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.
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 discussion on the reform of the statute of limitation has introduced the proposal to move the dies a quo from the tempus commissi delicti to the moment of the criminal report. This would be a paradigm shift compared to the traditional model: the crime remaining unknown prevents the realization of the conditions necessary for its prescription, regardless of characteristics such as seriousness and persistent interest in punishment. The proposal to definitively block the statute of limitation during the proceeding is based on serious reasons: it would avoid the limitation of crimes which are theoretically subject to it; but even this rule would only offer few guarantees, and it may have a negative impact on the reasonable duration of the proceedings.
This article examines the fundamental characteristics of the comprehensive reform of criminal law proposed by Minister Orlando and currently under examination at the Senate. This reform should have an impact on many institutions of substantive criminal law – e.g., the extinguishment of a crime due to preparatory conducts and especially the statute of limitations for a crime – as well as on a number of procedural criminal law standards, which share the aim to make procedural developments more effective, even by means of a stricter deadline system for the different turning points.
Statutes of limitations are a very salient topic in our Country, where a great number of criminal proceedings unfortunately end up being statute barred. This paper critically reflects on the recent tendency – now even more viable in light of the well-known Taricco judgment - to extend statutes of limitations in order to avoid such an outcome, which is certainly not desirable. In particular, it examines the protective nature and the liberal foundation of prescription, and puts the emphasis on the need to speed up criminal proceedings, rather than stretch the length of limitation periods as a non-thought out reform would recommend. Such a choice would in fact result in an even slower criminal justice, with late compensation for the victims of the crime and interventions that are not always able to rehabilitate the convicted, causing negative effects even on the economy the state. Therefore, in the light of recent judgments of the Constitutional Court, there is hope for targeted interventions on procedural criminal law, on regulated directions and also on the substantive criminal law able to affect the unsustainable length of Italian criminal proceedings.
The questions of constitutionality raised by the European Court’s in Taricco have to be evaluated under two points of view: as questions of domestic law (would a “Taricco law” be considered constitutional?), and as questions of limits that could be opposed to the reception of a European law principle. Under both points of view, the judgment raises important questions on the evaluation of the functional adequacy ot the power, conferred to the national judge by the European Court, to disapply in malam partem the rules concerning the interruption of the limitation period. The penal principle of legality and the principle of judge subjection to the law are what is at stake here.
The referral orders submitted to the Italian Constitutional Court, with the aim of avoiding the application of the judgment Taricco by the Court of Justice of the European Union, trigger challenging questions related to the fundamental principles of the Italian Constitutional order. This contribution is based on the assumption that not all those legal tools that are somehow connected with the fundamental principles of the constitutional order are to be considered as limits to the principle of primacy of EU law. On the contrary, only the essential core of these principles may resist against the principle of primacy of EU law. Following from this consideration, the contribution analyses the statute of limitations, exploring the possibility – on the one hand – to include this legal institution under the umbrella of the constitutional principle of nullum crimen sine poena sine lege, enshrined by Article 25 of the Italian Constitution, or – on the other hand – to consider the statute of limitations as a mere accidental manifestation of this principle and thus not in its essential core.
The principle of the primacy of EU law is fundamental to the European legal structure, but it isn’t easily established when confronted with the national criminal legal systems, ruled by the principle of legality and generally by constitutional principles concurring to form the member states’ national identity itself, something that the Union must respect. A prime example of these difficulties is the case of the obligations imposed by the Court of Justice in Melloni, which found the Spanish “Tribunal Constitucional” faced with the choice between accepting a limitation to its constitutional right to a fair trial in deference to the application of the European arrest warrant, or taking a position against the judges in Luxembourg. Or those imposed by the Court of Justice in Taricco, which is currently under review by the Italian “Corte Costituzionale”, and whose sustainability against the founding principles of the Italian constitutional identity is specifically examined in this article.
Con la sentenza n. 49/2015 la Corte costituzionale italiana è tornata sul rapporto fra diritto interno e CEDU. Il seguente contributo cercherà di contestualizzare questa decisione in un quadro più ampio di diritto comparato, grazie alla nozione di “disobbedienza funzionale”.
La Corte costituzionale, nella sentenza n. 49/2015, pur dichiarando inammissibile la questione di legittimità della confisca senza condanna, ha recepito l’esigenza di pienezza dell’accertamento dei presupposti della responsabilità. A ciò consegue l’esigenza di un contraddittorio processuale pieno. Senza risposta è rimasta l’eccezione in malam partem sollevata dalla Corte di cassazione, che ha invocato (capovolgendone il senso) una serie di principi costituzionali come controlimiti rispetto a garanzie liberali poste dalla CEDU.