ISSN 2039-1676


ISSN 2039-1676


18 marzo 2019 |

Rivista italiana di diritto e procedura penale n. 4/2018 (Abstracts – English)

 

LEGAL THEORY                                                                                      

ARTICLES

Vervaele J., Foreign (Terrorist) Fighters: Combatants and/or Terrorists or just Enemies?, p. 1875 ss.

Traditionally, international humanitarian law (IHL) applied in times of war/armed conflict and counterterrorism law in times of peace. This distinction has gradually become blurred over the last few decades. Armed conflict situations are becoming international in scope and counterterrorism legislation is increasingly more often applied to criminal conducts in situations of armed conflicts. Recent UN resolutions have obliged states to apply criminal sanctions to the conducts of foreign terrorist fighters – a new legal concept - which makes it unclear to which extent they can qualify as legal combatants under IHL. The result is that national and international criminal courts are struggling with the distinction between the applicable law and jurisdictional issues. This contribution offers an in-depth analysis of this overlap and the issues that Courts are faced with

 

Caianiello M., The Remnants of Dialogue, p. 1908 ss.

This paper examines judgment no. 117/2018 by the Italian Constitutional Court, which puts an end to the “Taricco saga”. The Author then reflects on the issue of the dialogue between the Courts in criminal matters, which was seriously challenged in the Taricco case. To overcome the problems emerged in the last years, it seems necessary that the EU Court of Justice makes a further effort to take care of the specific features of criminal law and national traditions. However, within the Italian context, it is necessary that scholars and practitioners accept the fact that EU law is a sort of common law, and that to be part of it (since Italy follows the civil law tradition) adequate reforms, both at cultural and regulatory level, must be adopted.

 

Vigoni D., The Request of Summary Judgment: Types and Developments of the Proceeding, p. 1926 ss.

This paper focuses on the request of summary judgment, as governed by Italian Law No. 103 of 2017, analyzing the three applicable modalities, the formulation of subordinated alternatives, and the peculiarities deriving from its inclusion in other special proceedings. Despite the innovations and the flexible dynamics that characterize a summary judgment, the instability of the evidentiary framework and the uncertainty surrounding the records and evidence that can be used for the purposes of a decision do not seem to foster its adoption.

 

Cupelli C., Article 590-sexies of the Italian Criminal Code as interpreted by the Italian Supreme Court in Joint Chambers. The “Constitutional Interpretation” and the Unresolved Problems of Medical Malpractice, p. 1969 ss.

This paper analyzes the evolution of medical malpractice resulting from the enactment of law no. 24 of 2017, in the light of the solution adopted by the Italian Supreme Court ruling in joint chambers about the exact scope of the new version of Art. 590-sexies of the Italian Criminal Code. More specifically, this paper underlines some methodological perplexities about the ‘constitutional interpretation’ given by the Supreme Court, especially in relation to the envisaged revival of the grading of medical malpractice, with exclusive reference to unskilful conducts, even in the absence of specific references in the text of the law. Acknowledging the failure to fulfil the aim of the “Gelli-Bianco” Law (i.e.  rejecting defensive medicine), the author recommends a further legislative amendment that, with a view to reaching a compromise solution, should restore the more favorable approach of the repealed art. 3 of the Law no. 189 of 2012, with the addition of some unquestionably positive aspects of the Gelli-Bianco Law. 

 

Zacchè F., The Right to Liberty between Personal Rights and New Challenges for Criminal Proceedings, p. 1996 ss.

The future challenges for criminal proceedings regarding personal freedom continue to be the same as the ancient ones, i.e. the protection of habeas corpus. Due to the crisis of “due process regulated by the law”, the right to liberty is still today a fragile guarantee. Personal freedom can be spared if we leverage the criterion of proportionality.

 

Goisis L., Hate Crimes: Why Hate should be punished. An International, Comparative and Criminal Policy Perspective, p. 2010 ss.

This essay provides an overview of the origin of hate crimes and deals with the topic from an international, comparative and criminal policy perspective. This reconstruction, which starts from the OECD definition and ends with the transposal of the concept in the criminal and criminological science, shows how complex this concept is and how difficult it is to identify a numerus clausus of protected categories. Then the essay describes, from a comparative perspective, the English and American legislation on the subject, in order to draw useful hints on a de lege ferenda basis. The criminal policy perspective allows to identify the reasons, belonging to the criminal law, why hate crimes should be punished. Finally, the essay focuses on the critical nature of the indefinite category of hate speech, which belongs to the category of hate crimes, which clashes with the freedom of expression and with some criminal law principles. The essay ends with a recognition of hate crimes as special crimes.

 

Amore N., Circulation of Methods and Disorientation of Purposes in the Repression of Crimes Against the Public Administration. The distinction between public and private offenders in criminal law, p. 2070 ss.

The debate on political-administrative crimes rests on a slanted plane: the identification of their scope of application. In this paper, the author tries to identify its boundaries through a peculiar hermeneutical path based on a “functional-typological” approach. This allows to define the characteristics of public officers through the interpretation of the criminal offenses in which they are involved. This is quite an innovative solution and it seems to be the only one that can truly and congruently explain the substantial reasons for the introduction of these qualifications.

 

Angiolini G., The “European” ne bis in idem and Italy: still an Open Issue, p. 2109 ss.

Years have gone by since spring 2014 when the European Court of Human Rights sentenced Italy due to its infringement of the double jeopardy provisions of art. 4 Protocol no. 7 of the European Convention resulting from the proposal to extend "criminal matters" beyond the boundaries of the nomen iuris. During this time frame, several solutions have been proposed and attempted so as to make Italy comply with the Strasbourg interpretation of the principle of ne bis in idem. Among the efforts, the appeals to the Constitutional Court and to the Luxembourg judges certainly stand out. These attempts have just recently generated the first interpretative cues, namely the acceptance of the recent self-restraint of the European Court of Human Rights and the confirmation of the direct applicability of art. 50 of the Charter of Fundamental Rights of the European Union. In view of these - and possibly further - clarification actions, the residual scope of applicability of the "European" rules on double jeopardy would still leave room for some critical issues which only an appropriate intervention by the legislator could forestall.

 

Cabiale A., Remedies in the Ue Directives on Procedural Safeguards for Suspects and Accused Persons: Few Words and Much Silence, p. 2138 ss.

This paper focuses on the EU directives on procedural safeguards for suspects and accused persons in criminal proceedings and specifically on the issue of remedies, which are often disregarded by the EU legislator. After identifying the possible causes of this serious flaw, the Author tries to outline some solutions for the present and some ideas for future actions by the EU.

 

CASES AND COMMENTS

Fiandaca G., The State-Mafia Negotiation is not a Crime Provided by the Law, but a Substantial one, p. 2181 ss.

The Author highlights the many weak points that, in his view, can be identified on two levels, i.e. the "hermeneutics of the fact" and the "hermeneutics of the law", in the extensive narrative of the grounds of the judgment rendered by the court of first instance concerning the complex and obscure case – which was made public also thanks to a consistently broad media coverage – of the so-called State/Mafia negotiation. The critical analysis developed by the author, besides questioning the actual commission of the crime of violence against or threat to a political body (Article 338 of the Italian Criminal Code) in this case, also raises some objections regarding the attempt of the far-reaching historiographic reconstruction pursued in different parts of this overblown judgment.

 

Mucciarelli F., Self-money Laundering and Complicity, p. 2206 ss.

The Italian Supreme Court tackles one of the most controversial issues arising from the offense of self-money laundering, namely the perpetration of such new crime by someone who is involved in the predicate crime, jointly with someone who is not. The Supreme Court reasoning is in line with the approach endorsed by the majority of scholars, although a minority of them does not accept the conclusion that only an accomplice who was involved in the predicate crime can commit self-money laundering, while those who were not must be convicted of money laundering. The minority counterarguments, however, can be challenged from a systematic perspective.

 

Miedico M., The New Limits to Probation, between Legislative Choices and Constitutional Reasonableness, p. 2235 ss.

This paper analyzes the Constitutional Court’s sentence n. 41/ 2018, which establishes that the art. 656, paragraph 5, of the Italian Code of Criminal Procedure is unconstitutional as it violates art. 3 of the Constitution where it does not allow for the suspension of the enforcement order even in case of sentences of more than three years – and especially up to four years - of imprisonment. According to the Court, after unreasonably inconsistent reforms, it was necessary to re-align the probation law discipline with the rules governing the suspension of the enforcement order pending the decision on probation. The sentence therefore extends access to probation directly from the state of freedom, with potential positive effects on prison overcrowding, thereby confirming that alternative sanctions could be strengthened and improved for their indisputable positive results in terms of reduction of criminal relapses.

 

Argirò F., Abusive Access to Computer System and Misuse of Power: a Ruling of the Italian Supreme Court between Ancient and Modern Ontologisms, p. 2256 ss.

It is the second time that the Italian Supreme Court deals with the issue of the liability of the public official, who is authorised to access to a computer system and uses it for personal purposes. The ruling disagrees with the precedent ruling Casani and states that the public official is liable under article 615 ter of the criminal code. The judges reach to this conclusion according to the current jurisprudence in the field of the abuse of functions.

 

Aimi A., Interruption of a Persistent Crime by means of a Criminal Conviction and the Rule provided by Article 671 of the Italian Code of Criminal Procedure, p. 2273 ss.

Article 671 of the Italian Code of Criminal Procedure de facto prevents, with no exception, the Court competent for the enforcement from ruling that persistent crimes committed consecutively by the same perpetrator and judged in different criminal proceedings must be  treated as a single offence for the purpose of sentencing. The Constitutional Court deemed the provision to be consistent with articles 3 and 24 of the Italian Constitution. The Author disagrees with the Court’s opinion and highlights the reasons why the rule provided by article 671 could unreasonably penalize perpetrators who committed continuous crimes of the same degree of seriousness, thus violating the principle of equality before the law.

 

Ubiali M.C., On Bribery of Members of Parliament (Notes about the Berlusconi-De Gregorio case), p. 2296 ss.

The Author comments, thereby endorsing it, a decision in which the Italian Supreme Court, defining a judgment that involved former Prime Minister Silvio Berlusconi and former senator Sergio De Gregorio, for the first time affirmed the principle whereby members of Parliament receiving undue benefits in relation to the performance of their function cannot be charged with the offence of “direct bribing” (art. 319 of the Italian Criminal Code) because the activity of Members of Parliament is not subject to scrutiny pursuant to articles 67 and 68 of the Italian Constitution (freedom of mandate and immunity for opinions and votes expressed). The annotated sentence offers the Author the chance to look at the broader issue of corruption in the political sphere. This topic, as confirmed by the experience made in other legal systems, raises the issue of the applicability of corruption-related offences, which were designed for public officers in general,  to MP’s as well as the broader category of subjects who, for various purposes, hold a political office, either as a result of an election (e.g. regional and municipal councillors, mayors or regional governors) or of an appointment by elected subjects (e.g. aldermen or ministers).

 

Bernardi S., For the Italian Constitutional Court, the prohibition to cook food imposed on those sentenced pursuant to article 41-bis is useless and merely afflictive. Toward a more humane “security prison sentence”?, p. 2325 ss.

With its recent judgment n. 186 of 2018, the Italian Constitutional Court ruled that the prohibition to cook, imposed on prisoners under special detention regime pursuant to article 41-bis, c. 2-quarter, letter f) of the Italian penitentiary system, was unlawful because it infringes articles 3 and 27.3 of the Constitution. This contribution aims to provide an interpretation of the aforementioned ruling in the light of the broader framework of the constitutional case law, which, over the past twenty-five years, has questioned the compatibility of the “hard” detention regime with the Italian Constitution, especially in consideration of the principles of humane penalties and rehabilitation of convicts. It can also be an opportunity to highlight some persistent critical issues in the discipline of art. 41-bis also in the light of the positions taken by important international organizations dedicated to the protection of human rights, such as the European Court of Human Rights and the European Committee for the Prevention of Torture.

 

DISCUSSIONS

Gatta G.L., On the Reform of the Statute of Limitation: it does not run after the Criminal Judgment by the Court of First Instance, p. 2345 ss.

According to a new rule, pursuant to Italian Law n. 3 of 2019, the statute of limitation does not run after a judgement rendered by the court of first instance. A positive effect of such a reform, in terms of effectiveness of the criminal justice system, will be some decrease in the significant number of cases that are dismissed during trial because the offense becomes time barred, notwithstanding the fact that the defendant may potentially be guilty. However, such interruption of the statute of limitation poses the risk of increasing the length of the proceedings in the courts of second and third instance. This is why it is important that, before the reform enters into force in 2020, the Parliament approves another related reform aimed at guaranteeing the constitutional right to a reasonable length of the trial.