Human Rights and Criminalization

Abstract

The mutual connection of criminalization and human rights unjustifiably remains one of poorly researched areas in Russian science. Meanwhile, the development of the legal doctrine of rights has been, and is still now, influencing the lawmaking practice of recognizing actions as criminal. Today, it is possible to clearly identify two principally different models of criminalization (and, on the whole, models of criminal law) depending on the direction and results of human rights influence on it. The first model is liberal criminal law. Within its framework, human rights were primarily a guarantee of individual freedom of a person against unjustified criminalization ambitions of the state, this model was aimed at hindering criminalization processes, at setting boundaries for the states subjective right to exercise punishment. The second model - authoritative criminal law - began its development with the recognition that the state has positive liabilities to protect human rights, it acts today as a theoretical basis for the development of super-criminalization processes, justified by the necessity of comprehensive protection of human rights. There is a clear correlation between these models and the historical stages of the development of criminal law, the political and legal ideas of legal and social state. In todays situation, there appears a dialectic contradiction between these models that should be resolved by synthesizing the best achievements of each of them. This synthesis should be based on the idea of combining, firstly, the ideas that the state has a liability to protect human rights by criminal law measures and, secondly, the ideas that criminal law is the last resort of the state and its use is only justified if it has been proven that other legal measures of protecting human rights are not effective.