatment: police or prosecutor transfers the case to be managed by non-repressive institutions. One typical example for this is mediation between the perpetrator and the victim, which is most frequently concluded by an apology or service for the benefit of the victim; – “Community sanctions”: sanctions carried out within the community and pronounced by the prosecutor or the judge. The idea derived from the notion of restorative justice; the perpetrator must remedy the damage caused by their criminal act by means of restitution or compensation, with unpaid work for the victim or the community. This category comprises training in social skills, various therapeutic interventions, and community service.

1.3

Inclusion of Community Service in European Legal Systems

In recent years, restorative justice has become an increasingly more established alternative to retributive as well as a rehabilitative model of treatment of perpetrators of criminal acts. Community service is the measure,

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which indirectly fulfils the basic premise of this policy; it is about compensation for the damage, which the community has suffered due to the criminal act (of course, primarily in a symbolic sense). Numerous authors emphasize that community service is not about punishment for the perpetrator (punishment is ethically controversial; moreover, by means of its various mechanisms, it excludes the offender from society). They stress that even rehabilitation does not represent the basic purpose of this measure. What is essential is compensation for any caused damage. The fact remains that facing the act with repair of or compensation for damage has a rehabilitative effect, and that compensation for damage represents a positive effect of this measure - extra bonus (Walgrave, 1996). As far back as 1973, England experimentally introduced community service, and from England the interest in this measure initially spread across Western Europe, and then further on to other European countries8. At the time, ex-socialist countries were still reserved in respect to this measure. One of the reasons for this being, that in the time of socialism, there was a stress on the intention to see work as a corrective or rehabilitative practise, and as such it was also abused in order to sanction political opponents9. This “historical experience” represented an obstacle to consider community service on a different basis. Nevertheless, over the last 15 years, criminal legislation in ex-socialist countries have been incorporating community service within their punitive sanctions, e.g. Czech Republic (Harris & Wing Lo, 2002: 427) and Slovenia, in 1995. 8

9

Switzerland 1974 (in this year for juveniles only, in 1990 also for adults), West Germany 1975, Luxembourg 1976, Italy and the Netherlands 1981, Belgium, Denmark and Portugal 1982, France 1983, Ireland and Norway 1984, the Netherlands 1989, Sweden 1990, Finland 1991 (Harris & Wing Lo, 2002: 427; Muiluvuori, 2001: 72; Jacobs & Dantinne, 2002). Act on Misdemeanours (Official Gazette of Federal People’s Republic of Yugoslavia, no. 107/47) which was in use throughout ex-Yugoslavia listed, among other administrative punishments for misdemeanours, also “corrective work up to three months” (Article 6 of this Act). Some special laws also provided for “work for societal benefit” for the length as long as 2 years as punitive sanction for misdemeanour (e.g. Act on Misdemeanours against Public Order from 1949). In post-war years, offenders were treated by special commissions for misdemeanours, presided by the head of organs for internal affairs. These commissions depended on their superiors; consequently we cannot talk about their autonomous and independent decision-making. Political influence on their operation was hence substantial (more about the development of the treatment of misdemeanours in Slovenia in Pavlina (1992)).

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The previously described concept of restorative justice where community service is well invested, however, was frequently introduced as an alternative to short-term prison sentences in the time of increasing crime, which caused jails to become overcrowded. What came to the front was primarily a pragmatic aspect of community service, as this measure proved to be cheaper than jail sentences, even if it was a short-term jail sentence. Increased interest in community service met its response from international organizations as well: as far back as 1974, the European Council adopted the recommendation10 and advised its countries to use alternatives to prison sentences, whereupon it cited community service among others. The 6th Congress of the UN on crime articulated a similar appeal in 198411. In the following years, international organizations focused specially on sanctions that are carried out within the community (including community service) as new ways of response to crime, where some of these were included in several documents12. Community service has a different legal nature13 in various legal systems. In some it represents a procedural institute within the prosecutor’s jurisdiction; which puts a burden of a certain amount of work on the suspect, the fulfilment of which enables the suspect with the opportunity to avoid formal criminal proceedings. In this way, the offender is not stigmatized, and at the same time, the costs of criminal proceedings are decreased. Some countries define community service as an independent sanction. Others use it as a condition for suspended sentence or parole. In accordance with some criminal justice systems, it can be given together with other sanctions, such as: supervising measures, fine, admonition, withdrawal of driving licence, or reporting to a police station. The aforementioned definition of community service as a way to carry out short-term prison sentences, or as its alternative, is very common14. 10 11 12

13 14

Committee of Ministers of the Council of Europe: Resolution (76) 10. Sixth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, 1984. In this area, Council of Europe adopted two important recommendations: Recommendation R (92)16 on the European Rules on Community sanctions and measures, Recommendation Rec. (2000) 22 on improving the implementation of the European rules on community sanctions and measures. Presentation of some European and non-European systems in Harris and Wing Lo (2002). Some countries formulated a special formula to calculate the length of prison sentence into adequate community service hours (commonly 1 month of prison equals 30 to 40 hours of community service).

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1.4

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Efficiency of Community Service as an Alternative Sanction

There are only a few empirical surveys on the efficiency of particular penal sanctions, and furthermore, the few that were carried out received a lot of criticism. The first thing one comes across is the problem of definition of efficiency, or success, of a particular sanction. The widely used assumption that the rate of recidivism represents the most reliable or, indeed, the only indicator of sanction efficiency, is an over-simplification. A lot of research forms conclusions on sanction efficiency by means of measuring the rate of recidivism. What is overlooked is the variety of numerous factors, which affect the act of a criminal offence, along with the fact that an offender’s previous punishment only represents one single factor among many others, which, in addition, is not the most important one. By this token, we arrive at methodological problems; namely how to include different factors into the measurements. From among methodological problems, particular difficulty is in the formation of control groups, which would provide results with the impact of scientific reliability. Nevertheless, relative literature does provide some minor surveys that strived to do away with most methodological obstacles. The success of community service has thus been measured on several occasions in Scandinavian countries. They considered the number of offenders who performed community service (in this case the measure was tagged as successfully performed) and the number of the offenders who, within a given period of time, committed criminal acts again; the rate of recidivism thus obtained was then compared to the recidivism of offenders who were sentenced to other sanctions. These major surveys from the 80s and 90s were carried out in Denmark, Norway, and Finland, and showed that between 70 and 80 per cent of convicts finish their service. As far as the rate of recidivism is concerned, however, the conclusions vary; from claims that recidivism is substantially lower compared to prison sentence, to claims that there is no essential difference as far as recidivism is concerned (Muiluvuori, 2001). The Swiss experiment from the mid nineties belongs to the group of particularly interesting and methodologically consistent executed surveys. Its special feature is in its careful formation of control group15. Authors 15

In 1993 a project started in Vaud canton where the judges were given the option of pronouncing community service instead of prison sentences of up to 14 days. All of-

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compared the rate of recidivism for offenders with a prison sentence of up to 14 days (which is a common sanction for less serious criminal acts in Switzerland) with offenders whose sanction was community service to a comparable extent (1 day in prison was equated to 8-hours of work). The basic conclusion of the survey was that community service decreases recidivism if compared to short-term prison sentences. Researchers largely ascribed this effect to the fact that offenders understood community service as the consequence of their acts and not the judge’s “incorrect, poor, or unjust adjudication” (Killias et al., 2000), rather than ascribing it to life, or working, experience as a consequence of their service. Irrespective of the lack of experimental results that proves the higher efficiency of community service in comparison to the other forms of sanctions, I believe that it is sensible and necessary to introduce this as well as other alternative sanctions. The premise that alternative sanctions would be less efficient than more repressive ones has not been proven to be the fact, and by this token, if the state can achieve the same (if not a better) effect with lesser interference with the basic human rights, it should choose to use less aggressive measures.

1.5

Community Service in the Slovenian System of Treatment of Juveniles

In 1995, the Criminal Code of the Republic of Slovenia (henceforth referred to as CC)16 introduced new educational measure, instructions, and prohibitions (Article 77 of CC) and among ten instructions and one prohibition, also quoted service for the benefit of charity organizations or local communities. Even after the introduction of the Criminal Code, which entered into force on 1 November 2008, provisions on sanctions for juvenile perpetrators of criminal acts from CC 1995 are still being used, until a special act for

16

fenders sentenced to such a short term imprisonment were informed about the possibility to commute their sentence to community service. An interview was carried out with the interested convicts. In cases where it was found out that they fulfil certain criteria for community service, they were informed that random individuals would be chosen from among them, and their prison sentences would be replaced by community service. In this way, experimental and control group were established. The experiment included 123 randomly chosen convicts; 84 were ordered community service, and 39 were sentenced to imprisonment for up to 14 days. (Killias et al., 2000: 42-43). Criminal Code, Official Gazette of the Republic of Slovenia, no. 63/94, 40/2004.

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juveniles is adopted. The picture of the imposed measures was completely inadequate at the formation of penal legislation in 1994. The predominant form was a reprimand (almost 60 per cent of imposed sanctions), which was also pronounced for juveniles who repeated criminal acts and would require a more intense measure, yet for whom there was no need to exclude them from their environment. Courts were obviously not convinced about the efficiency of other non-institutional educational measures, mostly because of the inconclusiveness of their execution. In addition, judges felt the need for increased individualization of the choice of educational measures. New educational measure, instructions and prohibitions, was to provide precisely for that. The motive for the introduction of a new measure, therefore, did not stem from the search for alternatives for institutional measures, or even prison. Neither did they originate in the search for new educational measures that are carried out within a juvenile’s environment; it was rather the search for alternatives to non-institutional measures. Table 1:

Juveniles on whom educational measure or sentence was imposed: 1980-2007.17

Year

Total

Reprimand (%)

1980 1985 1990 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007

856 1098 997 499 500 617 636 706 591 571 728 568 615 498 511 459

36.4 48.6 58.3 58.1 53.4 42.8 35.2 33.6 29.5 29.3 29.8 30.1 23.9 20.3 20.0 17.4

InstrucSuperviCommittions and sion by ment to prohibia social a juvenile tions* (%) agency (%) institution (%)

2.8 9.6 16.2 15.4 18.4 22.7 18.2 14.6 13.4 15.4 17.7 13.9 19.0

39.5 33.1 28.8 29.3 29.8 33.5 39.5 40.4 40.8 47.3 49.9 48.4 53.3 52.8 56.0 53.2

*Introduced in year 1995 17

Statistical Office of the Republic of Slovenia.

13.8 7.9 6.1 8.2 5.6 5.8 7.9 5.1 4.6 3.5 4.0 6.7 4.7 6.8 5.7 6.3

Juvenile imprisonment (%)

Fine* (%)

1.1 1.0 0.3 1.4 0.6 0.2 0.1 0.5 1.5 0.9 0.8 0.7 1.3 1.6 2.1 2.8

0.2 1.0 1.5 1.9 1.8 0.8 0.9 1.0 0.7 0.8 0.6 1.7 1.3

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Table 1 shows that the new educational measure have essentially changed the picture of the imposed sanctions. The most important change is the fact that, with the use of the new educational measure, the share of pronounced reprimands has dropped by two thirds in ten years. It is interesting to notice the simultaneous increase in the ratio of supervision by social agency, which is the consequence of the legal option for a judge to pronounce instructions, together with educational measures of supervision by social agency (Article 78 of CC). Detailed analysis of imposed instructions reveals that there is only a small selection of the predominant ones (most commonly an apology to the injured party). There are still some of them which judges hardly ever use, even ten years after their introduction. Among them, there is community service, which a judge can give to a juvenile to the extent of 120 hours. Within the Slovenian system of treatment of juvenile perpetrators of criminal acts, community service is not defined merely as an educational measure, which a judge can pronounce at the conclusion of a legal proceeding. In addition to this, in our country, community service has the nature of diversion from criminal proceedings (Article 162 of the Criminal Procedure Code);18 the prosecutor gives the juvenile community service and if the juvenile completes it, the prosecutor does not demand the introduction of criminal proceeding. However, this form of community service is inconclusive, as the Criminal Procedure Code (CPC) does not determine the extent of work. This shortcoming was to be bridged by an Executive Act entitled General Instruction on the Common Use of Provisions from Article 162 of CPC on the Deferral of Criminal Prosecution of the Criminal Procedure Act adopted by the Supreme State Prosecutor19 on 30 November 2004 (henceforth referred to as the prosecutor’s instructions). It resolved that community service for juveniles couldn’t exceed 60 hours within a three-month period.

18 19

Criminal Procedure Code, Official Gazette of the Republic of Slovenia, no. 25/1996. General Instruction on the Common Use of Provisions from Article 162 of CPC on the Deferral of Criminal Prosecution of the Criminal Procedure Act, Official Gazette of the Republic of Slovenia, no. 128/2004.

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2

THE RESEARCH OF THE INSTITUTE OF CRIMINOLOGY

2.1

Application of Community Service and Its Practise in Slovenia

Between 2002 and 2005, the Institute of Criminology at the Faculty of Law, Ljubljana, performed a research project entitled “Introduction of social skills training and community service as types of educational measures”20. The basic aim of the project was to strengthen the influence of non-repressive institutions (especially Centres for Social Work – CSW) in prevention of crime and other forms of deviant behaviour of juveniles. We wanted to achieve this by preparing execution of two instructions within the framework of educational measure “Instructions and Prohibitions” - Community Service and Social Training Participation; for which the Criminal Code authorized social agencies - CSWs (and which were extremely rarely pronounced in practise). The research objective was to determine whether CSWs really represented the most suitable, or single, suitable institutions for preparation and execution of these two instructions. In continuation, I only present the basic findings of the research team on implementation of community service, with the emphasis on the analysis of prosecutor and court practise. That was the basis for the formation of implementation methodology for this measure, which had been one of the basic goals of the project. In this way, we wanted to contribute to a faster introduction of community service into the work of the state prosecutors and judges in their treatment of juvenile perpetrators of criminal acts.

2.2

Presentation of the Sample

The state prosecutor may drop a case if the suspected juvenile performs certain actions to remove the harmful consequences of the criminal offence. When reviewing the statistics of the state prosecution for 2002 and 2003, we found out that some prosecutor offices define community service as a task in the framework of the deferment of prosecution. We decided to analyse those state prosecutors’ cases within the 20

Research project number V5-0676-02 was carried out within the framework of target research programme “Competitiveness of Slovenia 2001-2006”, commissioned by Slovenian Research Agency and Ministry of Labour, Family and Social Affairs.

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observed timeframe that used this measure, in at least five decisions on deferment of the prosecution in proceedings dealing with juvenile perpetrators of criminal acts. Based on this criterion, we included three District State Prosecutor’s Offices (henceforth referred to as DSPO) in our analysis: DSPO Celje (36 cases), DSPO Novo mesto (18 cases) and DSPO Krško (5 cases). We expected the state prosecutors’ criteria for the pronouncement of the measure to differ from the criteria that guided judges’ decisions for the pronouncement of community service as an educational measure. The aim of the measures within the framework of deferment of the prosecution is diversion from formal criminal proceeding, while educational measures (community service included) should be given to those juvenile perpetrators who require more intense treatment, yet without exclusion from their environment. For this reason, we also included the cases where judges for juveniles from Ljubljana District Court between 2003 and 2005 imposed community service as educational measure, either as an independent educational measure, in accordance with point 6, Article 77 of CC, or as an instruction within the framework of educational measures “supervision by a social agency”, in accordance with paragraph 4, Article 78 of CC. Within the timeframe of the project, we met representatives of the Ljubljana District State Prosecutor’s Office, Ljubljana District Court, as well as with representatives of social welfare centres from Ljubljana and the surrounding areas, on several occasions. The basic concern of the court was whether CSWs would organize the execution of such a measure. After several common meetings, social workers of CSW from Ljubljana initially showed a great amount of readiness to participate in our project, which resulted in the fact that the judges pronounced the aforementioned measure in 24 cases. A subsequent change in position to the implementation of this measure and its reasons will be dealt with in continuation. Between 2003 and 2005, Ljubljana District Court pronounced community service measure in 24 cases. The members of research team have analyzed 16 final cases (8 of the pronounced measures were not final in the period of the research’s duration) in which courts gave community service to 27 juveniles. In this way, we included decisions made by the prosecutors and judges for juveniles who were given community service for 86 juveniles, between 2002 and 2005 (59 within the framework of deferment of the prosecution and 27 as an educational measure).

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2.3

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Characteristic Features of Perpetrated Criminal Acts

Table 2:

Criminal acts perpetrated by juveniles who were ordered to community service.

Criminal act according to CC

Within the As an eduframework cational of defermeasure ment of the prosecution

Total

Ratio

Actual Bodily Harm - Art. 133

2

2

4

4.6%

Participation in Brawl - Art. 136

2

-

2

2.3%

Rendering Opportunity for Consumption of Narcotic Drugs - Art. 197

-

2

2

2.3%

Larceny – Art. 211

24

2

26

30.2%

Grand Larceny – Art. 212

1

11

12

14%

Robbery- Art. 213

-

2

2

2.3%

Embezzlement – Art. 214

2

-

2

2.3%

Joy Riding – Art. 216

2

-

2

2.3%

Fraud- Art. 217

2

-

2

2.3%

Blackmail – Art. 218

-

2

2

2.3%

Concealment – Art. 221

2

1

3

3.5%

Malicious Mischief – Art. 224

8

1

9

10.5%

Forgery – Art. 256

7

-

7

8.1%

Certification of Untrue Matter – Art. 258

1

-

1

1.2%

False Reporting of Crime – Art. 288

2

-

2

2.3%

Violent Conduct – Art. 299

-

2

2

2.3%

Causing of Traffic Accident – Art. 325

2

2

4

4.6%

Endangering of Public Traffic by Dangerous Act or Means – Art. 327

1

-

1

1.2%

Failure to Render Aid to Person Injured in Traffic Accident – Art. 329

1

-

1

1.2%

Total

59

27

86

100%

The State prosecutors, as well as judges, regularly opted for community service with criminal acts against property - 74.7 % (Table 2). A noticeable difference is primarily found in their weight; state prosecutors gave this measure to perpetrators on average to minor property crimes (Paragraph 1

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and 2, Article 211 of CC), whereas with the court decisions a more serious form of larceny prevailed (Article 212 of CC). This difference was predictable, despite the fact that seriousness of the committed offence does not represent legally defined criterion for the choice of an adequate measure. Especially with juveniles it is difficult to set guidelines to determine which cases are particularly suitable for deferment of the prosecution and ascertain them on the basis of type or seriousness of the committed act. The juvenile’s personality and their personal need for help and reform, represent a basic guideline for prosecutors and judges when choosing the type of treatment. A rigid list of proper, or absolutely improper, criminal acts, cannot be produced for the judges.

2.4

Service Duration

The Criminal Code determines that a court can give an order to a juvenile for maximum service duration of 120 hours within the period of six months (Paragraph 7, Article 77, CC). The courts most commonly ordered 20 to 25 hours of service (59 per cent of cases). In addition, the CC orders that the work should be organized so as not to interfere with a juvenile’s education or employment. In some cases, the CSW expressly stated that the work was carried out after school or during non-school days (during holidays or weekends), meaning that, with the organization of work, legal provision was being considered. This kind of organization of work is very important as it guarantees that juveniles can fulfil their obligations, which provide them with a certain social role, despite the fact that they were given the sanction. In addition, an uncompromised process of education decreases a juvenile’s stigmatization. In the cases analyzed, the prosecutors ordered community service of duration from 8 to 40 hours, with the predominant order for approximately 20 hours, the same as with court ordered measures. In the analysis of prosecutors’ files, we noticed the peculiarity of one District State Prosecutor’s Office which, when pronouncing their decision, never determined the duration of work. This is wholly unacceptable, yet it is a consequence of regulation of community service in Article 162 of CPC, which, at the time of our research, did not determine the duration of service. It was partly due to the finding from our research about the inadequacy of such

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a situation that the prosecutors eliminated the aforementioned deficiency within the framework of the prosecutor’s instructions. The latter regulated that community service cannot exceed 60 hours within a period of three months. The extent of the measure ordered for the perpetrator, by the prosecutor, however, cannot be the subject of an Executive Act, and it is for this reason that I understand such an instruction as a mere temporary solution; it is necessary to supplement the provision of Article 162 of the CPC. Any state’s interference in an individual’s rights must be in compliance with the principle of legality, clearly determined by law, and not an Executive Act, especially because of the procedures of adoption and changing, as well as because of the binding nature of both Acts (in order to ensure legal certainty as a basic value of the rule of law).

2.5

Juveniles’ Characteristics

Prosecutors’ files on juveniles’ possible prior treatment for criminal offences were particularly scanty, since, as a rule, relative data was not recorded. However, files often contained information that juveniles had perpetrated an offence, but no legal action was taken against them. We therefore assume that in these cases complaints were suspended either because of the principle of expediency, exclusion of an unlawful act due to the use of the institute of low significance, in accordance with Article 14 of CC, or in order to ensure successful mediation or deferment of the prosecution. In case the above-mentioned institutes are used, juveniles are considered to be exculpated, so one cannot claim that they were perpetrators of criminal acts. The question is raised whether, considering presumption of innocence, it is possible to take into account the circumstance in which juvenile has already been treated in alternative ways (different forms of diversions), and that such a conclusion represents an obstacle for repeated use of the aforementioned alternative ways of dealing with juveniles. There was only one case in which, before deciding to use deferment of the prosecution, the prosecutor obtained the opinion of CSW about the juvenile and his personality. The decision on fixing the main hearing for the suspension of the prosecution was thus based solely on the written material provided by the police. The data from the complaint, which would refer to a juvenile’s personality, and from which a prosecutor could form a conclusion about the suitability of ordering community service, how-

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ever, is extremely scarce. Evidently, a prosecutor’s personal contact or telephone contact with a CSW employee cannot be excluded in this case, but the latter has not been recorded in any of the files. In addition, it cannot be excluded that, due to possible prior treatment, the prosecutor personally knew the juvenile. With a certain degree of reservation, I conclude that the seriousness of the offence, the circumstances in which the act was committed, and prior sentence, as the sole information of juvenile’s personality, constituted the basic guideline for the prosecutor. I believe it would be more appropriate if the state prosecutor sought a preliminary opinion on the juvenile’s suitability for community service from the CSW. The CSW professional could discuss this option with the juvenile and forward their opinion to the prosecutor. The CSW professional should obviously forward information to the prosecutor speedily, as an increase in reaction time from the offence decreases the effect of the measure. As opposed to the prosecutors, judges were always in possession of a CSW report on a juvenile and their life circumstances; they were under obligation to seek the above-mentioned report under Paragraph 2, Act 469 of the CPC. The court had previously ordered an educational measure for a criminal act for only two of the 27 juveniles. In both cases the measure was that of the supervision by a social agency. All the rest had committed criminal acts for the first time. The most common characteristic feature mentioned in CSW reports was diligence (they either helped at home or had a holiday job). Secondly, most juveniles found it difficult to be successful at school. As far as educational (behavioural) problems within the family are concerned, we noticed information saying they have good relationship with parents - for approximately half of them. Other juveniles’ parents complained about occasional educational problems or inappropriate company. Based on the presented analysis, we cannot conclude what the typical characteristic features of juveniles, for whom courts ordered community service as a correctional measure, could be.

2.6

Grounds for Choosing Community Service

In their decisions on the deferment of the prosecution, state prosecutors did not quote reasons for their choice. Having analysed the cases, we thus could not evaluate them. On the other hand, in most cases, courts summarized personal characteristic features from CSW reports, which should

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justify the choice of such measures. These characteristics vary from positive to negative. It is, therefore, impossible to conclude that the courts’ aforementioned orders measures apply exclusively to juveniles who have not had prior criminal offences, or those who attend school regularly, or to those who can be influenced within their family. Among a juvenile’s characteristic features that should justify the choice of the ordered instructions, courts also quote a juvenile’s uncritical attitude to their acts. Some of the reasons courts most commonly quote in order to justify their choice of community service are as follows: – “The juvenile requires organized activity in their free time in order to behave in a more responsible manner”, – “The court wants to send a message to the juvenile that free time can be used in other ways, rather than in order to perpetrate criminal acts”, – “The juvenile will obtain a positive experience by means of performing community service, which will deter them from repeating criminal acts”, – To a 20-year-old boy, who only finished primary school and is not looking for employment, the court ordered community service and stated in its explanation that the pronouncement of the instruction “may help him realize that there are certain limitation in relation to other people and that he may realize that he has to become more responsible in relation to others, and himself”. (In this specific case, the juvenile did not fulfil the order. The court, therefore, replaced the imposed educational measure by sending him to a correctional institution.) – “The measures will have a positive influence on the juvenile because it will consolidate their recognition that they are responsible for their proper, as well as improper, acts”, – “The court wants the juvenile to establish an adequate attitude to other people and that the juvenile builds trust with other people, and vice versa.” On one hand, the courts’ explanations relate to the need for structured free time, which should be directly facilitated by means of work. On the other hand, courts put stress on the need for a juvenile’s responsibility for their action. In this way, courts regularly exceed the framework of restorative justice within which community service can be placed, as they do not forward (symbolic) damage compensation.

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2.7

Problems in Community Service Practise

Table 3:

Instructions’ success rate in practise. Service as an educational measure (judge’s order)

Service as a form of deferment of the prosecution (prosecutor’s order)

Total

Juvenile has finished their service

11 (40.7%)

56 (95%)

67 (78%)

Juvenile has not finished their service

11 (40.7%)

3 (5%)

14 (16.3%)

No CSW report available at the time of the analysis

5 (18.6%)

-

5 (5.7%)

27

59

86 (100%)

Juveniles total

As the deadline for completing service had not finished at the time of case analysis, there were no CSW reports in the court’s files for 5 of the 27 juveniles. From the remaining 22 juveniles the situation was as follows (Table 3): 11 have fully completed the service as ordered, 1 refused to fulfil it, whereas in the case of 10 juveniles the CSW declined to organize the service. Three juveniles had not completed community service ordered by the prosecutor within the deadline. The Prosecutor drops the case upon receiving a CSW notice of completed service for 56 juveniles. In the research of the Institute of Criminology, we were considering success of this measure’s implementation. In order to establish efficiency in terms of achieving long-term goals (juvenile’s education and reform which is especially shown in that they do not repeat a criminal offence) another, more extensive, study would be required. It would have to include the measurement of more factors, which influence an individuals’ choice to commit a criminal offence. 2.7.1

Successful Instruction Completion – Defining Appropriate Work

78 percent of juveniles with a CSW report completed their service. This is a high rate, especially if we consider that only 5 percent of juveniles did not complete their service because they did not want to. The others did not complete it because the CSW did not organize it. The CSW reports often mention praise coming from organizations where juveniles worked. Juveniles are often described as conscientious, caring, as having initiative, and as having a proper attitude to the organization’s employees. The CSW did not report any problems that juveniles caused at work.

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Table 4:

Organizations where juveniles completed their work21

Organization

Number of Type of work juveniles

Senior home

18

Meal delivery, housework, work in the laundry, keeping company with the residents, walks, help to the physically impaired, mail delivery, administrative work, cleaning premises, painting

Municipality

9

Public surface cleaning and maintenance

Local community

4

Not specified in CSW report

Red Cross

4

Not specified in CSW report

Association of the Disabled

2

Administrative work (filing)

CSW, education department

1

Light manual work

Home care centre

2

Providing home help for the seniors, cleaning and maintenance of the premises

Municipal utility company

1

Road crossing maintenance (clearing snow)

Primary school

1

Premises maintenance

Sonček, the Cerebral Palsy Association of Slovenia

2

Not specified in CSW report

Animal shelter

1

Not specified in CSW report

Total

46

Homes for the elderly are particularly well represented among the organizations. There are probably several reasons (Table 4). According to interviews with social workers, good cooperation between the CSWs and these institutions is the prevailing reason for this situation. Social workers clearly proposed service implementation to those organizations with which they had already had well-established cooperation. Homes for the elderly may be suitable institutions for community service implementation (with systemic solution of organizational issues). However, they cannot be predominant organizations in future. All organizations performing non-profit or charitable activities are also appropriate. I find organizations, which provide care for the disabled, the poor, the sick, or people with other impairments particularly suitable. Work in these organizations provides juveniles with the opportunity to encounter people who need their help. Accordingly, this work can give them a sense of be21

The table contains work of 11 juveniles who performed their work as court ordered educational measure, and 34 juveniles whose work was in the framework of the deferment of the prosecution (CSW reports did not specify work type or location for 22 remaining juveniles, who were included in our analysis)

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ing needed and being successful. In addition, it is important for the young to have the opportunity to work with people who are not familiar with them. It is important that they, in this way, face their own convictions and stereotypes, and that they reflect upon their experience with their mentors (Muršič, 2005: 114). As members of the research team, we visited the Cerebral Palsy Association in Ljubljana and had discussions with expert staff. The employees were happy with all the youths who had performed community service (our research only included two). All of them were actively involved in the work with inmates. Having finished their community service for the duration of educational measures, some juveniles kept returning as volunteers. The staff sees this as a sign of extraordinary success. The question which work should be performed by juveniles is not particularly widely discussed in literature. Authors agree, however, that the type of work must be chosen so as to provide real benefit for the community as well as the juvenile, who, in addition, should be provided with the proper messages about values. The nature and the quality of working experience, or rather the whole of the working context must, therefore, be given a great deal of attention. The right choice of work and organization means that the juvenile probably experience their work as valuable and beneficial, and that they become actively involved. Choosing work requires considering the purpose of the measure, the juvenile’s characteristics, and the needs of the organization. It is also advisable to have a reasonable link between the work and the nature of offence (Carter, 1987: 7). The individual should perceive their work as something constructive. Moreover they should see it as the opportunity to compensate the community. It is, therefore, very important that the working environment provides contact between juveniles and those who benefit from their work. It is for this reason that McIvor (1991: 27) suggests that the work performed by the juveniles gets appreciation. It should be of value for them, for the organisations where they work, as well as for the entire community. The author refers to his own research, which showed that individuals who valued their work were less likely to fail to appear at work. They were also less likely to claim that there is a chance that they will again break the law. Work should not be established in the punishment in the sense of humiliation. On the contrary, it has to enforce the sense of experiencing an individual’s worth, their importance, helpfulness, aptitude, accomplishment,

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contentment, and social cohesion (Muršič, 2005: 115). It should promote the individual’s strong points, quality, inclinations, while simultaneously offering the maximum opportunity for full-dimensional learning, training (also vocational), formation of habits, and creativity. As far as the latter is concerned it is important to avoid routine or mundane work. From the aforementioned types of work in Table 5, filing is less appropriate type of work. To a large extent, this is uncreative type of work where the juvenile was not actively involved in social relationships within the working team. Teamwork as well as individual work should be provided for (McIvor, 1991: 27). Dekleva (1996: 94) mainly advocates teamwork in real working conditions. Work should be of suitable difficulty so as to provide an appropriate level of challenge and incentive for the juvenile’s motivation, personal ability, and own activity in the process of learning and personal growth (Muršič, 2005: 115). It is necessary to make sure that a juvenile’s work really benefits society. This pre-supposes especial inclusion of a variety of nonprofit organizations, which provide various help to people in need.

2.7.2 Failure to Complete the Sentence In one half of the cases where the court pronounced community service sentences to juveniles, the instruction was not carried out. Referring to systemic organizational problems, CSWs failed to organize it. Here they mainly put forward unsolved financial questions regarding accident insurance, food, and travel expenses. It is interesting to note that despite the aforementioned problems, some CSWs organized the work. They either found the financial means within CSW itself, or found an organization willing to cover the aforementioned expenses and carry out the measure. Furthermore, I would like to stress that all the CSW expert employees who declined to manage the work had been acquainted with the possibility that the Institute of Criminology covers all the expenses of the management measures, yet they did not want to take this opportunity. In previously mentioned cases, the court insisted and frequently appealed to the CSW to organize community service. All attempts proved to be unsuccessful. One case was of a 16-year juvenile who, together with an adult accomplice, attempted to commit the criminal offence of blackmail (Article 218 of CC). He was given over to social welfare supervision by the

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court, which, in addition, ordered the instruction that he must complete a 24-hour community service in a period of 3 months. In this particular case, the communication between the court and the competent CSW lasted for one year and 4 months after the final legal decision pronouncing the educational measure. In this time, in addition to one telephone enquiry, the court wrote to the CSW asking them to supply a report on 5 occasions. In the telephone communication and three written replies, the answer was consistent. They argued that the work cannot be organized due to systemic shortcomings in this area. At this point, let me stress again that three other CSWs from the larger Ljubljana area did organize community service. One of these CSWs worked with the Institute of Criminology, which reimbursed the juvenile’s accident insurance. Reference to systemic shortcomings of this area and waiting for agreements between ministries can be judged as lack of interest and deliberate inattention of the offered (even if just temporary) solutions.

3

CONCLUSION: ADEQUATE MANAGEMENT OF COMMUNITY SERVICE IN SLOVENIA – CENTRES FOR SOCIAL WORK OR SPECIAL SERVICES?

On the basis of the analysis of the Slovenian law, we have formed some specific motions for legislation change and presented it in the Institute of Criminology research. Two of the most important ones are the motion for the determination of work extension in the framework of suspended prosecution (Article 162, CPC); and the motion to allow ordering community service as an independent educational measure for adults who committed criminal offences as older minors. The current situation does not allow for this, which often results in the courts’ pronouncement of the supervision by social agency simply in order to be able to, within the framework of this measure, order community service as a special instruction. At the same time, they state that supervision terminates upon work completion. On the basis of 86 given measures, we produced measure implementation method, which should fill the gap in this area. Furthermore, it should encourage prosecutors, judges, and CSW professionals to address implementation problems with this measure in a more decisive manner. The question whether CSWs really represent the most suitable community

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service implementation managing operator has always been in the background of the analysed cases. The variety of community service aims (forms of diversion, way of completing jail sentence, or as an independent sanction) determines the answer to the question - which services are best suited to manage it? Comparative law analyses have shown that community service management depends on whether there are special services for suspended prosecution implementation (probation offices) in a particular country. As far as this is concerned, law systems can be roughly categorized into two models. In the first one, the work is managed and its implementation supervised by special services. These are either established specifically for this task (community service coordinators) or organized within social welfare services. The second model is represented by the countries where community service management falls within the competence of “probation offices”. The employees of these special services are often helped by social workers from social welfare services. The difference between these two models, however, does not only relate to the difference in organizational approach. The choice of appointing competent services, in addition, depends on the community service goal. If the main goal consists of re-educating the offender, then it is more suitable that it is social welfare service, which manages the work. Its basic aim is to provide help for the individual. This is the reason why they work with the offender. It must be remembered here, however, that social workers often find themselves in a conflicting role when penal sanctions or other forms of repressive measures are implemented. They simultaneously provide help as well as perform social supervision. Nevertheless, the punitive role of community service is pronounced when special services outside existing social welfare are established as well as when the work is managed by the services for help and supervision of the convicted with suspended punishment. Both models therefore have their advantages as well as disadvantages. In the Slovenian penal legislation (CPC, CC) Centres for Social Work are responsible for community service implementation. This decision has obviously been formed without thorough deliberation on the question of whether such a task is consistent with the aims of the social welfare services in our country, or the question whether social workers will be able to cope with the new task in addition to their assignments. It turned out that social workers were not prepared to accept the new task with either the minors, or with adult perpetrators of criminal acts. On most occasions,

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they referred to work overload with other tasks. Moreover, objections regarding content and primarily relating to adult offenders could be heard. The Ministry of Labour, Family, and Social Affairs, started to deal with community service management as late as the middle of 2005, when they posted several experts into the CSW, where they should see to the implementation of alternative sanctions. It was particularly emphasised that social workers who had been working with juvenile criminal offenders would manage juvenile community service as well. I find this distinction acceptable, particularly because it is in this way reformative aims of this measure will remain emphasized. The same experts who manage other educational measures with the distinctly defined aim of help and reform will also be managing this measure. Additionally, juveniles require special preparation as well as supervising implementation of measures. The guidelines for the work with adults performing community service differ greatly in particular points. The result of the research described was very important: judges, prosecutors, and social workers started to accept community service as a good measure for juvenile perpetrators of criminal acts. However, despite the pressure of researchers, judges, prosecutors, and social workers, competent ministries still have not provided the systemic conditions for implementation. Despite the fact that it has been 15 years since community service was included in Slovene criminal legislation.

4

REFERENCES

Carić, A. (1971). Problemi maloljetničkog sudstva. Split: Savez društava defektologa Jugoslavije. Carter, R. M., Wilkins, L.T. (Eds.) (1987). Community Service: A Review of the Basic Issues. Federal Probation. Chicago: University of Chicago Press. Dekleva B. (Ed.) (1996). Nove vrste vzgojnih ukrepov za mladoletnike. Univerza v Ljubljani: Inštitut za kriminologijo pri Pravni fakulteti v Ljubljani, Ljubljana. Graham J., Moore C. (2004). Trend Report on Juvenile Justice in England and Wales. Paper presented at the Conference of the European Society of Criminology. Amsterdam, August 25-28, 2004. Retrieved September 17, 2004, from http://www.esc-eurocrim.org. Harris R., Wing Lo T. (2002). Community Service: Its Use in Criminal Justice. International Journal of Offender Therapy and Comparative Criminology, 46 (4), 427-444. Junger Tas J. (2002): The Juvenile Justice System: Past and Present Trends in Western Society. In: Weijers, I., Duff, A. (Eds.) Punishing Juveniles, Principles and Critique (pp. 23-44). Devon: Hart Publishing.

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Killias M., Aebi M., Ribeaud D. (2000). Does Community Service Rehabilitate Better than Short-term Imprisonment?: Results of a Controlled Experiment. The Howard Journal of Criminal Justice, 39 (1), 40-57. Kornhauser P. (2007). Zagotovimo našim otrokom mladost brez telesnega kaznovanja. Ljubljana. Ljubljana: Zveza prijateljev mladine Slovenije Kramarič J. (1998). Za večjo učinkovitost vzgojnih ukrepov zoper mladoletne storilce prekrškov. Pravna praksa, 9, 38-40. Matić O. (1973). Istorijski prikaz krivičnopravnog položaja maloletnih učinilaca krivičnih dela. Zbornik instituta za kriminološka i sociološka istraživanja, Beograd: Institut za kriminološka i sociološka istraživanja. McIvor G. (1991). Community Service Work Placement. The Howard Journal of Criminal Justice, 30 (1), 19-29. Mežnar A. (2000). Poravnavanje med storilcem in žrtvijo kaznivega dejanja – nov institut v naši procesni kazenski zakonodaji. Pravnik, 6-8, 475-501. Muiluvuori M.L. (2001). Recidivism Among People Sentenced to Community Service in Finland. Criminology and Crime Prevention, 2 (1), 72-82. Muncie, J. (2005). The Globalization of Crime Control – the Case of Youth and Juvenile Justice: Neo-liberalism, Policy Convergence and International Convention. Theoretical Criminology, 9 (1), 35–64. Muršič M., Filipčič K. (2005). Delo v korist lokalne skupnosti. Sklepne ugotovitve in predlogi. Šelih, A. (Ed.). Uvajanje socialnih treningov in dela v korist lokalne skupnosti kot vrste vzgojnih ukrepov, (Raziskava, št. 144) (pp. 112-135). Ljubljana: Inštitut za kriminologijo pri Pravni fakulteti. Pavlina Z. (1992). Oris razvoja prava o prekrških in organov za postopek o prekrških v Republiki Sloveniji po 1945. letu. Pravnik, 11-12, 511-523. Petrovec, D. (2000). Delo v korist humanitarnih organizacij ali lokalne skupnosti. Bavcon, L. (Ed.): Uveljavljanje novih institutov kazenskega materialnega in procesnega prava (pp. 84-94). Ljubljana, Inštitut za kriminologijo pri Pravni fakulteti v Ljubljani. Rex S., Gelsthorpe L. (2002). The Role of Community Service in Reducing Offending: Evaluating Pathfinder Projects in the UK. The Howard Journal of Criminal Justice, 41 (4), 311-325. Schaffner, L. (2002). An Age of Reason: Paradoxes in the US legal Construction of Adulthood. The International Journal of Children’s Rights, 10 (3), 201–232. Stando Kawecka, B. (2004). Trend Report on Juvenile Justice in Poland. Paper presented at the Conference of the European Society of Criminology, Amsterdam, August 25– 28, 2004. Retrieved September 17, 2004, from http://www.esc-eurocrim.org. Šelih, A. (1998). Alternatives to Judicial Responses. Young Offenders and their Families – The Human Rights Issue. Forum Verlag Godesberg, 187-192. Van Dijk, K. (2004). Trend Report on Juvenile Justice in Belgium. Paper presented at the Conference of the European Society of Criminology, Amsterdam, August 25–28, 2004. Retrieved September 17, 2004, from http://www.esc-eurocrim.org. Walgrave L., Geudens H. (1996). The Restorative Proportionality of Community Service for Juveniles. European Journal of Crime, Criminal Law and Criminal Justice, 4 (4), 361-380.

Situational Prevention of Child Sexual Abuse Danijela Frangež, Anton Dvoršek

Situational Prevention of Child Sexual Abuse

1

233

INTRODUCTION1

“Fast changes, unpredictable events, crises, and security threats, have all become part of our everyday secure life.” An increasing number of endangering, inter-connected, and transnational actions, is typical in this environment (Prezelj, 2007: 7). Despite increasingly sophisticated forms of threats, child abuse, as a socially conditioned concept formed by people, history, and culture, has always been present in the world (Burtenshaw; in Bašič, 2002: 2). It is also a social problem and not just a problem of an individual or a particular family, and is real and present in our technologically advanced civilization. With the ratification of The Convention on the Rights of the Child (1989) Slovenia also joined the group of countries which acknowledge the need for special security and protection for children. Provisions of the Convention re-define children’s rights, including the most sensitive, such as protection of the child’s personality and protection of the child against violence. Awareness on the dimensions of the problem of child abuse has only been present in recent years. Among the first to rise this issue in the academic literature was Kempe (an American paediatrician) in 1958. In Slovenia the problem was first mentioned in 1979 at the annual paediatric event called Derč days (Derčevi dnevi), when Kornhauser and colleagues spoke about this problem (Kornhauser & Gostiša Kornhauser, 2006: 84). The reasons why the paediatricians were the first to speak about this problem can be found in the obligatory systematic medical check-ups of children. As for the reasons for such late recognition of violence towards children, Pfohl (in Kanduč, Korošec & Bošnjak, 1998: 107) suggests the following: (1) doctors being unaware of the possibility for diagnosis of this problem, (2) their unwillingness to believe that parents could abuse their children, (3) doctorpatient confidentiality as an obstacle to making a diagnosis, and (4) hesitation in reporting abuse, as cooperation with crime investigators takes time, energy, and concerns about the consequences of reporting abuse. Many children are neglected, and lack the basic needs for medical attention and development. On the threshold of their life, they have to face different types of abuse which greatly affect their life’s path in the future. They can be the victims of physical violence, neglect, emotional abuse, 1

The authors thank Prof. Richard Wortley for his comments on the final draft of this paper.

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sexual abuse, bullying, institutional violence, internet abuse, pornography, forced labour, financial abuse, ritual abuse, self-harm, and abuse by the media. Children often witness assaults as well (Selič, 2006). Often, two or more forms of abuse can happen simultaneously. All types of child abuse are serious, but we will focus on child sexual abuse, which is seen as a taboo as it is often hidden (in Slovenia and around the world). In Slovenia we started talking about this problem very late, only in 1988, although the Police spoke about it in the framework of their first organised training on juvenile delinquency held for policemen and crime investigators in 1981 (Bašič, 1997: 130). The dark figure of child sexual abuse is very high. Offences are rarely reported, and problems also arise in collecting evidence. In modern times an increasing number of authors (also) pay attention to treatment and prevention of sexual violence against children. One of the most recent theories suggests situational prevention as one of the most efficient ways of reducing this type of violence (Wortley & Smallbone, 2006). In this article we will first present the latest findings on the forms and characteristics of child sexual abuse; and then present the options presented by situational prevention in reducing this abuse.

2

CHILD SEXUAL ABUSE

Child sexual abuse is a form of violence that occurs when an adult or adolescent molests or abuses a child to get sexually aroused and/or to satisfy their sexual lust (Frei, 1996: 12). Child sexual abuse is “a situation in which a child or adolescent participates in sexual activities that break social and legal taboos which they themselves do not understand or are not developed enough to understand, and therefore cannot give permission” (Bautista Vallejo, 2005: 77). It is defined as participation of neglected/dependent children in sexual activities with an adult or adolescent who is older or bigger than them. The child is abused as a sexual object to fulfil sexual needs or wishes of this person, and thereby has no options to choose or consent to this sexual activity due to unequal power in this relationship. We talk about child sexual abuse when an adult or someone who is bigger than the child uses their power and influence over the child

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and abuses their trust and respect and deceives them into a sexual activity (Association against sexual abuse, 2002). This abuse may involve making foul remarks, taking off clothes, exposing genitalia, watching a child, taking photographs of a child, showing pornography, kissing in a way typical for adults, inappropriate touching, masturbation, fellatio, cunnilingus, anal and/or vaginal penetration with a finger, vaginal and/or anal penetration with the penis, “dry sex”, bestiality, or exhibitionism (Bašič, 1997: 145-150). All children are vulnerable to abuse, irrespective of race, religion, social, or financial setting, and their living arrangements. Children can be abused at home, in a care facility, by a social facility, by their foster parents, adoptive parents, in school, while attending afterschool activities, etc. A child can be abused by a family member, their caretaker, someone they know or by a complete stranger. Boys and girls of all ages (even babies) can be abused (Bain & Sanders, 1996: 15). Statistics show that the percentage of abused girls increases with age. The analysis of police reports on sexual assault against a minor under 15 in Slovenia shows that 83 % of the victims are girls, 14 % of the victims were under 7 years old, 68 % were between 7 and 14 years old, and 18 % between 14 and 15 years old (Mušič, 2006: 6-7). Bain and Sanders (1996: 15) have come to similar conclusions and write that less than two thirds of sexual abuse happens to children between the ages of 3 and 5, and that most commonly, victims are between 8 and 9 years old. At first, people believed that the majority of abuses occur outside the domestic settings. Later, research showed that the majority of abuses happen within the family (Gil; Pelton; in Kanduč et al., 1998: 107). Children are often victims of sexual assaults in an environment that should have been the safest for them. They are often abused by the people that should protect them. “More than 80 % of offenders abused the child’s trust when committing their offence” (Mušič, 2006: 6-7). Types of child sexual abuse can be classified in several ways. One division is between cases committed by unknown or known offenders. Another division is between cases involving, or not involving, contact. Discovering and investigating cases of sexual abuse is a “thoughtful, emotional, evaluating, ethical, organizational, and material process” (Mikuš-Kos, 1988: 17). It is also problematic as we justifiably assume that the dark figure of crime is very large in this type of criminal offences (Bašič, 1993: 39). The

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reasons for people’s unwillingness to report/reveal this type of abuse can be found in the fact that sexual abuse is still a big taboo in society.2 Children rarely, or never, reveal sexual abuse on their own. Sometimes they “may be less likely to define the incident in terms of a criminal offence” or (especially younger children) “are unlikely to have direct access to police or other authorities” (Smallbone, Marshall & Wortley, 2008: 15). Therefore they usually must reveal their secret to an adult who in turn may or may not inform the authorities. Finkelhor (in Smallbone et al., 2008: 15) found that about 50 % of the parents who were aware that their child was sexually abused did not report the abuse, because in their opinion the abuse was not serious enough. 90 % of parents also did not want to involve police or other authorities in dealing with the incident. Another reason for non-reporting could also lie in secondary victimization. Sauzier (in Smallbone et al., 2008: 15) found that “almost half of the families of sexually abused children felt that their experience with the justice system had been harmful, pointing to police insensitivity and the stress of the court process as major concerns”. Nevertheless older children can reveal the secret also to teachers or other adults they encounter, they are reluctant to report as well. The reasons for unwillingness to report could be found in children’s fear of possible stigmatisation by peers; power differential with the offender; not wanting to get the offender into trouble or/and shame; having, or developing, close emotional ties with offender; disbelief from other adults; or retribution from offender (Smallbone et al., 2008: 15; Smallbone et al., 2008: 154). Children could also think that someone knows what is happening but does not want to do anything to protect them. Despite verbal silence children seek other ways to show what is happening to them. The mission of adults is to pay attention to such non-verbal (but sometimes also verbal) messages and to find the right meaning and value in them. We have to point out that the physical signs of sexual abuse, on the basis of which adults could clearly recognise that a child has been abused, are 2

Tomori (1997: 218-219) states that in the last three decades these taboos have been disappearing but violence against children is still one of the taboos that causes discomfort and disgust in people. Many people still look away due to lack of knowledge on the subject, fear, and lack of interest. Some people even deny the existence of the problem and are not aware of what consequences a child exposed to abuse must face.

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rare. However, while we usually cannot detect them on a child as visible consequences on the body, this does not mean that children do not try to point out or show their distress in other ways (Association against sexual abuse, 2002). We have to pay attention to changes in the behaviour and new behavioural patterns; we must not exclude the possibility that a child could have been the victim of sexual abuse. Official police statistics show that in Slovenia there is an average of 185 criminal offences per year in the form of sexual assaults against a minor under 15 (Chart 1), which means an average of 10 criminal offences per 100 000 inhabitants.

Chart 1: Number of reported sexual assaults against a minor under 15 between 2000 and 2008 (Source: Police, 2001; Police, 2002; Police, 2003; Police, 2004; Police, 2005; Police, 2006; Police, 2007; Police, 2008; Police, 2009).

In all these years the percentage of clearance rate in Slovenia is above 90 % (Police, 2001; Police, 2002; Police, 2003; Police, 2004; Police, 2005; Police, 2006; Police, 2007; Police, 2008; Police, 2009). The reasons for the high clear-up rate lie in the fact that most criminal offences are committed by offenders known to the child. In these cases police usually know the name of the potential offender upon receiving the report. Sexual abuse

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of an unknown child demands more effort and planning. Offenders are, therefore, more likely to abuse a child they know. Smallbone, Marshall and Wortley (2008: 159-160) find that most offenders first abuse a child when they are over 30 years old. At that age most of them are in contact with children due to their parental duties or due to their line of work. The majority of offenders are not committed sex-offending specialists but act when given an opportunity; they often have more issues with self-control than with sexual deviations. Recidivism rates for sexual assault offenders is lower than usually assumed, with Hanson and Bussiere (1998) finding a reconviction rate of 13 % after 5 years. The publication of the abuse, consequences in society, and limited (or at least partly limited) access to a child, are – as it seems – in the case of a offender known to the child, strong enough reasons to discourage them from repeating the offence. In the case of an offender unknown to the child the percentage of repeated offences is probably higher.3 But this does not mean that these are only cases of paedophilia. Many offenders are not preferential paedophiles, but rather people who like to abuse situations and their superiority over the child for their sexual pleasures. Children are more easily controlled than adults and many adult males also see a child as a sexual object. The majority are able to control this type of urge their whole life, but some men succumb in certain situations (Smallbone et al., 2008: 160). One of the main reasons for many offenders to sexually abuse a child lies in the fact that an opportunity presents itself (Smallbone et al., 2008: 160). Children are easy targets as they are trusting, naive, submissive, and are taught to obey adults. They are also curious, especially regarding their bodies which change considerably while growing up. These characteristics are what offenders use to their advantage. They present abuse through different strategies as something ordinary, normal, acceptable, nice, as part of a game, showing affection, and so on. Certain sexual activities are shown to a child without using force or threats (Filipčič, 2002: 153), but the emotional manipulation is always present (Donnellan, 1998: 1). Offenders often use the subordinate position of the child and the emotional 3

The exact percentage of recidivism among offenders unknown to a victim is not accessible yet. For now we have only informal pieces of information that show that these offenders are more likely to re-offend. More precise percentage will be determined during a research on child sexual abuse in Slovenia that will be conducted at the Faculty of Criminal Justice and Security, University of Maribor.

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attachment to the abuser (Filipčič, 2002: 153). They make the child feel obliged to cooperate, for example, in return for a favour (Waiss & Galle, 2001: 20-36). Offenders rationalise and justify their actions by using different excuses. They minimize their actions; blame the child for “seducing” them; they see their abuse as an act of love; they see themselves only as “assistants”; they claim that it is not their fault, as they have been abused when they were young; they cannot control themselves; they blame the alcohol, and say it only happened once (Bašič, 2002). On the basis of situational variables Smallbone et al. (2008: 161) present a three-category classification of offenders who sexually abuse children, into three categories - committed offenders, who actively adjust the environment in order to find and get victims; opportunists, who seize every opportunity offered; and situational offenders, who are not primarily attracted by children, but specific behavioural indications and/or environmental stressors (often connected to providing for children) stimulate them to abuse children. The aforementioned types of offenders exploit certain situations in their environment to commit sexual abuse. Committed offenders are especially careful as they deliberately choose the most vulnerable targets who will offer the least resistance and pose a minimal risk of detection (Elliott, Browne & Kilcoyne; in Smallbone et al., 2008: 161). Practical examples show that committed offenders plan their abuse and use the situations offered to come into contact with a child. Offenders can harbour fantasies of sexual activities with children years before the actual abuse takes place. The preparation for the abuse is long (Association against child sexual abuse, 2002). First, they choose the right child. Offenders choose the child that – in their opinion - lacks confidence and is easily controlled. They often choose a child who is lonely or even neglected by the family, classmates, peers, and has a poor self-image. They show the child how they can replace what is missing in their lives by using many different approaches. This is how they tie the child to themselves and create a bond of cooperation/companionship. At first, offenders may seek random opportunities to gain the child’s confidence. Then they have to establish control over the child’s environment and a system for maintaining this control. They force the child to swear to secrecy and trust (Bašič, 1997). Offenders could use different persuading strategies (intimidation; portraying abuse as part of a game, searching for an invisible object on the floor; showing love, shifting blame onto the mother or the child, etc.) (Dvoršek, 2003: 119)

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to force the child into keeping their secret. This often happens because the child feels as this was all a dream or unreal because of the suggestive methods used by the offender (Waiss & Galle, 2001: 20-36). Sexual abuse is a process that can continue for years if an offender is someone the child knows. Most offenders who sexually abuse children lead a socially acceptable life. They are often married or in a partnership and have children. It can happen in every social setting and group, also in seemingly respectable or perfect families (Tomori, 2006) despite the common belief that this only happens to troubled and socially endangered families (Wiehe, 1998: 33). Offenders can be male or female, and of all ages. However, our investigative practice shows that overwhelmingly (in 98 %) they are male (Mušič, 2006: 7). The presented findings point out different situations exploited by the offenders to lure the child into an abusive situation. We will show the newest approach for reduction; by this we mean opportunities offered by situational prevention of child sexual abuse. We will rely on the findings of Wortley and Smallbone (2006), and Smallbone et al. (2008). Other authors, from a wide list of literature on child sexual abuse, do not approach the problem from this point of view.

3

SITUATIONAL PREVENTION OF THE CHILD SEXUAL ABUSE

Situational prevention4 of child sexual abuse deals with the question of how child sexual abuse can be prevented by directly influencing the setting in which the abuse takes place. The goal is not to change the offenders, but to eliminate or minimise the possibilities for their mis-behaviour. Situational prevention, therefore, focuses on establishing a safe setting rather than on creating a “safe” individual. This type of prevention “seeks to reduce crime, not to cure criminality” (Smallbone et al., 2008: 157). The object of their attention is the criminal act itself and not the offender. 4

“Situational crime prevention is the most typical form of prevention activity around the world.” It is based on theoretical grounds, on the theory of opportunity and ordinary activities, reasonable choice, and life-style. “The situational approach includes a definition of the problem, planning, and implementing measures, and evaluating the effects of preventive actions” (Meško, 2002: 257).

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It can be efficient if it is performed locally in a specific setting in which the child lives or spends its time. We must get to know the setting better in order to form the best possible preventive strategy. The situational prevention approach offers a methodology for solving problems which can help researchers and those working in this field to develop efficient preventive measures. Implementing situational prevention starts with a detailed analysis of the problem and by answering the following questions: what is a criminal offence, where was it committed, when was it committed, who is involved, why are they doing this, and how are they doing this, etc. (Smallbone et al., 2008: 155-162). Due to the specifics of implementing child sexual abuse in different settings the authors (Wortley and Smallbone, 2006; Smallbone et al., 2008) divide the child’s living environment into three settings: public, institutional, and domestic. We assume there is an interaction between these three settings and the three categories of offenders (committed, opportunistic, and situational) as shown in Table 1. The table does not give specific solutions for preventing child sexual abuse, but rather presents a model that must be adapted to individual settings. Table 5:

Interaction between the settings and offenders (Smallbone et al., 2008: 162).

Offender Setting Public

Situational

Opportunistic

Committed

Stimulated to offend in Exploits sexual opportuthe course of short-term nities when encountercontact with a child en- ing children in generallycountered in generallyaccessible locations. accessible locations.

Frequents generally-accessible locations where children are likely to be in order to access those children.

Institutional

Stimulated to offend in course of routine quasiparental duties while working or volunteering in an organisation or agency that caters to children.

Joins organisations or seeks employment in agencies that cater to children in order to access those children.

Domestic

Stimulated to offend in the course of routine child caring duties.

Exploits sexual opportunities while working or volunteering in an organisation or agency that caters to children.

Exploits sexual opportu- Establishes relationships nities when left alone in with single mothers or the home with children. befriends neighbours with children in order to access their children.

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Public Setting

The public setting includes all public places in the community where children gather or where they are likely to be found alone. The most common places where offenders seek access to children are public toilets, secluded places, shopping centres, public swimming pools, parks, and playgrounds (Smallbone & Wortley; in Smallbone et al., 2008: 163). Elliot et al. (in Smallbone et al., 2008: 163) also adds schools and video arcades to the above list. Public settings stereotypically involve a threat against unknown offenders. Among the offenders in the three categories it is the committed offenders that are likely to seek contact with a child in a public place. Situational and opportunistic offenders can also be found in public places as they may take their victim to secluded, places to carry out their abuse (Wortley & Smallbone, 2006). Despite all this, in comparison to other locations, abuse rarely happens in a public setting. The measures of situational prevention can be easily implemented into a public setting as it is usually public property, and therefore it is easy to exercise control over the environment. A problem arises in establishing where to implement these measures. There are many places “suitable” for committing sexual abuse. Guessing exactly where abuse will happen is impossible. We have to be especially careful in operating discreetly while implementing our measures as we can cause unnecessary fear and panic among people. Despite everything, there are a few situational crime preventive strategies which are suitable for public places (Smallbone et al., 2008: 163). The most useful are increasing the effort and risk factor required. Self-protective behaviour of a potential victim and control over the tools used by offenders, are important in increasing the effort that an offender has to put into committing sexual violence against a child. In the case of self protective behaviour children who are self-confident, who are warn to the grooming strategies of offenders and who have been taught of different protective responses are less likely to be victimized (Smallbone et.al, 2008: 164). In the case of control over tools, control is based on limiting access to digital technology and the internet that facilitates child sexual abuse. The internet enables direct access to potential victims; simple and cheap distribution of child pornography; and the opportunity for

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offenders to talk, and exchange opinions with other child sexual abuse offenders (Smallbone et al., 2008: 163). The other strategy, increasing risks, is based on Cohen and Felson’s assumption (in Cromwell, Olson & Avary, 1991: 44) that a criminal offence involves an interaction among three variables: (1) the presence of a motivated offender, (2) availability of/ access to the suitable target, and (3) the absence of competent guardians. When all three variables are fulfilled it is very likely that a criminal offence will be committed. This is why Cornish and Clarke (in Cromwell et al., 1991: 44) propose measures for increasing the risk of finding the offender. In the case of child sexual abuse, these measures include: extending guardianship (here the care is put solely in the hands of the parents who often refuse to participate), strengthening formal surveillance (police patrols, control of private security, CCTV), utilising place managers (for example: the caretaker at the public swimming pool, staff in shopping centres, security in parking lots, etc.), reducing anonymity (offenders can pose as staff - therefore we need to have uniforms and name tags or badges), and assisting natural surveillance can, all be efficient. The latter is an element of Newman’s (1972) defensible space. Newman argued that crime can be reduced by making small adjustments in the environment (improving the public street lighting system, removing blind spots, etc.), eliminating secluded places which help establish a transparent environment where local residents or passers-by can perform constant control over the area.

3.2

Institutional Setting

Institutional setting includes facilities, institutes, organisations, and clubs that take care of some of the children’s specific needs. This also includes housing facilities such as orphanages, correction facilities, boarding schools, hospitals, and centres that children can visit on a daily basis, for example: schools, church, sporting clubs, youth groups, and so on. In these settings offenders are usually employees or volunteer workers. Committed offenders join the organisation because that is how they can have unsupervised access to children, and opportunistic and situational offenders respond to opportunities and temptations that arise. Many assume a semi-parental role for the children, and this can facilitate sexual behaviour (Smallbone et al., 2008: 167).

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Here - as in the public setting - we also encounter many areas where children should be protected. Managers of individual institutions are of vital importance as they have the authority to order or enforce certain behavioural standards for employees. The main problem in implementing situational prevention in these settings is the reluctance to speak up within an individual organisation and the resistance to deal with this problem (Colton, Vanstone & Walby; Dunne; Finkelhor; in Smallbone et al., 2008: 167). In some cases the reasons for non-cooperation of an institution can be found in the fact that the offenders of child sexual abuse are part of the management. There are three very important strategies for preventing child sexual abuse within an institutional setting: increasing effort, increasing risks, and the combined removing excuses/reducing permissibility (Smallbone et al., 2008: 167). The effort an offender has to put into implementing the criminal offence increases with the controlling access to facilities and employee verifications. Thomas (2005: 141) states that these verifications should include checks on police files, information from police intelligence work, and information from other state records. However, these verifications may not provide reliable information as the majority of child sexual abuse offenders are not recidivists. Additional measures to increase effort in institutions were developed in Australia by the New South Wales Commission for Children and Young People (in Smallbone et al., 2008: 168). Risk evaluation of individual institutions is based on identifying opportunities and temptations for child sexual abuse due to inappropriate environmental features and work practices. The risk assessment is divided into two parts. The first one evaluates the characteristics of an institution; the second one evaluates the characteristics of specific roles of employees. Each individual organisation is evaluated on the basis of different factors, such as description of the work place and in/appropriate behaviour towards children, internal control over child sexual abuse, prepared procedures for risk minimisation of child sexual abuse, familiarizing employees with procedures for handling such children, etc. Specific employee roles are evaluated on the basis of factors, such as whether employees are working with children alone, the training of supervisors to recognise risk behaviour of employees, whether there are specific rules on interacting with children, whether children are taken outside the usual work place,

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whether children have special needs (for example: disability), and the potential for emotional attachment and physical contact with children (Smallbone et al., 2008: 168-169). The offender’s risk of being discovered can be increased by introducing protocols which specify an employees’ method of working with children (for example: at least two teachers accompany children on a field trip, the sports club has at least two trainers, teachers cannot stay with children alone after class, etc.). This approach reduces the number of situations where the offender can be alone with a potential victim (Anderson & Levine; Trocmé & Schumaker; in Smallbone et al., 2008: 169). Most offenders work alone. They rarely (approximately 8 % of the cases) work in a group (Gallagher; in Smallbone et al., 2008: 169). Also import are assisting natural surveillance, which can, for example, be achieved with rooms with glass walls, and increased formal surveillance, which enables children to report a complaint in case of abuse (Trocmé & Schumaker; in Smallbone et al., 2008: 169). Different mechanisms for accepting a complaint can be established; for example: a hotline, online help, etc. Control over other employees, and external control also play an important part. Detailed rules of in/appropriate work with children, with which each employee has to be familiar, pose an additional initiative for reporting abuse and a risk to the offender (Smallbone et al., 2008: 169-170).

3.3

Domestic Setting

Domestic setting represents the offender’s home or the child’s home, which in many cases are the same place. This is where we usually encounter the combination of care, attachment, and sexual motives. Opportunistic and situational offenders operate in this setting. Committed offenders may engage into a relationship with the child’s mother to enable access to the child, or they will pretend to be “befriends” neighbours. Most offenders in the domestic setting are not repeat offenders5 and that is why they respond well to strategies of changing the setting (Smallbone et al., 2008: 171). The problem is that they are not easily reached by situational prevention as, according to the definition, home is a closed cell 5

They may abuse the same victim over many years, but are less likely to have multiple victims (although they may if there are siblings).

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only accessible upon invitation. Due to the closed-off setting, this type of behaviour stays hidden and offences are not reported. The only option of implementing situational prevention in a setting is by working through the guardian or by involving specific agencies (for example: Social Work Centre) as we cannot enter a home otherwise. However, a problem arises when a person in charge of the child’s care is also the offender or when the person who does not abuse the child does not offer proper protection. In most cases these are mothers who cannot, are not able, or willing, to face the abuse, especially if the offender is their partner (Bašič, 2006b: 164). They try to cover up the abuse, mitigate it, or diminish it (Urbančič, 2006: 212). Here the mother’s distress is connected to their own perception of parenthood and the role of the wife, partner, or lover. The non-abusive mother can – whether she protects her child or not – suffer under the burden of guilt, shame, incompetence, loss, anger, and her abuse. These feelings are increased by unvoiced or voiced responses in the environment which often mark the mothers with the stigma of a problematic mother. Due to stereotypes and myths6 the responsibility for the abuse is passed on to the mothers; in these cases the offender’s actions are accepted and justifiable (Bašič, 2006b: 164-166). Despite this there are some strategies for successful implementation of situational prevention into the domestic settings. On the subject of increasing risk, Smallbone et al. (2008: 172) suggest that situations differ and, therefore, need to be processed individually. For example: stepfathers or the mother’s new partners are one of the risk factors (Finkelhor et al.; Fleming, Mullen & Bammer; Kendall-Tackett & Simon; in Smallbone et al., 2008: 172) but not all stepfathers/partners are abusive and indeed, they can have an important role in the child’s life. Despite this, single mothers need to be warned that they have to be careful in choosing their new partner and allowing him to have unsupervised access to their child. Another risk factor may occur 6

“Discussing the problem of child sexual abuse is a process. Myths present in this process play an important role. We always cling to them due to constant need of individuals and the society to deny these problems.” In Slovenia people are convinced that this does not happen here as often as in other countries. They also try to deny the problems and find excuses for the actions. Stereotypes that effect the cooperation with others, and those that effect the investigation of child sexual abuse are also present (Bašič, 2002: 2-5).

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where there is a small living space which presents opportunities and temptations for abuse. This is why, where possible, it is important for the child to have their own room. Smallbone et al. (2008: 172) also mention the cooperation of the primary guardian as one of the strategies to increase the risk for revealing the offender. Firstly it is important that parents or guardians provide sufficient care for the child’s safety (extending guardianship). If the parents are not abusive7 they need to be included in programs where they are taught how to protect the children in their own home (Darkness to Light; Wyles; in Smallbone et al., 2008: 172). Often they are taught to protect the children from situations in which the children would be alone with an adult, even if this is a family member. If this cannot be avoided parents/guardians are advised to require detailed information from the adult on the activities planned for the child. It is also recommended that they occasionally come home unannounced. Caution is necessary while implementing this type of measures as we can raise unnecessary suspicion and affect the relationship between the adult and the child. Child sexual abuse offenders in the domestic setting can be stimulated by watching children (from the offender’s point of view) in provocative and vulnerable situations. Abuse usually happens while implementing intimate child care (for example washing) (Smallbone & Wortley; in Smallbone et al., 2008: 173); that is why the controlling triggers are very important (Wortley; in Smallbone et al., 2008: 173). It is necessary to constantly recognise and eliminate the indicators that raise such suspicion (Wortley; in Smallbone, 2008: 173). This strategy is efficient for all three types of offenders: situational, opportunistic, and committed. It is also useful for offenders who return to their home environment after the abuse has been revealed, and for visitors. Educational facilities (schools, kindergartens) have a special role in preventing sexual abuse performed by parents/guardians. With the right approach they can help in giving parents/guardians the right information 7

Simon and Zgoba (in Smallbone et al., 2008: 172) concluded that only 15 % of child sexual abuse offenders are parents. That is why they play an important role in implementing preventive measures. According to Police reports there is 30 % of this type of abuse in Slovenia. A detailed analysis has not yet been made - that is why the data is not precise.

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to be able to recognise this type (and other types) of violent behaviour.8 This way they can increase the risk factor in the offender and their fear of being caught. Constant training on recognising and preventing violence is needed for sovereign behaviour of employees in educational facilities.9

4

CONCLUSION

Situational crime preventive strategy is not a new approach for crime generally10 but it presents an important step forward in finding efficient strategies to prevent child sexual abuse in modern times. Most preventive measures implemented by different countries neglect the role of situations, which is why it is important that situational prevention is also presented in Europe. The first step in creating a successful situational crime preventive strategy is identifying critical situations. The next step includes finding measures that would minimise these situations or even eliminate them. Here, we need to consider all the problems that we are faced with in a particular setting, firstly by implementing the measures in a specific setting, and secondly, by making sure that our interference does not cause unnecessary worries and panic. Measures need to be designed locally and we have to approach the problem of child sexual abuse as a team. The search for a solution would be faster and more efficient if different facilities and experts would cooperate. Bourg et al. (1999: 19) write about forming teams that have to treat abuse cases in the most successful and 8

9

10

According to the Family Violence Prevention Act (2008) in case of suspicion of a child being a victim of sexual abuse Slovenian facilities (especially health and educational) have to (disregarding the provisions on protection of business secrecy) notify the Social Work Centre, the Police or the State Prosecutor’s Office. Within the Professional training of specialised workers in educational and schooling facilities in the field of social and state competencies (SDK) 2008–2011 Slovenian teachers and educators are trained in the field of recognising and preventing violence. The project is partly financed by the European Union with the European Social Fund and the Ministry of Education and Sport. It is performed in the framework of the operative program for human resource development in the period from 2007 until 2013, the development priorities: “Human resource development and lifelong learning”, the priority: “Improving the quality and efficiency of educational and training systems”. Older generations in Slovenia often say that in the past people in the countryside believed that mothers must not leave their daughters home alone. When they left home the daughters were instructed to hide in the barn.

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efficient way. Bašič (2006a: 159) suggests forming permanent teams together with individuals who work as consultants and can give necessary, important and additional information in real cases regarding potential victims. Here it is important to form a common (crime preventing) policy and adequate strategies in advance that the teams can also realise in individual cases. Žibert (2008: 362) states that “successful prevention is only possible if there is successful cooperation of governmental and non-governmental institutions.” Inter-institutional cooperation is vital here; every institution “that has an effect on the child’s endangerment” has to cooperate, for example: non-governmental institutions intended for children in distress; health and psychosocial public agencies (medical facilities, kindergartens, schools, etc.); Social Work Centres, Police, State Prosecutor’s Office and the Court; Consulting Centre for children, adolescents, and parents; and also parents/guardians, if they are not abusive. Pavlović Korošec, Rok-Simon, Obersnel-Kveder and Toplak-Ostan (1997) warn that the inter-institutional cooperation is “not only a vital but also the most sensitive element of the social response to child endangerment.” The authors (Pavlović et al., 1997) of the research “Institutional treatment of tortured, molested, and neglected children in Slovenia” wanted to contribute to raising awareness that elements of integration are needed to improve our work. They wanted to contribute to a better understanding and recognising of sexual abuse and the practice of treating this problem in Slovenia which is starting to pay more attention to the newest crime preventive strategies. At the Faculty of Criminal Justice and Security, University of Maribor, we are preparing research that will help us study the state of child sexual abuse in Slovenia. On the basis of analysing police, prosecutor’s, and court records, we will try to find the characteristics of the actions and the sexual offenders of children. We will pay special attention to proving child sexual abuse which is still very specific, due to the special features of evidence collection (more personal rather than material evidence). That is why it is necessary that the criminal justice agencies are familiar with the problem of child sexual abuse; understand the implementation of such actions and the consequences for the victims. On the basis of our findings we will identify opportunities that could be reduced or even eliminated with situational prevention and thereby protect potential victims.

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REFERENCES

Association Against Sexual Abuse (Slovenian Združenje proti spolnemu zlorabljanju). (2002). Gradivo izobraževalnih seminarjev, Delajmo z znanjem in skupaj za zaščito otroka, Zloraba otrok – nasilje v družini, Zaščita otrok. Ljubljana: Združenje proti spolnemu zlorabljanju. Bain, O., Sanders, M. (1996). Ko pride na dan, Vodič za mlade, ki so bili spolno zlorabljeni. Ljubljana: Co Libri. Bašič, K. (1993). Spolni napadi na otroke. Revija policija, (XIII) (1), 36-51. Bašič, K. (1997). Spolni napad na otroka. In: P., Kornhauser (Ed.), II. ciklus seminarjev Namesto koga roža cveti, Trpinčen otrok: kako prepoznati in preprečevati fizično in duševno trpinčenje otrok, razširjeni zbornik (pp. 130-179). Ljubljana: Meridiana. Bašič, K. (2002). Vpliv stereotipov in motov na raziskavo kaznivega dejanja spolnega napada na osebo, mlajšo od 15 let. In: M., Pagon (Ed.), Tretji slovenski dnevi varstvoslovja (pp. 1-6). Ljubljana: Visoka policijsko-varnostna šola. Bašič, K. (2006a). Doseganje skupne politike in ključna načela v timskem delu za zaščito otroka. . In: J., Balažic, P., Kornhauser (Eds.), Zloraba in nasilje v družini in družbi, XII. Spominsko srečanje akademika Janeza Milčinskega (pp. 155-159). Ljubljana: Inštitut za sodno medicino Medicinske fakultete v Ljubljani. Bašič, K. (2006b). Zaščita otrok s strani matere – veliko pričakovanje. . In: J., Balažic, P., Kornhauser (Eds.), Zloraba in nasilje v družini in družbi, XII. Spominsko srečanje akademika Janeza Milčinskega (pp. 160-168). Ljubljana: Inštitut za sodno medicino Medicinske fakultete v Ljubljani. Bautista Vallejo, J. M. (2005). Trpinčenje in zloraba otrok: kriminološki vidiki in znanje za pedagoško intervencijo. Revija za kriminalistiko in kriminologijo, 56 (1), 77-81. Bourg, W., Broderick, R., Flagor, R., Meeks Kelly, D., Lang Ervin, D., Butler, J. (1999). A Child Interviewer’s Guidebook. Thousand Oaks, London, New Delhi: Sage Publications. Cromwell, P. F., Olson, J. N., Avary, D. W. (1991). Breaking and Entering, An Ethnographic Analysis of Burglary. Newbury Park, London, New Delhi: Sage Publications. Donnellan, C. (Ed.). (1998). Child Abuse. Independence, 22. Dvoršek, A. (2003). Kriminalistična metodika. Ljubljana: Visoka policijsko-varnostna šola. Family Violence Prevention Act. (2008). Official Gazette of Republic of Slovenia, 16/2008. Filipčič, K. (2002). Nasilje v družini. Ljubljana: Bonex založba. Frei, K. (1996). Spolna zloraba, Z odkrito besedo do varnosti. Ljubljana: Kres. Hanson, R.K., Bussiere, M.T. (1998). Predicting Relapse: A Meta – Analysis of Sexual offender Recidivism Studies. Journal of Consulting and clinical Psychology, 66 (2), 348-362. Kanduč, Z., Korošec, D., Bošnjak, M. (1998). Spolnost, nasilje in pravo. Ljubljana: Inštitut za kriminologijo pri Pravni fakulteti v Ljubljani in Urad za žensko politiko.

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Kornhauser, P., Gostiša Kornhauser, A. (2006). Nasilje nad otrokom v družini. In: J., Balažic, P., Kornhauser (Eds.). Zloraba in nasilje v družini in družbi, XII. Spominsko srečanje akademika Janeza Milčinskega (pp. 83-97). Ljubljana: Inštitut za sodno medicino Medicinske fakultete v Ljubljani. Meško, G. (2002). Osnove preprečevanja kriminalitete. Ljubljana: Visoka policijskovarnostna šola. Mikuš-Kos, A. (1988). Proces odkrivanja pojava in ukrepanja ob pojavu trpinčenja otroka. In: Trpinčeni otrok: posvetovanje (pp. 17-25). Ljubljana: Inštitut za kriminologijo pri Pravni fakulteti v Ljubljani. Mušič, T. (2006). Nasilje nad otroki – kje smo bili, kje smo in kam gremo. In: J., Balažic, P., Kornhauser (Eds.), Zloraba in nasilje v družini in družbi, XII. Spominsko srečanje akademika Janeza Milčinskega (pp. 6-8). Ljubljana: Inštitut za sodno medicino Medicinske fakultete v Ljubljani. Newman, O. (1972). Defensible Space. New York: Macmillan. Pavlović, Z., Korošec, D., Rok-Simon, M., Obersnel-Kveder, D., Toplak-Ostan, M. (1997). Slabo ravnanje z otroki v Sloveniji, Opažanje in obravnavanje. Ljubljana: Inštitut za kriminologijo pri Pravni fakulteti v Ljubljani. Police. (2001). Annual Report on the Work of the Police 2000. Retrieved October 5, 2007, from http: //www.policija.si/portal/statistika/lp/2000/lp2000.php. Police. (2002). Annual Report on the Work of the Police 2001. Retrieved October 5, 2007, from http: //www.policija.si/si/pdf/statistika/lp2001.pdf. Police. (2003). Annual Report on the Work of the Police 2002. Retrieved October 5, 2007, from http://www.policija.si/portal_en/statistika/lp/pdf/report2002.pdf. Police. (2004). Annual Report on the Work of the Police 2003. Retrieved October 5, 2007, from http://www.policija.si/portal_en/statistika/lp/pdf/report2003.pdf. Police. (2005). Annual Report on the Work of the Police 2004. Retrieved October 5, 2007, from http://www.policija.si/portal_en/statistika/lp/pdf/report2004.pdf. Police. (2006). Annual Report on the Work of the Police 2005. Retrieved October 5, 2007, from http://www.policija.si/portal_en/statistika/lp/pdf/report2005.pdf. Police. (2007). Annual Report on the Work of the Police 2006. Retrieved April 10, 2009, from http://www.policija.si/portal_en/statistika/lp/pdf/report2006.pdf. Police. (2008). Annual Report on the Work of the Police 2007. Retrieved April 10, 2009, from http://www.policija.si/portal_en/statistika/lp/pdf/report2007.pdf. Police. (2009). Annual Report on the Work of the Police 2008. Retrieved April 10, 2009, from http://www.policija.si/portal_en/statistika/lp/pdf/report2008.pdf. Prezelj, I. (2007). Predgovor. In: I., Prezelj (Ed.), Model celovitega ocenjevanja ogrožanja nacionalne varnostni Republike Slovenije (pp. 7). Ljubljana: Ministrstvo za obrambo RS, Direktorat za obrambne zadeve, Sektor za civilno obrambo. Selič, P. (2006). Pravica ne biti žrtev nasilja. In: J., Balažic, P., Kornhauser (Eds.), Zloraba in nasilje v družini in družbi, XII. Spominsko srečanje akademika Janeza Milčinskega (pp. 9-21). Ljubljana: Inštitut za sodno medicino Medicinske fakultete v Ljubljani. Smallbone, S., Marshall, W. L., Wortley, R. (2008). Preventing Child Sexual Abuse, Evidence, Policy and Practice. Devon, Oregon: Willan Publishing.

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The Convention on the Rights of the Child. (1989). Retrieved July 10, 2009, from http://www2.ohchr.org/english/law/crc.htm. Thomas, T. (2005). Sex Crime, Sex Offending and Society, Second Edition. Devon, Oregon: Willan Publishing. Tomori, M. (1997). Nasilje nad otroki – tabu, ki ga lahko odstremo. In: P., Kornhauser (Ed.), II. ciklus seminarjev Namesto koga roža cveti, Trpinčen otrok: kako prepoznati in preprečevati fizično in duševno trpinčenje otrok, razširjeni zbornik (pp. 218-221). Ljubljana: Meridiana. Tomori, M. (2006). Otrok v nasilni družini – od priče in žrtve do izvajalca nasilja. In: J., Balažic, P., Kornhauser (Eds.), Zloraba in nasilje v družini in družbi, XII. Spominsko srečanje akademika Janeza Milčinskega (pp. 27-35). Ljubljana: Inštitut za sodno medicino Medicinske fakultete v Ljubljani. Urbančič, M. (2006). Analiza primera zlorabljenega otroka. In: J., Balažic, P., Kornhauser (Eds.), Zloraba in nasilje v družini in družbi, XII. Spominsko srečanje akademika Janeza Milčinskega (pp. 208-212). Ljubljana: Inštitut za sodno medicino Medicinske fakultete v Ljubljani. Waiss, M., Galle, I. (2001). V labirintu spolnih zlorab, Delo z žrtvami, storilci in starši. Ljubljana: Forma 7. Wiehe, V.R. (1998). Understanding Family Violence, Treating and Preventing Partner, Child, Sibling and Elder Abuse. Thousand Oaks, London, New Delhi: Sage Publications. Wortley, R., Smallbone, S. (Eds.). (2006). Situational Prevention of Child Sexual Abuse. Crime Prevention Studies, 19. Žibert, L. (2008). Programi slovenskih vladnih organizacij pri preprečevanju spolne zlorabe otrok. Revija za kriminalistiko in kriminologijo, 59 (4), 357-365.

Prevention of Corruption in Practice – Integrity Plans Bojan Dobovšek

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INTRODUCTION

In today’s society, corruption is a problem considered to be one of the most pervasive dangers besides terrorism and organized crime, not only in Slovenia and Europe generally, but in the rest of the world as well. It is damaging society and it endangers the rule of law, human rights, stability, and democracy in a country. It blocks economic development of developing countries and reduces the confidence of civil society in the most important governmental institutions. This is the main reason why the problem of corruption has attracted attention from the media and politics and it has become one of the main issues at international conferences, consultations, and seminars. The increase in corruption phenomena raises many questions about the efficiency of detection, which does not meet expectations. The actual system of classic state repression by law enforcement authorities is important in disclosing the most striking cases of corruption. Nevertheless, it is not efficient in suppressing the fundamental causes and conditions enabling corruption to occur and develop. The exclusive use of repressive measures merely leads towards elimination of some consequences. That is why more attention must be paid to preventive measures (Dobovšek, 2005). Corruptive acts are the hardest to detect because they are between people of the highest degree of discretion, or an agreement between two parties. They have the same interests, the aim of each being to gain some benefit. Therefore, there is no classic victim who would want to bring the case to court. Because these corruption actions are concealed and hard to find, evidence is necessary in order to limit the opportunities for corruption, to inform the public about its dangers, and to increase awareness of citizens to condemn corruption and repeal it. The result will be the un-corrupt behaviour of society itself. Ethics, morality, and individual integrity, play the main part in this. For a better understanding, the above mentioned concepts will be defined hereinafter. The analysis of corruption’s characteristic features, and the possibilities for its prevention, shows that repressive measures (detection and judicial response) are not effective in terms of intimidation because of the small number of uncovered acts and even smaller number of convictions. Consequently there are two options: to prevent (raising awareness and

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different measures with situational characteristic feature) or to deny the occurrence, as it is customary in numerous societies where corruption is considered to be the basic part of means to achieve various goals. For this reason Meško (2005) focuses on criminal acts of corruption and the possibilities for corruption prevention in his article about corruption prevention. He puts stress on the measures aimed to raise the awareness of people who might become the victims of, or the perpetrators of, criminal acts of corruption. He warns that the first step towards corruption prevention in an organization is represented by education of the management and employees, which de facto eliminates the excuse about individual unawareness of the fact that a certain act is prohibited. Corruption prevention measures can focus on decreasing concealment (more transparency), damage prevention in an organization, and elimination of giving and receiving favours. All the activities are substantially less effective if the suggestions come from the employees. The management has to be convinced that ensuring integrity is an important aspect of the way an institution functions, as well as of its reputation in society. The central part of the article is devoted to one of the numerous preventive measures, namely the integrity plan. As the concept of integrity is not familiar to the Slovenian public, we shall first define the term, and in continuation we shall describe integrity plans, the conditions, and the dangers in integrity plan implementation. In the Republic of Slovenia, the integrity plan is provided for in the new Prevention of Corruption Act. The integrity plans are still in the test phase, and are done by the principle “learning by doing”. Therefore, we will basically present the meaning of the integrity plan, its essence, and its role in corruption prevention.

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TERMS DEFINITIONS

A clear definition of the terms used for corruption, ethics, and integrity is necessary, especially when these terms are used in public debates and in forming policies and theories at the international level. At the same time we must be aware that we are discussing a phenomenon where cover-up will always be involved. Despite the fact that the terms corruption, ethics, and integrity are inseparably linked, they will be defined individually for the purpose of better clarity.

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Corruption

There are many definitions of corruption worldwide which try to define this phenomenon, and which more or less differ from one another other. The word corruption comes from Latin “corruptio” and originally means corruption, perversity, and dishonesty. In the dictionary of borrowed terms, the term “corruption” is defined as bribery, dishonesty; the term “corruptive” means bribability and corruption. In accordance with the aforementioned, corruption does not only represent illegal behaviour, but also dishonesty and perversity of the person performing it, as well as this person’s use of nepotism (abusing family ties and other relationships for the purpose of promotion), as well as depravation and moral perversity in human relationships. The Council of Europe is the international organisation which, increasingly, is active in the fight against corruption and has defined corruption as “any activity of persons entrusted with responsibility in the public or private sector, by which they breach their duties ensuing from their status as civil servants, officials in the private sector, independent organizations, and other relations of the same kind; and is aimed at acquiring any undeserved benefits for themselves and others” (Council of Europe, 1998: 1). The most popular and straightforward definition of corruption is the definition of The World Bank, which defines corruption as an abuse of civil authority for private purpose. Originating from this definition, we must not conclude that corruption is not present within the private sector (Tanzi, 1998). Corruption, which is dealt with in the Act as well as in the Resolution on the prevention of corruption in the Republic of Slovenia, is defined in the following way: “Corruption is considered as any breach of dutiful actions of civil servants, or persons in charge within the public or private sector, as well as the actions of persons who are the initiators, or beneficiaries of, such breaches, because of directly or indirectly promised, offered, given, demanded, accepted, or expected, benefits for themselves, or someone else.”

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From the above mentioned definitions we can conclude that the characteristics of corruption can be linked to the abuse of the power of authority, with unjustified benefit acquisition, ethic destructiveness, action concealment, and difficulties in finding evidence for corruption. The characteristic features of concealment and particular difficulty in finding evidence for this phenomenon cannot be observed in the definitions, yet these two features represent the biggest problem in corruption. It is hard to say that there is a classic victim in corruption, because there are benefits for both parties, therefore none of the parties is interested in denouncing the actions (Dobovšek, 2001). Reactions to the appearance and danger of corruption so far have been mainly repressive and have only suppressed the consequences and not the causes for this socio-pathological phenomenon. Mere repressive reaction to corruption only ensures the suppression of the damaging consequences in individual cases, whereas the reasons, incitements and circumstances, which represent the conditions for the emergence of corruption, remain intact (United Nations Convention against Corruption, 2004). It is, therefore, necessary to focus on reasons and conditions for corruption and to start preventing the opportunities for corruptive acts. What is of utmost importance is the individual’s conscious choice not to accept corruption. Therefore, the most important elements of preventing corruption are ethics, morality, and individual integrity. The three concepts will be discussed in the following part.

2.2

Ethics and Morality

From day to day people encounter different situations which define their actions, decisions, and steps they take. They ask themselves: How do I do the right thing and what is my duty? Particular judgement and the answer to this question are especially important in complex and critical life situations (Stres, 1999). People are frequently unaware of this fact since they act routinely and without moral judgement. If it eventually happens that they consider the ethical controversy of an action, they suppress the dilemma from their sub-consciousness - on the basis of the experience that other people act in a similar way in the same circumstances. These acts range from small

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tricks, improprieties, small (white) lies, and dishonesty; to large scale frauds, and deceit; as well as immoral, ethically questionable, and even criminal, acts. All these result from the lack of individual ethics and morality and should, therefore, be defined in detail (Maver, 2003). Ethics is a term which is hard to define. Van der Westhuizen (2003) says that many authors define ethics as “a branch in philosophy which deals with the analysis of moral principles and moral conduct”. He agrees with the fact that the definition of ethics is to be wide, to enable the study of conduct perceived as immoral behaviour. Van der Westhuizen (2003: 81) answers the question of morality by saying: “Morality deals with the practises and activities we understand as either right or wrong.” In addition, morality also deals with values originating from examined practices and activities and it includes rules of behaviour in specific situations. “The terms morality and ethics represent moral values and moral integrity of a person as an individual and as a subject in society in relationship to other people and to the social system” (Boštic, 2000: 16). Pagon (2000: 159) defines ethics as “a theory of morality, which tries to systematize moral judgements and establish and defend moral principles”, and, on the other side, morality as “a combination of principles or rules of behaviour accepted by members of a culture which serve for evaluating what is right or wrong behaviour”. Despite the fact that ethics and morality can be defined in various ways, they are used by some authors as synonyms. Morally suitable conduct is named ethical conduct; codes of moral behaviour are named codes of ethical behaviour, etc. In everyday language the terms ethics and morality are often interchangeable. It is true that there is no difference between the origins of their meaning, only the language differs. However, there is a difference between the two in terms of content. Morality is a sum of certain life rules, imperatives, and behavioural norms, accepted by individuals as a part of a society or culture. It applies to the right and wrong within particular social structures and represents specific imperatives, prohibitions, and behavioural norms, pertaining to a specific time within specific environment. Ethics, on the other hand, is generally a theoretical and rational argumentation about morality. It is therefore a philosophical branch or philosophical reasoning on morality itself, its basis, and mean-

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ing. Hence morality emphasises the aspect of duty and imperatives; therefore, whatever is morally obligatory is ethically right (Stres, 1999). Thus “ethics as a recognition of moral values and moral right and morality as a recognition of obligation and specific duties arising from it, require and complement each other” (Stres, 1999: 11). For the purpose of this work we will consider ethics as a philosophical branch, dealing with the right and wrong and studying moral principles and norms of behaviour in a certain profession. The term morality will be considered to be a combination of certain rules, imperatives, and norms of behaviour of a certain society, or culture, which help people to evaluate individual conduct as right or wrong. From the previously explanations we can see that one of the most significant elements to suppress corruption is suitable morality and the ethics of people in those professions most exposed to potential bribers. As emphasised by Kos (2001), various professional organizations responsible for forming and realizing professional ethics codes are aware of this fact, especially in the exposed professions and offices.

2.3

Integrity

People understand the concept of integrity in different ways. A frequently used and well known term, “integrity” used abroad frequently causes embarrassment and strong reaction, so we will try to define it in detail at the beginning. The word “integrity” originates in Latin (Integritas). It means perfection, harmony, wholeness, stability, honesty, purity of soul, entireness. This is a concept opposite to viciousness, moral perversity, bribery, and corruption (Pagon, Meško & Lobnikar, 2003: 147). Integrity also means a way of behaviour or conduct of people and institutions, which work in an honest, harmonious, conscientious, unbiased, transparent, and quality way. It is vital that they are assessed as such by the public or environment – that they give an impression of honesty and

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conduct within the framework of commonly recognized moral standards and regulations; in short, they act with a high degree of integrity. As claimed by Pagon, Kutnjak Ivkovich and Lobnikar (2000), individuals with integrity behave ethically because they act in accordance with their moral values which tell them what is right, and not because of exterior encouragement or pressure to act ethically. Therefore, integrity can be defined as having a pre-disposition to resist the temptation to abuse the rights and authority originating from a certain status. Or, to put it briefly, as a resistance to corruption at an individual, organizational, as well as institutional, level (Haberfeld, Kutnjak Ivkovich, Klockars & Pagon, 1999: 23). A person with integrity could thus be defined as a person who behaves freely or independently and acts in accordance with their moral values and virtues (Vicchio, 1997). An individual’s words and actions must be in agreement. Various management researchers have realized that integrity is a vital characteristic of successful leaders in business; and theorists in inter-personal and team relationships have defined integrity as the key factor of confidence in an organization (Becker, 1998). Delattre (1996) defines integrity as “a constant orientation, readiness, decisiveness, and established habit to act in the right way although one is not forced into it by anyone except themself”. He states that integrity is “an irreplaceable basis for a good friendship, marriage, parenting, sports, and civil spirit, as well as good civil service”. By this token, integrity represents a personal attribute as much as a social concept, which presents the best balance to counter-weigh personal deviation and unethical conduct. It is a highly desired virtue of an organization or individual, and it means that the rules and norms which regulate their work are observed. The defined terms of corruption, ethics, morality and integrity form the basis for the following debate. From the above mentioned we can summarize that any conduct which breaks moral principles, values and norms, in a given society, is regarded as corruption. The concept is basically identical for corruption as well as for the term integrity, since individual integrity demands behaviour in accordance with the above mentioned moral principles, values, norms, and rules. We can thus explain most types of integ-

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rity breach and unethical conduct with the term “corruption”. The central part in discussion about corruption is hence represented by morality and individual ethics. We can conclude that the terms “ethics”, “morality”, and “individual integrity”, are important factors in corruption prevention and deserve more attention in the future.

3

PREVENTION AND CORRUPTION

Crime prevention is a planned activity aimed at decreasing and eliminating various opportunities to create danger, threat, and invasion of other people’s rights and mainly to prevent the perpetrators from committing criminal offences. This is about acting before the consequences - “ante delictum”- and about eliminating circumstances which might create a chance for the onset and development of criminal activities. Although crime prevention can be divided into several types there has always been a well-known division into primary, secondary, and tertiary crime prevention. Primary prevention deals with measures to avoid the causes and conditions for the development or emergence of criminal activities, secondary prevention focuses on the measures for early detection of potential offenders and the conditions which lead to criminal activities, whereas tertiary prevention deals with the individuals who have already committed a crime (Meško, 2002). Reactions to corruption emergence and corruption threat have so far been distinctly repressive. We are all aware of the fact that merely repressive reaction to the problem of corruption only ensures the elimination of the damaging consequences in specific cases of corruption, whereas the causes, motives and circumstances which led to the appearance of corruption remain intact (Resolution on the Prevention of Corruption in the Republic of Slovenia, 2004). The only way to actually decrease the extent of corruption is by eliminating the cause, conditions, and circumstances which enable and accelerate the emergence and expansion of corruption. This means that results can be achieved primarily by means of prevention. Repression on the other side remains as a device for correction, and serves to handle the most

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severe cases of corruption (Resolution on the Prevention of Corruption in the Republic of Slovenia, 2004). Therefore, corruption is a phenomenon which is easier “to prevent than it is to treat it”. Corruption represents an international problem, which means that international cooperation is of vital importance in the fight against it. An individual country can solve the problems of corruption only in coordination with other countries and especially with the help of numerous international organizations whose priority is the prevention of corruption. Therefore, all the measures performed by separate countries must be related to international institutions and their documents dealing with corruption (for more on this subject see the Council of Europe, GRECO, the United Nations; OECD, the World Bank, Transparency International, and others)1. International organizations, especially the European Union and GRECO, have determined that the reactions in the Republic of Slovenia to the presence of corruption and its danger, so far have been merely repressive and have only eliminated the consequences and not the circumstances which are the condition for the emergence and development of this phenomenon. Besides that, the strongest reproach referred to the absence of a national anti-corruption strategy. In order to react to the reproach, the Office of the Republic of Slovenia started with the preparation of the Resolution on a national programme for the prevention of corruption in the Republic of Slovenia, which ended with the adoption of the Resolution on the prevention of corruption in the Republic of Slovenia. This is an act which is not legally binding, but represents political guidelines aimed at solving of the aforementioned issue. The guidelines for the resolution preparation were enclosed as an annex for the adoption of the Act on the prevention of corruption. The Act and the Resolution are the basic and inseparably interconnected strategic documents on corruption prevention. The Resolution on the prevention of corruption in the Republic of Slovenia contains a national anti-corruption strategy, which does not aim to achieve unrealistic immediate and radical elimination of corruption; it rather remains prevention oriented. The measures provided by the Reso1

Anticorruption in World Bank (2002); Anti-Corruption Toolkit (2004); Global Programme against Corruption: Implementation Strategy (1999).

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lution, on the prevention of corruption in the Republic of Slovenia, are of a long term nature. They are adapted to the level of economic, social and political development of the country and directed towards a long term and lasting elimination of the conditions for the emergence and development of corruption. The main purpose of the Resolution on the prevention of corruption in the Republic of Slovenia is to reach an appropriate degree of anti-corruption culture on a personal, as well as at a general, social level. This is to be achieved through direct and broader goals of the Resolution, which originate in 171 basic legislative, institutional, and practical, measures for corruption prevention and suppression, in politics, the civil service, law enforcement authorities, legislation, the economy, non-governmental organizations, the media, and the general public. The direct and general objectives are as follows (Resolution on the Prevention of Corruption in the Republic of Slovenia, 2004): – Formation and implementation of appropriate ethical standards, – Long term and lasting elimination of the conditions and circumstances for corruption emergence and development, – Establishment of appropriate legal and institutional environments for corruption prevention, – Consistent enforcement of the responsibility for illegal actions, – Establishment of the system with zero tolerance for corrupt conduct, – Efficient introduction of internationally established standards in this area. The Resolution implementation will have an influence on the achievement of the following broader social goals (Resolution on Prevention of Corruption in the Republic of Slovenia, 2004): – – – – –

Identification of the areas which are the most exposed to corruption, Transparent and legal financing of the political parties, Successful civil service reform, Overcoming conflicts of interest in public service, Establishment of lawful, professional, and responsible decision making, – Establishment of appropriate mechanisms for possible corruptive conduct detection and information, – Establishment of truly independent and efficient performance of the law enforcement authorities and legislation,

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– Establishment of an efficient functioning of other supervising mechanisms, – Establishment of open and transparent procedures of spending budget funds, – Creative cooperation between governmental and private organizations, as well as civil society, – Training and helping the private sector with efficient and self-regulatory activity against corruption, – Increasing the sensitivity of the civil service, civil society, and individuals, to forms of corruption, – Increase general awareness of individuals’ and institutions’ rights and obligations, – Helping the media perform their supervising function, – Inclusion of the Republic of Slovenia into the international effort for corruption prevention. In order to increase rationality and efficiency of preventive actions in the area of corruption elimination, the preventive approach represents a basis for the content and implementation of the Slovenian anti-corruption measures, as well as the detection of the causes and conditions for the appearance of corruption and their elimination. At the same time, repressive action remains a corrective measure used to sanction illegal conduct. Nevertheless, the two actions must be coordinated, and this can only be achieved by simultaneous consideration of both contents. The necessary measures for corruption prevention and elimination at a legislative, institutional, and practical level, are divided into several, previously mentioned, sections which are interconnected in terms of their content. People in charge, deadlines, criteria of success, and other important pre-conditions for the implementation of an adopted anti-corruption strategy, are stipulated in the Action plan on the implementation of the Resolution on the prevention of corruption in the Republic of Slovenia (Resolution on the Prevention of Corruption in the Republic of Slovenia, 2004). One of the goals stipulated by the Resolution is also the identification of areas which are most susceptible to corruption and establishment of suitable mechanisms for detection of and information about possible corruptive conduct. The above mentioned goals could be achieved by the introduction of integrity plans.

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WHY CURBING CORRUPTION?

Corruption elimination measures which originate in international recommendations, can be summed up into repressive and preventive measures from which several can be noted: strengthening of the legal framework, monitoring of the finances, work professionalization, responsibility of people in charge, establishment of transparency mechanism, decentralization of decision making and management, deregulation and limitation of discretion competence, strengthening of external and internal surveillance, openness of work, to mention the most important ones. With respect to the experience in suppressing corruption, so far there are two models in the world, the intervention model and the evolution model. The intervention model is characteristic of the countries with a high level of corruption and was first introduced in Hong Kong. This approach is based on a centralized governmental policy, which takes the central role in detecting and suppressing corruption away from the police, and appoints a special office under control of the government. In Hong Kong a huge public campaign was simultaneously performed in order to decrease the citizens’ tolerance, and who subsequently denounced corruption. The evolutionary approach is based on enhancing the work of the institutions and is characteristic of Western European countries. Heidenheimer (1994) recommends it for post-socialist countries as well. It originates in the viewpoint that certain values have been preserved here, and that can be the basis for modern society. In this approach the increased effects of the administrative, economic, commercial, civil, and other legislation, as well as legal penalties, are emphasised. Besides the criminal law, they contribute to remedy the situation in society. The role of internal and external surveillance, and the formation of an anti-corruption strategy, are given particular emphasis. Hence the majority of post socialist countries have endorsed corruption elimination with the following measures: enhanced legislation, activity limitations for people with public authority, property surveillance, reform of business conduct and morality, public procurement surveillance, codes for specific professions, establishment of independent bodies to fight corruption, enhancing the work of non-governmental organizations, etc. It is important to emphasise that the move from repressive to preventive measures is noticeable, with the latter having more chance of success because of the nature of corruptive business.

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It is with the modernization of governmental institutions that further corruption can be eliminated within a modern society. Among the recommendations for elimination of corruption, which were regulated by the international organizations mentioned in the previous chapter, the following measures by the Council of Europe and its commissions, GMC and GRECO, should be specified: – – – – – –

Enhancing legal framework, Public finance surveillance, Increased efficiency of the authorities, Establishing transparency mechanisms, Strengthening civil society, Implementing preventive measures (ethics codes, integrity plans, education, etc).

If one wants to achieve the implementation of the above mentioned measures one needs the support of credible political leadership which shall, within given circumstances, develop an anti-corruption strategy based on a common starting point by itself. Serious elimination of corruption cannot function from the outside; it demands devoted work of institutions within the system, particularly within the highest governmental authorities. By means of examining corruption forms in a country, an environment, sensitive to the phenomenon of corruption, is created. The kind of environment which recognizes the problem of corruption, and is aware of it, is then ready to fight corruption. People need to trust the institutions and each other. This atmosphere stimulates all further actions and enables reforms. Reforms must be commenced so as to produce visible results, which can later provide more support to new reforms. In this way the power of measures is maximized, which leads to confidence in the institutions, confidence in the economy, and its growth, and decreases poverty and inequality. The most widespread and recognizable form of corruption is corruption among civil servants and individuals, which is why it is here that the majority of elimination measures occur. The simplest form of such corruption is the case when individuals wish to acquire a favour they are not entitled to, or want to acquire it faster than usual - so they offer any kind of award. Such cases usually involve smaller examples of corruption, yet they can later lead to more severe cases, especially if officials higher in

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the hierarchy of the governmental authority get involved. If those responsible for supervision and functioning of the civil service become a part of the corruption process and they get the award for their silent approval, then the functioning of the whole system becomes morally questionable. Eventually the whole institution becomes corrupted. In this way, corruption is embedded into the entire system and is manifested in all relations of the institutions to citizens. Corruption is often defined as a disease spreading from the top downwards. The higher civil servants are placed in the hierarchy and the higher the authority in the decision making they have, the more they are vulnerable to corruption. Van Duyne (1999) compares such corruption expansion to the process of the progress of a successful civil servant. In the first phase it is possible to notice some signs about the senior official, such as excessive expenses (clothes, the car, the house, etc.). With these signs the lifestyle of the person deviates from the lifestyle of comparable officials, but there are no other signs of corruption. In the second phase an erosion of responsibility is shown. The more responsibilities this person has, the less negative reflexive information on their behaviour and work they get. Excessive expenses are justified by using clichés and vague answers. They punish the critics of their work by aggravating their working conditions, or even by replacing these people with others who are willing to fulfil their instructions. In the third phase the senior officials encouraged by successes from the first two phases start acting as if they own the institution of which they are in charge. So they start abusing their power and entrusted authority for their personal benefit, without any limits. For this kind of work they need a team of people who are absolutely devoted to them and who fulfil their instructions without any comment. New officials are employed only through acquaintance and not according to professional criteria, salary is allocated through the criteria of loyalty. The institution crosses the last threshold, for there is no one inside it to denounce the criminal act. The described action resembles a disease spreading from the top downwards, and clearly shows the importance of the early uncovering of corrupted individuals with the help of indications and the importance of denunciation, in order to prevent corruption from spreading throughout the whole institution. Integrity plans are the most efficient weapon in uncovering and eliminating this type of corruption.

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INTEGRITY PLAN IN THE REPUBLIC OF SLOVENIA

An integrity plan is one of the most modern methods to establish legal, ethical, and professional quality of work in various governmental and non-governmental organizations. Operating with integrity plans is one of the basic precepts of the Slovenian national strategy against corruption. The Act on the prevention of corruption in the Republic of Slovenia (2004) defines the integrity plan as “legal and actual measures which eliminate and prevent the possibility of the corruption emergence and development within the authority”. It is approved by state administration bodies and local communities. The integrity plan includes mainly (Act on the prevention of corruption, 2004): – An estimate of the corruption exposure of the institution, – Information on the person responsible for the integrity plan, – The description of the working process and the type of decision-making with a definition of duties for which liable, – Preventive measures to decrease the opportunities and dangers for corruption and, – Other parts of the plan, defined in guidelines stipulated in Article 43 of the Act. According to the Act on the prevention of corruption, the role of the integrity plan is to establish or improve the integrity of the institutions. Integrity plans are important to prevent integrity erosion. The latter take place if there is a breach of rules inside an organization, or if there is unacceptable behaviour in the form of nepotism, favoured recipients, unjustified use of company cars, etc. Integrity plans are, therefore, instruments aimed at raising awareness about weak points in the organization’s activities or about vulnerability and exposure of the organization’s activities. They aim to prevent corruption and they serve as a caution that the emergence of corruption is possible. Within the framework of integrity plan formation, resistance of the system to violations, which can grow into corruption, is studied. Integrity plans furthermore prevent the accumulation of effective powers within one employment position lacking special supervision or with only routine supervision. In addition, under-standardization, over-standardization, and effective implementation of internal

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rules in practice, are examined. As previously mentioned, integrity plan consists of measures with a legal nature such as the formation of missing internal rules in a certain sensitive area, as well as effective measures; such as, installing a system of physical or electronic security in the work space, for equipment and the employees (Act on the prevention of corruption, 2004). The essence of the integrity plan is its attempt to systematically assess strong and weak points of the defence mechanisms fighting against corruption and which are built into the structure, measures, and rules of the organization and its processes. The assessors look for, and appraise, the areas of risk. When they find them they develop counter-measures which protect the area against corruption. Depending on the vulnerable or weak areas which they identify, they report on the degree of integrity in the institution and suggest the options for improvement, which are then adopted if the management agrees. The integrity plan is therefore a project. An integrity plan is about establishing - within an organization - systems, which measure resistance to conduct which can be considered a breach of integrity. It is a preventive measure with a pro-active operation. An integrity plan does not examine or assess the integrity of a particular individual who represents a certain organization, as is the case of integrity tests. It is more that each employee and everybody who cooperates with the institution - the entire system - is being assessed (Act on the prevention of corruption, 2004). Hence the integrity plans represent a part of the common social network of values, norms, and (legal) measures to protect against corruption. The use of integrity plans in organizations can easily be imagined as a process of continuous learning. We could start with a limited assessment of particular fields which are the most endangered and exposed, and continue with a broader and corrected plan. In a few years it could include a similar assessment in other parts of the organization. In addition, we could add an assessment of the previously introduced “protective” measures and their updating, on the basis of acquired experiences with the plan. The role of the Commission for the implementation of integrity plans is one of an advisory and instructive nature. It will help to elaborate the integrity plan with advice and practical help to improve integrity and it will

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instruct when the state of integrity is being verified again. It will elaborate upon general guidelines and detailed instructions on the formation of the integrity plan. With its experience in this field the Commission will ensure the necessary degree of objectivity and contribute to the more detailed review and to appropriate suggestions for possible integrity improvement (the Office for the prevention of corruption has taken part in the MATRA project and cooperated with Dutch scientists in producing a pilot project under the auspices of the Office of the State Prosecutor General of the Republic of Slovenia). The Commission will also be the most important factor in the training of the people responsible for integrity, and who will - by setting a good example and with their knowledge - raise awareness about the vulnerable points of the operation and integrity within the organization. The work with integrity plans, therefore, demands systematic effort by managers and the institution itself (Act on the prevention of corruption, 2004). When the organization draws up the integrity plan, it will have to inform the Commission, so that the state of integrity can be verified periodically. The notification should include a short abstract of the survey report, short findings, the name of the contact person, and the date of the next survey. If the head of the organization suggests supervision, due to the determined breach of integrity, it can be done before the appointed date. The survey is executed by the previously determined procedure which results in a formal report in the form of a table with suggestions for improvement. On the basis of this submitted report the head of the organization decides on adoption of the necessary procedures. The notification, with the same content as in the first supervision, is submitted to the Commission on the repeated survey, with the exception that it is based on the improvement procedures implemented. The person responsible for the integrity plan performs the survey with the assistance of, and in cooperation with, the Commission (Act on the prevention of corruption, 2004). Current views on the use and benefit of integrity plans have been formed, and the cognitive view that the integrity plan will only get a “green light” and “come to life” within an organization if it contributes to an individual’s greater self-confidence, and security in their work. In other words, the organization must see the benefit for themselves in the integrity plan.

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The prevention of corruption is based on transparency. This is true not only for the transparency in the outside world, but also transparency within an organization. The integrity plan helps to increase efficiency and quality of work by preventing the emergence of small circles of leaders inside the organization. This is the only way for the employees in an organization to fully accept the integrity plan. All members of an organization must encourage each other to be unsympathetic to inappropriate professional behaviour which sometimes occurs among the members of the administration board. In this way they contribute to enhanced trust in the organization. As previously mentioned, the integrity plan represents support for efficiency and quality of all an organization’s operations. Besides promoting professional behaviour in the organization there are other benefits to an integrity plan. The first benefit obtained by the integrity plan is a thorough and accurate general survey of the organization. It enables the management to reconsider whether the situation in the organization is still appropriate to perform its duties in a decent and honest manner. The second benefit of the integrity plan is that it identifies the risks in the work processes of the organization, while at the same time providing warnings about the areas of power which could provide the solutions to decrease the risk. Such an assessment, combined with the creation of work profiles or descriptions, enables individual members of the management to be involved in continuous support and use of the integrity plan. This is possible because they provide information which is much needed in the survey of the organization. The preparation of the integrity plans must be focused on the organization itself and should not try to deal with every possible situation which might or might not arise in future. Despite this fact, some organizations include all kinds of behaviour, for example, forms of social discrimination, personal harassment, health, hygiene, or sensitivity to the environment. For a successful and efficient integrity plan these areas should be considered as not essential. However, they can be included at the organization’s discretion. It is generally better to deal with them as necessary conditions for employment contracts. One of the strongest characteristics contained in the integrity plan is incorporation of the adequate procedures which do not involve a threat of counter measure to employees’ complaints. This subject must definitely be

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in the context of the national anti-corruption legislation. The integrity plan must, in the case of breach of integrity conditions, also consider a scheme of sanctions. Nevertheless, besides difficult work conditions and other important laws, anti-corruption legislation must be, in all ways, respected. As we can see, Integrity Plans are instruments for raising awareness about strong and weak points of an organization’s operation, their aim being to caution against the possible emergence of corruption. Such instruments are used in the process of maintaining an uncorrupted state. They are relatively new phenomena in the public sector. Furthermore, they do not represent the framework for an uncorrupted civil service, but represent a means of encouragement for public debate in specific public services and for raising awareness of possible vulnerability and exposure which can lead to the emergence of corruption in a specific organization and their operation. When the management of an organization becomes aware of their power, weaknesses, and risk, it is important to provide efficient preventive measures. Such measures must prove their value in daily practice. Furthermore, they must be widely applicable. In addition, they have to be based upon specific standards for specific state organizations in order to be successful and efficient. To be adopted they need to be tested and assessed and lawfully and accurately examined. Such cyclical procedures will lead to a continuously increased awareness of activities which are susceptible to corruption. This can guarantee confidence in preventive measures “from the beginning to the end”/ “top to bottom” in an organization. Not all the measures are appropriate for all state organizations; consequently each specific office must examine and assess which preventive measure will be efficient and appropriate with respect to their needs and problems. A focus on decent and honest functioning of the rules and procedures is naturally the basis for an integrity plan, as well as one of the methods to encourage non-corruption. In any case, the correct operation of the civil service “stays” or “falls” depending on the attitude of the people employed there. Consequently, any civil service in an organization should be constantly alert to the mentality, norms, and values in the daily conduct of each employee. Management of the organization carries a burden of responsibility to promote the dignified conduct of state officials. It is vital that the senior employees give a good example and represent “the ambassador of honesty” within their organizations.

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It is also necessary to produce precise regulations to ensure dignified conduct pertaining to the public positions of officials. These regulations will also eliminate the risk of conflict of interest. With this respect, the following specific areas are worthy of notice: – – – – – – –

External activities and interests, Travelling abroad, replacing, entertainment, Gifts, favours, hospitality, awards, Financial interest and property, Operations of the spouse, Confidential information, Use of public and company funds, equipment, hardware and software, internet, – Political involvement, – Cultural differences. The emphasis on the regulations and procedures in the debate on the integrity plans conceals the opposing, yet very important element in corruption prevention. Non-corruption can represent a sign of quality of the organization or institution. As mentioned before, the best path to achieve success and efficiency in the organization is by producing and implementing a good integrity plan. Periodical survey of the prevention can function as a control system; therefore the use of the integrity plan is a system of quality in the civil service. A regular survey, assessment, and revisions, either done periodically or because of a breach of integrity, can help detect inefficiency and lack of success, as well as help decide how to proceed correctly. Even if there is a justifiable reason to eliminate the risk of corruption, the line of efficient prevention should not be crossed. Preventive measures should not influence and interfere with daily work in the organization. Inefficiency is a breeding spot of corruption and it becomes a risk for corruption by itself. The criteria and the regulations must be acceptable on a daily basis. Only in this way, will the integrity plan be internalized by employees in the public and private sector. In conclusion, we can say that an integrity plan represents support for efficiency and work quality in an organization. Furthermore, it increases professional conduct in an institution. It is a sign of quality, confidence, and professionalism. Awareness of the weak, susceptible, or exposed ac-

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tivities of the organization increases continuously, since integrity plans are projects and they re-occur periodically. These facts confirm the claim that integrity plans have a preventive nature.

6

CONCLUSION

To sum up the most important findings about suppressing the problems of corruption we can conclude that prevention is the basis of corruption elimination. The repressive measures of the law enforcement authorities have not been successful so far. Prevention has lately been the orientation of modern crime policy. It strives to be as efficient as possible in the elimination of damaging consequences of corruptive actions. Therefore, only preventive measures can bring positive results in the elimination of corruption in the first place. Repression, on the other hand, merely eliminates the consequences after they have already appeared. The motto “it is better to prevent than it is to cure” is absolutely true in the field of corruption. A strong and serious social action to promote anti-corruptive conduct is urgent. Not only will public awareness of the dangers of corruption increase in this way; what is more, zero tolerance will also be established. Corruption prevention, uncovering, and prosecuting, is possible only with strong support of the politicians. The regulations of conduct must be defined and presented to the public in such a manner that they become common. It is necessary to establish the mechanism of transparency to enable everyone to recognize corruptive conduct. Civil society and the media are by far the best controllers of government. Corruption has little chance to succeed in a corruption sensitive society and where every deviation of an individual attracts attention and consequently negative attitude of society. It is also important to increase efficiency in uncovering and criminal prosecution of corruption. Uncompromising and consistent sanctioning of illegal actions can have a preventive effect on potential future offenders. The aim of each efficient strategy against corruption is forming and establishing the environment to prevent corruption, or, as it may be the forming of a national system of the organization integrity. Each organization should have its anti-corruption programme based on recognition of its susceptible and exposed activities, which means the integrity plan. This could enable

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them to choose the right combination of preventive measures depending on their needs. These preventive measures should support efficiency and qualities of the organization’s activities, enhance professional behaviour, and so on, in the fields especially exposed to corruption. Adopting the Prevention of Corruption Act, which is the basis for the integrity plan, is the first step Slovenia has made so far. The central part of the integrity plan is raising awareness of the weak points in the activities of the organization, as well as its susceptibility and exposure to the risk of its appearance and corruption development. The basis of formation of the integrity plan is defining the resistance of the system to violations which can denote a breach of integrity. The weak and susceptible areas are, therefore, systematically assessed within the specific procedures, rules, and processes of the organization. If and when the assessors find such areas, it is their mission to develop measures which will protect possible corruption risk areas. On the basis of the disclosure the Commission advises and suggests possible improvements for the protection of corruption issues, and a report on the degree of integrity in the organization. Cases revealed by the integrity plans will be used to educate about the success of preventive measures and their improvement.

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REFERENCES

Act on the Prevention of Corruption (Zakon o preprečevanju korupcije), (2004). Retrieved May 7, 2007, from http://www.kpk-rs.si/index.php?id=32. Anticorruption in World Bank (2002). Retrieved April 15, 2004, from http://www1. worldbank.org/publicsector/anticorrupt/. Anti-Corruption Toolkit (Second edition) (2004). Retrieved May 26, 2004, from http://www.unodc.org/unodc/en/corruption_toolkit.html. Becker, T.E. (1998). Integrity in Organizations: Beyond Honesty and Conscientiousness. Academy of Management review, 23 (1), 154-161. Boštic, A. (2000). Upravna kultura in etika upravnega dela javnih uslužbencev. Grosuplje: Mondena. Council of Europe (1998). Programme of Action against Corruption. Retrieved May 7, 2007, from http://www.coe.fr/corrupt/eaction3a.htm. Council of Europe (1997). Resolution (97) 24 on the Twenty Guiding Principles for the Fight against Corruption. Brussels: Committee of Ministers. Delattre, E.J. (1996). Character and Cops: Ethics in Policing (Third edition). Washington, D.C.: American Enterprise Institute.

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Dobovšek, B. (2001). Pojavne oblike korupcije. In: Korupcija kot realnost današnjega časa (pp. 17-24). Ljubljana: Ministrstvo za notranje zadeve. Dobovšek, B. (2005). Predgovor. In: Dobovšek, B. (Ed.). Korupcija in politika (pp. 58). Ljubljana: Republika Slovenija, Ministrstvo za notranje zadeve, Policija, Generalna policijska uprava, Uprava kriminalistične policije. Global Programme against Corruption: Implementation Strategy (1999). Retrieved March 8, 2007, fromhttp://www.unodc.org/pdf/crime/corruption_programme.pdf. Haberfeld, M. R., Kutnjak-Ivkovich, S, Klockars, C.B., Pagon, M. (1999): Stališča policistov do disciplinskih ukrepov zaradi policijske korupcije: primerjava med Slovenijo, Hrvaško, Poljsko in Združenimi državami Amerike. Varstvoslovje, 1 (1), 13-29. Heidenheimer, A.J. (1994). Perspectives on the Perception of Corruption. Crime, Law and Social Change, 22 (4), 265-288. Kos, D. (2001). Mednarodne integracije v boju proti korupciji. In: Korupcija kot realnost današnjega časa (pp. 65-77). Ljubljana: Ministrstvo za notranje zadeve. Maver, D. (2003). Problemi etike v kriminalističnem preiskovanju. In: Pagon, M., Meško, G., Lobnikar, B. (Eds.). Etika, integriteta in človekove pravice z vidika policijske dejavnosti (pp. 93-108). Ljubljana: Visoka policijsko-varnostna šola. Meško, G. (2002). Osnove preprečevanja kriminalitete. Ljubljana: Visoka policijsko– varnostna šola. Meško, G. (2005). Odzivanje na korupcijo - preprečevanje ali zanikanje? In: Dobovšek, B. (Ed.). Korupcija in politika (pp. 61-78). Ljubljana: Republika Slovenija, Ministrstvo za notranje zadeve, Policija, Generalna policijska uprava, Uprava kriminalistične policije. Pagon, M., Meško, G., Lobnikar, B. (Eds.) (2003). Etika, integriteta in človekove pravice z vidika policijske dejavnosti. Ljubljana: Visoka policijsko-varnostna šola. Pagon, M., Kutnjak Ivkovich, S., Lobnikar, B. (2000). Police Integrity and Attitudes toward Police Corruption: a Comparison between the Police and the Public. In: Pagon, M. (Ed.). Policing in Central and Eastern Europe: Ethics, Integrity, and Human Rights (pp. 85-102). Ljubljana: College of Police and Security Studies. Resolution on the Prevention of Corruption in the Republic of Slovenia (Resolucija o preprečevanju korupcije v Republiki Sloveniji). (2004). Uradni list RS, št. 85/2004. Stres, A. (1999). Etika ali Filozofija morale. Ljubljana: Družina. Tanzi, V. (1998). Corruption Around the World: Causes, Consequences, Scope, and Cures. Working Paper of the International Monetary Fund. Retrieved March 8, 2007, from http://www.imf.org/external/pubs/ft/wp/wp9863.pdf United Nations Convetion against Corruption (2004). Retrieved May 26, 2007, fromhttp://www.unodc.org/unodc/en/crime_convention_corruption.html. Van der Westhuizen, E.J. (2003). Etika pri upravljanju policijske dejavnosti in njenem izvajanju: Pogled iz Južnoafriške Republike. In: Pagon, M., Meško, G., Lobnikar, B. (Eds.). Etika, integriteta in človekove pravice z vidika policijske dejavnosti (pp. 79-91). Ljubljana: Visoka policijsko-varnostna šola. Van Duyne, P. (1999). Combating Corruption: Acts and Attitudes, Five Issues in European Criminal Justice, European Institute for Crime Prevention and Control. Helsinki: Heuni. Vicchio, S.J. (1997). Ethics and Police Integrity. Law Enforcement Bulletin, Retrieved May 15, 2004, from http.//www.fbi.gov/leb/july972.htm.

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ABOUT THE EDITORS AND AUTHORS Editors: Gorazd Meško, BA, MA, PhD, is Professor of Criminology and Dean at the Faculty of Criminal Justice and Security at the University of Maribor, Slovenia. He has been a visiting scholar at the Institute of Criminology in Cambridge (UK) in 1995 and 2001 as well as at the Centre for Criminology at the University of Oxford (1996, 1999). He did his postdoctoral research on crime prevention at the Institute of Criminology in Cambridge in 2001 (OSI – HESP grant). His reseach include criminal careers, crime prevention, policing, fear of crime and crimes against environment. He is the editor-in-chief of Journal of Criminal Justice and Security (Varstvoslovje) and a member of editorial boards of the Journal of Social Inquiry as well as Revija za kriminalistiko in kriminologijo (Journal of Criminal Investigation and Criminology). He has been a GERN (Groupe Européen de Recherche sur les Normativité) board member since 2006. Helmut Kury, Dr. of Psychology, is Professor at the University of Freiburg, Germany. He was Assistant Teacher in Forensic Psychology at the University of Freiburg from 1970 to 1973. He was Senior Researcher at the MaxPlack-Institute for Foreign and International Criminal Law - Department for Criminology in Freiburg from 1973 to 1980 and 1988 to 2006. From 1980 to 1988 he was the first director of the Criminological Research Institute of Lower Saxony - KFN in Hannover, Germany. He taught Forensic Psychology and Criminology at the University of Freiburg and at several national and international universities. He is engaged in many international research projects. He was a visiting scholar at the Chuo University in Tokyo and other universities, especially in former Soviet Countries. He has three honorary professorships in different countries. His research work and publications include international comparison of crime development, comparative research, resocialisation and treatment of offenders, crime prognosis, fear of crime and punitivity, methodological aspects of empirical criminological research, prognosis of dangerousness, crime prevention and victimology. Professor Kury is a member of editorial boards of numerous international journals and he is also an expert in several national and international research projects.

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Authors: Bojan Dobovšek, Ph.D., Assistant Professor and Vice–dean, Faculty of Criminal Justice and Security, University of Maribor, Slovenia, e-mail: [email protected]. Danijela Frangež, MA, Teaching Assistant, and a PhD candidate at the Faculty of Criminal Justice and Security, University of Maribor, Slovenia, e-mail: [email protected]. Katja Filipčič, Ph.D., Associate Professor, Faculty of Law, University of Ljubljana, Slovenia, e-mail: [email protected]. Anton Dvoršek, Ph.D., Associate Professor, Faculty of Criminal Justice and Security, University of Maribor, Slovenia, e-mail: [email protected]. Zoran Kanduč, Ph.D., Associate Professor, Institute of Criminology at the Faculty of Law in Ljubljana, Slovenia, e-mail: [email protected]. Mitja Krajnčan, Ph.D., Assistant Professor, Faculty of Education, University of Ljubljana, Slovenia, e-mail: [email protected]. Gorazd Meško, Ph.D., Professor and Dean, Faculty of Criminal Justice and Security, University of Maribor, Slovenia, e-mail: gorazd.mesko@fvv. uni-mb.si. Mojca Plesničar, Junior Researcher, Institute of Criminology at the Faculty of Law in Ljubljana and a PhD candidate at the Faculty of Law in Ljubljana, University of Ljubljana, Slovenia, e-mail: [email protected]. Nina Peršak, LL.M. (Cantab), M.Phil. (Cantab), Research Associate of ZRC SAZU, Assistant Professor, Faculty of Criminal Justice and Security, University of Maribor, Slovenia, e-mail: [email protected]. Dragan Petrovec, Ph.D., Associate Professor and Senior Researcher, Institute of Criminology at the Faculty of Law, Ljubljana, Poljanski nasip 2, 1000 Ljubljana, Slovenia, e-mail: [email protected].

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Darja Zorc Maver, Ph.D., Associate Professor, Faculty of Education, University of Ljubljana, Slovenia, e-mail: [email protected]. Alenka Šelih, SJD., Professor Emeritus, Institute of Criminology at the Faculty of Law in Ljubljana and member of the Slovenian Academy of Sciences and Arts, Slovenia, e-mail: [email protected].

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Index

AUTHOR INDEX

A Anderson 245 Anžič 30 Ashworth 101-102, 176, 178 Auerhahn 179 Avary 243 B Badian 14 Bain 235 Bakreski 30 Bammer 246 Bannister 7 Baratta 82 Bar-Tal 116 Bašič 233-235, 239, 246, 249 Bauer 142-143 Bautista Vallejo 234 Bavcon 8-9, 14, 54, 168, 174 Beccaria 115 Beck 64, 115, 125-127 Becker 261 Bečaj 141, 147 Beichner 179 Bennett 21 Bickle 180 Blackwell 179 Boehnisch 126-128 Böhm 149-150, 160 Böllert 146 Bošnjak 49, 177, 233 Böttger 149-150, 160 Bourdieu 131 Bourg 248 Boutellier 74 Braithwaite 32 Brandenstein 7 Braun 147-148 Bregar Golobič 141 Brezničar 157 Brinc 54 Browne 239 Budd 101

Burney 102 Burns 176 Burtenshaw 233 Buruma 28 Bussiere 238 C Campbell 102 Carić 205 Carter 225 Castel 127 Castells 21 Cegnar 31 Cerar 31 Christie 52-53, 73 Clarke 83-84, 243 Clarkson 173 Cockcroft 30 Cohen 29, 142, 243 Colton 244 Cornish 84, 243 Crawford 24, 102, 111-113 Cromwell 243 Curran 180 Currie 81 Curry 179 Č Čačinovič Vogrinčič

141

D Dantinne 210 Davidović 30 Dekleva 226 Dieken 155-157 Ditton 7 Dobovšek 255, 258 Donnellan 238 Dölling 12 Dunne 244 Durkheim 107, 112, 116 Dvoršek 239

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E Eck 27 Elliot 239, 242 Elsner 145 Ennis 7 Estrada 51 Eyestone 21 F Farrall 7 Faulkner 115 Feinberg 106-107 Felson 83 Feltes 12 Ferdinand 8 Fijnjaut 48 Filipčič 168, 192, 238-239 Finkelhor 236, 244, 246 Finley 180 Finn 179 Fleming 246 Forell 179 Franko Aas 173 Frase 168-173 Frei 234 Furedi 66, 68-69 G Galle 239-240 Galuske 125, 127, 132, 134-135 Garland 12, 21-22, 45, 47, 49-53, 72-73, 78, 85, 99, 110, 114, 116 Gavez 31 Gerasimoski 30 Giddens 23, 125 Gilchrist 7 Gilling 141 Goethals 48 Gogala 147 Gorz 72, 78 Gostiša 233 Gottfredson 27 Graham 206 Guthrie 178 H Haberfeld 261 Hall 81, 172 Halliday 176 Hanson 238 Harris 210-211

Hebberecht 29 Heeren 180 Heidenheimer 266 Heinz 12 Heitmeyer 144 Hess 72, 87, 91-93 Hetzer 50 Hobsbawm 46 Hogg 90 Holleran 179 Holtappels 144 Hope 130 Hudson 69 Hurrelmann 125, 133 Hutton 176 I Indermaur

11

J Jacobs 210 Jager 9 Jakulin 168 Jareborg 173 Jarymowicz 116 Jefferson 11, 57 Jenkins 25 Junger Tas 206, 208-209 K Kanduč 161, 179-180, 192, 233, 235 Kania 8 Karstedt 27-28, 32 Kavkler 141 Kelling 52 Kempe 233 Kendall-Tacket 246 Keupp 130-131 Kilcoyne 239 Killias 213 Klemenčič 27, 32 Klockars 261 Kornhauser 207, 233 Korošec 168, 233, 249 Kos 260 Krafeld 134, 136 Krajnčan 157 Kroehnert 127 Kupffer 148-150, 159 Kury 7-8, 13, 30, 153 Kutnjak Ivkovich 261

285

Index L Lacey 29, 32 Lappi-Sepalla 173 Le Doux 116 Lea 63, 77, 81-82, 90 Lee 7, 179 Leonhardt 148 Lerchenmüller 153 Levine 245 Liefert 148 Lisec Metelko 154 Loader 29 Lobnikar 24, 260-261 Lukan 54

N Nalla 30 Nelken 23, 99 Newburn 21, 26, 36-37 Newman 243 Nietzsche 116 Niggli 70

M MacKenzie 27 Magajna 141 Maklecov 8 Manish 30 Marentič-Požarnik 148 Marshall 153, 236, 238 Martin 114 Matić 205 Mathews 7 Matthews 179 Matza 116 Maver 259 McIvor 225-226 McNeill 176 Melossi 24, 26 Melzer 144-145, 151-152 Merton 81 Messing 180 Meško 9, 14, 21-24, 27, 30-32, 142, 160161, 240, 256, 260, 262 Mikiča 153 Mikuš-Kos 235 Mill 107 Miller 172 Miloševska 30 Minič 31 Morgan 173 Morriss 178 Muiluvuori 210, 212 Mullen 246 Müller 141 Muncie 206 Muršič 225-226 Mušič 235, 240

P Pagon 259-261 Pakes 51 Patten 111 Pavarini 70, 72 Pavlina 210 Pavlović 249 Pečar 108, 112 Peček 141 Peklaj 146, 159 Pelton 235 Peršak 102, 107, 116 Peters 48 Peterson 180 Petrovec 51, 181 Pfohl 233 Pierpoint 141 Pogarsky 115 Pohl 132 Prezelj 233

O Obergfell-Fuchs 7 Olk 143, 153 Olson 243 O’Malley 64, 86 Opp 84

R Rachlinski 178 Ravnikar 157 Reid 169 Reiman 88-89, 92 Reuter 27 Rodriguez 179 Rogers 22, 153 Rohrmann 155 Rok-Simon 249 Rose 21 Rosenberg 153 Rozman 145 Ruggiero 64-65, 76 Russell 50

286

Crime Policy, Crime Control and Crime Prevention – Slovenian Perspectives

S Sanders 235 Schaarschuch 141 Schaffner 206 Schanzenbächer 155 Scheerer 87, 91-92 Schefold 126 Scherer 72, 93 Scherr 132-134 Schilling 141, 146, 152, 160 Schoenbauer 125 Schumaker 245 Selič 234 Selmini 24 Selšek 157 Sessar 7 Sherman 27 Siegel 38 Simester 101 Simon 246-247 Sims 101 Skalar 160 Smallbone 234, 236, 238-247 Smith 27 Soering 12 Sommerfeld 155 Sotlar 30 Sparks 21, 26 Spaseski 30 Spohn 179 Stando Kawecka 206 Stauber 132, 135-136 Stith 172 Stone 21 Stres 258, 260 Struck 150 Sullivan 69 Svetek 54 Sykes 116 Š Šelih 9, 52-53, 168-169, 171, 173 Škoflek 157-158 Šugman 175-176 Šugman Stubs 178-179 T Tancig 141 Tanzi 257 Tata 176-177 Thiersch 141

Thomas 50, 57, 244 Tierney 107, 112 Tilley 84 Tominc 30 Tomori 153, 236, 240 Tonry 168-170, 172-173 Trocmé 245 U Ulčar 31 Urbančič 246 V Van der Westhuizen van Dijk 206 van Duyne 268 Vanstone 244 Vicchio 261 von Hirsch 101

259

W Wacquant 24 Walby 244 Walgrave 48, 210 Walklate 141, 179-180 Walther 126-127, 132 Wasik 99, 103, 111 Wetzel 147-148 Wiehe 240 Williams 179 Wilson 52 Wing Lo 210-211 Winge 103 Wistrich 178 Wortley 232, 234, 236, 238, 240-241, 247 Wyles 247 Y Yoshida 7 Young 22, 72, 75, 77, 81, 87, 91, 93 Z Zedner 25, 29, 32 Zgoba 247 Ž Žibert 249 Žorga 153

287

Index

SUBJECT INDEX

A abuse by the media 234 Act on Misdemeanours 210 actuarial justice 99 addiction 129, 186 administrative criminology 36, 38 administrative model 169 adolescent 141-142, 144, 146, 148-149, 153, 234, 249 adoptive parent 235 adult 28, 68, 105-106, 126, 205-206, 210, 226-227, 229, 234-236, 238, 247 adult education 126 aggressive behaviour 151 aggressive individualism 81 aggressiveness 65, 187 Al Gore 24 alcohol intoxication 105 alternative treatment 177, 209 Amsterdam 24 Anglo-American legal system 176 anglophile 27 ante delictum 262 Anti-Alcohol Act 101, 104 anti-corruption legislation 273 anti-corruption strategy 263, 265-267 anti-social behaviour 77, 106 Anti-Social Behaviour Order – ASBO 101102 anxiety 66-67, 73 assisting natural surveillance 243, 245 Association against sexual abuse 235, 237 association of the disabled 224 attempted homicide 167, 182 Australia 169, 172, 244 Austria 173, 207 B Baron de Coubertin 28 BBC 104 behaviour in risk situation 151 behavioural disturbance 146

behavioural norm 259 Belgium 206, 210 blackmail 218, 226 bodily harm 55, 218 Bosnia and Herzegovina 30 brawl 218 bribability 257 bribery 257, 260 bridging culture 30 British Home Office 103 broken windows thesis 102, 112 Bulgaria 207 bullying 24, 144, 160, 233 burglary 55, 67, 103, business ethos 99 C Canada 101, 169, 172 capital punishment 70 capitalist society 47, 72 caretaker 235, 243 case of Gault 205 casino economy 64 Catholic Church 63 causing of traffic accident 218 Celje 217 chamber of private security 30 child abuse 233-234 child sexual abuse 234-235, 238-244, 246-249 chivalry hypothesis 180 civil service 261, 264-265, 268, 273, 274 civil society 14, 22, 26, 84, 86, 90, 109, 255, 265, 167, 275 civil-law order 101 classical criminology 70, 74 classroom 144-145, 147-148, 151-152 Closed-Circuit TV – CCTV 101-104, 108109, 243 Codex Justinianus 205 cognition prejudice 178 cognitive illusion 178

288

Crime Policy, Crime Control and Crime Prevention – Slovenian Perspectives

community 24, 27, 32, 53, 68, 77-78, 93, 101-102, 111-113, 133-134, 142, 144, 208-211, 225, 242 community myth 12, 99, 113 community policing 27 community sanctions 8, 209, 211 community service 113, 203, 209-213, 215-229 community service measure 217 comparative criminology 23, 25, 37 conflict 25, 28-29, 33, 36, 49, 53, 57, 6263, 108, 127, 130, 141, 152-156, 160, 181, 188-190, 228, 264, 274 confrontational conversation 151 Consulting Centre for Children 249 consumer hedonism 81 contemporary criminology 37 Continental Europe 23, 208-209 Continental European system 208 controlled intervention 151 Convention on the Rights of the Child 233 conventional crime 64 conviction 50, 54-55, 70, 74, 178, 225, 255 coolness training 151 corporal punishment 207 correctional detention measure 207 correctional measure 49, 194, 221 corruption 34, 35, 80, 255-258, 260-276 corruption prevention 256, 262-265, 274-275 corruptive act 255, 258, 275 Council of Europe 55, 211, 257, 263, 267 counselling worker 158-159 court 49, 52, 102, 111, 114, 167-168, 170172, 175-197, 205-206, 209, 214, 216-217, 219, 221-224, 226-227, 236, 249, 255 covert observation 103 crime 7-14, 21-25, 27-38, 45-57, 62-63, 70, 72-81, 85, 90-94, 99-104, 107-108, 110-117, 142, 168, 170-171, 179, 192, 194195, 199, 206, 211, 216, 218, 233-235, 240, 242-243, 248-249, 255, 262, 275 Crime and Disorder Act 50, 101, 206 crime control 7-10, 14, 21-23, 25, 27, 3032, 35-38, 53, 57, 107 crime department 142 crime investigator 233-234 crime policy 11, 22, 45, 48, 51, 53, 56-57, 75-76, 78-80, 82-83, 93-94, 99, 113, 275 crime prevention 8-14, 21, 23-24, 27-32, 34, 37, 81, 90, 99, 104, 110-112, 114, 142, 240, 262

crime prevention programme 23, 30, 37 crime prevention trend 99 crime problems 31, 35, 38, 57 crime rate 7, 47, 49-50, 54-56, 77, 91, 110, 112-113 criminal act 47, 50, 168-171, 174, 176, 179, 181, 183-186, 188, 195-199, 205, 207, 209-210, 212-222, 229, 240, 256, 259, 262, 268 Criminal Code of the Republic of Slovenia 213 criminal immunity of child 205 criminal justice system 25, 49, 51-52, 54, 62-63, 68, 70, 72, 90, 115, 208, 211 criminal law 9, 13, 63, 67, 70-72, 74, 76-78, 81, 100, 106-107, 113, 115, 117, 167-168, 177, 205, 207, 266 criminal offence 8, 10, 45, 51, 54-55, 62, 68, 70, 73-76, 78, 81-85, 90, 93, 100, 103, 114, 116-117, 167, 205-206, 212, 216, 220, 222-223, 226-227, 235-237, 241, 243244, 262 criminal offender 76, 71-72, 81, 205-206, 229 criminal procedure 102-103, 117, 176, 180, 187, 215 Criminal Procedure Act 103, 176, 215 Criminal Procedure Code 215 criminal record 168, 182-183, 185, 187193, 195 criminal sanction 70 criminal system 49 criminality prevention programme 21 criminal-law principle 100, 117 criminogenic determinant 75 criminological positivism 34 criminologist 8-11, 14, 22, 24-26, 29, 31, 35-38, 73, 77, 84, 91, 111 criminology 7-10, 13-14, 22-25, 27, 31, 34-38, 70, 74-75, 78, 81, 90, 93, 99, 103, 178-180, 216, 223, 226-227, 229 critical criminology 35, 37 criticism 49, 72, 85, 105, 114, 179-180, 212 Croatia 55, 207 cultural conflict 25, 28-29 cultural factor 93 cultural model 132 culture of fear 24, 34, 94 Cyprus 55, 207 Czech Republic 206, 210

Index D danger 52, 54, 61, 67, 100, 107, 114, 117, 151, 181, 199, 258, 262-263 Darwinian competition 81 DEA 29 de-criminalisation 52 defendant 168, 171-172, 175, 182-198 dehumanising approach 99 democracy 27, 61, 77, 108, 225 denationalisation 63 Denmark 207, 210, 212 dependent child 195, 234 depravation 257 Derč days (Derčevi dnevi) 233 deterrence theory 114-115 deviation 36, 67, 115, 135, 144, 238, 261, 275 discrete surveillance 103 discrimination 75, 116, 179-180, 272 dishonesty 257, 259 disorganised social environment 76 distancing from school 146 distress 101, 106, 185, 192, 237, 246, 249 disturbance 86, 145-146, 151-152, 155156, 158 diversion 52, 209, 215, 217, 220, 228 domestic setting 235, 246-247 domestic violence 8, 35 dominant culture 76, 80 drugs 33, 55, 57, 74, 87, 92, 104, 114, 158, 160, 170, 218 Dublin 36 E Eastern Europe 206 Eastern Germany 32 economic crime 11, 55-56 economic deprivation 76 education 12-13, 28, 33, 57, 68, 71, 77-78, 82, 89, 116, 125-127, 129, 131, 133, 135, 141, 143-145, 147, 149, 152-154, 156, 219, 223-224, 256, 267 educational measures 206, 214-217, 225, 229 educational process 135, 144-145, 147, 149 egocentric prejudice 178 election campaign 51 electronic monitoring 32 embezzlement 218 emotional abuse 233 emotional bond 147

289 employment 12, 48, 65, 76, 82, 109, 116, 125-130, 132, 136, 178, 219, 222, 241, 269, 272 employment system 126 England 103-104, 206, 208, 210 entrance control system 68 entrepreneur 22, 65, 77 environmental protection 57 environmental risk 74 epistemological society of criminologist 29 Estonia 206 ethics 78, 255-256, 258-262, 267 Europe 23-24, 28-29, 45, 50, 55, 206-211, 248, 255 European continental justice system 52 European criminology 35-36 European culture 21 European legal system 208-209 European research institute 36 European Society of Criminology 24, 36, 103 Europol 29 evolution model 266 exclusive society 52 exploitation 62-63, 76, 91 export of ideas 25 extending guardianship 243, 247 external control 245 F factory of morality 80 Faculty of Criminal Justice and Security 9, 238, 249 Faculty of Criminal Justice Sciences in Sarajevo 30 false reporting of crime 218 family 46-47, 57, 61, 65, 76-78, 80, 82, 128-129, 133-134, 144, 152, 180-181, 188, 191, 207-208, 216, 221-222, 229, 233, 235, 239, 247-248, 257 family member 235, 247 family violence 57, 248 Family Violence Prevention Act 248 FBI 29 fear of classmates 147 fear of crime 7-8, 24, 57, 102, 108 fear of school 147 fear of strangers 68 fear of unemployment 128 female criminality 13, 178-179

290

Crime Policy, Crime Control and Crime Prevention – Slovenian Perspectives

feminist criminology 179-180 financial abuse 234 Finland 55, 173, 207, 210, 212 forced labour 234 forgery 218 formal surveillance 243, 245 fortified society 85 foster parent 235 France 10, 27, 101, 173, 206, 210 fraud 34, 55, 63, 67, 80, 88, 218, 259 freedom 61-62, 65, 68, 72, 77, 100, 107, 109 French revolution 45 G Germany 10, 13, 29, 32, 173, 206-207, 210 GERN 36 globalisation 24-25, 64, 80 Goliath 109 governmental policy 102, 266 Great Britain 10, 12, 22-24, 28-29, 32, 3637, 48-51, 172 GRECO 263, 267 Greece 206-207 Guantanamo 54, 101 H health and social care 33 high self-esteem 76 home care centre 224 Home Office 36-37, 103 homicide 13, 167, 170, 181, 182 homo criminalis 76 Hong Kong 266 hot spots of crime 85 human rights 8, 11-12, 14, 27, 34-35, 45, 53-54, 57, 62-63, 65, 69, 99-100, 107, 109, 117, 213, 255 human-trade 184 Hungary 207 I identity 12, 67, 125, 129-132, 134 illegal behaviour 257 illegal border crossing 55 illicit drugs 55 imprudence 70 incapacitation 70, 73, 77, 83, 99, 111 incarceration 7, 11, 111, 113, 195 incrimination 64, 207 indecent behaviour 66, 106

individualisation 168-169, 173 individualisation of penal sanctions 168 industrial society 125 inequality 267 informal social control 47, 80, 102, 112113 informal study 135 inhumane punishment 207 Institute of Criminology at the Faculty of Law 9, 216 institutional violence 233 insult 158, 181, 191-192 integration attainability model 126 integrity 80, 255-256, 258-262, 265, 267-276 integrity plan 256, 265, 267-276 intelligence service 29 internal disintegration 82 internet abuse 233 intervention model 266 intimidation 24, 70, 83, 114, 239, 255 IQ 75, 77 Iraq 79, 92 Ireland 177, 210 Irish Criminology Conference 36 irrationality 70 Islamic fundamentalism 92 Island 207 Israel 207 Italy 210 J Janus 92 joy riding 218 judicial model 169, 173 juvenile delinquency 234 juvenile delinquent 8, 35, 102 juvenile offenders treatment 205, 208 K kidnapper 68 kindergarten 247, 249 kleptocracies 33 knowledge 9, 12, 22-23, 28-29, 35, 37, 65, 75, 86, 105, 127, 132, 148, 158, 136, 271 Konfrontative Pädagogik 151-152 Krško 217 L labelling 75 lack of power

151

291

Index larceny 218-219 large scale frauds 259 Latin American countries 33 Latvia 206-207 law and order 50, 73, 78, 101, 111 lawyer 13-14, 79, 100, 170, 177 legal culture 23 legal norm 71, 76, 100, 113, 115, 180 legal paternalism 105-106 legal rights 61, 142 legal system 22, 169, 176, 205, 207-208, 211 legislation 21-22, 30, 50, 52, 57, 102, 107108, 114, 207, 210, 214, 227-229, 264, 266, 273 legislative model 169 legislature 50, 167, 169 liberation process 127 liberty 11, 35, 57, 70, 100, 106-107, 114, 117, 206 life in prison 51 littering 101 Ljubljana 9, 14, 181, 216-217, 225, 227 local community 49, 53, 56, 111, 224 London 104 long-term dependence 129 Luxembourg 210 M mainstream Slovenian criminology 35 malicious mischief 218 management of crime 45 mandatory punishment 170, 172 manslaughter 192 marginalisation 74, 104 marginalised group 57 Marx 28, 80 Marxist classics 69 mass media 89, 115 McDonaldisation 28 media 10, 14, 35, 47, 56, 67, 73, 78, 89, 92, 95, 99, 102, 109, 115-116, 132, 161, 234, 255, 264-265, 275 media discourse 102 medical attention 191, 233 Mickey Mouse concept 142 militarization 34 military-police apparatuses 92 Ministry of Education and Sport 248 Ministry of Labour, Family and Social Affairs 216, 229

minor crime 33 misdemeanour 49, 52, 210 modern positivist criminology 75 Moldova 206-207 moral integrity 259 moral judgement 258-259 morality 80, 255, 258-262, 266 municipality 224 murder 55, 67, 185, 188, 193, 199 murderer 68 myth 8, 12, 99, 112-113, 246 N narcotic drugs 218 National Resolution on Crime Prevention and Crime Control 31 Nationalism 28 NATO 35 natural surveillance 243, 245 negative prevention 70, 72-73 neglect 27, 33-34, 113, 159, 175, 233-234, 239, 248-249 neglected child 249 Neighbourhood Watch 68, 110-111 neighbourhood watch programme 32 neo-liberal capitalism 36 nepotism 257, 269 neutralisation 81, 83 New Labour Party 102 New South Wales Commission for Children and Young People 244 New York 29 New Zealand 169 new-age electronic shaming 104 Newcastle 103 non-governmental organisation 56 normative restriction 81 Norway 55, 103, 207, 210, 212 Norway’s National Police Directorate 103 Novo mesto 217 O OECD 263 offender 8, 49, 51-53, 56, 62, 67, 70-72, 80-81, 83-84, 100-101, 103, 106, 114, 116, 170, 174, 189, 205-213, 228-229, 235249, 262, 275 Olympic Games 28 Olympic movement 28 ontological uncertainty 76, 92 opiatized consumer society 91

292

Crime Policy, Crime Control and Crime Prevention – Slovenian Perspectives

oppression of minorities 34 organised crime 55, 57, 63, 80 orphanage 243 Oslo 103 Oxford Street 104 P paedophile 50, 68, 293-294 paedophilia 294 parent 13, 46, 67-68, 129, 146-150, 156, 159, 188, 193, 205, 207, 221, 233, 235236, 238, 243, 247, 249 parenthood 246 park 242 parliament 9, 30-31, 79 parole requirement 51 patriarchal ideology 76 pedagogic leader 147 pedagogue 158-161 penal evaluation 167 penal institution 35, 72 penal legislation 214, 228 penal policy 24, 55 penal populism 36 penal regulation 168 penal repression 73 penal sanction 51, 53, 57, 70, 72, 168-169, 175, 194, 212, 228 penal welfare state 45 penology 36 perpetrator 45, 53, 67, 70-76, 78, 81, 84-85, 90, 100-101, 103, 114, 143, 167168, 170-171, 174, 177-181, 185, 187-191, 197-199, 205, 209-210, 213, 215-218, 220, 229, 256, 262 perversity 257, 260 physical violence 190, 192, 208, 233 playground 242 plea-bargaining 170 pluralisation 127 pluralism 76 Poland 206 police 9, 24, 27, 29, 31-32, 35, 48-50, 5356, 83, 88, 91-92, 102-103, 111, 185, 189, 192-193, 209, 211, 220, 234-237, 243244, 247-249, 266 police expert 29 police force 32 police intelligence work 244 police organisation 54 policy making 9-10, 31, 34-35, 37

political culture 26-27 political intrigues 80 political marginality 76 political opponent 210 political powerlessness 76 political violence 74 politician 7, 12, 25, 35, 37-38, 51, 112, 275 politicization 36, 48 pollution 74 populism 36, 51, 102 pornography 235, 242 Portugal 206-207, 210 positive prevention 71-73 positivist preventive policy 81 post delictum 68, 99-100 post-modernism 50 post-war welfare state 82 poverty 12, 33, 63, 74-77, 93, 116, 127, 132, 208, 267 power of authority 258 predetermined punishment 170 pre-trial procedure 103 prevailing criminology 37 prevention 7-14, 21, 23-24, 27-34, 37, 45, 56, 61-62, 64, 66, 68-73, 79-90, 93-94, 99-105, 108, 110-114, 117, 141-146, 152, 154-155, 211, 216, 234, 240-242, 244-246, 248-249, 255-257, 262-265, 269-272, 274-276 Prevention of Corruption Act 256, 276 prevention strategies 143 preventive detention 99 preventive measure 12, 67-68, 82, 100, 107, 241, 247-248, 255-256, 266-267, 269-270, 273-276 preventive projects 148 primary prevention 143-144, 262 principle 8-9, 14, 27-28, 77, 79, 100-102, 105-107, 109, 114, 117, 125, 131, 141-142, 150-151, 157, 168, 173, 177, 180, 220, 256, 259-261 private prison 32 private security 22, 30, 49, 53, 68, 85, 94, 243 privatisation 11, 35, 49, 63, 80, 110 problems of contextualisation 27 professional criminology 37 professional school 151 professional work attitude 156 professionalism 274 prostitution 55, 185, 188

293

Index protection against crime 45 psychological affliction 207 psychologist 159 public criminology 9, 35, 37 public dis-orderliness 52 public figure 47 public place 68, 101, 106, 242 public service 264, 273 public setting 242, 244 public toilet 242 punishment 7-8, 12, 45, 52, 63, 70-71, 73-74, 99-100, 104, 111, 113-115, 167177, 179-180, 183-184, 187, 192, 194-195, 197-199, 205-208, 210, 212, 225, 228 punitive populism 102 punitive prevention 99-101 punitive sanction 116, 210 punitiveness 7-8, 50-51, 57, 115 Pyrrhic defeats 92 R rape 67 rationalisation 49, 81, 83 rationality 27, 70-71, 265 Reagan 48 rebellion 72, 99 recidivism 72, 174, 212-213, 238 Red Cross 224 re-education 71 reflexive co-education 153 rehabilitation 45, 71-72, 77, 143, 209-210 rehabilitation model 71, 77 rehabilitation programme 71-72 reinstitution of prisons for juveniles 50 repressive prevention 104 Republic of Macedonia 206 re-socialisation 45 Resolution for the Prevention and Oppression of Crime 104 Resolution on the Prevention of Corruption in the Republic of Slovenia 257, 262-265 responsibilisation 99, 110 responsibilisation strategy 110 restitutional justice 49 restorative justice 8, 209, 211, 222 restorative measure 52 right to privacy 102, 104 risk society 64, 94 ritual abuse 234 road safety 57

robbery 55, 67, 218 Roma people 57 Roman law 205 Romania 207 rugged individualism 76 rule of law 8, 14, 117, 220, 255 S sadistic torture 181-182 safety 24, 27, 29, 34, 36, 38, 45, 53, 5657, 65, 67-69, 73-74, 78-79, 82, 84, 90, 92, 109, 117, 132, 135, 207, 247 sale of ideas 22, 24 sanction 8, 45, 49, 51-53, 57, 63, 70, 72, 86, 90, 92, 100, 107, 111, 113-116, 168169, 175, 177, 194, 205-207, 209-215, 219, 228-229, 265, 273, 275 sanction efficiency 212 scandal 78, 115 Scandinavian countries 10, 212 Scandinavian quadrant 57 school 8, 35, 37, 45, 47-48, 75, 78, 86, 133, 141, 144-161, 172, 193, 219, 221-222, 224, 235, 242-243, 247, 249 school culture 151 school grade 147 schooling 48, 141, 158, 194, 248 schooling process 147 schoolwork 148 Scotland 102, 206 secluded place 242-243 secondary (classroom) approach 145 secondary legislation 108 secondary prevention 143-144, 262 security 11, 22, 27, 30, 35, 38, 45, 49, 51, 53-55, 57, 61, 65, 68-69, 79, 85, 90-92, 94, 103, 107-108, 116-117, 233, 238, 243, 249, 270-271 security service 68, 94, 108 security threat 233 segregation 73, 77, 92 selective incapacitation 73, 77, 111 self-actualisation 76 self-control 47, 76, 238 self-harm 234 self-implementation 156-157 self-protected response 108 senior home 224 sentencing system 169, 170, 173 setting boundaries 151 sexual deviant 50

294

Crime Policy, Crime Control and Crime Prevention – Slovenian Perspectives

sexual deviation 238 sexual harassment 67 sexual intercourse 182-183 sexual service 106 shopping centre 86, 109, 242-243 sine qua non 86, 91 situational engineering 83 situational prevention 83-86, 94, 105, 113, 234, 240-242, 244-246, 248-249 slapping 181 Slovakia 206 Slovenia 8-10, 14, 27, 30, 32, 35, 45, 52, 54-57, 99, 101, 103-104, 106, 158, 167, 174, 176, 179, 181, 194, 207, 210, 213-216, 224, 227, 233-235, 237-238, 246-249, 255-257, 262-265, 269, 271, 276 Slovenian Association of Friends of Youth 207 Slovenian Research Agency 216 smoke screen 108-109 social behaviour 147, 154 social capital 64, 134 social changes 46-47, 54, 127, 136 social circumstances 143, 176 social cohesion 29, 112, 226 social conditions 21, 132 social contract 107 social control 8, 11, 21-27, 29, 31-38, 47, 53, 56, 65, 78, 80, 86-87, 90, 93, 99, 102, 112-113, 142 social control industry 26 social differentiation 33, 125 social engineering 83 social evil 50 social factor 113 social fragmentation 82 social inclusion 130, 132, 134-135 social integration 71, 83, 86, 112, 125-128, 135-136, 157 social modernisation process 125 social network 129-130, 132-135, 270 social order 15, 58, 71, 76, 83, 87, 112 social panopticism 108 social pattern 177, 180 social pedagogy 135-136, 141, 146, 149 social position 132 social recognition 129, 132 social re-integration 73 social relation 133, 226 social system 82, 86, 259 Social Work Centre 246, 248-249

social worker 87, 148, 159, 176, 217, 224, 228-229 social-emotional maturity 152 socialisation 45, 63-64, 69, 76, 80, 114, 147, 149 socialism 210 socially elite network 23 socially improper conduct 104 society of work 125-128, 132, 134-135 socio-control system 26 socio-political institution 136 Sonček – Cerebral Palsy Association of Slovenia 224 Soviet Union 10, 32 Spain 207 special juvenile court 205 spoliation 63 stability 71, 255, 260 state 9, 11, 45-47, 53, 56, 62-65, 67, 69, 77-80, 82-83, 86, 90-93, 100-101, 103, 105-112, 114-117, 149-150, 154, 171-172, 174, 176, 178, 184, 186-188, 191-192, 194-195, 197, 205-209, 213, 215-219, 221, 227, 244, 248-249, 255, 269, 271, 273 state prosecutor’s office 172, 217, 219, 248-249 state punitiveness 115 Statistical office of the Republic of Slovenia 214 stereotype 177-178, 225, 246 stigma 180, 246 stigmatisation 64, 75, 87, 104, 236 stranger 68, 235 street criminality 33 strengthening formal surveillance 243 stress 67, 128, 152, 222, 236 stressful situation 151 structural transformation 29 structural unemployment 74 subject objectification 99 supervising mechanism 265 surveillance 102-103, 109, 143, 245, 266267 Sweden 101, 173, 207, 210 Switzerland 210, 213 T target population 28 teacher 147-148, 150, 152, 155-160 teenager 101

295

Index terrorism 24, 34, 74, 79, 90, 92, 107-108, 255 tertiary prevention 143, 145, 262 Thatcher 48 The Netherlands 51-52, 101, 172, 206207, 210 The Protection of Public Order Act 101, 106 The USA Patriot Act 107 The World Bank 257, 263 theft 35, 55, 63, 67, 103, 110, 144 theory of rational choice 84-85 threat 114-116, 126, 185, 242, 262, 272 three strikes and you’re out 50, 170 totalitarian regime 32 trafficking drugs 33 transfer 9, 21-23, 25-30, 32-33, 53, 111, 206 transformability 91 transgression 84, 107 transition 24, 63, 80, 125-126, 128, 133, 135-136 trans-national crime 90 transparency 47, 149, 256, 263, 266-267, 272, 275 Transparency International 263 traumatic episodes in childhood 75 trespassing 101 two-step criminalisation 101 U Ukraine 55, 206-207 ultima ratio principle 100, 106-107 unconventional crime 64 unemployment 74-77, 82, 128-134, 208 United Nations (UN) 211, 258, 263, USA 7, 10-11, 22, 45, 72, 79, 92, 107, 117, 170, 172, 179, 205-206, 208-209 utilising place manager 243

V vandalism 103 verbal silence 236 viciousness 260 victim 7, 49-53, 62, 67-68, 116, 177, 181184, 188-190, 193, 197-199, 209, 237238, 242, 245, 248, 255, 258 video surveillance 31, 53, 102-104, 108 violation 83, 101, 180 violence 8, 24, 35, 55, 57, 74, 79-80, 85, 91, 94, 108, 129, 144, 149-152, 154, 160, 180-181, 186, 190, 192, 194, 196-198, 207-208, 233-234, 236, 242, 248 violent conduct 218 Voltaire 27, 38 W war against cancer 33 war against criminality 33-34 war against drugs 33 war against poverty 33 war against terrorism 34 war on crime 33-34 war on terror 100, 107 war on terrorism 107 welfare state 45-47, 64-65, 77, 82, 208 West Germany 210 Western Europe 8, 50, 210, 266 white-collar criminality 33 World War II 47 Y Yale Law School 172 youth violence 57 Yugoslavia 10, 30, 210 Z Zeitgeist 85 zero tolerance 24, 33, 50, 73, 102, 264, 275