ISSN 2039-1676

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9 luglio 2016 |

Rivista italiana di diritto e procedura penale n. 1/2016 (abstracts - English)

OBITUARIES

R. Orlandi, In Memory of Massimo Nobili, p. 1 s.

 

LEGAL THEORY

ARTICLES

A. Alessandri, The Uncertain News about False Accounting, p. 1 s.

Just after the 2015 reform, Italian Courts were left with several interpretation issues stemming from the "new" wording of the provisions regarding accounting fraud (Articles 2621-2622 Civ. code). With the aim of trying to solve those issues, the essay begins with a brief analysis of the evolution of the crime in the Italian legal framework. Then, through a comparative approach mainly involving common law systems, the focus shifts to the concepts of "materiality" and "deceptive attitude". The broad construction of the concept of "material facts" - construed as comprehensive of accounting estimates - seems to require a rather creative approach, although this seems to be the only solution to accurately frame the crime. Conversely, a strict construction is suggested for the other requirements.

 

A. Bernardi, The Development of Alternatives to Detention in Europe Between Comparative Analysis and Supranational Inputs, p. 51 s.

The article aims at analysing the development of non-custodial sanctions in Europe. The Author argues that such development can follow two main patterns: a horizontal one and a vertical one. The horizontal model is based on comparative legal studies and implies a spontaneous reception and transplant of alternative sanctions existing in other legal systems. The vertical model is based on the adoption of non-custodial sanctions recommended or prescribed by international and supranational legal sources. The pros and the cons of the first model are highlighted and emphasis is placed on the increasing importance of an interstate harmonisation of non-custodial sanctions fostered by the vertical influence of international and supranational legal sources. The most visible outcomes of these developments are briefly summarised with regard both to European and Italian legal context.

R. Bartoli, Criminal Law Between Revenge and Restoration, p. 96 s.

We inherited the belief that, being totally left in the hands of public institutions, modern criminal law has overcome the logic of revenge. Actually, if we analyze the matter more closely, we easily realize not only that modern criminal law still maintains a vengeful spirit, but also that concentrating the punitive power with public institutions means that there is no more space for restoration. Nowadays we can recover such space by integrating restorative justice with the traditional idea of criminal justice.

G. De Santis, The Aporias of the Asset-based Prevention System, p. 109 s.

Due to the changes introduced in the legal provisions in 2008 and 2009, preventive confiscation is now applicable also to generically dangerous people, regardless of the application of a personal preventive measure, and the generic danger related to an individual at the time the aforementioned measure is requested. Nonetheless, according to the Supreme Court ruling in Joint Session in the Spinelli case, preventive confiscation still has a merely preventive purpose, similar to a security measure and thus is not subject to the principle of non-retroactivity pursuant to article 25, subparagraph 2, of the Italian Constitution. Even though the Supreme Court's decision highlighted the time correlation between the time when the asset was purchased and the generic danger of the individual, rather than an objective analysis of the law, this seems to be the result of political purposes, i.e. fighting organized crime regardless of any fundamental right. Furthermore, the same political reasons for supporting confiscation without conviction underlies the rulings of the European Court of Human Rights and Directive 2014/42/UE.    

S. Grosso, Selecting Precautionary Rules in Negligence Crimes Between Criminal Law and Evidence at Trial, p. 146 s.

Despite the overwhelming consensus among scholars that Criminal Negligence is part of the so-called "Tatbestand", there is no agreement on the criterion for selecting the precautionary rules and defining the duty of care of the defendant. Moreover, judgments on negligence crimes are currently based on the judge's intuition and foresight. The Author aims at finding a way to reduce the scope of judicial foresight. This article addresses, in a procedural perspective, the solution to the issue of the criterion that defines the duty of care in negligence crimes. Protecting the right to be heard and the principle of "beyond reasonable doubt" will be the North Start and benchmark of the proposed solution

G.M. Napoli, Infingements, Sanctions and Disciplinary Proceedings in Jails and Prisons: A Preliminary Analysis (for Potential Reform Actions) under the Principle of Proportionality, p. 186 s.

 The purpose of this contribution on the disciplinary power of the penitentiary administration is to analyze the operational approach by which the principle of proportionality should guide the exercise of public powers, from the abstract configuration of an infringement and determination of sanctions, to the specific enforcement and execution of punishment. The fundamental consideration on which this study is based is that, in jails and prisons, disciplinary sanctions do not protect a special interest of the administrative organization in which the person in vinculis is detained, but "are set within the general legal framework", thus a protection of the same values involved in several criminal offenses can be expected. This peculiar connotation, which distinguishes the punitive mechanism against the detained from other types of disciplinary sanctions, deserves a closer assessment of the nature of proportionality in the enforcement of repressive measures.

I. Pisa, The Italian System of Civil Protection and Criminal Liability, p. 223 s.

This paper examines criminal liability in the Italian system of Civil Protection from the angle of duties of care, which are the main feature of the "improper" crime of omission. The strict limits set by the Constitution are taken into account in the discussion of several real cases. The issues concerning the actual enforcement of legal provisions on crimes of omission in this special field are discussed with a view to finding satisfactory solutions.

F. Serraino, 'Ndrangheta-Type Associations Operating in New Territories and the Interpretive Issues in the Application of Article 416 bis of the Italian Criminal Code, p. 264 s.

The expansion of the 'Ndrangheta phenomenon over and beyond its homeland requires that the criminal law science and case law address the question of the applicability of the Article 416 bis of the Italian Criminal Code in the case of "delocalized mafia organizations" in non-traditional geographical areas. The author begins with a brief reconstruction of the organizational model adopted by the 'Ndrangheta in the North of Italy, and then provides an overview of possible solutions to the question of whether the identification of a typical 'Ndrangheta organizational structure is in itself a sufficient condition to apply the provisions of Art. 416 bis of the Italian Criminal Code also in the absence of evidence of an actual manifestation of the mafia method. The variety of possible answers to this question stems from a persistent interpretive conflict in the case law concerning the "ability to intimidate" requirement of 416 bis of the Italian Criminal Code. After providing a critical analysis of the main judicial interpretations of the elements that characterize the mafia methods established under the aforementioned article, the author concludes that, in order for Art. 416 bis of the Italian Criminal Code to apply also in the case of classic mafia-type criminal organizations operating in non-typical Mafia contexts, the adoption of the mafia method should be ascertained without necessarily providing strict evidence of the local rootedness of the organization or of an actual perception of its intimidating ability by the community.

 

G. Toscano, At the Boundaries of Constitutional Review on Criminal Laws in Bonam Partem, p. 304 s.

The purpose of this paper is to provide an accurate albeit non-exhaustive reconstruction of the debate on Constitutional review regarding criminal law provisions in bonam partem with a view to examining the soundness of the reasons that, over time, have limited the intervention of the Constitutional Court in such cases. This has always been a hot topic in the criminal law doctrine, split between enlightened suggestions aimed at preventing in malam partem interventions by the Constitutional Court and the constitutional requirement to ensure the legality of the entire legislation. Upon analyzing the views described in the legal literature and the opinions of Constitutional Judges, the Author will try to overcome the contrast that has gradually developed between rule of law and constitutional justice, remarking that, in this respect, the only real limit to the intervention of the Constitutional Court is a general compliance with the principle of legislative discretion.

 

CASES AND COMMENTS

M. Donini, The Contrada Case and the ECHR. The State is Liable for Violating the Rule of Law through a Retroactive Criminal Law created by Judicial Law Making, p. 333 s.

The comment clarifies the reasons for the ECHR judgment April 14, 2015 Case Contrada v. Italy in defining the "external participation" in a criminal organization as a case of judicial construction of a new type of offence, an autonomous figure of the special part in the frame of the crime of mafia enterprise that arises next the internal participation and is not a normal application of the general criteria of assessories responsibility (art. 110 f. penal Code). The European Court did not assess the specific individual-subjective foreseeability of the applicant as a parameter, but a general and objective predictability of the charged offence, because this case had not yet arisen as a "type" of crime, at least until the judgment United Sections of the SC Demitry 1994, and actually it was differently rebuilt from subsequent United Sections of the SC Carnevale (2002) and Mannino (2005). The Judgment establishes a figure of state-judicial co-responsibility in unlawful interpretation / application of the law that puts urgently the issue of the institutional solution of synchronic conflicts of jurisprudence, but also of constitutional review in the cases of lack of accessibility and foreseeability of the constituent elements of the offence, as is still the case of art. 416-bis penal code.

 

F. Rossi, Obligation to disapply National Criminal Provisions in Malam Partem: between European Integration and "Counter-Limits". The Problematic Judgement of the European Court of Justice in the Taricco Case, p. 373 s.

The ruling in point obliges national judges to disapply - with effects in malam partem on the defendant - the last paragraph of article 160 and the second paragraph of article 161 of the Italian Criminal Code when these provisions violate the obligations to adopt deterring and effective measures to protect the financial interests of the European Union. The European Court of Justice has recognized the direct effect of article 325 TFEU, qualified the limitation period in criminal matters as a procedural institution, and has excluded the above-mentioned provisions from the guarantees offered by the principle of legality, thus creating a considerable discrepancy between the position of the ECJ and that of the Italian Constitutional Court. The Taricco judgement falls within the complex process of European integration in criminal matters, shifting the core of the debate onto issues concerning the relationships between the EU and national legal systems and the limits of EU legal sources in criminal matters.

 

M.T. Collica, The Italian Constitutional Court's Position on the Reform of Social Dangerousness of Criminally Non-Responsible or Semi-Responsible Mentally Ill Individuals: a Novelty to be scaled down, p. 411 s.

The Constitutional Court rejects the issue of the constitutionality of Italian Law No. 81/2014 for lack of grounds, but is reduces the scope of the modification concerning social dangerousness of insane and semi-insane individuals. Unlike the original interpretation, which seemed to exclude any factor regarding the personal, family and social life of the defendant from the predictive indexes of social dangerousness, the Court now affirms that the deminutio introduced by the legislator only applies to the criteria for selecting the applicable safety measures and the conditions for applying detention measures (in judicial psychiatric hospitals or mental health centers). However, while this approach enhances the rationale of the Reform, i.e. avoiding that mentally ill individuals are confined in segregating places only because the welfare system cannot take care of them and not because of their personal conditions, it fails to fully overcome some of the limits of the Reform itself. In fact, the solution offered by the Constitutional Court might turn out to be less effective, on a practical level, than it appears to be, and it reveals an urgent need for a general reform of the legislation on safety measures.

 

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REFERENCES TO FOREIGN AND COMPARATIVE LAW

 

G.P. Fletcher, Language and Jurisprudence, p. 445 s. 

This is the Italian translation of the lecture given by Prof. George Fletcher at the ceremony for the presentation of the International Prize "Silvia Sandano", which took place in Rome on 4 December 2015, during a conference on "Civil Law and Common Law: what 'Grammar' for Criminal Law?". The lecture deals with the relationships between language and law and how the structure of the legal language may influence the legal concepts themselves. It then offers an overview of some fundamental principles of modern legal systems including the rule of law, presumption of innocence, fair trial, reasonableness, in order to compare common law and civil law traditions, analyzing the different languages of law and the history of legal thinking, in search for the basis and essence of the rule of law.

 

M. Papa, Laudatio of Prof. George P. Fletcher on the Occasion of the Conferment of the VIII Silvia Sandano International Prize - Rome, 4 December 2015, p. 454 s.

George P. Fletcher, Cardozo Professor of Jurisprudence at the Columbia University School of Law, stands out among criminal law scholars, as a magisterial "synthesis" between common law and civil law legal cultures. Fletcher has investigated both cultures for about forty years, exerting a significant influence on the development of the procedural and criminal law worldwide. It is enough to mention here his fundamental books Rethinking Criminal Law (1978), Basic Concepts of Criminal Law (1998) and The Grammar of Criminal Law (2007). The laudatio pronounced by Prof. Michele Papa on 4 December 2015 in the Sala Zuccari of Palazzo Giustiniani (Senate of Italian Republic), on the occasion of the conferment of the VIII Silvia Sandano International Prize, traces the scientific and human experience of Fletcher, highlighting his unique and truly universal profile.

 

F.A. Domenech, Case Law on the Right to the Last Word in Spanish Criminal Proceedings, p. 466 s.

The right to the last word is recognized as a fundamental right in article 24 of the Spanish Constitution. However, this recognition and the special protection have not been translated into a specific regulation of the actual contents. Indeed, this right is poorly regulated or even not regulated at all. This is why this paper aims to define the various elements of the right to the last word by analyzing the national case law and especially the rulings of the Constitutional Court. The importance of this analysis lies in the fact that this procedural guarantee is the last legal instrument available to defendants in proceedings that may result in their being deprived of their freedom.