Rivista italiana di diritto e procedura penale n. 2/2022
Abstracts - English
With the permission of the publisher Giuffrè Francis Lefebvre we anticipate below the abstracts of the works published in the latest issue of the journal "Rivista italiana di diritto e procedura penale" (n. 2/2022)
Orlandi R., The Presumption of Innocence and its Two-fold Root, p. 627 ss.
This paper starts from a recent conceptual evolution of the presumption of innocence, favored by the case law of the European Court of Human Rights, followed by Directive 2016/343/EU, which has been recently implemented in the Italian legal system through legislative decree no. 188 of 2021. The author provides an overview of the history of this principle and identifies a two-fold root (psychological-probabilistic and regulatory) that the conceptual evolution at issue seems to revive.
Crespo E.D., “Humanist Compatibilism”: A Proposal for Reconciling Neuroscience and Criminal Law, p. 645 ss.
This essay offers a compatibilist view of determinism and freedom that makes a mutual understanding between neuroscience and criminal law theoretically possible. This implies giving up the two extremes represented, on the one hand, by the so-called eliminative or mechanistic materialism and, on the other hand, by pure or metaphysical indeterminism. What is accepted instead is a minimal concept of freedom understood as 'self-determination' in an intersubjective sense. In dogmatic terms, this results in a procedure of attribution of criminal liability in which difficult cases are resolved in favor of the offender. Without ignoring the risks of a deterministic view, the approach put forward here is based on five postulates, which revolve around the principle of humanity of punishment, and is structured in three methodological cornerstones, i.e. the rejection of retribution as a purpose of punishment, a permeable model of criminal science, and the search for consistent answers to scientific problems.
Mazzacuva F., Criminal Justice Inter Pares, between Negotiation Strategies and Pathways towards a Dialogue. A Study starting from the “Cartabia Reform”, p. 673 ss.
This paper deals with the latest evolution of the Italian criminal justice system, resulting from the entry into force of Law No. 134 of 27 September 2021 (the so-called Cartabia Reform), with specific regard to negotiating and restorative strategies. Starting from a theoretical framework related to the notion of substantive rewarding measures as well as to the models of negotiated and restorative justice, an analysis of the different, both traditional and innovative, enforcement tools is carried out from a functionalistic standpoint, which aims at detecting differences and interferences between them.
Fragasso B., Entrapment and Criminal Liability, p. 707 ss.
Since the 1990’s, undercover operations have become an essential investigative technique for combating serious crimes in Italy. However, this type of investigation carries the risk that government agents may induce their targets to commit a crime that they would not have committed otherwise. This article discusses the issue of criminal liability in entrapment cases, through an analysis of the case-law of the Italian and U.S. courts and the European Court of Human Rights (ECtHR). In particular, it analyzes the two fundamental aspects of this issue. First, it examines the position of the agent provocateur, which has been largely discussed by scholars and case-law in Italy. It then turns to the position of the entrapped accused, who has traditionally been considered guilty by the Italian case-law and legal scholarship. However, the ECtHR considers the conviction of an entrapped and provoked accused as a violation of the right to a fair trial (Article 6 ECHR). As such, a paradigm shift in the Italian case-law is required to take this principle into account.
CASES AND COMMENTS
Pugiotto A., From Technique to Decision-Making Tactic. Second Postponement of the Ruling on the Unconstitutionality of Life Imprisonment without Parole, p. 761 ss.
Order No. 122/2022 of the Italian Constitutional Court is an absolute novelty. It postpones again a hearing that had already been postponed. In so doing, the ruling of constitutional illegitimacy of life imprisonment without parole that had already been ascertained (but not formally declared) a year ago, with Order No. 97/2021, is once again postponed in time. The author criticizes this constitutional decision in several respects.
Della Bella A., Quarantine, Right to Liberty and Freedom of Movement. A Comment to Judgment No. 127 of 7 April 2022 rendered by the Italian Constitutional Court, p. 772 ss.
The Italian Constitutional Court was called upon to verify the constitutional legitimacy of the provision punishing the breach of quarantine from the standpoint of Article 13 of the Italian Constitution, which prescribes the intervention of a judge for measures restricting personal liberty. The Court rejected the matter as it established that home isolation affects the freedom of movement and not the right to personal liberty. The grounds of this judgment offer food for thought on the guarantees that should accompany a measure that significantly affects the individual freedoms of citizens and, more generally, on the conditions of legitimacy of the choices aimed at establishing criminal liability for the purpose of protecting collective health in the management of a health crisis.
Dodaro G., On the Constitutional Legitimacy of the Mandatory Application of the Five-Year Probation Period for Conditionally Released Lifers, p. 794 ss.
This essay provides a review of the evolution of the law and case-law on conditional release and illustrates the constitutional reasons that justify, as requested by the judge a quo, the transformation of probation, under Article 230 paragraph 1, no. 2 of the Italian Criminal Code, from mandatory to optional and the consequent attribution to the judge of the power to discretionally assess the existence or persistence of the prisoner’s social dangerousness, in accordance with the general rule provided under Article 31 of Law No. 663 of October 10, 1986.
Massaro A., The Best Interest of the Child requires the Provisional Application of Special Home Detention, p. 806 ss.
With decision No. 30 of 2022, the Italian Constitutional Court extends the possibility of provisional application also to special home detention, provided under art. 47-quinquies of the penitentiary law system. The judgment is a step forward in the path undertaken by the constitutional case law which is bridging the most obvious gaps in the current prison legislation, almost taking on the burden of meeting the expectations that were not fulfilled by law No. 103 of 2017. Regarding special home detention, the Court has emphasized, as in many earlier judgments, the best interest of the child, that judges do not hesitate to define as the true “North Star” capable of guiding the interpreter. The regulatory realignment between special home detention and other alternative measures, starting with the “contiguous” ordinary home detention, certainly represents an acceptable result. There probably are some aspects which, in the future, could be subject to further enhancement, most notably the “relationship” between parent and child, understood as a bilateral and, to a certain extent, bijective connection, which might result into the overcoming of a rationale that is too rigidly anchored to an anachronistic distinction between mother and father in prison, without considering that the parent-child bond has an obvious re-socializing potential, which is inherent in the possibility of taking care of children out of prison.
Albanese D., Preventive Measures and Unconstitutionality of the Dangerousness Category: between Guarantee Requirements and Forced Interpretations, p. 821 ss.
With the well-known decision in the de Tommaso v. Italy case, the European Court of Human Rights rejected the formulation of the “generic” dangerousness category referred to in art. 1 letter a) and b) of Legislative Decree no. 159/2011, which was deemed to violate Art. 2 Prot. No. 4 ECHR due to its lack of clarity. Called upon to assess the constitutionality of this category, with decision No. 24/2019 the Constitutional Court, on the one hand, declared that the category is illegitimate under Art. 1, letter a), of Legislative Decree no. 159/2011, while, on the other hand, it declared that the category is acceptable under letter b). In “saving” the category under letter b), the Constitutional Court took into account the “exhaustive” interpretative effort made by the Supreme Court over time. In the wake of this decision, the case law has questioned the future of the measures that have already been definitively applied with respect to the aforementioned category. This gave rise to an interpretative debate which concerned, in particular, the procedure to be used in order to revoke confiscation measures that are already final. The debate has now been solved by this decision rendered by the Supreme Court ruling in chambers. The author examines the issues analyzed by the Supreme Court, putting them in the relevant legislative and case-law context. The author also questions the inter-temporal aspects of the solution and makes some considerations on the difficult interpretation of a legislative provision which is often ambiguous or incomplete.
Siracusano F., Towards a More Human and Supportive Detention: Brief Reflections on the Proposals made by the Ruotolo Commission, p. 849 ss.
Driven by the aim to provide solutions for an effective improvement in the daily lives of those who live and those who work in prisons, the Ruotolo Commission’s proposals are a first step towards the construction of a model characterized by humanity and solidarity, freed from reactionary retribution-based symbolic perspectives. In order to take root and act as a driving force for an overall review of a criminal execution imbued with constitutional values and international good practices, the implementation of these solutions needs to be accompanied by a decisive and pervasive change at a cultural level. This would indeed be a turning point marking the abandonment of a purely prison-centered vision of the State punitive intervention which, however, is still struggling to materialize.