The supranational organizations and the European Union Member State legislators are carrying out thorough reform measures on the current rules in the fight against terrorism. This article analyses the counter-terrorism criminal law sources of the United Nations Security Council, the Council of Europe, the European Union and of some “Model States” in order to highlight the reciprocal and circular relationships between these sources. In particular, this article stresses how national rules have an “inverted effect” on the European instruments of harmonization adopted and being adopted in the field of terrorism.
The legislative provision of a reward to the penitent terrorist for collaborating with the justice system was an essential part of the so-called differentiated strategy conceived during the “years of lead”. This strategy is still present in the Italian antiterrorism system, although its points of contrast with a “constitutionally oriented” criminal law were fully outlined from the beginning. With regard to the contemporary context, on the one hand, the new criminological dimension of terrorism is a testing ground for the utility of the reward scheme; on the other hand, in terms of legitimacy, the trend toward a “enemy” model in the antiterrorism legislation may lead to new setbacks. The politicalcriminal rationality of the differentiated strategy risks being thrown into crisis by the lack of supranational harmonization, despite the transnational character of the terror threat. From a systematic point of view, recourse to the reward technique is legitimized as an exceptional means within the war on terror or similar criminal “emergencies” rather than when it extends indiscriminately to the entirety of criminal matters.
The extradition procedure is governed by ad hoc Conventions on extradition and by suppression conventions on terrorism offences. However, the procedure may become inapplicable if it is incompatible with the obligations to protect human rights. This article will consider such cases with a special focus on violations of Article 3 ECHR, on the prohibition of torture or inhuman or degrading treatment.
Article 25-quater was introduced into the system outlined by Legislative Decree No. 231/2001 through Law No. 7 of 14 January 2003, to implement supranational obligations, which required the recognition of forms of liability even for legal persons in the broader framework of the fight against terrorism. The fact that this provision has never been applied – in spite of the current escalation of the terrorist threat on a global scale – raises questions about its function and effectiveness for the purposes of the “Decree 231". Shifting from the acknowledgement of supranational sources of reference, this article focuses on the major issues of interpretation raised by the provision, aiming at highlighting the friction with the principle of legality and with the objective criterion (the “interest” or the “benefit”) for the attribution of liability, showing in the meantime the significant impact on the construction of compliance programs.
This paper contains the final report of the 7th Training Course "Giuliano Vassalli" for PhD Candidates and young criminal law specialists, held in Noto in 2016. It reports the main issues discussed in Noto arising in relation to the new Italian anti-terrorism legislation recently enacted in order to comply with international law, which provides for earlier criminal responsibility for preparatory acts and inchoate offences through the criminalisation of specific intent in addition to criminal conspiracy. The article also considers procedural law aspects and concludes that, although it is necessary to bring the criminal system into line with the new challenges of terrorism, it is still essential to respect the fundamental guarantees resulting from the principle of the rule of law.
When assessing the purpose of terrorism, a judge has to solve a series of interpretation issues. This article aims to examine the difficulty of qualifying conduct as terroristic by analysing the content of the domestic provisions and discussing some of the most significant case law. In order to illustrate the complexity of rules within which a judge must act, the opinion recently delivered by Advocate General of the European Court of Justice, in the case A. and a v. Minister van Buitenlandse Zaken provides an opportunity to reflect on the highly disputed question of the distinction between acts of war and acts of terrorism and on consistent interpretation as a tool for resolving antinomies.
The global nature of international terrorism and the means of which it uses, in particular, the Internet, requires us to rethink disciplinary issues with an essentially supranational view. This article uses a comparative law method to examine the rules and regulations dictated by the Italian legislature for implementing international policies regarding the issue of training for the purpose of terrorism. This study provides an opportunity to reflect upon the strains faced by "classic" criminal law against the pushed for anticipation of punishability for conduct which is purely premonitory in which the risk of taking on an excessive consequence as opposed to actual intent arises. The severity of the threat has prompted the legislature to increasingly anticipate punishments with the risk of affecting socially neutral conduct and the consequential loss of the selective capability of the criminal law. This interventional frenzy connected to the emotionalism of the moment often effectively impacts on the yearned for harmonization of the various national legislations, an unfailing prerequisite for the effective enforcement of counter-terrorism strategy. The interpreter's task in these moments of crisis is, therefore, to ensure that the prevailing rhetoric on the need for monitoring does not end up sacrificing a disproportionate amount of freedom in the name of a security that sometimes turns out to be, in reality, only illusory.
Il lavoro analizza gli aspetti di diritto penale sostanziale della recente normativa in materia di terrorismo, ponendone in evidenza, in particolare, alcuni profili gravemente problematici in rapporto alla conformità ai principi costituzionali di determinatezza ed offensività.