LEGAL THEORY

 Articles

Illuminati G., Towards a Restoration of the Culture of Guarantees of the Defendant's Personal Freedom, p. 1131 s.

Law No. 47 enacted on April 16^,, 2015 amends several points of the provisions on precautionary measures set forth in the Italian Code of Criminal Procedure. The issue of pre-trial detention of the suspect has long been at the center of attention of the legislature, especially after the judgments issued by the European Court of Human Rights condemning Italy for "inhuman or degrading treatment" due to prison overcrowding, partially caused by the high number of detainees still awaiting a final sentence. After a number of emergency decrees that contributed to substantially reducing the prison population, the Parliament passed more organic legislation aimed at restoring the role of "remedy of last resort" of pre-trial detention, in compliance with the general principles of the system, and at fostering the use of alternative measures, such as house arrest, electronic surveillance or disqualifying measures. At the same time, the law strengthens the safeguards of the suspect by imposing a more stringent burden of justification on the judge ordering the precautionary measure and by reforming the rules on the appellate review, in order to ensure a faster and more effective control by the higher court. The author analyzes the new law and highlights its achievements, omissions and critical points.

Della Casa F., 40 Years after the 1975 Reform. The ongoing Evolution of the "Prison System Issue", p. 1163 s.

In the years following the reform of 1975, the Italian prison system has been subject to a large number of legislative initiatives. Some of them were consistent with the logic of re-education, but most of them were only aimed to solve recurrent emergencies. One of the most relevant problems, prison overcrowding - for which the ECHR condemned Italy (Torreggiani judgment of January 8th 2013) - was downsized only thanks to emergency measures occurring in 2013-2014. Following the various interventions that have taken place over time and that were, as has been said, contradictory, the Prison Act has lost its original consistency, and thus it would be appropriate to carry out an organic reform. A bill, currently under consideration by the Parliament, could provide the Government with the guiding criteria for the elaboration of a new Prison Act.

Kostoris R.E., Criminal Trial, European Law and the New Paradigms of the Post-modern Juridical Pluralism, p. 1177 s.

The purpose of this paper is to highlight the shifts of paradigm and methodological approach that the match/clash between national law and post-Lisbon European law is likely to generate in the criminal trial. In this regard, the author takes into consideration the new reticular system of sources, which reduces national sovereignty, marginalizes the role of the national code of criminal procedure, strengthens the judge's powers, and introduces a new idea of legality of substantive/teleological nature. This article also describes the hybridization that the national law might suffer as a result of the mutual recognition of judicial decisions and, in a de jure condendo perspective, the establishment of a European Public Prosecutor's Office.

Galantini N., The 'Fact' from a Double Jeopardy Perspective , p. 1205 s.

The European Courts' case law has taken new steps in developing the principle of ne bis in idem. This paper discusses the rulings which set out the criteria for determining whether or not apparently different transactions result in the same fact within the meaning of Article 4, 7th Protocol to the European Convention on Human Rights. Such criteria now entail just mere facts, irrespective of the nature of the crime and of its essential elements and of the interests protected by law. The same standards are adopted in the event that a risk of double jeopardy arises between facts at issue in a criminal trial and in administrative proceedings. Italian Courts still continue to rule that there is absolutely no violation of the statutory provision that prohibits to prosecute the same individual twice for the same fact (Article 649 of the Italian Code of Civil Procedure) when the same conduct results in various offences. Recently, in the preliminary hearing for the Eternit case, the Court of Turin raised a constitutional challenge against such provision. It will be interesting to see the consequences of a ruling from the Constitutional Court accepting the European standards.

Werle G., Burghardt B., Authorship and Participation in the Statute of the International Criminal Court, p. 1218 s.

The modes of individual liability, or modes of participation in international crimes are among the most controversial and debated issues in the international criminal law doctrine of the last fifteen years. Although the Statute of the International Criminal Court (ICC) - which came into force in 2002 - represents a big step forward compared to the previous stautues of military and ad-hoc international tribunals, apparently not all problems have been solved. Indeed, after an initial phase in which the Court seemed to have reached a consistent interpretation of the criteria of responsibility pursuant to article 25 paragraph 3 of the ICC Statute, largely inspired by Roxin's theory of "Tatherrschaft", recent positions taken by some judges have called this interpretation into question. The authors of this paper explain why, in their opinion, article 25 paragraph 3 of the ICC Statute must be interpreted as a model of differentiated participation, based on four different levels of liability.

Risicato L., Life Imprisonment between a Crisis of the Rehabilitation Purpose of the Punishment and a Betrayal of Sense of Humanitarianism, p. 1238 s.

Now that the relatively undetermined punishment has almost disappeared, the time has come to reconsider the future of life imprisonment. Actually, life sentences are still considered as constitutionally legitimate due to a contradictory view of such penalties. In fact, according to the Constitutional Court, they can only exist in our criminal law system if they are not executed (at present, prisoners serving a life sentence can obtain a conditional release after twenty-six years of imprisonment, or serve life sentence in an open prison, or obtain an early release in an even shorter time). However, the current situation is very different from the picture outlined by the Court. During the last decades, life sentences have been actually transfigured and disguised, and considered as a sharp instrument to fight specific kinds of organized crimes, sometimes barely within the limits of constitutional guarantees. Therefore, there are grounds for reconsidering the future of life sentences and the modalities of their execution against the backdrop of a progressive decline of the Italian sanctioning system. In conclusion, even assuming that life imprisonment fulfils the rehabilitation purpose of the punishment, it can be hardly considered to be consistent with humanitarian principles according to the guidelines of the European Convention on Human Rights (ECHR).

Manes V., The Last Imperative of Criminal Policy: Nullum Crimen Sine Confiscatione, p. 1259 s.

Driven by the diktat "crimes don't not pay back", the recent criminal policy calling for measures against illegal assets is dangerously turning towards bizarre models, often referring to the paradigm of "preventive criminal law". In this framework, confiscation plays a leading role: being teleologically ambiguous as well as constitutionally stateless, it is easy to "manipulate" and to misapply, thanks to "generous" judicial interpretations that breach the fundamental guarantees. The various types of confiscation flourished in an authentic "penumbra of legality", generating many controversial issues. For instance, the affirmed possibility to order a "confiscation without conviction", already generalized (even referring to article 240 of the Italian Criminal Code), seems to infringe the presumption of innocence; "value confiscation" is more and more difficult to reconcile with legal certainty; "extended confiscation" seems to be unreasonable, as "normalized" and generalized in the so-called "anti-mafia code", also because of its neutral characterization of the facts supporting the indication of dangerousness. This paper analyzes the problematic aspects of a "criminal law of illegal assets", which is dangerously steering towards illiberal models. 

Consulich F., 'Local' Criminal law? The Justification Effect of Defenses Provided by Regional Law, p. 1283 s.

This paper deals with the theme of how the Regions can provide for legal justifications with their own sources. While, as far as the incrimination is concerned, a regional intervention seems to be clearly excluded under article 117 of the Italian Constitution and according to a consolidated body of constitutional case law, as far as defense is concerned, there is the chance for local legislators to jointly participate in the definition of legal justifications. A cooperation between regional and national law may exist when constructing a justification when the non-national source provides for a regulatory element of a specific justification, or when it provides a specific instance of lawfulness. However, in both cases, the regional law cannot reduce the scope of application of a justifying provision set by the state law. Moreover, the regional law may be an important hermeneutic vehicle in interpreting national laws that, by means of criminal provisions, intervene in regional matters. When dealing with a criminal regulation, be it incriminating or justifying, the only correct interpretation of the rule is that based on the regional legislation, because it preserves the value of regional autonomy, as it is actualized in the area of competence, either concurrent or exclusive, according to article 117 of the Italian Constitution. To be compliant with the constitution, the interpretation of criminal rules in matters of regional competence must be in accordance with the regional law.

Bontempelli M., Lis Pendens and the Prohibition of Double Decisions, p. 1316 s.

An analysis of the lis pendens rule may offer a key to understanding the foundation of the principle of ne bis in idem. According to the thesis endorsed in this paper, the legal basis of the prohibition of double jeopardy dates back to the prohibition of double decisions, which can be reconstructed through the rules on different institutes of the Italian Code of Criminal Procedure. The prohibition to re-prosecute someone for the same crime can be easily inferred from the preventive and repressive remedies offered by legal system to solve contrasts among irrevocable decisions. However, the general criminal system also provides for a wider ban of double decisions on the same object, which corroborates the existence of a general prohibition of double proceedings, even if incidental. In the light of this prohibition,  the interpretation of the case law on precautionary lis pendens raises a few issues. From a different perspective, there are some operating limits in the rule of ne bis in idem, in general, and in the area of lis pendens, in particular, in those sectors that are characterized by the so-called double-track system of administrative and criminal sanctions.

Basile E., Atypical Participation in a Joint Criminal Venture: Looking for the "Anomalous" Accomplice Mens Rea, p. 1336 s.

The so-called anomalous complicity, concerning the unintended collateral consequences of a given offence, is one of the most controversial rules in the Italian statutory framework of participation in crimes. The majority of scholars and the recent case-law tend to consider article 116 of the Italian Criminal Code as a negligence-based source of culpability in order to avoid the unconstitutional regime of strict liability known as versari in re illicita. However, a deeper analysis reveals the inconsistencies of characterizing the "unwilling" accomplice mens rea in terms of negligence. This essay offers a reinterpretation of the provision in point as an intent-based hypothesis, while bearing in mind the critical issues originating from such an interpretation.

Recchia N., Transnational ne bis in idem in the EU law. Solved issues and problematic questions in the light of the recent case-law of the Court of Justice of the European Union, p. 1373 s.

This paper focuses on the transnational dimension of the ne bis in idem principle in the light of the recent case-law of the Court of Justice of the European Union, above all in the recent Spasic case. More specifically, this essay examines the relationship between article 54 et seq. of the Convention implementing the Schengen Agreement and article 50 of the Charter of Fundamental Rights of the European Union, in order to ascertain whether the element of enforcement required under article 54 CISA and the unilateral reservations declared by the States in compliance with article 55 CISA are still valid in the EU legal system. Furthermore, this paper deals with the scope of application of the principle itself and with its possible extension to the whole matière pénale as defined by the case-law of the ECtHR. Some final remarks concern the crucial role of reference for a preliminary ruling to the Court of Justice of the European Union.

Trinchera T., Issues Regarding The Doctrine of Transferred Intent, p. 1412 s.

The doctrine of transferred intent under the Italian criminal law (Article 82 of the Italian Criminal Code) is not really as simple as it looks. In fact, there are several questions when it comes to its enforcement. This paper investigates this issue and suggests that such rule goes beyond the mere mental element of the crime (mens rea), as it is generally believed. The doctrine of transferred intent involves a case where two offenses coexist in one criminal conduct: a willful offense attempted against the intended target and a negligent one actually performed against an accidental victim. The two offenses should be taken into account separately but should be considered as a single offense by the law merely in order to define the applicable punishment. This paper discusses the relevant practical consequences of such interpretation.

Cases and comments

Vallini A., The curious (and sorrowful) case of fertile partners carriers of genetic disorders, who could have an abortion but not a pre-implantation diagnosis, p. 1457 s.

The italian Constitutional Court infers from articles 3 and 32 of the italian Constitution a need of harmonization of laws on Assisted Reproductive Technologies (no.40 / 2004) and on Voluntary Interruption of Pregnancy (no.194 / 78), and confirms a widespread constitutionally-oriented interpretation of l.40/2004, according to which Preimplantation Genetic Diagnosis (pgd) is not a crime, but a right of partners who can have an artificial insemination, as well as the woman is able to refuse implantation of a sick embryo, so avoiding to have an abortion afterwards. The Court declares unconstitutional the prohibition for fertile partners carriers of genetic abnormalities to have an assisted procreation (and, therefore, pgd and pre-implantation embryo selection), that was the last normative obstacle to above mentioned harmonization, because of which Italy was already condemned by European Court of Human Rights. The parameter of "right to health" is used once again by the Constitutional Court to censor the law no.40/2004, but also to implicitly define limits of practicality of artificial reproduction in place of the "natural" one. Also considerable is the shrewd sistematic coordination of the two disciplines, that the Court has accomplished with the "translation" of conditions that allow abortion in conditions for access to artificial insemination by fertile couples. However, the legislator would have better made that coordination, because the discipline of the voluntary interruption of pregnancy is based on procedures that are difficult to export with a judicial decision, purely and simply, in the different field of medically assisted procreation. Not surprisingly, the Constitutional Court appeals to the legislator, so that he wisely regulate conditions and procedures for access to diagnosis and preimplantation selection

Seminara S., False Corporate Disclosure and False Valuations into Financial Reports: The Difficult Debut of a Reform, p. 1498 s.

The new sec. 2621 and 2622 of Italian civil code, inserted by Law no. 69 of 27^th May 2015, define the subject of misrepresentation as « material facts (...) not corresponding to the truth », thus replacing the previous « material facts not corresponding to the truth though matter of evaluation ». The Court di Cassation, by means of the sentence hereby commented, maintains that such an amendment brings out of the sections on false corporate disclosure any and all statements resulting from evaluation processes. This decision may be criticized through historical, syntactical, logical, systematical and teleological arguments.

Demuro G.P., The crime of devastation: a description, between offensiveness and reasonableness, p. 1521 s.

The crime of devastation (art. 419 c.p.) is today often applied to riots during public demonstrations and tumults on the occasion of sport events. This recent vitality of the crime has renewed the discussion on the difficult compatibility between the crime (characterized by harsh penalties) and the principle of proportion. The Author follows the track of the Supreme Court who safeguards the constitutionality of the crime of devastation with a teleological interpretation based on the principle of offensiveness. To reach this result it is necessary to affirm the nature of the crime as a crime of damage, pose as term of reference for the causality the event improved by the offensive tension and conform the representation and the volition of the agent to a typical fact reconstructed on the base of the constitutional interpretation. The Author underlines finally the role played today by jurisprudence in the adaptation of a lot of crimes to the constitutional principles of the criminal law (culpability, offensiveness and precision).

Masera L., The judgment of the Supreme Court on the Eternit case: critical analysis and insights, p. 1565 s.

The article is divided into two parts. The first discusses critically the three topics involved by the decision of the Supreme Court on Eternit case: the possibility to qualify as a disaster punished by art. art. 434 of the Italian criminal code the cases of environmental contamination by slow diffusion of the toxic substance, the problem of qualification of the case described by art. 434 § 2 like an autonomous crime or an aggravating circumstance, and finally the identification of the time of perpetration of the crime of disaster, and the subsequent determination of the starting date of the limitation period. The second part mentions the significance of the judgment to the future case-law on exposure to toxic substances, with particular reference to three aspects: the impact of the judgment on the viability of the qualification as intentional disaster, on the problem of qualification of epidemiological evidence as manslaughter, and on some problems of interpretation concerning the new crime of environmental disaster punished by art. 452 quater of the penal code.

Ruaro M., The improper extension of the clause which precludes special early release to socially dangerous convicted, p. 1598 s.

The question addressed in the judgment concerns the possibility of granting special early release ex art. 4 par. 2 d.l. 23 December 2013, n. 146 to persons convicted of criminal offenses listed in art. 4-bis of prison law: in particular, the fate of the instances, relating to the period January 2010-December 2013, presented during the term of validity of the d.l. n. 146/2013. According to the solution proposed by the Court, and challenged by the author, the 2nd paragraph of the provision, which does not reproduce the prohibition clause, can't be read separately from the previous one, which instead contains it, but must be considered as its logic continuation: hence the undifferentiated applicability of the foreclosure.