Con l'autorizzazione dell'editore Giuffrè Francis Lefebvre anticipiamo di seguito gli abstract in lingua inglese dei lavori pubblicati nell'ultimo numero della Rivista italiana di diritto e procedura penale (n. 3/2024).

LEGAL THEORY

ARTICLES

Zanon N., Violence against Persons deprived of their Liberty: the Preliminary Work for Article 13, Paragraph 4, of the Italian Constitution., p. 901 ss.

This paper analyses the preliminary work for Article 13(4) of the Italian Constitution, which punishes all physical and moral violence committed against persons deprived of their liberty. It finds its original inspiration in the dispute against the past regime and shows its effectiveness as a direction for future legislators. In light of the wording of Article 13(4), which introduces a specific constitutional obligation of criminal punishment, this paper ultimately highlights the exceptional nature of the provision, and raises doubts as to whether other legal interests may indeed benefit, in the absence of clear constitutional indications, from the same treatment.

Bartoli R., The Judge’s Constraints on Legality and the Principles Governing the Dynamics of Interpretation, p. 923 ss.

The Author analyzes the two most hotly debated issues of legality today, namely the definition of hermeneutic rules and the identification of principles governing overruling in malam partem. As to the former, starting from an analysis of the types of cases included in the case-law, an attempt is made to move away from the juxtaposition between literal interpretation and teleological interpretation through a reasonable combination thereof. As far as the latter is concerned, the need to apply the principle of non-retroactivity of unfavorable law to cases of overruling in malam partem is strongly asserted, given that the person has relied on the lawfulness indications provided by the legal system and cannot be made to bear the responsibility for a change that, conversely, is entirely attributable to the legal system.

Siracusano F., The Electoral Political-mafia “Pact” between Aiding and Abetting by Outsiders, Article 416-ter of the Italian Criminal Code and Aiding and Abetting by Insiders, p. 961 ss.

Apparently, a new chapter is being added to the “never-ending story” of the type-based categorization of the “act” committed by an aiding and abetting outsider, in the typological case of the political-mafia electoral “pact”, as the requirement of “availability” is understood to be an element of the typical offense and not mere conclusive evidence. This “indicator of participation from inside”, which features a symptomatic-indicative nature, would affect the inevitable interactions between “act” and “evidence”, thus causing a configuration of the offense not in terms of instantaneousness or, in some hypotheses, of “possible” permanence, but in terms of actual and “necessary” permanence; through the unavoidable proceduralization of the “act” committed by the aiding and abetting outsider without complying with regulatory limits and jurisdictional constraints. As a matter of fact, such limits and constraints can be identified in a “clear” and “precise” charge, as part of adversarial proceedings between the parties, and in the grounds of the judgment. This way, only with the jurisdictionalization of the “act” could the real and “categorical” contents of the criminal offense type be determined, as compared to a criminal offense that is genetically affected by a lack of legal certainty.

Del Giudice A., The New European Asset Recovery Directive. Innovations, Implications, Perspectives, p. 1011 ss.

Tracing, freezing, and confiscating criminal assets is still one of the Union’s strategic priorities, especially in view of the fact that crime — especially organized crime — is increasingly inclined to exploit the web, technologies, and the advantages associated with the dematerialization of wealth to do business also in the cyber-space. Although the European institutions have repeatedly intervened on the matter, the laws of the Member States still appear inadequate to effectively combat old and new forms of illegal enrichment. Therefore, the recent Directive 2024/1260/EU, instrumental to reinforcing mutual recognition as set out in Regulation 2018/1805/EU, promotes the planning of a national strategy for asset recovery; it introduces several provisions aimed at enhancing the abilities of the competent authorities to trace, identify, freeze, confiscate, and manage assets; it expands the scope of application of non-conviction-based confiscation for the recovery of unexplained wealth; it extends the asset recovery system to crypto-assets; nevertheless, it fails to take into account the distinctive characteristics of the cryptocurrency market, which would require an ad-hoc regulatory framework. The judgment (albeit summary) on the new legislative intervention could be summarized as follows: laudable (political) objectives “translated” inadequately.

Prandi S., Unenforceability through the Prism of Negligence, p. 1035 ss.  

The idea of “inesigibilità” (unenforceability, namely when someone fails to fulfil a legal duty due to a personal incapacity that excuses them) is a concept that has been rarely investigated by Italian legal scholars. Nonetheless, it takes on a great significance in its relationship with the realm of negligence, being referred to in various distinct senses: as impersonal foundation for the duty of care reconstructed on the basis of the standard of homo eiusdem condicionis et professionis, as a limit to the knowability of the precautionary rule, and, lastly, as a true excusing condition for any agent who, in a given situation, was unable to comply with the legal requirements. Moreover, the importance of this concept is increasingly associated with the gradualist dimension: the emphasis on gross negligence as a limit of criminal offenses ends up giving prominence, within the judgment on the degree of negligence, to this factor amongst the others. This essay focuses on the various dimensions of the notion of unenforceability in an attempt to draw some boundaries and focusing on a critical analysis of the relationship between this concept and the degree of negligence: while pairing those ideas offers major advantages, it also reveals some significant risks, exacerbated by the experience of emergency shield provisions introduced during the Covid-19 pandemics and immediately thereafter.

Note a sentenza

Consulich F., Medically Assisted Suicide and the Temptation of Overruling: the Ambiguous Meaning of Life Support Treatments, p. 1071 ss.

Once again, the Constitutional Court addresses the delicate issue (set out in the well-known judgment No. 242 of 2019, together with the previous judgment No. 207 of 2018) of defining the conditions under which medically assisted suicide is legal. In a matter of a few years, the requirements outlined by the Court have gradually been perceived as unreasonably selective by some interpreters. The most debated of them is the patient's dependency on life-saving treatments: it is precisely this expression that is interpreted, in the decision under discussion, in a particularly broad and progressive manner, to the point that it suggests that the Court's room for maneuver regarding end-of-life regulations has now come to an end. From now on, any new intervention on this matter can only be conducted by the legislator by exercising its political discretionary powers.

Gabrielli C., Dismissal Due to the Minor Nature of the Offence ordered by the Investigating Judge: Is It Really Illegitimate if Potential Opponents Do not Object?, p. 1102 ss.

Faced with a motion to dismiss due to groundlessness of the notitia criminis, an investigating judge decided that he could not order the dismissal for the particularly minor nature of the offence at the end of the hearing in chambers. This decision was made even though neither the person under investigation nor the victim of the crime opposed such outcome because the judge felt bound by an opposite position taken by the Supreme Court. Questioning the legitimacy of this prevailing legal interpretation, especially with regard to the constitutional principle of reasonable duration of the trial, he referred the matter to the Constitutional Court, which found the issue to be groundless by emphasizing the element of lack of opposition by the potentially affected parties and excluding that the above-mentioned ruling posed an obstacle to the dismissal under Article 131-bis of the Italian Criminal Code. At the same time, the Author argues that the issue raised is inadmissible due to lack of relevance.

COMMENTI E DIBATTITI

Bruti Liberati E., Judges and Prosecutors in the Italian Constitutional Framework and in
the Draft Laws currently debated, p. 1115 ss.

In the Italian constitutional framework, both judges and prosecutors are considered to be members of the Judiciary, which the Constitution defines as a “system that is autonomous and independent from any other power.” The draft laws currently debated proposing a “separation of careers” are presented as aimed at strengthening the adversarial features of our criminal procedure. But a “truly adversarial system” is something that only exists as an abstract model, while the effectiveness of the right to a fair trial (art. 6 ECHR) can be ensured in different ways, all equally inspired by the principles pertaining to the Rule of law. In the current Italian situation, there is instead an actual risk that the proposed reforms may pave the way to a weakening of the principle of prosecutors’ independence from the executive power.

Orlandi R., Short Reflections on a Recent Proposal for Constitutional Review of the Judiciary System in Italy, p. 1149 ss.

The author critically examines the proposed constitutional amendment aimed at separating the role of the judging and of the prosecuting branches of the judiciary. This is an issue that has divided the Italian criminal judiciary from politics and the legal profession for years. The aim of the proposed reform is to adapt the structure of the judicial system to the postulates of a “fair trial.” More specifically, the legislative proposal is characterized by the duplication of the High Council for the Judiciary, so as to ensure a strict separation of the judicial roles (judge/prosecutor) and by the establishment of a High Disciplinary Court, which is intended to replace the current disciplinary section of the High Council for the Judiciary.

Zanon N., “Towards Separating and Drawing Lots?”, p. 1161 ss.

This essay analyses the constitutional reform bill regarding the judicial system. While starting from a position supporting the separation of careers between judges and public prosecutors, it criticizes the proposal to establish, for this purpose, two separate High Councils for the Judiciary, as well as the proposal to have the members of the two Councils chosen by procedures based on the criterion of drawing lots.

Adorno R., An Indispensable Compass for Navigating the Waters of Juvenile Criminal Justice (Reading "Il processo penale minorile. Commento al d.P.R. n. 448/1988", edited by G. Giostra), p. 1169 ss.

Palazzo F., Critical Legal Positivism and Criminal Garantism (on Luigi Ferrajoli’s Recent Book), p. 1175 ss.

Bortolato M., "The Refounding of Criminal Garantism Is Compatible both with the Re-educative Finalism that the Constitution Assigns to Punishment and with the New Restorative Paradigm" (Reading “Giustizia e politica” by L. Ferrajoli), p. 1185 ss.

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:

Nisco A., Teorie espressive della pena: un’introduzione critica, G. Giappichelli Editore, Torino, 2024, pp. 196 (Gabriele Fornasari)