Reform initiatives
In recent years, there have been
numerous penal reform proposals relating both to substantive and procedural
law. The main reasons behind these reform projects is the need to adapt the
Penal Code to a historic, social and institutional situation that is profoundly
different from that when the Penal Code was first enforced, on the one hand,
and an attempt to create a coherent and complete criminal procedure system
characterised by equal parties and full respect for the cross-debate, on the
other hand, following the experience of the Code in force, starting with the
decisions of the Constitutional Court in 1992, cited above, concerning criminal
procedure.
It will be impossible for some of
these reform projects to be enforced and they will become mere topics for
discussion.
This seems to be the case with the
reform project for a new Penal Code drawn up in the early 1990s by a
Governmental Committee composed of famous law professors, and which was named
the “Pagliaro Project”, after the Chairman of the Committee. This project
provided a draft for an enabling act on the basis of which Parliament was to
prepare fundamental guidelines for a new Penal Code to be authorised and
adopted by the Government. The most significant provisions of this draft
containing guidelines to the Government[1]
include the express affirmation of the general value of the principle of
culpability and the refusal of what still remains of absolute liability in the
current Penal Code. Other provisions include the inclusion in the Code of the
most important criminalisations contained in the current complementary
legislation such as corporate crimes (related to false information, statements
and documents, including falsifying a balance sheet), financial crime and
environmental crime.
Other proposed reforms have,
instead, become State laws. These include the new provisions already mentioned
regarding usury, sexual violence, abuse of official duties and the
reorganisation of incriminating provisions in the area of the finance and stock
markets, provided for by Law Decree No. 58 of 1998. They also include the
widening of alternative measures to imprisonment enacted by the Simeoni Law;
and the reform already mentioned of the single first instance judge and the
amendment to article 111 of the Constitution.
The most complex and organic reform
project of the whole criminal justice system has been prepared recently,
however, as part of an attempt to modernise and modify the whole second part of
the Constitution, so as to adapt it to the changes in Italian society. Thus,
between 1997 and 1998, a Parliamentary Commission prepared a complete reform
project on the Constitutional provisions which also dedicated some space to the
criminal justice system. Great expectations have been placed on the provisions
of this project which, if approved, would become guidelines.
Articles 129-133 of the Bicameral
Commission’s project[2]
(which was given this name because it was composed of members from both
Chambers) establish that criminal laws should only protect goods that are
considered particularly relevant in that they are taken into consideration
directly by the Constitution, that any concretely inoffensive acts should not
be punishable, that the application of analogy is prohibited not only in the criminal
justice area but in general, that trials should be carried out by
cross-examining all the parties involved on an equal basis, and that the
accused persons should be given the possibility to question – or to ask their
defence lawyer to interrogate – the persons accusing them (these latter points
where taken into consideration when amending article 111 of the Italian
Constitution: see para. 3 above; see also below).
These are profound principles which,
with a few reservations, would significantly change the whole criminal justice
system. As far as the substantive profiles are concerned, the principle of
offensiveness would be constitutionalised, as well as the general theories on
offences that were elaborated in the 1970s and which proposed to restrict
criminal law to the mere protection of goods that are considered relevant by
the Constitution, i.e. to a minimal criminal justice law. As far as the legal
aspects are concerned, the inclusion in the Constitution of the right of the
accused person to question the accuser means that the Constitutional Court
could no longer declare (as it did before) inconsistent with the Constitution
those provisions of the present Code that do not recognise the probatory value
of the statements made to the prosecutor during the preliminary investigations,
but which were not confirmed during the trial. This paved the way to a
“rewriting” of the current Code so as to give it a coherently accusatory
character that could be protected from any censure by the Constitutional Court.
However, the project of the
Bicameral Commission now appears to be bogged down due to differences among the
various political forces regarding the overall structure that the State should
acquire under the reform project. Nevertheless, a rather high level of
consensus was reached on some points of the project, so much so that specific
Constitutional bills were presented to introduce these specific changes to the
Constitution. Up to now there has been notable Parliamentary consensus in
support of these bills as they pass through the legislative process, so much so
that there is a real likelihood that they (or some of them dealing with the law
process) will be approved.
The most important of these
proposals is the one concerning the criminal trial. Article 111 of the Italian
Constitution has been amended in November 1999. The new text now establishes
that the trial is carried out by cross-examining all the parties involved on an
equal basis (thereby granting the defendant the right to question the accuser).
On the basis of these provisions, no one can be convicted only on the basis of
statements made during the preliminary phase by persons who then refuse to
confirm them during the trial. It can now be said that the Italian criminal law
system has reacquired the accusatory character assigned to it in the original
version of the 1988 Code, but this time it is also guaranteed by the
Constitution.
Other proposals to modify the
current criminal law system that are being examined by the Chambers and have a
strong likelihood of being approved by the major political forces or have
already been approved regard various specific issues.
Act 507 of December 30, 1999 has
provided for a series of depenalisations for minor offences such as writing
uncovered cheques, damaging buildings, state of drunkenness, use of foul
language, and driving in a state of drunkenness. A number part of legal
scholars have complained about the modest entity of these provisions, however.
The Government has also undertaken to redesign the whole part relating to tax
law.
The Executive Power seems intent on
approving a bill prepared by an Expert Committee, which redefines the whole
part dealing with environmental law. This proposal replaces the present law
which focuses on abstract infringements, by introducing other criminal offences
which, reflecting the new social awareness of the importance of the environment
as well as the need to protect it through the use of criminal law, are
considered to be offences representing a real threat to the environment[3].
It should finally be recalled that
the rising alarm regarding the increase in so-called microcriminality (theft
and household crimes that have increased significantly and which will be
discussed in the next section) has recently induced the Government to present a
bill that makes the penalties envisaged for these offences much more severe in
the (strongly questionable) hope that this will actually lead to a reduction in
the phenomenon.
[1] This is
published in Per un nuovo codice penale.
Schema di disegno di legge-delega al Governo. In Quaderni de L’Indice Penale, Padova, 1993, ISBN 88-13-18169-8.
[2] Published in L’Indice Penale, 1998, p. 303, ISBN
88-13-21032-9, which contains the comments and thoughts of various legal scholars.
[3] A first description of this
project, by the person who had the honour to co-ordinate the Ministerial
Commission charged to prepare it, can be found in Manna, Realtà e prospettive della tutela penale dell’ambiente in Italia,
in Rivista trimestrale di diritto penale
dell’economia, 1998, pp. 851 ff.
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