ISSN 2039-1676

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22 luglio 2014 |

Rivista italiana di diritto e procedura penale n. 2/2014 (abstracts - in english)

SPECIAL

Second Congress f the Italian Association of Professors of Criminal Law "Economy and Criminal Law in a Time of Crisis". Palermo 15-16 November 2013

 

Vietti M, Economic Crisis and Criminal Law (pp. 561 s.)

Contemporary social changes, exacerbated by the economic crisis, have contributed to highlighting some deficits in the criminal law, and have triggered judicial activism as well as significant transformations in the democratic structure itself. Against this scenario, the only possible therapy is a sincere self-criticism by all of us. More specifically, it is urgent that politicians go back to doing their job, i.e. law-making. A proper functioning of the institutional system is a necessary prerequisite for overcoming the crisis, without relying exclusively on criminal prosecution.

Signorini L.F., Financial Supervision and Criminal Jurisdiction (pp. 566 s.)

The connection between the quality of its institutions and the growth potential of a country is widely acknowledged. The rule of law is an essential component of such institutional framework. Compliance with the law in all financial activities is a crucial requirement for a healthy and prudent operation of financial institutions. In turn, healthy and prudent financial institutions build a barrier against the intrusion of criminality into the official economy. The Bank of Italy plays different roles in the various crimes, depending upon the specific competencies that the law assigns to the Bank, or upon the effects of the crimes on the actual exercise of supervision, or healthy and prudent management of the intermediaries. The Bank of Italy and the Judicial Authority collaborate closely. This collaboration consists not only in the obligation of the BoI to report alleged criminal  offenses detected as part of its supervisory activities, but also in a well-established practice of exchanging information. These virtuous synergies will not be weakened as a result of the recent developments at EU level (SSM and CRD IV).

Alessandri A., Developments and Prospects of Business Criminal Law (pp. 582 s.)

The crisis that has shaken the world economy demands a rethinking also of the criminal law governing business activities. After outlining the crucial steps of the crisis, the most significant regulatory developments in the Italian system shall be briefly reviewed, highlighting how, at least in the past thirty years, no conscious, rational criminal policy has been implemented. Several important issues (corporate crimes, market abuse, tax offenses, liability of legal persons, bankruptcy, and liability of directors and officers) shall also be examined to then argue that most of the new problems have been tackled extensively by the Courts in the absence of a constructive, harmonious legislative intervention.

Rossi N., Economic Criminal Case Law in a Time of Crisis (pp. 627 s.)

This paper shall discuss two fundamental topics in modern economic criminal law, namely the changes affecting bankruptcy and the importance of market protection through criminal liability. In a growing number of cases, bankruptcy is no longer the last spasm of a failed business, but rather the link in a chain that includes scheduled bankruptcy, once the owner has dismissed all assets and overloaded the company with tax and social security liabilities. Through artfully designed maneuvers, such operation often ends up in the same entrepreneur setting up a new business. This kind of metamorphosis takes place in a contradictory regulatory context. Indeed, while civil law considers bankruptcy to be the extreme solution for a company in distress - thus offering multiple rescuing options, - criminal law still requires the public prosecutor to take quick actions in order to protect the creditors. This generates critical dilemmas that need to be solved with discernment by the institutions, and well-pondered economic considerations. These resources should be tapped into when facing the issue of market regulation, as the criminal judge has to act as the supervisor of last instance, also in light of an actual specialization in this area.

Seminara S., Corporate Criminal Law between Present and Future (pp. 644 s.)

This paper focuses on the provisions that currently govern corporate crimes, which are characterized by a peculiar mildness of the applicable sanctions as opposed to the severity of penalties applied to financial and bankruptcy crimes. An in-depth analysis shall be carried out on those crimes that are punished in order to protect corporate transparency, crimes committed by members of the board, those provided for as a way to protect the corporate share capital, as well as those preventing supervisory authorities from exercising their functions. This analysis of the Italian situation shall be followed by a brief comparison with the French, German, and Spanish systems. Finally,  the reform projects submitted to the current Parliament shall be investigated.

Sgubbi F., Business Crisis, Rescue Procedures and Bankruptcy Offences (pp. 665 s.)

The lack of an organic set of regulations governing cases of business crisis leaves the interpreter with no criteria to refer to, starting with the very definition of "business crisis." Therefore, it seems appropriate to review the terms of the contrast between public and private rules, as well as between conservative instances aimed at safeguarding business continuity and, conversely, the introduction of new penalties.

Severino P., Safety of the Financial Markets: Protected Interests and Instruments for Protection (pp. 672 s.)

The use of criminal law as a means to protect the financial markets has always posed issues both in terms of the exact identification of the protected legal interests and in terms of the actual protection techniques and methods. The purpose of this paper is to analyze the theme of "safety of the financial markets" from this specific angle. The first general part shall emphasize how the role of criminal provisions in this area is mainly to sanction any non-compliance with the "rules of the game." The second part shall specifically focus on the area of market abuse, highlighting the central role played by trust on the part of money savers in the economy of the legal interests protected by the rules in point. This paper shall end with some observations, in a de iure condendo perspective, on the criminal policy guidelines that should inspire the future lawmaker in this area.

Bricchetti R., Money Laundering and Self-Laundering (pp. 684 s.)

Over the past twenty years, the application of provisions against money laundering (article 648-bis of the Italian Criminal Code) and money re-investment in economic or financial activities (article 648-ter) has been quite disappointing and rather ineffective. Today, the idea of introducing self-laundering as a new crime is gaining more and more consensus. Actually, a criminal offence of self-laundering already exists, i.e. "fraudulent transfer of assets" as governed by article 12-quinquies, paragraph 1 of law decree No. 306/1992, which was later converted into Law No. 356/1992. However, this is not enough. What is needed is an organic law, a smart and selective provision aimed at preventing that unreasonably strict punitive measures are implemented, which are currently out of control and left solely to the discretion of the court. A new provision on self-laundering should focus on the purpose of investing illegal proceeds in economic or financial activities, and pursue only those transactions that are inherently fraudulent and, because they involve illegal capitals, infringe the rules of fair competition. Such provision should therefore exclude non-speculative conducts or those that are simply aimed at enjoying the proceeds.

Ruggiero V., Corruption and Organized Crime (pp. 696 s.)

Several definitions of organized crime have been suggested, each reflecting the cultural and political background of their respective advocates. This contribution shall list some of them before offering a definition that seems to be instrumental to a joint analysis of organized crime and corruption. After examining the connection between legality and illegality, the Author shall focus on the specific Italian case to point out that, while organized crime contributes to spreading corruption throughout the country, the latter, which is already widespread in the social, economic, and political contexts, fosters organized crime.

Visconti C., Strategies to Eradicate Business Relationships between Enterprises and Mafia Organizations (pp. 705 s.)

Within the general topic of  criminal contamination of the economy, the Author shall address the specific issue of the relationships between enterprises and Mafia organizations. After a brief review of the recent empirical socio-criminological investigations, which have shed light on the complex interactions between the criminal underworld and the economic upperworld that are typical of the Mafia's way of operating, not only in southern Italy but also in the rest of the country, this paper shall analyze the instruments that are currently in force to combat the modus operandi of the Mafia, e.g. on a criminal (and criminal-like) level, the liability of legal entities; in the area of judicial prevention, seizure and forfeiture also without conviction; in the field of administrative prevention, the prefect's disqualifications. Finally, the Author shall recommend some reforms aimed at promoting different ways to  decontaminate companies infiltrated by Mafia organizations, so that seizure and forfeiture will only be applied in the most severe cases.

Pignatone G., The Economic Side of Organized Crime and Applicable Sanctions (pp. 738 s.)

This paper shall offer three main areas of discussion. The first addresses the issue of determining the illegal origin of the goods to be forfeited, where they consist in the proceeds from an entrepreneurial activity. The second topic is the spreading of organized crime, through its economic activities, beyond the regions where it originated in the past. Indeed, nowadays it is increasingly more likely that the economic resources of organized crime are located far away from the very core of Mafia-like organizations. Such situation often becomes paradoxical to the point that people no longer perpetrate - because it is not necessary - acts of violence or intimidation as often or as brutally as they did in the past. Therefore, from an objective point of view, it is more and more difficult to prove the illicit origin of some proceeds, or even of the whole entrepreneurial activity. The third observation is about the so called "preventive forfeiture" of goods, not only with regard to members of the Mafia, but also with regard to perpetrators of any other economic crime, provided that it is a systematic - and not merely occasional - conduct.

Foffani L., Economy and Criminal Law in a Time of Crisis: a "New Era" of Judicial Interventionism? (pp. 754 s.)

This paper deals with the consequences of the recent financial crisis on the economic criminal law, with an emphasis on the extraordinary increase in the number and quality of judicial decisions (both in Italy and in other countries) on the matter. It then offers some brief conclusions in view of a possible reform, especially in the area of false accounting.

 

LEGAL THEORY

Articles

Mantovani F., The Principle of Personality of Criminal Liability and Full Applicability to the Residual Cases of Explicit or Latent Strict Liability (pp. 767 s.)

The personality of criminal liability (i.e. criminal liability shall not apply to a person who merely acted in the absence of mental fault) is a two-fold principle, in that it encompasses: 1) the principle of personal culpability, which is relevant only to those who have mental capacity, which requires banning from criminal law the explicit provisions of strict liability as well as the latent hypothesis of strict liability hidden within the elements of mens rea (mental capacity, knowledge of criminal law, intention and negligence, other relevant excuses); 2) the principle of personal dangerousness, which concerns people affected by mental disorders or insanity, for the actus reus can be considered as a symptom of dangerousness to the extent that it depends on the same causes that underlie the mental illness-based defenses. This does not apply when the causes excluding the mens rea are external, or are due to non-pathological errors of evaluation.

Romano M., Legal Doctrine and Criminal Law Policy Today (pp. 783 s.)

After a few introductory remarks on the relationships between legal doctrine and law policy, this paper shall examine an important essay by Franco Bricola entitled "The relationships between legal doctrine and criminal law policy" (1988), in which Bricola maintains that, in the analysis of a crime, each and every category must be constructed and interpreted on the basis of criminal justice policies as "nourished" by the principles of the Constitution. Looking at the extensive program of criminal law outlined by Bricola, the Author doubts that such a complex task could be accomplished today. As a matter of fact, due to the large number of legislative options, the variety of legal theories, coupled with a fragmentation of the political parties, it is virtually impossible to generate the broad consensus that would be necessary for a thorough reform of our criminal law system. The author agrees with Bricola when he concludes that a jurist should not only be a scientist but also a mentor to the legislator. However, the increasingly important role of judges, both in domestic and international courts, requires nowadays, perhaps more than ever before, an ongoing, accurate scrutiny by the legal scholars.

Ronco M., The Double Effect Doctrine and Self-Defense (pp. 799 s.)

The legal institute of self-defense, traditionally centered on the idea of ​​purpose, gradually came to be interpreted according to the objective principle of the "conflict of interest" in the criminal-law doctrine of the 20th century. This paper, instead, shall emphasize the central role played by the subjective element of self-defense. This is also supported by the fact that the negative value of the crime lies mainly in the contrast of the perpetrator's anomic will with the purpose of the law, which is shared by common reason and constitutes the rationale of the law. The inherent lawfulness of a defensive conduct, even though it may cause damage to the assailant's property, is well explained by the double effect doctrine developed by Thomas Aquinas. This doctrine makes a distinction between the object towards which the conduct is intentionally directed and the unintended effects of the conduct. Thus, the defensive action is perfectly consistent with the law, since the harmful consequences caused to the assailant lie outside the domain of the perpetrator's intention.

Ceresa Gastaldo M., Considerations de Iure Condendo on the Maximum Period of Preventive Detention (pp. 824 s.)

Although both the Italian Constitution and the European Convention on Human Rights provide an obligation to establish mandatory and reasonable maximum terms of pre-trial detention and detention during trial - beyond which the detained defendant is entitled to be provisionally released, - such obligation seems to be largely circumvented by our legislator. A complex set of regulatory obstacles impairs a proper functioning of the mechanism of automatic release, to the point that the duration of preventive detention equals the duration of the trial. At the same time, there are no mechanisms ensuring that the trial is held within a reasonable period of time. According to the Author, a two-tier reform is required. Firstly, it is necessary to review the provisions governing the maximum period of preventive detention by eliminating all relevant grounds for suspension and interruption of these terms in order to guarantee their full compliance. Secondly and most importantly, the stages of the proceedings should be profoundly reconsidered. On the one hand, the relationship between the trial and the pre-trial phases should be changed in order to ensure that the criminal proceedings commence within a reasonable time. On the other hand, the principle of concentration of the trial against the detained defendant should be complied with.

Salcuni G.D., The "Circuits" and "Short Circuits" in the Choices of the Protection Models between Public and Private. Public Status and Duty of Care (pp. 844 s.)

The vagueness of Articles 357 and 358 of the Italian Criminal Code poses difficulties for the interpreter in the use of those definitions when there are interconnections between public and private. The case law tends to extend the application of the above-mentioned definitions, but this solution is not compliant with the rule of law. The alternative model put forward by the Author may offer acceptable results in terms of effectiveness because it would make Legislative Decree No. 231/2001 applicable to private-public companies. Moreover, because such companies would be considered to be private entities, they would be subject to bankruptcy and, consequently, their managers could be punished for bankruptcy crimes. Following to the reforms of the Consolidated Law on Local Authorities and of the Anti-Corruption Law, those companies, in some cases, such as that of economic-strategic control, have a duty of care pursuant to Article 40, paragraph 2 of the Italian Criminal Code, for offences against properties owned by the Public Administration.

Casiraghi R., Civil Action and Equal Power of Probative Evidence (p. 878 ss.)

This paper provides an analysis of some problematic issues arising from the inclusion of the civil action in the criminal trial and from the existing, though weaker, link between criminal and civil actions. The Author shall specifically investigate the issue of witness testimonies in a civil case and, more generally, the use of the parties' knowledge as evidence. Given the values at stake (equal powers of the parties in a criminal case, equal treatment of the parties in civil and in criminal cases, cognitive purposes of the criminal trial that often lead to consider the victim's knowledge as fundamental, the epistemological principles that should lead to a clear distinction between quid probandum and quid probatum), it seems appropriate to rethink the relationship between civil and criminal actions, with a view to achieving a complete separation between the two.

Travaglia Cicirello T., Deferment of the Execution of a Prison Sentence: Is It a Mandatory Choice given the Current Conditions of the Penitentiary System? (pp. 902 s.)

For a long time now, Italy has been going through a serious emergency due to the critical conditions of its jail system. Because of its overcrowded penitentiaries, a prison sentence is often served under humiliating, inhuman conditions. The European Court of Human Rights requested that Italy take timely actions, but the term for fulfilling such obligation is about to expire. However, pending a serious reform of the criminal and penitentiary systems, a deferment of the execution of the prison sentence might have offered a prompt (and probably effective) solution to the problem. This approach was promoted by the judges of first instance and was previously implemented in some foreign countries (France, Germany, USA) where prisons were badly overcrowded. However, for the time being, the Italian Constitutional Court has decided to exclude any postponement, thus offering no remedy to the current violations of fundamental human rights.

Mancano L., Reflections on the Issue of Ineligibility to Stand for Parliament(pp. 937 s.)

On 31 December 2012, the Italian Government adopted Legislative Decree No. 235/2012, which prevents any individual convicted for specific crimes from running for Parliament. The Author shall question the nature of this provision to then focus on the consequences of a conviction delivered in the course of the term. The conclusion is that, on the one hand, the provision in point has a criminal nature, and, on the other hand, an adverse ruling would not automatically trigger a removal from office.

 

Cases and comments

Cupelli C., Exclusive Applicability of Statute Law and Exclusion of Any Enabling Act in the Troubling Issue of Military Association for Political Purposes: New Spaces for Challenging Procedural Defects (pp. 977 s.)

The judgment under review put an end to the intricate case-law history on military association for political purposes and therefore brings out the physiological criticality of enabling acts in criminal matters, while providing - also through a joint reading of the following sentence No. 32 of 2014 - a useful way to mitigate it. What is actually required is that more space be given for challenging procedural defects of acts having force of law, redefining the boundaries of admissibility of interventions in malam partem of the Court, based on the underlying assumption that by sanctioning the defect in the proceedings the underlying exclusive applicability of the law is also safeguarded.

Piergallini C., Criminal Liability of the Company and Confiscation: the Supreme Court acts as a Supervisor ensuring Compliance with the Law (pp. 999 s.)

The Author comments on the sentence that overruled the order issued by the Court of Review in Taranto whereby the latter confirmed a precautionary seizure for the purpose of confiscation of the proceeds of crimes, pursuant to article 321, paragraph 2 of the Italian Code of Criminal Procedure, ordered and enforced by the investigating judge in Taranto against some Companies belonging to the Ilva Group. The Author shares the position outlined in the ruling of the Supreme Court, which restores some of the cornerstones of criminal law. First of all, the Author underlines the need to respect the fundamental principles of legality in criminal matters (e.g. legal certainty and non-retroactivity). Indeed, in order to raise a charge of criminal association as the predicate offence implying administrative liability due to a crime committed by an entity (pursuant to article 24 ter of Legislative Decree No. 231/2001), the charge in point must only and exclusively regard offences implying liability of the entity.

Moreover, the seizure order can be only related to conducts and offences (such as criminal association and environmental crimes) that are listed as predicate offences implying administrative liability. The Author then focuses on the controversial relationships between "cost-savings" and "profit liable of confiscation." In line with the prevailing position of the Supreme Court, he remarks that the profit  should be identified as "collected income", which can be calculated as the difference between the actual increased value of assets and the value that would have been achieved without the undue cost-saving.

 

DISCUSSIONS

Bernardi A., Thoughts and Memories of a PhD Student of the 1st Cycle Closing the "Criminal Law Seminars for PhD Students" Garda, 27-29 May 2014 (pp. 1013 s.)

At the closing of the first "Criminal Law Seminars for PhD Students" held in Garda on 27-29 May 2014, the Author reviews - also through personal memories - the evolution of PhD studies in Italy, describing the feelings and expectations of students who undertake the third stage of academic education. The Author also underlines the significance of the close relationships established by PhD students both with their professors and with their colleagues, emphasizing their complementary nature and the importance of inter-doctoral seminars for their development.

 

LAWS AND DOCUMENTS 

Letter by Pope Francis to the participants in the 19th International Conference of the International Association of Criminal Law and in the 3rd Congress of the Latin American Association of Criminal Law and Criminology (with a comment by L. Eusebi, "A Necessary Asymmetry between Crime and Punishment")