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ISSN 2611-8858



Slovakia Requests an Advisory Opinion to the European Court of Human Rights on Investigations Against Police Officers

The consultative mechanism provided for by Protocol n. 16 ECHR is applied for the third time

ECHR Driven Interpretation and Balance. An Appendix

This paper critically analyses the relationship between the ECtHR balance in implementing a right based on the ECHR and the ECHR-driven interpretation by the domestic judge in applying defenses. While ECHR-driven interpretation is kept within the boundaries of the wording of the law, the balance is per se integrative-additive, so it goes by definition beyond such boundaries. Consequently, the ‘case by case’ approach at a domestic level could be more difficult and this would require to involve the Constitutional Court.

Constitutional Legality, Conventional legality and judge-made law

The increasing relevance of case-law in criminal trials through art. 7 ECHR put several issues in civil law systems, that are primally founded on statutory laws according to their constitutional traditions. Notwithstanding the influence of European Court of Human Rights did not equate statutory law with judge-made law in such systems of law, relevance of case-law in criminal trials cannot be denied. Otherwise, irretroactivity and lex mitior retroactivity principles would be thwarted. As a result, judge-made law and statutory lawstill remain unequated when case-law is not well-established, but they should be considered equal in extraordinary cases, such as absolutely unforeseeable overruling in malam partem and overruling in bonam partem by united chambers of Supreme Court of Cassation

The role of confiscation in the fight against ‘economic crime’: an overview

The struggle against the heap of illegal assets finds in the subject of confiscation the primary and main tool of intervention: with its qualities of a structurally changeable and a finalistically eclectic concept, the confiscation takes on some chameleonic traits that allow it to adapt to many different purposes, both on the level of prevention and repression. The confiscation, in this regard, is the most emblematic manifestation of that specific model of “modern” criminal law, voted for the contrastive efficiency, to which the criminal policy of the last few years seems to tend to. The present contribution aims to outline the basics coordinates to orient the interpreter within the vast, complex and actual ablative panorama.

The New National Measures of Asset Freezing Against Financing of Terrorism

With a mechanism recalling the supranational blacklisting, the Italian law-maker introduced with Legislative Decree no. 90/2017 national measures of asset freezing aimed to prevent and fight financing terrorism. This is a new tool to trace the money trail which potentially crosses the Mediterranean Sea to finance ISIL or other terrorist organizations. This paper moves from analysis of the recent regulation and puts national asset freeze in the broader context of preventive measures with ban effect. Then, it focuses on its compatibility with the principles of domestic preventive system, highlighting the most critical issues: on the one hand, the justiciability deficit, on the other hand, the uncertain assessment of dangerousness. The lack of guarantees of listed persons pushes to wonder whether this domestic regulation has accomplished an adequate and lawful balancing between security and liberty.

Protection of Victims of Environmental Crimes: the Case-law Ilva

With this paper, the author aims to propose a synthesis of the current state of the Court's Strasbourg case-law on environmental matters: starting with the notion of positive obligations, the author analyses the main interpretative guidelines with which the judges have extended the scope of the right to life under Art. 2 Cedu and the right to privacy under Art. 8 Cedu to assert a conventional environmental right for protection the individual. The protection of the victims of environmental crimes offers a interesting reflection point in relation to its normative implications, due to the recent legislative reform and to the perspective of protecting the victim in the criminal process, which is considerably stronger today.

Remote Participation in a Trial vs. “Self-defence”?

The phenomenon of remote participation in a trial, introduced in Italy in 1998 with a 'sunset clause’ first relegated to implementing provisions and subsequently consolidated, has been progressively expanded. The Iaw of 23 June 2017, no. 103, radically changes its scope by actually turning an exception into a rule, whose reflections on the efficacy of a cross-examination and on the exercise of right to defence are indisputable, since 'virtual' participation cannot be compared to the defendant's physical presence in court. Hence the need to reconsider the conclusions outlined by the Italian Constitutional Court and the European Court of Human Rights with regard to previous legislation, also in order to avoid the risk that remote participation may in future become the ‘norm’ in a trial involving parties in vinculis, whatever the procedure that originated the status detentionis may be.

The Resistible Rise of the State Secret: Between Salus Rei Publicae, the «Black Curtain» and Creeping Impunity

The use of State secrets in criminal law proceedings and the risk of terrorist attacks bring us to examine the interpretation of Law no. 124 of 2007 offered by the Constitutional Court with respect to the well- known Abu Omar affair. The solutions provided have not persuaded those who, like the ECHR, believe that the protection of «inviolable» human rights should Always be granted, especially in connection with serious forms of crime. Human rights guarantees must not be restricted when they are needed the most.

Limits to Extradition for Terrorism Offences in the Presence of Obligations to Protect Human Rights

The extradition procedure is governed by ad hoc Conventions on extradition and by suppression conventions on terrorism offences. However, the procedure may become inapplicable if it is incompatible with the obligations to protect human rights. This article will consider such cases with a special focus on violations of Article 3 ECHR, on the prohibition of torture or inhuman or degrading treatment.