RIVISTA ITALIANA DI DIRITTO E PROCEDURA PENALE N. 2/2017 (ABSTRACTS - ENGLISH)

“ON PUNISHMENTS WITHOUT CRIMES”

The Preventive Measures in the Contemporary System: form the need for Control to the Indictment for a mere Suspect

5th National Conference of the Italian Association of the Professors of Criminal Law

Resta E., Between Punishments and Crimes. Differences and Replications in Criminal Practices, p. 399 ss.  

This paper focuses on the relationships between crimes and punishments, both in the theory and practice of criminal systems. Since the very beginning, the two terms have featured a specular semantic connection where they are in complicity and opposition at the same time. So, the history of criminal systems is a difficult bet on the difference between punishments and crimes but also on their connection and proportionality. In the ancient Greek philosophy, this is represented by the ambivalence of phàrmakon and pharmakòs; gift and medicine, victim and judge. In the modern philosophy, the ambivalence is represented through the separation between criminal and enemy and, more generally, through legitimate and illegiti- mate violence. When the two terms are not contrasted, their true identity comes back. Today, this interplay replicates the anthropology of the “modern tragic” where unexpected distinctions appear between “being responsible” and “being held accountable” whereby one may be responsible and not held accountable and one may be held accountable without being responsible.

Lacchè L., A “Fleeting Glance”
Preventative Measures in Italy between the 19th and the 20th Century, p. 413 ss.  

This paper provides a critical overview of the history and morphology of preven- tative measures in the Italian legal system between the 19th and the 20th century, up until the eve of the Republican era. The first part of the paper focuses on the history and evolution of the measures that took shape in Italy, so as to appreciate their initial formation, construction and development. As a matter of fact, the Italian state has opted for a substantial continuity with incremental choices and new strategic orientations linked to the actual circumstances and changes of governments and political regimes. The second part is aimed at “deconstructing” the historical discourse in order to highlight the matrices, structures, functions, and tensions underlying the development of an altogether peculiar preventative system. The “fleeting glance”, evoked by Francesco Carrara, is a metaphor to represent the old (and enduring) “discomfort” of the liberal criminal law theory at dealing with the issue of ante delictum measures and hence “penalties without a crime”.

Pellissero M., The Beneficiaries of Preater Delictum Preventive Measures: the Dangerousness to be prevented and the Dangerousness to be punished, p. 439 ss.

The Author analyzes the development of the beneficiaries of praeter delictum preventive measures and underlines an expansion trend both in the statute law and in the case-law. De iure condendo, he proposes a reduced use of preventive measures through the principle of foreseeability of behaviors which must be taken into consideration in order to apply the measure and the principle of proportion with respect to the preventive control.

Orlandi R., Preventing and Prosecuting Dangerous Conducts.
A Procedural Point of View based on the Italian Experience, p. 470 ss.

The Author analyzes, from a procedural point of view, the issue of the application of certain requirements of prevention measures (special surveillance, confiscation) which, in the Italian experience, feature clear similarities with the application of criminal sanctions and security measures. Special attention is devoted to the structure of “preventive indictment” and the corresponding creative role of the case-law in constructing hypotheses of criminal prevention. The paper closes with a reflection on the problematic distinction between quaestio juris and quaestio facti in the context of the so-called preventive criminal justice.

Migliucci B., The System of Preventive Measures between Guarantee Needs and Criminal Law of the Enemy, p. 485 ss.

The focus of any criminal trial is always on the fact. This leads to the appropriate need to assess whether the fact constitutes a crime or not. In the latter case, the attention necessarily moves from the fact to the perpetrator, and from the evidence to the suspect, with the obvious risk of eluding not only the principle of legality with its corollaries of determination and certainty, but also the principle of offensiveness.

Magi R., Reinstating the Principle of Legal Certainty in Public Security Measures. Sustainable Methods for ascertaining Dangerousness, p. 490 ss.

The author analyzes the evolution of the law concerning preventive measures and discusses forms and contents of the prognostic judgement of personal dangerous- ness, underlining how this notion — albeit controversial — can hardly be elimi- nated from the system of protection of relevant legal interests. The need to get rid of any subjective evaluation so as to reinstate the principle of legal certainty triggered some novelties in the case-law aimed at promoting a stricter and more literal interpretation of the legal provisions, in line with the orientation of the constitutional case-law. Against this background, the author recommends the adoption of a consistent cognitive model aimed at valuing the ascertainment — including a provisional and autonomous form thereof — of behaviors that are liable to constitute an offense as a preliminary requirement and a condition for a subsequent decision of social dangerousness.

Balbi G., Praeter delictum Preventive Measures against Individuals, p. 505 ss.  

Praeter delictum preventive measures against individuals are extremely troublesome instruments in a democratic criminal law. The Author critically evaluates the traditional arguments endorsing their functional basis. First of all, there is the idea that every legal system must include such preventive measures, then the assump- tion that our contemporary world needs preventive instruments in order to deal with specific emergencies, such as immigration, terrorism, and organized crime. The consequence is a widespread belief in their absolute necessity. Based on an in-depth and critical analysis of the reference legal framework, the Author high- lights the superficial and opportunistic nature of such arguments, the crude and brutal connotation that preventive measures against individuals have in the Italian system, the resulting loss of social interaction, their strong criminogenic character, and radical inconsistency with the Italian constitutional framework.

Catenacci M., Personal Preventive Measures between “Critiques” and “Projects”: for a Rediscovery of their Original Preventive Purpose, p. 526 ss.  

The current provisions governing personal preventive measures, pursuant to Legislative Decree No. 159/2011, have been harshly criticised due to a lack of substantive and procedural guarantees. Due to these critical issues, they are hardly acceptable, even for those who consider them indispensable for social protection and — still within the limits of the principle of proportionality — envision their potential harmonization with the fundamental principles of the rule of law set out in the Constitution. Along this line of thought, the Author indicates some general ways of reforming the system in order to convert it into a genuinely preventive tool and to eliminate any temptation of summary criminal justice or even of real social marginalization of the offender. The solutions put forward in this article include a redefinition, through proportionality and rationality, of the effects of these measures and a redefinition of the requirements inspired by the legality and fair trial principles.

Martini A., The Myth of Dangerousness. Attempts to make Sense of Personal Preventive Measures, p. 536 ss.

The lawmaker’s faith in personal prevention measures has been confirmed over and over again. However, looking at their minimum requirements of legality, as defined by Constitutional Court, provides a confirmation of the several perplexities expressed in the legal literature over time. Public security, as a protected legal right, a strict definition of subjective categories, the prognostic reliability of judgments of individual dangerousness, and the very guarantee of jurisdiction, all seem to raise doubts instead of providing certainties. In essence, the available “toolbox” turns out to be a weapon against the weaker, of no use for preventing any form of destabilizing crime.

Maugeri A.M., The Legitimacy of Preventive Confiscation as Model for proceeding against Assets: between Expansive Trends and Supranational Instances, p. 559 ss.  

This article discusses the legitimacy of preventive confiscation in the light of the European and comparative legal debate on confiscation without conviction. It analyzes the recent trends in the relevant legislation, also on the basis of bill No. 2134, which extends the scope of this confiscation from a form of fight against organized crime to an instrument against economic crime and, indeed, one for the benefit of the public administration, despite the demands of the European Court of Human Rights for a more consistent application of the principle of legality (precision) in the identification of the recipients, especially for the category of “ordinary dangerousness” (De Tommaso case). In the light of the ECHR’s positive attitude towards forms of actions in rem, the author does not believe in a change of the Court’s position in relation to preventive confiscation — one that would be more respectful of the safeguards and consistent with its autonomous concept of criminal matters. In conclusion, the article evaluates the possibility to introduce a criminal proceeding against assets in consideration of the recent EU Proposal for a regulation on the mutual recognition of freezing and confiscation orders, also without conviction, issued in the framework of criminal proceedings. The reference model adopted by the European legislator is § 4 of the German bill — BReg418 / 16 - for the implementation of Directive 42/2014.

Fondaroli D., Patrimonial Preventive Measures in Tax Crimes and in the Judicial Administration of Assets, p. 600 ss.  

This contribution deals with two issues concerning patrimonial preventive mea- sures: the role of their application in relation to tax crimes, also with reference to the exclusion of the latter from the scope of legislative decree No. 231/2001, and the strengthening of judicial administration of assets.

Mangione A., The ‘Spiritual Situation’ in a Praeter Delictum Confiscation, p. 614 ss.

The goal of this paper is to offer a potential thematization of the cultural path taken — in the legal theory and above all in the case-law — in recent years with regard to anti-mafia seizure and confiscation. The starting point is a test of the strength of the legitimization paradigm of preventive measures, i.e. social dangerousness. On the speculative assumption that a theory is only good if it works in practice and that the criminal rules are solution plans designed to work in trial, the Author examines the case-law application of social dangerousness to demonstrate how it becomes increasingly detached from prognostic mechanisms and rather seems to embrace a diagnostic perspective aimed at verifying facts. Also the evolution of the applicable regulations seems to move in this direction. The legal provisions on the revocation of confiscation is emblematic in this respect: on the one hand, it attaches a huge importance to the verification of facts in criminal proceedings and, on the other hand, it recognises how a confiscation could be retroactively cancelled, even when it involves only the subjective assumption of personal dangerousness, i.e. the introduction of evidence in one of the legal categories pursuant to articles 1 and 4 of legislative decree No. 159/11. Hence, the legal inconsistency of the thesis of intrinsic danger of possessions as a preliminary requirement for the legitimacy, from a constitutional and conventional standpoint, of preventative confiscation. There also follows a confirmation of the maturity of the position endorsed by part of the Supreme Court aimed at developing a “grammar of proof” and at giving an increasingly central role to the perspective of ‘facts’. This cultural itinerary — despite its contradictions and resistances that typically characterize a “work in progress” — marks the spiritual situation of preventative confiscation: a progressive route that is increasingly more focused on the needs to provide guarantees, including of conventional nature, the outcome of which seems to lead to a new form of confiscation.

Pulitanò D., Summary Report. Preventive Measures and the Problem of Prevention, p. 635 ss.

The current problems of crime prevention do not find an acceptable response in the personal preventive measures set out in the Italian legislation, which, despite the reforms introduced over time, still lack legal certainly both in terms of the conditions for their application and in terms of their contents. Their constitutional legitimacy, which has always been challenged in the legal literature, is questioned by the European Court of Human Rights. Coercive measures other than the penalty imposed as a consequence of a criminal offence — as security measures — may be legitimized in the Italian constitutional system only on the basis of legally well-defined conditions and only if targeted to specific types of crimes.

LEGAL THEORY

ARTICLES

Pisani M., Carlo Cattaneo and the “Penitenziary Science”, p. 661 ss.

The multi-faceted genius of Carlo Cattaneo found an expression also in the complex and outdated legislation on detention. On several occasions and starting off from complementary perspectives, he aimed at highlighting the need to put in place a virtuous circle of intersections between practical experimentation and theoretical elaboration so as develop, with a multidisciplinary approach, tangible and positive reform outcomes.

Bernardi A., Judicial Populism? The Italian Criminal Case Law on Kirpan, p. 671 ss.

This essay analyzes the evolution of the Italian case-law on the carrying of the holy knife kirpan by the Sikh minority, which ranges from an initial leniency by ordinary judges to the subsequent rigor adopted by the Supreme Court. After putting such case-law in the current context characterized by “fear of the stranger” and “clash of cultures”, the paper examines kirpan-carrying with reference to the criminal legislation on weapons, to the role of the “cultural element” in the offence governed by article 4 of law No. 110/1975 and to the balance between constitutional principles. After some quick reflections on the reactions reported in the literature to the most recent Supreme Court decisions, the essay stresses the importance of a rapid enactment of the legislative draft concerning the balance between the opposite needs of religious freedom and public security, which should both be taken into account by the law on kirpan-carrying.

Fasani F., Animals as a Legal interest, p. 710 ss.

After acknowledging the polycentric protection that the Italian lawmaker provides to the several interests that people fulfil “through” animals, the Author tries to establish which legal interest is actually protected by the criminal law provisions punishing animal cruelty. An overview of the existing theses on this subject is provided, which includes the traditional ones focusing on the sympathetic feelings for animals, the more recent theses endorsed by animal rights activists, and the hybrid theses that tend to blend human and animal values. The Author offers several rebuttals for these theories and concludes by pointing out that the applicable criminal provisions protect the animal itself, to which people attach a value, regardless of its alleged rights and regardless of any harm to human sympathetic feelings for animals.

Salvadori I., Cybercrime and the Use of Criminal Law for Preventive Purposes. The Criminalisation of the Dual-Use Software, p. 747 ss.  

This paper focuses on offences perpetrated through software which can be used for both legal and illegal purposes (“dual-use software”). More specifically, it examines the legal provisions adopted on a European level in this field. Furthermore, it analyzes the criminal offences envisaged in the Italian law concerning dual-use software, which punishes merely preparatory or preliminary acts leading to the perpetration of more serious crimes. These inchoate offences are examined in the light of the fundamental principles of criminal law. Finally, the paper suggests some criteria for a fair criminalization of dual-use software. The goal is to avoid overcriminalizing this phenomenon in situations where such devices are designed and used by the IT industry to test and improve information security.

Puglisi G., Indirect Changes and Criminal Law through Time Teleological and Interpretive Reasons, p. 789 ss.

Indirect changes of criminal laws show a second-degree complexity compared to the neighboring field of direct changes. In addition to raising questions on the principles governing the application of criminal law through time, one has to understand the link between the criminal offence itself and the secondary legal information delivered by the rules governing non-criminal matters. Upon clarifying the way in which the Tatbestandsmerkmale and the rules of intertemporal criminal law work, this paper focuses on the different theoretical solutions at stake, offering some partly new arguments to foster the idem factum criterion, and analyzes the debatable national and European case-law, which is apparently grounded. The Author’s attempt consists in rebutting, based on teleological and interpretive arguments, the idea that there is no room for a pro-libertate approach in this realm.

CASES AND COMMENTS

Pellegrini L., Probation: Circumstances do not Matter in Determining the Maximum Punishment, p. 827 ss.

The Author discusses decision No. 32672/16 passed by the Italian Supreme Court (Joint Chambers) whereby it ruled on the limits of probation (art. 168-bis of the Italian Criminal Code), stating, with specific reference to the computability of the circumstances of a crime, that the judge must only refer to the maximum punishment established for the basic crime and disregard any circumstance, including special ones, of the crime itself. Despite the fact that the solution offered by the Supreme Court appears to be correct, especially from the viewpoint of “political expediency”, there are still some exegetic doubts especially with regard to the general principles applicable to accidentalia delicti.

DISCUSSIONS

Pisani M., Shorts Comments on Criminal Law Topics, p. 853 ss.