With the permission of Giuffrè publisher Francis Lefebvre we anticipate below the abstracts of papers published in the latest issue of the Italian Journal of Criminal Law and Procedure (No. 1/2024).

LEGAL THEORY

ARTICLES

Kostoris R.E., The impact of european law in national criminal justice: the interweave between a law by rules and a law by principles in criminal proceedings, p. 3 ss.

This article focuses on an aspect that is usually marginal in the analyses of the interactions between domestic and European law in the field of criminal justice, namely the fact that such interactions imply an intertwining between a rule-based law, which characterizes domestic law in civil law countries, especially in Italy, and a principle-based law, which, conversely, characterizes European law. Such interweaving causes several consequences, thereby reminding that European law (including EU law but also, albeit in a different way, the ECHR case law) prevails over domestic law.

Riccardi G., Prosecution duties and statement of reasons. Content and limits, between Criminal Procedure Code and Constitution., p. 21 ss.

The constitutional obligation to state the grounds for any ruling only concerns the jurisdiction strictly speaking and not the prosecution function, because the latter does not carry out any actual judicial activity. However, while the obligation laid down in Article 111 of the Italian Constitution is not relevant, in a system based on "procedural legality" as well as on the mandatory nature of criminal proceedings, an implicit constitutional obligation to state the grounds for any ruling still exists also for the public prosecutor. In fact, the statement of grounds fulfils a twofold function: one is intra-procedural and aims at justifying a given measure, while the other is non-procedural and serves as a form of external democratic control of the public prosecutor’s activity. Thus, the statement of grounds lies between the requirement imposed by the Code of Criminal Procedure and the obligation set out in the Constitution. Therefore, it is important not only for the purposes of effectiveness but also in terms of democratic legitimacy. Finally, the contents and limits of the statement of grounds varies depending on the different steps of the criminal procedure where the public prosecutor plays a key r ole.

Helfer M., For an enhanced fine in the legal system. A look at the German and Austrian experience, p. 45 ss.
In Italy, consistent efforts to reform the criminal sanction system have been made for many years. The main objective is to reduce the use of imprisonment, especially for short sentences. Its criminogenic and de-socializing effects on the offender highlight its frequent incompatibility with the aims of special prevention and re-education. Among the alternatives to imprisonment, recently identified in the Cartabia reform (Italian Legislative Decree No. 150/2022), special attention is paid to fines. Such sanctions could serve as a fair and proportionate reaction to minor and minor-medium offences, always provided that their effectiveness is guaranteed. Indeed, much r emains to be done in this regard, considering the currently very low rates of fine collection. Against this background, this article examines the experiences of Germany and Austria. Although fines are clearly associated not only with advantages b ut also with shortcomings that are not always easy to resolve, in both countries they have proved to provide a valuable alternative to imprisonment, both in theory and in practice. In this respect, both the legislative choice to set the fine according to a system of daily rates, on the one hand, and the availability of measures to ensure its enforcement, on the other hand, are crucial. Thanks to the combination of these two aspects, fines prove to be effective sanctions, thereby strengthening the entire system of criminal sanctions and increasing public confidence in criminal justice.

Andolina E., Statements Made before Authorities other than Criminal Law, p. 71 ss.

New prospects for the protection of the right to silence, be yond the traditional confines of criminal proceedings, are opening up as a result of the circular dialogue taking place among the European Courts on the subject of "market abuse”. Similarly to the teleological- substantial approach implemented by the Italian Constitutional Court with judgment No. 84 of 2021, both the current risk of incurring in a substantially punitive sanction and the potential risk of self-incrimination related to the circulation in criminal courts of confessions obtained in administrative proceedings become the justification for the extra-criminal extension of the right not to incriminate oneself. However, pending the necessary intervention of the nomothete, uncertain scenarios are arising. The expansive effect of the principle of “nemo tenetur se detegere”, correlated to the anti-formalistic re-interpretation of the concept of proceedings and the transition to a dynamic notion of criminal matters, remains exposed to the physiological evaluative fluidity of the case-law formant, as well as to the fluctuations showed by the Constitutional Court itself.

Ciampi S., Never-Ending Story: Reflections on the Filing of New Accusations at Trial, p. 89 ss.

Over the last thirty years, Articles 516-522 of the Italian Code of Criminal Procedure regulating the filing of new accusations at the trial stage have been declared to be unconstitutional by the Italian Constitutional Court on several occasions and have led to Italy’s conviction by the European Court of Human Rights. Moreover, in keeping with the recent case law of the Court of Justice of the European Union, these provisions can be disapplied by any national court due to the direct effect of Article 6 of Directive 2012/13/EU. Based on these premises, the so-called Cartabia Reform rightly establishes that, when new accusations are filed, new time limits are set for the defendant to request new evidence be admitted and the case be heard in special proceedings. Nevertheless, from an overall perspective, the Reform has an extremely limited scope, since it has neither addressed nor resolved most of the critical issues that still plague this topic, and which are at the heart of this paper.

Bianchi D., Restorative Justice and Criminal Justice System: a Complex Intercultural Dialogue, p. 121 ss.

Since the Cartabia Reform has placed restorative justice at the center of the criminal matter, it has become urgent to get familiar with a paradigm rich in potential (and humanity) but in itself alien to the structures, mechanisms, and essence of punitive law. This paper, after a brief survey of the main roots of the restorative justice model expressed by Legislative Decree No. 150/2022, analyzes its relation to the fundamental dimensions of the criminal justice system. What emerges is the need for a harmonious relation between the two justice systems that can connect them without distorting them into risky intermingling. Although the substantive part of the reform seems globally adequate to meet this basic need, the procedural regulation raises more than one perplexity. Certainly, there is much work to be done: firstly, seeking interpretive solutions that can foster a sound complementarity, safeguarding at the same time the synergies and the mutual autonomy and irreducibility of the two different socio-legal microcosms

Note a sentenza

Pelissero M., Strictness of the law and complexity of interpersonal relationships: the fragility of limits to balancing judgements of the circumstances in the face of individual vulnerability., p. 161 ss.

The finding of constitutional illegitimacy of the partial block in the balancing judgement provided under Article 577, paragraph 3 of the Criminal Code is the result of the Court’s focus on prioritizing the specificity of concrete events over choices of criminal policy based on deterrence. The recognition of the legislator’s discretionary power to regulate the calculation of the circumstances cannot lead to outcomes that are in conflict with the constitutional principles that govern the power to determine the penalty depending on the objective and subjective disvalue of the offence. The reasonableness of the rules on derogation from the general discipline of Article 69 of the Criminal Code is newly disproven by the judgment under review which emphasizes the vulnerability of the offender rather than that of the murder victim and opens up broader questions on the relationship between the power of fair determination of the penalty, the circumstances of the crime, and choices of criminal policy which, due to their rigidity, may fail to grasp the complexity of real life situations.

Amarelli G., The united Sections expand the specific intent in the crime of theft: a case of crypto-analogy in malam partem with unreasonable effects?, p. 179 ss.

The Supreme Court sitting en banc recently dealt with the definition of ’specific intent’ in theft cases. The Court broadened the meaning of ’profit’ under Article 624 of the Criminal Code to include non-monetary gains. This interpretation is in line with the principle of legality, but raises concerns. One of them is the uneven application of this extended definition to similar offences such as robbery and receiving of stolen goods, compared to theft of use or access to computer systems. This selective approach could produce unreasonable consequences by criminalizing situations that were not originally meant to be regarded as theft.

Quattrocolo S., Issues always come to light. A comment to the Italian Constitutional Court decision no. 192/2023 , p. 196 ss.

The paper focuses on the decision delivered by the Italian Constitutional Court, in the case about Giulio Regeni’s death. The ruling comes to amend the brand-new scheme of in absentia trials, passed with the legislative decree no. 150/2022. A new ground for legitimate in absentia trial was added by the Constitutional Court. It allows courts and judges to proceed against defendants, whom were not regularly summoned, if the flaws in summoning depend on a foreign State’s reject to cooperate.

Vitarelli F., Proportionality of the penalty and legal certainty of the offence in relation to the crime of illegal recruitment and labour exploitation, p. 215 ss.

The aim of this article is to critically analyze a recent decision of the Supreme Court of Cassation in which the Court examined two questions of constitutionality of the crime of “illegal recruitment and labour exploitation” under Article 603-bis of the Criminal Code which the defendant had requested to be raised before the Constitutional Court. The first question relates to the proportionality of the penalty provided for against the employer in Art. 603-bis of the Criminal Code compared to the penalty provided for the crime of “recruitment of irregular migrants in conditions of particular labour exploitation” under Article 22(12) and (12-bis)(c) of Legislative Decree No. 28 of 25 July 1998 (Consolidated Law on Immigration, also CLI), which is considered “substantially similar” but less severely punished; the second question relates to the alleged violation of the legal certainty of the offence due to lack of precision and clarity in the formulation of the exploitation indicators listed in the third paragraph of Article 603-bis of the Criminal Code. The Court of Cassation rejected both questions, but the arguments put forward in the judgment provide important food for thought on the scope and interpretation of Article 603-bis of the Criminal Code.

COMMENTI E DIBATTITI

Camaldo L., Artificial intelligence and predictive criminal investigation , p. 233 ss.

The author analyses the increasingly widespread and frequent use of artificial intelligence in criminal investigations, with a special emphasis on predictive policing systems, based on the localization of crimes or on individual criminal seriality. The problematic issues related to these new technologies and to biometric identification software and facial recognition programs are highlighted, taking into account the recent regulations.

Caneschi G., Artificial intelligence and Prison System, p. 251 ss.

The fascinating perspectives of using artificial intelligence in criminal justice cannot exclude those concerning its use in the enforcement phase. Therefore, this article analyzes the developments and future implications of artificial intelligence in the penitentiary sector, where its use — especially in non-European countries — is already quite widespread. Although the critical issues of the Italian penitentiary system that deserve to be addressed by urgent and immediately impactful reformatory interventions are f irst and foremost those relating to the inhumane conditions of detention, the analysis on the potential use of advanced technological tools is both a source of inspiration for potential solutions to make this phase more efficient and an opportunity to reflect on the effects that, if introduced, such innovative means could have on the fundamental rights of persons held in custody.

Vasta V., EU law and artificial intelligence. Effects on criminal proceedings, p. 271 ss.

This paper identifies the impact of EU law on artificial intelligence on criminal proceedings, taking into account the ongoing work on the approval of the so-called AI Act.

Fragasso B., Artificial Intelligence and the Crisis of Result Crimes: an Analysis of Criminal Liability for AI Systems Manufacturers, p. 287 ss.

Over the last thirty years, criminal law scholars have persistently remarked the complexity of ascertaining result crimes, because of the systemic, globalized, and uncertain technological phenomena that characterize post-modernity. The development and commercialization of AI systems may raise new challenges concerning this issue: the inherent unpredictability of AI outputs could threaten the classical mechanisms of attributing criminal liability for harmful events, which rely on the ability to control the sources of risk. This paper will explore the scope and limits of acceptable risk, as well as the opportunity to introduce offences that sanction the improper design, operation, and testing of AI applications, regardless of whether the event occurs because of the breach of the duty of care.

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Further contributions in the volume of the Review, in addition to the usual reviews of constitutional jurisprudence and supranational criminal justice, include reviews of the following monographs in the Bibliographical Review:

Ferraresi M., Seminara S. (a cura di), Caporalato e sfruttamento del lavoro, Adapt University Press, Modena, 2022, pp. 464 e Ferraresi M., Seminara S. (a cura di), Caporalato e sfruttamento del lavoro: prevenzione, applicazione, repressione, Adapt University Press, Modena, 2024, pp. 378. (Maria Giovanna Brancati)

Fornasari G., Pasquino T., Santucci G. (a cura di), Il principio di autoresponsabilità nella società e nel diritto, Atti del Convegno – Trento, 16 e 17 settembre 2022, Editoriale Scientifica, Napoli, 2023, pp. 207 (Gabriele Civello)

Giannini A., Criminal Behavior and Accountability of Artificial Intelligence Systems, Eleven, The Hague, 2023, pp. 285. (Beatrice Panattoni).