LEGAL THEORY

ARTICLES

Negri D., Restriction of Freedom Rights and Proportionality Principle facing the Challenges of the Contemporary Criminal Justice System, p. 3 ss.

The need to tackle serious criminal phenomena, coupled with today's technological developments, have undermined the genuine nature of the proportionality principle,  traditionally aimed at guaranteeing the individual’s rights in the case of measures restricting personal freedoms. This paper  identifies a viable way to curb this ‘securitarian’ drift of criminal policy in the combination of the principle of proportionality and the principle of procedural legality, introducing – in particular – subsidiarity clauses which limit the use of the most afflictive coercive means.

 

Marinelli C., A Summary Judgement and Life Imprisonment: Law no. 33/2019 between Exegetical Aporias and Systemic Relapses, p. 37 ss.

This paper discusses the  effects of Law no. 33 of 12 April 2019 on the procedural system as such law excludes the application of summary judgment to crimes punished with life imprisonment. Despite its apparent sectoral character, this reform has, on the one hand, a far-reaching impact on the system and, on the other hand, features significant gray areas due to gaps and ambiguities in the law-making technique.

 

Mazzantini E., Criminal Law Protection of Property and Dematerialization in Contemporary Society. The Pivotal Role of Fraud Offences in the “Law in Action", p. 75 ss.

The "value" of property, as the target of the protection provided by criminal law, features two souls, namely use and ownership, which express the “economic interest” and the “legal interest” in the relationship with goods, respectively. Although this "value" is fully described only by the union of these two souls, the Italian criminal code gives clear priority to ownership, whose prevalence over use has not been affected even by the new constitutional system. Moreover, this preeminence seems to be consolidating in light of the dematerialization of socio-economic relations, which phenomenon emphasizes the “legal interest” in accessing dematerialized goods and downgrades the significance of the empirical relation with them. Nevertheless, this process also reveals the inadequacy of the protection that is currently provided through property offences, which is still focused on attacks on physical goods, to prevent attacks on intangible goods. The limitation marked by the role of the “cosa” (i.e. a tangible good) in “unilateral” property offences is, indeed, at the origin of the tendency to shift the focus of criminal law protection towards property offences “mediated” by the action of the victim and especially towards fraud offences, which are at the core of the expectations of protection of the right of disposal. While Courts have not hesitated, de iure condito, to provide protection under the law to a wide range of interests by adapting the offence of fraud, theoretical studies should investigate the appropriateness, de iure condendo, of splitting a fraud offence (still) centered on the elements of gaining and causing a loss from a fraud offence focused on the damage to the right of disposal.

 

Schirò D.M., Circumstances of the Offense and Child Protection, p. 107 ss.

The circumstances of an offense have been traditionally considered as incidental or ancillary elements that could only have a role in the determination of punishment. However, they have recently drawn the attention of the legal literature, the case-law and the legislator itself, thereby offering new food for thought. This paper focuses on the implications of a frequent use of the circumstances of an offense, especially with reference to the critical area of child protection. In fact, here the circumstances of the offense have gone through a process of proliferation that might seem valuable as an expression of a criminal law that takes care of grasping the peculiarities of these victims so as to provide for a broader protection. However, because of the challenges posed by this system, this trend should be critically discussed and potential alternative solutions should be considered.

 

Germano R., Immediacy and its Contradictions: why Principles are not Dogmas, p. 151 ss.

Starting from the possibility to balance the principle of immediacy in criminal proceedings, the aim of this paper is to critically analyze the rule provided by the Italian Code of Criminal Procedure for the cases in which the composition of the court does not remain the same in all the court hearings (Section 525). To do this, the Author focuses on the uncertain constitutional and supranational justifications of the principle under discussion, on its contradictory relation with the appellate remedies and the special evidentiary hearing and on its counterproductive practical consequences. In the wake of an obiter dictum of the Italian Constitutional Court, the Author suggests, with a de lege ferendaperspective, a remodeling of the principle by introducing the video-recording of the testimony as a tool available to the new judge. Finally, two judgements are analyzed, i.e. one delivered by the Court of Justice of the European Union and one by the Italian Supreme Court sitting in full bench.

 

Perrotta E., Towards a New Dimension of the Crime of Epidemics (Section 438 of the Italian Criminal Code) in Light of the Globalization of Infectious Diseases: Individual Responsibility for Contagion within the Common but Differentiated Responsibility System, p. 179 ss.

Global epidemics have been always coupled with the phenomenon, reported on an international level, of the so-called responsibility gaps deriving from failure to achieve the minimum punishability thresholds as provided by the domestic legal systems, which are often inadequate for this purpose. While in the past epidemics-related emergencies affected other parts of the world, now the Italian legal system, because of the health-care crisis caused by covid-19, is called upon identifying any contagion responsibilities by implementing its own law enforcement measures (especially Sections 438 and 452 of the Criminal Code), which have been seldom applied due to the fact that epidemic outbreaks have occurred only rarely and, therefore, are characterized by an uncertain scope of application. As we will try to argue, the spread of covid-19 in Italy has highlighted a certain gap between the provisions of the Criminal Code — as interpreted to date — and today’s epidemiology, which requires a new approach to some elements related to the case in point, notably the reinstatement of the category of offenders, a differentiation of negligent liability levels also within the healthcare domain and the compatibility of the crime with any omissive conduct (as recognized by the latest case-law) now appear to be necessary steps in order to bring «regulatory reality» back to «factual reality». Finally, this essay aims to include the «new» individual contagion responsibility, thus outlined, within the context of the so-called web of causation of the epidemics and, conversely, into the common but differentiated responsibility system (CBDR) of international origin, which currently seems to be the most efficient way to attribute any criminal liability in a healthcare crisis.

 

CASES AND COMMENTS

Caraceni L., It happened at last: The Mandatory Exclusions of Alternatives to Detention for convicted Minors were found to be unconstitutional. The Effects of Judgment no. 263 passed by the Constitutional Court on 2 December 2019 on the overall System governed by Legislative Decree n. 121 of 2 October 2018, p. 237 ss.

As expected, the Constitutional Court found the provisions of the recently enforced juvenile detention law (Section 2, subparagraph 3 of Legislative Decree no. 121 of 2 October 2018) unconstitutional as they exclude the applicability of community criminal measures to minors if they are convicted of one of the so-called “preclusive crimes”. The contested regulation was found incompatible both with the delegation principles set out in Law no. 103 of 23 June 2017 (Section 1, Subparagraph 85, Letter pP, criteria no. 5 and 6), and with Articles 27 Subparagraph 3 and 31 Subparagraph 2 of the Constitution, because the mandatory exclusion of minors from favorable penitentiary measures provided under Section 4-bis, subparagraphs 1 and 1-bis of the penitentiary system law inadmissibly prevents a judicial evaluation of the correctional experience of the convicts, in contrast with the rehabilitation function of criminal sanctions, intended as a way to reintroduce offenders to social life.

 

Dodaro G., The Duty to cooperate with Justice in order for Inmates to benefit from a Short-Term Transitional Leave pursuant to Section 4-bis (1) and the Constitution, p. 259 ss.

The decision passed by the Italian Constitutional Court removes the discipline on short-term transitional leaves for inmates from the rigid system governed by Section 4-bis (1) of Law no. 345 of 26 July 1975. For inmates convicted of mafia-related crimes who do not cooperate with justice, access to these benefits remains difficult.

 

Mossa Verre M., Corporate Criminal Liability and Individual Punishment Exemptions. The Case of Particularly Mild Offences, p. 280 ss. 

Italian corporate criminal liability rules do not clearly state whether there is a legal basis for convicting a corporation in cases where the individual perpetrator is not punishable for reasons that do not depend on his/her guilt, nor do they state whether the punishment exemptions provided under the Criminal Code are applicable to legal entities. The theoretical relevance of both issues is discussed in light of the reasoning underlying a recent judgment rendered by the Italian Supreme Court, which resulted in the conviction of a corporation for a particularly mild offence, which is not punishable under Section 131-bis of the Criminal Code. In its judgment, the Court denied that the literal meaning of Section 8 of Legislative Decree no. 231/2001 has a crucial significance for the matter and questioned the possibility to apply the provisions of the Criminal Code  to corporate criminal proceedings.