Spanish translation of G.L. Gatta, Covid Emergency and suspension of the statute of limitations for the crime, in Sistema penale, December 26, 2020
This article is part of the Inter-University Programme "Cultura de la Legalidad" (ON TRUST-CM) of the Community of Madrid
Statute of limitations is multifaceted and complex in itself and proves to be “polemogenic” whenever it emerges from the marginality in the law in action. This paper attempts to delineate the network of rationes that underpin the institution and the various needs that impose a prudent and ‘controlled’ use of it, then tracing the models of discipline deriving from the different combination of these “reasons” and “counter-reasons”, and then submit these models to a critical analysis that extends to the empirical data about statute of limitations in Italy, with a conclusive perspective on reform proposals. This confirms the indispensability of the institution, even (in some respects above all) during the trial, however it is clear the need for its careful calibration in consideration of State’s interest in punishment and of related individual and collective interests protected by criminal law.
L'epilogo del caso Taricco: l'attivazione 'indiretta' dei controlimiti e gli scenari del diritto penale europeo
The conclusion of the Taricco case, by virtue of the Constitutional Court recent judgment no. 115 of 2018, offers on the one hand the chance to analyse the dialogue between the Constitutional Court and the EU Court of Justice about the non-applicability - to the detriment of the accused person - of the domestic rules on the statutes of limitations. On the other hand, the said decision represents an occasion to reflect on the domestic and supranational evolution of the criminal law principle of legality as well as the need to avoid vagueness of criminal provisions
The statute of limitations in criminal law is a well-known legal concept worldwide; nevertheless, such an idea is nowadays controversial, not only under international criminal law – where it was abolished - but also at a domes- tic level, where statutes of limitations are often narrowed especially with respect to sex offences. The paper focuses on the said debate, investigating the theoretical and practical reasons of the statute of limitations, and exploring at the same time the legal nature of the concept.
In recent years some measures have been adopted in order to try to alleviate the impunity of crimes committed during the Spanish Civil War and Francoism (in particular, the so-called "Historical Memory Act" of 2007). Nonetheless, in the field of criminal law, the only existing resolution was the amnesty law of 1977, which left, among others, more than 100,000 cases of forced disappearances without punishment. In recent years, there have been various attempts to initiate criminal proceedings in relation to some of them. This work exposes the numer- ous obstacles that these attempts have faced, addressing issues such as the controversial recourse to the category of crimes against humanity in the legal qualification of the facts, the issue of statute of limitation or the extension of the amnesty, as much in the cases of enforced disappearances as in those of the so-called "stolen babies".
The statute of limitations in criminal law is a well-known legal concept worldwide; nevertheless, such an idea is nowadays controversial, not only under international criminal law – where it was abolished – but also at a domestic level, where statutes of limitations are often narrowed especially with respect to sex offences. The paper focuses on the said debate, investigating the theoretical and practical reasons of the statute of limitations, and exploring at the same time the legal nature of the concept.
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.
This paper examines the recent reform of art. 157, par. 6 of Italian Criminal Code enacted by the Law n. 68 of 2015, which doubles up the limitation period for any of the Environmental Crimes established in Title VI bis. Its approach focuses on a sound analysis of legal, political and systematic meanings and implications of the new provision, as well as on to what extent there are plausible reasons to justify the reform. What emerges raises serious doubts concerning the usefulness of the current regime, in the light of scope of the reform and the main features of the new environmental crimes. It is questioned as well the consistency of the new provisions with the broader area of environmental protection under criminal law, also in the perspective of the scrutiny on reasonableness by the Constitutional Court.
Criminal Procedure and Limitation Period’s Provisions Within the Framework of Eu Jurisprudence. Inter-Systemic Dialogue or Identity Conflict?
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.