With this paper, the author aims to propose a synthesis of the current state of the Court's Strasbourg case-law on environmental matters: starting with the notion of positive obligations, the author analyses the main interpretative guidelines with which the judges have extended the scope of the right to life under Art. 2 Cedu and the right to privacy under Art. 8 Cedu to assert a conventional environmental right for protection the individual. The protection of the victims of environmental crimes offers a interesting reflection point in relation to its normative implications, due to the recent legislative reform and to the perspective of protecting the victim in the criminal process, which is considerably stronger today.
The phenomenon of remote participation in a trial, introduced in Italy in 1998 with a 'sunset clause’ first relegated to implementing provisions and subsequently consolidated, has been progressively expanded. The Iaw of 23 June 2017, no. 103, radically changes its scope by actually turning an exception into a rule, whose reflections on the efficacy of a cross-examination and on the exercise of right to defence are indisputable, since 'virtual' participation cannot be compared to the defendant's physical presence in court. Hence the need to reconsider the conclusions outlined by the Italian Constitutional Court and the European Court of Human Rights with regard to previous legislation, also in order to avoid the risk that remote participation may in future become the ‘norm’ in a trial involving parties in vinculis, whatever the procedure that originated the status detentionis may be.
The use of State secrets in criminal law proceedings and the risk of terrorist attacks bring us to examine the interpretation of Law no. 124 of 2007 offered by the Constitutional Court with respect to the well- known Abu Omar affair. The solutions provided have not persuaded those who, like the ECHR, believe that the protection of «inviolable» human rights should Always be granted, especially in connection with serious forms of crime. Human rights guarantees must not be restricted when they are needed the most.
The extradition procedure is governed by ad hoc Conventions on extradition and by suppression conventions on terrorism offences. However, the procedure may become inapplicable if it is incompatible with the obligations to protect human rights. This article will consider such cases with a special focus on violations of Article 3 ECHR, on the prohibition of torture or inhuman or degrading treatment.
In the context of EU law, procedural guarantees mostly take the form of “principles”, which must then be converted into "rules" by the courts. How can we ensure that these rules are actually able to achieve predictable results and, above all, a good balance of all the values at stake? The answer offered by article 53 of the Nice Charter requires the equivalence between the standards for the protection of fundamental rights provided by the European Union, the ECHR and the national systems. It is not easy to perform this triangulation, however, if we consider that these standards are often incompatible with each other. This article proposes some means to that end.
While rejecting the issue of the constitutionality of Article 1 of Law no. 689/1981 insofar as it does not provide for the applicability of the principle of retroactivity of the most favourable supervening regulation for administrative sanctions, Constitutional Court decision no. 193 dated 20 July 2016 seems nevertheless to set the stage for definitively overcoming such serious limitation of the aforementioned Law no. 689/1981. After having analysed this decision and the context within which it is entered, this article will highlight the reasons why said decision should be regarded as a warning to the Legislator, which has now the ultimate responsibility of fixing such error in our administrative sanction system.
This introduction presents some forms of interaction between criminal law and procedure from the international, European and domestic perspective analysed in the following essays published in this issue, which constitute the conference proceedings of the 6th Training Course on Criminal Law and Procedure "Giuliano Vassalli" for PhD Candidates organized by the International Institute of Higher Studies in Criminal Sciences (ISISC) in Noto, 18-20 September 2015.
The subject of the relationship between criminal law and criminal procedure, if examined under the perspective of the law-making process, calls for a reflection on the possibility to conciliate the “judge-made law” with the principle of legality, as it is enshrined in the Italian Constitution and as it is intended by the European Court of Human Rights. The author is skeptical about the possibility for the judge-made law, in the Italian system, to comply with the substantive meaning of the principle of legality as a guarantee for the individual. Indeed, for legality to act as a guarantee, not only the law must be clear and precise in order to constitute a reason for action and allow the individual to foresee the consequences of his action. But also, the individual must be judged according to the same rule that is supposed to lead his action. In other words, the “rule of judgment” ought not to be “created” in the proceeding where the responsibility of the individual is established. Otherwise, the requirement of foreseeability (and non-retroactivity) of the law would be infringed. As well as the cognitive nature of the criminal proceeding. In response to the intrinsic unpredictability of a judge-made law in the Italian system, and to the difficulty to find remedies for it, it still seems necessary to require the respect of the principle of legality as it is enshrined in Article 25 of the Italian Constitution. This means that it is for the legislator to intervene when the law does not define clearly and precisely the elements of the offence and Leaves too much discretion to the judge in the definition of the “rule of judgment”. As it has been revealed by the ECtHR case Contrada v. Italy with regard to the offence of concorso esterno in associazione mafiosa.
Starting from the extreme proliferation of the incriminating rules in our criminal law system and from its resulting insufficient effectiveness, this paper aims to demonstrate the necessity of serious criminal policy criteria able to guide and constrain the Legislator’s activity in the criminal matter. The important dogmatic development achieved in the past with regard to the principle of harm represents the first requirement of this analysis, which aims to verify its possible integration with the "European" principles of subsidiarity and proportionality, in order to allow judicial evaluations, based on valid axiological criteria, on the matter of criminal law choice.
Although synthetically, this paper aims to analyse the main issues that affect the recent debate about the relationship between the principle of inviolability of the authority of the sentence and the protection of the human rights of the prisoners, due to the evolution of the jurisprudence of the European Court of Human Rights (ECHR). In particular, this investigation focuses on the relationship between the national authority of the sentence and the frequency of the execution of the ECHR’s judgments.