LEGAL THEORY

ARTICLES

Pisani M., Tommaso Natale and Cesare Beccaria, pag. 1255 ss.

Only few people continue to believe in the insular legend, which he himself spread, that Marquis Natale was allegedly a forerunner of Cesare Beccaria. Disproved on a historical and textual level, that thesis is anyway secondary as compared to the huge gap between these two authors, both in terms of contents and of values.

Viganò F., The Clash between “National” and “European” Dimensions of the Nullum Crimen in the ECJ Judgment in the M.A.S. (“Taricco II”), pag. 1281 ss.

In its preliminary ruling on the questions raised by the Italian Constitutional Court in the wake of the Taricco judgment, the Court of Justice chooses to avoid any conflict with the Italian counterpart, and allows the Italian criminal courts to not comply with the obligations laid down in its previous judgment, insofar as these obligations are inconsistent with the principle of legality in criminal matters in its domestic constitutional dimension. However, several questions remain unanswered, with regard to the impact of the new judgment on the Italian criminal law as well as its broader significance for the EU law - the most awkward question being, of course, whether or not each Member State will be actually allowed, as the Italian Constitutional Court has been in this case, to be bound by its own national standards of protection of fundamental rights while implementing EU obligations in criminal matters, even when such national standards are higher than those set at a European level.

Coppetta M.G., Compensation for Wrongful Detention: Cornerstones and Uncertainties in the Case Law, pag. 1315 ss.

The provisions governing compensation for wrongful detention, which have been in force for thirty years, have been given several, conflicting interpretations by the Constitutional Court and by the Joint Chambers of the Italian Supreme Court, to the extent that there still isn’t a consistent interpretation that fully enhances its constitutional foundation. Among the open issues, all of which linked to the hesitations on the legal nature of this concept reflected in the case law, those that stand out most are the ones concerning the scope of the impediments preventing the awarding of such compensation, the evidentiary profile of the procedural and non-procedural conducts implying gross negligence, and the evaluation of the quantum debeatur. The author outlines the evolution of the case law on this matter and points the finger at the fact that, in his opinion, some of the original positions that were much more respectful of the rights of the defendants who were wrongfully restricted in their personal freedom have been discarded far too hastily.

Sotis C., The Names of Criminal Offenses and the Definition of the Offense, pag. 1346 ss.

This article argues that all new criminal offenses introduced in our legislation should be given a precise name, even those governed by complementary legislation, i.e. outside of the criminal code. The rationale behind this proposal rests on the assumption that if an offense is to be given a name, then it cannot be ‘unnamable’. Furthermore, it is argued that the category of ‘unnamable offenses’ includes those crimes that, to a large extent, do not offend homogeneous values of particular importance and, hence, raise issues with regard to the “Tatbestand” specifying a criminal wrong. To highlight the benefits that could derive from the proposed innovation in the drafting of new offenses, the relationship between names of offenses and “Tatbestand” is analyzed from a historical perspective, as well as in terms of interpretation of the criminal law.

Trinchera T., Criminal Jurisdiction over Offences committed Abroad and Surrogate Motherhood Services obtained in a Foreign Country, pag. 1391 ss.

Over the last few years, more and more Italian couples have gone abroad to find a surrogate mother in order to have a child of their own. The main question arising from this phenomenon is whether or not such couples should be prosecuted for breaking the Italian law that prohibits surrogacy arrangements. In fact, such couples have engaged abroad in an activity that is legal in the foreign country, but not in their home country. This paper discusses three criminal offences that are potentially related to surrogacy: the offence governed by Art. 12 § 6 of the Medically Assisted Reproduction Act (Law 40/2004), which punishes anyone who resorts to surrogacy; the offence of “alteration of status through false declarations” (art. 567 § 2 of the Italian Criminal Code); and the offence of “misrepresentation or false statement of personal qualities to a public official” (art. 495 § 2 n. 1 of the Italian Criminal Code). Finally, the author argues that Italian couples that have benefited from surrogate motherhood in a foreign country where surrogacy is allowed have not committed any offence pursuant to the Italian criminal law.

Muzzica R., Probation and “Criminal Matter”: Case-Law Perspectives about Favor Rei and Intertemporal Issues, pag. 1432 ss.

Italian well — established case-law applies tempus regit actum principle to probation for adult offenders, in compliance with Constitutional Court and European Court of Human Rights decisions. The paper aims at highlighting weak points and inconsistency of such case-law and it puts forth a different point of view about lex mitior retroactivity and probation. Finally, the paper sheds some light on a different de jure condendo perspective about probation as suspending punishment instead of suspending trial.

Natali K., The Judicial Complaint for the Protction of Prisoners Rights, pag. 1457 ss.

The introduction of the “judicial complaint” (art. 35-bis and art. 69 subparagraph 6 of the Italian law governing the prison system as amended by law decree No. 146 of 23rd December, 2013 and transposed into Law No. 10 of 21 February, 2014) has filled a long-standing gap in the Italian law with regard to the protection of prisoners’ and internees’ rights. This paper analyses such legal instrument four years after its introduction and it does so from two different perspectives: firstly, the Author pinpoints the rights protected by the judicial complaint; secondly, she analyzes the decision-making process triggered by such complaint.