Tímarit lögfræðinga - 01.10.1989, Page 19

this country too, where so many young people do this kind of job in
their vacation time and visibly with pleasure and dignity.
b) In the Federal Republic of Germany and in Italy community
service is provided not as a real penalty, but only as a voluntary
alternative to imprisonment in the case of non-payment of a fine. In
Germany various community service schemes for defaulters have
been introduced and experience seems satisfactory; however it should
be kept in mind that so far it has not been used as an independent
penal sanction, but rather linked to a fine which the convicted person
does not want or cannot pay. The alternative of working out the fine
by a service for the community is not necessarily exposed to the same
objections as those raised in Sweden against community service as
a real penalty. To earn the equivalent of the fine by working is not
a discrimination of work as a high value. Another experience has
been that community service of this kind must be provided as the
sole alternative to imprisonment in case of non-payment of a fine.
If there is a second alternative more easily carried out than com-
munity service, the accused will naturally choose the easier one. This
has occurred in Italy where community service has remained “lettre
morte”, because people who are not able to pay their fines choose the
so-called “controlled liberty” as the less severe burden.
5. Diverson. — This is not a penal sanction in the proper sense of
the word, but in a way it is its opposite.
a) The term “diversion” means avoidance of a formal criminal
procedure by deviation or detour. In other words, one transfers petty
criminal cases to community-oriented correctional programmes, with-
out any prior address to courts or prosecutors. Thus diversion may
be understood as resulting from the well-known fundamental objec-
tions to criminal law and criminal procedure as such. So far the move-
ment advocating divereion derives, on the one hand from the idea of
criminal law as “ultima ratio” in its most radical form. More im-
portant, on the other hand, is its derivation from the great humani-
tarian ideal of solidarity and the preparedness to help people in danger
in solving their problems and to integrate them into neighbourhood-
oriented communities, bringing about personal contact and social assist-
ance. Finally, it is used to provide schemes of professional social
therapy such as group-counselling or social training, aiming at the
recoveiy of what had perhaps been neglected in the earlier life of
deviant people.
161