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ISSN 2611-8858

Topics

Harm Principle

The Crime of Unlicensed Practice after the Reform. The Case of Dentistry

The paper deals with the reformed article 348 of the Italian Criminal Code and its consequences on healthcare, usually affected by unlicensed practice more than other sectors. In particular, after assessing the main changes introduced by the so called ‘Lorenzin reform’, the paper focuses on cases of unauthorized practice in dentistry. Such offence, when committed by unlicensed dentists delivering their services through companies, may be even more harmful to clients and competitors, potentially calling for the application of corporate liability legislation (legislative decree 231/2001).

Mafia method across borders

In 2006, a new legislative type of crime was introduced in the Italian criminal justice system: the "transnational" crime, which comprises every feature and effect a criminal behaviour could have in more than one State and connects it with relevant consequences as to the punishment. Nevertheless, said label could refer to legal (and even social) spaces in which the crime presents itself differently than the underlying behavior: indeed, any social agglomeration might mark out, in a different way, an element of a crime. An instance thereof could be found in a specific Italian law, enacted against Mafia (art. 7, d.l. 152/1991), introducing an aggravating factor that could permanently alter the substance of the crime. From this point of view, many systematic questions arise, seriously challenging the abilities of experts in legal interpretation.

The Unbearable Softness. Decriminalization of Soft-Drug Offenses Between Law in the Book and Law in Action

The article moves from Italian drug-policy’s failures and goes on to analyze how the Italian legal system endeavors to minimize soft-drug offenses relevance. A two-faced picture thus emerges: on the one side, the legislator proves incapable of reforming the current, wasteful drug-policy; on the other, some judges tend to ‘practically decriminalize’ low-danger offenses. The author maintains that this case-law approach, although somehow alleviating, does neither match the goal of legal certainty, nor prove effective in fighting mass drug-dealing.

Environmental damage and its consequences on human health

The paper deals with the use of epidemiological evidence for the purpose of proving the causal link between polluting conducts and the harm to human health, under the new environmental crimes introduced in the Italian penal code by law n. 68 of 2015. The attention is focused on articles 452-ter (death or personal injury as a result of the crime of environmental pollution) and 452-quater (environmental disaster) of the penal code. The author provides the interpretation of these provisions, pointing out several shortcomings related to their drafting and their penalties, and then addresses the issue of the relevance of the epidemiological measures of the "relative risk" and the "attributable number". This part of the paper takes into account the different positions that have emerged in legal doctrine and reaches the conclusion that such epidemiologic measures may, under certain conditions, provide evidence which is relevant not only for the proof of the environmental crimes, but also for the offences of homicide and personal injury.

Constitutionality of the Maximum Limit Applicable to Punishment as Requirement for the Exclusion of Punishability due to the Particular Tenuity of the Fact

According to Art. 131-bis of the Italian Penal Code, the exclusion of punishment for the particular tenuity of the fact is applicable only to offences, whose statutory punishment does not exceed five years imprisonment. Consequently, Art. 131-bis of the Italian Penal Code cannot be applied to the offence of receiving stolen goods, even if the act was of negligible significance according to Art. 648 Par. 2 of the Penal Code, because the statutory punishment is imprisonment for up to six years. The Italian Constitutional Court, by its judgement No. 207/2017, has ruled that this legislative outcome is not unreasonable, but has also highlighted some inconsistencies of the current regulation, that would require a reform. The present contribution tries to demonstrate that the decision of the Court does not remove every doubt about the constitutionality Art. 131-bis of the Italian Penal Code.

The Purpose of Terrorism, Interpretive Aspects and the Role of Consistent Interpretation. Judges: Between the Uncertainty of Offences and Supranational Sources of Law

When assessing the purpose of terrorism, a judge has to solve a series of interpretation issues. This article aims to examine the difficulty of qualifying conduct as terroristic by analysing the content of the domestic provisions and discussing some of the most significant case law. In order to illustrate the complexity of rules within which a judge must act, the opinion recently delivered by Advocate General of the European Court of Justice, in the case A. and a v. Minister van Buitenlandse Zaken provides an opportunity to reflect on the highly disputed question of the distinction between acts of war and acts of terrorism and on consistent interpretation as a tool for resolving antinomies.

California Dreamin’

The California referendum dated 8 November 2016 legalized the production, commercialization and consumption of marijuana. The California reform, which has already been implemented in other US States, allows us reflect on the possibility of introducing, even here in Italy, the issue of legalization of cannabis and its derivatives. A bill to this effect (no. 3235) was presented to Parliament and hopefully will be examined shortly. This article questions the legitimacy of the prohibitionist approach to "soft" drugs on the basis of both the classic continental criminal law parameters of legal interests and the Anglo-American "harm principle" : the legalization appears, de jure condendo, to be the best solution.

Critical Remarks About the New “Crime” of Denial

Denial is an ever-increasing phenomenon. The reaction to it seems to be likewise ever-expanding. Article 3, paragraph 3-bis, of Law no. 654/1975 which entered into force in Italy last June is in keeping with the widespread tendency towards the criminalization of the expression of thoughts that overturn in a maddening and offensive way consolidated historical achievements. The Italian regulation goes even further, punishing explicitly both the Holocaust denial and the denial of international crimes as they are legally characterised by the Rome Statute of the International Criminal Court. This article attempts to investigate the new regulation. Attention will be paid to the structure of the law and the parliamentary process behind it for the purpose of understanding its legal nature. The legal implications will be evaluated depending on whether the act is considered an aggravation of an offence or a separate offence. In conclusion, a brief comparison of the types of offences of some European countries will be presented, in order to highlight the similarities and differences of the events for which the denial is prohibited.

A Possible European Size of the Harm Principle

Starting from the extreme proliferation of the incriminating rules in our criminal law system and from its resulting insufficient effectiveness, this paper aims to demonstrate the necessity of serious criminal policy criteria able to guide and constrain the Legislator’s activity in the criminal matter. The important dogmatic development achieved in the past with regard to the principle of harm represents the first requirement of this analysis, which aims to verify its possible integration with the "European" principles of subsidiarity and proportionality, in order to allow judicial evaluations, based on valid axiological criteria, on the matter of criminal law choice.

Prime considerazioni sul proscioglimento per particolare tenuità del fatto

Gli artt. 1-5 del d.lgs. 16 marzo 2015, n. 28 hanno dato attuazione alla direttiva di legge delega contenuta nell’art. 1 comma 1 lett. m della legge 28 aprile 2014, n. 67, che invitava il governo a «escludere la punibilità di condotte sanzionate con la sola pena pecuniaria o con pene detentive non superiori nel massimo a cinque anni, quando risulti la particolare tenuità dell’offesa e la non abitualità del comportamento». Nel presente contributo, la riforma viene analizzata nei suoi numerosi aspetti problematici: proiezione funzionale dell’istituto, natura giuridica, presupposti applicativi, risvolti processuali, rapporti con l’azione civile di risarcimento del danno.