Rivista italiana di diritto e procedura penale n. 4/2019

Abstracts - English

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. 4/2019)

LEGAL THEORY

ARTICLES

Romano M., Inciting or Aiding Suicide, Consensual Homicide, Euthanasia after the Rulings of the Italian Constitutional Court, p. 1793 ss.

The Author discusses the situation of the Italian legal system after the recent rulings of the Constitutional Court. After reaffirming the fundamental function of art. 580 of the Italian Criminal Code, the Court resolved that the act of aiding suicide shall not be punished only in some, very limited cases (incurable disease, intolerable suffering, ongoing life support, intact mental conditions), on the ground of an alleged analogy between suicide and a patient’s legitimate refusal or waiver of medical treatments. While the Author contends that this analogy is misplaced, he also agrees that inflicting a punishment in those cases would be excessive. Just as importantly, the Author hopes that the regulatory distinction between assisted suicide and consensual homicide – which distinction has always been recognized in the Italian Criminal Code – will be preserved also in the future. Along the same lines, the Author criticizes some of the language used by the Court that might suggest equating assisted suicide with active euthanasia. According to the Author, no legislative action should be taken in this direction as such steps would introduce treacherous exceptions to the “thou shalt not kill” principle, which, in fact, should continue to remain a fundamental safeguard for the human society. In addition, they could jeopardize or delay the progress of civilized practices aimed at accompanying people along the natural process of dying – which are indeed major breakthroughs in contemporary medicine – while potentially giving rise, over time, to undesirable changes in the ways healthcare professionals may approach patients and, more generally, to selfish attitudes, oblivious of the solidarity that is owed to every sufferer, especially the most vulnerable, elderly or socially isolated.

 

Alessandri A., New Criminal Provisions of the Italian Insolvency Code, p. 1815 ss.

The Italian Insolvency Code replaces the Italian Insolvency Law of 1942. Although the Code does not introduce any new bankruptcy crime, some provisions may cause issues in terms of coordination with the offences governed by the previous legislation, which the Author examines in this paper.

 

Spena A., Humanitarian Smuggling and Criminal Defenses, p. 1859 ss.

The Author provides a critical analysis, from a criminal law perspective, of the politically driven tendency to criminalize as humanitarian smuggling the actions taken by NGOs to save unwanted migrants from drowning in the Mediterranean Sea during their journey to Italy. More specifically, the Author tries to figure out whether this kind of actions should be more properly qualified as «aiding and abetting illegal immigration», pursuant to art. 12 of the Italian consolidated law on immigration (Italian Legislative Decree No. 286/1998), or as permissible actions covered by a criminal defense. Finally, in the closing section of this paper, the Author focuses on what he believes are the criminal-political reasons underlying the whole debate.

 

Burchard C., Is Artificial Intelligence putting an End to Criminal Law? On the Algorithmic Transformation of Society, p. 1909 ss.

Does Artificial Intelligence (AI) imply the end of criminal law and justice as we know them? This article contends that AI is a transformative technology that apparently adopts and optimizes the goals of criminal law (namely, effective prevention of crime; objective, neutral and consistent enforcement of the law etc.) while replacing the counterfactual guarantees of the law with the factual guarantees of technology. Hence, AI should not be trivialized in the criminal law theory. Likewise, it is not enough to criticize the current weaknesses of AI (for instance, with regard to the “bias in, bias out” issue). The criminal law theory should rather draw on the promises of AI to reflect upon the foundational premises of criminal law. In a context where criminal law is mostly a social governance tool in a welfare state, AI applications promise to achieve the very goals of the law (e.g. the effective inhibition and prevention of crime, for instance by means of predictive policing; or the political determination of fuzzy sentencing rationales in sentencing algorithms, which would ensure equal sentences for comparable crimes). Conversely, in a criminal law that protects liberal freedoms and rests on interpersonal trust, AI may well lead to abandoning the very ideals underpinning the law (e.g. the presumption of innocence, which can no longer be upheld once everyone, ordinary citizens and judges alike, is deemed to be a potential risk). So, the question of whether AI is putting an end to criminal law triggers another, two-pronged question, i.e. “Which criminal law for which society?” Indeed, what would be the consequences of the introduction of AI in the administration of criminal justice on freedoms (notably in a surveillance society needed to power Big Data driven algorithms), on trust (especially under the zero-trust paradigm that underlies many risk-assessment algorithms), and on the future (specifically when algorithms make predictions based on past data)? These are the questions, or so I respectfully submit, that the criminal law theory needs to address today in order to come up with a criminal law that is both (for pragmatic reasons) open to technology and (for humane reasons) sensible. Against this background, we must take to heart Joachim Hruschka’s great legacy and remain intellectually honest.

 

Londoño F., The 'Romanesque' in the Italian Criminal Law Theory of the 20th Century Remarks on Delitala’s “fatto”, Bricola’s “discrezionalità” and Marinucci’s “azione”, p. 1943 ss.

This contribution offers a general (and external) view of the Italian criminal law theory of the 20th century. To this end, the Author addresses two attributes that would specifically characterize the legal theory of the aforementioned period: (i) its political orientation; and (ii) its objectivism. These attributes are further described by offering a principle of “demonstration”, which proceeds from fragments of works by Giacomo Delitala (“fatto” - fact), Franco Bricola (“discrezionalità” - discretion) and Giorgio Marinucci (“azione” - action). The overall view —also dictated by the comparison with the “Germanic style”— highlights the practical orientation of Italian criminal law theory: hence its Romanesque character.

 

Vázquez C., The Regulatory Framework of Expert Evidence: A Discussion on the Experts’ Inferential Reasoning and its Understanding by Judges, p. 1961 ss.

To be able to evaluate the expert knowledge underlying expert evidence, judges must first understand the inferential reasoning used by such experts. This implies that judges should analyze both the assumptions underpinning the expert’s reasoning and the inferences derived from them. Such analysis should be mainly carried out at the evidence admission stage and in the course of the presentation of evidence at trial, looking at the bases of the experts’ generalizations and at their application to the specific case. In this scenario, the aim is to provide legal practitioners and experts with different procedural tools to establish a dialogue-based practice aimed at fulfilling the requirements that especially judges are called upon to fulfil.

 

Forzati F., Personological Offense between destructuring the Tatstrafrecht and affirming the Täter-prinzip. Subjectivation of the crime and crisis of the criminal principle of materiality in the 19th and 20th centuries, p. 1989 ss.

The personological configuration of the crime — which, as is well known, links the criminal negative value to the perpetrator’s personality and not to the fact — was introduced by the codifications of the 19th century and then developed in the wake of the crisis of legality in a formal sense and (of the crisis) of the materiality principle of the early 20th century. Affected by the personological and substantialistic influences of the Italian Positive School and of the teleologism permeating the German neo-Kantian values, the empirical-naturalistic structure of the late nineteenth-century crime was finally set aside in the Ferri project of 1921 and in the 1922 Entwurf eines Allgemeinen StGB by Radbruch. This laid the foundations of the Willenstrafrecht theorized by the German doctrine of neo-Kantian inspiration, which, after questioning the neutrality of Beling’s Garantietatbestand, introduced the Tätertyp as a constitutive element of the Tatbestand. The central role played by the fact and culpability (for the fact) was then replaced by culpability for the life conduct, inferred from the anti-social nature and moral indignity of the relevant behaviors. The final step in the process of de-materialization of the liberal, Enlightenment-derived crime was the Gesinnungsstrafrecht of the Kiel school, i.e. the theorization of the Täter-Prinzip as a criterion of legitimacy not so much and not only of the type of agent but rather of the ontological category of the enemy of the people, which then ended up linking punishment to an entirely ethical, ethnic and anthropological negative value.

 

Caletti G.M., Sexual Freedom and Privacy in the Age of the Internet. Article 612-ter of the Italian Criminal Code and Criminalization of Non-Consensual Pornography, p. 2045 ss.

With the lightning-fast introduction of Article 612-ter in the Italian Criminal Code, the Italian lawmaker too wanted to  directly and specifically criminalize the so-called “revenge porn”, i.e. the practice of posting sexual images without the consent of the people featured therein. The wording of the provisions governing the new crime raises many doubts, especially in terms of its practical effectiveness. These concerns are likely to mostly originate from a rushed legislative process, which lacked a general framing of the “revenge porn” phenomenon and an in-depth analysis of the underlying needs to criminalize. This essay – starting from these aspects and also underlining the importance of replacing the English neologism of “revenge porn” with the more appropriate wording of “non-consensual pornography” – examines Article 612-ter of the Italian Criminal Code in comparison with the solutions implemented by other foreign legislators, as well as with other offences focusing on the dissemination of images, which already existed in the Italian legal system. This paper also discusses the element of lack of consent in the dissemination of images and it specifically focuses on its effects in terms of mens rea. The Author provides an innovative interpretation based on the “affirmative consent” theories applied to sex crimes in several US States.

 

Greco E., A Structural Analysis of Corporate Crimes, p. 2091 ss.

This paper provides a systematic analysis of corporate criminal liability, focusing on its consistency with the requirements of criminal negligence. This analysis shows that the corporate crime governed by Italian Legislative Decree No. 231/2001 should be considered as a “special” offense of negligence, which essentially acts as a breach of a precautionary duty - a violation of a rule with precautionary objectives which results in a harmful event. The congruity of this event with the specific risk that the standard aims at preventing has to be verified. The goal of this paper is to offer — from a de jure condendo viewpoint — some reform proposals with reference to the culpability criteria and to the judicial determination of the adequacy of compliance programs.

 

Poggi d’Angelo M., Intent of Danger in Fraudolent Bankruptcy, p. 2129 ss.

The aim of this paper is to investigate the intent in “danger crimes”, with a focus on to bankruptcy crimes. The domain of bankruptcy criminal law and of the new business crisis seems to be perfect for investigating how the “actus reus” of a danger crime is also reflected in the “mens rea” element, thereby modifying the object of the intent and its verification. The Author also argues that, in bankruptcy cases, the selection of conducts consistent with the type described by the legislator must be made first on an “objective” level, by establishing that they are indeed capable of endangering the integrity of a company’s equity, and then on a “subjective” level, where the perpetrator must be aware of such likelihood. This is the only way to limit the criminal response to the actual, culpable offense and to rule out any objective and presumptive form of liability.

 

CASES AND COMMENTS

Canestrari S., An “Inevitably Unfortunate” Decision: the “Reform” of Article 580 of the Italian Criminal Code by the Constitutional Court, p. 2159 ss.

This essay provides an in-dept analysis of decision No. 242/2019 of the Italian Constitutional Court. With this ruling, the Court has narrowed the scope of criminal liability for medical assistance to suicide. Starting from an accurate evaluation of the four requirements relating to the physical conditions of the patient requesting medical assistance to suicide, this paper examines other procedural requirements identified by the Court. After providing an analysis of the Court’s arguments, the Author highlights how these are strictly connected to the peculiarities of the «Antoniani-Cappato» case and, most importantly, illustrates the lights and shadows of an “inevitably unfortunate” decision.

 

Turco E., The Italian Constitutional Court confirms the Incompatibility of Article 131-bis of the Italian Criminal Code with the Microsystem of Small Claims Courts. A Missed Opportunity to affirm the Supremacy of the Constitutional Values underlying the Provisions of the Criminal Code, p. 2180 ss.

The Italian Constitutional Court sitting en banc ruled that the incompatibility of art. 131-bis of the Italian Criminal Code with the microsystem of small claims courts is constitutionally legitimate pursuant to art. 3 of the Constitution: It is “reasonable” to require the honorary judge to use only the symmetrical mechanism established under article 34 of Italian Legislative Decree No. 274 of 28 August 2000 because a different solution, which would allow the judge to rely on article 131-bis of the Italian Criminal Code and hence to adopt a mixtum compositum and/or extensive interpretations, including favourable ones, would destroy the “conciliatory”' strategy pursued by the legislation introduced in 2000. The Constitutional Court follows an argumentative path that starts from an acceptable premise but leads to a questionable result.

 

DISCUSSIONS

On E. Dolcini, E. Fassone, D. Galliani, P. Pinto De Albuquerque, A. Pugiotto, Il diritto alla speranza. L’ergastolo nel diritto penale costituzionale, with preface by M. Palma, Torino, G. Giappichelli Editore, 2019, p. 2207 ss.