LEGAL THEORY

 

ARTICLES

 

Eser A., Killing in War: Unasked Questions-Ill-Founded Legitimisation, p. 1105 ss.

Killing in war as a matter of course may be inferred from the fact that, as stated by Thomas Hobbes, “all laws are silent in the time of war”. Although this traditional law suspending power of war has been restricted to a certain degree by modern humanitarian international law, it is still commonly assumed that killing in war, unless and as long as not explicitly forbidden, is per se permitted and thus does not require any further legitimisation. This is in fundamental contrast to a “normal” homicide, which requires special justification to be considered lawful. This commonly unquestioned license to kill, by the mere reason of being at war, is all the more astonishing given that no legal norm can be found that positively and explicitly declares killing in war to be lawful. However, on what ground can such an unwritten privilege be based? How can it be morally justified and sufficiently legitimised? This question shall be pursued in four steps: by, first, asking whether and why killing in war, as long as it does not cross the threshold of a war crime, shall stay outside the rubric of criminal law. After not having found a satisfactory answer, it must, second, be asked whether and to what degree constitutional law could provide empowerments and restrictions of killing in war. As neither will give full answers, third, final refuge may be taken in international law, with particular attention to state sovereignty. Since even on this level, however, killing in war has not yet found convincing legitimisation, fourth, further challenges are to be met.

 

Eusebi L., Punishment and Forgiveness, p. 1137 ss.

This paper focuses on the essence of forgiveness, understood as a waiver of revenge and the interest in a future no longer stigmatized by evil for those who committed it, and points out a notion of this concept that concerns the basic profiles of a criminal policy that is not pervaded by the logic of punitive demagogy and instead is compliant with the constitutional principles. Far from being a behavioural criterion that is merely based on religious principles or implies inaction against crimes, any reference to forgiveness requires to move away from the static nature of Retributive Justice and to open up to a project-oriented and inspirational vision of prevention so that the criteria for “doing justice” take on the opposite connotations as compared to those underlying the offence.

 

Rossi A., Criminal Law Aspects of the Corporate Crisis and Insolvency Code: Lights and Shadows in the Statutory Data in a Programmatic Context. The Impact on some Corporate Issues, p. 1153 ss.

According to the instructions set out in the law enabling the government to reform the insolvency matter, the criminal offences referred to in the Corporate Crisis and Insolvency Code (hereinafter the CCII) should match those referred to in the insolvency/bankruptcy law of 1942. However, despite the instructions given in the law for the adoption of the CCII, the “transferred” criminal provisions are not completely unchanged. In fact, while some of them are indeed equal to the corresponding provisions of the bankruptcy law of 1942,  others appear to have been innovated and others yet have been introduced only after the CCII. The author offers an overview of some peculiarities of the criminal provisions set out in the CCII, both in a general context and with a focus, from a corporate point of view, on complicity of individuals/corporate bodies in the commission of such criminal offences, with particular reference to atypical omission, given the new and more sophisticated construction of the guarantee positions, precisely in the context of failure to prevent a crime, and the possible reconsideration of the parameters of the ’bankruptcy’ criminal risk in intercompany transactions.

 

Amarelli G., Organized Crime Abroad: the Hard Identification of the Real ‘Mafia’ between Fact and Law, p. 1197 ss.

Criminal organizations are becoming more and more transnational and such feature makes more complicated jurisdictional activity in criminal trials, both with regards to traditional criminal organizations and newly and foreign ones. Firstly, the Supreme Court of Cassation has been wondering whether applying art. 416 bis c.p. to local “silent” criminal organizations, but no answer was offered because the issue was considered factual and not juridical. Secondly, it is much debated if transnational crime aggravating circumstance could be applied to foreign branches of local criminal organization. The author argues that criminal organization offense (art. 416 bis c.p.) should be strictly interpreted according to the Rule of Law principle, without any extension due to political reasons. Besides, Italian criminal law enables judges to apply harsh punishment through different offenses and aggravating circumstances system.

 

Masullo M.N., The Emergence of the Corrupt Bargains: New Incentives and Investigative Tools, p. 1257 ss.

This paper examines the new incentives and investigative tools introduced by Law No. 3 of 2019 aimed at facilitating the emergence of corrupt bargains. The first part of the paper is devoted to the procedural collaboration, i.e. a reason for non-punishability provided for in Art. 323 ter of the Italian Criminal Code for certain crimes against the public administration. Upon outlining the rationale and the structure of this new form of incentive, the paper highlights some critical issues related to the scope of application and, more generally, to the limits of effectiveness of this provision, which is first examined from the viewpoint of the individual responsibility and then under the broader perspective of the related corporate liability. The second part of the paper investigates the compatibility of undercover operations, whose discipline has been revised by the aforementioned Law of 2019, with the structural features of corruption crimes, which are now included among those offences for which the use of this investigative instrument is allowed. More specifically, the main issue concerns the boundaries of non-punishability of undercover operations, which results from the necessity — which should be ensured on a legislative level — to make a distinction between the figure of the undercover agent and that of the agent provocateur.

 

Zirulia S., Assessing Causation in Criminal Trials for Asbestos-Related Diseases: Scientific and Legal Controversies in the Case Law. Insights for a Renewed Discussion on the Acceleration of Failure Time in Mesothelioma Disease Cases, p. 1289 ss.

The paper deals with the assessment of causation in criminal proceedings where company managers are charged with negligent homicide for workers’ or other people’s deaths due to mesothelioma. Such assessment turns out to be particularly problematic as long as the victim has suffered multiple or protracted exposures to asbestos. The first objective of the paper is to verify the extent to which the controversies arisen on the question of the c.d. “acceleration of failure time” stem from purely scientific uncertainties and to what extent, instead, they reflect authentic legal contrasts. The latter are found on both grounds of general and individual causation assessment. The second objective is therefore to develop proposals in order to overcome those legal controversies.

 

Diamanti F., The “Hypothetical Justification”. Introduction to the Issue of Statutory Attribution of an Offense extended to the Realm of Incomplete Justifications, p. 1337 ss.

Under what conditions can an incomplete justification continue, de lege lata, to legitimize an offense? The first part of this paper attempts to provide an answer to this question through the introduction of the “hypothetical justification”, a hermeneutic corrective measure that extends some typical elements of the statutory attribution of an offense (lawful alternative behavior and risk nexus) to the realm of the grounds of justifications. The second part provides an overview of the genesis of this “formula” in the German civil case-law, its growing popularity in the established criminal case-law and in the strictest criminal law literature under the designation   of “hypothetical consent” (hypothetische Einwilligung), and tries to appreciate its various merits and many defects.

 

Di Lello M., Road Traffic Offenses and Prevention of Dangerous Conducts, p. 1383 ss.

The first part of this paper aims at analyzing the key elements of the recently amended crime of “vehicular homicide.” The Author highlights several frictions between this criminal offence and some of the founding principles of criminal law as well as the rules that generally govern the concurring violations and the accidentalia delicti. In the second part of the paper, the Author, starting off from an overview of the foreign legislation, offers an alternative model to prevent road traffic offenses by promoting individual responsibility in a proportional and diversified manner. Then, the opportunity to modify the administrative offences provided by the “Road Traffic Code” is addressed. More specifically, the Author embraces the possibility for the Italian legislator to enact new crimes of “concrete danger” for the safety of individuals, capable of capturing serious and voluntary violations of the road traffic rules.

 

Iagnemma C., Judicial Discretion and Criminal Law: a Reviewed Relation in the Theory of Criminal Justice and in the Sanctioning System, p. 1431 ss.

According to the Italian criminal law, judicial discretion concerns only the criminal sanctioning system. Despite this, such discretion also occurs in establishing criminal liability and with respect to several procedural choices. These are the areas where judicial discretion shows its qualitative nature. This paper focuses on the possible introduction of a regulatory framework ensuring, in compliance with the rule of law, that in every situation judges conduct an assessment of the peculiarities of any given case. It is nonetheless important to note that the qualitative nature of such discretion characterizing the sentencing phase today will be emphasized in the future. The criteria for properly distinguishing criminal penalties and for individualizing sanctions are also outlined. Finally, a review of the concept of proportionality is provided: while it was traditionally used and seen from a purely arithmetical perspective, it is likely to evolve into the concept of ‘congruity’ of the punishment within the context of the so-called ‘reintegrative approach’ to prevention.

 

Bianchi D., Notes on a Theory of Self-Regulation in Criminal Law, p. 1477 ss.

Self-regulation, understood as the regulation provided by a certain social aggregate by itself in relation to other groups or institutions that recognize it but, at the same time, are capable to legally bind it, is an ancient and absolutely usual phenomenon for the ius privatorum, while it appears almost antithetical to modern criminal law, marked by the principles of the rule of law and state monopoly derived from the Enlightenment. Yet, self-regulation is not new to the criminal system and this is increasingly perceivable in the contemporary age, in which those principles of the rule of law and state monopoly, in the face of the "risks of complexity", tend to fade and to become increasingly more open to a “criminal self-regulation” of non-governmental organizations. After offering a general classification model of self-regulation, this paper tries to identify its interconnections with the criminal law (and the related problematic aspects), thereby making a distinction between  more classical forms of acceptance of autopoietic products by "open" criminal types and more innovative forms of self-regulation delegated to private parties by the legislator aimed at preventing adverse events that are liable to be punished under criminal law provisions.

 

Governa J., Command Responsibility in the Statute of the International Criminal Court. Reflections after the Judgment of the Appeals Chamber in the Bemba Case, p. 1527 ss.

On 8 June 2018, the Appeals Chamber of the International Criminal Court acquitted Mr. J.P. Bemba Gombo, who was found guilty by the Trial Chamber for crimes against humanity and war crimes. This decision, adopted by majority, highlights the lack of consensus in the interpretation of art. 28 of the Rome Statute, governing command responsibility. After a brief overview of the case-law of the ad hoc Tribunals on this type of liability, the focus is shifted onto the different positions adopted by the judges of the Court in the Bemba trail. The Author identifies which elements are usually accepted as grounds for command responsibility and which aspects are still open to debate among scholars and judges. The goal is to understand the relationship between superior responsibility and the other types of liability provided by art. 25 of the Statute, pointing out the most problematic aspects and recommending some possible solutions.

 

CASES AND COMMENTS

 

Gusmitta A., Review of Acquittal Judgments providing for Compensation for Damages: the Supreme Court takes another step beyond the principle of res judicata, p. 1567 ss.

The principle of res judicata is once again undermined by the Supreme Court, as the Joint Panel of the Court overturned the established case-law, extending the reopening of the trial (sec. 629 et seq. of the Italian Code of Criminal Procedure) to acquittal judgements providing for compensation for damages. After analyzing this recent decision, the paper focuses on its innovative consequences, underlying some of the problems to be solved in the future.

 

 

DISCUSSIONS

Morelli F., The Limitation Period, the Length of Court Proceedings, and the Timeless Authority, p. 1599 ss.

As from 1 January 2020, the limitation period established for a crime will stop running after the judgment of first instance. As a result, the appeal phases following the first judgement could last forever, since the law does not provide for a time limit. This new and unprecedented provision generates a lot of systemic conflicts with several aspects of the Italian criminal system: the fundamental rights of the offender, the fundamental rights of the defendant, first and foremost the presumption of innocence, and the principle of legality in criminal proceedings.