LEGAL THEORY

ARTICLES

Dolcini E., Penitentiaries and Covid-19: a Chronicle from Law Decree “Cure Italy” to the “Ristori” Decree, p. 3 ss.

At the heart of the policy aimed at combating the Covid-19 epidemics in penitentiaries, there are four law decrees enacted in 2020, commonly designated as “Cure Italy”, “anti-boss”, “anti-release” and “ristori” (financial aid) decrees. Following some considerations on the situation of the country and its penitentiaries at the outbreak of the pandemics, the author analyzes each of the aforementioned law decrees and their provisions on prison facilities, aimed, above all, at valuing alternative measures to detention. The main tools of this policy include a new form of temporary home detention (characterized by an extensive electronic monitoring obligation on the sentenced person) and extraordinary probation for semi-free prisoners. However, the ineffectiveness of these measures led the judiciary to strengthen the use of pre-existing tools, from which some members of organized crime benefited. This triggered harsh debates, followed by the issuance of the “anti-boss decree” and the “anti-release decree”. Finally, the first ’Ristori decree’, in addition to reviving the measures of home detention and extraordinary probation introduced by the “Cure Italy” decree, provided for a new temporary institution, i.e. extraordinary probation. Lastly, the author illustrates the results of the anti-Covid measures on the prison population and on contagion in prison, hoping that the approach of reducing the use of imprisonment shall continue also once the health-care emergency is over.

Romano M., Italian and German Constitutional Courts on Assisted Suicide, p. 33 ss.

The Author compares the different outcomes reached by the Italian Constitutional Court and the German Bundesverfassungsgericht (BVerfG) on assisted suicide. The Italian Constitutional Court, called upon examining an old rule that punishes any form of aid to suicide (art. 580 of the Italian Criminal Code.), reaffirms its persistent function to protect vulnerable people — whether due to age or disease — and declares its illegitimacy only with regard to certain, particularly serious cases. Conversely, the BVerfG, when dealing with a recent criminal provision (§ 217 StGB), which prohibited “organized” aid to suicide, removed it from the German criminal code altogether. According to the BVerfG, the legislator’s aims underlying § 217 StGB, i.e. the protection of autonomy and life, are plausible, but the provision is null and void because the actual impairment of the individual’s right (the impossibility to resort to “organized” aid) is disproportionate as compared to merely hypothetical and future dangers to third persons. The entire decision is based on the assumption of an unlimited (neither delimited nor delimitable) right to suicide as a personal right, which is immediately accompanied by the right to receive help from third parties. The author criticizes the mere assertiveness of this assumption; he questions the role that the decision assigns to human dignity and the reliance on individual personality and freedom as a supreme value, despite the constant interplay and tensions between freedom and life. The Author also points out that, even if one were to accept a genuine right of the individual to die at his or her own hand, help from a third party would still require boundaries. Compared to the solution of the BVerfG, the Author supports the moderate orientation of the Italian Constitutional Court, which also seems more in line with the caution shown by the ECHR on this matter. Finally, the Author questions the practical effects of the BVerfG ruling in the cultural climate of modern-day Germany. His focus is not so much on the regulation of the activities of organized aid structures after the green light has been given, but on the crucial regulatory adjustments to the system that the Court itself expects from the legislator.

Bertolino M., Gender Violence and Violence against Children between Victimology and Victimhood: Brief Remarks, p. 65 ss.

The topic of protecting vulnerable victims, such as women and children, is at the heart of an extensive, national and international debate involving criminal law as well as criminal policy. In Italy, the latter has taken a victimological approach, sometimes neglecting the offender. Whatever the solution, the best criminal policy is clearly one that aims at preventing violence against vulnerable victims by eliminating its social causes.

Salvadori I., Artificial Agents, Technological Opacity and Distribution of Criminal Liability, p. 83 ss.

This essay focuses on the criminal liability of artificial agents and the ‘humans behind’ Artificial Intelligence. First, it classifies the artificial agents based on their structure and level of automation and autonomy. Secondly, it excludes the possibility to consider artificial agents as targets of criminal punishment. Hence, it determines under what conditions humans should be held criminally liable for developing, programming, producing, and using artificial agents that cause harm to others. This paper also analyses when an artificial agent can be considered as a tool to commit a crime or a ‘victim’ of a crime. Finally, it suggests possible criteria to solve some criminal issues related to technological opacity and AI development.

Bartolucci M., “Undue Benefits” received by Public Officials: a Criminally Punishable Conduct per se or just a Feature of the Crime of Bribery, p. 119 ss.

This paper deals with the opportunity and the legitimacy of a hypothetical incrimination referring exclusively to the «undue receipt of benefits» by public officials, regardless of further specific descriptive features of the conduct. Following a search of all the main types of offences envisaged in the Italian legal system involving the simple concept of “disloyalty” and a thorough comparison of their similarities, the Author considers the scope of implementation of article 318 of the Italian Criminal Code, as amended by Law no.190 of 6 November 2012. Upon excluding the possibility to identify such criminal conduct as corruption for the performance of the public official’s duties, the Author discusses the real effects and repercussions of this option on positive criminal law on public bribing. After completing his analysis of the type of criminal conduct, the Author focuses on the type of punishment capable of acting as a real deterrent and tool of prevention, taking into account the main contemporary European literature on this matter.

Finocchiaro S., Criminal Liability for Pleural Mesothelioma caused by Asbestos Exposure: a Pathology of the Legal System, p. 161 ss.

This contribution deals with the main problems relating to criminal liability for pleural mesothelioma caused by exposure to asbestos. It focuses on the issues linked to the choice of the criminal charge, the assessment of causation, and the role of scientific evidence in criminal proceedings. Upon highlighting the negative consequences of the current, often contradictory, solutions for the legal system, two proposals are made: the first, de iure condendo, would require the legislative creation of new crimes of danger, the second is aimed at applying the rules on corporate liability provided under Legislative Decree no. 231 of 2001, and specifically the autonomous liability governed by Article 8 of the Decree.

CASES AND COMMENTS

Palazzo F., Life Imprisonment and Summary Proceedings: A Model Test of Constitutional Review in Criminal Matters Nowadays, p. 207 ss.

In its judgment n. 260/2020, the Italian Constitutional Court delves into a borderline thorny issue, i.e. the exclusion of summary proceedings (“rito abbreviato”) for crimes punishable with a life sentence (Law n. 33/2019). On the one hand, such exclusion is an expression of legislative discretion but, on the other, it undermines those constitutional features that should inspire criminal policies. Issues of this kind seem to be increasingly more frequent and can put the Constitutional Court in a difficult position. That said, the Court strikes a wise balance in its judgment.

Orlandi R., No Summary Proceedings for Offenses punishable with a Life Sentence, p. 219 ss.

Several pleas of constitutional unlawfulness have been raised against the statute that excluded access to summary proceedings for crimes punishable with a life sentence. Among the complaints raised, it has been claimed to be in conflict with the right of defense, with the principle of equality, and with the presumption of innocence. Relying on commendable arguments, the Constitutional Court rejected as groundless or deemed irrelevant some issues that — at a closer look — were actually aimed at censuring the populist and propagandistic character of the examined legislation. While the choice behind such legislation might have been politically inappropriate, this does not mean that it is unlawful in light of the invoked constitutional principles.

Pittiruti M., Passive Extradition Proceedings: Assessment of the Existence of Grounds for Refusal and Use of Ex Officio Evidence, p. 229 ss.

Once more, the Italian Supreme Court deals with the assessment of the existence of grounds for refusal of passive extradition, with reference to the duty of the Italian judge to exercise the investigative powers granted by Article 704, paragraph 2, of the Italian Code of Criminal Procedure. Taking a new approach, as compared to the past case law, the Supreme Court theorizes that the Court of Appeal has a real duty to proceed with the necessary evidence-gathering investigations whenever there are well-known facts implying the risk of treatments that are incompatible with the protection of fundamental human rights.

Ubiali M.C., A New Decision on Bribery of Members of Parliament in the Trial of former MP Luca Volontè, p. 246 ss.

The decision taken by the Court of Milan in a case involving Luca Volontè, a former member of the Italian Parliament and Italian representative at the Assembly of the Council of Europe, reaffirms the consolidated approaches found in the Supreme Court case law on the issue of bribery of Members of Parliament. Among the principles reiterated herein, there is one whereby the crime of bribery for an act contrary to official duties (Art. 319 of the Italian Criminal Code) cannot be committed by a Member of Parliament who receives an undue benefit in connection with the performance of his/her duties. In addition to this and other established principles, the case in question provides an opportunity to focus on evidentiary issues that may arise in the assessment of the corrupt agreement, in those cases in which the object of the pactum sceleris is the function of a public subject holding a political/elected office.