Sommario: 1. La natura giuridica delle sanzioni disciplinari previste dall’ordinamento penitenziario: introduzione. – 2) La presa di posizione della Suprema Corte. – 3. Ulteriori interventi della giurisprudenza di legittimità: Cass. pen., Sez. II, 16 febbraio 2018, n. 23043. – 4. Considerazioni conclusive.
The paper aims to analyse the sanctioning system for privacy-related infringements, as recently amended both at the EU and the domestic level. Considering the administrative and criminal provisions currently provided for by the GDPR and the Italian Privacy Code, some critical issues will be highlighted with respect to the wording of the said provisions, whose interpretation is often difficult. The Italian lawmaker seems to have adopted the ‘double track’ sanctioning system: in the second part of the paper will assess the compatibility of the said system with the supranational principle of ne bis in idem. Finally, some reflections will be devoted to the rationale of the repeated option for the ‘double track’ sanctioning system, trying to find a way out from it through the ‘specialty’ principle established under art. 9 of Law 689/1981.
This paper aims to reflect on the deficiencies, from the criminal safeguards perspective, that can be found in the current procedure for the settlement of conflicts of criminal jurisdiction in the European Union. After a brief introduction and overview of the legal framework on conflicts of jurisdiction and the system of protection of rights and procedural safeguards in the European Union, the paper is divided into two different parts. The first part will focus on identifying and examining the principles, rights and safeguards at stake in a transnational situation of conflict of criminal jurisdiction between Member States. In the second part of this paper, the author will reflect on the improvements that should be adopted to grant a better standard of protection for the suspected or accused person, including the critical analysis of proposals made by scholars on this matter.
Legislative Decree no. 107/2018 was enacted to comply with the 596/2014 EU market abuse regulation. While the 2014/57/EU directive on criminal sanctions for market abuse has not been implemented yet, several changes affect the pre-existing criminal provisions in this area. The new legislation in place is however quite controversial about its criminal law ramifications
The paper focuses on the Italian ne bis in idem with respect to tax infringements and market abuse, in light of the CJEU judgments of 20 March 2018 in the cases Menci, Garlsson Real Estate and Di Puma e Zecca. Firstly, it is considered the boundary of ne bis in idem, whose extension was strongly reduced also in the EU after the ECtHR judgment in re A and B v. Norway. The paper then focuses on the developments of the dialogue between the European Courts on the principle at issue, not intended anymore as a procedural safeguard and rather construed in a new way, where proportionality of punishment becomes crucial. Taking into account the relationship between criminal and administrative offences in the abovesaid areas, it is eventually examined the potential effect of the new ne bis in idem on the Italian legal system, highlighting how the reduction of the overall sanction to a (formally) proportionate level can be an effective tool to ensure the abidance of the safeguard at issue, at least as it is now intended
This article compares the Italian and the English and Welsh systems of sanctions adopted for the suppression of insider dealing’s offences. In light of the decision in Grande Stevens and Others v. Italy, this article particularly focusses on the court’s compliance with the fundamental human right to the substantial ne bis in idem and on the powers that Parliaments entrusted to their national Security Exchange Commissions. Finally, by underlining pros and cons of the two legal systems, this article suggests some practical solutions to overcome the existing problems of double jeopardy and excess of powers.
The essay examines the connections between the crimes provided by arts. 416-bis c.p. and 74 d.p.r. n. 309/90, criticizing the case law of the Italian Supreme Court (Corte di Cassazione) that usually considers these two crimes to be formally concurrent (concorso formale di reati), thus determining an automatic duplication of sanctions in breach of the substantial ne bis in idem principle. In particular, the paper underlines how the application of value-based criteria to solve the issue of the apparent concurrence (concorso apparente) of criminal provisions, rather than logical and structural criteria, would allow to achieve more balanced solutions regarding the level of the penalty to be imposed, which today is completely disproportionate as compared to the concrete disvalue of the conspiracy because of Courts’ attitude and legislative choices.
Current Italian regulations on insider trading and market manipulation, with their ‘dual-track’ system of parallel criminal and administrative sanctions, have been ruled incompatible with the individual right to ne bis in idem by the Strasbourg Court in Grande Stevens vs. Italy. The judgment calls upon Italian courts and legislators to harmonise our laws with the conventional obligations on ne bis in idem, which stem both from Article 4 of Protocol 7 ECHR and from Article 50 of the European Charter, the latter provision enjoying the status of EU primary law and having as such direct effect in the domestic legal system. This article explores some possible ways, de lege lata and ferenda, to achieve that goal.
Il Regolamento (UE) 596/2014 e la Direttiva 2014/57/UE intervengono incisivamente sul comparto degli abusi di mercato, attraverso scelte politico-criminali nette che risentono delle elaborazioni sovranazionali sulla “materia penale” e disegnano un sistema sanzionatorio unitario rispettoso del principio del ne bis in idem. Direttiva e Regolamento sono dunque destinati a conformare il diritto punitivo interno sia per quanto concerne la fattispecie di abuso di informazioni privilegiate, sia con riguardo all’ipotesi di manipolazione del mercato. Il legislatore nazionale sarà dunque chiamato a un non facile compito di adeguamento del vigente assetto del market abuse al fine di ottemperare alle prescrizioni eurounitarie.