Criminal Justice and the Ultima Ratio Principle: Need for Limitation, Exploration and Consideration

Abstract

Overuse of the criminal justice system is a serious matter. It may present itself in different forms. Overuse of criminalization may mean that too much conduct is criminalized without necessity. Overuse of prosecution may present itself if too many violations of criminal offences are prosecuted, while in certain individual cases or specific categories of cases it would be more effective, fairer, more efficient or otherwise desirable to refrain from prosecution and/or to apply alternative means, such as negotiating justice or administrative fines. Finally, the criminal justice system can be overused through the application and execution of too many or too severe prison sentences. The present article explores a principle which can serve as a fundament for a substantive approach to help to solve the problem of overuse, i.e. the ultima ratio principle, ultimum remedium principle or the principle of restraint. This fundamental criminal justice principle holds that criminal law is and must be regarded as a so-called last remedy. This first of all means that conduct should only be criminalized and the criminal justice system only be applied as a last resort, i.e. if all other avenues that are less coercive than criminal law fail to sufficiently forestall or repress the harmful conduct. Moreover, the ultima ratio principle implies that the harmful conduct should be sufficiently serious to justify that the conduct is brought within the scope of the criminal justice system. The principle acknowledges that the criminal justice system should (principally) and can (practically) only offer fragmentary protection. The principle is of significance for both the question of what the scope of substantive criminal law should be (relevant for the legislator) and as to what – in case of criminal conduct – the limits ought to be to the applicability and application of criminal procedure (relevant for the legislator, police, prosecution and courts) and to imprisonment (relevant for the prosecution, courts and authorities that are responsible for the execution of sentences). After having discussed the nature of the principle, the article continues to explain how four aspects of the ultima ratio principle find firm ground in both national and international positive law that is binding. It furthermore argues that there are several interests that demand reasonable rather than absolute use of the ultima ratio principle. The article discusses the relevance of the principle relative to criminalisation, prosecution and sentencing on the basis of the other chapters in the book to which part of this article serves as a synthesising introduction. It is concluded that the ultima ratio principle is significant in countering overuse because it entails requirements of limitation, of exploration and of consideration.

Keywords: criminal justice, overuse, criminalization, prosecution, sentencing, fundamental principles