LEGAL THEORY

ARTICLES

Romano M., D’alessandro F., Establishing Causation in Asbestos Exposure-Related Proceedings. From Scientific to Judicial Uncertainty: A Plea for a Clarification by the Joint Chambers of the Supreme Court, p. 1129 ss.

This paper purports to highlight some of the difficulties associated with establishing causation in the context of criminal proceedings for asbestos-related manslaughters or injuries, which proceedings are frequent in Italy and expected to increase in the coming years. Following a thoroughgoing judgment by the Supreme Court on this matter, the Authors focus their attention on the validity of the “no-alternatives argument” while addressing at the same time the problems faced when attempting to identify causation in the specific case of mesothelioma. Based on the general credibility standards for scientific evidence, they concur with the Supreme Court to the extent that it concludes that, so long as scientific uncertainty as to the theory of the so-called “accelerating effect” remains, applicability of this theory at trial appears to be extremely problematic. By contrast, they disagree with the decision to the extent that it denies that such theory has ever been embraced by the Supreme Court in the past. Hence the plea for a clarification by the joint chambers of the Supreme Court on the current state-of-the-art as to the scientific acceptance of that theory. The Authors further argue that the conducts contested in proceedings for asbestos-related damages should be regarded as omissive in nature. As a result, they dismiss the opposite view adopted by the Supreme Court — which characterizes those conducts as active — as an evident exaggeration which leads to abusively simplify the proof of causality. They conclude by arguing that, in order to avoid wasting judicial resources and energies, these evidentiary difficulties should encourage prosecutors to attentively ponder whether the evidence that may be gathered in the individual investigation may realistically lead to charges that are capable to be upheld through the public trial.

Paliero C., The Challenges posed by the “Century of Fears” to the Secularity of Criminal Law, p. 1154 ss.

Drawing from current tendency to criminalize socially harmless behaviors which, however, reflect a specific belief or religious culture in the name of the secular nature of the State, this essay delves deeper into the role of such secularity in the Italian legal system. Secularity — synonymous with “non-confessional” and “immanence” — is indicated as a principle of the legal system with a pre-normative meta-Grundnorm function, which orientates and legitimizes the criminal law system and its rules. From this perspective, secularity has a relative nature and fulfills the role of legitimation and, at the same time, sets boundaries around the field of criminal law. In fact, each and every new rule must respect the limits established by the meta-Grundnorm. In order to overcome the paradoxes of secularity in criminal law (lack of neutrality, propensity to criminalize certain religious cultures), it must be seen as a methodological option and not as a value judgment. Since it has an impact on several aspects of the criminal law system (including the political-criminal order, and systematic and hermeneutic factors), the issue of the actual relevance of the principle of secularity in the Italian and EU systems may be resolved by referring to the boundaries of the criminal law system, which are emblematically represented by “mooted rights”, “self-harmed rights” and “identity values”.

Ubertis G., Scientific Evidence and Criminal Justice, p. 1192 ss.

The relationships between science and criminal justice involve both the substantial and the procedural fields. On the one hand, they affect the actual wording of criminal laws and their control by the Constitutional Court and, on the other hand, they concern the evidentiary phenomenon in terms of acquisition and evaluation of evidence. A fair decision must be based on an allegedly true factual reconstruction, according to generally acceptable criteria, and comply with the body of knowledge available when the judgment is issued. Also, its motivation, which is a mandatory requirement pursuant to article 111 of the Italian Constitution, must be drafted in such a way as to be understood by the community in general. Therefore, in order for any scientific gnosiological tool to be dialectically introduced in the proceedings and used for the decision, it must fit with the logical-argumentative framework of the decision since any such tool result from controllable and rationally justifiable activities, both in terms of execution and in terms of outcome.

Pugiotto A., The Parable of Prison Overcrowding and its Constitutional Teachings, p. 1204 s.

Three years after the pilot judgment Torreggiani v. Italy, the European Council has promoted the legislative and administrative measures introduced in the Italian judicial system in order to solve the serious problem of prison overcrowding. The whole sequence of events is interpreted according to the constitutional law, highlighting its problems and explaining the trial choices made in Strasbourg.

Ceretti A., Cornelli R., Homicides and Violent Killings in a Worldwide Scenario, p. 1230 ss.

The thesis of a decline in global violence whereby several countries worldwide are experiencing a reduction in lethal violence has become the focus of a broad and heated debate. After defining the field of research and analyzing the homicide trends in several geographical areas, this paper provides a review of the main theoretical interpretations of this phenomenon, with a special focus on European countries and America. In their conclusions, the authors offer a new thesis on the central role that the “democratic issue” should play in the dynamics of lethal violence and point to the need to launch a new penal policy to promote “rights and capabilities”.

Gatta G.L., The Repression of Public Corruption in the U.S. Political and Judicial Strategies and Crisis of the Legality Principle, p. 1281 ss.

Through the exam of the jurisprudence of the U.S. Supreme Court and of the federal criminal courts, the Author identifies two different trends of the political and judicial strategy in the field of repression of public corruption in the U.S. The first trend (as in McCormick v. U.S. and in McDonnell v. U.S.) aims to avoid criminal liability in campaign cases; the second trend (as in Evans v. U.S., in Skilling v. U.S. and in Ocasio v. U.S.), instead, tends to affirm criminal liability in the other cases. This latter trend seems to the Author uncoherent with the legality principle. A broad interpretation of criminal law federal statutes is affirmed by the U.S. Supreme Court and by the federal courts and prosecutors using vague federal statutes different from the bribery statutes: the Mail and Wire Fraud (i.e., the honest services fraud); the Hobbs Act (i.e., the extortion under color of official right) and the general conspiracy statute (§ 371 U.S.C.). The aim of the federal criminal justice is to harshly punish and investigate corruption by affirming the federal jurisdiction. However, the consistency of this aim with the principle of legality and the related guarantees is particularly problematic.

Civello G., Quaestio Disputata on Criminal Negligence as Vice of Will, p. 1318 ss.

The Author deals with the traditional topic of Schuld als Willensschuld and compares, in the form of Quaestio disputata, the arguments in favor of negligence as a “vice of the intellect”, i.e. as a “vice of the will”. In this perspective, the “regulatory dimension”, despite its being a fundamental defense against outdated psychological theories, does not seem to fully capture the essence of negligence as it only expresses its ratio cognoscendi. The true ratio essendi of negligence turns out to be the “vice of the will”: a breach of a supervision order and the subsequent event can only be attributed to the perpetrator to the extent that the unlawful fact is rooted in his intellectual-volitional dimension, i.e. when the person was indeed able to foresee and avoid the event as a result of his intellectual-volitional abilities.

Diamanti F., An Uncertain Right. Self-Defense and Conflict of Legal Interests, p. 1353 ss.

Self-defense has been and still is the one justifying cause that, more than any other, the media consistently focus on in an attempt to bending the boundaries of the notion of lawfulness as defined in article 52 of the Italian criminal code. Among these parameters, the one that is most affected is undoubtedly the “proportionality” of defense. The comparative investigation discussed herein (Germany and U.S.A.) shows that self-defense, as it was approached in the Code of 1930, does not require any “addition”. What is needed is a change in perspective, a “background” change that must necessarily start from a thorough understanding of what legitimate defense really is (i.e. an “uncertain right”), to finally consider the position of those resigned subjects who ask us “... what would you have done?”. Well, perhaps many of us would have “over-reacted” or would have gone “beyond the limits”, ending up being punished for excessive defense characterized by a mild physiological, not pathological, negligence in the reactions triggered by absolute necessity.

Marino G., The Italian Anti-Terrorism System in the Light of Law No. 43/2015: an Example of “Criminal Law of the Enemy”?, p. 1388 ss.

By introducing anti-terrorism law No. 43/2015, Italy has fulfilled the international obligations arising from the UN Security Council Resolution No. 2178/2014. This reform significantly affects the existing anti-terrorism legislation by broadening the scope of punishable criminal offenses in general and penalizing also some merely preliminary acts. Extreme anticipation of criminal protection, unclear norms, disproportionate sanctions and significant coercive powers assigned to the executive branch are the key features of this reform: it almost seems as if the legislator wanted to adopt the cornerstones of the “criminal law of the enemy”. In order for this legislation to be applied in a way that respects the human rights and complies with the Italian Constitution as much as possible, the system needs to be revised, at least from a hermeneutical point of view.

Merlo A., On the Principle of Proportionality in the Criminal Constitutional Case-Law, p. 1427 ss.

This work presents a general reconstruction of the principle of proportionality, along with its historical genesis and most relevant use by the constitutional court in criminal law aspects. Notwithstanding the logical effort of setting a rigorous definition, the principle of proportionality displays a blurred picture in concrete application practices. Furthermore, the link between its operational extent and some axiological elements that forerun the court judgment and seems to be too strong to consider the principle of proportionality a reliable guidance instrument in criminal law policy. However, from the opposite perspective, where proportionality is not viewed as a device for state intervention legitimacy but instead as a mean for sanction de-legitimization and a sponsor for the issues of “guarantism”, the principle becomes a suitable instrument to test for the overall rationality of norms within the criminal law framework.

CASES AND COMMENTS

Alessandri A., Fraud in Financial Statements according to the Joint Sections of the Italian Supreme Court, p. 1479 ss.

The commented judgment by the Joint Sections of the Italian Supreme Court has resolved the conflict among contrasting opinions that emerged both in the legal literature and in the case-law of the Supreme Court as to whether the evaluations made in financial statements may, if fraudulent, fall within the scope of application of the new category of “fraudulent corporate communications”, as re-worded in Law No. 69 of 2015.

Valbonesi C., Negligent Earthquakes and the Earthquake of Negligence. Critical Issues surrounding the “Grandi Rischi” Judgment, p. 1498 ss.

Verdict neglects psychology and social science as legitimate sources of scientific knowledge and the lack of a scientifically grounded reasoning weakens the decision. The judges dismiss their role of gatekeepers of scientific grounded evidence by reconstructing the causal chain and the negligence in an extremely discretional way, following almost unconstitutional paradigms. The causality chain (psychic causality) is based on customary — not general — rules. Negligence lose its traditional paradigm. Following the precautionary principle, the Court imposes to foresee far beyond the specific event, posing a “duty of behavior” in order to avoid any event belonging to the class of avoidable ones. We face two different events: 1) the influence of BDB’s words on people’s behavior (abandon of usual “cautions”); 2) link between self-determination and death. The first could be foreseen, but second could not, because death is necessarily linked to an unpredictable event (the specific earthquake of April 6th, 2009).

REFERENCES TO FOREIGN AND COMPARATIVE LAW

Della Casa F., The Norwegian High-Security Detention examined in the Light of Article 3 ECHR. The Oslo Court upholds the Claim lodged by Convict Breivik, p. 1529 ss.

The Author analyses the verdict of the District Court of Oslo, in which it has been stated that Breivik, the terrorist who was condemned on the 24 of August 2012 for the murder of about 80 people, has been subjected to the violation of article 3 ECHR during his imprisonment. The Author agrees with the Norwegian Court which upheld Breivik’s claim on the basis of the long duration of solitary confinement, the lacking of compensating measures and the impossibility of subjecting the decisions of the penitentiary administration regarding the placing of the inmate into a high security and solitary confinement section to the review of an independent judicial authority.

Venturoli M., The Changing Fortunes of the Principle of Individualization of Punishment in the Current French Criminal Justice System, p. 1550 ss.

The French experience of the last few decades shows how increasing the judicial discretion and multiplying alternative sanctions in order to implement the principle of individualization of criminal penalties may favor opposite results as compared to those that the principle strives to achieve, most notably a revival of new-retributionist trends in criminal law policies.

DISCUSSIONS

Pisani M., Short Comments on Criminal Law