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ISSN 2611-8858


Ne bis in idem

Corporations and ‘Double-Track Punishment Systems’. Notes on Meta-Individual Structure of Double-Track Sanctioning

The paper focuses on ‘double-track sanctioning systems’ on legal persons from a European ne bis in idem perspective. In addition to highlighting the peculiarities of the said punitive models on market abuse and tax offences, some reflections are devoted to the ‘connection test’ at European level.

Anatomy of ne bis in idem: from Unitary Principle to Neutral Converter of Principles into Rules

The paper focuses on ne bis in idem, shaped as unitary principle by the latest judgments of the ECHR and the EUCJ, including both its procedural and substantive features. After having reconstructed the changing structure of the said principle in the longstanding supranational case-law and having shown the existence of several coexisting versions, that refer to different principles, it is advanced the argument according to which the ne bis in idem is not an autonomous principle, being rather a “kind of rule” per se neutral, capable of including principles of any sort. A new interpretation of the “European ne bis in idem” is then offered from such a perspective, including the parameters used by the European Courts in order to assess derogations, especially with respect to a ‘double track’ cumulative sanctioning system and its compatibility with general principles and fundamental rights limiting the jus puniendi

Sanzioni disciplinari penitenziarie e legittimità convenzionale del doppio binario sanzionatorio

Sommario: 1. La natura giuridica delle sanzioni disciplinari previste dall’ordinamento penitenziario: introduzione. – 2) La presa di posizione della Suprema Corte. – 3. Ulteriori interventi della giurisprudenza di legittimità: Cass. pen., Sez. II, 16 febbraio 2018, n. 23043. – 4. Considerazioni conclusive.

The Sanctioning System for Privacy-Related Infringements from the Supranational Ne Bis In Idem and the Italian Constitution Perspectives

The paper aims to analyse the sanctioning system for privacy-related infringements, as recently amended both at the EU and the domestic level. Considering the administrative and criminal provisions currently provided for by the GDPR and the Italian Privacy Code, some critical issues will be highlighted with respect to the wording of the said provisions, whose interpretation is often difficult. The Italian lawmaker seems to have adopted the ‘double track’ sanctioning system: in the second part of the paper will assess the compatibility of the said system with the supranational principle of ne bis in idem. Finally, some reflections will be devoted to the rationale of the repeated option for the ‘double track’ sanctioning system, trying to find a way out from it through the ‘specialty’ principle established under art. 9 of Law 689/1981.

Granting Due Process of Law to Suspected and Accused Persons Involved in Parallel Criminal Proceedings in the EU

This paper aims to reflect on the deficiencies, from the criminal safeguards perspective, that can be found in the current procedure for the settlement of conflicts of criminal jurisdiction in the European Union. After a brief introduction and overview of the legal framework on conflicts of jurisdiction and the system of protection of rights and procedural safeguards in the European Union, the paper is divided into two different parts. The first part will focus on identifying and examining the principles, rights and safeguards at stake in a transnational situation of conflict of criminal jurisdiction between Member States. In the second part of this paper, the author will reflect on the improvements that should be adopted to grant a better standard of protection for the suspected or accused person, including the critical analysis of proposals made by scholars on this matter.

The Reform of Market Abuse in Italy and the Issues Thereto

Legislative Decree no. 107/2018 was enacted to comply with the 596/2014 EU market abuse regulation. While the 2014/57/EU directive on criminal sanctions for market abuse has not been implemented yet, several changes affect the pre-existing criminal provisions in this area. The new legislation in place is however quite controversial about its criminal law ramifications

The Italian ne bis in idem between procedural coordination and proportionality of punishment

The paper focuses on the Italian ne bis in idem with respect to tax infringements and market abuse, in light of the CJEU judgments of 20 March 2018 in the cases Menci, Garlsson Real Estate and Di Puma e Zecca. Firstly, it is considered the boundary of ne bis in idem, whose extension was strongly reduced also in the EU after the ECtHR judgment in re A and B v. Norway. The paper then focuses on the developments of the dialogue between the European Courts on the principle at issue, not intended anymore as a procedural safeguard and rather construed in a new way, where proportionality of punishment becomes crucial. Taking into account the relationship between criminal and administrative offences in the abovesaid areas, it is eventually examined the potential effect of the new ne bis in idem on the Italian legal system, highlighting how the reduction of the overall sanction to a (formally) proportionate level can be an effective tool to ensure the abidance of the safeguard at issue, at least as it is now intended

Insider Dealing and the Right Not to Be Tried or Punished Twice for the Same Conduct: a Comparison between the Italian and the English and Welsh Legal System

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 Concurrence of Mafia-Type Conspiracy and Drug Trafficking Conspiracy: Searching for a Rational Way to Fight the Phenomenon

The essay examines the connections between the crimes provided by arts. 416-bis c.p. and 74 d.p.r. n. 309/90, criticizing the case law of the Italian Supreme Court (Corte di Cassazione) that usually considers these two crimes to be formally concurrent (concorso formale di reati), thus determining an automatic duplication of sanctions in breach of the substantial ne bis in idem principle. In particular, the paper underlines how the application of value-based criteria to solve the issue of the apparent concurrence (concorso apparente) of criminal provisions, rather than logical and structural criteria, would allow to achieve more balanced solutions regarding the level of the penalty to be imposed, which today is completely disproportionate as compared to the concrete disvalue of the conspiracy because of Courts’ attitude and legislative choices.

Ne Bis in Idem and Market Abuse: a Challenge for Legislator and Judges in Italy

Current Italian regulations on insider trading and market manipulation, with their ‘dual-track’ system of parallel criminal and administrative sanctions, have been ruled incompatible with the individual right to ne bis in idem by the Strasbourg Court in Grande Stevens vs. Italy. The judgment calls upon Italian courts and legislators to harmonise our laws with the conventional obligations on ne bis in idem, which stem both from Article 4 of Protocol 7 ECHR and from Article 50 of the European Charter, the latter provision enjoying the status of EU primary law and having as such direct effect in the domestic legal system. This article explores some possible ways, de lege lata and ferenda, to achieve that goal.