Essays of Faculty of Law University of Pécs Yearbook of 2014

(...) As the pre-requisite for being taken under legal authority, the various phenomena require assessment. Human conducts regarded as harmful for the society appear in various life situations and produce a very colourful image. It is a crucial question, however, how the legislature in a given area evaluates and legally manages the effects of harmful conducts on an imaginary harm scale. In our legal system conducts deemed as culpable are managed by the tools of Criminal Law. The scope of punishable behaviour types may be modified in compliance with the continuously changing environment. Accordingly, it is a permanent duty to be aware of the fact that Criminal Law has to function as a sanctioning cornerstone in the legal system. The study examines the requirement of ultima ratio (last resort) as a criteria derived from constitutional Criminal Law. It focuses on the recent decision of the Constitutional Court in the field of Criminal Law that interprets the last resort role of Criminal Law in connection with the use of totalitarian symbols like the five-pointed red star. This study focuses on a rather neglected aspect of Criminal Law: its ultima ratio (last resort) nature. The everyday meaning of the Latin term “ultima ratio” is ’’last try” or ’’last argument”. This paper will outline how this principle manifests itself in the legal dogmatic of substantive Criminal Law and what significance it has in the Hungarian legal system, in which Criminal Law is taken into consideration only as a last resort among all legal tools. The punitive power of the state can be disclosed on the basis of the rigour of sanctions of the Criminal Code. The rules of this branch of law are able to legally constrain one of the most precious values of humankind, i.e. freedom, thus it is highly recommended to give it profound considerations while determining its limits and the extent to which the state may interfere in this value. The issue of “ultima ratio” can arise quite frequently, whether it applies to the qualification of a behaviour type as culpable (punishable), or to the scale of penalty for a particular crime becoming more austere, or to the drafting of amendments to statues affecting the scope of punitive actions.