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ISSN 2611-8858

Topics

Restorative justice

The Environmental “Diversion”: Reductionist Effects and Systemic Concerns

The Law No 68 of 22 May 2015 introduced a diversionary procedure enabling the out-of-court settlement of certain minor criminal violations of the Environmental Code (Legislative Decree No 152 of 3 April 2006). This article analyses in depth the various stages of this innovative procedure, placing particular emphasis on its possible legal qualification. The policy functions of the new procedure and its scope of application are also critically assessed. Conclusively, the article concentrates on the new procedure's compliance with the principles of restorative justice. It is sumbitted that this new diversion scheme can be regarded as a form of de facto decriminalisation, based on a bargaining process which sits ad odds with aims of restorative justice.

Crisis of the Imprisonment and Ways of Reforming It

This paper starts taking note of the contradiction in which imprisonment nowadays is. On the one side, it can claim foundations in science and rationality, which made it an apparently indispensable tool; on the other side, nowadays there is clear evidence of a deep crisis in many respects, humanitarian, ideological and of efficiency. Therefore, in this moment, we are facing a turning point in the Italian policy on crime. The guidelines under which the punitive system may evolve in the future match distinct, but not necessarily alternative, cultural preconditions. There are three conceivable guidelines for the reform: firstly, that of the alternative measures in prison; secondly, that of the measures alternative to imprisonment; finally, the restorative justice. Each of these will be examined in respect of the imprisonment "monoculture".

The Regularization of the Fraud Against Social Security in Spain: an Example of Post-crime Behavior

The figure of the regularization after the Social Security fraud crime, has been much discussed in the Spanish criminal doctrine. The fact that a person who has defrauded can evade the criminal sanction by recognizing and paying what he did not do in the past has generated intense controversy. This paper analyzes two questions about this generous post-crime behavior, in terms of annulment of punishment: its legal nature and its rationale and reason for being. Both aspects contribute to better understand the meaning and reason of this controversial figure in light of its current regulation in the Spanish Penal Code.

Crisis of the Criminal Sanctions System and Perspectives for Reform: a Dialogue between History, Law and Art

The history of the criminal sanction system is complex: there has been a constant intertwining between penal norms, criminological features, procedural developments, theological influences, criminal policies, architectural theories. By referring to three artworks and their ideal symbolism, this essay intends to analyse the path that has led to the overcoming the most cruel and inhuman punishments, progressively affirming the pivotal role of prison, establishing intermediate sanctions, increasing awareness for human rights within the punishment mind-set. Thanks to a dialogue between history, law and art, it aims to reflect both on the present state of the criminal sanction system and on its needs for renovation, starting from the consolidated and yet fragile theoretical foundations.

The Church and the Question of Punishment

Eusebi’s considerations on the question of punishment - in the context of Christian thought - highlight the dark side of criminal law: in the light of art. 27 of the Constitution, he proposes a view of punishment as a path, rather than a rigidly counterbalanced retaliation, and points to restorative justice as a model aimed at the rebuilding of social relationships. The link to Christianity opens prospects which go beyond state justice, and raises the issue of the importance of comprehensive understandings for the rule of law to hold.

Imprisonment as a Last Resort: a Concrete Proposal

Imprisonment, due to segregation and its desocialising effects, is a penalty that, in addition to being particularly punitive, is the last legacy of an "exclusionary” concept of criminal law, which is strongly in conflict with the "inclusive” concept of criminal law shaped by the personalist principles sanctioned by modern constitutionalism. The goal to turn this penalty into a last resort can be pursued by making the choice between prison/exclusion and non-prison/inclusion not only based on the seriousness of the offence, but also trying to deal with the social dangerousness thorugh nondetentive measures and greater use of different kinds of probation. In practice, we can distinguish three types of offences. Firstly, serious offences, punished with over 4 years of imprisonment, in respect of which the convict’s social dangerousness is presumed and the sentence should be immediately executed, with a possibility of a suspension only in the final stages in order to apply parole as a probation instrument. Secondly, medium severity offences, punished with imprisonment up to 4 years, with respect to which, even with recidivists, the sentence should be suspended as a probation instrument. Finally, minor offences, punished with main sanctions other than imprisonment, with respect to which the sentence should be suspended in a special preventive function, through intimidation.

The “Caselli Commission” 2015 Project

The study analyses the agri-food and public health crimes reform Project conducted by the Caselli Commission on 14 October 2015, first focusing on the lack of current regulations both in the Penal Code and in Law no. 283/1962, then explaining the changes introduced by the Project in detail. The analysis reveals a significant demarcation in the criminal system between food safety (supplemental legislation) and public health (Penal Code), a relevant decriminalization of many offences included in art. 5 l. 283/1962, even if this is partly left to interpretation, and finally a deep innovation of the legal model of the misdemeanours. With regards to the relationship between Penal Code and supplemental law, the essay highlights how the importance of prevention increased thanks to the joint criminal and administrative discipline that regulates corporate liability for criminal code offences, but also thanks to criminal offences such as the production and sale of harmful substances for the purposes of wholesale or distribution, public health disaster with remote damages on unidentified victims, the omission to recall hazardous food-substances, and harmful food advertising.

The Criminal Policy of Interpolations

Bill n. 2067 proposes various uneven amendments to different and important sectors of the criminal justice system; it also contains some enabling acts characterized by the absence of sufficiently defined criteria, which will require the Government to make true criminal policy decisions. More generally, there is no clear design for the reform of the penalty system.

The Criminal Law Reform Raises its Sights

After the examination of bill A.S. 2067 carried out by the Judiciary Committee, the upper chamber of the Italian Parliament is called to deal with the demand for a reform of the criminal law and procedure. As far as the substantive law is concerned, while the prescription of offences due to reparative actions deserves appreciation, the tendency to impose harsher penalties certainly does not. Furthermore, it is hard to evaluate the new rules on limitation periods, but the bill really seems to struggle to define the main principles to follow in the matter clearly. And while the delegation on the subject of security measures is appreciable, it is not enough to guide the government towards a change in this field. Finally, the intentions underlying the delegation for the implementation of the so-called “code monopoly” appear to be as meritorious as they are illusory.