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13 febbraio 2015 |

Rivista italiana di diritto e procedura penale n. 4/2014 (abstracts - English)

LEGAL THEORY

 

Articles

 

Dolcini E., The Law on Artificial Reproduction Ten Years After: the Metamorphosis Continues (pp. 1669 ss.)

 

The metamorphosis of Law No. 40/2004 - due to the inertia of the Italian Legislator - continues in the case law and especially through the interpretation of the Constitutional Court. After a remarkable deterioration generated byLaw No. 40, essentially against artificial fertilization, in the results of these medical treatments, the trend now seems to have reversed. These are the milestones: judgment No. 151 of 2009 of the Constitutional Court, which entrusted physicians with the task of determining the number of embryos that can be produced per treatment cycle, and, most recently, judgment No. 162 of 2014, which eliminated the absolute prohibition of heterologous fertilization. The Italian punitive law can therefore continue to evolve along the route of secularization. We have finally got rid of a hypocritical and religiously inspired ruled, of which the legislator itself envisaged a systematic circumvention. There remain problems of method and content: among others, establishing the appropriate regulatory tools to complete the discipline of heterologous fertilization, finding ways to make available the gametes necessary for the treatments, covering the costs, and so on.

 

 

Palazzo F., The Labyrinth of Recent and Forthcoming Reforms (About Law No. 67 of 2014) (pp. 1693 ss.)

 

The first part of the article outlines the two main trends in the recent Italian criminal policy, which is increasing the penalties for certain crimes and reducing prison overcrowding. The author, while confirming the unlikelihood of an overall reform of the Criminal Code in the short term, highlights the systematic character of the reforms initiated by Law No. 67 of 28 April 2014. The second part of this paper describes the powers granted to the Government by that law. More specifically, the executive power shall: provide a justification for irrelevance of the fact; undertake a revision of the system of main penalties; decriminalize some offenses; transform some current offenses into civil violations punishable with fines. The author analyses the principles and criteria of delegation and emphasizes the need for the delegated legislator to proceed, subject to a constitution-oriented interpretation of the delegation, trying to reconcile the criminal policy objectives drawing inspiration from the principle of the "ultima ratio" with the highest rigor imposed by the systematic nature of the reforms

 

 

Ubertis G., Fundamental Rights and Dialogue among Courts: Legal Science Fiction? (pp. 1723 ss.)

 

The initial framing of the issue highlights, among other things, the "constitutional nature" of human rights and the effectiveness, over and beyond the specific case, of the judgments passed by the European Court of Human Rights. In the light of a dialogue among Courts, Prot. n. 15 and 16 to the European Convention on Human Rights are then considered, along with the Revised Draft Agreement on the Accession of the European Union connected to the same Convention. Finally,the Author illustrates the prospects of a future entry into force of the aforementioned Protocols and Agreement of Accession.

 

 

Bernardi S., The Research Project "Prison Overcrowding and Alternatives to Detention": Background and Future Guidelines (pp. 1739 ss.)

 

This article is the revised version of the introductory speech delivered at the first conference held in the framework of an international project financed by the European Union. The aim of the project is to improve and to harmonize across the EU Member States alternatives punishments to detention, with a view to reducing prison overcrowding. The Author highlights the difficulties of the project, which can be overcome only by means of in-depth comparative law analyses to be carried out by a close network national research groups, all aware of how important it is to work as a single team.

 

 

Ruggieri F., Universitas and Teaching in Law Schools. Reflections on some Data about Teaching Criminal Procedure Law (pp. 1761 ss.)

 

After reviewing the new regulatory framework which now governs, in compliance with the Dublin descriptors, the didactic activity of a university professor, this paper focuses on the data available on teaching criminal procedural law and similar subjects. Following to a first reading and interpretation of these data, the Author reflects on the skills that a professor of criminal procedure should now convey and, in general, also with reference to more traditional positions, on the objectives of legal training in law schools.

 

 

Catalano E.M., European Legislation and Case Law on the Rights and Protection of the Victims of Crime (pp. 1789 ss.)

 

The EU legislation on the protection and rights of the victims of crime can be likened to a scenario of forking paths, alternatively leading to destruction of the very pillars of our criminal justice system or to a rediscovery of the classical spirit of humanism

 

 

Lobba P., Denialism as an Abuse of the Freedom of Expression: The Decisions of the European Court of Human Rights (pp. 1815 ss.)

 

Although the crime of historical revisionism (or negationism) was introduced only in a limited number of States in order to tackle some alarming displays of racism, it has recently undergone a substantial shift that caused it to gain a supranational significance. This article analyses the 30-year long case law of the European Court of Human Rights regarding this crime, with a view to identifying the boundaries of the growing criminal restrictions enacted by European States through 'memory laws'. The article intends to demonstrate that the Court articulated in this matter an exceptional regime revolving around the abuse clause and resembling the logic underlying militant democracy. The article concludes that the Court's current approach - which is determined by the role that the crime of negationism has gained in the process of building a common European identity - should be reconsidered. The looming danger is to erode free speech, setting a troublesome precedent which may be applicable to a wide range of opinions

 

 

Raucci P., Possible Remedies for the Protection of the Due Process in International Criminal Court in the Context of Disclosure of Evidence (pp. 1854 ss.)

 

The concept of due process in the International Criminal Court prompts the question of finding the minimum guarantees for a fair trial. These must be identified in the ancient legal principles of "nemo judex in causa propria" and "audiatur et altera pars", which point to the impartiality of judges and to an adversarial system. Studying their effectiveness in the light of the rules of disclosure of evidence provides a privileged perspective, as a preparatory step to the necessary knowledge of the facts pertaining to the parties in the proceedings. Nonetheless, the reconciliation with other interests (of victims, witnesses, or the State) is sometimes resolved by holding "ex parte" hearings, when, however, those minimum guarantees for the protection of the due process would seem to fade out. Therefore, de iure condendo, one might think of establishing an "Institutional Representative for the defense" that would contribute to guaranteeing a fair trial also in such instances.

 

 

Wenin R., Provisions on Training in the Use of Weapons: A Symptom of Degeneration of Systemic Consistency? (pp. 1893 ss.)

 

The starting point of this contribution is offered by a few provisions that the Italian legislator introduced in 2005 with the so-called Pisanu decree in "response" to the issue of terrorism. Notably, one of such provisions is Art. 270-quinquies of the Italian Criminal Code, which punishes the "training for activities aimed at terrorism, including international terrorism", and Art. 2-bis of Law No. 895 of 1967 concerning the regulation of weapons control. Drawing upon these two norms, which penalize preparatory acts aimed at perpetrating serious offences, the aim of this contribution is to investigate how "healthy" the system of criminal law is. The Author emphasizes those inconsistencies and pathologies of the criminal law system (such as hypertrophy, ever-lasting state of emergency, exploitation of the "friend and foe" dichotomy to gain social consensus, criminal policies, weakening of the principle of legality) that can seriously affect the trust-based relationship a State and its citizens.

 

 

Cases and comments

 

Fiandaca G., The Supreme Court Tries to Dispel the Mystery of Dolus Eventualis (pp. 1938 ss.)

 

The author analyzes the overall motivation developed by the Joint Chambers of the Supreme Court concerning the boundary between dolus eventualis and conscious negligence. According to the author, this decision tries, among lights and shadows, to orientate the future case-law. Despite the considerable efforts made by the Court to provide clarifications, it confirms the empirical elusiveness of the subject, which is made even more complex by the confusion between substantial and procedural issues, between factual investigations and evaluative insights

 

 

Ronco M., Re-discovery of Will in Dolus (pp. 1953 ss.)

 

The Author analyzes the rationale behind the judgment passed by the Joint Chambers of the Supreme Court with regard to the complex issues arising from the distinction between recklessness and conscious negligence. The focus then shifts to the fact that the Supreme Court has courageously abandoned an interpretation - which was previously dominant in Italy - whereby dolus eventualis was characterized as "acceptance of risk" to acknowledge the necessary presence of an ontologically voluntary dimension in the notion of willful misconduct. The Author also points out that the Court has moved away from norm-based interpretations of willful misconduct, which threaten to separate it from the actual experience. Finally, after underlining the abundance of operational guidelines provided by the Supreme Court to the lower courts, the Author concludes by advocating further research on the issue of the criteria for identifying the subjective element in light of the intentional character of knowledge and human will.

 

 

Rivello P.P., The Supreme Court Delves into the Subject of Recusing a Judge due to His/Her Alleged Expression of an Opinion on the Proceedings outside the Exercise of the Judge's Duties (pp. 1985 ss.)

 

According to the Author, the judgment passed by the Supreme Court convincingly outlines the boundaries within which a recusal can be raised due to a previous opinion expressed by the judge. On the one hand, a distinction is made between the words "opinion" and "convinction". On the other hand, the judgment in point states that the opinion must be related to the possible outcome of the proceedings, with specific regard to the alleged offences and to the defendants.

 

 

Somma E., Abstention and Recusal: the Case of the Judge-Novelist and the Case of the State-Mafia Negotiation (pp. 1995 ss.)

 

A magistrate who expresses a personal view about the facts involved in a criminal proceeding might be obliged to abstain or be recused, even if such opinion was shared through the publication of a book. Despite the decision taken by the Supreme Court, the Author believes that the distinction between 'opinion' and 'convinction' is altogether irrelevant when the manifestation of the Judge's opinion involves a deep knowledge of the facts, which is incompatible with the duty of impartiality.

 

 

Toscano G., The Succession of Criminal Laws and Custody on Remand Examined by the Supreme Court (pp. 2006 ss.)

 

This paper addresses the topic of the chronological succession of laws on custody on remand, through the analysis of the Supreme Court Judgment No. 48462/2013 which ruled on the applicability of the amended version of article 280, paragraph 2 of the Code of Criminal Procedure to the executed remands. The chronological regime governing custody on remand is a rather disputed topic, both in the legal literature and in the case law. The direct effect that these norms bear upon personal freedom has, in fact, generated doubts as to their procedural nature and on the applicability of the principle of tempus regit actum. In its ruling, the Supreme Court focuses on the practical effects brought about by the new law provisions, in accordance with the latest position of the case-law. Acknowledging that, in the case in point, the amended article 280, paragraph 2, nullified the general conditions of legality of the measure, the Court opted for a necessary application of the norm, thus voiding the challenged order.

 

 

SPECIAL

250th Anniversary of the Publication of "On Crimes and Punishments" by Cesare Beccaria

 

Marinucci G., Beccaria: a Contemporary Criminalist (pp. 2025 ss.)

 

In the essay, which was first published in 2002 and has recently been republished on the occasion of 250th anniversary of the release of Cesare Beccaria's "On crimes and punishments", the A. reviews the origin and the "instant success" of the well-known "booklet", ascribed to the category of "seminal works, from the beginning of which many things began that have never ceased to begin, which make the author an everlasting contemporary." Several are the contributions by the "criminalist" Beccaria to criminal law science: from the most renowned - the abolition of torture and death penalty - to the least known. In this respect, the A. points out that the secularization and the liberal essence of the modern criminal law represent a "turning point" that can be ascribed to the merit of Beccaria, who was also the first to develop the concept of criminal law as "extrema ratio" and the "modern formulation of the general-preventive function of punishment". Finally, the essay, among other things, makes a few references to the rule of law and its reflections on the themes of collaboration with the prosecution and preventive detention.

 

 

Pisani M., Cesare Beccaria's Universal Mission (pp. 2043 ss.)

 

When he began to write "On Crimes and Punishments", Cesare Beccaria was only twenty-five years old. Despite his very young age, he was able to look at mankind as a whole, knowing that he was writing for posterity. He thus felt called upon fulfilling a a universal mission. Since the first edition of his masterpiece 250 years ago, the large number of its translations and the reception of its fundamental principles in several Constitutions, legislations, and Bills of rights, testify and confirm the magnitude and everlasting actuality of Beccaria's messages on justice and civil progress.

 

 

Amodio E., How to Celebrate Beccaria Disregarding His Doctrine: the Artful Strategy of the Italian Positivisist Criminology in the Late Nineteenth Century (pp. 2053 ss.)

 

At the end of the nineteenth century a totally new criminal law school was established in Italy by Enrico Ferri. Named as "penal positivism", the new doctrine credited the experimental method, to be carried out by means of psycology and sociology, with a pivotal role in the criminal system whose main objective was to protect society against the overwhelming criminality. Positivist scholars had to face the Beccaria's legacy, still deeply rooted in the lawyer's culture of that time, which was on the contrary based upon the principle of defending citizens from abuses by the judicial authority. Individuals should be granted freedom - according to Beccaria's doctrine - because they waived in favour of the state a least portion of their liberty to secure the safeguard of the public order. Presumption of innocence, freedom from unlawful arrests and jury trials were deemed by the Italian philosopher to be the shields against the tyranny of the judges. While strongly disregarding this doctrine, Ferri and his fellows were not able to refrain from bestowing full honour to Beccaria, yet assuming that the vital cycle of his thought was by that time elapsed.

 

 

Larizza S., Cesare Beccaria and the Principle of Strict Necessity of Criminal Law (pp. 2076 ss.)

 

Starting from the political-criminal ideas expressed by Cesare Beccaria in "On Crimes and Punishments", this article attempts to give evidence, by quoting several passages, of Beccaria's constant advice to use criminal law as the extreme measure to ensure "the greatest happiness of the greatest number". Beccaria identifies the injury done to the society as the fundamental criterion that may justify the creation of a criminal rule. A dangerous conduct that may cause damage to others becomes the base of the jus puniendi. Thefore, criminal law must step out of fields that are not strictly relevant, such as morality and religion; it should not incriminate facts that are hard to prove, it should not be guided by false ideas of utility and, above all, criminal law must be led by the principle whereby "preventing is better than repressing."

 

 

Huang F., Cesare Beccaria and the Criminal Reforms in China (pp. 2102 ss.)

 

Several editions of the Chinese translation of Cesare Beccaria's "On Crimes and Punishments" have been published so far. A number of modern, fundamental criminal principles connected to the name of Beccaria are already accepted in the Chinese criminal law. In the last decade, the political conception of the death penalty has been changing, and the current Chinese policy is no longer the principal obstacle to the abolition movement. Today, the main obstacle to the abolition movement is the public opinion. In fact, on February 25, 2011, the Chinese legislature approved the 8th Amendment to the Criminal Code, which abolishes the death penalty for 13 crimes that were punishable with the death penalty. This is certainly a great and significant progress towards the abolition of the capital punishment in China

 

References to Foreign and Comparative Law

 

Ammannato E., Beyond the Principle of Proportion. Considerations on Nasogaluak case (Supreme Court of Canada - 2010 SCC 6) (pp. 2115 ss.)

 

The judgment passed by the Canadian Supreme Court in the Nasogaluak case is a strategic starting point for a comparative analysis of the latest trends in the Canadian sanctioning system. According to the recent Canadian case-law, the step in which the proportionality of a penalty is established should also be an opportunity to convey a social and cultural message, aimed at promoting a peaceful society. The innovation brought by such case-law is the creation of a mitigating circumstance to be applied to the offender (which is accordingly granted with a reduction of the penalty) when his/her fundamental rights are violated by the State misconduct. The Canadian system therefore overturns the traditional "crime/sanction" dychotomy - where the penalty is proportionate to the offense or to the re-socialization needs of the offender - allowing to evaluate extraneous factors, such as the behavior of the State (other than the objective and subjective parameters of the crime), if the fundamental rights of the offender are violated (as in a case of excessive force used by the police during an arrest). What is especially interesting for European jurists are the reasons why this choice is consistent with the founding principles of the Canadian criminal sanctioning system