OBITUARIES

Patrono P., In Memory of Giuseppe Zuccalà, p. 1649 ss.

LEGAL THEORY

ARTICLES

Kostoris R.E., Fairness, Criminal Proceedings, European Law. Notes of a Civil Law Scholar, p. 1653 ss.

This is the Italian version, partially revised, of the lectio doctoralis held by Prof. Roberto E. Kostoris on the occasion of the honorary degree in legum scientiae conferred on him by the West University of Timisoara on 27 October 2016. The article focuses on the issue of procedural fairness, highlighting how it, as a central principle of ECHR law, also recognized by EU law, is an essential reference parameter for the civil law scholar, but, at the same time, it is still difficult to metabolize for him, as antithetical to the traditional Enlightment view of the proceedings, in which he has been trained, intended as a set of legal forms, in turn considered as indispensable guarantees for the accused. The logic behind fairness is based, conversely, on a close relationship between fact and law, played on balances, in the perspective to achieve an outcome of reasonableness in the application of procedural rules. It recovers a pre-modern view of the legal phenomenon, making the judge guardian of an order of values. Therefore, it requires a marked change of paradigm. But, at the same time, also it raises the problem of identifying the limit to the powers of the judge, in order to prevent the arbitrary exercise of them.

Eusebi L., The Unbearable Lightness of the Criminal Statute: the Lost Responsibility in Designing Criminal Policy, p. 1668 ss.

The paper focuses on the effects caused by an inadequate criminal legislation on the jurisprudence. In particular, the Author underlines the gradual decline of the role of the Parliament, which has caused a predominance of the executive power above the legislative one. It consists, as severe consequence, in the persistent absence of strategy of criminal policy involving the different legal systems, which favours a populist criminal law. This phenomenon also influences the process of creating criminal offences. For these reasons, the paper gives some criteria useful to preserve the reassurances offered by the principle of legality.

Romano B., Critical Considerations on Presidential Pardon, p. 1689 ss.

This paper provides a critical overview of the role and function of pardon, which seems to bean outdated instrument largely overcome by the legal evolution and by the separation of the powers. This also in light of the fact that many of the needs that it fulfilled are now catered for by other legal remedies. Therefore, the Author suggests that this instrument should be changed by restricting its scope of application to cases in which pardon must be granted in order to overcome final sentences that would endanger the State security or its relations with foreign Countries.

Foddai M.A., Restorative Justice and Liability, p. 1703 ss.

This paper focuses on the meanings of liability shaped by the methods of conflict resolution relating to the current criminal justice paradigms, i.e. the traditional retribution paradigm, based on the trial, and the emerging restorative paradigm, based on the mediation. These models of justice express two concepts of liability, namely a retrospective and a prospective liability. While the former fits into the punitive legal model adopted in our legal system, the latter is consistent with a restorative model of justice, which is emerging as a new paradigm in criminal law. The Author argues that liability and punishment are two distinct concepts that are logically independent of one other. In this regard, the meaning of liability implies the duty to be accountable for the perpetrator’s conducts. The response could be given in various ways and to different subjects, such as the State, the victim, and the community. The ways in which the perpetrator’s response is formulated and shared by its recipients determine the new features of liability arising from the restorative paradigm.

Panebianco G., The Changing Scope of the Fundamental Guaranties in the European Criminal Policy, p. 1724 ss.

After a few years since the Lisbon Treaty came into force, it is now high time to evaluate how the fundamental guarantees in criminal law are being enforced in the European criminal policy. Nevertheless, the European architecture and the functionalist approach influencing the EU policy make it difficult to appreciate the penal guarantees in the same manner in which they are valued in the national legal system. This consideration primarily applies to the nulla poena sine lege principle in terms of the rule of law and legal certainty. However, this consideration also involves the principle of offensiveness and the rules of proportionality and subsidiarity which should guide the EU criminal policy.

Parisi F., Regulatory Models and Empirical Results in the Fight against Human Trafficking, p. 1763 ss.

The fight against human trafficking is considered to be a top priority in the current global political agenda. Nevertheless, there is a big gap between high ambitions underlying the existing regulatory models and the poor empirical results achieved so far. In fact, the number of convictions for such crimes is small in virtually all legal systems. The Author first analyses the latest international and European legislations on human trafficking as well as the most significant judgments of European Court of Human Rights regarding art. 4 of the European Convention of Human Rights. Then, some critical factors in the implementation of the multi-level strategy of the so-called “4 P’s” (prevention, prosecution, protection and partnership) are examined in order to find potential solutions to this lack of results. Finally, the Italian legal system is taken into account in order to carry out an in-depth evaluation of anti-trafficking regulatory models.

Siracusa L., The Extorted but “Acquiescent” Entrepreneur: between Moral Coercion and Free Will, p. 1803 ss.

The variety of behaviors that sociological studies identify as typical of the mafia style has a remarkable impact on the types of crimes that typically characterize mafia-like organizations, such as extortion. Indeed, in this area the line separating the conducts of the perpetrators from the conducts of their victims sometimes is so blurred that it becomes difficult to provide a proper qualification within the traditional categories of criminal law. Building on the findings of a multidisciplinary study on the crime of extortion perpetrated by Mafia-like organizations in the South of Italy, this paper is aimed at exploring the similarities and the differences between a legal and a sociological approach to the position of the victims of extortion when the crime is committed in a mafia context. More specifically, starting from the position of the so-called “acquiescent entrepreneur”, this paper reconstructs the relationship between the so-called “acquiescent” conducts of entrepreneurs and the method used by mafia organizations in executing extortions; it then evaluates the possible criminalization of the “reasons” underlying the behavior of the (alleged) victims; and finally, it explores the possibility to attribute, based on those motives, a different qualification to the victim’s conduct so that he/she may even be possibly sanctioned instead of being considered as a mere “passive subject”.

Della Torre J., The Paradox of the Directive on the Strengthening of the Presumption of Innocence and of the Right to be Present at the Criminal Trial: A Step Backwards compared to ECHR Standards?, p. 1835

The purpose of this paper is to study Directive 2016/343/EU on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial. The first part of the paper describes the genesis of the Directive with a focus on the negotiations that influenced the original proposal made by the Commission. Then, it delves into the most critical issues raised by the final version of the EU Act, also with a view to its transposition in the national legislation. The purpose of this essay is to clarify whether the Directive has actually increased the procedural guarantees in the Area of freedom, security and justice.

Donelli F., Extenuating Circumstances and Legal Uncertainty after the Latest Reform of the Italian Criminal Law on Drugs, p. 1879 ss.

This paper deals with the two “targets” of the Italian criminal legislation on drugs, i.e. to keep the use pf recreational drugs outside of the objective scope of the criminal provisions and to separate trafficking from street dealing. After many reforms, the core provision in this area is now an extremely vague one, aimed at punishing small dealers. The reasoning revolves around three issues: the two-facedness of the conduct of drug possession; the fact that a specific provision for minor instances, if not properly harmonized with the whole set of criminal provisions concerning the phenomenon, may actually turn into a mere distraction from the structural problems of the whole system; the ambiguity of the institution of extenuating circumstances, exploited by the Italian legislator to give an illusion of legal certainty. The theoretical solutions to these problems point to the need for a reform that should clarify the boundary between punishable and non-punishable conducts.

Sorbello P., Criminal Policy and Compliance. Some Thoughts on the Limits and the Possibilities of Converting the Behaviors to the Rational, p. 1914 ss.

In an attempt to orient criminal policy, the EAL Method could offer, on the one hand, solutions to prevent the irrational behaviour for general benefits and, on the other, favors successive and rational behaviour for individual utility. In the punitive pattern, where punishment and reparation interact, this method shifts focus from the scope of the Criminal Economic Law to the profile of the rational agent. He remains rational even if he does not pursue an advantage but merely wants to avoid or mitigate the negative consequences. These solutions are based on penalty customization and attonement by reparative behavior motivated, if not by a recuperated sharing of values, by a calculated personal convenience. The attention to dogmatic categories and various scientific fields can make the criminal system more efficient in the knowledge that it is up to the Legislator to identify the right balance between the criminal law rationality of purpose and the respect for fundamental rights.

CASES AND COMMENTS

Dolcini E., Statutory Penalties, the Principle of Proportion, Rehabilitative Purpose of Punishment: the Constitutional Court Restates the Penalty for the Alteration of Status, p. 1956 ss.

The penalty frame provided by law for the crime of alteration of status by falsehoods is once again under review by the Constitutional Court, which — unlike 2007 — with a partial judgment, decides that the statutory penalties provided for by art. 567 co. 2 c.p. are manifestly disproportionate to the offense: especially the minimum sentence appears unreasonably high. Beside article 3 Const., an important role in the Court’s decision is carried out by the rehabilitative purpose of punishment, which — underlines the judgment — means that the law must provide for penalties that can be understood by the person convicted. Considering that the offenses of alteration of status referred to in the two paragraphs of art. 567 c.p. are “not entirely dissimilar”, the Court concluded by extending to the alteration of status by means of falsehoods the sanctioning treatment provided for the crime of alteration of status by replacing the newborn.

Demuro G.P., Malice of Passion, Aggravating Factor of Cruelty and Impulsive Elements of the Conduct, p. 1975 ss.

Cruelty in the perpetration of a crime takes on a specific significance in the crime of passion, because it is unclear whether it is an aggravating factor or it overlaps with malice of passion. The case law of the joint divisions of the Italian Supreme Court introduces the variable of impulsive elements of the conduct, which is a distinct concept from insanity. This paper analyzes the different psychological elements that may well exist in the short period of time in which a crime of passion is committed, and it concludes that malice of passion may well coexist with the aggravating factor of cruelty because they unfold on different levels. The Author also believes that there is room — between the emotional and passionate statuses that do not qualify as insanity — for impulsive traits of the conduct. Every distinction is based on specific indicators taken from the modalities of the fact. Among these indicators, the one that is most difficult to frame is also the most frequent, and the object of the commented judgment, i.e. the repeated hitting.

DISCUSSIONS

Insolera G., From the Unpredictability of the Law to the Unpredictability of the Judgment, p. 1999 ss.