Italy’s Supreme Court of Cassation has ruled that the theft of a sausage and a piece of cheese, committed by a homeless man in 2011, cannot be considered a criminal offence because the man was in dire need of food.

The Guardian, 3 May

In 1894, Anatole France mentioned in his novel The Red Lily that the law, in its majestic equality, forbids both the rich and the poor from sleeping under bridges, begging in the streets, and stealing bread. However, in a judgment published on 2 May, the Italian Court of Cassation demonstrated that Themis does not necessarily have to be blind. In the case regarding the theft of two pieces of cheese and a pack of sausages (totalling 4 euros), the court ruled that the act was not criminal in nature because the defendant had acted out of necessity due to an urgent and vital need for food.

In Latvia, too, Article 32 of the Criminal Law does not provide for criminal liability in cases of extreme necessity—if a person performs an action to prevent harm threatening the interests of the state or society, the rights of that person or another person, as well as these or other people, provided that the relevant harm could not be prevented in the given circumstances by other means and that the harm caused is less than the harm prevented. A similar provision can be found in the Latvian Administrative Violations Code. The practice of applying these articles is not extensive (possibly the most interesting cases are closed before reaching court), but it does exist. For example, in one case, the court ruled that a person should not be held administratively liable for parking their car in a prohibited place to help their mother, who had suffered a heart attack. However, in another case, the court found that the defendant had the opportunity to call an ambulance or ask neighbours to take the patient to a medical facility, and therefore should not have been driving under the influence of alcohol. As can be seen, extreme necessity is quite difficult to define in the abstract—it depends on the circumstances of the case. It must exist objectively; it is a “need,” not a “weakness” or a “passion.” If a crime is committed out of greed or under the influence of alcohol or drugs, it not only fails to exclude but rather intensifies liability.

Civil law is also an institution that allows a court to avoid an unfair result that a formal application of the law might lead to. Article 1 of the Civil Law stipulates that rights must be exercised and obligations fulfilled in good conscience. The principle of justice is rooted in exactly this. For example, a creditor may have the right to sell a mortgaged car due to a late payment. However, if the debtor wishes to repay the loan with a delay of a few days and recover the car, which has not yet been sold, but the creditor refuses to accept it and subsequently sells the property, such action is not in good faith.

The understanding of justice changes over time. Phenomena that were previously considered natural by both society and the law become unacceptable—and vice versa. For example, in 1971, the US Supreme Court ruled that refusing to register same-sex marriages was consistent with the US Constitution, but in 2015 it revised its approach—even though the text of the Constitution remained unchanged. Another example: in the 90s, the internet was considered almost a luxury item, but now courts are increasingly prepared to recognise that the ability to access the internet is a means of exercising human rights and even a human right in itself. In January of this year, the European Court of Human Rights ruled that Estonia had violated the right to receive information by denying a prisoner access to certain websites.

What is the engine of this evolution? Changes in society play a major role—the court cannot isolate itself from it and ignore changing notions of what is permissible and what is not. But in many cases, it acts even before society is ready to codify a particular finding in the text of the law. Here, various legal concepts come to the rescue, first and foremost—human dignity.

As is known, Article 1 of the Universal Declaration of Human Rights states that all human beings are born free and equal in dignity and rights. The mention of dignity here is largely linked to the influence of the Catholic Church’s social teaching—for example, Jacques Maritain was actively involved in the creation of the declaration. The reference to human dignity is included in many human rights documents; Article 95 of the Constitution also stipulates that the state protects human honour and dignity. This reference is not merely declarative; it helps to resolve specific cases and explains why practices previously considered normal are no longer acceptable. For example, a person complained to the UN Human Rights Committee that their rights were violated by France’s ban on “dwarf tossing”—peculiar shows in which small-statured people are thrown by hand in an attempt to throw them as far as possible. The committee decided that the ban had a legitimate objective—to protect human dignity.

Human dignity is also one of the cornerstones of the European Union. Article 1 of the EU Charter of Fundamental Rights states that human dignity is inviolable and must be respected and protected. Here too, human dignity is so important that it must be given priority even when compared with very significant economic interests. A company in Germany opened a “laserodrome” based on a British franchise, where people played war with pistol-like laser sighting devices. The police banned this game, and the court upheld the ban, pointing out that human dignity is a constitutional principle that can be harmed by a frivolous attitude towards everyone’s fundamental right to be recognised and respected, and such an attitude can arise or be reinforced by engaging in simulated acts of violence in a game. However, the ban affected the freedom to provide services and the free movement of goods in the EU, as British business interests also suffered. But the European Court of Justice ruled that EU law does not prohibit the banning of economic activities on the grounds of an affront to human dignity when a game simulating human murder is used for commercial purposes.

Just like extreme necessity, the concept of human dignity is difficult to define and very variously understood—this is evidenced by the fact that proponents of different views in discussions about abortion and euthanasia all refer to human dignity. But in the hands of the courts, this concept is undoubtedly a very good tool to apply when it is clear that the old order is no longer compatible with the modern understanding of the human being. Perhaps in the days of Anatole France, society’s understanding of right and wrong allowed for the harsh punishment of a hungry person for the theft of cheese and sausages, but today the understanding must be different. Likewise, in other matters—human dignity is also pointed to by the Convention on Preventing and Combating Violence against Women and Domestic Violence (the Istanbul Convention), the signing of which sparked heated discussions in Latvia. Indeed, now human dignity does not tolerate things that seemed self-evident until quite recently—for example, disciplining a wife with a fist or sexual harassment in the workplace.
The author is a legal adviser to the Greens/EFA group in the European Parliament, but this commentary reflects the author's opinion and should not be associated with the European Parliament or the Greens/EFA group.
The article was first published in the June 2016 issue of Rīgas Laiks magazine