The paper focuses on proportionality with respect to electronic surveillance, often used in criminal investigations. Firstly the matter is analysed from a supranational standpoint, taking into account the legal framework and the relevant case-law; secondly, the analysis goes deeper into the Italian legal system, showing how the notion of proportionality is sometimes misunderstood.
The author, after an overview of the different confiscation models in the national legal system, with particular regard to the so called confiscation “per sproporzione”, focuses on the necessary profiles concerning the application of the measure in the different models. The trend emerging is that the legislator tends to release the ascertaining of the confiscation from the application. But a similar trend might have a negative impact on the efficiency of the new punitive system based on confiscation.
The new face of organised crime has got the traditional systems of investigations into troubles, highlighting investigation inability of judicial authorities to combat effectively drug trade and spread of child sexual abuse material on the internet. Only through computer investigation, investigative bodies are able to seek and ensure the probative data. The new investigation horizon is interception of communications among present (and search) through computer collector. That is a system which permits image and sound collection remotely through forwarding of a malware on a target device. The legislator has been waiting for more than ten years for regulating the use of the new investigative instrument by the introduction of the Legislative Decree December 29 th 2017 n. 216. This collects largely the proposal of “Scurato” judgment and numerous suggestions offered from the doctrine in the last years. The examining Judge is responsible to recover the real control function on the investigative project hypothesized by the prosecutor in order to safeguard the constitutional values involved in the use of the mean.
The paper deals with the use of epidemiological evidence for the purpose of proving the causal link between polluting conducts and the harm to human health, under the new environmental crimes introduced in the Italian penal code by law n. 68 of 2015. The attention is focused on articles 452-ter (death or personal injury as a result of the crime of environmental pollution) and 452-quater (environmental disaster) of the penal code. The author provides the interpretation of these provisions, pointing out several shortcomings related to their drafting and their penalties, and then addresses the issue of the relevance of the epidemiological measures of the "relative risk" and the "attributable number". This part of the paper takes into account the different positions that have emerged in legal doctrine and reaches the conclusion that such epidemiologic measures may, under certain conditions, provide evidence which is relevant not only for the proof of the environmental crimes, but also for the offences of homicide and personal injury.
The relation between probability theory and the law of criminal evidence finds its roots in the history of criminal justice. Nevertheless, the scientific debate in recent years has underlined the necessity of a deeper, detailed study on this strong relation, especially with reference to the strengthening of the rationality of the modern judge. The DNA bursting into courtrooms sets today new questions, and invites to look at the recent theories on logic of probability and criminal process with less scepticism.
It is difficult to fully understand the future impact of the European investigation order in criminal matters on our legal system. We can already see, nevertheless, a reassuring part of the new EU Directive 2014/41, which ensures the protection of national rules of admissibility of investigation proceedings, and one, however, more worrisome, relating to evidence collection methods. The Directive does not guarantee, regarding the latter, that all of the national regulations will be strictly followed. However, the principle of proportionality which is set forth in Article 52 §1 of the Charter of Fundamental Rights of the European Union assists us, as it is aimed at ensuring a reasonable balance between the preservation of national security and the achievement of the European Union objectives, under penalty of exclusion of the evidence collected. This is not a perfect remedy, but - in a globalized legal system that has lost control of the traditional legislative matters in question - it assumes the burden of justifying any departure from our standards. The hope is that the rules of evidence that will derive are sufficiently balanced and predictable in their outcome, as is required by the principle of procedural legality.
This article highlights the features of a new inquisitory guaranteeism in the defence of rights theoretically drawn from a recent decision of the Joint Divisions of the Court of Cassation which, putting a lengthy jurisprudential contrast to an end, declared excluded a witness examination, pursuant to Article 210, paragraph 6 of the Code of Criminal Procedure, which was carried out without a prior notice statement as required by Article 64, paragraph 3, letter (c) of the Code of Criminal Procedure, while saving the possibility of renewing the examination by properly following the requirements for notification. This solution is criticized by the Author: the improper focus on the witnesses to whom Article 210, paragraph 6 of the Code of Criminal Procedure actually applies, is combined with an unconvincing and, indeed, partially reading with regard to the sanctioning capacity of Article 64, paragraph 3-bis of the Code of Criminal Procedure. Together with additional observations relating to the content of the above-mentioned ruling on legitimacy, the Author formulates general observations about the institution of represented testimony, highlighting both the real dogmatic meaning (of the inquisitorial matrix) and the structural short circuit caused by the poorly created provision of Article 210, paragraph 6 of the Code of Criminal Procedure.
This article provides a broad overview of the investigative tool of activity records containing data external to telephone and email communications by way of reviewing the most significant achievements shaping case law and doctrine. This means of investigation is at the centre of a constant debate on the nature of external data, which contrasts security instances with individual rights of constitutional significance. The current regulatory standard is the result of a lengthy historical evolution that, in an attempt to act as a balancing tool between opposing interests, has had to moderate the operative needs of the investigative entities with the fundamental right to
The article discusses the issue of cyber investigations in a general perspective, identifying the elements that go beyond a specific national legislation. Three types of cyber investigations emerge (i.e. pretrial, reactive and reactive), contributing to outline a criminal system whose preventive and proactive character tend to increase. In addition, thanks to a reversal of perspective with respect to the traditional approach of the legal doctrine, rather than concentrating on the characteristics of digital evidence, the author focuses instead on the characteristics of the investigations aimed at gathering digital evidence. In particular, the main characteristics of these investigations (i.e. technical nature, transnationality and cooperation of private entities) are discussed and the fact that they can lead to structural changes of investigation activities is pointed out. Finally, the article identifies a new major challenge in automated investigations and proposes their bipartition in order to ensure the respect for fundamental rights.
Starting from the debate on the doubling of the sanctions between criminal and regulatory proceedings, the paper analyses whether the typical guarantees of criminal jurisdiction granted in the finding of the fact must be granted in non-criminal proceedings aimed to the application of sanctions as well. This must be referred to the adversarial principle both as a method of participation in the gathering of evidence – able to ensure the highest standard of quality in the finding of the facts – and as a fundamental part of the defendant’s right of defence. The paper evaluates if the application of the principle in regulatory proceedings (such as the ones conducted by Bank of Italy or CONSOB, for instance) must be regarded as mandatory, in the light of the law provided both by internal norms of constitutional rank and by international obligations deriving from the European Convention of Human Rights. Indeed, if the jurisprudence of the Strasbourg Court itself recognizes that a sanction applied at the end of a non-criminal proceeding can have a substantial criminal nature, the method for the finding of the fact in non-criminal proceedings cannot be less guaranteed than in the criminal ones.