ISSN 2039-1676

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6 maggio 2015 |

Rivista italiana di diritto e procedura penale n. 1/2015 (abstracts - English)

LEGAL THEORY

 Articles

 

Pisani M., Death Penalty in Italy (1926-1948), p. 1 s.

 This paper outlines the history of the death penalty in Italy, mainly through the analysis of its regulatory framework, starting from 1926 - the year when it was re-enacted after its abolition by the 1889 Criminal Code, - through a number of different and opposing steps, to the 1948 Constitution. While article 27, 4th paragraph, of the Constitution clearly re-imposed - at the highest level - its abolition, it remained in force (at least in theory) for many years pursuant to the military law of war.

 

Pulitanò D., The Crisis of Legality and a Comparison with the Case Law, p. 29 s.

 Analyzing the crisis of legality, the case-law may be seen as an element of crisis itself, being a formant - and not a source - of a system ruled by the law (decision of the Italian Constitutional Court No. 2301/12 provides major indications in this respect). The very structure of the criminal law enforcement system introduces the risk of a well-intentioned authoritarianism which, although justified by the purpose of protecting relevant interests, gives extensive interpretations and applications of the applicable criminal or general provisions, and seems reluctant to follow rigorous evidentiary standards which, despite being established by the Supreme Court, are often reduced to mere rhetorical formulas. Thus, the 'formant' of the case-law should be seen as a potential source of 'deformation' of the rule of law and the parties at trial should then be granted the right to challenge - subject to their duty to provide suitable grounds and their right to receive a reasoned reply - the authority or the substantial plausibility of more or less consolidated judicial precedents or and of an (allegedly) living law.

 

Kindhäuser U., Objective and Subjective Imputation in Intentional Offenses, p. 59 s.

 The theory of objective imputation attempts to exclude any criminal implication deriving from causal chains on the level of the objective elements of the offense (actus reus) before examining the subjective elements (mens rea). Two criteria are applied to this purpose: 1) Generating a fact cannot be objectively imputed if the objective purpose of the conduct is lacking, because the event appears to be only accidental; 2) In order for an event to be objectively imputable, it must materialize the unacceptable risk created by the offender. This paper shows that an event can always be objectively imputed, unless the underlying conduct violates the protective purpose of the provision. In the remaining cases, the theory of objective imputation comes to inconsistent conclusions or mixes subjective and objective elements. However, the criterion based on the risk relationship is a suitable instrument to provide grounds for the imputation of an event as malicious in the subjective case of an intentional offense.

 

De Vero G., Dolus Eventualis and Conscious Negligence: a still Blurred Boundary. Remarks about the Supreme Court Judgment in the ThyssenKrupp Case, p. 77 s.

The recent judicial decision of the Supreme Court in the ThyssenKrupp case stands out especially because of its reference to the requirement of certainty and for its consequent refusal to emphasize verbal formulas which are unrelated to facts verifiable during trial. Another valuable element of this judgement is that it poses the requirement of a volitional component in the dolus eventualis and at the same time it criticizes the theory of representation. On the contrary, the search for an 'equivalent of the volitional component' remains exposed  to the doubt of whether  the definition of intent provided for under Article 43 of the Italian Criminal Code should be applied by analogy and to the existing uncertainties in the legal theory. The only criterion that may provide a clear distinction between dolus eventualis and conscious negligence lies in the most serious objective disvalue of a willful conduct, which, because it is represented and intended by the perpetrator, affects mens rea. Still, the relevant criminal offense should be properly formulated in the law, which should also provide for an appropriate sanction, i.e. one applicable at an intermediate level between crimes of intent and negligence.

 

Donini M., Crime Science and Political Power, p. 95 s.

The idea that crime science is something more than a mere technique only if it uses empirical and criminological knowledge, in addition to dogmatics and principles, has sound grounds. However, it requires overcoming many impasses and offers the legal science the opportunity to engage in a heated critical debate with legal policy-makers. This way, the episteme of criminal law science extends the interpretation and the normative dogmatics towards an integral crime science, one that goes well beyond the fact/value dichotomy, the is/ought question, and the monistic culture of both logical positivism and the traditional hermeneutic knowledge. The "great division" today is between individual and group research, between discoveries and inventions by individuals or by a thought group. To the extent that the law-making power is shared among many, the task of building the plot of public reason is not reserved solely to the Supreme Courts. Indeed, the role of crime science is still fundamental in minimizing the level of suffering of the defendant, the victim, and any third party affected by the criminal law, through knowledge that is shared and not separated between the public powers and the citizens.

 

Mannozzi G., Legal Translation and Interpretation in the European Multilingual Context: The Paradigmatic Example of the Term «Restorative Justice» and of its Historical, Legal, and Linguistic Origins, p. 137 s.

The issue of translating legal documents in the different languages of the EU Member States takes on a paramount importance in the European legal context. The structural differences between common-law and civil-law systems make legal translations even more complex, since each legal term broadly reflects the cultural traditions of each legal system in force in the countries that are called upon translating documents that were designed and/or written in one of the EU working languages. The expression and circulation of legal institutes mainly in English may also generate distorted interpretation choices, if they refer only to the Anglo-Saxon culture to the detriment of the legal and philosophical traditions of civil-law countries. The debate on the origin of the term « restorative justice », which, so far, has only been conducted within the Anglo-Saxon context, which ignores the possible Italian origin of the lexeme « restorative justice », seems to be emblematic.

 

Manes V., What is happening to Constitutional Review in Criminal Law?, p. 154 s.

The statistics on constitutional review in criminal law depict a permanent decline: the number of issues brought before the Constitutional Court is constantly decreasing, many cases are dismissed, while fewer and fewer are decided on the merits. Several factors contribute to this phenomenon: each judge is entitled to directly decide not to enforce national laws which conflict with EU self-executing acts; as for issues concerning fundamental rights, the judges tend to immediately refer to the European Courts, thus by-passing the centralized control of the Constitutional Court; the burden of interpreting the law in compliance with the Constitution, as a preliminary step before eventually bringing the case before the Constitutional Court. Nevertheless, in the background, the Constitutional Court continues to be attentive and alert in the criminal arena and specifically on the fundamental rights and the related counterbalancing factors (the latest judgments on this topic endorse a strict scrutiny), as well as on the "free zones", which are increasingly more scrutinized by the Court, despite the possible effects in malam partem that these judgments might generate.

 

Gatta G.L., The Crimininalization of Illegal Immigration in the Italian and in the European Context, p. 188 s.

The Author examines a widespread phenomenon in the current Italian and European context, i.e. the trend to punish as a criminal offense the illegal permanence and/or the illegal entry of non-EU nationals in EU Member States (such offenses are currently punished in 28 of them). While the European lawmaker that passed the Return Directive (2008/115/EC) - which does not need to reap consensus for electoral purposes - relies on administrative law in order to control and manage migration flows, national legislators usually complement the relevant administrative provisions with criminal sanctions. Yet, as the EU Court of Justice has stated in recent years, according to EU law the scope of criminal sanctions should be very narrow in the matter under consideration, to the extent that it becomes a blunt weapon. The same applies in Italy, where - as a result of the implementation of the EU law - crimes related to illegal entry and illegal residence (with the exception of the offense of unlawful re-entry) are now punished with mere fines, which are bound to remain unenforced. Therefore, criminalizing illegal immigration is useless as it is no deterrent and does not even facilitate deportations. Hence, the only reason for providing criminal sanctions against illegal immigration is a symbolic one, which is, in turn, functional to security-related policies and "criminal populism", aimed at gaining cheap electoral consensus. This contradicts the role of "last resort" that criminal law is supposed to play. Therefore, the recent decision taken by the Italian Parliament to delegate the task of decriminalizing criminal offences of illegal permanence and entry in Italy to the Government should be greeted with favor.

 

Sechi P., Countering Prison Overcrowding and Alternatives to Detention: a First Assessment, p. 199 s.

After examining the implications of the pilot judgment of the European Court of Human Rights in Torreggiani and others v. Italy concerning prison overcrowding, this paper focuses on how to endorse alternatives to detention - including both measures that extend the range of sanctions and measures operating at the time of enforcement of a sentence - by analyzing the effectiveness of the new laws on this subject in order to tackle the issue of prison overcrowding. Finally, the author outlines the possibility of introducing a new alternative measure to detention, anchored to the last period of the sentence to be served, which plays the dual role of facilitating the reintegration of offenders and of making them feel responsible by imposing primarily restorative provisions.

 

Corda A., Substantive Criminal Law Theory and Evidentiary Dynamics: Criminal Imputability between Culpability and Affirmative Defenses, p. 238 s.

This paper explores the treatment at trial of criminal imputability of adults and of its absence due to insanity from the evidentiary standpoint. Although, on the one hand, modern acquisitions of criminal law theory steadily encompass imputability among the elements of culpability, on the other hand, the majority case law continues to consider it as a component located external to the structure of the offense. Such a classification, which is dictated by the need of lightening the prosecutor's burden of proof, has several significant consequences for the operational aspects of the institution. The resulting model resembles that of the affirmative defenses familiar to U.S. criminal law, with particular reference to the insanity defense. The handling at trial of imputability also provides the opportunity to suggest a taxonomy of the so-called phenomenon of 'trial modification' of substantive criminal law categories, and to propose some thoughts on the delicate relationship between developments in criminal law theory and judicial interpretation.

 

Guido E., The Value of Legality in Enterprises in the Wake of the Law on Liability of Entities for Criminal Offences, p. 280 s.

The entry into force of the recent law No. 190 dated 6 November 2012 aimed at eradicating corruption from the public administration has triggered a debate on the regulatory instruments provided by the legal system in order to protect the value of legality in the performance of  economic activities. More specifically, this paper offers a comparative analysis of two models of corporate compliance, i.e. the compliance programs introduced by legislative decree No. 231 dated 8 June 2001 for entities, and anti-corruption plans, which the aforementioned law has made compulsory for the Public Administration. This comparison emphasizes their differences and points out how the entire legal system has come to embrace the principle of prevention through organization, in spite of the differences that exist between the protected values and the designated bodies.

 

Pezzimenti, C., Criminal Liability of Physicians between Guidelines and "Non-Mild" Negligence: a Critical Analysis, p. 311 s.

In an attempt to identify solutions for mitigating the phenomenon of defensive medicine and  rationalizing the system, article 3, paragraph 1, of the so-called "Balduzzi Decree" specifically regulates the criminal liability of physicians. The purpose of this paper is to analyze the new regulatory boundaries of medical negligence. After discussing the case-law developments on guidelines, the paper shall focus on the role that such guidelines - which are explicitly valued in the applicable regulatory provisions - may play in determining the Tatbestand. On the other hand, this paper shall focus also on the subjective measure of negligence. As a matter of fact, what needs to be established is whether or not mild negligence may apply and consequently whether the latter may be understood as a legal exemption from any charge of negligence. The interpretation offered by the author is aimed at emphasizing the objective and subjective identification of the liability judgment. The purpose is to redesign the physician's criminal liability in the light of truly negligence-based terms, i.e. in full compliance with the principle of individuality of criminal liability pursuant to article 27, paragraph I, of the Italian Constitution.

  

Cases and Comments

Giuliani L., "Independent" Grounds of the Order directing a Coercive Measure and Powers of the Judge of Freedoms pursuant to Article 309 of the Italian Code of Criminal Procedure (on the Verge of a "Historical" Reform?), p. 354 s.

The Constitutional Court is called upon evaluating the consistency of the review discipline on precautionary measures with the constitutional principles - notably with article 13 paragraph 2 of the Constitution, which is to be interpreted in light of the right of defense and of the principle of impartiality of the judge -  in those cases in which such review discipline does not allow the Judge of Freedoms to reverse a preliminary injunction order if the latter provides grounds per relationem but does not include an independent assessment of the submitted evidence. The two issues at the core of the constitutional objection in point are the appropriateness of the grounds and the means of protection against defects of grounds in measures restricting personal freedom. While a procedural obstacle prevents the Court from considering the merits, a discussion on this topic seems to be appropriate in light of  the upcoming legislative reform that, having an impact on article 309 paragraph 9 of the Italian Code of Criminal Procedure, will innovate the legal and theoretical debate on this point.

 

Corvi A., Searching for the 'Fact' constituting the Offense of Criminal Association, p. 375 s.

The judgment discussed in this paper deals with the requirements for reviewing a final conviction for the offence of criminal association (in this case aimed at illegal drug trade), in the case governed by article 630, paragraph a), of the Italian Code of Criminal Procedure, establishing that two judgments reaching opposite results on the existence of a certain criminal association, on the basis of the same evidence, are grounded on mutually incompatible facts. In this comment, the author analyzes the constitutive elements of the crime and dwells on the required element of the 'organization', which, according to the most outstanding legal theory and case law, must be truly apt  to achieve the goals pursued by the criminal association. Finally, the author suggests other possible features that may be instrumental to defining the concept of "organization", thus making it more consistent with the principles of accuracy and offensiveness in criminal matters.

 

De Santis G., On Criminal Liability for Tax Avoidance, p. 395 s.

 The order of the Court of Catania discussed in this paper provides an overview of the complex - national and international - legal debate on the misuse of tax law and specifically of criminal provisions on this matter. The case in point originated from an investigation for untruthful tax return due to tax avoidance allegedly committed by an entrepreneur. However, the Italian legal system does not provide any criminal sanction for tax avoidance, which is only punished with a fiscal sanction (pursuant to art. 37bis of Presidential Decree No. 600/1973). Using the above-mentioned art. 37bis through  art. 4 of Legislative Decree No. 74/2000 to devise a criminal sanction would be unacceptable in light of the principle of nullum crimen sine lege, both on a national and on an international level, pursuant to article 7 (ECHR) and to article 49 (Charter of fundamental rights of the European Union). Furthermore, establishing whether or not tax avoidance implies criminal liability has become even more urgent because of the new fiscal regulations soon to be implemented by the Government.

 

Trinchera T., Criminal Liability in Surrogate Motherhood Services Obtained Abroad: Between Alterations of Status and Misrepresentations of Personal Qualities to Public Officials, p. 418 s.

Over the past year, the case law has repeatedly addressed issues concerning surrogate motherhood. More specifically, for an Italian couple obtaining such service abroad and then receiving legal recognition of parenthood in Italy, the main issue is whether or not such couple may be held liable for "alteration of status by means of misrepresentations" (art. 567 § 2 of the Italian Criminal Code) or "misrepresentations of personal qualities to a public official" (art. 495 § 2 n. 1 of the Italian Criminal Code). In this paper, the author analyzes the different solutions endorsed so far in the case law, focusing on two recent decisions made by the Court of Milan and by the Court of Varese, which acquitted the defendants on both charges. In the latter case, the judge has followed the principles outlined by the European Court of Human Rights in the Mennesson and Labassee cases concerning surrogate motherhood.

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DISCUSSIONS

Maiwald M., Reading G.L. Gatta, "La minaccia. Contributo allo studio delle modalità della condotta penalmente rilevante" (Aracne, Rome, 2013, p. 313), p. 441 s.        

 

Bacco F., Reading "'Verità' del precetto e della sanzione penale alla prova del processo", edited by G. Forti, G. Varraso, M. Caputo (Naples, Jovene, 2014), p. 444 s.   

 

LAWS AND DOCUMENTS

Address of Pope Francis to the Delegates of the International Association of Penal Law (Hall of Popes, 23 october 2014) - with a Comment by L. Eusebi, "Cautela in poena", p. 459 s.        

Letter of His Holiness Pope Francis to the President of the International Commission Against the Death Penalty (Vatican, 20 march 2015) - with a Comment by L. Eusebi, "Cautela in poena" , p. 466 s.