ISSN 2039-1676

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3 ottobre 2016 |

Rivista italiana di diritto e procedura penale n. 2/2016 (abstracts - English)

 

LEGAL THEORY

ARTICLES

Pisani M., Life Imprisonment, p. 575 s.

This paper outlines the Italian history of life imprisonment starting from the 1930 Criminal Code until today. The evolution of the complex discipline governing this punishment basically follows two paths: one of progressive softening in terms of enforcement, and one of harmonization with the constitutional principles. The paper also provides an analysis of the difficult search for new legal frameworks and indicates some potential new goals (which can be summarized with the expression "reducible life imprisonment") in line with a European direction.

 

Amodio E., Overusing Procedural Patters. The Call for Ethics and Aesthetics in Criminal Proceedings, p. 630 s.

Pursuant to the Italian criminal procedure, the abuse of process works as a protective device aimed at preventing the prosecutor and the defense counsel from using malpractice to hinder the course of the proceedings. Such a remedy was introduced by the case-law and so far has been totally overlooked by statutory provisions. This is why its vagueness turns out to be helpful when facing several different unfair conducts. From an ethical perspective, overusing procedural models amounts to an action by the player who does not take his rights seriously, since he is running to get a mere personal advantage outside the game. Furthermore, the player pretends to fashion his behavior after the legal model while any observer clearly sees that he is mocking the law, thus causing an aesthetical prejudice.

 

Pulitanò D., On Punishment. Theory, Principles, Politics, p. 641 s.

The attention to the material condition of punishment and to the rehabilitation idea, which opens the prospective of a flexible way of penalty, is an element of novelty in the constitutional principles concerning punishment. The morality of the criminal law is the morality of the principle of liability. The legal correctness and the ethical-political sustainability of the liability judgment are necessary but not sufficient conditions of the justice of the penal consequences. The justice of the judgement (and, even before, of the precepts) demands strict requirements of rationality and ethical-political sustainability. The justice in the reaction to a crime (in the law and in the law enforcement) has to face the specific problems of the punishment, even if it is not in question the justice of the judgment about the committed crime.

 

De Vero G., Causation and Risk in Criminal Law, p. 670 s.

The relation between causation and risk develops on three levels. Originally, the concept of risk was used to restrict the outcomes of the sine qua non test. Later on, it took on an independent function which destabilized causation, sometimes explicitly, as is the case when a crime is committed by omission. Other times, this independent function of risk has distorted the principle of causation despite its declared "faithfulness" to the causation dogma, for instance in the I.N.U.S. condition theory and in the "epidemiological evidence" model. In this case, an in-depth analysis (in terms of "alternative investigation") of the link between the harmful events affecting individuals and the criminal conduct would be unhelpful. In principle, the proposal of a criminal law of risk in the strict sense in terms of explicitly waiving the causation model and eliminating the event from the structure of the crime is more coherent. However, the results of this approach are disappointing when considering the empirical criminal evidence of the "risks of modernity". However, it is still possible to preserve a criminal law based on the natural event, both with regard to the crimes committed by natural persons and to the crimes committed by legal persons, if an independent liability for the latter is recognized.

 

Donini M., A Critique of Wrongfulness and the Procedural Test of Criminal Law Categories. Balancing Interests within and beyond the Justification of a Crime, p. 698 s.

This paper provides a radical critique of the category of Wrongfulness as an independent element of crime and in the framework of its procedural dimension. As is the case with punishability and guilt itself, wrongfulness cannot be taken as evidence because only the causes that exclude it can be proved, i.e. justifications (such as causes of non-punishability and excuses). What matters are the justifications that completely fill the chapter of Wrongfulness. Objective wrongfulness is an expression of a pre-constitutional general theory of law that does not value the deep difference, including from a procedural viewpoint, between elements of crime (both objective and subjective), justification and excuse. Similarly to any wrongdoing, which has subjective components and is not only res extensa, also justifications may enhance subjective components (self-defense, necessity), if necessary. A balancing of interests, far from involving only the causes of justification, is present in the structure of offenses, in the excuses, and in the causes of non-punishability. Excuses, however, pertain to rules of adjudication, while justifications relate to rules of conduct.

 

Pelissero M., House Detention: Deflationary Advantages and the Issue of Treatment Offering, p. 733

The legislature has made extensive use of house detention as an alternative measure to imprisonment, first for humanitarian purposes and, more recently, as a means to reducing prison overcrowding. There is no doubt, however, that the advantage in terms of overcrowding deflation is coupled with problems of consistency with some constitutional principles, especially the principle of equality and the rehabilitation function of the penalty. Delegated Law No. 67/2014 provided for the introduction of house detention as a primary penalty, but the Government failed to implement this legislation. Although the reform had the limit of being partial and sectorial, the introduction of house detention as a primary penalty would have been an important turning point in the criminal policy providing a potential extension of the range of primary penalties alternative to imprisonment.

 

Bontempelli M., Controls on Defective Statements of Reasons in the New Re-Examination Proceedings, p. 756 s.

The innovations introduced in article 292 subparagraph 2 and in article 309 subparagraph 9 of the Italian code of criminal procedure by Law No. 47/2015 suggest new interpretations of the discipline governing the controls made by the Re-examination Court on defective statements of reasons stated in the supervision orders. Regulatory changes are consistent with the case-law, which tends to protect the defendants, where it already excludes that the Re-examination Court may enforce the appealed decision when the latter only provides "apparent" reasons. However, under the new regulatory framework, it seems that the consolidated interpretation provided in the Supreme Court rulings can be overcome, whereby the Court has the power to "remedy" defective statements of reasons when they are deemed to be "insufficient". In the new Re-examination proceedings, an insufficient statement of reasons (also per relationem) in the supervision order cannot be remedied (and the order must be annulled) if it is not supported by a statement of reasons for the supervision order based on the following scheme: evidentiary fact - experience-based maxims - established fact.

 

Accinni, G.P., Ghost Trials and Parodies of Justice (Submission to the Judge in charge of ruling on the Groundlessness of Public Health Risks), p. 791 s.

To establish whether or not crimes were actually committed against public health, a real health risk must be identified and substantiated with verifiable data and not on the basis of emotional reactions driven by the desire to prevent potential future damages. Accordingly, the so-called risk assessment method is unsuitable for identifying a real risk for the past, which can only be ascertained via a rational scientific method based on the so-called dose-response effect. In order to duly comply with the principle of harmfulness, the role of precaution in criminal law is not that established for crimes against public health but rather that of the so-called behavioral criminal law.

 

Gabrielli C., The New Compulsory "Road" Sampling: Much Ado about (Almost) Nothing?, p. 821 s.

Law n°. 41 of 2016 defines a new case concerning the compulsory acquisition of biological samples for the purpose of determining, even against the will of the party concerned, whether the person accused of the crimes defined in arts. 589-bis and 590-bis (Italian criminal code), was driving while drunk or under the effects of drugs. This legislative intervention leads to a number of critical considerations. It is not clear, for example, if the new emergency road sampling should be considered a type of compulsory sampling as referred to in art. 359-bis (code of criminal procedure), with consequent applicability of the corresponding procedure, or if it constitutes a stand-alone case, where only measures that are established or expressly referred to are applied. In particular, law n°. 41 of 2016 appears not to allow such compulsory blood sampling, that forensic toxicology studies point to as the only truly reliable method of ascertaining a state of drunkenness or drug-related disorder, if not at the price of a questionable straining of the guarantees enshrined in art. 13 of the Constitution.

 

CASES AND COMMENTS

Spena A., General Incitement to Crime and Freedom of Speech. Some Reflections on the De Luca Judgment, p. 845 s.

By commenting on the ruling of the Court of Turin in the case involving the renowned writer Erri De Luca, this paper clarifies some controversial aspects of the theory of entrapment and its relationships with the freedom of speech.

 

SPECIAL

The Criminalization of Dissent: Lawfulness and Limits. 4th National Conference of the Italian Association of Professors of Criminal Law

 

Guastini R., (Dissenting), p. 859 s.

The author first introduces the distinction between dissenting and expressing disagreement, secondly the distinction between bare disagreement and argued disagreement, and thirdly a further distinction among the possible objects of disagreement (namely, facts and values, respectively). Finally, he identifies ethical cognitivism as the "philosophical basis" of repression and non-cognitivism as the pragmatic foundation of tolerance.

 

Zaccaria R., Ideological Political Dissent from the Perspective of Constitutional Principles, p. 867 s.

In this paper, the author identifies the notion of 'ideological political dissent' and compares it with the laws concerning 'crimes of opinion' and with the constitutional principles set out in Article 21 of the Italian Constitution. More specifically, he examines the constitutionally acceptable limits according to the legal theory and case-law, in relation to the 'freedom of expression'. According to the author, the limit of "public order" that appears in many decisions of the Constitutional Court is incompliant with the constitutional provisions, hence he proposes to restrict the limits that apply to the freedom of speech to a mere compliance with the "democratic method" mentioned in article 49 of the Italian Constitution. Only a rigorous interdisciplinary collaboration between criminal law professors and constitutionalists may finally lead to the demise of those crimes of opinion that inexplicably tend to survive every reform.

 

Fiore C., The Criminalization of Political Dissent, p. 893 s.

"Crimes of opinion" introduced in the 1930 Criminal Code were originally aimed at repressing any political dissent to the Fascist Regime. They were also used later on, during Italian Republican period, despite the fact that they were in conflict with Article 21 of Constitution, in order to silence the "antagonist" - mainly left-winged - opposition. In the current Italian historical context where there is no clear-cut political head-on collision, not only can more "actors" be potentially charged with old and new crimes of opinion, but also the media may dramatically foster the spreading of potentially "dangerous" opinions. As a matter of fact, almost all of these conducts remain unpunished. The reason for this is not to be found in the ineffectiveness of the repressive mechanisms but rather in the fact that these are no longer considered as criminal offenses as they have lost any tangible dangerousness also as a result of a sort of "addiction effect" among the potential victims. Therefore, when it comes to publicly stating one's opinion, the basic rule of the system is equally applied: no conduct can be punished if the conduct itself is not liable to damage any protected interest.

 

Papa M., The Limits of Political Dissent: Points for Further Discussion, p. 902 s.

In his capacity of discussant, the author underlines how countering political radicalism is connected to the general issue of criminalizing political competitors. The author critically discusses the existing legislation against ideological radicalism and highlights the use of "street crime" statutes, as well as the crime of criminal association, to punish conducts that are actually put in place for political purposes. Digital political activism is a new critical issue and what is very difficult nowadays is to draft new criminal statutes that can capture and describe the truly relevant conducts on which the countering actions should be focused.

 

Gaeta P., The Limits of Expression of Political Antagonism and the Case-Law of the Supreme Court: General Considerations, p. 909 s.

Upon analyzing the case-law also from a statistical standpoint, the Author highlights how, during the last few decades, the decisions of the Italian Courts have applied the principles of repression of incitement of antagonist political opinions with great restraint and caution, thus endorsing the principle of actual harmfulness of crimes of opinion. At the same time, the Author points out how other decisions of wider "punitive breadth" regarding substantial conducts of "street" political dissent appear to be relevant especially as a result of an indefinite description of the offense of "devastation and ransack" provided for and punished under Article 419 of the Italian criminal code.

 

Canestrari S., Freedom of Speech and Freedom of Religion: Current Frictions and Criminal Outlines, p. 917 s.

This paper starts by outlining the concept of «secularity» which is a feature of the Italian Criminal Law. This characteristic derives from the Constitution and obviously applies also the freedom of speech and freedom of religion, i.e. the two main topics of this discussion. After summarizing the most critical relationships between freedom of speech and Criminal Law, the paper focuses on the main frictions that can be currently identified, also in the European context, between freedom of speech and freedom of religion. This phenomenon is analyzed through the lenses of secular Criminal Law. The Author specifically recommends taking a position inspired by the respect and protection of the differences existing in the public sphere.

 

De Maglie C., Should Immoral Conducts be punished?, p. 938 s.

This paper explores the issue of using criminal law to enforce moral beliefs, i.e. a topic that has been studied by European continental criminal scholars by resorting to the theory of Rechtsgut, or legal interest, and addressed in the Anglo-American literature through the lenses of the harm principle. However, both theories proved to be inadequate to solve the issue despite the high-level scholarly debate. Despite the many declarations of the principle of secularism, the question of whether merely immoral conducts should be punished or not remains open. A viable solution could be to shift the focus of the discussion from the legitimacy of prosecuting to the opportunity of punishing. Thus, the debate should be re-oriented towards the mandatory preconditions for any intervention of the criminal law in a democratic and efficient system.

 

Tesauro A., Hate Speech between Protection of Human Dignity and Harm to Others, p. 961 s.

This essay offers a critical investigation on the open issues regarding the constitutional legitimization and ethical-political justification of racist propaganda under the Italian criminal law. It also questions how to balance human dignity and freedom of speech with specific reference to the current danger requirement.

 

Brunelli D., About the Punishment of Denialism, p. 978 s.

The Author deals with the question of whether denialism should be considered as a criminal offence. Through a detailed analysis of the possible techniques that might be used in order to introduce criminal provisions on this issue, the Author comes to the conclusion that a legal intervention on the subject would be both useless and unfeasible. In reaching this conclusion, the Author leaves out any consideration on the repercussions on the freedom of speech and thought.

 

Cavaliere A., The Debate around the Legitimacy of the Punishment of Holocaust Denial: Three Issues concerning Harm Principle, Freedom of Speech and the Function of Punishment, p. 999 s.

The topic of this paper is the legitimacy of a criminal law intervention against the denial of the Holocaust, other war crimes or crimes against humanity. The first issue examined here is the compatibility of such criminalization with the harm principle. In fact, the substance of the harm caused by those conducts must be identified. The Author analyses the alternatives: protection of "public order", protection of "truth" and "memory", protection of personal dignity. The second issue is about the balance between harm and freedom of speech, and the third involves the proportion, necessity and efficacy of a criminal punishment, from the point of view of general and special prevention. The paper ends with a brief commentary on the recent introduction of a provision on Holocaust denial in Italy.

 

Fronza E., Criminalization of Dissent or Protection of Consensus. Critical Aspects of Denialism as a Crime, p. 1016 s.

This essay offers a discussion on the crime of denialism. The punishment of this form of expression falls into the scope of a larger wave of proliferation, transformation and growth of speech crimes. An analysis of the relationship between denialism and the traditional speech crimes shows that the former, despite the fact that it fully belongs to this category and hence shares most of its critical aspects (especially regarding the harm principle), seems to be a stand-alone subcategory. The main rationale behind criminalising historical denialism is, indeed, the protection and consolidation of a shared consensus concerning the truth of extremely important historical facts. In this respect, the provision in point serves promotional and symbolic purposes. The final part of this essay provides an assessment of the proposal made by the Italian legislator to introduce denialism as an aggravating factor of the crime of «dissemination of racist ideas» governed by the Mancino Act.

 

Forti G., The Strong Colors of Dissent in the Era of Diffused Hyper-communication. What is the Role of Criminal Law?, p. 1034 s.

Any "criminalization of dissenting opinions" would seem to trigger an obvious rejection. The issue becomes more complex if one sees it from the perspective of the current spaceless communication where violent and, above all, surprising, perhaps racist or simply negationist statements offer an easy redemption from the uniformity of the virtual worlds and a rediscovery of a deceptively individualizing "physicality". Faced with public expressions that undermine the essential ethical and political foundations of society and upon which the new media tend to bestow "moral relevance" simply because of their "aesthetics of strong colors", criminal law is called upon devising "other" legal interests (or something "other" than legal interests) to be protected. Drawing also from some interesting ECHR case-law, the situations in which the value of human dignity materializes should be explored: in proportion to the limits that apply to freedom of speech as a component of human dignity, it seems feasible to provide criminal protection to the respect of individual and collective feelings of members of communities that suffered genocides.