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. 4/2023).

LEGAL THEORY

ARTICLES

Fiandaca G.,  On the Theories and Interpretation of Criminal Law from the Rocco Criminal Code to Today, p. 1279 ss.
This article outlines, from a historical-reconstructive perspective, the basic orientations of criminal legal theories that have emerged since the Rocco Code came into force. Attention is also paid to methodological aspects, theories on crime and interpretation. While reviewing the theoretical developments, the author also focuses on the potential – and also implicit -  political-ideological implications of the transition from the previous authoritarian regime to the new democratic order. The innovative scope of the constitutional approach to criminal law is then highlighted, as are its limitations. The final part provides some remarks on the current status of the legal theory.

Donini M., To Punish and not to Punish: A Long-Standing Dichotomy that has now become a System, p. 1301 ss.

In spite of the continuous flourishing of retributionist cultures at an international level, including the latest notions of punishment, and in any case among the general public, the legislation, since the mid-nineteenth century, has always coupled instances of punitivism with disciplines of non-punishment. Punishment and non-punishment swing like a pendulum through amnesties and clemency measures in the history of Italy up until the First Republic. Subsequently, the growth of many institutes of “non-punishability” or sanction downgrading within the ordinary system experienced a non-legislative and automatic application that was increasingly more left to the discretionary powers of the judiciary. Hence, non-punishment turned from a potential exception to a constant of the system within the system itself, because punishment cannot be regulated without its reduction, transformation, and extinction. It is proof of the fact that the corresponding logic of the retributory proportion is insufficient by itself as a last resort. This essay shows how important this legislative datum is for a revision of the theory of punishment, where its essence of added evil is transformed by general and constant institutions of enacted punishment and humanistic punitive degradation towards a reduction of the overall evil.

Cocco G., Some Cornerstones of the Liberal Interpretation. Lessons and Differences from the US Experience , p. 1339 ss.
This essay highlights the central role of the will of the legislature in the interpretation of criminal provisions, in addition to compliance with the literal meaning thereof. In particular, it explores the connection, in the US system, of the so-called rule of lenity with the common law and the compliance of the so-called liberal construction with the principles of the rule of law, where the former attributes a central role to the legislative purposes, while only a residual role can be attributed to the rule of lenity. In conclusion, the US path to overcoming the common law and to reaffirming the rule of law provides significant confirmations of the prohibition for the judge, who is constitutionally subject to the law, to render any creative interpretation.

Larizza S., The Problematic Configuration of the Crime of Torture: from Crime to Aggravating Circumstance?, p. 1377 ss.
The past, present and (possible) future of the crime of torture are outlined in this essay which points to the fact that whether torture is repressed or tolerated depends on the type of relations existing between the State and the individual. The State has all the tools to guarantee security without resorting to physical and psychological violence against the individual. The fact that the Vietri Proposal questions art 613-bis of the Criminal Code with the downgrading of the crime of torture to an aggravating circumstance is alarming because of the possibility of not recognizing the serious disvalue that characterizes all acts of torture, namely the State’s prevarication over inviolable human rights (art. 2 of the Constitution).

Bartoli R., Punishing without imprisoning. The New Alternative Sanctions, p. 1399 ss.

This paper analyses the new alternative sanctions introduced by legislative decree n. 150, issued on October10, 2022, (Cartabia reform). After outlining their main features, the author delves into their strengths and weaknesses. As for the former, it is argued that, since these sanctions are strongly aimed at the re-socialization of the offender, they are clearly more effective than a prison sentence, which is more afflictive but also de-socializing. With regard to the latter, the author points out that the exclusion of probationary assignment to social services from the list of new alternative sanctions is not entirely reasonable and that requiring the consent of the convicted person for the enforcement thereof undermines the effectiveness of these new forms of sanctions. Despite such issues, the resulting scenario is fairly optimistic, where the application of the new alternative sanctions is bound to expand over time.

Zacchè F., Request and Waiver in Summary Trial, p. 1423 ss.

As the choice of summary proceedings implies the waiver of a full trial, it has always been at the heart of a lively debate. This paper outlines its evolutions and involutions, re-interpreting its current structures in the light of the right of defense. Upon identifying the key issues, the objective pursued is then to rethink the future of these proceedings within the system, as well as to reaffirm the importance of technical defense in the self-defensive choice to depart from the ordinary trial proceedings

Recchia N., Preliminary Reference to the Court of Justice in Criminal Matters, i.e.“Dual Preliminarity” in Action, p. 1438 ss.

This article analyses the latest trends in the recourse to preliminary reference to the Court of Justice in criminal matters. First off, the author clarifies that the major issues in this area are those relating to the concurrent protection of the fundamental rights by the Italian Constitution and the by Charter of Fundamental Rights of the European Union, which produces a combination of remedies resulting from the referral of the question of constitutional legitimacy to the Constitutional Court and from the preliminary reference to the Court of Justice. This contribution delves into the latest cases in this area (from the right to silence to the discipline of the European Arrest Warrant, through to instances of ne bis in idem). Finally, an attempt is made to take the outlined cases as a source of some general indications on the trilateral interplay among trial judge, constitutional judge, and European judge.

Ruggiero G., The Principles of Criminal Law: Counter-limits in a Time of “Democracy Malaise” and Constitutional Revisions , p. 1465 ss.

In a time of democratic malaise, when the goal is to establish models of elective autocracy, including by means of constitutional revision projects, and proposals are made to alter supreme principles in order to consolidate a strong approach to criminal law, it is necessary to dwell on the widespread belief that, since democracy is based on popular sovereignty, and the popular will is exercised through law-making activities, the investiture by the people bestows supremacy to the elected representatives. In this climate of walled democracy lies the temptation to reduce the weight of criminal constitutional principles: eternity clauses based on the inviolability of the individual and on the constitutional ethos; guarantees definable as implicit and absolute limits established as a protection also against revisions of the Charter, sometimes definable as assaults on constitutional continuity.

Zerbone S., The Liability of the Parent Company’s Director for ‘Peripheral’ Crimes, p. 1501 ss.

This essay focuses on the criminal liability of the parent company’s director for crimes committed by members of the subsidiary. The management and coordination activity that characterizes a group implies that the directors of the holding company exercise influence in the sphere of autonomy of the subsidiaries. The topic is addressed by distinguishing two models of criminal liability: the omissive model suggests that the management and coordination activity is the source of the duty to prevent peripheral crimes, whereas the commissive model suggests that the same activity is a form of active contribution to the offences committed by others. Finally, the paper focuses on the only decision passed by the Supreme Court that has addressed this matter.

Note a sentenza

Pellizzone I., Personal preventive measures and prohibition to hold and use mobile phones: where freedom of communication is constrained, there must be an authorization by the judge, p. 1545 ss.

With its judgment No. 2 of 2023, the Constitutional Court ruled, for the first time, on the personal preventive measure consisting in the enhanced oral warning given by the chief of police and, more specifically, on the prohibition to hold and use mobile phones. The issues addressed by the Constitutional Court relate to the interpretive technique identified in the case law, which merely relies on the technological language and neglects the differing common sense of words, as well as the relationship between the prohibition to hold and use a means of communication and the limitation of the freedom of communication. The Constitutional Court is far from recognizing the right to a mobile phone, but focuses on the concept of the essential core of freedom itself. Anyway, the judgement, in line with the case law developed on the subject of personal preventive measures since the beginning, finds the prohibition to hold and use mobile phones enacted by the police to be unconstitutional due to violation of the judicial review, considering itself unable to either convey an interpretation consistent with the Constitution, but having to acknowledge the case law, or to wield its manipulative powers, but having to leave room for the Parliament to potentially re-regulate the measure. Therefore, the legislative void resulting from the judgment at issue can be (as indeed happened) filled directly by the legislature.

Baroni M., Bondi G., The Case of the “Venetian Banksy”. Street Art as a Cultural Model between Illegal Artworks and Defacement, p. 1576 ss.

As it became clear in the court case concerning the mural painted by Banksy in Venice, street art is a phenomenon that, while it has so far been relegated to the margins of academic legal studies, raises significant questions in this field. This paper aims to participate in the debate on the topic by delving into aspects of constitutional law and criminal law. Notably, drawing from the aforementioned case, the author first discusses the meaning of street art and its repercussions on the Italian Constitution, especially with respect to Articles 33, 21, and 9 of the Constitution, and, then, the approach of the Italian law-maker and legal scholars in criminal matters, with specific reference to the offences of illegal artworks and defacement. Lastly, an attempt is made to establish whether street art is covered by the Constitution and also to outline hermeneutic criteria for the interpretation of the relevant crimes, with a view to coming to a full appreciation of the artistic value of each individual artwork.

COMMENTI E DIBATTITI

Forti G., A ’Living Law’: Legal Science in the Prism of Existential Choices. Reading "Giuliano Vassalli tra fascismo e democrazia"by Giandomenico Dodaro, p. 1609 ss.

Risicato L., The Choice to Die as Act of Freedom. Reading “Il diritto di andarsene” by Giovanni Fornero, p. 1617 ss.

Building from an analysis of Giovanni Fornero’s latest book, this essay examines the legal connotations of the right to choose how to die after the rulings of the Italian Constitutional Court in the Cappato case and those of the German, Austrian, and Portuguese Constitutional Courts. The core of the issue involves the principle-based limits to the right of an individual to freely renounce his/her own life, based on the assumption that assisted suicide could be viewed as a rational expression of self-determination that transcends the boundaries of irreversible illnesses to become a full right that can be freely exercised at any time in life.

Velluzzi V., Around Two Essays on Criminal Legality and Interpretation, p. 1629 ss.

Bresciani P.F., Criminalization Duties and the Autonomous Notion of “Criminal” Matters: Bridging the Gap between Liberalism and Constitutionalism in Bricola’s Thought, p. 1633 ss.

This paper examines the positions historically held in the debate about criminalization duties. It highlights how a conflict between the two main underlying theoretical approaches can also be significantly identified in Franco Bricola’s Teoria generale del reato. The Author then suggests that this long-standing conflict may be resolved today by rethinking the issue of criminalization duties within the context of the theory of autonomous notions.

LAW AND DOCUMENTS

The Council of Europe Monitors the Fate of the Crime of Torture in the Italian Legal System, p. 1643 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:

Camaldo L., L’udienza preliminare nel processo penale minorile, G. Giappichelli Editore, Torino, 2023, pp. 312. (Carla Pansini)

Rigoni C., Honour-based violence and forced marriages. Community and restorative practices in Europe, Routledge, Taylor and Francis Group, Oxford, 2023, pp. 263. (Cecilia Pagella)

Troncone P., Manuale di diritto penitenziario e delle misure punitive, G. Giappichelli Editore, Torino, pp. 257. (Giuseppe Amarelli)