ISSN 2039-1676

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17 novembre 2014 |

Rivista italiana di diritto e procedura penale n. 3/2014 (abstracts - English)

LEGAL THEORY

Articles

 

Paliero C.E., The "Fluid Law". Rethinking Delmas's Theory on the Dialectics of Sources in Criminal Law (pp. 1099 ss.)

The Author draws on Mireille Dalmas-Marty's thinking and scientific production and focuses on the concept of "flou" law and "pluralisme ordonné". The Author retraces and critically analyzes the phenomena leading to the internationalization of criminal law: the source of law gains a pluralistic dimension which eradicates the traditional and linear hierarchy; the irruption of "flou" logic in the criminal law field implies a distortion of traditional categories; the penal statute, having lost its traditional unitary matrix, varies depending on the type of author and type of criminal act. In the following essay, the Author presents the concrete consequences of these phenomena,  such as the fading of a common European code utopia, the expansion of the "matière pénale", the lack of balance between criminal politics and dogmatics, the gradually increasing role of case-law. In conclusion, the Author urges to find a new balance between the growing expansion of hermeneutics and the need to protect the constitutional features of criminal law.

 

Orlandi R., Structural Changes and Dynamic Protection of Individual Rights in Criminal Proceedings (pp. 1133 ss.)

Twenty-five years after the "new" code of criminal procedure first came into force, legislative initiatives aimed at reforming criminal justice in Italy are still under way. A reformative fever seems to have characterized this last quarter of a century.  This indicates a serious difficulty deriving both from an imbalance among the subjective positions of the proceedings and from the inappropriateness of the procedural law in force to adequately protect the fundamental rights of the people involved. Moving from the distinction between reforms aimed at implementing structural changes in the criminal justice system and reforms involving individual fundamental rights, the Author raises, first of all, a methodological question and, at the same time, makes concrete proposals to overcome some of the serious difficulties which nowadays affect the Italian criminal justice. This study is the result of considerations, which are based upon a comparative method, regarding similar reform movements identified in some of the major judicial systems.

 

Insolera G., Evolution of the Criminal Law Policy between the Defence of Civil Rights and Emergencies: from the 1960's to the Mafia Emergency (pp. 1165 ss.)

The Author, speaker at the conference on Criminal law between science and politics. In memory of Franco Bricola, twenty years later, organized in Bologna by Associazione Franco Bricola and the University of Bologna on March 7 and 8, 2014, discusses the criminal policies implemented in Italy in the thirty-year period between 1960 and 1990. The topic is addressed by first examining the transformations involving several factors, e.g. politics and society, the judiciary, and the criminal law literature. The Author focuses on certain issues, which he believes are key to interpreting the changes that took place in the three decades in point, i.e. the emergency criminal legislation and protection of rights, with particular reference to the ideology and practice of left-wing political parties.

 

Manna A., Causation and negligence in medical liability between law in the books and law in action (pp. 1175 ss.)

The paper begins by critically summarizing the highlights of the recent case law concerning causation in the clinical setting and medical liability, and then focuses on the consequences of the so-called "Balduzzi decree", which excludes any criminal liability in cases of ordinary negligence. In line with a consistent focus on the dialogue between positive law and case law, the paper analyzes the issue of constitutionality raised by the Court of Milan, and the response - albeit non-conclusive - given by the Constitutional Court; then it reviews the latest case law - which is not always consistent - and draws a first balance of the reform, focusing on the practical implications in the so-called defensive medicine, and suggesting the need for a more organic definition of the notion of (gross) "negligence" in general.

 

Spena A., Does Criminal Paternalism Really Exist? A Contribution to the Debate on the Principles of Criminalization (pp. 1209 ss.)

A discussion on whether the so-called criminal paternalism is compatible with the fundamental assumptions of liberalism has been going on for a long time. The aim of this article is to show that criminal paternalism is actually not an autonomous principle of criminalization. Upon making a distinction between tutelary and despotic paternalism, this paper shows that the former is a manifestation of the principle of harm, while the latter is only apparently opposed to liberalism. Indeed, the criminal norms that usually seen as tokens of it are instead expressions of either legal moralism (and should be dealt with as such) or (as is the case with tutelary paternalism) of the principle of harm. In the latter cases, the problem is that the principle of harm itself offers a far less stable ground for criminalization than anti-paternalists seem to believe. The article also provides a critical account of the anti-paternalists' view on consent. The conclusion is that what the debate on criminal paternalism actually calls for is a thorough discussion on whether individuals have a "right to make mistakes" (even when such "mistakes" consist in self-harm).

 

Panebianco G., The principle of Nulla Poena sine Culpa at the Crossroads of European Jurisdictions (pp. 1326 ss.)

Although the principle of nulla poena sine culpa is not explicitly recognized in the ECHR or in the Charter of Fundamental Rights of the European Union, several European Courts often acknowledge it in their judgements. They identify the legal basis of this principle in the presumption of innocence, as provided under Article 6 ECHR as well as Article 48 of the Nice Charter. However, that of presumption of innocence is a principle regarding procedural criminal law and it does not seem suitable as a basis for the principle of nulla poena sine culpa, which pertains to substantive criminal law. After the Lisbon Treaty, it seems appropriate to identify the basis of this principle in Article 49 of the Nice Charter, or, to refer once again to the presumption of innocence, in Article 48. Recognizing the principle of nulla poena sine culpa also in the EU law system, through the Nice Charter, would multiply its chances of protection by increasing the means of justiciability.

 

Grandi C., On the Relationship Between Neuroscience and Criminal Law (pp. 1249 ss.)

The latest studies on the human brain and its functioning, which demonstrate the links between orbitofrontal dysfunctions and aggressive behaviors, seem to revive theories whereby criminal behaviors are based on biological factors. What is more, according to more radical interpretations of neuro-scientific experiments, the behavior of all individuals, regardless of any brain abnormality, is unconsciously determined by a combination of genes and environmental stimuli, with no room for free and conscious choices. The more extreme neuro-scientific theories therefore suggest that the current criminal liability models should be radically changed, since they are purportedly untenable from an empirical stand point as they are based on philosophical indeterminism. After illustrating the conservative reactions of the criminal law literature, this essay outlines the foundations for a possible syncretistic approach.

 

Mongillo V., Necessity and Chance in the Allocation of Liability for Criminal Offences between Individuals and Legal Entities. Considerations in the Light of the "Encounter" between  Railway Companies and Criminal Courts in Europe in the 19th Century (pp. 1291 ss.)

During the 19th century, the new requirements of criminal policies generated by the Industrial Revolution and the legal and evidentiary questions posed by an unprecedented organizational complexity of corporations broke in the courtroom, as is emblematically shown by the "encounter" between railway companies and criminal courts. Herein lies the modern split between the two legal systems of common law and civil law with regard to corporate criminal liability. Originally, the dispute concerned whether the natural person or the legal person should be made accountable for regulatory offences committed in corporate operations. The different approaches taken by the English, Italian, and French courts in the 19th century revolved around the two opposing paradigms of liability of the "head of the company" and liability of the company as a whole. This clear dichotomy marked the evolution of the two legal systems throughout the following century and only recently has it been overcome. However, in the eternal dialectic between individualism and collectivism in criminal law, the "chance" factor, and not only the "necessity" factor, also played a role.

 

Perin A., The Crisis of the "Nomological Model" between Explanation and Foreseeability in Criminal Law. Introductory Notes and Preliminary Issues on Criminal Negligence (pp. 1371 ss.)

The issue of legitimacy and the limits of negligence is one of the most controversial in criminal law, especially with regard to the method used to identify and define the objective and concrete "duty of care" in the absence of a statutory standard. This paper focuses on the relations between a judicial evaluation of that juridical standard and the instrumental appeal to scientific and technological knowledge. First, it examines some issues relating to the notion of "cause" and to the "but for" test according to the Italian experience, then it deals with some theories of negligence outlined in the Italian legal literature, while considering the recent legal reform on medical malpractice as well as some paradigmatic cases of criminal liability for exposure to toxic substances and negligent management of natural events.

 

Rivello P.P., The Notion of "Fact" pursuant to Article 649 of the Italian Code of Criminal Procedure and the Unresolved Interpretative Uncertainties linked to the Principle of ne bis in idem (pp. 1410 ss.)

The notion of "idem factum" is the heart of the exegesis on the identification of the substantive "res judicata" with a view to clarifying the scope of legal protection offered by article 649 of the Code of Criminal Procedure, which aims at preventing that a person might be repeatedly tried in court for the same charges. While delving into the issue of whether the "fact" includes the mere conduct or the whole spectrum of "conduct", "causality" and "event", this paper highlights the sharp interpretative contrasts existing in this field, which also result from the difficulties in identifying the meaning of "title" and "degree" of crime. In this respect, the author underlines the discrepancies that are often found between the legal theory and the case law in cases of formally concurrent offenses. The paper also examines the incidence of changes in the indication of "tempus commissi delicti" and of "locus commissi delicti", with a view to establishing whether this may translate into a change of the "fact".

 

Roiati A., The Criminal Statute of Separated Spouses, Divorced Spouses, and "Cohabiting" Partners in View of a "Fluid" Family (pp. 1440 ss.)

Major contradictions in the complex structure of protection, which lead to unjustified disparities in treatment, often lie behind the variable nature of the criminal concept of family.

This paper discusses the differentiated criminal statute that tends to characterize the position of separated spouses, divorced spouses and cohabiting partners, making reference to Articles 570 and 572 of the Criminal Code, and to several areas of interference affecting the latter and Article 612-bis, paragraph 2, of the Criminal Code.

The sudden changes in the legislation and case law on the cases in point resulted in a largely non-homogeneous set of protective provisions, which should be reconsidered in the light of the fundamental principles of subsidiarity and necessary harm, with the specific purpose of reducing and rationalizing the use of penalties.

 

 

Cases and comments

 

Risicato L., The Constitutional Court overcomes the Hesitations of the ECHR - the Unreasonable Prohibition of Heterologous Fertilization is removed (pp. 1487 ss.)

The Constitutional Court declares the constitutional illegitimacy of the prohibition to perform heterologous fertilization, thus "ending" its dialogue with the ECHR and referring to very solid internal parameters of the system. Such parameters include, among the most outstanding, the principle of rationality of the law, inferred from article 3 of the Italian Constitution, the overcoming the requirement to indicate the genetic origin of the family, and the extensive reconstruction of the concept of health. Against this backdrop, the prohibition to donate gametes is unreasonable from an ontological, scientific, cultural, legal, economic, and therapeutic point of view. The denial of the right to parenthood of couples suffering from sterility or incurable infertility actually acts to the detriment of those who are affected by severe diseases, which clearly clashes against the (rather ambiguous) rationale of law No. 40/2004.

 

Grosso C.F., An Interesting Interpretative Controversy about the Place where the Crime was committed and the Court having Territorial Jurisdiction concerning Illegal Access to an IT System (pp. 1518 ss.)

IT systems make it possible to enter databases from peripheral  terminals. When this happens, the data stored in the databases appear on a peripheral screen. If such operation is carried out illegally, it constitutes a crime of illegal access to an IT system. Should the place where this crime was committed be identified as the place where the intruder entering the database acts, or should it be the place where the server is located? On this point, a conflict of jurisdiction exploded among several courts (the conflict was raised in Rome, where some judges rejected their jurisdiction in a case in which the accessed server was located in Rome, but the action was taken by typing from a terminal in Florence). The Supreme Court of Cassation found the position of the judges in Rome to be wrong, but the latter objected again. What will the Court do now? The problem is substantial, as it is undeniable that the traditional concepts of space and place that we are used to do not apply to an IT network. As nowadays most databases are placed in a non-local "cloud", it would not make sense to apply concepts that relate to a physical location.

 

Gatta G.L., The Reformed Crime of 'Concussione': between Criminal Law and Procedure. Commentary to an Important Ruling by the Supreme Cassation Court (pp. 1566 ss.)

The Author discusses the "Maldera" ruling by the Supreme Cassation Court (Sezioni Unite) whereby the latter ruled on the most relevant interpretative issue raised by the recent reform of crimes against the public administration, which was implemented by Law No. 190 dated November 6, 2012. The issued submitted to the Court was aimed at identifying the boundary between the offence of "concussione" (i.e. a particular type of extortion perpetrated by a public officer, governed by article 317 of the Italian Criminal Code and amended by the aforementioned reform of 2012) and the offence of "induzione indebita a dare o promettere utilità" (i.e., a particular type of corruption whereby a public officer induces a private person to give or promise something, introduced for the first time by the same reform and governed by the new version of article 319 quarter of the Criminal Code), primarily with regard to the distinction between obliging and inducing somebody to do something, as well as the related issue of the chronological succession of criminal provisions over time. The Author shares the Court's view as to the necessity of narrowing the scope of the Italian offence of "concussione", in order to reduce the area of impunity for private persons who give or promise some utility to public officers. Such interpretation, in fact, seems to be in line with the spirit of the 2012 reform, which is in turn aimed at fostering international efforts in the fight against corruption and bribery.

 

DISCUSSIONS

 

Fiandaca G., Reading V. MAIELLO, External Participation in Crimes: between Legislative Uncertainty and Typification in the Case Law. A Collection of Writings, Turin, Giappichelli, 2014 (pp. 1587 ss.)

The presentation of the publication featuring a collection of essays by Vincenzo Maiello on external participation in criminal associations provides the Author with an opportunity to discuss the offence in point. While it originated in the case law, it still features undefined boundaries, thus raising issues relating to the principle of legal certainty of criminal law.

 

Bartoli R., In the Penal Colony by Franz Kafka: "dann ist das Gericht zu Ende" (pp. 1590 ss.)

This essay focuses on the interdisciplinary connection between law and literature. After some "general" remarks on such connection, the Author examines Kafka's story In the Penal Colony, which turns out to be extremely helpful in investigating what the criminal justice system "truly" is, as it brings into focus the "myth" of doing justice through punishment or, from a different perspective, the established fact that the system cannot do without the myth itself.