LEGAL THEORY

ARTICLES

Paliero C.E., Constructive Indifference. Theodor Geiger’s sociological contribution to Criminal Law theory and practice, p. 705 ss.

This essay aims at reframing Theodor Geiger’s sociological contribution and its relevance to the contemporary theory of Criminal Law both in terms of penal dogmatic terms and of criminal policy. On the one hand, Geiger infringes the principles of ontological cognitivism and, on the other, he overcomes the normativist paradigm of validity — albeit it perpetuates the epistemological sanction-oriented legacy derived from Kelsen’s thought. Thus, the work by the German sociologist provides a valuable contribution to the contemporary Criminal Law theory, instrumental in coining a new taxonomy of the concept of validity, which shall encompass the concept of compliance understood as the effectiveness of legal norms. As a substitute for a classificatory criteriology (theoretically indifferent to effectiveness), the Author offers an ordinative criteriology of the concept of validity which encompasses the whole spectrum of Criminal Law effectuality, ranging from voluntary compliance with the law to sanctioned incompliance, and distinguishing from time to time between the target of the rule and the target of the sanction. This allows to finally consider validity as an empirically scalable and socially measurable entity. This measurement goes as far as the extreme degree of disnomic hyper-validity, which includes the potential (albeit undesirable) punishability of putative offences and the totally unfit attempt, as well as the occurrence of miscarriages of justice, without contradicting the foundations of the proposed paradigm. Even though Geiger’s sociological contribution shows the limitations and strengths of the functionalistic approach (which strives to describe, rather than to prescribe), it has a promising potential in the systemic-criminal and criminal-political arenas.

Pugiotto A., A Gear Change in the Constitutionality Review of the Extent of Punishment, p. 785 ss.

With judgement No. 236/2016, later confirmed by several other decisions, the Constitutional Court embraced a new approach to judging the measure of punishment. The penalty is unlawful when it is not proportional to and hence is contrary to its rehabilitation purpose. This essay compares the new legal orientation with the previous one, when issues of constitutionality were declared inadmissible as a result of the prevalence of the legislative discretionary power. It highlights an unquestionable progress from the point of view of constitutional protection, but it also emphasizes the unresolved problems of the new interpretative direction.

Colella A., The Response of the Domestic Legal System to the Supranational Obligations of Criminalization and of Criminal Prosecution of Torture, p. 811 ss.

After providing a quick overview of the respective conceptual categories, this paper focuses on the criminalization and criminal persecution obligations established by the European Court of Human Rights in the Cestaro and Bartesaghi, Gallo and others vs. Italy cases concerning art. 3 ECHR, and offers some critical remarks in this respect. The Author elaborates on the newly implemented art. 613 bis of the Italian criminal code and provides some interpretative solutions to the host of problems due to its criticized legal framing on the basis of the principles of interpretation in compliance with supranational norms and systematic interpretation rules. Finally, the Author provides some general final remarks, also in the light of the very first case-law applications (albeit in the pre-trial phase).

Tavassi L., Witness List, Right to submit Proof to the Contrary, and Impartiality of Judges: Suggestions for a Consistent Reconstruction of the Jurisdictional System, p. 859 ss.

In the procedural rules of evidence, critical normative situations are exacerbated by jurisdictional practices, imbalances in the relationship between the early discovery and the right to submit proof to the contrary. Moreover, in trial, the discipline doesn’t provide a clear distinction between direct evidence of guilt and proof of the contrary as a function of the respective parties’ conflicting interests.

Nocerino W., Preventive Wiretapping and Communications Monitoring. Investigative tools at risk of “procedural infiltration”I, p. 881 ss.

Preventive wiretaps are among the most unintelligible legal devices in the current legal scenario. They consist in technical operations carried out by the police and by intelligence agencies in order to gather useful information for the prevention of serious crimes and not to acquire evidence of the commission of crimes. However, this practice is not consistent with the theoretical rationale established by the legislator: in fact, the outcome of preventive wiretaps is “indirectly” used in the proceedings, thereby affecting the results of the criminal trial.

CASES AND COMMENTS

Dolcini E., Italy’s New Conviction by the European Court of Human Rights: Life Sentence without Parole violates the Principle of Humanity of Punishment, p. 925 ss.

Strongly contested by many scholars, the life sentence without parole has recently earned Italy another conviction by the European Court of Human Rights. The Court reached this result through a construction of art. 3 ECHR which places human dignity at the core of the Convention and establishes a close link between the humanity of punishment and the resocialization of the convict. Calling for general measures aimed at preventing the perpetuation of violations, this decision forces the Italian legislature to choose between two very different paths, i.e. to either quickly pass a reform that would conflict with the criminal policy guidelines of advocated by the current parliamentary majority, or wait for the forthcoming decision of the Constitutional Court, which in October will rule on the legitimacy of life sentences without parole, in a context where the grounds supporting such unlawfulness based on art. 117 subparagraph 1 of the Italian Constitution have gained strength.

Demuro G.P., Negligent Complicity in a Malicious Offense in the Light of the Principles of Guilt and Fragmentation, p. 936 ss.

The sentence describes a case in which causation and negligence are intertwined and the controversial offense of negligent complicity in a malicious offense is brought back into discussion. The inadmissibility of such offense is proved through a convoluted path, in which the principles of guilt and fragmentation play a decisive role. The key issue is the psychological significance to be attributed to the concept of cooperation, for which a conscious interaction between conducts is deemed necessary and should be proven objectively. The principle of fragmentation also requires that the identification of an implicit discipline be indisputable when the thesis, instead of shrinking, expands the scope of punishable criminal offenses. Excluding the case of complicity, the issue of punishablity unfolds on a mono-subjective level, through a thorough consideration of the precautionary rule, of the degree of concreteness of the reference event and of its assessment.

Bartoli R., Judgment No. 40/2918 of the Italian Constitutional Court: Pros and Cons of the “Intrinsic” Control of the Extent of Punishments, p. 967 ss.

With sentence no. 40 of 2019, the Italian Constitutional Court has finally established a new orientation based on an intrinsic control of the extent of punishments. While, on the one hand, this orientation has the merit of expanding the scope of the Court’s intervention, thus reducing any potential free zone, on the other hand, it has in itself not only, and perhaps not so much, the risk of exacerbating certain conflicts with the legislator, but above all that of lending such approach to potential criticisms of political biases.