ISSN 2039-1676

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1 settembre 2015 |

Rivista italiana di diritto e procedura penale n. 2/2015 (abstracts - English)

LEGAL THEORY

 

Articles

Romano M., Dolus eventualis before the Supreme Court in Joint Session: Rethinking the Theory of Risk Acceptance

The Author discusses the ruling of the Supreme Court in Joint Session in the ThyssenKrupp case. While recognizing the strengths of this decision, he feels that the criticism raised by the Court against the so-called "risk acceptance" theory as capturing the dolus eventualis, is exaggerated. Although he acknowledges a measure of inaccuracy in the way this theory is traditionally expounded, he regards it as convincingly expressing, under given circumstances, the intent to trigger a collateral offence beyond the offence that is primarily pursued. The Author maintains that, in order to be fully consistent, the Court, in the ThyssenKrupp case, should have found for a simple negligence instead of negligence aggravated by foresight. He further underlines that the Court, by requiring a 'strong  will' as a precondition for the dolus eventualis, is overcharging it with a wide range of elements which are inconsistent with other forms of intention. As to how the dolus eventualis may be proven, the Author shares the Court's findings on the crucial role played by the so-called 'indicators', which, although they do not constitute dolus by themselves, do assist in establishing whether or not there is dolus in each individual case. Finally, the Author claims that, while it is difficult to provide evidence of dolus eventualis, it is not an impossible task, and ultimately it is not essentially different from proving intention generally or any other state of mind factor required under the general criminal law as well as in individual offences punished under the criminal law system.

 

Ronco M., Considerations about Dolus in Criminal Law

The author examines the issue of will in the notion of intent, focusing on psychological phenomena producing a synthesis, such as perception, consciousness and human actions, where the various human faculties, especially memory, intelligence and will, interact dynamically with each other. This paper emphasizes the rediscovery of the element of intentionality in contemporary science, as an active dimension of the mind prior to the acts of consciousness.The author then outlines the intentional model that explains the voluntary action as opposed to the traditional representational model, highlighting the active dimension of human agency. In the second part of the paper, the author, after highlighting the difference between will and desire, identifies the psychological dimensions of intention, judgment and choice of means as crucial, which leads to an innovative definition of intent, one that places at the center of the regulatory provision the intention of violating a legal right protected by law, the mental judgment by which the perpetrator recognizes his/her role in the causality of the fact, and the choice of the means aimed at pursuing the intended objective.

 

Eusebi L. Frank's Formula and Oblique Intention in the ruling by the Italian Supreme Court in Joint Session of 24th April 2014 (ThyssenKrupp case)

The Italian Supreme Court (Corte di Cassazione) requires on the so-called case ThyssenKrupp for oblique intention to ascertain a precise state of mens rea, rejecting regulatory-type descriptions of the criminal intent. According to this judgment, the article explains that the (first) Frank's formula - a subject would have operated even if he/she would have known that the consequences of his/her act would have occurred for sure - constitutes the only possible definition of this psychological state. Thus, the Frank's formula is not an assessment criterion, although Italian Justices consider it the main indicator, among several, of the oblique intention.  The indicators listed in the sentence represent the necessary criteria to ascertain whether there is, beyond any reasonable doubt, what the Frank's formula - as definition of the oblique intention - requires; indeed, no definition can be applied without any verification policy. In other words, any other alike criteria is not equivalent, but functional to the Frank's formula. Moreover, if they were applied independently, they could lead to regulatory-type descriptions of the criminal intent. The article also examines the limits of the chance to shape oblique intention in cases of offence by neglect. However, the essay argues against the strict necessity to use the category of the oblique intention in criminal law and highlights the irrational elements of the current criminal policy regarding  harmful events caused by conducts which were not selected in order to provoke their occurrence, both in case of culpable negligence or oblique intention.

 

Zacchè F., Precautionary Measures: between the Fundamental Rights of the Accused and the Protection of Victims of Violent Crimes

Since the beginning of this millennium, the protection of victims has become a priority in the national legislature. This is a result of the social alarm generated by violent crimes and of the international law on this issue. Within this framework, a large number of changes introduced in the applicable legislation acting in favor of the victim concern precautionary measures. However, this has caused a decrease in the level of guarantees for the accused, who is the actual weak subject in a criminal trial.

 

Grandi C., The Role of the European Parliament in the Approval of Criminal Law Harmonization Directives

The criminal law harmonization directives passed after the entry into force of the Treaty of Lisbon certainly feature a sounder democratic legitimation than the previous third pillar framework decisions. This result largely depends on the practical role played by the European Parliament in the related decision-making process. Notwithstanding the fact that the power of initiative is still held by the European Commission only, the EU Parliament has significantly determined the final version of the directives in point, through an extensive use of the power of amending the legislative proposals made by the Commission. The amendments introduced by the Parliament, always incorporated in the final texts, have often contributed to making the obligations to criminalise more consistent with the fundamental criminal law principles, thereby displaying the concern of the European Union representative organ that the development of a "European criminal law" takes place in full compliance with the latter principles.

 

Mongillo V., Confiscation for the Equivalent and Cost Saving: from an Uncertain Legal Regime to the Violation of Principles

The confiscation of the proceeds of a crime, especially under the innovative system of confiscation for the equivalent value, continues to raise many complex legal issues. The uncertain theoretical and teleological framework of this measure, also due to the vagueness of the underlying legal provisions, is at the root of the confusion and of the contradictions amongst the courts. These critical issues emerge patently in the case law with respect to the attempts made at extending - by analogy - the concept of the proceeds of a crime also to that of "cost saving", i.e. the intangible benefits consisting in the costs saved through the commission of a criminal offence. The author highlights the literal, axiological and criminal-policy obstacles that make, de lege lata, exceptionally problematic any forfeiture for the equivalent value of saved costs, and explores the limited possibilities of a legitimate and reasonable use of this instrument, also in view of a possible legal reform

 

Accinni G.P., "Environmental" Disaster and Tax Avoidance: Two Paradigmatic Examples of Substantial Violation of the Principle of Legality

"Environmental" disaster and tax avoidance are two paradigmatic examples of how the need to protect the community may lead part of the case-law to distance itself from the principle of legality. These "exceptional" types of offences are considered to be crimes even in the absence of specific law provisions (as in the case of  "environmental" disaster, which is subsumed into the category of "unidentified" disaster), or as a result of an overruling in malam partem (as in the case of tax avoidance).

 

Dell'Osso A.M., The New Crime of Self-Laundering: Criminal Political Requirements overshadowed by Media and Investigative Needs

Over the past years, many scholars have advocated the need to overtake the impunity granted to self-launderers under article 648-bis of the Italian Criminal Code. This position originated from the impossibility to find a rationale for such provision. More recently, the discussion on this topic expanded well beyond the academic circles to become a core issue in every political debate on criminal law: self-laundering was presented as a crucial instrument to duly prosecute some of the most serious crimes. From this new perspective, the debate lost clarity of thought, to the point that the crime introduced last December raises a number of interpretative issues. This essay analyzes some of the potentially critical aspects of the new crime, focusing on its scope and on the connections with the crime of money laundering.

 

Martufi A., Nulla pericolositas sine actione? Social Dangerousness and Material Element of Crime in Quasi-Offense Cases

This article provides an overview of the evolutionary process through which the Italian criminal law theory has gradually reformulated the role played by the material element of a crime in the prognosis of social dangerousness of its perpetrator pursuant to article 203 of the Italian Criminal Code. The Author points out that there is an increasing consensus on the need to ground the above-mentioned prediction on the objective features of a crime as opposed to the sole criminal potential of the accused person. However, there remain some exceptions which allow the judge to predict the degree of social dangerousness of a person (and order a precautionary measure) even if such person has not committed any prior crime, i.e. the so-called quasi-offenses. The risk is that such prediction may only take into account the intention of the accused person and his/her criminal potential. In order to prevent this outcome, the Author offers some proposals focusing especially on the provisions of article 115 of the Italian Criminal Code.

 

Sanfilippo P., Judicial Redefinition of the Rules established under Law No. 40/2004: a Peculiar Case of "Heterogony of Ends"

With the entry into force of law No. 40/2004, the Italian Legislator introduced a substantial discipline of assisted fertilization, which only apparently set consistent rules on the different methods and techniques used to solve human infertility issues, while in reality it defined several boundaries and strict limitations to the individuals' right of self-determination. As a matter of fact, the original legislation on assisted fertilization imposed a one-way perspective on this thorny problem, as it totally protected both the biological dimension of parenthood and the embryos' rights and dignity. However, in the past ten years, the European and domestic case-law has redesigned the original setting, deleting three of the main controversial rules, i.e. the prohibition to produce supernumerary embryos and their simultaneous implantation, as well as the prohibition to make pre-implantation genetic diagnosis and heterologous fertilization. Despite these amendments, law 40/2004 cannot be considered as a means of protecting fundamental human rights and freedoms, but rather as a weapon against them.

 

Toscano G., The Troubled Evolution of the Drug Legislation

This paper analyzes the main changes introduced by the Law No. 79 of 12 May 2014 on drugs. The aim of this law was to cope with the problems generated by ruling No. 32/2014 of the Italian Constitutional Court. To date, this measure is the latest chapter in a series of troubled legal events that have transformed the criminal legislation on drugs and which have raised complex interpretative issues, especially on the succession of law. While a generally positive opinion can be expressed on the new law, it should be pointed out that a more general systemic reform of the drug legislation is needed, which reform has, once again, been postponed by legislator.

 

Cases and Comments

 

Goisis L., The Constitutional Court's Screening on the Criterion of Applicability of Fines as an Alternative to Detention and the Need to reform the Discipline

In its ruling No. 214/2014, the Constitutional Court deals with a constitutionality issue, with reference to articles 3 and 27 of the Constitution, affecting the reformed criterion of applicability of fines as an alternative to detention. After providing an overview of the evolution of article 135 of the Italian Criminal Code from the 1993 reform to the recent reform of 2009, the referring judge observed how the disproportioned increase in the criterion of comparability - bringing the fine to € 250 per day of detention - produced an "undeniable imbalance" in the system, primarily in relation to the fine charged as an alternative to short terms of imprisonment. The Author takes inspiration from the decision of the Constitutional Court, which found the issue inadmissible, to advocate a reform of the whole legislation on the applicability of fines as an alternative to detention.

 

Maugeri A.M., A Final Word on the Nature of Preventive Confiscation? From the Spinelli Judgement of the Supreme Court in Joint Sessions to the ECHR's Gogitidze Judgement on Civil Forfeiture

In contrast with the punitive nature attributed to preventive confiscation (Occhipinti judgment) as a result of the recent reforms, the Supreme Court ruling in Joint Session reaffirms its merely preventive nature, which makes it comparable to the security measure and not subject to the principle of non-retroactivity pursuant to article 25, subparagraph 2 of the Italian Constitution. Such an extreme position is questionable, even where it attempts to justify the equivalence of generic danger to society and qualified danger. It also denies the higher standards of proof of the illegal origin of the assets required of the prosecution. However, this judgement is valuable when it demands a time correlation between the danger posed to society and the time of  purchase of assets, thus limiting the material scope of the confiscation and better guaranteeing the right of defense. This ruling belongs to a more general (supranational) trend in favor of confiscation without conviction, as is strongly affirmed in the recent judgment of the ECHR in the Gogitidze case.

 

Vicoli D., The Constitutional Unlawfulness of Criminal Sanctions affecting also Final Judgements: A Rethinking of Penalty Enforcement by the Italian Supreme Court

The Italian Supreme Court declared that, notwithstanding the value of res iudicata, illegal penalties must be withdrawn by the judge in charge of enforcing penalties. This principle now applies also when the law imposing a harsher penalty for a certain criminal offence is found to be illegitimate by the Constitutional Court. In the Author's opinion, the rule stated by the Court is reasonable. Conversely, some aspects of the relationship between penalty enforcement and the value of res iudicata are thought to be debatable.

  

REFERENCES TO FOREIGN AND COMPARATIVE LAW

 

Staffler L., The New War Offenses and War Crimes in the Austrian Criminal Law

The Author provides an overview of the legislative amendments introduced in the Austrian legal system concerning war offenses and crimes that became effective on January 1, 2015. To this purpose, the following paper contains the verbatim translation of the new and amended provisions included both in the criminal code and in the code of criminal procedure regarding this matter. The author also offers a short analysis of the reasons why the Austrian legislator decided to undertake this reform.

  

DISCUSSIONS

 Pisani  M., Short Comments on Criminal Law Topics

 Somma E., Negationism and the Armenian Genocide: Freedom of Expression and Right to Lie according to the European Court of Human Rights