The abstracts of the articles published in the latest number of “Rivista Italiana di Diritto e Procedura Penale” (no. 3/2023) are reproduced below with the kind permission of the publisher Giuffrè Francis Lefebvre.

OBITUARIES

Ronco M., In memory of Marcello Gallo, p. 861 ss.

Militello V., Ricordo di Antonio Pagliaro, p. 869 ss.

LEGAL THEORY

ARTICLES

Illuminati G., Changes to the Criminal Procedure in the Nordio Bill: a First Reading, p. 883 ss.

The promised reform of the criminal procedure announced by the Government resulted in a bill submitted to the Parliament on 19 July. The text only provides a few minor adjustments concerning interceptions, precautionary measures, notices of investigation, and appeals filed by public prosecutors and features a number of technical inconsistencies, which will hopefully be corrected by the Parliament.

Demuro G.P., Danger and its Punishment: between Proportionality and ne bis in idem, p. 901 ss.

Danger amounts to a regulatory constant of our time. This essay analyzes the reasons for the extraordinary increase in crimes of endangerment and the contents and limits of this category, and specifically dwells on their compatibility with constitutional principles, still debated despite their regulatory normality. The focus is on the principle of proportionality of punishment and the difficulties encountered in applying it are explored in relation to the judgment of probability which is the core of the concept of danger in its various forms. Danger looks at harm, and the need to avoid it is its essence: this relational assumption then logically leads to a comparison with the cases in which the dangerous situation or event actually materialize, with the different solutions of specialty and tacit subsidiarity, and another, possible and debated, principle comes into play, namely the substantive ne bis in idem, again from the perspective of proportionality of punishment.

Tuzet G., The Paradox of Collegial Decision Making, p. 941 ss.

Art. 527 of the Italian Code of Criminal Procedure is affected by a serious decision-making paradox, which is highlighted in this paper. An example is presented and some variations of the paradox are indicated. Then the paper discusses some options for handling the paradox, suggesting the adoption of a “pragmatist” attitude. After providing some comparative examples and considerations on the logical and dialectical aspects of the problem, it ends with a proposal to reform such article.

Carriero M.F., The Ingerenz-Theorie in Light of New (and More Sophisticated) Deviations in the Case Law, p. 957 ss.

The primary purpose of this paper is to carry out a survey of the latest case law on the subject of the guarantor status. This initial analysis shows how it has now become common practice to use categories, which often acts as a “litmus test” for the (sometimes unconscious) application of the theory of interference. The study, also from a comparative perspective, of this theory nevertheless leads to conclude that the path taken by those who want to give, within the context of the general section, relevance to this criterion in order to justify the presence of new guarantors is totally impracticable. Thinking otherwise would result in a redefinition, in the name of the criterion of interference, of some categories set forth in the special section on the subject of crimes aggravated by the event (e.g. Articles 584 and 586 of the Criminal Code), but also entire institutions of the general section (e.g. Articles 40, 43 and 56(4) of the Criminal Code), thereby legitimizing the presence of “omnibus guarantors” and transforming offences of commission into offences of omission by virtue of the mere creation of a new unlawful risk.

Beguinot G., Sexual Offenses in the Age of the Internet, between Traditional Issues and Needs of Prevention, p. 1001 ss.

Digital communication has taken on an increasingly central role in personal relationships, thus becoming a way for engaging in and maintaining also sexual relationships. Coupled with the physiological dimension of cybersex (so-called sexting) is the potential pathological dimension, which emerges when digital media are used to perpetrate sexual abuses, thereby undermining the existing criminal regulations providing protection of sexual freedom. This paper, on the one hand, highlights the obsolescence of the Italian Criminal Code, which is ill-suited for the progressively fading dichotomy between virtual and real in today’s world and for the intangible nature of the so-called coercive sexting, and, on the other hand, it is intended to stimulate reflections on the role of educational culture in providing preventive protection of sexual freedom. More specifically, starting from an analysis of the social dynamics underlying cyber sexual offenses perpetrated through the Internet, which reveals how they are indicative of a mismatch between cultural and technological progress, this paper invites to start a legal debate on the impact that the construction of a personal sexual identity and the social roles built on gender identity have on sexual assaults. At the same time, this paper points out the positive potential that a proper and prompt sexual education may have in consolidating the culture of habeas corpus.

Cases and comments

Palazzo F., The “Radically Obscure” Law before the Constitutional Court: Criminal Law Aspects (and more), p. 1050 ss.

The Constitutional Court’s ruling No. 110/2023 is commented on insofar as it declares the unconstitutionality of a regional law provision on construction matters as it was found to be “radically obscure”. After recalling the constitutional parameter of equality and reasonableness in terms of the necessary “minimum rationality of any legislative action”, the relationship with the principle of determinateness and precision of criminal law is examined. This paper ends by hypothesizing that the criteria now formulated by the Constitutional Court may find a more certain and effective concrete application as compared to what happened with the principle of determinateness and precision of criminal law.

Valentini E., Lampedusa at Strasbourg: Yesterday, Today, Tomorrow, p. 1059 ss.

After little more than five years since the Khlaifia judgment, with the decision on J.A. and others v. Italy, the European Court of Human Rights goes back to a hot topic, i.e. the legitimacy under the Convention (notably under Articles 3, 5 §§ 1, 2 and 4 and 13 of the Convention and under Articles 2 and 4 of Protocol n. 4) of the treatment of foreigners “hosted” at the hotspot in Lampedusa. After explaining the contents of the decision, which fully granted the claims of the applicants, the Author examines to what extent the ruling, which is about facts dating back to 2017, is relevant also today, notwithstanding the changes that have been implemented in the law in the meantime.

Civello G., ‘Dolo eventuale’ without Acceptance of the Event: Foreseeability according to the “Normal Knowledge of the Average Person” is sufficient for the Supreme Court, p. 1090 ss.

Mentasti G., On the Nature of Probation applied to a Paroled Convict: Remarks on Judment No. 66/2023 of the Constitutional Court,  p. 1109 ss.

The Constitutional Court ruled that the issues of constitutional legitimacy raised by the Florence Surveillance Court with regard to the current discipline of probation applied to a person sentenced to life imprisonment and granted parole and to its compatibility with Articles 3 and 27 of the Constitution are groundless. In its reasoning, the Court stated that probation granted under the joint provisions of Article 177 paragraph 2 and Article 230 paragraph 1 no. 2 of the Criminal Code is neither a security measure nor an additional sanction, but rather the continuation, in a less afflictive form, of the sentence inflicted originally. In the Court’s view, probation and parole are “one and the same thing” and, taken together, they form an alternative measure to detention. In accordance with the interpretative steps indicated by the Court, this contribution reviews the legislative evolution of the institutions under examination and focuses on potentially critical aspects of the ruling, with particular reference to the wide gap between the letter of the law and its interpretations provided by the scholarship and case law.

DISCUSSIONS

Spataro A., About Torture and Terrorism, p. 1133 ss.

The history of torture in the world is one of criminal violence perpetrated over many centuries and in every continent. In recent years, the spread of international terrorism has given rise to criminal strategies that seek to legalize torture in order to combat it. This explains the methods used in the war on terror by the United States, with the complicity of other countries, including European ones, to kidnap and torture suspected terrorists. These practices were exposed and revealed in the Feinstein Report adopted by the US Senate on 9 December 2014. The prohibition and prosecution of torture is ius cogens at international level, even when it takes on the characteristics of psychological torture or inhuman and degrading treatment: the case of Julian Assange is instructive. The crime of torture was only introduced in the Italian Criminal Code in July 2017, but already in November 2022 a bill was presented to abolish it. Instead, a widespread effort is needed to denounce and publicize the horrors of torture.

Scordamaglia I., Use of Force and Abuse of Authority, p. 1155 ss.

The issue of abuse of authority, which implies an exploitation of a position of supremacy, historically emerged with reference to the actions undertaken by public officials, who can legitimately use force in order to fulfill the duties of their office. Our national criminal law system, which already had many provisions punishing abusive behaviors by public officials, possibly characterized by an illegal use of force or other instruments of physical coercion, has recently been extended with the introduction of the crime of “state torture”. However, its configuration as an autonomous type of offense or as a merely circumstantial type of offense is controversial. The interpretative doubts of such provision are, incidentally, at the core of the bill aimed at repealing it.

LAW AND DOCUMENTS

Filocamo G., Some Thoughts on the Conditions of the Criminal Sanctioning Systems in Europe, on the Occasion of the recently released Annual SPACE Report, p. 1179 ss.

This paper aims to illustrate the conditions of the criminal sanctioning systems in Europe, particularly with reference to the custodial and community sanctions imposed throughout criminal proceedings. Following the release of the annual SPACE I and II Reports, this paper presents their Authors’ reflections on the published data and then focuses on some further conclusions.

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Further contributions in the volume of the Review, in addition to the usual reviews of constitutional jurisprudence and supranational criminal justice, include reviews of the following monographs in the Bibliographical Review:

AA.VV., Studi in onore di Roberto E. Kostoris, P.P. Paulesu, M. Daniele, S. Signorato, M. Bolognari, A. Boldrin (a cura di), G. Giappichelli Editore, Torino, 2022, pp. 384 (Paola Spagnolo)

Giunta F., L’eccezione come regola nel diritto penale. Metamorfosi di un paradigma, La nave di Teseo, Milano, 2023, pp. 189. (Gabriele Civello)                

Ronco M., Voluntas ut ratio. Sullo statuto della volontà nel diritto penale, G. Giappichelli Editore, Torino, 2023, pp. 155. (Gabriele Civello)        

Zilletti L., SCUTO S. (a cura di), Ispezioni della terribilità: Leonardo Sciascia e la giustizia, Leo S. Olschki, Firenze, 2022, pp. 282. (Candida Mistrorigo)