Rivista italiana di diritto e procedura penale n. 2/2021

Abstracts - English

Con la autorización del editorial Giuffrè Francis Lefebvre adelantamos los abstract en inglés de los trabajos publicados en el último número de la "Rivista italiana di diritto e procedura penale" (n. 2/2021)

 

LEGAL THEORY

ARTICLES

Dolcini E., Punishment in the Italian Legal System, between Repression and Prevention, p. 383 ss.

The subject of this essay is the eternal debate on the theories of punishment: retributive theories and preventive theories, both addressed in the philosophical as well as in the legal literature. Among the philosophers, the Author quotes Kant, Hegel, Seneca, Plato, Beccaria and other leading representatives of the Enlightenment; among the criminal lawyers, he “gives voice” to Carrara, Manzini, Bettiol and Vassalli, the latter being the author to whom we owe the comprehensive development of a further theory of punishment (often designated as “multi-functional”). The attention of the Author then shifts to the case law of the Italian Constitutional Court, which, for a considerable period of time, endorsed the multi-functional theory, only to provide significantly different versions over time, until, starting from 1990’s, it finally took a distance from such theory. In the final part of the essay, the Author offers a theory of punishment that is mainly focused on the Constitution as a whole and on the principle of the rehabilitation of the offender in particular, of which the Author shows the impact on the different phases of the punitive dynamics.

Padovani T., The Italian Corporate Liability Law in the Transnational Space, p. 409 ss.

This article explores the jurisdiction provision of Italian Legislative Decree n. 231 dated 6 June 2001 (statute on corporate liability), with specific reference to the case of a territorial offense committed by a senior manager or employee of a foreign company (without a principal place of business in Italy). Upon making a critical analysis of the extraterritorial application of the domestic law on corporate liability, the Author offers a different solution, one that is consistent with the general rule on conflict and with the need to sanction organizational misconduct.

Seminara S., “Accessorietà” and “Fattispecie plurisoggettiva eventuale” in Participation in Crime. Considerations about the Meaning of a Dispute in Doctrine, p. 421 ss.

The concept of participation in crime is today mainly examined on a practical level, to individualize punishable acts of participation. Less interest is instead given to the theoretical profiles, regarding the mechanisms of determining the violated rule and the attribution of the act of participation. As far as these aspects are concerned, since the end of the 1950s, the theory of the “fattispecie plurisoggettiva eventuale” (fact of several participants in crime vs. accessoriness-theory) has been predominant in doctrine. In this article, a critical reflection on the state of the question is proposed.

Mazza O., Immediacy and Health Crisis, p. 461 ss.

The principle of immediacy is going through a profound crisis, exacerbated by the current health emergency. There are many causes underlying such crisis and they are intertwined with more or less explicit plans to implement a counter-reform of the adversarial procedure.

Morelli F., The Principle of Immediacy and the Right of Defense, p. 477 ss.

The principle of Immediacy is considered to be an important operating means to support the gathering of oral evidence in the Italian criminal procedural system, but it is often not identified as a constitutive element of the adversarial method. In this essay, the Author analyses Immediacy in the context of the adversarial system and oral evidence gathering without Immediacy. The conclusion is that the adversarial method is seriously hindered if the judge ruling on a case is unable to have a direct contact with the oral evidence when it is given in court. In conclusion, the evidence-gathering hearing held before trial does not provide oral evidence merely lacking in Immediacy, but it is an actual exception to the oral method and, for such reason, it needs to be governed by the provisions of art. 111 paragraph 5 of the Italian Constitution.

Centorame F., High-Tech, Potentially Highly Intrusive Criminal Investigations between Investigative Needs and the Sacred Inviolability of Human Rights, p. 499 ss.

The exponential growth in the use of technological instruments for conducting criminal investigations, which are governed by an uncertain regulatory discipline, especially with regard to the prohibition to use spy software for the purpose of searching for evidence, is likely to disproportionately restrict the fundamental rights involved in the investigative action. As a consequence, the delicate balance between the needs of an investigation and the protection of the guarantees of individuals ultimately depends, on a case by case basis, on the sensitivity of the individual judge. This has obvious repercussions on the constitutional protection of the reinforced inviolability of the above-mentioned guarantees.

Serraino F., The Issue of Criminal Liability for growing Narcotic Plants relating to the Principles of Harmfulness and Reasonableness, p. 525 ss.

The issue of criminal liability for growing narcotic plants can be seen as an interesting opportunity to evaluate the interaction, on an interpretative level, between the principles of harmfulness and reasonableness, to be understood as a criterion for balancing conflicting values. The Author examines two opposite interpretation pathways followed by the case law to exclude criminal liability for the so-called  small “domestic” growing of narcotic plants. The first pathway consisted in challenging the constitutional legitimacy of Article 75 of Italian Presidential Decree n. 309/1990 because it doesn’t include, among administrative offences, the minimal growing of narcotic plants for personal use. The second pathway consisted in excluding any criminal liability because of the actual lack of harmfulness of any individual case of small cultivations. Upon providing a brief overview of the case-law evolution on this topic, the Author critically analyzes the judgment rendered by the Italian Supreme Court ruling in chambers n. 12348 of 19 December 2019, which excluded any criminal liability, because of lack of typicality, for  small “domestic” cultivations, using rudimentary techniques and involving a small number of plants to obtain a very modest quantity of active substance.

Caneschi G., The European Court of Justice on the Right to Silence: a First Step towards “Fair” Punitive Administrative Proceedings, p. 561 ss.

While the dialogue among Courts is becoming increasingly more fruitful in the domain of protection of human rights, this leads to believe that it has by now become inevitable to acknowledge an adequate standard of procedural guarantees also in administrative punitive proceedings. The European Court of Justice seems to move in this direction as it has granted the right to silence in proceedings concerning administrative offences that may result in the enforcement of substantially criminal sanctions, according to the well-known definition based on the Engel criteria.However, such opening should not be deemed to imply the authorization — as a result of that very protection — to use, for evidentiary purposes in the criminal trial, any statement made during the administrative phase.

Filindeu M.T., Neurosciences and the Mental Element of a Crime: some Remarks on Intent, p. 603 ss.

Nowadays, modern neuroscience provides a testing ground for culpability as a criminal law category. In the wake of the fierce debate on the impact of neuroscientific advances on criminal liability, this paper analyzes the relationship between these new sciences and the notion of intent. Building on the case law, this essay first examines the challenges posed by the use of neuroscience-based techniques during trials. Then, it explores the actual contribution of neuroscientific evidence to establishing intent and questions whether such criminal-law concept should be reviewed. In conclusion, the required balance to be found between the needs of rationality and autonomy of criminal law indicates that it is preferable to assign an ancillary role to neuroscience and drop the idea of redesigning the concept of intent based on neuroscientific data.

CASES AND COMMENTS

Risicato L., The Reluctant Unconstitutionality of Life Sentence without Review: Some Remarks on Decree n. 97/2021 of the Italian Constitutional Court, p. 653 ss.

On the access to conditional release by non-cooperating prisoners serving a life sentence without review, the Italian Constitutional Court resorts, for the third time in three years, to the questionable decision-making technique of deferred unconstitutionality. In the first part of the decree, making reference to its own direct precedents and to the case law of the ECHR, the Court reiterates the need to combine life sentences with the rehabilitation purpose of punishment through the actual “reducibility” of all types of life sentences and the elimination of any absolute presumption of danger. The hesitation, which conversely leads to freeze the legislation in question, arises from the alleged indisputability — already undermined by this decree — of the legislator’s reasonable political-criminal choices concerning the fight against organized crime. The sensitive nature of the matter at hand shows how the technique of deferred unconstitutionality can only be used in criminal law with very high costs in terms of legal certainty: the cost of such constitutional “limbo” will be paid by all those who will find themselves in the conditions envisaged by the referring court, in an exhausting wait for an opening that allows the supervisory judge to evaluate the effective degree of their dangerousness or for an intervention by the Parliament in order to adjust the discipline to the indications suggested by the Court.