Criminal Law

Criminal law

After the 2019 reform, in law 354/1975 there is an explicit provision of affirmation of fundamental rights of inmates. Art.4 par.3 of Penitentiary law states that every detainee has fundamental rights. Art.67 penitentiary law establishes that a guarantor has an inspection power (no authorization to enter the prison): they have to write reports to the director of prison and commander of penitentiary police but also to department of penitentiary administration (Rome) if the problem is general and affects all inmates in Italy.

Home of detention =/= short time prison (Trento): less than 5 years or held in custody (pre-trial detention, custodia cautelare). There is a multilevel protection: guarantor (no authoritative power), surveillance judge/judge of legality of penalty during its execution and ECHR (art.3 about prohibition of torture, inhuman and degrading treatment: several violations in Italy for prison conditions, in particular overcrowded ones; Torreggiani (2013) and other rulings).

In Italy, there are two types of offenses: crimes and misdemeanor/contravention/infringements. In France there is a tripartite system (crime, misdemeanor and other minor crimes).

Legal diversity, judicial interaction and the methods of comparative criminal law

Dr. Martufi

Why should we even start studying criminal law from a European, Comparative and International perspective? Improvement, harmonization, approximation... There is a perennial dilemma between harmonization and diversity of law and substantial criminal law in particular: on the one hand, harmonization is useful but criminal law comes from the tradition of each country that differs substantially even in relatively close and similar countries.

There is tension between the pursuit of common (minimum) standards on the one hand, and respect for the different legal systems and traditions of states on the other (it is somehow unavoidable). Colson & Field say that "The inextricable link between sovereign state, national culture, and criminal justice makes it an area politically sensitive to governance at the supranational level". In particular, constitutional standards are the relevant ones: they establish the limits of criminal law at national level and they cannot be deleted when trying to harmonize the topic at supranational level, also for the political importance. It is important not only for lawmakers but also courts.

When we think about the harmonization of substantive and procedural criminal law, we should keep in mind a couple of questions. Asking both "can" and "ought" questions (but always making sure to distinguish between the two) is essential for clear and meaningful discussions on the "harmonization versus diversity" dilemma that characterizes discussions on supranational law and therefore also about European and International criminal law.

• Can question: Given the diversity of European legal cultures is harmonization at all achievable?
• Ought question: If it is achievable, is it also desirable, given the virtues and vices of harmonization and diversity?
• How questions: If harmonization is both achievable and desirable, how may it be pursued while respecting diversity? Colson and Field speak of 'intrinsic difficulties' in this regard.

Comparative law deals with classifications. The traditional division is between common law and civil law, but there is also customary law system, muslim law system and mixed law systems. We have to be careful because this typification of legal systems (in a broad sense) into bigger entities according to their general characteristics and legal histories is still useful. The underlying idea that laws of different states, regions, nations, peoples, or cultures can be categorized and generalized into neatly organized theoretical constructs is widespread within the academic study of law.

But can national legal systems really be grouped into major families? There is convergence of legal systems and legal pluralism. There is harmonization due to the interaction between legal systems, also outside Europe (see the new US Penal Code, influenced by criminal theories from Germany and UK). Jurisdictions in both countries are both not monolithic: there is legal pluralism (increasing importance especially where there are native communities and customary laws, e.g. restorative justice, circles). Despite the evident shortcomings, the legal family classification and the dichotomy does not seem to disappear; there is a role for the concept of legal families, but taxonomic categorization should not be an end in itself.

On the Convergence (and Divergence) of the Civil Law and the Common Law - Merryman

Convergence of Civil Law and Common Law is, accordingly, a common topic of discussion among comparative lawyers. The answers to questions about the convergence of legal systems depend in the first instance on the view taken of the meaning and purpose of such convergence.

A. Return to the Jus Commune

This attractive thesis is based on an interpretation of history widely accepted among legal scholars, particularly in Europe. Prior to the rise of the nation-state, so the argument goes, the entire civilized world was governed by one legal system: the Roman-Canonic jus commune. The rise of the nation-state disrupted the jus commune and eventually destroyed it. While none argue for a return to the medieval jus commune, some would support a movement toward a new jus commune.

B. Legal Evolution

This thesis assumes that progressive legal change is a natural process whose pace and direction can be momentarily affected by human actions but will, in the longer run, be controlled by larger forces out of human control. Legal systems are more or less developed or mature, standing at different stages of evolution. When they converge, it is because the less developed system is catching up with the more developed one. Civil Law is far older and, in the opinion of many, far more developed than the Common Law. Thus, the process of convergence is one in which the Common Law becomes more like the Civil Law.

C. Natural Law

Significant differences in legal systems are in these terms a denial of what is common in human nature. The convergence of legal systems is a movement toward a situation in which the common nature of human beings is properly observed and expressed by the law.

D. Law as Superstructure

The Marxist thesis that law is mere superstructure and that the realities that govern human lives lie quite outside the law, in economics, can be generalized to the notion that law is a social artifact. According to this view of matters, nations that have similar economic, social, and political ideals and systems should be expected to develop similar legal orders.

E. International Transactions

The elimination of differences in national legal systems facilitates international transactions, increases the general welfare, promotes the diffusion of culture, and leads to international understanding.

F. International Integration

The growing trend toward formal international economic, social and political integration, expressed most dramatically in the West in the European Communities and in the ECHR, argues for convergence of the legal systems of the member states. Common policies require for their realization similar legal rules, institutions and procedures, and the "harmonization" of the laws of the member states.

G. Simplicity and Certainty

In some cases the desire for convergence of legal systems merely expresses a yearning for simplicity. The strategies or modes of convergence of the Common Law and Civil Law fall under three main headings: active programs for the unification of law, the transplantation of legal institutions, and the tendency for nations with similar political, economic and social features to develop similar legal systems-a process that might be called "natural convergence".

A. Unification of Law

Of these, the first is the easiest to illustrate because it often is accomplished through the use of international institutions specifically intended to promote the unification of law. The techniques of unification of law include supranational legislation and judicial decision binding on and applicable within individual states.

B. Legal Transplants

Legal transplantation has a long history. Transplantation can occur by conscious choice, as when an independent nation chooses to import a legal rule or institution or code. Frequently the motivation is that of a developing nation wishing to modernize its legal system by imitating, through transplantation, some aspect of the law of a more developed nation. Legal transplants across the Civil Law-Common Law boundary obviously lead in the direction of convergence of the two systems.

C. Natural Convergence

The notion here is that as societies become more like each other their legal systems will tend to become more alike. Thus most Civil Law and Common Law nations are western bourgeois capitalist democracies, at least in constitutional form. Much of the movement toward convergence of the Civil Law and the Common Law is traceable not to deliberate efforts to impose unification, nor to transplantation, but merely to the tendency of nations otherwise similar in important respects to have similar problems and to arrive at similar legal ways of perceiving and dealing with them. Negative support for the same conclusion can be derived from the converse proposition: Nations that are substantially different in their orientation are likely to have divergent legal systems. This is particularly true if they perceive themselves as different and feel it necessary to emphasize, even perhaps to exaggerate, such differences. Natural convergence is unquestionably the most effective mode of convergence of laws, superior to legal transplantation.

Two opposing forces are at work in international society. One moves nations to become more alike. However, even within nations geographically similar and having comparable economic, social, and political systems, there are forces tending to cause legal systems to diverge. The impulse toward decentralization is a powerful one, explicitly based on the proposition that local needs and interests are diverse and call for separate local regulation. One interpretation of all this is that an exaggerated emphasis on the state is, after centuries of statism, waning. If the two forces do in fact operate more or less simultaneously, then it becomes interesting to inquire whether they affect different kinds of interests in different ways. Thus the degree of transnational interest in the matter regulated by the local law is only one important variable in discussing the desirability and the probability of convergence of laws. These forces are constantly at work.

At the national level the concept of "general principles of law" may refer to Roman Catholic natural law, as in the Austrian Civil Code; it may refer to positivistic principles derived by the methods of legal science, as in the Italian Civil Code; it may refer to the contents of a specific historical document, as the French Consel d'Etat refers to the Declaration of the Rights of Man and of the Citizen. A serious quest for general principles that transcend the limits of national legal systems had its beginnings in the latter half of the past century, with the establishment of the Societe de legislation comparee in 1869 in Paris. The relevance of the search for general principles of law to a study of the convergence of the Common Law and Civil Law is complex. In brief, the interest in general principles of law both measures the extent of convergence of legal rules and, under appropriate conditions, facilitates further convergence.

General principles, when derived from actual legal practice within a variety of systems, have a further valuable function: they demonstrate the distribution of legal authority between local and general interests and thus deal concretely with the problem of how to generalize and, at the same time, to accommodate the increasing trend toward legal pluralism.

Legal rules are what most people think of as law, and a good deal of the work of comparative lawyers is devoted to the description and evaluation of such rules. Much of the concern about divergence of legal systems is phrased in terms of rules, and much of the effort toward unification of law is rule-oriented. But there is a very important sense in which a focus on rules is superficial and misleading: superficial because rules literally lie on the surface of legal systems whose true dimensions are found elsewhere; misleading because we are led to assume that if rules are made to resemble each other something significant by way of rapprochement has been accomplished. A focus on rules limits the attention to only one kind of difference and equates "legal system" with "legal rules." A more adequate definition of a legal system, however, would include a number of additional components: legal extension (the precise location of the boundaries between such non-legal matters and those of legal concern), legal penetration, legal culture (those historically conditioned, deeply rooted attitudes about the nature of law and about the proper structure and operation of a legal system), legal structures (courts, legislatures, administrative agencies, law schools and bar associations), legal actors, and legal processes (legislative and administrative action, judicial proceedings, the private ordering of legal relations, and legal education). These are highly interrelated concepts. In brief, an adequate examination of convergence of the Common Law and the Civil Law requires attention to all dimensions of the legal system and a concomitant distrust of rules of law. This is particularly disagreeable because rules are so easy to find and to read, while it is very difficult to find reliable information about legal extension, legal penetration, the legal culture, and the structure, composition and operation of the law machine.

Common law/civil law refers to ideal types of legal families, while adversarial (legal and procedural truth based on fairness) vs inquisitorial (courts are not only adjudication but also role in the fact founding because material truth is central) refers to ideal types of criminal justice systems/procedural models/modes of investigation and adjudication (more about 'ideal types' later). Further dichotomies may concern the theories of punishment and the analysis of criminal liability, in particular the 'structure of criminal offense', two-tier or three tier. There are some 'overlaps' between dichotomies. Most common law countries use an adversarial model with a two-step organization; most civil law countries use a three-step division and an inquisitorial model (but not Italy). Significant differences between national criminal justice systems, some of which can be explained to some extent by reference to the adversarial/inquisitorial or common law/civil law 'dichotomy' are the historical development, key actors and their roles (e.g. police, prosecutors, courts), the position of the suspect/accused (justice-involved individual), key principles of substantive and procedural criminal law, legitimacy of criminal law (justifications for state intervention), legal education and training and courtroom design (e.g. public prosecutors in common law are attorneys while in civil law they are part of the judiciary).

In Germany, Spain and for some time in Italy, judges had a fact-finding role, the ability to reconstruct the material facts of the case. For this reason, they needed an elaborate structure. In other systems, it is the role of the prosecutor to come up with evidence. Accusatorial/inquisitorial 'dichotomy' is a useful analytical tool (Spencer: 'there are unquestionably two different traditions'), but not without limitations/dangers: it oversimplifies matters (pure systems do no exist), there is potential for labels to 'live a life of their own' (leading to the exaggeration of differences and/or to differences being explained only in terms of labels), there is a potential obstacle to looking to other national criminal justice systems for ideas and inspiration and political 'hijacking' (see, examples from the UK pre- and post-Brexit: continental law is inquisitorial and, thus illiberal, e.g. contrary to British legal traditions/constitutional principles).

Two-tier/three tier analysis of criminal liability is a useful analytical tool. Two-tier model distinguishes between the actus reus and mens rea and it’s used in UK, US, common law. The three-step model looks at the satisfying requirements of the statutory offense ('typicity') and it’s used in Germany and other civil law jurisdictions. But there is convergence (US model penal code with three-tier model) and interaction (through cooperation) and it’s an unsatisfactory dichotomy, see France as a two-tier model and Italy as an adversarial model.

The justification of criminal law (and the nature thereof) reflects the prevention of harm to others (Anglo-American tradition) and the protection of individual legal goods/interests (Rechtsgüter, beni giuridici, bienes juridicos).

Adversarial vs inquisitorial systems: is there still such a difference? - Spencer

It is commonly said that the English system of criminal procedure is 'accusatorial' while those in continental Europe are 'inquisitorial' but it is no longer possible to classify any of the criminal justice systems in Western Europe as wholly accusatorial or wholly inquisitorial.

In the early Middle Ages, criminal procedure in Western Europe seems to have been more or less homogenous. For those caught in the act there was a barbarous summary procedure. For those who were not caught red-handed but fell under suspicion later, there were more leisurely forms of procedure under which the victim made a formal accusation against the suspect. It was this procedure which gradually came to displace the crude summary procedure, which eventually died out. In its original form, this type of procedure worked without anything that the modern lawyer would recognise as a rational evaluation of the evidence. The accusation was made in proper form and had to be supported by a minimum amount of evidence. But if the person so accused denied the offense, the disputed question of his guilt or innocence was resolved in one of two essentially supernatural ways: taking a solemn oath that he was not guilty, together with a group of 'oath-helpers' or an ordeal. Only in the twelfth century did public faith in ordeals begin to falter when doubt about them began to be expressed within the Church.

The resulting gap was filled in different ways in different parts of Western Europe. In most parts of continental Europe kings adopted...