The paper examines various issues related to proceedings aiming at applying administrative sanctions under Chilean law: whether, and to which extent, the fair trial guarantees in their “criminal limb” should apply to these proceeding; which should be the standard of proof required in these proceedings; and which judicial remedies should be provided against a final decision imposing an administrative sanction.
The paper analyses the Chilean criminal procedure rules according to which the statements rendered by people charged in administrative proceedings (as well as in other kind of proceedings where the privilege against selfincrimination and the right to remain silent do not apply) can be admitted as evidence in criminal trials.
This article compares the Italian and the English and Welsh systems of sanctions adopted for the suppression of insider dealing’s offences. In light of the decision in Grande Stevens and Others v. Italy, this article particularly focusses on the court’s compliance with the fundamental human right to the substantial ne bis in idem and on the powers that Parliaments entrusted to their national Security Exchange Commissions. Finally, by underlining pros and cons of the two legal systems, this article suggests some practical solutions to overcome the existing problems of double jeopardy and excess of powers.
The paper focuses on proportionality with respect to electronic surveillance, often used in criminal investigations. Firstly the matter is analysed from a supranational standpoint, taking into account the legal framework and the relevant case-law; secondly, the analysis goes deeper into the Italian legal system, showing how the notion of proportionality is sometimes misunderstood.
Judgment no. 115/2018 by the Italian Constitutional Court, which puts an end to the chain of judgments started by the EUCJ judgment Taricco, disapplies the Taricco ruling as being incompatible with the principle of precision of the criminal provisions derived from Article 25 (2) of the Italian Constitution. By doing so, the Italian Court de facto applies, for the first time, its “counter-limits” doctrine in respect of the EU law, as interpreted by the EUCJ. The Court’s reasoning is based on the assumption that the discipline of the statute of limitation is encompassed by nulla poena principle and its sub-principles, among with the sufficient precision of the criminal provision. The latter sub-principle, on its part, is applied for the first time by the Court as requiring foreseeability, based on the wording of the a criminal provision, of the future interpretation of said provision by the courts in the future. This view is ad odd with the traditional teaching of the Court, and sets a standard of scrutiny to which the Court itself will hardly be able to stick in the ordinary application of Article 25 (2) Constitution. Furthermore, it is not easy to imagine how the “constitutional patriotism” showed by the Court could be reconciled with the general proEuropean attitude of the Italian case law.
The new face of organised crime has got the traditional systems of investigations into troubles, highlighting investigation inability of judicial authorities to combat effectively drug trade and spread of child sexual abuse material on the internet. Only through computer investigation, investigative bodies are able to seek and ensure the probative data. The new investigation horizon is interception of communications among present (and search) through computer collector. That is a system which permits image and sound collection remotely through forwarding of a malware on a target device. The legislator has been waiting for more than ten years for regulating the use of the new investigative instrument by the introduction of the Legislative Decree December 29 th 2017 n. 216. This collects largely the proposal of “Scurato” judgment and numerous suggestions offered from the doctrine in the last years. The examining Judge is responsible to recover the real control function on the investigative project hypothesized by the prosecutor in order to safeguard the constitutional values involved in the use of the mean.
Statistics show that prison population has significantly decreased since 2010. In the last two years, though, it has started rising again. Now is the time to think about the short and long term effects of the reforms following the judgment Torreggiani v. Italy, that has recognized a violation of ECHR Article 3. It seems to me that, regardless of the forthcoming reform of the penitentiary systems, there is no political will to implement changes that would be necessary to create sanctionary system in line with constitutional principles.
The “Minniti” Law on Urban Security (n. 48/2017) is the last stage of a set of acts aimed to involve even more institutions in tackling the emerging issue of urban security. Different measures are discussed in this paper in relation to the protean framework of the so-called “local penal law”, that is on the border of the Italian rule of law and often in contrast with the constitutional rights. Penal, criminological and administrative aspects are analyzed from different perspectives; then, cultural dimensions and historical antecedents are questioned in order to explore the impact of the new law on public policies.
In this judgement, the Italian Constitutional Court adopts a brand new approach in assessing the proportionality of the sanctions provided for specific offences. The Court keeps on invoking, as legal bases for this assessment, Articles 3 (principle of equality) and 27(3) (rehabilitation as essential aim of punishment) of the Constitution, but gives up the traditional requirement of a tertium comparationis as a condition for a criminal provision to be declared invalid because of the disproportionality of the penalty set forth therein. Should such an approach be confirmed in the future, it will be possible to demonstrate the lack of proportionality by showing not only that the penalty provided for the offence A is unjustifiably higher than the one provided for the comparable offence B, but also that the penalty provided for the offence A is too harsh in absolute terms, because it implies an excessive limitation of the fundamental rights of the convict in respect of the aims pursued by the criminal provision.
The paper deals with the problem of the relationship between the European Arrest Warrant mechanism, based on punitive goals, and the fundamental rights protection of the requested person from the specific standpoint of some CJEU case-law. Recently in fact, whilst not negating its previous case-law, the CJEU has pursued a “virtuous” track, displaying a new sensitivity for the protection of fundamental rights. However, it is still necessary to analyse compromises and unresolved issues from a critical perspective.