This article departs from the observation that terrorism, unlike ordinary crime, removes time, because when the attack takes place it is already too late : It is a defeat for the power and a test of our democracies. Therefore, ter- rorism also forces criminal justice to change its relationship with time. From here, the author starts his analysis of relationship between terrorism, time and criminal justice, in particular in terms of anticipation.
The decisions of the ECHR issued on May 31, 2018 in the cases Abu Zubaydah vs Lithuania and Al Nashiri vs Romania demonstrates once again, despite their public repercussions are rather scarce, the complicity of the EU states with a US anti-terrorist policy capable of challenging the prohibition of torture.
With a mechanism recalling the supranational blacklisting, the Italian law-maker introduced with Legislative Decree no. 90/2017 national measures of asset freezing aimed to prevent and fight financing terrorism. This is a new tool to trace the money trail which potentially crosses the Mediterranean Sea to finance ISIL or other terrorist organizations. This paper moves from analysis of the recent regulation and puts national asset freeze in the broader context of preventive measures with ban effect. Then, it focuses on its compatibility with the principles of domestic preventive system, highlighting the most critical issues: on the one hand, the justiciability deficit, on the other hand, the uncertain assessment of dangerousness. The lack of guarantees of listed persons pushes to wonder whether this domestic regulation has accomplished an adequate and lawful balancing between security and liberty.
Within the context of the controversial issue concerning the legal framework applicable to acts carried out during armed conflict, an authoritative decision of Section I of the Court of Cassation has identified a “hard core” of conduct that may be identified as “terrorist”, relying heavily on the classification of the victims of such armed attacks. Yet the conduct of foreign fighters, which falls into a gray area not entirely covered by case law or legislation, requires interpreting bodies to engage in new hermeneutic efforts to try and disentangle the overlaps between national criminal law, international law and humanitarian law. Against the backdrop of the continuing lack of any regulation of the issue of foreign fighters, comparative analysis of national court decisions thus presents itself as a useful tool for mapping out the emerging guidelines developed in this area by European case law.
This paper contains the introductory remarks to the 7th Training Course "Giuliano Vassalli" for PhD Candidates, held in Noto in 2016. The remarks are supplemented by references to the structure of the event and to the topics covered, which will be considered in the following contributions.
This introduction presents the criminal law matters concerning the fight against terrorism analysed in the following essays published in this review, which constitute the conference proceedings of the 7th Training Course on Criminal Law and Procedure "Giuliano Vassalli" for PhD Candidates organized by the International Institute of Higher Studies in Criminal Sciences (ISISC) in Noto, 11-13 November 2015.
If it’s true that “the human being is the focus of criminal law”, it’s equally undeniable that this formula, in a criminal law oriented towards the facts and the actual and offensive damage, may not be used to legitimize incrimination “a parte subiecti”. For this reason, with respect to a “context of incrimination” (dangerously) leaning towards the subjective side, it seems necessary to find some “remedial actions” which will allow for bringing this form of incrimination back to a dimension of objective disvalue. For crimes “with a terroristic scope”, the importance given to the only Intentionsunwert followed by the association of Article 270-bis of the Italian Penal Code, questions once again the systematic role played by so-called “specific intention”. Through the interpretation of the latter, indeed, it seems possible to fill the deficit of “objectivity” which, otherwise, would characterise the crime provided by Article 270-bis of the Italian Penal Code.
This article deals with the limits to terroristic hatespeech - in particular, the glorification of Islamic terrorism and incitement to jihad - in the Italian legal system. More precisely, the author describes how, in the case of public terroristic hate-speech, the balance between freedom of speech and prevention of terrorism is struck in criminal law and immigration law, underpinning, on the one side, the divergent assessment of the danger to the public order and state security for a person to be either criminally prosecuted or expelled; while on the other side, underpinning the divergent enjoyment of the right to a fair trial in case of, respectively, criminal prosecutions for public incitement to terrorism and administrative expulsion for terrorism prevention purposes.
The use of State secrets in criminal law proceedings and the risk of terrorist attacks bring us to examine the interpretation of Law no. 124 of 2007 offered by the Constitutional Court with respect to the well- known Abu Omar affair. The solutions provided have not persuaded those who, like the ECHR, believe that the protection of «inviolable» human rights should Always be granted, especially in connection with serious forms of crime. Human rights guarantees must not be restricted when they are needed the most.
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.