RG 1: Models of criminal imputation and behavioural sciences – Knowledge of the person in Philosophy and in the Sciences and criminal liability

  • Emotions and Crime II: mind, construction of the self and criminal liability (philosophy of the mind, psychology of the mind, neurosciences and criminal law, artificial intelligence and criminal liability)
    To be carried out by: Group I
    Method: organisation of a seminar, international conference and publication of the proceedings.
    Duration: 24 months beginning around June 2015
  • Logical structures of Imputation: Causality and intentionality (relationship with mathematics, logic and the philosophy of language)
    To be carried out by: Group I
    Method: organisation of a seminar, international conference and publication of the proceedings.
    Duration: 24 months beginning around May 2016
  • Law, Probability and Risk: Causality and intentionality (relationship with mathematics, logic and the philosophy of language)
    To be carried out by: Group I
    Method: organisation of a seminar, international conference and publication of the proceedings.
    Duration: 24 months beginning around May 2016
  • Philosophy of Science, Technology, Arts and Society (theory of Justice and the problem of truth)
    To be carried out by: Group I
    Method: Participation in the multidisciplinary PhD course in collaboration with the Philosophy of Sciences Research Centre of the University of Lisbon.
    Duration: 36 months beginning in 2014.
  • Medicine and Criminal Justice – I (mental health, changes in behaviour and health technologies, problems of bioethics)
    To be carried out by: Group I
    Method: Organisation of postgraduate courses and a PhD course in conjunction with the Faculty of Medicine of the University of Lisbon.
    Duration: 60 months beginning in 2014.

RG 2: Theory of Society and Criminal Liability

  • Criminal Law and Cultural Diversity: European and African perspectives
    To be carried out by: Group I
    Method: syllabus for a PhD subject, organisation of a seminar, international conference and publication of the proceedings.
    Duration: 36 months beginning around October 2014  
  • Medicine and criminal justice
    To be carried out by: Group I
    Method: Organisation of postgraduate courses and a PhD course in conjunction with the Faculty of Medicine of the University of Lisbon.
    Duration: 60 months beginning in 2014.
  • Economic and Financial Criminal Law – new contributions from the theory of society for modelling criminal reaction
    To be carried out by: Group II
    Method: Organisation of postgraduate courses, conferences and publication of the proceedings and studies.
    Duration: 24 months beginning around May 2014.
  • Social exclusion and inclusion as a guide to comparative criminal policy
    To be carried out by: Group II
    Method: research in partnership with the Andalusian Interuniversitarian Institute of Malaga.
    Duration: 24 months beginning around December 2014.
  • Law of Regulatory Authorities
    To be carried out by: Group II
    Method: organisation of postgraduate courses, with seminars and publication of the proceedings, in conjunction with IDEFF, IVM and AdC.
    Duration: 24 months beginning around May 2016.
  • Distinction between criminal liability and political responsibility
    To be carried out by: Group II
    Method: organisation of postgraduate, Masters and PhD courses, publication of proceedings and studies, in conjunction with the Council of Europe’s Venice Commission.
    Duration: 36 months beginning around January 2014.
  • Maltreatment, domestic violence, and abuse of children and the elderly.
    To be carried out by: Group II
    Method: research in conjunction with APAV and other social institutions providing support for the victims of maltreatment and domestic violence, with a final conference and publication of studies and proceedings.
    Duration: 24 months beginning around January 2017.

RG 3: Internationalisation of Criminal Law and Criminal Procedure and International Criminal Law

  • Think tank on mutual legal assistance in criminal matters in the European Union I: impact analysis and implementation of EU Criminal Law.
    To be carried out by: Group III
    Method: publication of studies.
    Duration: 24 months beginning around September 2015.
  • International Criminal Law and International Criminal Court I/II.
    Publication of the proceedings of an international conference on International Criminal Law, the International Criminal Court and the Perspective of the Portuguese-speaking African countries II.
    Duration: 48 months beginning around January 2014.
  • European Criminal Law and Criminal Procedure Law
    Postgraduate course with a visit to the European Court of Human Rights.
    To be carried out by: Group III.
    Duration: 24 months beginning around October 2015.
  • Comparative Criminal Procedure
    Visiting scholars programmes for intensive courses and conferences on Criminal Procedure Law.
    To be carried out by: Group III.
    Duration: 48 months beginning around January 2014.
  • New Trends in criminal investigation and evidence law
    To be carried out by: Group III.
    Method: International conference with publication of the proceedings.
    Duration: 48 months beginning around June 2014.

Project HERCULES – Ratio decidendi: towards a criminal judicial evaluation model

This research project aims at the comprehension of how the relations between the national jurisprudence, the normative system of criminal liability and the legal doctrine are reflected directly in the decision of concrete cases and indirectly in the development of systematic and normative decision guidelines. We are faced with two types of challenges: first the design of a methodology and critical evaluation parameters which allow the conclusion as to how the criminal system is developed through judicial decisions; second the application of these analysis parameters to other normative systems. The heart of the problem resides in the fact that empirically the formal judicial discourse employs doctrinal quotes and references as mere etiquettes or coverage for the real ratio decidendi, often differing from academic thought. The aim is to uncover systematically these divergences and hidden criteria which represent an independent development of the norm and the doctrine in the concretization of the criminal system through judicial decisions. In terms of methodology, the design of criminal judicial evaluation model will be obtained by a joint effort of thematic working groups which will systematically analyse case-law clusters to obtain concrete and thematic judicial evaluation models (tentative evaluation model). Simultaneously, case-law clusters from different normative systems like the German or the Spanish will also be analysed. In principle, each thematic case cluster will form a working group which is assigned to one researcher. Due to work load and human resource allocation, the working groups will be allocated in time, respecting the two steps of Ratio decidendi: towards a criminal judicial evaluation model. The several working groups will deal with the different problems, core topics of criminal theory and auxiliary topics. Serving as a reference, regarding the first thematic clusters, this will be done in the following way:

a) Constitutional criminal law: The aim of the present working group is to analyse the penumbral areas convened by the interpretation of the constitutional imperative of criminal legality. We will analyse the judicial argumentation and justification method regarding the most controversial ramifications of the legality principle. During this scrutiny, we will start from a text-norm assessment, and then assess critically the interpretative arguments (meta-textual interpretation), such as arguments stemming from the legal doctrine. This will allow us to: 1) establish a judicial evaluation model; 2) draw conclusions as to the concrete validity of the interpretative solutions and, correlatively, as to the intra-systematic coherence.

b) Legal methodology: Here, a deeper analysis, capable of identifying the essential judicial decision parameters as well as the forms and rules of interpretative argumentation, is sought. The aim of this final judicial justification model will be to guarantee internal (rational argumentation) and external (rational acceptability – plausibility) validity. We will test whether such validity might be obtained through the possibility to reconduct the justification criteria to the premises of rational discourse which flow from the basic principles of rationality.

c) Objective imputation and justification grounds: Objective imputation is the procedure by which one looks if na harmful event may be attributed to an individual?s conduct. For decades, jurisprudence developed a set of arguments courts are supposed to attend when deciding an objective imputation case. But there’s rarely agreement about the way an important rule or principle in this field shall be understood. Justification grounds are reasons for a conduct to be exceptionally permitted, even though it would normally be considered a criminal offense. Self-defense, for instance, allows an individual to strike an aggressor. There are multiple principles and rules one must consider when verifying if a justification ground applies in a concrete situation. Some of them are presented by legal theorists and eventually developed by the courts. Others are created by court decisions. The aim of this working group is to examine the way courts develop such rules and principles and to understand if and how court decisions end up creating a new set of practical guidelines (then followed by other courts), as well as figure out if one may talk of a proper criminal responsibility system stemming from these decisions.

d) Dolus: This working group will focus on the analysis of decisions of the Portuguese criminal courts regarding subjective liability. The Criminal Law dogmatic was always concerned with the distinction between dolus eventualis and conscious negligence. The traditional criteria used by the doctrine is established on a idea of will, based on the voluntary element of dolus, since the cognitive element is the same both in dolus eventualis and conscious negligence. Legal theory appeals to different formula such as to take the risk of injury seriously. In this kind of formula one may still recognise the importance of the will in dolus, even when this element is combined with a logic of criminal politics, such as prevention. Despite these positions, the newest doctrinal thesis seem to reject the will element in dolus. This leads to a construction of a pure normative vision of dolus. Our aim is to analyse the judicial solutions concerning the distinctions between the figures of dolus eventualis and conscious negligence, which criteria are used by courts and how they justify their decisions, comparing it with the legal system of criminal responsibility and the legal theory thought.

e) Error about the wrongdoing: This working group will focus on the analysis of court decisions regarding an element of the category of guilt, the consciousness of the wrongdoing. If the agent is not aware of the wrongdoing of his conduct, he is in error. This is an error of evaluation. Currently the traditional distinction of mistake of fact and mistake of law, as well the idea of error iuris nocet, seem outdated. Most of the doctrine recognizes the error about wrongdoing, nevertheless this kind of error can only exclude guilt in some situations. In Portuguese criminal code the error about wrongdoing excludes guilt if the error cannot be deemed reprehensible. If the error is reprehensible we can only attenuate the sanction. After the analysis of the solutions of jurisprudence, our intent is discover if these solutions are compatible with the solutions of the legal system of criminal liability and with the criteria of the traditional doctrine, or if jurisprudence is open to new discourses about guilt, focusing on the emotional ethical values of the person and abandoning the figure of the average man, which represents a kind of arbitrary thought about values.

f) Culpability: This working group seeks to understand what kind of evaluation and grounding parameters are used by criminal case-law to solve the problems regarding: who must be acquitted due to insanity; who has his understanding or determination according to the wrongfulness deeply diminished; who may be acquitted by a cause of excuse. It aims to identify whether and how the conceptions developed by the doctrine and expressed in criminal law are received by the courts. The issue of the reciprocal influence between Law and sciences like Psychology or Psychiatry takes on a leading role, as the way judges interact with the experts is not precise. It?ll be sought to understand how the courts monitor the development of these sciences and receive it in their rationale and relationship with the experts. The problem of insanity is a central issue in the theme of culpability and its connection with the concept of freewill and all the basis of the right to punish. Ultimately, it is intended to comprehend how the courts respond to the following questions: What is a psychic anomaly? What makes one unable to assess the wrongfulness of the fact, or to be determined according to that assessment? Is this an exclusion of guilt or an obstacle to the its verification? Who decides if the agent is culpable? Why is he not the punished? Another problem is the one about the defendants who, despite having the ability to understand the wrongfulness of his act, or to determine his action according to it, have this ability deeply diminished due to a mental disorder. Courts developed this concept in order (apparently) to provide a fair solution to “difficult” cases concerning the boundaries between culpability and non-culpability. Finally, we intend to study the way the Portuguese courts look to the different causes of excuse.

g) Omission: This working group will focus on the analysis of the Portuguese court`s decisions of the Criminal Law Theory regarding Omission. This requires, first and foremost, that we find the meaning of action in Criminal Law. Then, we will be capable of discerning a distinction between action strictu sensu and omission as aspects of the wider concept of action. The limits are of the upmost importance because responsibility for an omission requires a legal duty that personally binds the agent and in these cases mitigation of the sentence is allowed. We shall also deal with the distinction between omission as defined by the law or pure omission and impure omission. In this respect, it is imperative to understand the jurisdiction of the article comparing omission to action, as foreseen in the first segment of article 10 of the Penal Code, just as it is to understand the meaning of the exception provided in the final part of that norm, according to which the equivalence of omission to action will be denied, if such is the intent of the legislator. We will also examine the sources of assurance of legal duty which the legislator subdues according to the penal relevance of impure omission.

Project HYPATIA – Gender Violence: Exception or Culture?

Hypatia consists of a pluridisciplinary approach to Gender Violence (GV) with a risk of lethality in the Portuguese context centered on the retrospective analysis of closed cases of homicide (and closely related crimes) perpetrated within intimate partnership violence (IPV) in which the aggressor identifies him or herself with the male gender. The analysis includes a control group of sentences pertaining to homicides (and closely related crimes) perpetrated within intimate partnership violence (IPV) in which the aggressor identifies him or herself with the female gender. The research project has the following main goals: (1) critical review of the risk assessment instruments used in Portugal given the results of the characterization of the IPV occurred between 2005 and 2015; (2) evaluation of how the risk of aggression and lethality has been perceived, assessed and prevented by the police forces and judicial operators in judgments in cases involving a lethal outcome in the gender violence context, taking into account the socio-economic, cultural, age, sex, gender and sexual orientation factors (decision maker, victim and aggressor) that may have conditioned this perception and assessment of any significant discrepancies between the victim´s risk perception and the institutional operators? perceptions; (3) proposal of adaptations or new instruments of assessment of the risk of lethality within IPV based on the characterization arising from the cases analyzed; (4) evaluation the impact of gender stereotypes on the jurisprudential decision of homicides and related crimes within IPV; (5) evaluation of whether there has been appropriate cooperation and communication between the criminal court and family courts, if the regulation of parental responsibilities in such cases was determined by gender stereotypes and if avoided secondary victimization; (6) propose legal and procedural measures aimed at (a) prevention and repression of genderbased violence with a fatal outcome; (b) the immediate protection of the victim (and children); (c) understanding by the various judicial authorities of the impact of gender perceptions and stereotypes on addressing gender violence and homicides in the context of IPV; (d) minimizing undue dismissal of criminal proceedings, unjustified suspensions of criminal proceedings or improper suspension of the imprisonment execution sentence; and (e) improving sentence effectiveness and recidivism risk after serving sentence by the convicted person.

Project THESEUS – Crimes Against the Mind

The Research Project ‘Crimes Against the Mind’ will operate in three distinct stages. Its immediate goal is to link cutting-edge research in neurosciences and mind-brain-body debates to the conceptual and methodological toolsnused in Legal Science. Dependent upon that goal, another arises: a legislative (non-formal) proposal. The first stage corresponds to the scientific and philosophical reflection of the empirical and conceptual relations between body, brain and mind, namely, the discussion of the autonomy of the neurological relative to the corporal and of the mental relative to the neurological. It is divided into two parts: i) the scientific inquiry (of the empirical relations between body, brain and mind); ii) the philosophical inquiry (of the conceptual relations between body, brain and mind). From the point of view of scientific knowledge contribution to the problems this research team intends to tackle, there are three broad groups of questions to address:

1) Function and status of the brain in organisms: is the brain a mere organ? Or a vital organ? Or is it even more than na organ? The answer to these questions is valuable evidence to inquire to what extent is the brain an autonomous entity relative to the body and, consequently, worthy of special legal protection. New questions arise, then: is it possible for a brain to exist without a body? Is it possible for a natural brain to be attach to an entirely artificial body? Evidence gathered by the research team’s neurologists (Prof. Miguel Viana Baptista and Drª Luísa Alves) is essential. On the other hand, the interaction between brain and machine (use of brain-machine interface techniques), which may shed some light on this problem, is the field of expertise of part of the ‘Crimes Against the Mind’ Research Project’s team (Dr. Amílcar Silva dos Santos, with advice from Prof. Mikhail Lebedev, international adviser – CV available at https://sites.google.com/site/lebedevneuro/curriculum-vitae).

2) Personal identity: is the self in the brain? If that is the case, how and to what extent neurological interventions change the self? What, then, is the essence of the self? Is the self in memory or in our internal history? Or is it simply a spatio-temporal nexus between the subject?s experiences? These questions are very present in some of the research team member?s work (Profª. Adriana Silva Graça, Dr. Ricardo Tavares da Silva and Dr. Thiago Paiva). And does dementia erase the self? What can Neuropsychology tell us about this? This will be the contribution of the research team’s neuropsychologists (Prof. Filipa Ribeiro).

3) Brain manipulation: mental manipulation? To what extent drug administration alter mental states? Can the representational content be altered? Can the content of emotions be altered? This is Neuroscience?s quintessential field of research, closely followed by Neuroethics and Neurolaw given its normative and normative implications. There are essentially four kinds of possible brain intervention: pharmacological (for example, the use of psychic stimulants for the treatment of neuro epilepsy to increase the level of dopamine in the brain, with the consequent improvement of certain cognitive and operational capacities); by brain stimulation (e.g, transcranial magnetic stimulation, performed before the onset of an activity that causes suffering or discomfort, such as intensive training of high-level athletes or prolonged study of college students, since such stimulation creates a sense of well-being); memory manipulation (e.g, through the use of certain medications, it is possible to manipulate memory engrams and make the subject forget or remember more easily from an event); through neural cells manipulation. Some of the research team member’s work is valuable concerning the relationship between the possibilities of Neuroscience and its normative constrains by Neurolaw (Profª Fernanda Palma, Prof. Demétrio Crespo and Dr. João Viana, with advice from Prof. Neil and Levy Prof. Dennis Patterson, also international advisers for the project – CV available at http://www.neuroethics.ox.ac.uk/our_members/neil_levy and http://www.eui.eu/DepartmentsAndCentres/Law/People/Professors/Patterson.aspx -, and from Portuguese advisers Prof. Eduardo Ducla Soares and Profª Ana Maria Sebastião, head of the Mind-Brain College of ULisboa – https://imm.medicina.ulisboa.pt/pt/investigacao/ laboratorios/sebastiao-ana-lab/). From the point of view of philosophical knowledge contribution, it is necessary to relate the questions posed above with the so-called ‘mind-body problem’. Traditionally, the debate takes place between physicalism and dualism.

Among the main arguments pro dualism are Descartes’s modal argument, revisited by Chalmers’ zombie argument, and according to which it is possible or conceivable (or imaginable) to exist fully functional minds without bodies (Descartes) or totally functional bodies without minds (Chalmers); however, such arguments have been contested. A usual strategy used by dualists is to appeal to qualia, i.e., for example, the difference between the neurological state associated with pain and what is it to feel pain (Nagel famous question ‘How is it like to be a bat’?). Physicalism also has its arguments: it is argued that even if we try, we do not cease to think of them as a kind of body and that is a fallacy to convert the first person perspective intobthe third person perspective. The philosophical research to be carried out by the team will benefit from, on the one hand, specialized researchers  (Profª Adriana Silva Graça and Dr. Ricardo Tavares da Silva), and, on the other hand, the experience in organizing and participating in events on such topics, such as the International Conferences ‘Emotions and Crime’ and ‘Mind and Responsibility’, and from teaching and research work done in Philosophy and Philosophy of Law (Profª Fernanda Palma – also a member of the Mind-Brain College of ULisboa -, Prof. Demétrio Crespo and Dr. João Viana, with advice from Prof. Dennis Patterson). The second stage corresponds to the legal discussion, for which a large part of the team is particularly suitable, given its institutional and professional links (Profª Fernanda Palma, Prof. Demétrio Crespo, Dr. João Viana, Dr. Wagner Marteleto). Depending on the information collected during the first stage of the project, the corresponding criminal implications should be withdrawn: the shared scientific-philosophical knowledge in the previous stage will be applied, which will be a rare opportunity to verify the practical-legal relevance of research lines of predominantly theoreticalscientific nature. And of course Prof. Bublitz’s work is the main referece for this Project.

The main problem is this: should legal systems add to their list of legal goods the mind (or start to seriously protect such good)? More precisely, is the mind, by itself, worthy of criminal enforcement? Does it make sense to speak of crimes against the mind, in the sense of a criminal type not subsumed in any other criminal type? Are there any conceivable mental damages that do not already constitute brain damages? Autonomy of the type ‘crime against the mind’ will, therefore, be discussed relative to body or physical injuries. It is necessary to assess whether criminal enforcement of neurological/mental integrity should constitute an extension of criminal enforcement of physical integrity or a new type of criminal enforcement. If mental damages are nothing more that neurological damages, then there is no reason to criminally enforce mental integrity. If, for example, the part of the brain dedicated to memory is punctured, is the memory loss damage only the perforation damage? Is there one or two harms? What if, instead, the loss of memory is caused by the administration of a drug? Is there any physical (neurological) harm? There are circumstances, it seems, in which the mental injury is high and the physical injury is minimal (some cases of drug administration) or even nonexistent. Particularly, there are circumstances of purely psychic maltreatment in social or private contexts, like bullying, stalking, a considerable part of the of the widely reported ‘blue whale game’, etc.. Should the Law punish cognitive damages and emotional damages, regardless causation of any neurological damage?

The third stage corresponds to the implementation of the conclusions reached in the previous stages in the form of a legislative project (a non-formal legislative proposal). Therefore, the performance of this third stage is dependente on the relevance of the ‘mental injuries’ type autonomy and, as such, depends on the direction of the conclusions reached in the previous stages, namely regarding the ontological/conceptual autonomy of the mental, the availability of a reasonable theory of mind and the necessity of the criminal protection considering its ultima ratio character. The exact legal framework is something to be discussed at the time, notwithstanding the work done in the second stage. An interdisciplinary methodological approach will be favored: the convergence of Biology, Neuroscience, Psychology, Cognitive Science, Philosophy (namely, Philosophy of Mind and Philosophy of Law) and Law is sought, each of these disciplines contributing with its methods and concepts. This convergence is, first of all, necessary given the nature of the object and problems and, secondly, valuable as all interdisciplinary work is. Regular seminars will be held in each of the three project stages concerned, in order to coordinate the work to be carried out and the objectives to be achieved. As the results emerge, researches will be encouraged to publish in the specialty journals, which will also contribute to the stimulation of the academic debate. Each stage will be completed with a conference (the third conference will consist of the public presentation of the non-formal legislative proposal).

Fairness in Criminal Appeal

Fairness in Criminal Appeal is a research project initially developed in a seminar held between July 2021 and June 2022 at CIDPCC. Our research team was supervised by Criminal Law Professor Helena Morão from CIDPCC and composed by the CIDPCC researchers António Brito Neves, Catarina Abegão Alves, Mafalda Moura Melim, Nuno Igreja Matos, Ricardo Tavares da Silva, Rita do Rosário, and Tiago Geraldo. As the project unfolded, Procedure Law Professor Antonio Mª Lara López (Department of Political Science, International Public Law and Procedure Law, Faculty of Law, Málaga University, Spain) and Criminal Procedure Law Professor Massimo Ceresa-Gastaldo (Department of Law, Bocconi University, Milan, Italy) also joined the team.

The aim of Fairness in Criminal Appeal is to address the European Court of Human Rights’ fairness standards in criminal appeal, filling a gap in this less researched area of studies. Based on a fair trial immediacy requirement, the Court has found several violations of Article 6 of the European Convention on Human Rights at the appellate level by at least eighteen States of the Council of Europe in a vast array of cases, particularly in contexts of first instance acquittals overturning and of sentences increasing on appeal.
On the one hand, this project critically engages this case-law with the law revisions it has recently inspired in European countries, as well as with the critiques and difficulties that it continues to raise. On the other hand, it interweaves insight from criminal procedure theory with new discoveries in the field of cognitive sciences (neuroscience of memory, philosophy of knowledge, AI), shedding an interdisciplinary light on the (in)adequacy and limits of the Strasbourg Court’s jurisprudence.
We focus, thus, in debating the most important and unexplored issues of fair trial in criminal appeal; comprehensively reviewing the ECtHR case-law on appeal immediacy, examining the challenges it creates to lawmaking; and intersecting criminal procedure theory with memory neuroscience, philosophy of knowledge and AI to develop a new approach on appeal fairness.

Our research results are published in Helena Morão/Ricardo Tavares da Silva (eds.), Fairness in Criminal Appeal – A Critical and Interdisciplinary Analysis of the ECtHR Case-Law, Springer, 2023. More information here.
We continue to follow the ECtHR jurisprudence on this subject, as well as the relevant academic literature, to regularly update our findings.

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