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ISSN 2611-8858

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ILVA

Confused Powers, Disputed Powers: the Criminal Court Judge in Front of the Needs of Business Continuity

Starting from the chronological separation of powers derived from Husserl and going through several French and Italian rules, the paper intends to point out the emersion of a peculiar kind of Criminal Court judge, a guarantor of the public interest to business continuity. The matter of judicial encroachment of typically administrative areas – like the managing of “crisis”, including the business one – leads to identify in the current legislation an intervention scheme (e.g. the appointment of special commissioners by the Court) where the traditional separation of powers is partially derogated, being nevertheless preferable to solutions (see the so-called “Ilva” model) where the powers involved, apparently separate, enter into conflict. With respect to the said kind of Criminal Court judge, guarantor of the balancing between criminal law rules and economy, there is a matter of limits, to be drawn by the lawmaker.

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.

Duty to Protect the Right to Life through Criminal Law and Proof of the Causal Link

Within the current debate over “the proof of facts” and, specifically, about dogmatic categories and standard of proofs from an international perspective, the decision issued by the European Court of Human Rights in the Smaltini v. Italy case provides the opportunity to deal with the issue of the proof of the causal link in criminal matters related to the State’s procedural obligations to protect the right to life under the Convention. Such obligations bind national authorities to carry out effective investigations to determine the cause of death in an industrial pollution scenario, as well as to punish those responsible. The ruling is the response to an application brought by a woman who lived in the polluted area near ILVA, in Taranto, and died whilst the application was pending after having contracted acute myeloid leukaemia. The judicial request claimed that there was a violation of her right to life, due to the fact that the Italian judges decided to discontinue the proceedings against one of the company’s managers in the absence of adequate proof of the causal link between the plant’s polluting emissions and the woman’s illness. The Strasbourg Court decided to ascertain whether the Italian authorities, when discontinuing the criminal proceedings, had adequately justified their decision not to admit new evidence or if, on the contrary, they had breached European duties because they actually had “sufficient evidence” to consider the “causal link” proven. The reasoning of the Court shows that, faced with such an alternative, the judges endorsed the first option “in the light of the scientific data available at the time of the events.” As stated by the European Court, such a pronouncement was taken, however, “without prejudice to the results of scientific studies to come,” so that it leaves the door open to different future decisions in the light of future scientific developments.

Responsabilità dell’ente per reati ambientali e principio di legalità

La sentenza annotata si inscrive nel novero delle pronunce della Suprema Corte volte a riaffermare la piena vigenza, anche nel sistema della responsabilità ex crimine, del principio di legalità nelle sue diverse articolazioni. In particolare, la vicenda concreta è stata occasione per ribadire l’operatività del principio di irretroattività della norma sfavorevole all’ente in quanto estensiva della relativa responsabilità ai reati ambientali selezionati dal d.lgs. 121/2011, in fase di prima attuazione della direttiva 99/2008/CE sulla tutela penale dell’ambiente.