LEGAL THEORY

ARTICLES

Dolcini E., Punishment and Constitution, p. 3 ss.

The issue of punishment is connected with several constitutional principles, such as the inviolability of personal freedom, the principle of equality and the rule of law in criminal matters. As a consequence, punishment — and especially custodial sentences — should only play a marginal role, legal provisions should allow judges to tailor punishments, and fines should be truly adjusted to the economic situation of the offender. As to the functions of punishment, the idea of rehabilitation (which is the primary purpose of punishment, also according to the Constitutional Court) has to be reconstructed both in view of the democratic, secular and pluralistic characteristics of the State laid out by the Constitution and in view of the prohibition to implement inhuman treatments, with major consequences on the contents of the rehabilitation measures. Finally, sometimes the constitutional principles analyzed in this essay have been interpreted in different ways by some authors in the criminal law literature. Indeed, some believe that the Constitution only admits imprisonment and excludes any alternative punishment. The final part of this essay on this approach.

Sieber U., General Principles of Administrative Sanctions Law in Germany, p. 35 ss.

In addition to the traditional criminal law, the German legal system has developed a second punitive sanctioning system, called the « law of the Ordnungswidrigkeiten » (i.e. “regulatory” or “administrative” offences). This system allows administrative authorities to impose financial sanctions that are not stigmatizing but in some cases have a high afflictive content. This essay analyses the law of the Ordnungswidrigkeiten with the aim of assessing its structure and forecasting some potential developments. After a brief reconstruction of the historical development of administrative sanctions under the German law, empirical data on the current use of some of the most important Ordnungswidrigkeiten are presented. The essay then provides a detailed description of the current regulation of Ordnungswidrigkeiten on the basis of a distinction between its traditional system, introduced in the 1950’s, and the so-called mega-level Ordnungswidrigkeiten that have appeared in recent decades in the German law and in the EU law. Finally, the essay analyses the issue of the real nature of such offences and the related safeguards, and concludes with some reflections on the future legislative policy.

Gialuz M., The Right of Jurisdiction of the Defendant and of the Victim of a Crime: between European Efforts and Italian Deficiencies, p. 75 ss.

In the first part of the essay, the author analyses the concept of the "right of jurisdiction " from a theoretical point of view. The second part is aimed at understanding how this right applies to the defendant and to the victim of a crime in the legal sources of smaller and greater Europe. The analysis allows to state that, in the first thirty years of life of the Italian code of criminal procedure, the “need for jurisdiction” has gradually increased also in Italy, thanks to the joint efforts of the Council of Europe and the European Union.

Consulich F., Stat sua cuique dies. Freedom or Punishment for Assisted Suicide?, p. 101 ss.

This paper aims to outline a reasonable regulation of suicidal resolutions by patients with poor diagnoses. The current criminal law seems inadequate since it does not recognize that inciting and assisting suicide are not equally reprehensible and, at the same time, overemphasizes the moral difference between active and passive euthanasia. Regulating such cases will probably imply building a complex justification, based on the observation that suicide is a negative liberty of each suffering patient. Usually the element of unlawfulness settles the conflict between diverging interests belonging to different subjects. Conversely, in the area of end-of-life decisions, the conflicting interests refer to the very same person. Hence, any intervention by the State aimed at avoiding a paternalistic approach should only (initially) verify and (later) guarantee the right to self-determination of the individual, who is the only true protagonist of a balanced approach.

Aimi A., Italian Law Decree No. 113/2018: the Amendments to Criminal Law and Criminal Procedural Law, p. 135 ss.

Italian Law Decree No. 113/2018, converted into law No. 132/2018, better known as “Security Decree” or “Salvini Decree”, deeply amended the Italian immigration law, criminal law and criminal procedural law. In this paper, the Author analyzes the most important changes in criminal law, criminal procedural law and in the legislation covering the administrative detention of illegal immigrants in order to establish whether the enforcement of new regulations could result in a violation of fundamental rights, in light of the Italian Constitution or the European Convention on Human Rights.

Penco E., Threshold Limits and Criminal Negligence. The Uncertain Role of Quantitative Thresholds: from “Specific Negligence” to “Acceptable Risk”, p. 195 ss.

The relationship between threshold limits and criminal negligence is crucial among the challenges posed by the modern "risk society”. Two interpretative paths can be followed: one considers threshold limits as a prerequisite of criminal negligence, conceived as normative parameters on which a charge for “specific” criminal negligence should be built; the other aims at excluding criminal negligence based on these limits, considering them as an expression of the so-called “acceptable risk”. In analyzing both perspectives it is necessary to focus on issues relating to the use of threshold limits in criminal law, highlighting the distinction between threshold values based on the precautionary principle, on the one hand, and quantitative limits resulting from actual, science-based risks, on the other hand.

CASES AND COMMENTS

Leo G., New Avenues in the Judicial Review of the Legality of Criminal Offences: the Italian Constitutional Court rules on Assisted Suicide, p. 241 ss.

The assistance provided in Italy to a completely paralyzed person to commit suicide in Switzerland resulted in a proceeding against a civil rights activist for the crime of assistance in another person’s suicide”pursuant to article 580 of the Italian Criminal Code. This criminal trial has shed light on the dramatic conflict between the protection of human life and the need for freedom and dignity of the person in the framework of a transition from the idea of life as a public good, "belonging" to the State, to the idea of life as a fundamental right of the person, who may claim protection in terms of effective freedom of self-determination. With an interim ruling, the Italian Constitutional Court clearly stated that the national law, under given (and extreme) conditions, shall allow to intervene with medical treatments resulting in the patient’s death, according to his or her desires. This ruling somehow announces a partial unlawfulness of article 580 of the Italian Criminal Code, combining a warning to the legislator with the immediate neutralization of an offence that is in conflict with the Constitution. The result is a motivated "suspension" of the main proceeding, pending a proper regulation of the “end-of-life” matter by the Parliament.

Capone A., The Defendant’s Appeal against a Sentence. The Supreme Court denies the Obligation of the Judge to rehear the Witnesses, p. 274 ss.

The Supreme Court confirms the settled case-law which limits the obligation of rehearing the witnesses, during appeal proceedings, only to cases involving the overturning of an acquittal into a conviction, in order to overcome any reasonable doubt, thus excluding cases in which a conviction is appealed. There is, therefore, an asymmetry in the method for establishing the truth. The Supreme Court’s arguments, even if well-established, are not completely convincing. Furthermore, the focus is shifted away from the significantly unequal treatment between the parties: the judge is not obliged to hear witnesses anew when the defendant has appealed his sentence. Nevertheless, the Supreme Court seems not to exclude a scrutiny of admissibility of the public prosecutor’s instances as well, in order to restore some degree of equality.

Bacco F., Freedom of Speech or Blasphemy against Islam? On Two Questionable Headlines, p. 305 ss.

Two recent judgments of the Milan’s trial court address the issue of the lawfulness of words and expressions employed in newspaper articles and consequently the relations between freedom of speech and criminal prohibitions in this area. The cases concern the charge of “blasphemy against a religion by contempt of the devotees”: the verdict was one of full acquittal. Yet, beyond the outcome of the proceedings, both rulings underline, with particularly impactful and stigmatizing reasonings, the questionable essence of the expressions published by the newspapers, thus shifting the focus of the debate to the issues of discriminatory offenses and hate speech.

Santangelo A., At the Boundary between Common Law and Civil Law: the Foreseeability Principle in the Strasbourg Case Law, p. 332 ss.

In Dallas vs. United Kingdom, the Strasbourg Court unanimously ruled that no violation of Art 7 ECHR was committed since the interpretation by the trial judges was not innovative and, at most, only clarified the rules of criminal liability for the offense of juror contempt of court. However, shortly after Ms. Dallas was convicted, the British Parliament adopted a new legislative act in order to foster the predictability of the common-law offence. This judgement represents a major step in the ECtHR case-law on nullum crimen sine lege, considering both the object and the requirements of foreseeability.

SPECIAL

“CRIMINAL LAW BETWEEN RECENT REFORMS AND PROPOSALS”

7^th National Conference of the Italian Association of the Professors of Criminal Law (Turin, 9/10 November 2018)

Pulitanò D., Ideas for a Manifesto on Criminal Law Policies, p. 361 ss.

A manifesto on the leading principles of a rational criminal law has a liberal value. There remain son open issues regarding the responses to crimes, where different understandings of justice come face to face. Criminal law is farmakon: a medicine or a poison depending on the doses.

Stortoni L., Criminal Law under the Sign of System’s Efficiency, p. 379 ss.

The conference’s relation – of whom the essay is the text – describes the Italian criminal policy of the last years, underlining the constant growth of punishment’s severity. The introduction of new provisions in various branches of the criminal system doesn’t express a more systematic and organic framework, on the contrary it makes the system fragmentary and not reasonable. The lines of legislative policy contained in the so called “contratto di governo” (government’s agreement) of the incumbent Executive on criminal, procedural and penitentiary matters, like its early acts – symptomatic is the so called “legge spazzacorrotti” (“sweep-corrupted” act) – expresses, on one hand, this tendency and overcomes on the other hand, this tendency in a strongly authoritarian way. In this framework, the proposals of ANM (National Association of Italian magistrates) express some alarming assonances with these positions.

Ambrosetti E.M., The Criminal Code and Special Laws. Planning a Reform after the Rule that requires to include All the Major Crimes in the Code, p. 397 ss.

The link between the code and the complementary legislation has always been a key issue for the reform of the criminal system. The need to re-organize a special regulation that has grown disproportionately and haphazardly is commonly emphasized as a priority for the Italian legislator. Furthermore, there are two different approaches to this issue: one is intended to restore the central role of the code itself; the other advocates a criminal law divided into several subsystems, where the code is complemented by organic and sectoral laws. Nowadays, the rule calling for the inclusion of all criminal law in the code, introduced in Article 3-bis of the Italian Criminal Code by the Orlando legal reform, can be clearly perceived as a turning point if intended not merely as a topographic criterion, but also as a conditioning factor that obliges the legislator to comply with the principles of subsidiarity and extrema ratio. From this perspective, also an in-depth review of the complementary legislation, not only aimed at reducing criminal law and eliminating offences considered of no value, but also designed to resolve the problem of the duplication of penalties caused by the coexistence of crimes and administrative offences, is necessary.

Papa M., Criminal Code v. Scattered Criminal Statutes. Planning a Reform after the Rule that requires to include All the Major Crimes in the Code, p. 417 ss.

According to the principle of “supremacy of the criminal code” recently introduced in Italy, from now on, the criminal code should be the only repository of the criminal legislation. This principle, enacted pursuant to a 2018 decree of the government implementing a delegation by Parliament, prohibits the future legislature to enact scattered, out of code, criminal statutes. The Author criticizes the adoption of this principle for two main reasons. First and most importantly, having no constitutional rank, the new law aims at binding the future decisions by the Parliament. Secondly, the principle of “supremacy of the criminal code” is likely to be outdated from the start. In recent years, the digitalization of positive law has indeed substantially changed the nature and form of norms. Such digitalization has detached them from their physical support, has unchained them from the rigid text of old paper statutes. Since the traditional idea of codification was very much linked to the code as a rigid, sequential, paper text, in the era of digitalized law, formats should be re-structured according to the change. The Author argues that the time has come to move from the traditional idea of the code as a book placed at the heart of the system, to the idea of a “network of norms”. This should be the new format capable to properly organize the criminal legislation. The future legislature should accept the challenge of digitalization and re-think the codification as a comprehensive activity of “network regulation”. A regulated network of criminal norms should replace the old codes, overcoming the very distinction between the code (intended as a well ordered but small system of norms) and the many, scattered, out of code statutes. With the network in place, all norms will be properly connected. In this new scenario, also citizens, enforcement agencies and adjudicators will enjoy the advantages of digitalization. While the contents and the regulation of the network will remain in the hands of the legislature, users will have the chance to form, on demand, their own “playlist” of norms, putting together all and only those provisions which they need for their advocacy or legal reasoning purposes.

Demuro G.P., Extinction of a Crime by Remedial Measures: between Conceptual and Practical Aporias, p. 437 ss.

Remedying the damage, in its relation with the criminal law, can act as penalty, without penalty, in the penalty and with the penalty. It is therefore a relational concept, which is not justified by itself, but always needs a specification of its interaction with the penalty. In all these versions, there remains the issue of its relation with the verdict of guilty and with the purposes of penalties in our positive system. After examining these different hypotheses, the essay deals with what seems to be the latest outcome, namely the extinction of a crime resulting from restorative conducts (art. 162-ter of the Italian Criminal Code). Its problems involve the lack of discretionary powers of the judge, the scope of application, the marginal role of the victim and the lack of consideration of reprobation and prevention needs. The uncertain practical impact of its purpose, i.e.. a deflation of the criminal load, is the reason underlying a proposal which turns its problems into positive factors and seeks to recover this extinctive measure also from the field of reparative justice, thus achieving a trade-off between the principles of subsidiarity and equality, the aims of punishment and the protection of the victim.

Giunta F., Offences prosecuted on Complaint by Injured Party and Restorative Conducts: A Step Change in the Deflationary Trend?, p. 473 ss.

This paper deals with the latest evolution of the Italian Criminal Law regarding offences prosecuted on complaint by the victim, in the light of Legislative Decree no. 36/2018. The legislative reform is analyzed from two different points of view. Firstly, the Author focuses on the effects produced by the extension of the offences prosecuted on complaint by the injured party, by reporting the current debate on this matter. Secondly, he analyzes the relationships between Legislative Decree no. 36/2018 and the new version of art. 162-ter of the Italian Criminal Code which governs the “Extinction of an offence by remedial measures”.

Risicato L., Punitive Damages as a Legal Fantasy: Brief Reflections on Pros, Cons, and Potential Aberrations of a Privatization of Crimes, p. 487 ss.

The regulatory hypertrophy occurred in the last few decades, due to a progressive demise of the perception of the basic criminal principles and to a deterioration of the legal language, triggered attempts of deflation that were not always successful (e.g. the inherent limits of administrative offences). With Italian Legislative Decree No. 7 of 2016, the legislator tries, on the contrary, to take a partially new path, one that provides final legitimation (also) in Italy to the much-debated institute of punitive damages. The reasons of for the growing interest in punitive damages as an alternative to public (criminal or administrative) sanctions, are to be found in the stronger dissuasive power of pecuniary sanctions as compared to detention as originally established for the former criminal offences now decriminalized by Legislative Decree n. 7/2016. However, the current legal framework does not allow for an easy approach to this matter. The legal nature of the new institute is not clear, its procedural implications are not straightforward (with problems ranging from the service of notice to the parties to the applicable standard of proof), and the relationship between civil sanctioning and compensation for damages is not immediately obvious. In addition to this, there is the fundamental question of the guarantees, which is affected by the fact that decriminalized offences still belong to the domain of “criminal matters”. The clarification of these fundamental operating mechanisms will dictate whether this new deflationary instrument shall be a success or failure — the umpteenth.

Dolcini E., The Criminal Penalty System between Risk of Setback and the Antidote offered by the Constitution, p. 501 ss.

The criminal penalty system has painstakingly evolved, in the second half of the twentieth century and in the first part of this century, according to the indications derived from the Constitution. The key players of such process were the legislator, the Constitutional Court and, lastly, the European Court of Human Rights. A milestone in this development might have been the so-called Orlando law (No. 103 of 2017). However, that reform project was drastically downsized when implementing the instructions set out in the law, because of a change in the political majority. Consequently, the current Government is now supporting a different political and criminal approach, which sometimes is antithetical to that expressed in the Orlando reform of the prison system. In fact, legislative decrees no. 123 and n. 124 of 2 October 2018, besides some statements of principle, have only made minor changes to the penitentiary and criminal legal framework, ultimately causing a sharp slowdown in the current process. In this context, the Author strongly wishes that the Constitutional Court succeeds in curbing the regressive pressures to which the system is currently exposed.

Fiorella A., Masucci M., The Rationale, Critical Issues and Reform of the Punishment System applicable to Corporate Criminal Liability, p. 517 ss.

Almost twenty years after corporate criminal liability was introduced in the Italian legal system, can a reform be recommended? A formal clarification of the "criminal" (or comparable) nature of this type of liability in view of the guarantees to be applied would allow for more reliable solutions to crucial problems in the interpretation and application of the law. At the same time, it would foster the development of criteria for "tailoring" the punishment to corporate entities, so as to duly pursue specific re-education purposes. The opportunity or need to extend to legal entities provisions which currently apply only to natural persons should be considered. It would also be crucial to discuss the implementation of mechanisms aimed at excluding unjustified extensions of the punishment to those who, despite the fact that they did not commit a crime, belong to the structure of the entity, first and foremost the shareholders and employees

Moccia S., From Kant to the “Single-Track Railway”, p. 533 ss.

Culpability and social danger, which are the foundational rationale for criminal punishment and for measures aimed to control dangerous authors of crimes (“misure di sicurezza”), are not reliable from a legal certainty perspective. Thus, a “single-track railway” for criminal punishment should be adopted, based on the non-confessional individual criminal liability principle stated in the Constitution.

Palazzo F., What Future for “Alternative Penalties”?, p. 539 ss.

After providing an overview of the latest legislative attempts to introduce alternative measures to detention in the Italian sanction system, the paper delves into the main issues to be solved in order to implement the principle of imprisonment as ultima ratio, if these were in fact deemed feasible. This paper is intended to provide the groundwork for a more in-depth and cooperative research project to be carried out within the framework of AIPDP programs.

DISCUSSIONS

Manes V., On the Reform of the Statute of Limitation, p. 557 ss.

The legislative reform which ‘blocks’ the limitation period after the judgment rendered by the court of first instance does not comply with Italian Constitution in several respects, especially with regard to its values and rationale. While it shall most likely not shorten the criminal proceedings, it may well result in the criminal defendants having to endure a never-ending trial.