The law of sanctions (or: law of sanctions ) shapes the state reaction by means of repression (coercion) against the citizen . It is not limited to criminal reactions alone , but can also become important in civil and administrative law . Modern sanctions law largely refuses to denounce and corporal punishment with a view to human dignity . In the meantime, the death penalty has also been pushed back in large parts of the world, especially in Europe (see the 6th and 13th Additional Protocols to the European Convention on Human Rights ). In some states, support for the death penalty is increasing again.
The law of sanctions is shaped by social psychology. It pursues different purposes, which can be individually different.
The law of sanctions is basically purpose-oriented. It is the completion of formal social control in relation to an individual operation.
Purpose and sense of the law of sanctions
Atonement (or compensation ) is a criminal aspect that only plays a role in this context. Atonement is the imposition of punishment on an individual for the injustice he has done to society. The atonement settlement is intended to bring about legal peace (and thus rather not justice ). The atonement settlement is assigned to the absolute theory of punishment .
Sanctions are designed to act as a deterrent. The higher the threat of sanctions for legally disapproved behavior, the greater should be the deterrent against society itself, but also against individuals and lawbreakers, from breaking the law again. However, studies have shown that this is only partially true. Although norm-conscious citizens can be deterred by threats of sanctions, this cannot be ascertained for less norm-abiding citizens. Even if offenses are threatened with drastic penalties, it does not wipe out crime. In particular, the death penalty is not suitable to protect against serious crimes. The deterrence of the general public is referred to as negative general prevention , that of the individual as negative special prevention. They can be assigned to relative criminal theory.
Improvement and norm reinforcement
Sanctions should also have positive effects, especially at the criminal law level. Rehabilitation plays an important role in inpatient measures such as incarceration . Basically, this should give the person affected by the sanction the opportunity to lead a life as a righteous citizen in the future. At the same time, the general public should be strengthened in their norm awareness through the enforcement of the norm. In relation to the general public, this is referred to as positive general prevention, and in relation to the individual as positive special prevention. These are to be assigned to the relative criminal theory.
In principle, so-called inpatient sanctions (detention, custody or accommodation) are also intended to protect the general public. Dangerous persons should be harmless for the duration of their sanction. In addition, measures such as confiscating dangerous objects or animals can also be considered.
Basically, the right to sanctions is based on a natural need for punishment ( punitivity ) in the population. According to empirical findings, the need for sanctions is determined by numerous factors. Not only personal characteristics such as gender, age and social circumstances are important. In the USA it has been shown that blacks and whites also have different sanction needs. The influence of the media is discussed differently. The effects on the need for sanctions usually also have an impact on the legislative process, so that they can be parameters for a liberal or rather more restrictive law on sanctions.
Aspects of power
The law of sanctions is ultimately also intended to serve as discipline and is an important link in the chain of formal social control. At the same time, it should also guarantee the state's ability to function vis-à-vis its citizens.
The most important role is played by sanctions in criminal law. In the earliest times, the right to sanctions was limited by the biblical mirror penalties "an eye for an eye, a tooth for a tooth". The punishment was limited. The focus was on debt settlement. Imprisonment and fines appear only sporadically. The death penalty and body punishment dragged on into the times of industrialization. In Germanic law alone, a fine tax system developed that provided for fines for certain offenses. The law of sanctions was a class law. The wealthy could buy themselves freely, the rest awaited torture and humiliation.
Modern criminal law refrains from deep interventions against life and limb. The catalog of punishments usually only recognizes deprivation of liberty and fines. In most states, the labor penalty has now also been abolished. In addition, so-called secondary penalties are often imposed. Driving bans , property fines and side effects similar to sanctions can often restrict the citizen's financial and personal freedom more effectively than imprisonment.
The essential aspect of sanctions law within the framework of criminal law is that of sentencing . The appropriate sanction has to be found and created for each individual case.
Forms of sanctions in Austrian criminal law
- Penalties (fine, imprisonment, substitute imprisonment, guilty verdict without or with reservation of the penalty)
- Legal consequences (e.g. loss of office)
- preventive measures (added in 2011: professional and activity ban for sex offenders)
- property orders (levy, forfeiture)
- Association fine according to the VbVG
- on its own reaction line: Diversion
Administrative law ensures that the state functions properly. On the one hand, in the context of so-called administrative offenses , it offers the possibility of taking repressive measures against the citizen with financial sanctions ( fines ) in the event of minor offenses that do not reach the quality of criminal offenses . Alternatively, detention can be ordered as part of compulsory detention. In addition, the secondary sanctions of criminal law are also conceivable in a graduated form.
In the context of procedural law, administrative measures can be imposed on the parties involved. These have the character of a sanction.
The international community knows numerous means of sanction from customary international law. Chapter VII of the UN Charter on the Use of Violence Between Peoples is of great importance . Sanctions are not generally enforceable, but depend on the sensitivities of nations, so that one cannot speak of a sanctions law regime in the narrower sense.
Civil law does not actually have any sanctions. The development of compensation for pain and suffering over and above compensation for damages has also experienced an atonement and satisfaction function for the individual in the continental European countries. The figure of “ punitive damages ” was developed in the Anglo-Saxon legal system. The breach of civil law is proven with a “punitive damages”.
In Germany, the law of sanctions is basically federal law . The main codifications are the penal code and the penal code . The dual nature of criminal law means that, in addition to penalties, measures can also be imposed regardless of guilt. These measures such as placement in an educational institution or in a psychiatric hospital or preventive detention only have preventive purposes. They are perceived by the person concerned as sanctions because of their coercive nature. The execution of measures is regulated by state law.
- Michel Foucault: Surveillance and punishment , Suhrkamp Verlag, Frankfurt am Main 2001, ISBN 3-518-27784-7
- Eckhard Horn : Systematic guiding principle commentary on sanctions law , Luchterhand, ISBN 3-472-60060-8
- Bernd-Dieter Meier: Criminal law sanctions , 2nd edition. Springer, Berlin 2006, ISBN 3-540-41268-9
- Steffen Rittig: Basics of Sanctions Law , Cuvillier Verlag, Göttingen 2012, ISBN 978-3-95404-212-8
- Franz Streng: Criminal law sanctions , 2nd edition. Kohlhammer, Stuttgart 2002, ISBN 3-17-015789-2