THE ALLURE OF IMPOSING PENALTIES

There is a road I pass at least once every day. It runs through the forest on both sides, meaning there are no residential areas nearby. It is a divided highway with wire fencing between the directions, eight lanes in total—four in each direction including the emergency lane—and stretches nearly one kilometer in a straight line. If you pay close attention, you can see a sign at the beginning of the road near the overpass indicating that the speed limit is 50 km/h. However, it is impossible to go at 50 km/h without disrupting the flow of traffic. From time to time, people receive painful traffic fines here.

Recently, a colleague called me. In customs declarations for imported aircraft and aircraft parts, the location of the goods had been declared as “… warehouse,” but in fact, the status of that location was not a warehouse but a temporary storage facility. After all, the goods were on the airport apron—where else could you place an aircraft? The customs authority went back, identified all related past declarations in the system, and issued separate fines for each of nearly 130 declarations.

These two examples made me reflect on the necessity of imposing penalties. I am not saying that penalties are unnecessary. There has been a long-debated purpose to imposing penalties for centuries. However, it is certain that penalties which are inconsistent with their purpose, or sabotage the intention of the legislator, fail to achieve their aim. Such penalties foster three dangerous perceptions:

1. That the state is an institution which punishes its citizens unnecessarily, or that it is in conflict with its citizens,
2. That the state views penalties merely as a source of public revenue,
3. That the state sets traps for its own citizens.

Just as failing to impose a penalty for an action that requires punishment is unjust in terms of the “perception of impunity,” so too is it unjust to impose a penalty for a simple matter that does not require punishment, in a way that undermines the “principle of legality of penalties.” Therefore, applying penalties only when they are truly warranted, and in proportion, is essential for justice to be served.

THE PURPOSE OF PENALTY

Why should a person be punished for their actions? The purpose of punishment is to ensure justice by holding offenders accountable for their actions, to protect society from crime, and to prevent future offenses. When imposing a penalty, one or more of the following purposes may be pursued:

• Deterrence: To instill fear in order to dissuade both the offender and society from committing future crimes. Deterring the individual offender from reoffending is called specific deterrence. Using the punishment of one person as an example to discourage others is called general deterrence.
• Isolation: To remove the offender from society, thereby eliminating the possibility of further offenses. This is especially effective for crimes with high recidivism rates. However, long sentences for young offenders are debated, as the natural decline in criminal tendencies with age may render such punishments unnecessary.
• Rehabilitation: To change the offender’s behavior and prevent reoffending. This may involve education programs, treatment centers, and counseling. Research shows that rehabilitation reduces recidivism.
• Retribution: To ensure the offender receives what they deserve for their wrongdoing, satisfying the sense of justice. This punishment is based on the principle of “an eye for an eye, a tooth for a tooth,” and is particularly applied in cases of serious crimes.
• Restitution: To compensate the victim financially for harm suffered, such as physical injury, property loss, or in rare cases, emotional damage. It can also cover litigation expenses.

The legislator determines penalties based on one or more of these aims. Specifically, administrative fines are usually intended for deterrence and rehabilitation, and sometimes restitution. However, the interpretation of legal texts is as important as the texts themselves.

LEGAL INTERPRETATION

Some legal rules may not be sufficiently clear in terms of the actions to which they apply. Therefore, the text of the legal rule may need to be examined to determine its meaning. This necessity leads us to legal interpretation, which is the process of analyzing the legal rule applicable to a case.

The interpreter reads the rule’s text and tries to derive meaning from it. Interpretation may vary from person to person and be understood differently by different individuals. Thus, the personal nature of interpretation comes to the fore. While interpretations are not binding, they may serve as guidance to the authority applying the rule.

Depending on who interprets, interpretation may take on different names.

METHODS OF INTERPRETATION

• Literal interpretation: Based on the wording of the law. This method considers words, sentences, punctuation, and syntax. Grammar rules and word meanings are crucial.
• Historical interpretation: This method seeks the legislator’s intent at the time of enactment, the purpose and objective they pursued. It goes beyond the text and looks into the historical background.
• Systematic interpretation: Considers the section of the law in which the rule is placed, its relation to other provisions, and the overall structure of the law. Instead of interpreting rules individually, the aim is to interpret them as part of a coherent whole.
• Teleological interpretation: Also called purposive interpretation, this method identifies the legislator’s aim while considering the conditions at the time of enactment. Unlike historical interpretation, it takes into account the circumstances of that period in addition to the legislator’s intent.
• Conceptual interpretation: Argues that interpretation should proceed from the abstract content of the rule, which is determined through legal concepts developed by legal science (such as debt, contract, performance, annulment, withdrawal, etc.).
• Balancing of interests method: Seeks to adapt the law to social developments. Every legal dispute involves a conflict of interests. The interpreter should balance these interests so that both parties’ rights are respected.

CORRECT APPLICATION OF LEGISLATION

No matter the perspective taken or the method of interpretation applied, the legislator’s intent must not be ignored. A practice of imposing penalties that contradicts the intended purpose, or that hunts for technicalities merely to issue fines, cannot be justified by the aims of punishment or by interpretation.

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