LEGAL THEORY

ARTICLES

E. Dolcini, The 'Prison System Issue', from a Criminal Lawyer's Perspective: a Provisional Balance, p. 1655 s.

It is high time to take stock of the Italian prison system. Law No. 354/1975 has praiseworthily promoted the evolution of the prison system along the lines set by the Constitution, while introducing effective means to limit the abuse of detention through alternative measures. Nonetheless, prison overcrowding has reached unacceptable levels in recent years and Italy has been repeatedly condemned by the ECHR. The Author - consistently referring to empirical data - briefly summarizes the main reforms that, from 2011 to 2015, have almost completely solved the prison overcrowding issue and redesigned the composition of the prison population manly by reducing the number of prisoners in custody and those convicted for petty offences and drug-related crimes. Thus, the Italian legislator has eventually made the right decisions towards a more human and less unfair prison system. What matters now is not to let the guard down.

M. Romano, Confiscation, Liability of Corporate Entities, Tax Crimes, p. 1674 s.

The Author discusses how confiscation has evolved in the case law of the Italian Supreme Court, with an emphasis on confiscation against corporate entities for crimes committed by their bodies in their business activities. To determine the profit which may be subjected to confiscation, the Author rejects the so-called « gross principle » and rather advocates for an ad-hoc law reform to ensure greater flexibility. He also dismisses the notion whereby confiscation against corporate entities, as set forth in the legislation on liability of corporate bodies, should be characterized as a penalty, because it cannot worsen their situation prior to the offence, while it may certainly be regarded as falling within the larger category of sanctions as a State response to the breach of a legal rule. The Author further examines the problems raised by the confiscation of cost savings, particularly those originating from tax evasion, where the Joint Chambers of the Court hold that confiscation of money, which is a fungible good, is always « direct » in nature. It follows that, when tax crimes are committed by legal representatives, direct confiscation rather than value confiscation applies, because the Court maintains that value confiscation is indeed a penalty and, as a result, requires a liability of the entity, which is not established under the law in case of tax crimes. The Author also disagrees with the idea that confiscation of money is always direct - as a matter of fact, it may be a direct or value confiscation - while he shares the notion that, when it comes to offences perpetrated by a representative, direct confiscation against the corporation should be admitted, as the latter qualifies as a « person not unrelated to the offence ». However, if direct confiscation is admitted, value confiscation ought to be admitted as well, because the law provides for value confiscation whenever direct confiscation is impossible. The paper ends by referring to the international trend towards an increasingly aggressive use of seizures of unlawful proceeds and mentioning other forms of confiscation, including extended and anti-mafia confiscation, while stressing the adverse impact that this trend may have on procedural and substantive rights.

M. Delmas-Marty, The Emergence of a Global Legal Order: Collapse or Metamorphosis?, p. 1697 s.

After an analysis of three disrupting factors - terrorism, economic crisis and the environment - the essay puts forward a proposal for a global legal order. The Author describes the three processes that govern such « virtual » metamorphosis: first of all, the definition of the legal and logical techniques necessary to ensure the creation of a « flou » legal framework, which indeed requires particular technical and conceptual rigorousness; secondly, the establishment of a mechanism for sharing liability, which would prevent responsibilities form getting diluted as a result of the increasing number of international players involved; finally, the indication of a direction for the evolution of such order, i.e. a path that would ensure both an adequate evaluation of the risks associated with technological development and the protection of fundamental freedoms.

M. Bertolino, Violence and Family: the Persistent Vitality of an Ancient Phenomenon, p. 1710 s.

 In the recent debate about human rights, the topic of domestic violence stands out as a specific facet of the general controversy regarding the phenomenon of gender-based violence. Women, children and the elderly are the most exposed victims of this type of violence, which has strongly emerged all over the world in recent years. In the international perspective that focuses mainly on victims of crimes, a special attention is clearly devoted to these victims in the family contest, where they are more vulnerable. However, the Italian criminal code of 1930 does not seem to be able to offer these victims the protection that a modern concept of family demands. The empirical data provide an idea of the quantitative and qualitative scope of the problem and confirm that nowadays the phenomenon of intimate violence, especially when violence is perpetrated against women, is a social problem. Other countries adopted different (not only criminal) solutions to prevent and to control it and some of these will be analyzed in this paper, with the aim of offering a reform model to the Italian lawmaker.

F. Basile, The Huge Power of Circumstances on Crimes and the Huge Power of Judges on Circumstances, p. 1743 s.

An in-depth analysis of the law shows how circumstances may sometimes generate effects that go well beyond a mere assessment of a penalty, as they act both on the substantive and on the procedural discipline of the crime they refer to. Their legal discipline, though, is far from being precise, complete and coherent, which shortcomings amplify the discretionary power of judges to a pathological extent.

R. Bartoli, Literal Interpretation, Precedent, Aim: a Comparison of Three Interpretative Paradigms, p. 1769 s.

 After presenting three possible interpretative paradigms (literal, judicial, teleological), and after opting for the "teleological" one both for hermeneutic and institutional-constitutional reasons, the A. offers two solutions for fulfilling the necessary requirements for guarantees set by the new paradigm. On the one hand, acknowledging that any conflict of interpretation is the result of two ideologically oriented but legitimate interpretations, the Constitutional Court should establish which interpretation is the most consistent with the principles, including in terms of reasonableness. On the other hand, as the case law may evolve either in malampartem or in bonampartem, the required guarantees for the citizen are best met by the principles concerning the succession of criminal law over time.

V. Tigano, Repression of Trafficking in Human Organs Harvested from Living Persons: Towards New Article 601 bis of the Italian Criminal Code, p. 1801 s.

This paper analyzes the criminal phenomenon of trafficking in human organs harvested from living persons, countered through the recent adoption of the Council of Europe Convention against trafficking in human organs, brought to the attention of the Italian Parliament, which is currently discussing a bill aimed at introducing new article 601 bis of the Italian Criminal Code. After analyzing the criminal offenses governed by the current complementary legislation in force and the forthcoming provisions of the Criminal Code, the author points out the shortcomings and discrepancies of the Italian criminal law system. This paper then highlights the need to reform the current law on this matter by introducing new offences along the lines of those outlined in the Convention, by considering - in terms of applicable sanctions - the typical position of vulnerability of organ donors and recipients who commit any of these trafficking offences, and by increasing repressive strategies to counter the parallel phenomenon of trafficking in human organs harvested from cadavers.

M. Biral, Voice Identification in Criminal Proceedings: Models, Admissibility of Evidence, Protection of Fundamental Rights, p. 1842 s.

This paper offers an analysis of the issues related to voice identification in the criminal proceedings. First, the peculiarities of voice as an instrument for personal recognition will be considered, and then the focus shall shift on how personal identification by means of the human voice can be achieved within the process, with regard both to recognition based on perception and recognition by means of scientific techniques. Special attention shall be paid to the need for fundamental rights to be guaranteed during the collection of the evidence. More specifically, the paper shall examine whether and to what extent the defendant and individuals not involved in the proceedings are obliged to cooperate to fact-finding procedures by giving a voice sample. Finally, the Author will analyze the relationship between subjective and objective methods of voice recognition.

CASES AND COMMENTS

R. Adorno, Publicity of Hearings in Proceedings before the Surveillance Court, p. 1888 s.

The principle of publicity of criminal hearings continues to permeate the hearings in camera. Its beam of light, already cast on the surveillance jurisdiction by ruling No. 135/2014 of the Italian Constitutional Court, is now hitting the proceedings in the court on matters within its competence, all of which are characterized by high « stakes » and litigations that are not specifically « technical ». However, this decision misses out the opportunity to deepen the relationships between the principle of publicity and article 111, subparagraph 1, of the Constitution, which were only superficially outlined in the 2014 intervention, and reiterates a "classical" line of thought, which is based on the international charters of human rights, according to which the interest in the celebration coram populo of the proceedings would be a subjective, hence waivable, guarantee.

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REFERENCES TO FOREIGN AND COMPARATIVE LAW

Special. Restorative Justice in a Comparative Perspective

D. Stendardi, For a Legislative Proposal on Restorative Justice: Hints from an Analysis of the US and UK Criminal Justice Systems, p. 1899 s.

The US and UK disciplines governing intersections between the criminal justice system and restorative justice are extremely varied and an analysis of such diversified systems turns out to be particularly useful for the purpose of drafting a legislative proposal in Italy. The experiences of these countries have triggered a theoretical debate that is capable of encompassing the results of monitoring the actual results of potential intervention strategies, using an evidence-based approach that unfortunately is still neglected in Italy. While it does mention contradictions and betrayals - which are far from uncommon, especially in the USA - of the principles stated by the United Nations and other international organizations, this paper also points out virtuous legislative options and outlines the increasingly stronger bet on restorative justice at all stages and levels of the criminal justice system, both for minors and adults.

B. Spricigo, Restorative Justice in New Zealand and Australia: Possible Intersections between the Criminal Law and the Penitentiary System, p. 1923 s.

Adopting a "post-colonial" approach, this essay addresses the relationship between Indigenous Justice and Restorative Justice in New Zealand and in the Commonwealth of Australia. A new conceptualization known as « Southern Criminology » will be fostered as a sensitive framework through which restorative justice initiatives in the criminal justice systems of New Zealand and Australia should be understood. Some exemplary intersections of restorative justice with both the criminal law and the penitentiary system will be introduced, with a focus on the interconnections between state justice and civil society. Such a regulatory analysis offers the opportunity to then focus on the different roles played by the victim and the community in institutionalized societies and in the so-called non-state societies.

L. Della Torre, Implementation of Restorative Justice Mechanisms in the Iberian Peninsula and in some South American Countries: The Different Shades of an Alternative Paradigm of Justice, p. 1943 s.

Recent legislative reforms in Spain and Portugal have introduced some procedural mechanisms deriving from the principles of restorative justice. However, the national lawmakers seem to have once again given priority to the reduction of the Courts' workload as opposed to transposing the flexible and conciliatory spirit of restorative justice in their domestic legal frameworks. Conversely, this spirit emerges quite clearly in some procedures of the so-called "indigenous justice", which are still being used in the South American territory.

E.M. Mancuso, Restorative Justice in Austria and Germany: a Fine Line between Mandatory Prosecution and Diversion, p. 1958 s.

The growing interest for restorative justice in civil law systems, usually characterized by mandatory prosecution, is often coupled with an increasing need to implement effective diversionary instruments. Since the last few decades of the last century, Austria and Germany have been opening the doors to restorative justice projects with the purpose of establishing new paths for reaching conflict settlement and strengthening the role of the victim, which is often left out of the court proceedings. This essay is intended to provide a synoptic reading of the increasing success of such instruments, with a focus on the role of mediation between the victim and the offender.

I. Gasparini, Restorative Justice in France and Belgium, between Established Legal Frameworks and Recent Regulatory Evolutions, p. 1982 s.

The topic of restorative justice and its institutionalization within or parallel to the ordinary criminal proceedings is developed through an analysis of the French and Belgian systems. Each of them has a specific criminal procedural framework, different discretionary powers entrusted to the prosecutors, and a peculiar role of governmental directives on criminal policy, all of which offers arguments for a broader analysis of the contradictions and inconsistencies with the fundamental principles of restorative justice. Indeed, it is through the intersections with the criminal proceedings that restorative justice adopts a multi-faceted shape: often a management tool to soften the workload of prosecutors, at times a net-widening mechanism to expand social control, other times a carrier of a cultural rethinking of criminal justice in a more genuinely restorative way.

*** Language Consultant: dott.ssa Barbara Annoni