La (desapercibida) reintroducción en España de las medidas de seguridad privativas de libertad de duración indeterminada
The paper focuses on the indirect consequences in the Spanish legal system of life sentence with parole since 2015, especially with respect to the overall lenght of measures limiting the personal freedom of individuals
The first part of the article outlines the historical evolution of perpetual life imprisonment in the Italian legal system, from the Nineteenth-Century codifications to emergency laws of the 1990s. Recent reform projects of Criminal Code, Italian case law as well as the role of perpetual life imprisonment in other Member States of the Council of Europe are also taken into account. The central part of the article concerns the Constitutional legitimacy of the various kinds of life imprisonment in the Italian legal system. Life imprisonment is then examined in light of the principles set out in the European Convention of Human Rights. The last part deals with the use of life imprisonment as a tool of public policy on crime prevention, with a view to newly passed laws and to the Italian Government legislative programme
This paper analyzes the problematic relationship between the death penalty and life imprisonment. It starts off with some indispensable references to the thought of Beccaria, as well as to some criminal legislation in force in the late 18th century and in the first half of the 19th century. The essay then examines the main steps in the long and troubled path that led to the enactment of a national penal code in 1889 and to the replacement of capital punishment with life imprisonment. In order to accomplish this goal, which had been hindered by many, lawmakers had to make the punishment as intimidating as possible and guarantee the offender’s removal from society, as such offenders were presumed to be incorrigible. Many people exalted the reform as a great victory, but others criticized it for the heavy ways in which the punishment was executed. In the Fascist period, the individualistic ideology of the liberal era was replaced by an authoritarian conception that placed the purposes and interests of the State before those of individuals. This meant that the interests of citizens and even their very lives could be sacrificed for the preservation and defense of the State. On the basis of these assumptions, the attacks against the prime minister provided the opportunity to reintroduce capital punishment, at first with the 1926 law, and then firmly with the Rocco Code; life imprisonment, however, was mitigated.
The work constitutes a critical presentation of the current face of Italian life imprisonment and of the measures operating in the phase of the enforcement of sentences which allow to declare its conformity with the Italian Constitution and the European Convention on Human Rights.
Analysing C. Musumeci-A. Pugiotto’s Gli ergastolani senza scampo (Editoriale Scientifica, Napoli, 2016), the Author elaborates a quaestio legitimitatis aimed at overcoming the so-called “no escape” life imprisonment. This is preceded by a brief introductory essay in which the proposals for the reform of life imprisonment are examined. Defence attorneys and judges will be able to use this act and solicit the judgment of the Constitutional Court.
Il contributo si sofferma sul tema del c.d. “ergastolo ostativo” nella prospettiva di riforma del sistema sanzionatorio, con particolare riferimento al problema della sua compatibilità con la recente giurisprudenza della Corte europea dei diritti dell’uomo.
El proyecto de reforma del Código Penal de 2013 como programa inocuizador de delincuentes peligrosos (prisión permanente revisable y medidas de seguridad indeterminadas)
Il progetto di riforma del codice penale spagnolo dal 2013 introduce una modifica sostanziale del sistema di misure di sicurezza ed include l’ergastolo nell’elenco delle sanzioni penali. Entrambe novità rappresentano una svolta del sistema punitivo verso un “diritto penale della sicurezza”, in contrasto con i principi di colpevolezza, legalità, proporzionalità e rieducazione, interpretati alla luce della Costituzione spagnola e della Convenzione europea dei diritti del uomo.