Rivista italiana di diritto e procedura penale n. 2/2020
Abstracts - English
With the permission of the publisher Giuffrè Francis Lefebvre we anticipate below the abstracts of the works published in the latest issue of the journal "Rivista italiana di diritto e procedura penale" (n. 2/2020)
Seminara S., Criminal Code, Rule of Code and Reform of Offences against the Person, p. 423 ss.
This paper is divided into two parts. The first provides an in-depth examination of the contents and limits of Article 3-bis of the Italian Criminal Code, which sets the principle of the rule of the Code. The author concludes that a rule which, on the one hand, establishes a principle with no binding effect and, on the other hand, is based on the vague concept of organic law as an alternative to the Criminal Code can hardly be deemed useful. The second part is devoted to the guidelines for a new codification system of crimes against the person as the target matter of a (very unlikely) reform.
Donini M., The Two Fundamental Paradigms of Comparative Criminal Law, p. 465 ss.
There are two basic types of legal comparison, namely the pure, descriptive, non-positive and “non-evaluative” comparative law, and the one aimed at the (legislative, interpretative, doctrinal) application, thus with practical purposes too. The former is seen as a “science”, while the latter has a more political and hermeneutic value. Legal positivism has eliminated the “prescriptive” comparison from interpretation and dogmatics, thereby discrediting it as non-scientific because it did not admit any foreign legal source into the national legislation. Only the internationalization and Europeanisation of the legal sources succeeded in promoting an evolution of the comparative method in the legislative and judicial fields, which led to an internationally-oriented comparative dogmatics: the comparison as a “method of dogmatics.” This method contrasts several widespread forms of pseudo-comparative criminal law focused on importing individual, “strong” foreign models and doesn’t deny the difficulties of establishing a true dialogue with common-law systems. A prominent example of this is the German influence as an “export” science, but with a typically “deutsch” character, that unveils the contradictions of many “national sciences”. After clarifying the dialectics between criminal law as a (national and EU) political tool and its more scientific part (as a historical-comparative, guarantee-oriented discipline and social science), this paper ends with a proposal on the possibilities of a universalization, if not of the method, at least of the translations and of the digital libraries.
Pelissero M., Covid-19 and Pandemics Criminal Law. Crimes against Public Faith, Epidemics and Crimes against the Person put to the Test of the Health-Care Emergency, p. 503 ss.
The Covid-19 emergency was approached by the Italian Parliament also through criminal law. The violation of containment measures may have effects that go beyond the infringement of prescriptions and involve crimes of fraud, the offense of negligent management of the epidemics and crimes against the person. However, the safeguards of the fundamental principles of the criminal system make it difficult to implement these rules, while proposals are being put forward in the Parliament aimed at introducing forms of immunity from criminal, civil and administrative liability for health-care personnel and those who have served in the management of the health-care crisis.
Demuro G.P., The Malice-Negligence Combination: A Generalizable Model starting from Unintentionality, p. 543 ss.
Objective liability and the principle of guilt continue to confront each other in our case law. The clear and authoritative statements of principle made by the Constitutional Court and by the Supreme Court sitting in chambers in favor of the necessary existence of the psychological component for every single element of the offense continue to face resistance in their application due to the political-criminal severity and to the evidentiary facilitation of objective liability. Indeed, the techniques are refined by resorting to schemes of the past. An example of this is provided by the orientation of the case law which assumes unintentionality to be a form of indirect malice. However, starting exactly from the issue of unintentionality, you may hypothesize a model of malice-negligence combination that aspires to generalization on a regulatory, applicative and hermeneutic level. An in-depth analysis is required in order to fully understand the characters that, within such combination, the two forms of psychological element, i.e. malice and negligence, would take on, thereby specifically defining their structure and their object.
Manacorda S., The Issue of “Double Prejudice” and the Charter of Fundamental Rights: the Criminal System before the EU Law in the Age of Disillusionment, p. 573 ss.
The EU Charter of Fundamental Rights has acquired the same strength as treaties since 1 December 2009 and, over the past ten years, it has gone through a tortuous journey the effects of which need to be analysed from the perspective of criminal law. After generating the expectation of an increased level of protection of the fundamental guarantees, the Charter fell victim to a certain disenchantment, which can largely be attributed to the well-known Taricco 'saga', which many interpret as a signal of dangerous regression in terms of fundamental rights. Upon reaffirming the central role of the Charter, a close reading of the case-law established by the Supreme Courts is now urgently required. Looking at the Court of Justice of the European Union, the scenario is characterized by a reductionist approach and by considerable uncertainties, with the sole exception of the instruments of mutual recognition. The path followed by the Italian Constitutional Court is more complex, at least starting from the famous judgement no. 269/2017, which took a clear stance on the issue of ‘double prejudice’ (“doppia pregiudizialità”), i.e. disputes that may give rise to questions of constitutionality and, simultaneously, questions of compliance with European Union law. In these cases, the latter should be resolved as a matter of priority, thus limiting the power of the criminal court to apply fundamental rights established by the European Union. This principle, which has been extensively commented upon by legal scholars, is intertwined with a growing recourse to the Charter in the Italian constitutional case law. At a closer inspection, however, there seems to be a certain tendency to contain the effects of the Charter in the field of criminal law. Significant indications of a renewed attention to the Charter emerge in the latest judgements rendered by the Constitutional Court, especially in 2019, where four important decisions mark a renewal of its role, provide a clearer indication of the powers of common courts and lay the foundations for the construction of the guarantees to be applied to punitive administrative offenses.
CASES AND COMMENTS
Tigano V., The exclusion of female same-sex couples from medically assisted procreation remains in force: Constitutional Court Judgment no. 221/2019, p. 631 ss.
Starting from an analysis of repeal judgment n. 221/2019 of the Constitutional Court, which left unchanged the objective and subjective requirements for accessing medically assisted procreation (MAP) and the administrative offense punishing the application of these techniques for female same-sex couples, this paper highlights the lack of a protected legal interest underlying this offence and the inability of criminal law to repress the easy circumvention of such prohibition. Finally, the author outlines a desirable reform based on the introduction of administrative authorizations in order to overcome the aforementioned critical issues and to allow for equal access to MAP.
Ubiali M.C, On the Distinction between Bribery for an Act contrary to Official Duties and Functional Bribery: Notes about the ‘Mafia Capitale’ Case, p. 662 ss.
The judgment commented in this paper, which was rendered in the well-known ‘mafia capitale’ judicial case, is renowned not only for affirming key principles in the field of association crimes, but also for its impact on associations aimed at committing acts of bribery. In fact, such ruling shows an appreciable and innovative effort to set the boundaries between crimes of bribery for the exercise of a function (article 318 of the Italian Criminal Code) and bribery for an act contrary to official duties (article 319 of the Italian Criminal Code). What comes specifically to the fore is the problematic distinction between the two crimes when the conduct of the public official involves a discretionary act or activity. When commenting the sentence rendered by the Supreme Court, the Author notes that the issue of the criminal liability resulting from the discretionary activity of public officials has always been a thorny issue. This is traditionally due to the danger that the criminal judge may cross the line and provide an evaluation of the so-called “administrative merits” and now — in the neighboring arena of the abuse of office (article 323 of the Italian Criminal Code.) — also due to the recent reform of Legislative Decree no. 76/2020, which excludes that the latter crime may be found to have been committed in cases of violation of rules of conduct that allow for some degree of discretion. In light of the aforementioned decision and of the newly implemented legislation affecting the abuse of office, a closing crime in the system of offences against the public administration, the Author offers a critical and updated reconstruction of the framework of criminal liability for discretionary conducts.
Gatto C.E., Children of a lesser god? According to the Supreme Court, even in the case of an executive arrest warrant, residents in Italy without European citizenship must be treated as equivalent to European citizens, p. 678 ss.
This paper offers an in-depth analysis of Order no. 10371 of 4 February 2020 by which the Supreme Court of Cassation raised a question of constitutional legitimacy on the Italian legislation transposing the EAW concerning the grounds for refusal to surrender. In particular, based on the developments of the domestic and supranational case law in the fields of citizenship and judicial cooperation, the Court provides a constitutionally and conventionally oriented interpretation that allows also foreign residents or foreigners living in Italy to invoke the clause of refusal to surrender that, pursuant to Law no. 69 of 2005, as amended in 2019, is reserved, for the so-called executive mandates, to Italian and European citizens only. While the Author agrees with the hermeneutical direction followed by the Supreme Court, she finally outlines the possible scenarios that open up to the Italian Constitutional Court. In fact, the terms of the question of legitimacy are at the crossroads between domestic and European regulations, which, incidentally, raises again the delicate issue of the dialogue between Courts.
“THE CRIMINAL LAW OF THE ENEMIES. TOWARDS A NEW CRIMINAL LAW OF THE AUTHOR?”
8th National Conference of the Italian Association of the Professors of Criminal Law
(Siracusa, 25/26 October 2019)
Palazzo F., Enemy-Enemies-Enemy: A Disturbing Sequence for the Future of the Criminal Law, p. 701 ss.
The criminal legislation governing international terrorism is based on the factual assumption of the "enemy relationship" between the terrorist and the legal system. Conversely, the subsequent legislation creates that relationship by classifying certain types of crimes (Mafia, corruption, gender violence) as fields of fight. The inherent risk is that this may trigger a process of generalization whereby every criminal is deemed to be an enemy of society. The result would be a radical disruption of the liberal and solidarity-based paradigm of criminal law. The causes of this phenomenon seem to lie in socio-cultural orientations that are deeply rooted in our present society.
Orlandi R., An Enemy-Tailored Criminal Justice?, p. 715 ss.
This paper addresses the question of whether there is a “criminal law of the enemy” in the Italian procedural code and in the related practices. Not always are the exceptions to common individual guarantees in criminal justice, due to the need for a more effective fight against serious crimes, aimed at neutralizing an alleged enemy by all means. Such conceptual category does not include those special limitations of the fundamental rights of the person respectful of human dignity and the principle of proportionality. A progressive shift towards criminal justice oriented towards the offender, rather than towards the illegal act, is evident in the regulatory evolution that characterized the ante delictum preventive measures. The attribution to the public prosecutor of the power to take preventive initiatives guarantees a connection with the criminal investigation activities, thereby creating an integrated control model that is strongly oriented towards the type of perpetrator.
Pelissero M., Anti-Terrorism Legislation. The Prototype of the Enemy’s Criminal Law between Guarantees and Risks of Expansion, p. 745 ss.
The criminal strategy for combating terrorism was developed on the basis of the Rocco criminal code but new techniques were used for anticipating criminal protection. In this context, criminal law and preventive measures overlap, thereby making the two types of procedures fluid. The use of criminal law in the fight against terrorism is crucial, but careful attention should be paid in order to guarantee compliance with the constitutional and supranational guarantees that are at constant risk of violation in this area.
Militello V., The “Fight” against Organized Crime, p. 773 ss.
This paper addresses the possibilities, limits and conditions for an intervention of criminal law in the broad range of measures aimed at combating organized crime. First, it must be excluded that this form of crime has a merely temporary and contingent nature and, therefore, that the applicable legislation may be limited to a serious but always circumscribed emergency season. Then, the issue is investigated from the standpoint of the two theories of the criminal law of the enemy and of criminal law “of fight”. The conclusion points against the usability of such general formulas, both for constitutional reasons and because of the very features of criminal law. The author recommends that this important area of legislation be monitored in terms of individual standards and not in terms of overarching categories.
Masera L., The Criminal Law “of the Enemies” – The Sanctions against Illegal Immigrants, p. 805 ss.
This paper provides an overview of the origin and development of immigration criminal law, identifying its most significant moments and trying to capture the highlights of its evolution in the past twenty years.
Di Giovine O., Drug Laws - Shoundn’t we Put Everything in the same “Pot”?, p. 835 ss.
A review of the evolution of both the law and the case law shows that, given the variability of the framework of positive law, judges have constantly tried to tighten the net of criminal liability on the matter of drugs. Therefore, the author investigates the reasons of this divergence. In the conflict between arguments (none of which is decisive) for and against repressing conducts concerning drugs, the conclusion reached is that such divergence is due to the inevitable variety of the phenomenon that does not lend itself to a punctual legislative regulation, but the actual criminal relevance of which can be known by the judge only in relation to each specific case. As a consequence, the current protection system — except for some excessive punishments — seems to be the only one that is realistically sustainable.
Longobardo C., Predatory Crimes against Property, p. 889 ss.
The author focuses on the issue of predatory crimes against property by comparing statistical data, characterized by a high dark number, with the material and regulatory reality, which features a symbolic and mass media-driven legislation. As a result, such system of law seems to be aimed at maintaining the existing division into social classes, thereby stigmatizing the so-called "dangerous classes" through the use of criminal law. Such use of criminal law as a way to enact social control is clear also if compared with the treatment of the so-called white-collar crimes.
Maugeri A.M., Criminal Law of the Enemy and Sex-related Offenses, p. 909 ss.
The aim of this paper is to highlight the emerging rationale of the so-called "criminal law of the enemy" or criminal law of fight, with the related violations of fundamental rights and of the principles of criminal law, in some sectors of sexually connoted crimes - such as crimes punished in order to protect minors and the fight against the exploitation of prostitution - and in the choice of the type of measures/sanctions implemented in this area, which are aimed at anticipating a punitive intervention and at dealing with the perpetrator' dangerousness such as security measures, preventive measures, shaming sanctions such as the sex offender registers. The concept of “criminal law of the enemy” will be adopted as an analytical-descriptive category to criticize phenomena of expansion of national and supranational criminal law in the context of a certain “criminal populism,” without accepting its postulation and legitimation as a political-criminal agenda.
Mongillo V., Fighting Corruption: between Suggestions on the “Type of Perpetrator” and Emergency Approaches, p. 967 ss.
This contribution analyzes the socio-cultural, political and legal factors underlying the rise of corruption to the rank of emergency in criminal law. In the increasingly fiercer fight undertaken by the state and by supranational organizations against corruption as a criminal phenomenon and against the corrupt (in a broad sense) as a “type of offender”, the “emergency criminal paradigm” has now been fully defined by combining all of its typical substantive, penitentiary and investigative-procedural devices, which often conflict with fundamental principles and rights. The final part of the paper offers a minimum program for overcoming the emergency ideology in the field of anti-corruption regulations.
Curi F., An Enemy for all Seasons: The Hooligan. The - Exceedingly -Versatile Personal Prevention Measures, p. 1021 ss.
This paper focuses on personal prevention measures which were originally implemented to counter the phenomena of violence that occur during sports matches, which have now been extended to completely different areas. Substantially deprived of some essential guarantees of constitutional relevance, they pursue the goal of a zero-tolerance social control. The two security law decrees, which were enacted during the Salvini period, have brought about a significant expansion both in terms of the category of recipients and in terms of the methods of execution.
De Vero G., The Ambiguous and Hostile Connotation of Mafia-Style Crimes, p. 1033 ss.
The social perception of the “hostile” connotation of Mafia-style crimes does not seem to be unanimous. From a legislative perspective, this is confirmed by the different orientations that have been followed over time. With regard to the development or review of the provisions governing the different criminal offences in order to deal with the evolution of organized crime, one can notice a remarkable hesitation, which invariably paves the way to an uncertain case law: this is especially evident in regard to the rules governing Mafia connections and to the crucial issues of criminal liability for “delocalized” Mafia organizations and of the extension of Mafia-like methods to bribery. Within the framework of the detention legislation, what still comes out strongly is the enemy connotation of Mafia-style crimes, to the point of undermining the rehabilitation purpose of punishment. An example of this is the issue of those crimes for which no exception to detention is admitted, which is left to the constitutional case law, following in the footsteps of European Court of Human Rights, along a path that has not yet come to an end.
Fornasari G., Rhapsodic Remarks on Three Branches of Criminal Law of the Enemy, p.1049 ss.
The goal of this paper is to highlight how certain traits of the rationale underlying the provisions of criminal law of the enemy can be found in recent legislative acts aimed at punishing with criminal penalties nothing but situations of extreme poverty, in both recent judicial decisions and some legal literature found in transitional justice and in the recent newly developed excuse-making attitude which encourages the use of torture as a legitimate practice and as a tool to seek out the truth in exceptional situations that potentially threaten public safety. Although such situations differ from one another, they all share common features, namely a downgrading of fact-based criminal law and the sacrifice of fundamental connotations of the rule of law.
Manna A., The Legal Status of Preventive Measures between Administrative Law and Criminal Law, p.1065 ss.
The author analyzes the issue of the legal status of preventive measures as, since it is not a purely academic matter, opting for one thesis or another brings about significant legal consequences. It should also be noted that there is full consensus in both the domestic and the supranational case law in defining these as administrative measures, mainly due to their origin as police measures. However, if the so-called Engel criteria, at EU level, are applied, one realizes that at least two out of three criteria, namely the function of the punishment and above all its (considerable) degree of affliction, lead to opt for their criminal nature. However, neither the supranational case law with the De Tommaso judgment nor the domestic case law with the judgments passed by the Constitutional Court, specifically judgments no. 24 and 25 of 2019, have endorsed such orientation. Their non-criminal status, which implies a clear disadvantage in terms of guarantees, has obviously urged the legislator, especially with regard to assets-related preventive measures, to considerably broaden their scope of application with the so-called first and second anti-mafia Code of 2011 and 2017. However, in the author’s view, this significant reduction in terms of guarantees can be remedied by transforming the preventive measures, i.e. ante or praeter delictum measures, into as many post delictum measures, i.e. in security measures, where the decrease in effectiveness, especially in terms of timing, would be abundantly offset by a significant gain in terms of guarantees on a personal level and in terms of protection of the persons’ assets.
Ruga Riva C., Is the Polluter a New Type of Offender?, p. 1081 ss.
After providing a concise overview of the model of environmental misdemeanor and of the new environmental crimes, the Author concludes that such offences do not lead to identify the polluter as a new type of offender. However, limited to the new environmental crimes included in the Italian Criminal Code, the severity of the overall sanctioning system and the case law on this matter, which is often more focused on protecting the environment than on the guarantee principles, reveal an orientation of the criminal law towards fighting a phenomenon (i.e. environmental pollution) rather than combating the individual pollution events.