The essay illustrates the “Zeitgeist” that today impedes a criminal recodification, between disinterest and lack of legislative means and their detachment from an ordinary collaboration with the academic class. The huge expansion of criminal law and risk, progressively increased, that has been complained about for a century by the specialists and makes criminal law itself an emergency, is however poorly perceived by the citizens and neglected by the media. The criminal trial is a dramatic experience. The law suffers from a profound lack of democratic and scientific legitimacy. In this climate, where the “Code reservation”, introduced in 2018, is subject to disillusioned underestimations that reflect the very crisis of the idea of Codes, carried out for decades in civil law, the need for constitutional resistance is reaffirmed: the legislator must respect an imparted order – Code or organic supple- mentary laws – which is the precipitate of constitutional principles of ultima ratio, precision, legality and recog- nizability of criminal precepts. The code reservation therefore has a sub-constitutional nature, but the continuous work of consolidations and integrations, of multiple types of “decodification”, requires from the criminalist not a “nineteenth-century” eternal or philosophical Code, but the continuous reconstruction of a "system in progress" from a complex of premises and sources in motion, including the Code, where only super-legislative bounds can constitute the true basis for the continuous reorganization of the ius, within the multiple leges.
The Covid-19 pandemic and the lockdown have forced us to question the foundations of the punitive power and have imposed a debate both about criminal law as a tool for managing the health emergency, on the one hand, and about the consequences of the health emergency on criminal law, on the other. This article departs from this discussion and from the debate following the adoption of the so-called Bonafede reform of the statute of lim- itations, in order to propose some systematic thoughts on the role of non-punishment as a means of managing criminal policy. By combining dogmatics and criminal policy, this ariticle supports a teleological and systematic use of giving up on punishment as a form of implementation of the principles of extrema ratio and fragmentation. In particular, this article hopes for a systematic management of all forms of non-punishment by the legislator instead of a full delegation to prosecutors and judges
Sexual assoult against a minor, unconscious due to the use of alcohol and drugs: violence or sexual abuse? The Spanish case of the 'Manada de Manresa', in the perspective of an Italian scholar
In the Spanish case of the so called "Manada de Manresa" case is questionable if one can be sentenced of a rape made without using violence or threat.
The text, after a general overview of the current composition of the U.S. Supreme Court, with reference to its ideological balance, proceeds to the review of the main decisions issued during the 2018/2019 Term, with particular attention to the constitutional-criminal jurisprudence. Two judgments on the principle of legality, drafted by the originalist/textualist Justice Neil Gorsuch are examined, highlighting his contribution to strengthening that constitutional safeguard. We then proceed to the examination of the recent death penalty jurisprudence, a context in which the strengthened conservative majority, in order to guarantee at all costs the effectiveness of the extreme sanction and the protection of the victim rights, seems to give a new "restrictive" turn to the interpretation of the prohibition of cruel and unusual punishment and to the criteria for assessing last-minute petitions by capital convicts. This trend could call into question several settled precedents. Taking into account other criminal law decisions issued in the Term just ended, we focus conclusively on the cases that will be decided in the upcoming 2019/2020 Term, positing what could be some of the future developments in the criminal law area
More than forty years after the prison reform, the underlying constitutional humanism thereof seems to be overcome by a prison-centric involution, where legal punitive-symbolic measures aims to ‘entrench’ the prison system. Through art. 4-bis of the Prison Law, several automatic effects based on presumptions almost absolute provide for a default harsh imprisonment. The Constitutional Court case law, in turn, tried to make the prison system consistent with the Constitution, starting to overcome the judicial approach grounded on imperative rules, where only the lawmaker is entitled to struck a deal among the interests at stake, limiting the judicial review. In the said pattern, the recent Prison Reform had the aim to overcome the strict system of foreclosure to rehabilitation, avoiding absolute presumptions and giving back to the Judge overseeing sentences the power to taylor the treatment on each prisoner. The valuable preparatory and drafting work started by the States general and later included in the so-called Giostra project, however, was eventually overturned by the umpteenth populist drifting, that stopped the reduction of the cases limiting re-education
Legalità penale e legge di interpretazione autentica. Note a margine della sentenza della Corte Suprema argentina nel caso “Batalla”
Drawing on the “Batalla” case, decided by the Argentinian Supreme Court in December 2018, the article analyses the possibility of applying the interpretation of the criminal law provided by the law-maker itself, in detriment to the defendant or to the convicted (by a non-definitive judgement). We argue for the existence of complex or borderline cases (e.g. the Batalla one), which cannot be solved in light of the applicable laws thereto and where Courts are expected to solve the issues resorting to judge-made law. In these puzzling cases, the Parliament would not only be authorized to envisage a criminal law interpretation as provided by the legislator: such a solution should be desirable to avoid the creation and application of creative and unreliable judgments. However, the law interpretation given by the lawmaker should not be applied for ongoing criminal proceedings: such a solution would stand in contradiction with the duty of the judge to choose legal interpretation that mostly advantages the defendant
Reservation to the Criminal Code or to a Consolidated Law: Meaning, Constitutionality and Impact on the Criminal Law Systee
The paper analyses the principle of reservation to the Criminal Code or to a Consolidated Law, inserted in the Italian Criminal Code under art. 3-bis, according to which “new criminal provisions can be introduced either by amending the Criminal Code or by passing Consolidated Laws on a given topic”. The author focuses on the content of such a principle and its criminal policy implications. Furthermore two profiles of unconstitutionality are examined: as to art. 3-bis, the principle at issue was not expressly mentioned by the law delegating the Gov- ernment to enact legislative decree no. 21; as to criminal provisions, e.g. the crime of ‘road blockage’ (introduced again by the law decree no. 113/2018, converted into law 132/2018), when non-compliant with the principle of reservation to the Criminal Code or to a Consolidated Law. The Author believes that art. 3-bis of the Italian Criminal Code is not binding for the future lawmaker, that is basically free to derogate it.
The increasing relevance of case-law in criminal trials through art. 7 ECHR put several issues in civil law systems, that are primally founded on statutory laws according to their constitutional traditions. Notwithstanding the influence of European Court of Human Rights did not equate statutory law with judge-made law in such systems of law, relevance of case-law in criminal trials cannot be denied. Otherwise, irretroactivity and lex mitior retroactivity principles would be thwarted. As a result, judge-made law and statutory lawstill remain unequated when case-law is not well-established, but they should be considered equal in extraordinary cases, such as absolutely unforeseeable overruling in malam partem and overruling in bonam partem by united chambers of Supreme Court of Cassation
The essay focuses on legality nowadays, also in light of the practice in the last parliamentary term, reflecting on the need to check the current validity of the theoretical premises of such a principle as a way to revitalize it (if necessary even updating it).
While the traditional idea of legality faces a significant crisis, the debate upon interconnections among judicial interpretation and balance of constitutional powers acquires relevance. On one hand, the judge is subject to the law. On the other hand, judicial interpretation became essential in order to assess criminal liability. Thus, it is necessary to deeper examine the function exerted by the Italian Supreme Court: the equilibrium between legislator and judge is the one able to ensure supranational guarantees. In this frame, the ‘stare decisis doctrine’ could provide the civil law paradigm with useful indications to understand recent legislative reforms.