ISSN 2039-1676

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7 maggio 2014 |

Rivista italiana di diritto e procedura penale n. 1/2014 (abstract - in english)

LEGAL THEORY

 

ARTICLES

 

Dolcini E., Homophobes: New Martyrs for Freedom of Expression? (pp. 7 s.)

On 19 September 2013, the Lower House of the Italian Parliament passed an anti-homophobia bill, which is currently under review by the Higher House of Parliament. This has reignited the debate concerning, among other things, the presence in our legal system of criminal law provisions that are already suitable for suppressing homophobia, and especially the compatibility of some specific legislation on this matter with the constitutional principles of equality, legality, and freedom of expression. While the bill currently under examination by the Parliament duly aims at not introducing new offenses relating to freedom of expression, it has to be criticized in that it provides a definition of discrimination that is paradoxically obscure and fraught with problems of interpretation. Overall, notwithstanding the need for an ex-post evaluation of the effects that will ensue form the reform, the Author believes that the bill provides an appropriate response to the peculiar nature, from a criminal-law perspective, of homophobic hate crimes.

 

Vervaele J.A.E., Ne Bis in Idem: Towards a Transnational Constitutional Principle in the EU? (pp. 32 s.)

Globalization in the criminal justice systems is increasing the risk of double prosecution and/or double punishment. Now, to what extent do (legal) persons have the (fundamental) right not to be prosecuted or punished twice for the same facts in a globalizing and integrating world? Are they protected against these forms of double jeopardy in settings of transnational criminal justice such as, for instance, in the EU area of freedom, security and justice? Does the ne bis in idem principle have a transnational reach? If so, what does this mean and what are the obstacles and exceptions thereto? In posing these questions, this article raises the question as to whether a (legal) person can derive a right to transnational protection in the area of freedom, security and justice from the different sources of ne bis in idem obligations in domestic law, in public international law (human rights law and mutual legal assistance), and in the EU law. By analysing these sources and the case law thereon, the Author comes to the conclusion that (legal) persons are unprotected against transnational double jeopardy, with the exception of the transnational ne bis in idem in the EU area of freedom, security and justice.

 

Cocco G., The Role of Insolvency Procedures and the Harmful Event in Bankruptcy Offenses (pp. 67 s.)

This essay explores the controversy over the role of insolvency procedures in bankruptcy offences, i.e. whether they are a constitutive element or an objective requirement to establish criminal liability. Most of the legal literature is in favor of the latter, but some authors argue, albeit contradictorily, that a harmful event must be present at the opening the bankruptcy procedure. In an equally contradictory manner, the case law, while recognizing bankruptcy as an essential element of the offense, rejects its consequences in terms of guilt and damage by interpreting it as a dangerous offense. An extensive analysis of the range of bankruptcy-related offences shows that, although the insolvency procedures do not constitute the event of a crime, bankruptcy offences still imply a unequivocally identifiable harmful event, which occurs at the opening of the insolvency procedures, which then are a constitutive element of the offence and the object of fraud.

 

Militello V., The Identity of Criminal Law Science in a Multi-Level Legal System (pp. 106 s.)

The general scenario of the contemporary multi-level legal system raises several questions for the criminal law science, ranging from the relations between national and supra-national sources of law, to the interaction between different courts that, however, equally play a role in the protection of fundamental human rights. These new kinds of relationships among different legal sources and different courts are governed by new forms of mutual influence and interaction which are largely different from the traditional, deductive, mainly hierarchical, approaches. Upon clarifying the significance and the context in which these new relationships between the criminal law science and the multi-level legal system take place, this paper shall provide a contribution to the debate by focusing on three main areas, i.e. the attitude of criminal law scholars towards the supra-national harmonization of criminal law among EU Member States; the idea of a consistent criminal law theory; and the role of internationalization in the evaluation of criminal law research.

 

Mannozzi G., Lodigiani G., Training in Law and Justice: The Promotion of Scientific and Didactic Autonomy of Restorative Justice in the University Education (pp. 133 s.)

It is high time to include "Restorative Justice" in law school curricula. This article shall explain the reasons why scientific and didactic autonomy should be guaranteed to the area of restorative justice as part of law school curricula, starting from a comparative overview on the teaching of Restorative Justice and of victim-offender mediation in many European and non-European universities. The article shall then focus on the legal, philosophical, anthropological, cultural, and criminological reasons supporting the autonomy of restorative justice. Finally, this paper shall show how restorative justice works as an "engine" in the dialogue among different subjects matters, including criminal law, criminal procedure, criminology, legal and philosophical anthropology, ethics, law and literature, with a view to providing law students with a holistic education.

 

Vigoni D., Interferences and (Un)solved Issues About Pre-trial Detention in Juvenile Criminal  Justice (pp. 178 s.)

In the area of juvenile justice, and specifically with regard to pre-trial detention, some recently reformed provisions in criminal law and procedural rules have generated interpretative issues and discrepancies in the case law. This happened as a result of the amendment that extended the limit for preventive detention related to the risk of reiteration of offences comparable to the one pending trial (art. 274, subparagraph 1, letter c of the Italian Code of Criminal Procedure); as a consequence of the introduction of the specific criminal offence category of burglary and purse snatching (art. 624-bis of the Italian Criminal Code.); and, more recently, as a result of innovations regarding minor drug pushing offenses (art. 73, subparagraph 5 of the consolidated code on drug-related offenses). Every time the criminal law and/or procedure change, it is necessary to thoroughly reconsider the effects and the consequences in terms of their application on the specific, differentiated procedural system governed by Italian Presidential Decree No. 448/1988, taking into account the specific needs and goals of juvenile criminal justice.         

 

Bontempelli M., Fact and Law in Charges of Extortion after the Introduction of Law No. 190/2012 (pp. 194 s.)

When faced with 'concussione' charges, it is difficult to clarify the boundaries within which the Judge can give a different definition of the charge without changing the subject matter of the trial. The issue is even more critical in trials that were pending when Law No. 190/2012 became effective, should the Judge rule that an actual case of 'concussione', which at the beginning was formulated as 'concussione' "by induction", now falls within the category of extortion "by coercion" pursuant to article 317 of the new version of the Italian Criminal Code. Indeed, clarifying the correlation between the charge and the judgment is a complex logical process when the actual trial case is formulated in the same language used in the legal definition of the case, especially when it comes to "undetermined" types of offenses. In order to understand whether or not Article 521, subparagraph 2, of the Italian Code of Criminal Procedure applies, the fact in point should be clearly identified by analyzing those components of the charge that define the conduct and its effects.

 

Cupelli C., Not Everything that can be done should be done. The Relationship between Preventive Obligations, Consent, and Precautionary Rules: the Case of the Psychiatrist (pp. 225 s.)

The issue of negligent liability of a psychiatrist should be seen as a highly complex area in the criminal law of medicine, both for the physician and for the court called upon to assess the psychiatrist's work. The current cultural reference model and the recognized duties of a psychiatrist are different from the past. While this allows to reject any residual claims of custodial obligations, it also highlights the connection between the framework of guarantees and the acceptable risk. It is indeed the need to counter and curb a specific risk for the patient that identifies and limits, in area of liability for negligence, the precautionary rules. This outlines the link between protection, preventative obligations, and precautionary rules. As a matter of fact, the rules of precautionary conduct relevant for the charge of negligence always have, as a prerequisite and limit, the duties of a doctor who cannot be asked to do more, in terms of diligence, prudence and expertise, than what he is required to do as an ordinary guarantor.

 

Di Paolo G., Invalidity in Criminal Proceedings and Curative Measures: Between Legal Certainty and Substantive Trends (pp. 246 s.)

This paper provides a critical analysis of the Italian case law relating to invalidity of records in criminal trials. The Author underlines how Italian courts often support interpretations of statutory texts that are not compliant with their wording and rationale. This interpretive approach is hardly consistent with the principle of legal certainty and may undermine the fundamental rights and guarantees of due process.

 

Valentini V., The European Case Law on Human Rights, the Counter-Limit Culture, and the Criminal Justice System (pp. 285 s.)

This paper aims to provide a critical overview of the Constitutional Case Law concerning the relationships between the national criminal law and the ECHR legislation, while describing the wavering approach taken by the Constitutional Court. While the latter has progressively increased its power to control and limit the adoption of the ECHR case law in the national legal system, at the same time it has placed the European High Courts (unlike the national supreme courts) at the top of the hierarchy of the legal sources, thus diluting the principle of separation of powers and weakening the dogma whereby "interpretatio" and "dispositio" belong to two separate domains. Finally, the paper emphasizes how the technique of prospective overruling imposed by supranational law is fully consistent with the traditional implementation of the principle of legality in criminal matters.     

 

Bianchi D., The Issue of the So-Called "Improper Succession": An Opportunity for (Renewed?) Reflections on the Punitive Law System (pp. 322 s.)

When faced with cases of so-called "improper succession," when no specific provisional regulations apply, several doubts and controversies arise as to the provisions that should be applied to facts that were perpetrated when the criminal provisions were still in force (before their decriminalization). More specifically, due to the ambiguity of the general, provisional rules introduced in the two legal systems involved (i.e. the criminal and administrative systems), some advocate a full "immunity" for the perpetrators of these facts, while others support the applicability of the newly introduced administrative sanctions. The latter approach seems to be more advisable, because it combines basic requirements of reasonableness and equality with the safeguard of fundamental guarantees, in addition to being consistent with a less "sectorial", more "harmonious" view of punitive law, in line with the evolution of both the Italian and the European legislation.

 

CASES AND COMMENTS

Somma E., "Beyond any Reasonable Doubt": A Declamatory Phrase to be put in the Correct Context, or rather, to be avoided (pp. 366 s.)

The Author tackles some issues relating to use of the ambiguous - to the point of being considered virtually wrong - expression contained in article 533 of the Italian Code of Criminal Procedure and to the inappropriate consequences due to its correlation with a similar expression adopted in the British legal system.

 

Gabrielli C., The Participation of an Expert during Interviews with Children as an Optional Precaution: A Questionable Interpretation of a still Inadequate Procedure (pp. 379 s.)

Law No. 172/2012, which implemented the Lanzarote Convention for the protection of children against sexual exploitation and sexual abuse, signed in Lanzarote on 25 October 2007, requires that an expert in child psychology or psychiatry be present during investigative interviews of children when the proceedings in point relate to one of the crimes listed in article 351 subsection 1-ter of the Italian Code of Criminal Procedure. In its the decision regarding this matter, the Italian Supreme Court ruled that such participation is optional. This position is not shared by the author, who, on the basis of textual and systematic arguments, argues that such participation is mandatory and analyzes the consequences of not involving an expert, also suggesting some regulatory measures aimed at preventing any unilateral pressures made during interviews from undermining the credibility of the child, thus affecting the outcome of his/her future cross-examination.

 

DISCUSSIONS

 

Massetto G., Reading Mario Pisani on Cesare Beccaria and Index Librorum Prohibitorum (pp. 395 s.)

When the Archives of the Roman Inquisition were opened, Mario Pisani could study - and partly publish - the pleadings against Cesare Beccaria's masterpiece On Crimes and Punishments. His conviction, which the author learned about only indirectly and immediately  before the fifth edition of his the book was printed, upset him deeply but didn't affect the success of his work or his public life which he continued to live hectically until his death. In his capacity of prosecutor, Jesuit father Lazeri -  learned in historical criticism, Church history, antiquity, and mathematics, but certainly not in criminal law - wrote the indictment transposed by the Cardinals of the Inquisition, who found the accused guilty. This indictment is a celebration of the criminal-law institutions and procedures of the Ancien Régime, which implies a total rejection of the innovations advocated on this matter by Beccaria.

 

Bartoli R., David Garland, "Peculiar Institution: America's Death Penalty in an Age of Abolition". Reflections on the Book (pp. 448 s.)

Upon underlining the most distinctive characteristics of Garland's approach to the complexity of death penalty (non-evaluative and multifactorial perspective), the Author focuses on the main issues challenged in the book, namely the reasons why the capital punishment is still in force in America while the other western democracies have abolished it, and the deep meaning of its current configuration and applicability after the Furman and Gregg cases. The final part of this paper deals with the very core of punitive law, i.e. not only the afflictive content of the penalty, but also the resulting social exclusion, which calls for a new interpretation of the principle of humanity aimed at banning penalties aimed at expelling a human being from the social community.