As for Criminal Law concerning individuals, tensions affect the principle of legality also in the matter of corporate criminal liability, due to interpretations aimed at expanding the catalogue of predicate offences beyond the boundaries defined by the legislator. The problem is addressed from the environmental criminal law perspective, as up until now, this field has represented the first and main testing ground for the principle of legality in the "231 system". Starting from the Ilva case, this contribution goes back over the controversial relationship between environmental crimes and the crime of association, highlighting how art. 24-ter of the decree – also in the light of certain developments related to transnational organized crime – risks turning into a passe-partout provision, with consequences on the actual possibility of building the compliance program and on the corporate “culpability” itself. The relevance of the crime of association in this matter is confirmed by the introduction of the environmental aggravating circumstance for crimes of association in the new title VI-bis of the Criminal Code (Art. 452-octies c.p.). Such introduction calls for further reflections, as the provision shows aspects of irrationality related to sanctions for the collective entities.
Through its decision No. 24/2017 the Constitutional Court tries a dialogue with the Court of Justice of the European Union on the problems resulting from the Taricco judgment. The diplomatic strategy of the Constitutional Court was finally welcomed by the Court of Justice, which embraced and consolidated the principles stated by the Italian Constitutional Court.
This paper examines a recent judgment by the Italian Constitutional Court as to the extent of the principle of non-retroactivity of criminal laws, as applied to laws that de-criminalise previous criminal offences by transforming them into mere administrative offences. The author discusses, in particular, whether the normative framework of this whole discussion should be found in Article 25 (2) of the Italian Constitution or, rather, in Article 7 ECHR, to which Article 117 (1) of the Italian Constitution implicitly refers.
Having analysed several questions concerning the aggravating circumstance of “a massive quantity” of drugs, this article focuses on the long interpretative path followed by the courts in order to resolve the constitutional doubts raised by the rules laid down by Article 80 of Law no. 309/1990 and to define its scope. The article then considers the further questions raised by these judgements, without neglecting the most recent rulings of the Court of Cassation required by the recent change in the regulatory framework applicable to drugs.
The interaction between European and national law has increased the level of uncertainty with regard to the nature of criminal law limitation periods under Italian law. By decision no. 24/2017 the Italian Constitutional Court expressed its intention to start a dialogue with the European Court of Justice, after the well-known 2015 Taricco decision. However, in referring the case to the ECJ for a preliminary ruling, Italian Court threatened to make use of the doctrine of “counterlimits”, bringing to the fore the difficult cohabitation between EU law and Italian criminal law. By decision no. 24/2017, the problems raised in Taricco were simply postponed, and are far from resolved. It seems difficult at the present time to understand how certain sensitive features of the Italian criminal justice system, which are representative of its identity, such as the provisions on time limitation, could be harmonised with the supranational set of rules originating from EU law.
In this decision, the Court of Cassation considers the difficult issue regarding the specific implications of the application of the judgment in Contrada v. Italy on Italian legal system, which denied Marcello Dell’Utri the opportunity to invoke the principles of law enshrined therein in order to obtain the quashing of his conviction pursuant to art. 673 c.p.p. The court thus construed the binding force of the European judgment narrowly with regard to the “younger brothers” of the victorious applicant, i.e. all persons who, whilst not having applied directly to Strasbourg, assert that they have suffered the same violation already recognized by the ECtHR. This case requires us to consider once again the most appropriate procedural mechanisms for ensuring compliance with the obligation to abide by the final judgments of the European Court imposed on the States under art. 46 ECHR; at the same time however, it invites us to reflect on the real need for an erga omnes extension of the Contrada judgment’s ratio decidendi, read in the light of the wider context of Strasbourg case law concerning the nullum crimen principle.
Italian legislation against international terrorism has lead to two trends. On one hand, laws target the assets and economic resources belonging to terrorist associations. On the other hand, some reforms penalize preliminary actions and broaden the scope of punishable criminal offenses. As a matter of fact, those laws significantly impact the current anti-terrorism legislation and possibly contravene the fundamental principle of rule of law, leaving the jurisdictional authorities with important discretionary power. Since it is not possible to solve these critical issues from an interpretive point of view, the legislator needs to specify in detail the crimes, each time they are introduced as new. Finally, suitable policies of integration should be provided in order to prevent the onset of radicalization, which might lead to terroristic events.
Article 25-quater was introduced into the system outlined by Legislative Decree No. 231/2001 through Law No. 7 of 14 January 2003, to implement supranational obligations, which required the recognition of forms of liability even for legal persons in the broader framework of the fight against terrorism. The fact that this provision has never been applied – in spite of the current escalation of the terrorist threat on a global scale – raises questions about its function and effectiveness for the purposes of the “Decree 231". Shifting from the acknowledgement of supranational sources of reference, this article focuses on the major issues of interpretation raised by the provision, aiming at highlighting the friction with the principle of legality and with the objective criterion (the “interest” or the “benefit”) for the attribution of liability, showing in the meantime the significant impact on the construction of compliance programs.
When assessing the purpose of terrorism, a judge has to solve a series of interpretation issues. This article aims to examine the difficulty of qualifying conduct as terroristic by analysing the content of the domestic provisions and discussing some of the most significant case law. In order to illustrate the complexity of rules within which a judge must act, the opinion recently delivered by Advocate General of the European Court of Justice, in the case A. and a v. Minister van Buitenlandse Zaken provides an opportunity to reflect on the highly disputed question of the distinction between acts of war and acts of terrorism and on consistent interpretation as a tool for resolving antinomies.
The publication of the well-known “Corvetta” judgement has reopened long-standing doubts and differing opinions about the role played by the bankruptcy judgement in the structure of bankruptcy offences. These doubts also relate to the constitutional legitimacy of the bankruptcy offences. From analysis of the “Corvetta” judgement and the subsequent doctrinal discussion, and especially, from the stances set forth in the case law, a situation of great uncertainty in the interpretation of the bankruptcy law emerges, which raises questions about the possibility of respecting the principle of “legal certainty” and the principle of “reasonableness” under the current legislation.