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
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.
Because of the progressive integration of the domestic and European legal systems, including the ECHR, the traditional hierarchy of laws has been restructured. Several new surges come from the Luxembourg and Strasbourg Courts, influencing the interpretation of laws by domestic judges. In the said controversial framework this paper focuses on procedural invalidity and deeds void and null: the debate on the actual prejudice doctrine is in line with the above described picture, where the principle of legality – also from a procedural standpoint – is in crisis at the moment
The paper discusses the principle – implied by the nullum crimen in its continental dimension – according to which only parliamentary law can set forth a criminal provision, and – taking a cue from comparative law materials – proposes a reform requiring qualified majorities for any amendment to the existing criminal law.
Judgment no. 115/2018 by the Italian Constitutional Court, which puts an end to the chain of judgments started by the EUCJ judgment Taricco, disapplies the Taricco ruling as being incompatible with the principle of precision of the criminal provisions derived from Article 25 (2) of the Italian Constitution. By doing so, the Italian Court de facto applies, for the first time, its “counter-limits” doctrine in respect of the EU law, as interpreted by the EUCJ. The Court’s reasoning is based on the assumption that the discipline of the statute of limitation is encompassed by nulla poena principle and its sub-principles, among with the sufficient precision of the criminal provision. The latter sub-principle, on its part, is applied for the first time by the Court as requiring foreseeability, based on the wording of the a criminal provision, of the future interpretation of said provision by the courts in the future. This view is ad odd with the traditional teaching of the Court, and sets a standard of scrutiny to which the Court itself will hardly be able to stick in the ordinary application of Article 25 (2) Constitution. Furthermore, it is not easy to imagine how the “constitutional patriotism” showed by the Court could be reconciled with the general proEuropean attitude of the Italian case law.
The object of this article is the relevance given to the so-called best available techniques in the definition and detection of environmental crimes. In order to explore this topic, it's fundamental to clarify what is intended for BAT and how they operate in the environmental law system, before to evaluate under what terms criminal law might apply them. To do so, it's necessary to examine the nature of the BAT, analyzing how their identification inevitably involves political and economical factors - and not merely technical ones.
The article is focused on the profound innovations to the corporate liability ,that have been introduced by Italian Law n.68/2015 related to the environmental crimes.The corporate liability, which has been introduced by the Decree Legislative n.121/2011 that have inserted the art. 25 undecies into the Decree Legislative n. 231/2001, has an implemented list of enviromental crimes. The analysis, from one side, will focus on the critical aspect of this matter, in particular with reference to the new regulation related to the cancellation of fines, and to no reference to the systems of enviromental management. From the other side, it concerns to the possible future scenario of the regulamentation, which still needs further rules in order to be fully in compliance with the principles of legal certainty.