LEGAL THEORY

ARTICLES

Maiwald M., No Intent without Negligence. The ‘Objective Imputation' Theory in the Italian Literature, pag. 1 ss.

In the first part of this paper, the Author criticizes the “theory of objective imputation” and embraces and relaunches the arguments of the German legal theory. In the second part, he makes reference to Giorgio Marinucci's essay of 1991 entitled “Non c’è dolo senza colpa (no intention without imprudence) to recognize that the latter had anticipated with smart and commendable arguments the criticism that originated later on within the German doctrine. The Author focuses on a specific point of Marinucci's thesis: while he appreciated some theoretical aspects of the “theory of objective imputation”, he believed that its outcome would find its true basis in normative-logical arguments, which lay the foundations of “result-crimes committed with negligence” (delitti colposi di evento). 

Bertolino M., The Rights of Children between Delicate Issues of Balance in Criminal Law and Constitutional Guarantees, pag. 21 ss.

Pursuant to Article 3 of the UN Convention on the Rights of the Child, the interests of the latter are to be deemed superior and preeminent in all actions concerning children. This has gradually become part of the criminal framework as a fundamental principle. However, it cannot justify an absolutization of the child interests to the detriment of other interests that are equally worthy of protection. The Italian Constitutional Court itself recognizes the need to evaluate and balance the child interests, which, therefore, cannot be considered as prevalent in all circumstances. The interest of the child is not superior per se and it shall be accepted if and when it is truly the best interest. Being essentially undetermined, this principle has favored a rhetorical use of the formula. Nevertheless, the clause has also guided the Legislator and the criminal case law along a path of gradual acknowledgment and protection of the fundamental rights of children, be them offenders, victims or third parties.

Canestrari S., The Foundations of Criminal Biolaw and Law n. 219 of 22 December 2017, pag. 55 ss.

This contribution provides an overview of the foundations of criminal biolaw, highlighting how the principles regarding the end of human life are expressed in the recent law concerning « Provisions on informed consent and advance treatment directives ». Indeed, law n. 219 identifies a number of fundamental rights which grant the the broadest spectrum of therapeutic self-determination, through to the right to live all stages of life without any medical treatment against the person's will.

Militello V., Human Trafficking: Multi-Level Criminal Policy and the complex relationship with Migrant Smuggling, pag. 86 ss.

The paper tackles the issue of human trafficking, from a multi-level perspective. First, it considers both the human-rights-oriented approach to the matter and the importance of a law enforcement action. In the face of their diversity, the necessity will be underlined of integrating these two approaches. As an example of this holistic perspective, the UN Protocol against Trafficking in Persons sets forth a comprehensive approach, based on repressive penal measures, but also on prevention, cooperation between states and protection and assistance for the victims. According to the current interpretation, the difference with migrant smuggling, which is the object of a different protocol to the UN Convention on Transnational Organized Crime and aims to control migration flows, revolves around the involved persons, as victims or not of these two crimes. Such a rigid separation is also reaffirmed both in European norms and in Italian law on the matter. However, the boundary between these two phenomena is frequently blurred, as various kinds of relationships may exist between them. Italian judges, however, have frequently applied this distinction too strictly, whereas the osmotic relationship between these two criminal conducts should not be overlooked so as to ensure a more adequate protection of human dignity.

Pugiotto A., For a Renewed Constitutional Statute of Collective Mercy, pag. 109 ss.

While it was largely misused in the past, the instrument of (individual and collective) mercy today is experiencing – according to the available data — an unprecedented quantitative decline in the history of Italy, both monarchic and republican. Amnesty and pardon, in particular, seem to be collapsing under the weight of an anachronistic prejudice, which precedes and determines their current dormancy, which in turn has a severe impact on the legal system. However, such instruments of criminal policy can indeed be rediscovered and used, giving to them a new interpretation geared towards the constitutional goal of punitive law. In fact, if the goal of resocializing is to accompany the punishment in each and every phase of the criminal trial, “until its actual extinction” (judgments No. 313/1990, 172/2017), both individual (as admitted in judgment No. 200/2006) and collective mercy (as already established by judgment No. 368/1988) should fall within such scope. In order to ensure a new, bright future to amnesty and pardon laws, away from the old excesses of the past, Article 79 of the Constitution should be amended again. The review of such article, which was approved by constitutional law No. 1 of 1992, was — from a legal standpoint — the starting point of the decreasing use of collective mercy. The issue is not merely due to the excessive and prohibitive quorum required for such resolutions. Indeed, article 79 of the Constitution should be redesigned also in terms of the preliminary requirements of the law on mercy, term of effectiveness, resolution procedures so as to grant the power to discuss and resolve upon such matters to the Parliament only. Once reworded according to the detailed guidelines described above, the new article 79 would have all the necessary and sufficient conditions to provide for a double check on the laws on amnesty and pardon by the President of the Republic (during the promulgation phase) and by the Constitutional court (as part of an interlocutory consultation). Once appropriately redesigned and adapted, the instruments of collective mercy would only apparently be contradictory to criminal justice. Conversely, they would express a “non-legalistic” and “non-legalitarian” idea of legality: a legality that is alive and kicking as it would then become part and parcel of the social reality, hence capable of bridging the (unconstitutional) gap between the abstract law and the concrete fact.

Summerer K., Diversion and Restorative Justice. Diversionary Programs in Austrian Criminal Proceedings, pag. 143 ss.

This paper examines the diversionary measures provided for under the Austrian Criminal Procedural Code and highlights its peculiarities also in comparison with the German legal framework. Alternative methods for dealing with minor crimes were introduced in Austria already in the last decades of the 20^th century and have now become a fundamental instrument for enforcing criminal justice. This essay analyzes the legal requirements, the individual measures, as well as the most important aspects of the proceeding, stressing the critical issues and providing an account of the current debate.

Callari F., Abuse of Criminal Proceedings between the Parties’ Right to Evidence and the Judge’s Probative Powers, pag. 177 ss.

Starting from a thorough analysis of the notion of “Abuse of Process” emerged in the context of civil proceedings, this essay examines the unique connotations that this legal concept takes on in the specific area of criminal proceedings. In this perspective, the Author takes into consideration mainly the different positions endorsed in the legal literature and the case law of national courts, as well as the different choices made by the Italian legislator. In particular, the Author delves into some peculiar situations of abuse of process that may occur in the fundamental probative dynamics of criminal proceedings, which involve not only the parties but also the judge, highlighting remedies and/or sanctions to solve such major pathological cases.

Casiraghi R., Reversal of a Final Judgment: Several Interpretation Issues still Open, pag. 207 ss.

After a short introduction outlining the characteristics of the reform of proceedings in absentia, this paper focuses on the reversal of a final judgment, which aims to guarantee the reopening of the proceedings for a convicted person who proves that he/she was not aware of the trial. However, many issues remain open, hence the risk of new convictions by the European Court of Human Rights. Therefore, possible solutions are suggested in order to comply with the European standards.

Logli A., Procedural Implications of the Contrada Case, pag. 239 ss.

The author analyzes judgment No. 43112/2017 of the Italian Supreme Court (in the Contrada case). Such judgment established that the final conviction that was originally imposed onto the appellant was unenforceable as a result of a judgment of the European Court of Human Rights on the violation of art. 7 ECHR. Starting from such decision, the paper focuses on the procedural issues regarding the execution of the European sentences in the Italian system. More specifically, in order to guarantee a reopening of the proceedings, the paper deals with the hypothesis of applying the so-called “European revision” exclusively, or the “execution trial” in addition thereto. The author then discusses decision No. 44193/2016 of the Supreme Court (Dell’Utri case) concerning the reopening of the proceedings also for convicts who, in similar cases, did not appeal to the European Court. Finally, the Author offers a short overview of the problems and systematic perspectives on the issue of the execution of the sentences of the European Court of Human Rights.

CASES AND COMMENTS

Della Casa F., An “Oversize” Photo in the Prisoner's Cell? Where Common Sense is missing, a Claim can be filed pursuant to the Article 35-bis of the Prison Act, pag. 273 ss.

The judgement of the Supreme Court discussed here points out that, in the case of a regulatory provision that nullifies a right guaranteed by the Constitution or by the Prison Act, the penitentiary judge, upon receiving the prisoner's claim, can disapply the lower-ranking regulations. Agreeing with this ruling, the Author asserts that it is therefore up to this judge to decide on a case-by-case basis whether the exercise of the right is compatible or not with the security requirements of the prison facilities.

D’Alessandro F., The Italian Supreme Court on the Cucchi Case: a further Divergence from the Franzese Judgement due to Misinterpreted Goals of Substantive Justice, pag. 301 ss.

This paper explores certain problematic aspects of the ascertainment of criminal liability in connection with those crimes where the perpetrator is punished for having negligently caused a harmful event. More specifically, drawing on the judgment in which the Italian Supreme Court took a stand on Stefano Cucchi’s tragic death and on the liability of the doctors who took care of him, the Author firstly analyses the issue of the “high logical probability” standard, which is essential to prove causation in criminal cases. With respect to this issue, the Author criticises the stance taken by the Supreme Court, that - despite overtly (and formally) sticking to the principles expressed in the Franzese judgement- actually significantly moves away from those principles, in that it allows causal explanations far from certainty and based on the mere increase of risk. Equally unconvincing is the position expressed by the Supreme Court with respect to the identification of the alternative behaviour that the agent should have taken in crimes by omission. Here, the Supreme Court seems to excessively extend the scope of the evaluation entrusted to the trial courts, without acknowledging any selective function to the charges pressed by the Public Prosecutor.