15 dicembre 2017 |
Rivista italiana di diritto e procedura penale n. 3/2017 (Abstracts - English)
Pisani M., In Memory of Cherif Bassiouni, pag. 917 ss.
Ruggieri F., White-Collar Crimes and Plea Bargaining. Criminal Offenses committed by Individuals and Entities: Synergies and Conflicts, pag. 921 ss.
The Author addresses the connection between investigations for white-collar crimes and the use of negotiation. The analysis focuses on Italian Law No. 231/2001, where the legislator identifies both the category of corporate crimes and the characteristics of the investigations concerning the offenses committed by individuals and legal entities. The subject of the enquiry is two-fold. The Author examines the way in which such investigations, where individual rights and business interests are closely interconnected, are conducted, and the common use of plea bargaining between defendants (or corporations) and public prosecutors despite the scanty data available. The results of the two braches of this analysis offer a picture of the criminal policies chosen by the Italian Public Prosecutors. In turn, this is reminiscent of the current situation in the US legal system, where even the initiation of criminal proceedings is discretionary and not mandatory as it actually is in Italy.
Centonze F., Italian Corporate Liability and Agency Problems. Limitations of Legislative Decree N. 231/2001 and Reform Perspectives, pag. 945 ss.
The Italian legislation on corporate liability is reminiscent of the prisoner’s dilemma. The two major players, i.e. the State and the private enterprise, are willing to cooperate in order to fulfill their own purposes. Yet, in the absence of a credible agreement, they go separate ways. This paper analyzes the principles of corporate liability through the agency relationship, the information economy and the theory of incentives, and it puts forward some fundamental corrections to the current legislation. The aim is to optimize the public-private partnership in corporate crime risk management so as to achieve a more effective prevention of economic crimes and minimize the costs incurred into by private organizations. Hence, the legislator is called upon to design a “credible” regulation that can actually build a positive relationship between the parties in order to align their goals and to foster the acceptance of certain core principles that can ensure a sharing of relevant information in the future.
Manes V., Characteristics and Boundaries of Criminal-like Offences, pag. 988 ss.
The notion of matière pénale – which is key to defining the scope of application of the ECHR’s guarantees – appears uncertain and governed by ambiguous criteria. Its boundaries and features have been thoroughly analyzed, considering the development of the substantial concept of criminal offence (starting from the formalistic approach of the Italian Criminal Code, through to the theory lead by Constitutional principles and, finally, to the autonomous notion of matière pénale). Whenever a sanction is characterized by afflictive components and brings about over-compensatory - and not just preventive – effects, it is intrinsically criminal in nature. There emerges a multi-level system where at the top level is a formally and substantially criminal offense, associated to fundamental guarantees (i.e. the harm principle, the presumption of innocence, etc.), while at an intermediate level are offenses of inherently criminal nature lined to the guarantees enshrined in Art 6 and Art 7 of the Convention, and at the lowest level are offences where any public interference with individual rights must still comply with the qualitative requirements of foreseeability and proportionality.
Ruga Riva C., Water Poisoning caused by Industrial Waste and the Challenge of Environmental. “Maxi-Trials”: Reflections on Risk Assessment and Hazard Quantification Criteria, pag. 1008 ss.
The Author starts off by briefly reviewing the latest criminal cases on water pollution and then examines the most controversial issues with a special focus on the nature of the crime, the notion of hazard and the criteria for its determination, and the time when the crime is committed. Finally, acknowledging the inadequacy of sanctions for the crime of water poisoning to cases of serious water contamination from industrial sources, the Author examines the new eco-crimes (water pollution and environmental disaster crimes), which seem to guarantee a more consistent protection.
Tripodi A.F., Cumulative punishment, ne bis in idem and proportionality, pag. 1047 ss.
The extent of the content and the scope of the ne bis in idem as substantive and procedural category are the starting points of this essay, which eventually focuses on the evolution of the decisions of the European Courts on the issue. The essay supplies a backlight reading of such evolution, highlighting how the judicial argumentation takes in consideration the parameter of proportionality in the measure of the punishment. Finally, the principle of proportionality serves as a source of argumentative paths aiming at restraining the recurrent phenomenon of cumulative punishment.
Carriero M.F., The Scientific Foundations of Covering Laws. A List of Criteria between Causation and Epidemiology, pag. 1087 ss.
The goal of this paper is to present and highlight some of the difficulties associated with establishing causation in the context of criminal proceedings by using scientific and, in particular, epidemiological studies. The ultimate aim of epidemiology is assess the causes of diseases. However, since most epidemiological studies are, by nature, observational rather than experimental, a number of possible explanations for an observed association needs to be considered before inferring a cause-effect relationship. In order to establish whether an observed statistical association features a cause-effect relationship between exposure and disease, some specific criteria must be considered, including, for example, biologic credibility, consistency of findings from other studies and the magnitude of the association, etc. In the end, the reader should be able to differentiate between the concepts of causation and association.
Corso S.M., Plea Bargaining versus Compensation: a merely Procedural Condition required for Special Proceedings, pag. 1123 ss.
Making plea bargaining conditional to remedial measures, ranging from restitution to compensation (or to an equivalent alternative) in respect of any damage, is tantamount to a merely procedural condition that is immediately applicable in criminal proceedings. Making suspended sentences conditional to a similar conduct is tantamount to introducing a sanctioning treatment in peius that is not retroactive pursuant to Art. 2 of the Italian Criminal Code.
CASES AND COMMENTS
Masullo M.N., The Judicial Declaration of Bankruptcy is an Objective Condition of Liability: when telling the Truth costs Nothing, pag. 1151 ss.
In the judgement discussed in this paper, the Italian Supreme Court states that the declaration of bankruptcy is an (external) objective condition of liability, contrary to the established judicial practice. After clarifying the reasons for such decision, which endorses the position of the majority of the legal literature, the paper questions the indirect effects of the sentence. Most notably, the article underlines how disregarding the connected issue of the role of insolvency, which is the factual precondition of bankruptcy, may nullify any potential effect aimed at defining the typical characteristics/offensive nature of the crime of bankruptcy.
Mantovani F., The Demise of Social Controls and the Degenerative Increase and Deterioration of Crime and Criminal Law, pag. 1167 ss.
Amongst all of the uncertainties of the future, one thing seems to be certain, i.e. the increase and deterioration of crime and criminal law, because modern societies are claiming for criminal effects and strengthening criminogenic causes. This happens because, disobeying the three fundamental criminological laws, they are gradually dismantling the primary socio-cultural control and the subsidiary role of criminal control. Hence, the drastic alternative between restoring the primary socio-cultural control, which is unlikely, or giving in to the increase and deterioration of crime, criminal law and social disintegration.
Gatta G.L., The Drama of Imprisonment and some Outrageous Dysfunctions of Criminal Justice in a U.S. Bestseller. About B. Stevenson, “Just Mercy. A Story of Justice and Redemption”, Spiegel & Grau, New York, 2015, pag. 1174 ss.
The Author reviews Bryan Stevenson’s book “Just Mercy. A Story of Justice and Redemption”. In this inspiring bestseller, Stevenson — civil rights lawyer and professor of clinical law at the New York University — tells the story of the Equal Justice Initiative (EJI), a non-profit organization he founded in Alabama almost thirty years ago, which is devoted to defending the poor, the wrongly condemned, and those trapped in the furthest reaches of the U.S. criminal justice system. The story of EJI is told through the stories of people defended by the organization. The main case is that of Walter McMilliam, an African-American man sentenced to death for a notorious murder that he did not commit, in a context of racial discrimination that takes place in the Alabama of Harper Lee’s novel To Kill A Mockingbird. Other stories concern children sentenced to life imprisonment without parole – in other words, to death in prison – and people set to jail despite their mental illness. The Author closes the book with a thorough reflection on the current state of the criminal justice system and on the role of mercy and redemption as powerful keys to a more humane approach to punishment.