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.
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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