ISSN 2039-1676

logo università Bocconi
logo università degli studi di Milano
con la collaborazione scientifica di

ISSN 2039-1676


23 novembre 2018 |

Rivista italiana di diritto e procedura penale n. 3/2018 (Abstracts – English)

LEGAL THEORY

 

ARTICLES

Babcock B., The Death Penalty in the US and Worldwide. The Commitment of Universities and Legal Professions for the Protection of Human Rights, pag. 1035 ss.

This speech was delivered by the Author at a conference that took place at the University of Milan in May 2017. The Author – a Clinical Professor of Law at Cornell University – focuses on the death penalty in the US and worldwide, observing the past, present and future scenarios of this instrument. This analysis focuses on four major topics: the reasons why the death penalty is still in force in the US, the role of the international movement for its abolition, the importance of this issue in the presence of several other serious violations of human rights and, finally, the role that professors, researchers, lawyers and students could play in the fight for the abolition of the capital punishment. 

 

Bernardi A., A Relentless Fight against Jihadist Terrorism in Europe and its Impact on the Functions of Criminal Punishment, pag. 1049 ss.

As from 2001, international, supranational, and national legal sources in the field of counter-terrorism have multiplied and enhanced their repressive power, thereby increasingly restricting fundamental rights and freedoms. Starting from this background, the author questions, first of all, the reasons for such extreme harshness, and then challenges the congruity of European counter-terrorism laws with the different facets of retribution and with the purposes of general and special prevention. Finally, this paper briefly shows how the current counter-terrorism laws also end up distorting the very traits and aims of criminal proceedings, and sharpening the punitive features of ante delictum preventive measures, which are still extremely lacking in terms of individual guarantees.

 

Demuro G.P., Systematic Interpretation in Criminal Law, pag. 1088 ss.

Systematic interpretation allows to understand the conceptual links between the provision to be applied and the remaining provisions set out both by the criminal system strictly speaking and by the entire legal system. Systematic interpretation normally marks the inclusion of a type of crime in the factual, regulatory and value context. Given this definition, this essay discusses the applicative difficulties, most especially the definition of a system-wide notion, which is complicated in criminal law due to the difficulty of finding a fundamental idea suitable for creating a system. The outcome of this investigation points to the fact that the constitutional principles are ideally suited for fulfilling this role. Consequently, an interpretation that is compliant with the constitution is always systematic. The analysis follows the systematic path, emphasizing the inherent discretional nature of the choice and application of the interpretative method and the logical limit contained therein. The distinction between the provision and the norm, and the natural applicative dynamism of criminal law lead to the conclusion that, in the end, it is the very same normality of systematic thinking, based on consistency and capable of ensuring homogeneity, continuity, and gradualness of the logical path.

 

Manes V., Corruption without Typicity, pag. 1126 ss.

Fighting corruption has affected penalties and offences, mostly aimed at reducing the social perception of this phenomenon, defending the idea of a corruption-free public administration. In this perspective, the national legislator prefers to criminalize symptomatic conducts which refer to ambiguous notions such as “official misconduct” or “conflict of interests”. The outcome is a major deficit of legal certainty and determination, where crimes depend on subjective criminality rather than on the actus reus, thus influencing both evidentiary and procedural aspects. Examples of this improper approach are the offences of bribing (selling influences) (article 346 bis of the Italian Criminal Code), bribery for the discharge of official duties (article 318 of the Italian Criminal Code), inducement to give or promise anything of value  (article 319 quarter of the Italian Criminal Code), as well as several cases of collusive tendering (articles 353 and 353 bis of the Italian Criminal Code). The author offers a line of thinking that brings back the system of offences against the public administration to a level of certainty that is consistent the with constitutional principles.

 

Galliani D., Bridges, not Walls. Waiting for Strasbourg, some further Reflections on Perpetual Life Imprisonment, pag. 1156 ss.

This paper offers some further reflections on Perpetual Life Imprisonment (P.L.I.), pending the judgment of the Strasbourg Court. In the first part, the issue is clearly defined and a way to tackle it is outlined. More specifically, the separation of powers and human dignity are discussed, and two fundamental approaches to better frame the topic of P.L.I. are developed. The first is a historical approach to the relationship between dissociation from and collaboration with justice and the two versions of the P.L.I. legislation (dating back to 1991 and 1992, respectively). The second is a sociological approach that refers to common experience. In the second part, the paper discusses the ECHR case law on Life Imprisonment and correlates it to P.L.I. The article ends by emphasizing the roles that scholars, lawyers and judges can play to better address the issue of P.L.I.

 

Perini A., Fraudulent Tax Evasion: Crime of Danger and Constitutional Limits, pag. 1190 ss.

 

Fraudulent tax evasion is one of the oldest tax offences which, however, was fully reformed in 2000 and, in the past few years, underwent a profound elaboration in the case law. Indeed, the initial, extremely broad interpretation of the specific cases has recently been followed by an enforcement approach that is more in line with the need to establish the actual offensive character of the case originating from the wording of the law, thus bringing the law closer to the positions set out in the legal literature. However, this path has not yet come to completion, even though it appears to retrace, to some extent, the steps that the case law took when dealing with tax fraud.

 

Mattheudakis M.L., Perspectives and Limits of the Principle of Reliance in reforming Healthcare Professionals’ Criminal Negligence, pag. 1220 ss.

This paper analyzes the principle of reliance in criminal law in the healthcare sector through an overview of the positions taken in the legal literature and in the case law. Furthermore, it questions the applicability of this principle in light of the recent “Balduzzi” and “Gelli-Bianco” legislative reforms. More specifically, the principle of reliance is analyzed in relation to the codification of scientific knowledge – which does not necessarily expand the application of the principle - and to the grading of criminal negligence, which could pave the way to new applications of the principle of reliance.

 

Fiorelli G., The Vocatio in Iudicium of Legal Entities, between a less onerous Burden of Proof and “Fact-less” Liabilities, pag. 1258 ss.

In the context of the persistent uncertainty that characterizes criminal proceedings against legal entities, the right to a charge relating to the administrative offence with a statement written in a clear and precise form becomes a thorny issue. The delicate nature of this issue is clearly visible in the exegetical difficulties, fuelled by the laconic formulation of the relevant provisions, found in the definition of the relationship between the offense punishable with administrative sanctions and the criminal fact that the offense results from, as well as in the identification of the structural elements of the “fact” that the legal person is charged with. The public prosecutor must describe those elements in a clear and precise manner in order to avoid that the judgment of the legal person’s liability be based on the same criteria that apply to natural persons, thereby legitimizing what would, in fact, be a form of “fact-less liability”.

 

Galli M., Judging the Future. A Study prompted by the Convention judiciaire d’«intérêt public», pag. 1285 ss.

Starting from the Convention judiciaire d’intérêt public, introduced in France in 2016 by the Sapin II law, this article focuses on the effects produced by the implementation of criminal measures against corporations. The author argues that the rationale of the procedure does not reflect a managerial logic based on efficiency, but is rather based on the need to ensure sustainability of the criminal response to crime. The study also shows an emerging future-oriented model of “sustainable criminal justice”. This model can also be found in the Italian corporate criminal law system (namely in court receivership pursuant to article 15 of Legislative Decree No. 231/2001). It relies on the role of a special criminal judge, who is called upon grounding his decisions on the evaluation of the potential social and economic harm that might be caused by a criminal sanction applied to a company.

 

Puglisi G., Sharp Words. A Contribution to the Study of Crimes against Equality between Structural Aporias and Alternatives to Custodial Sentences, pag. 1325 ss.

In the wake of the re-arrangement introduced with Legislative Decree No. 21/2018, this essay aims at investigating some issues relating to the criminal-law protection of equality. Articles 604-bis and 604-ter of the Italian criminal code will be analyzed from three different points of view: first of all, the need to clarify the object of protection in order to avoid its misuse; secondly, the uneasiness that prevails when imposing custodial sentences due to the emotional formulation of the indictments; and finally the effectiveness of free speech. In the final part, with regard to article 604-bis, the author recommends using a prescriptive sanction, since it is considered to be the best option for rehabilitating criminals, while, as for aggravating circumstances, he advocates for a reduction of the punishment.

 

CASES AND COMMENTS

 

Pelissero M., Life Sentence and Preclusions: the Fragility of a Forgotten Automatism and the Expansive Strength of the Rehabilitation Function, pag. 1359 ss.

The Constitutional Court ruled on the illegality of a preclusion to access alternative measures in relation to some cases of kidnapping crimes punished with a life sentence: the rigidity of a twenty-six-year term of imprisonment, actually served, clashes with the need that the enforcement of the penalty be flexible and compliant with the principle of treatment progression. The ruling places at the heart of the discourse the importance of the resocialization function of the penalty in the enforcement phase and may pave the way to important developments in other aspects of the rules governing preclusions.

 

SPECIAL: "THE PRINCIPLES OF CRIMINAL LAW IN POST-MODERNITY", Proceedings of the VI National Conference of the Italian Association of Professors in Criminal Law (Rome, 10/11 November 2017)

Gallo M., Introduction, pag. 1375 ss.

In this introduction, first of all, I try to explain the meaning, at least the way I see it, of the terms, the concepts, evoked by the title of the conference: criminal law, principles, postmodernity. As for the first concept, I try to demonstrate that substantive criminal law and criminal procedure cannot be separated. As for the principles, they are a generalization of the expressed rules and an identification of the cultural flow that is indeed the ethos of a legal system. Postmodernism of a time when the class struggle tends to be replaced by a knowledge struggle. Then there is the measure of time, which nowadays is an almost real time. This must be taken into account because it is drastically reflected on criminal law institutions. However, this is a topic that I am investigating in my work in progress.

 

Ronco M., Different Levels of Legality, pag. 1387 ss.

The principle of legality, which was rigorously understood in the criminal law arena in the second half of the last century, as a principle aimed at protecting citizens against any discretionary intervention by the executive and judicial powers, has been gradually eroded starting from the end of the 1980s, both from an institutional point of view - due to the interplay with EU and international legal sources - and even more so because of the role of judges in the interpretation of the law. Faced with the possibility that the principle of legality may lose its relevance as a tool for protecting citizens, the Author emphasizes the nature and specific function of criminal law, which does not allow any ‘decentralized ‘ or ‘open’ interpretation of the elements of criminal offences and reiterates its strict adherence to the factual elements deriving from  criminal provisions and from criminal proceedings.

 

Amarelli G., From Law Worship to Post-Legality: Eclipse or Renewal of a Principle?, pag. 1406 ss.

The crisis that the rule of law principle is undergoing can be attributed to a number of factors, such as the ECHR and the national case-law. However, the author argues that a merely ostensible inconsistency between the European and national case-law and the traditional principle of the rule of law could be dispelled. The path that the author tries to outline consists in a renewal of the rule of law principle by integrating statutory rules with different sources of law. The ECHR and national case-law should not be considered at odds with the legal protection provided by the traditional rule of law principle, but they must be implemented and harmonized as a way to reach a better standard of fundamental individual rights.

 

Paliero C.E., The Extrema Ratio clause: A Pragmatic and paradigmatic Analysis, pag. 1447 ss.

The extrema ratio rule, which is functional to minimizing the use of punishment as a guarantee of the required collective protection, has gone through different historical phases, with several ups and downs. Currently, the operability of this formula – which is characterized as “fragmentary” in this essay - is affected by both phenomenological factors, primarily related to the globalized proliferation of risk sources, and regulatory factors, which are identified in the multiplication of the sources of penalties (including on an international level). Thus, the context is that of the 'network system', stirred by fierce dialectics among the Formants (not only legislative and jurisprudential, but also social ones). The Author uses a model based on ‘concentric spheres’ to establish the specificities of the fragmentary nature of criminal law, highlighting how the latest political-criminal choices bend the extrema ratio requirements.

 

Gargani A., Criminalization as a Last Resort between Post-Modernity and Utopia, pag. 1488 ss.

 

After emphasizing the rationalistic and utilitarian foundations of the principle of “criminalization as a last resort”, the Author shifts to the phenomenological plane to identify the major antagonistic factors, such as the increasing demand for criminal justice, which has ultimately transformed the criminal trial itself into an anomalous form of social control, by which the heavy deflationary concerns should be tackled. The second part of this paper analyzes extra-criminal safeguarding methods with reference to the multi-level legal system and the concept of “criminal matter”, in order to evaluate the effects on the de-criminalization policies. The final part of the essay outlines the cultural reasons why the author believes that criminal law should only play a residual role.

 

Fornasari G., Harmfulness and Post-Modernity: An Incompatible Combination?, pag. 1514 ss.

The aim of this article is to evaluate the current crisis of the strong model of the constitutional principle of harmfulness, based on a critical approach to the protected interest, in order to establish whether it should be dropped in favor of alternative legitimacy paradigms of criminal law, or whether it can be reviewed and placed again at the heart of the constitutional model of criminal law. The Author leans toward the latter and justifies his conclusions with three arguments. Firstly, the alternative conceivable scenarios are considered inadequate. Secondly, this conclusion is in line with some recent trends in the ordinary and constitutional case-law. Thirdly, the constitutional architecture of criminal law principles – legality, culpability, rehabilitation of convicts – is based on and justified only by full compliance with the principle of harmfulness, whereby only those conducts that infringe constitutionally relevant rights can be lawfully punished.

 

Bartoli R., Harmfulness and Reasonableness in the Judicial Review of the Choices of Criminalization, pag. 1540 ss.

The principles of harmfulness and reasonableness used to evaluate the choices of criminalization are not two alternative and incompatible principles. As a matter of fact, they can be considered as complementary. Harmfulness operates above all in the presence of charges regarding rights and freedoms and mainly acts as a barrier against the overriding discretion of the legislator. Reasonableness, on the other hand, operates in the presence of charges raised in the free space of political discretion, though characterized by aspects of irrationality. The task that a criminal lawyer is called upon fulfilling nowadays mainly consists in reviewing the case-law on the issue of reasonableness in order to further rationalize this type of review, which is essentially based on the principle of equality.

 

Donini M., The Personality of Criminal Liability between Typicity and Guilt. A “Showdown” against General Prevention, pag. 1577 ss.

This paper provides a new interpretation of Article 27, paragraph 1, of the Italian Constitution, that currently sets out three principles: primary liability, nullum crimen, nulla poena sine culpa, and the principle of guilt. The introduction of the principle of nullum crimen sine culpa after the Constitutional Court issued its ruling No. 364/1988 also changed the concepts of "primary " liability and guilt. Upon applying article 27 to the ignorantia iuris, the Constitutional Court made space for a new type of constitutional hermeneutics, but not to a truly new criminal policy, since the rule of “error iuris nocet” has survived for a long time until today, with some mitigations. Conversely, the principle of nullum crimen sine culpa has introduced a new and not merely interpretative criminal policy, through the judiciary more than by means of the few legislative reforms. This paper provides an in-depth analysis of the dialectics between the principle of typicity and general prevention within the framework of the broad spaces left by a hermeneutical application of Article 27 of the Italian Constitution. The success of the "theory of culpability" in the areas of ignorantia legis, error aetatis and “objectifying” interpretation of negligence, malice and mitigations has been a victory, albeit a hard-won one, for general prevention. The ethicizing interpretations of culpability, which have been neutralized by the prevailing legal literature, are instead well rooted in the judiciary and in the public opinion. There are several important applications of a constitutionalized concept of “primary” liability in the framework of contributory causes, of causation of negligence, of participation in crime, of bankruptcy. The essay ends with an explanation of why article 27 of the Italian Constitution cannot apply to corporate liability.

 

Centonze F., For a Criminal Law on the Move. The Issue of proving the “Minimum Coefficient of Mental Participation in the Offence, pag. 1625 ss.

In the wake of the increasing influence that behavioral sciences are having on economic studies, this essay analyzes the issue of proving guilt in criminal proceedings, with a special focus on the subjective elements of negligence. The author suggests to acknowledge the latest conclusions reached by cognitive sciences, anthropology, and sociology, in order to identify reliable and realistic standards on which a “personalized” judgement of criminal liability can be grounded. Leaving aside any intuitive evaluations and the so-called “folk psychology”, the judge has to embrace the contributions of other areas of knowledge and then take the defendant’s perspective in order to fully understand the meaning of the defendant’s conduct, including, if necessary, by resorting to the technical assessments provided by experts in behavioral sciences.

 

Dolcini E., The Principle of Rehabilitation: Yesterday, Today and Tomorrow, pag. 1666 ss.

The constitutional principle of rehabilitation of convicts has played a significant role in the different phases of its history. In the last few years of the twentieth century, it inspired laws of great importance, notably in the penitentiary field. In recent years, in synergy with the principle of humanity of sentencing, it has helped to promote a drastic reduction of prison overcrowding. It also provided the Constitutional Court with a tool to correct some severely disproportionate sanctions. For the near future, rehabilitation appears again to be the main idea underlying ​​the reform of the penalty system envisaged in the “Orlando” law, also on the basis of the general states of criminal execution. There are still major cultural obstacles that contribute to slowing down the implementation of the constitutional principle. However, this does not undermine the relevance of the principle, but rather provides further confirmation of its value.

 

Trapani M., Re-Education of Convicts between “Correctional Ideology” of Treatment and Constitutional “Guarantees” of Legality and Security, pag. 1692 ss.

This paper aims to demonstrate that the current Italian penitentiary system, as governed both by laws and regulations, in its general configuration and its inspiring political-criminal principles, especially with reference to the operational arrangements of alternative measures to detention, is absolutely illegitimate and inconsistent with a proper systematic interpretation of the fundamental human rights enshrined in the Italian Constitution and in the international Treaties ratified by Italy, as well as in the European law. This requires understanding the concept of “re-education” of offenders in a radically different way as compared to its current interpretation, so as to make the achievement of the purpose of social rehabilitation of convicts consistent especially with the principle of strict legality of punishment and with the fundamental right to security of the victim of a crime.

 

Moccia S., Criminal System and Constitutional Principles: an Inseparable Pairing for the Social Rule of Law, pag. 1719 ss.

This paper highlights the full vitality of those principles, originating from the Constitution, which are, or should be, at the heart of the criminal system. While they do point out several, sometimes serious, signs of crisis affecting some individual principles, most of the contributions emphasize the need to value them, even though some need to be updated.