The law no. 68 .of 2015 introduced new criminal offences, aimed to protect the environment, life and physical integrity of affiliates in various degree and shapes. It also introduced for environmental crimes to be subjected to a mechanism of degradation of the criminal offense and to avail of political and criminal tools already used successfully in other areas. Despite many changes have also affected decree no. 152 of 2006, the legislator didn’t clarify the role of the precautionary principle in the environmental criminal law. Far from being confined to a restricted space, like the the latest judgements of the Supreme Court suggested, the precautionary principle could know an expansion, contributing to the increase of area of criminal relevance concerning cases referred to articles 452 bis, 452 ter, 452 quinquies of Criminal Code.
This paper emphasises the partial perspectives adopted both by the EU Court of Justice and the Italian Constitutional Court, when it comes to define the ‘constitutional identity’ of the EU, on the one hand, and the Member State, on the other. Moreover, it identifies, within the Court of Justice, the two different approaches to this issue respectively taken advocated by Advocate General Y. Bot in Taricco II and by Advocate General M. Bobek in Scialdone. Finally, it deals with the sensitive question of determining who has the ultimate responsibility to give content to the constitutional identity of a Member State, and suggests rethinking conflicts between different legal systems in terms of conflicts of values and principles within the same legal system, to be solved through a classical balancing approach.
The proposal of EU Regulation, 21-12-2016, for the mutual recognition of all types of seizure and confiscation (extended, third-party and non-conviction based), - issued within the framework of criminal proceedings and accompanied by the related safeguards -, has a significant impact in terms of European criminal policy, above all on account of the legislative instrument chosen (even if this raises several doubts) and for the imposition of mutual recognition with respect to forms of non-conviction based confiscation, not covered by Directive n. 42/2014 (only cases involving escape and illness) and not adopted by the Member States, overcoming doubts over applicability of Framework Decision 783/2006. This would be an epochal development in terms of the efficiency of judicial cooperation, although concerns only forms of confiscation adopted in a "criminal procedure", concept not always clear because Member States adopt hybrid proceedings in this sector. The reference model adopted by the European legislator is autonomous confiscation under art. 76 a) c. 1 StGB (already in force) and, above all, § 4 of the German draft bill on the reform of criminal asset recovery BReg418 / 16. The Regulation could moreover represent a challenge to provide for a complete judicialisation within the criminal law of proceedings seeking to enforce forms of non-conviction based confiscation, in order to guarantee mutual recognition.
The present article aims to offer an overview of existing and future legal instruments in the EU judicial cooperation against terrorism, with some critical comments on their actual effectiveness. Starting from the resolution of conflicts of jurisdictions, this article proceeds to an analysis of the rules concerning the exchange of information and operative tools. Finally, it illustrates the relevant jurisprudence by the European Courts concerning judicial cooperation against terrorism and it provides some suggestions for reforming the EU legal framework.
The supranational organizations and the European Union Member State legislators are carrying out thorough reform measures on the current rules in the fight against terrorism. This article analyses the counter-terrorism criminal law sources of the United Nations Security Council, the Council of Europe, the European Union and of some “Model States” in order to highlight the reciprocal and circular relationships between these sources. In particular, this article stresses how national rules have an “inverted effect” on the European instruments of harmonization adopted and being adopted in the field of terrorism.
In the context of EU law, procedural guarantees mostly take the form of “principles”, which must then be converted into "rules" by the courts. How can we ensure that these rules are actually able to achieve predictable results and, above all, a good balance of all the values at stake? The answer offered by article 53 of the Nice Charter requires the equivalence between the standards for the protection of fundamental rights provided by the European Union, the ECHR and the national systems. It is not easy to perform this triangulation, however, if we consider that these standards are often incompatible with each other. This article proposes some means to that end.
This article analyses the right of the “dual defence” in proceedings for the enforcement of a European arrest warrant in light of the connections between EU Directive 2013/48/EU, recently implemented in our legal system with Legislative Decree no. 184 dated 15 September 2016, and EU Directive 2016/1919.
It is difficult to fully understand the future impact of the European investigation order in criminal matters on our legal system. We can already see, nevertheless, a reassuring part of the new EU Directive 2014/41, which ensures the protection of national rules of admissibility of investigation proceedings, and one, however, more worrisome, relating to evidence collection methods. The Directive does not guarantee, regarding the latter, that all of the national regulations will be strictly followed. However, the principle of proportionality which is set forth in Article 52 §1 of the Charter of Fundamental Rights of the European Union assists us, as it is aimed at ensuring a reasonable balance between the preservation of national security and the achievement of the European Union objectives, under penalty of exclusion of the evidence collected. This is not a perfect remedy, but - in a globalized legal system that has lost control of the traditional legislative matters in question - it assumes the burden of justifying any departure from our standards. The hope is that the rules of evidence that will derive are sufficiently balanced and predictable in their outcome, as is required by the principle of procedural legality.
Acknowledging the difficulties of adopting a regulation establishing the European Public Prosecutor, this article sets forth to demonstrate the real existence of the added value the creation the European Prosecutor’s office would have on the part of a limited number of Member States, in respect to the abandonment of such project due to the lack of unanimity. The paper tries to demonstrate the feasibility of such option, which would lead to a system capable of maximizing the effects of what is ostensibly possible using the tools provided by the Treaties - enhanced cooperation in this case - albeit resulting in unequal integration. To this purpose, the proposal of the regulation should be amended and adapted with a different content, aiming no longer at the establishment of the European Public Prosecutor, but at the implementation of enhanced cooperation.
This article provides a broad overview of the investigative tool of activity records containing data external to telephone and email communications by way of reviewing the most significant achievements shaping case law and doctrine. This means of investigation is at the centre of a constant debate on the nature of external data, which contrasts security instances with individual rights of constitutional significance. The current regulatory standard is the result of a lengthy historical evolution that, in an attempt to act as a balancing tool between opposing interests, has had to moderate the operative needs of the investigative entities with the fundamental right to