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The basic principles of criminal law


An absolutely central and fundamental principle of the Italian legal system is that of legality. It is affirmed not only in the Criminal Code (Article 1 of which states that “no one can be punished for an act that is not expressly considered an offence by law, nor can sanctions be imposed that are not established by the law”), but also by the Constitution, Article 25 of which states that “no one can be punished if not in compliance with a law that was in force before the act was committed”. Corollaries of the principle of legality provided for in the code and the Constitution are the prohibition to interpret criminal law by analogy (also considered by the prevailing doctrine as operating only in malam partem), the express determination of the offences (whereby it is the rule itself which should exactly and precisely distinguish an unlawful act from an act that is irrelevant from a criminal point of view, by avoiding ambiguous formulations that oblige the judge to act as a referee and make the decision) and the prohibition against the retrospective application of a criminal law having unfavourable consequences for the offender.

Criminal offences are divided into two main categories: crimes and misdemeanours. The discretionary criteria used in the Criminal Code to discern between these two types of criminal acts are of an exclusively formal character and depend on the different types of penalties envisaged. These, in the case of crimes, are the life sentence, the prison sentence and heavy fines, while for misdemeanours they consist of arrest and lighter fines. The latter infringements of the law are the less serious forms of criminal offences, as is confirmed by the sanctions envisaged for them, which are significantly less severe than those applied for crimes. The differentiation between the types of offences also leads to a partial difference in the law. The main differences consist in the fact that attempt is envisaged for crimes only, and that the normal criterion for indictment is "dolus" while "culpa" is required only for those cases specifically envisaged by the law.

This division in types of offences is not only present in the Code, but also within the framework of the complementary laws.

The minimum age of criminal responsibility is set at 14 years (Article 97 of the Criminal Code). Any minor who has not attained that age cannot be indicted for any type of illegal activity whatsoever, since it is presumed that the minor is incapable of understanding and intent. In certain circumstances, persons aged under 14 can be recognised as being socially dangerous and can therefore be subjected to security measures.

It must also be noted that persons aged between 14 and 18 years are not presumed to have the capacity for understanding and intent. In order to establish whether a minor aged between 14 and 18 years should be subjected to a penalty, the adjudicating body must, for each case and on the basis of the concrete evidence put before the court, ascertain whether the perpetrator of the crime had reached an adequate level of maturity and psychological development at the moment of the offence to understand the seriousness of the act (Article 98 of the Criminal Code).

If the offender had attained the age of eighteen when the offence was committed, and is therefore considered an adult, it is presumed that he/she is capable of understanding and acting intentionally and is therefore criminally liable. This presumption may not be considered valid, however, if it is proved that the offender was unable to understand and act intentionally at the moment of the offence, due to infirmity (Article 88 of the Criminal Code) or other causes. If this is proved, the offender cannot be considered liable for the offence and therefore no penalty can be imposed on him/her, with the exception of those security measures that may be applied if the offender is recognised to be socially dangerous.

Absolute liability as a criterion for indictment is expressly envisaged in the general part of the Criminal Code. In particular, it is included in paragraph 3, Article 42 of the Criminal Code which – after establishing in the first articles of the Code that no one can be punished for an act committed without awareness and intent - states that “the law should determine those cases which should be otherwise charged to the agent, as a result of the act or omission”. According to the Code, therefore, absolute liability is considered an exceptional case for indictment, while the general criterion remains that of responsibility due to "culpa". In fact, when the Criminal Code was approved in 1930, hardly anyone queried the hypothesis of absolute liability for exceptional cases.

This began to change, however, when the Constitution came into force: Article 27, paragraph 1 of the Constitution states that “criminal responsibility is personal”. Some legal scholars began to interpret this provision as being synonymous with “criminal responsibility due to one's own culpability” in the sense that the criteria for indictment should be limited exclusively to intent and culpability, in order to be consistent with the Constitution.

For numerous years, the Constitutional Court did not take a precise stand on this point until, with its decisions 364 and 1055 of 1988, it expressly accepted the above-mentioned interpretation of Article 27. For more than a decade, therefore, the Constitutional court declared that absolute liability in criminal matters was incompatible with the principles of the Italian Constitution.

Following the decisions of the Constitutional Court cited above, it proved necessary to transform the hypotheses of absolute liability as recognised by the Italian criminal law system into offences based on the principle of culpability. This work was only partially completed when, in 1990, the laws relating to aggravating circumstances excluded the cases of absolute liability. This was not applied to some cases, however, such as offences committed without intent, the death of a kidnapped person during the kidnapping and mistaking the age of the victim during a sexual offence. All these cases of unintentional consequences are considered from the point of view of the direct cause, without examining whether the consequence could have been avoided or not. They therefore go against the constitutional principle of nullum crimen sine culpa. If the lawmakers continue to be slow in adapting the laws regulating these offences to Article 27 of the Constitution, and if it proves impossible to reinterpret the incriminating provisions so that they comply with the Constitution (which some believe is possible for some cases of unintentional offences or for offences that produce unintentional effects), then the Constitutional Court will have to decide on their consistency with the Constitution.

In the Italian system, criminal responsibility is still limited exclusively to physical persons. Legal persons cannot be subjected to any type of sanction. In fact, according to Draft Law 689 of 1981 on administrative sanctions, they are not even liable for administrative offences.

This provision has been increasingly criticised by major legal scholars. Since the beginning of the 1970s the meaning, opportuneness and legitimacy of the maxim societas delinquere non potest have been questioned. In particular, it has been stressed that the most serious economic crimes are the result of precise and conscious corporate policies. The most dangerous forms of crime regarding, for instance, environmental pollution or the financial markets are, in the majority of cases, the result of precise policies of enterprises. Therefore, the fact that these corporations are exempt from any form of sanction represents a high risk for society. It is for this reason that some legal experts have proposed the introduction of provisions that consider the legal entities as actively and directly involved individuals. They have emphasised the fact that the elimination of the maxim societas delinquere non potest does not go against Article 27, paragraph 1 of the Constitution, which constitutionalised the principle of culpability. They claim that it is quite possible to identify forms of responsibility for legal persons (considering that malice requires the presence of affective and psychological elements and is therefore structurally incompatible with legal persons) on the one hand and, on the other hand, to provide for corporate crime as dangerous social crimes that require the application of security measures. In fact, alongside the penalties which presuppose the guilt of the person, Italian law also recognises other types of penal sanctions – i.e. security measures – which have threat to society only as a prerequisite etc.

In any event, even if it is not possible to adopt this measure, it would be easy to create administrative sanctions for legal persons.

However, despite the recommendations of legal scholars, the Italian criminal system does not recognise the subjective responsibility of parties other than physical persons. In 1999 bills have been presented to Parliament aiming at introducing the liability of legal persons, in order to comply with the obligations deriving from international conventions.

The Italian Criminal Code envisages various legal excuses. Some of these are contained in its general part (Articles 50-54), since they can be applied to more or less any type of offence, while others are contained in the specific part, alongside the specific crimes to which they can be applied.

The legal excuses provided for in the general part of the Code comprise consensus of the injured party, legitimate defence, state of need, exercise of a right, carrying out of a duty and lawful use of arms.

The possibility of analogically applying the decriminalising factors is also very controversial. Jurisprudence avoids applying this type of excuse since it is believed to contrast with the principle of legality. There are contrasting opinions on this point. Some legal scholars share the concern expressed by jurisprudence, while others consider it to be possible by noting that, since the principle of legality is not based on the certainty of law, but on favor libertatis, it is not based on a pro reo interpretation of analogy.

Crimes are indictable only within a given period after they have been committed, except for the most serious crimes that have no time limitation. The running out of the period of limitation is regulated by Article 157 of the Criminal Code which establishes different periods according to the type of penalty established for the various crimes. Time limits range from twenty years of debarment for those crimes for which imprisonment of not less than 24 years is envisaged, to two years for misdemeanours for which only fines are envisaged.

Limitation is suspended or interrupted in certain circumstances listed in Articles 159 and 160 of the Criminal Code. Furthermore, these circumstances are connected to the various phases of the trial. Thus, for example, the period of limitation is interrupted when the sentence is pronounced. In any case, the period of limitation established by Article 157 of the Criminal Code cannot be extended by more than one-half.

It is worth underlining that the Constitutional Court has declared the law that prohibits the defendant from renouncing the running out of the period of limitation as being unconstitutional. Following this decision, those who claim to be innocent can ask for the trial to continue even if the time limit has already run out, so as to prove their complete innocence (the trial can, however, result in a conviction of the defendant).

The Italian Criminal Code is divided into a general part, which contains the provisions that can be applied to all the offences, and a specific part, which provides for single criminal offences. It is also composed of three books. The first book, which contains the general part of the Code, is entitled “Crimes in general”. The second and third books, relating to the specific part, are entitled “Types of Crimes” and “Types of Misdemeanours” respectively, and contain lists of the various offences. These are divided into categories (such as life and physical integrity) and grouped together under headings and sub-headings.

As for the main types of crime, Article 575 of the Criminal Code defines murder by stating that “anyone who causes the death of a person is punishable with imprisonment for a period of not less than twenty-one years”. Robbery is described by Article 628 of the Criminal Code as “anyone who, with the aim of gaining an unlawful profit for himself or for others, and with the threat of violence, takes possession of a movable object of another person by subtracting it from that person, is punishable with three to ten years of imprisonment and with a fine of between one and four million lire”. As far as bodily harm is concerned, Article 582 of the Criminal Code establishes that “anyone who causes bodily harm to another person resulting in that person’s mental or bodily injury, is punishable with a term of imprisonment ranging from three months to three years”. In the case of theft, Article 624 of the Criminal Code establishes that “anyone who takes possession of the movable object of another person with the aim of gaining profit from it for himself or for others, is punishable with a term of imprisonment of up to three years and with a fine of between seventy thousand and a million lire”.

In cases of robbery and theft in particular, a very wide range of aggravating circumstances is envisaged. So much so that it can be affirmed that it is impossible to indict an offender for theft without aggravating circumstances. These aggravating circumstances result in an increase of up to ten years in the term of imprisonment envisaged for theft. The aggravating circumstances include breaking into a house, acts of violence on things, the use of fraud, the use of arms or drugs, the commission of the offence with skill, the commission of an offence in groups of three or more persons, stealing travellers’ baggage, goods which are in public premises or three or more heads of cattle. Robbery is aggravated when arms are used, when it is committed by a group of people or if the violence makes some one incapable of understanding or intent.

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