LEGAL THEORY

ARTICLES

Romano M., Rethinking Criminal Law (ten years after Federico Stella passed away), p. 1 ss.

After paying tribute to the late lamented colleague to whom the conference is dedicated, the Author reviews the different kinds of criminal law (broadly understood) and points out how criminal law has grown in all sectors over the past years, also as a result of the consistent addition of rules originating from the EU. In some areas, such as business criminal law, the European influence has been positive at times, but hypertrophy remains the main shortcoming of our criminal law. Some potential remedies to this state of affairs include reducing the scope of “true” criminal law, enacting new types of penalties and experimenting with new forms of restorative justice. Another serious downside of our criminal law is the multi-level uncertainty generated by the intricate interplay of norms of different sources. Their practical application, which is further complicated by the interaction between our legal system and the supra-national orders (EU and ECHR) and by the difficult dialogue among European Courts and sometimes also between them and our Constitutional Court, carries the risk of conveying a dangerous impression of precariousness and lack of stability. One example is the loose nature of the “Engel criteria”: while they were forged in order to broaden the scope of guarantees granted to the citizens, they even fail to clarify the very notion of “matière pénale”. The Author wraps up by advocating a system that is orderly and consistent, and he recalls the tasks of the legal scholars in this regard. With a note of moderate optimism, he recognizes a gradual development of a criminal law that is less unfair than in the past and is mindful of both the victim and the defendant.

Donini M., An Impossible Exchange? Attempts at a Dialogue between Civil and Common Lawyers about the Legality Principle, Morals and Criminal Law Theory, p. 14 ss.

The essay focuses on the difficulties and misunderstandings of comparative criminal law — arising even after decades of attempted dialogue — with regard to the relation between civil and common law. Topics such as the legality principle (and the precedent doctrine), morals (and blame) and the theory of criminal law (justification and excuse, wrongdoing vs. culpability) are at the core of this analysis. The test bench of the trial, and of the knowledge of the “cultural backbones”, in all three cases, seems crucial in order to avoid fictitious dialogues and to promote a genuine exchange. The work of G.P. Fletcher is an ongoing benchmark in this investigation.

Bernardi A., The Decision of the Constitutional Court in the Taricco Case put to the Test of Pareidòlia, p. 48 ss.

This essay analyses the Italian Constitutional Court order n. 24/2017 in the well-known Taricco case, with a focus on three main issues, i.e. the nature of the statute of limitation; the direct effectiveness of Art. 325 TFEU and the domestic jurisdiction over issues relating to the statute of limitation; and the distinction between the Taricco case and the Melloni case The Author criticizes both the decisions taken and the arguments used by the Constitutional Court in its request for a preliminary ruling by the European Court of Justice, since, in his opinion, they point to a nationalist view on the relationship between the domestic and the EU legal system. More specifically, the Author would have preferred if the Constitutional Court had adopted a less conservative/antagonistic and more open, dialogue-based approach, i.e. an approach that might trigger a radical reform of the Italian rules on the statute of limitation, with the ultimate goal of achieving an effective integration between the domestic and the European legal system.

Mantovani M., Exceptio Veritatis and the Putative Justification of the Right to Information: is it still a Relevant Issue?, p. 86 ss.

Starting from the introduction of the exceptio veritatis in the amended provision on insulting a public official, this contribution examines the differences from the provisions of art. 596 of the Italian Criminal Code. This gives the author an opportunity to highlight the influence of the latter provision on the ever controversial position of the case law on the putative exercise of the right to information. In fact, while today they could both be interpreted in line with the so-called German strenge Schuldtheorie, it is still unquestionable that this interpretation does not comply with the positions going along a similar line that prevailed before judgment No. 364/1988 of the Constitutional Court. This leads the author to investigate, always against the background of the putative justification of the right to information, some crucial points of the issue of errors in justifications in their current forms.

Catalano E. M., Procedural Errors going adrift, p. 104 ss.

The analysis of procedural errors involves some of the most controversial issues in the current debate on our criminal justice system: the relationship between law and practice; the role of the emerging European law in shaping national legal scenarios; the pervasive impact of the doctrine of actual prejudice. In recent years, there has been a worrying development in the current debate over procedural errors. Crumbling norms, non-orthodox practices, vague doctrines: all of these factors together are threatening to deeply affect the rule of law.  Therefore, the Author highlights the importance of the ethical values that underpin judicial rituals and provide a sound theoretical framework for procedural errors.

Bontempelli M., Protection of Freedom and the Lapse of Time in Criminal. Trials against Legal Entities, p. 127 ss.

A virtuous circle between the lapse of time and the protection of freedom, guaranteed by criminal procedural rules, characterizes the remedial conducts provided by art. 17 of Legislative Decree n. 231/2001. Moreover, the above-mentioned Decree takes different approaches to the company's right to be tried within a reasonable period of time (art. 111, par. 2 of the Constitution). If one considers that when the crime underlying the administrative offense becomes statute barred (art. 60) the charge is dropped automatically, than one may well conclude that Legislative Decree n. 231/2001 looks at the statute of limitation as an element of substantive criminal law whose function is to guarantee that trials are held in a reasonably short period of time. Also the provisions on the statute of limitation for administrative sanctions (art. 22 of Legislative Decree n. 231/2001) confirm that such time barring is used as a measure to guarantee a reasonably expedite trial. What is more problematic is the constitutional compatibility of the provisions on the suspension of the statute of limitation of administrative sanctions after the charge and until the final judgment (art. 22 par. 4). Since no “ceiling” is established to stop the running of time that it takes for them to become time barred, such statute of limitation cannot work as a protection against  an unreasonable length of the proceedings.

Caputo M., Negotiated Justice and Culpability: Implications for Individuals and for Legal Entities, p. 148 ss.

This paper highlights the growing role of negotiated justice in the prosecution of legal entities pursuant to legislative decree n. 231/2001. Plea bargaining between prosecutors and corporations needs a convincing theoretical foundation so as to preserve the culpability principle. Restorative justice and the attempts at emphasizing the defendant's conduct so as to build a sort of shared guilt are crucial for establishing criminal liability of legal entities. The so-called ‘reactive fault' should allow for negotiations to offer an ideal framework when appraising post factum contributions of corporations involved in criminal proceedings. The lesson of international ‘jus post bellum’ helps to understand how deals and agreements can foster improvements in the prevention of crime by the organizational compliance, partly thanks to a new function assigned to the supervisory body.

Falcinelli D., “Witnessed Violence” in the Language of Criminal Law. The Domestic Violence Offense aggravated by Art. 61 n. 11 quinquies of the Italian Criminal Code, p. 173 ss.

The recent law provision on the aggravating circumstance pursuant to art. 61 n. 11 quinquies of the Italian Criminal Code has explicitly included the so-called witnessed violence in the scope of criminal offences, thus replicating what sociology and psychology have long recognized as a phenomenon that extends the range of victims of family violence with respect to children who witness or experience the “abusive” reality and bear its psychological and material consequences. The concerns raised by the European Court in this area are the backdrop to the proposal for a criminal interpretation of a detailed, albeit reasonably fragmented, hypothesis that starts from a reflection on the offensiveness underlying the crime of domestic violence governed by art. 572 of the Criminal Code and its typical structure, to reach a strict definition of the scope of the aggravating circumstance of violence witnessed by minors.

Corda A., The uncertain Future of the Methods for Executing Capital Punishment in the United States: Emerging scenarios and perspectives in the aftermath of Glossip v. Gross, p. 198 ss.

This essay discusses the ruling of the U.S. Supreme Court in the 2015 case Glossip v. Gross and its possible implications for the execution methods. The ruling dealt with the issue of compatibility of the use of midazolam, a mild anesthetic used as the initial drug in Oklahoma's lethal injection protocol, with the Eighth Amendment of the American Constitution (prohibition of cruel and unusual punishments). Before focusing on the judgment and its consequences, the essay outlines the history of execution methods in America. Several executions methods were first adopted and then discontinued in an ongoing search for a procedure to administer death as the ultimate criminal penalty while minimizing, if not entirely eliminating, pain and suffering to the person sentenced to death. The lethal injection seemed to provide the ultimate solution. However, the recent difficulties faced by non-abolitionist States in obtaining the drugs used to execute death sentences by lethal injection have re-opened the debate.

Corso S.M., A New Subject in Criminal Procedures: the Person with Civil Liability for remedying Environmental Damage (article 452 duodecies of the Italian Criminal Code), p. 234 ss.

The Italian environmental criminal provisions introduce a new subject bearing civil liability who – in the case of conviction of the accused individual – must not only pay the relevant financial penalty, but also (or only) restore the original conditions of the affected places. This new subject should enjoy all the rights that a legal person is entitled to pursuant to art. 197 of the Criminal Code.

CASES AND COMMENTS

Cupelli C., The Taricco Case and Order no. 24 of 2017: an Attempt at a One-Way Dialogue, p. 266 ss.

This paper tackles the most significant and troublesome issues related to the Taricco Case in the light of the recent order (No 24 of 2017) issued by the Italian Constitutional Court, which has referred a “new” question to the European Court of Justice for a preliminary ruling. After describing the cornerstones of the principle of legality in criminal law (with a focus on legal certainty and non-retroactivity) and stressing the substantive nature of the statute of limitation, the Author analyses the “diplomatic” choice made by the Italian Constitutional Court and outlines the possible scenarios that may originate from it. He concludes with some open questions as to the actual dialogical content of such decision.

Pascucci N., The Controversial Nature of Photographic Identification, p. 287 ss.

The ruling, which is in line with a consolidated position in the case law, classifies photographic identification as atypical evidence and as a special case in the broader concept of “declaration”. It also implies that there is no need to fulfill the preliminary requirements governed by art. 213 of the Code of Criminal Procedure because the probative strength of an identification depends on the declarant's reliability and not on its form. The Author criticizes this interpretation as he believes that “image-based” identifications are inadmissible even when they are made during an evidentiary hearing or at the trial.

Silva C., Assisted Suicide in Switzerland. Reflections on Criminal Liability for Facilitation, p. 308 ss.

The judgement discussed in this paper examines the crime of incitement to commit suicide with reference to the dramatically hot topic of the so-called “assisted suicide” in Switzerland and to the relevance of the conduct of merely accompanying a person Switzerland for such purpose. The judge in charge of the preliminary hearing defines the limits of the conduct of “facilitating  in any manner” the commission of suicide, which must consist in a direct and instrumental connection with the actual commission of suicide, thus excluding that the mere act of accompanying a person constitutes a criminal offence.

DISCUSSIONS

Pisani M., Shorts Comments on Criminal Law Topics, p. 323 ss.