RICERCA ITALIANA     

Research program

Development of criminal law in the aereas of European interest in the perspective of the new reform proposals of the Treaties

University Co-ordinator

Università degli Studi di VERONA - STUDI GIURIDICI - ()

Research Unit Leader

Lorenzo Picotti

Description

1. Tasks of the research – The first task of the research is the carrying out a systematic survey of the most recent penal rules issued at a national and European level in those areas of trans-national crime where there is a European “shared competence” such as terrorism, trafficking in human beings, organized crime, computer crime, in order to verify if and how a new trend towards the anticipation and extension of participation is emerging (infra sub 2).
The second task is that of trying and realize what is the influence, on such areas, of supranational sources, starting from the European Community and Union law and then enlarging the context to other international instances, from the Council of Europe to the United Nations, considering their possible interaction and their interaction with the national sources and traditions (infra, sub 3). To this purpose it will be also useful a comparative analysis of regulations belonging to different “systems” and juridical traditions (European Union and American countries, systems of civil law and common law).
The last task, corresponding to the final phase of the research, is an investigation about how the new competences of the European Union in the penal field, provided in the Reform Treaty of the current Treaties– establishing the European Communities and about the European Union – may influence the above mentioned areas of penal law, concerning the European competences “shared” with the national ones, overcoming the present limits and the uncertain situation arising from the dichotomy between the first and the third pillar of the Union (infra sub 4)
2. Anticipation of the punishability and extension of the forms of participation –The analysis will have to point out the different structures of the crimes committed in the areas of transnational crime where there is a European “shared competence” (particularly terrorism, organized crime, computer crime, human beings trade), connecting the peculiarities of the investigated cases to the various interests or “juridical goods” protected.
a) As to the forms of anticipation of punishability, they appear in the most recent regulations through the independent incrimination of activities qualified as “preparatory” to the commission of more traditional offences committed or the commission of which may be considered as started, in the same way as the common discipline for the attempt.
As to the fight against terrorism we will examine the new offences of sponsoring, recruiting, training, assisting – including the supplying of ‘means of transport’ and of ‘instruments of communication’ (artt. 270 ter, 270 quater, 270 quinquies c.p.), – besides the offences of the mere attempt, to be punished as committed offences, the hypothesis of which (artt. 280 e 280 bis c.p.) have been extended, with reference to international terrorism as well, by the law of 2001, 2003 and 2005, implementing international conventions and instruments of the European Union.
In the area of organized crime also emerge the new modifications to the ‘assistance’ to associate crime, now including the supply of ‘means of transport’ and of ‘instruments of communication’ (art. 418 c.p.).
In the area of computer crime it is indicative the incrimination of the mere “access” to other people’s computer systems (art. 615 ter c.p.), or the installing of devices apt to interfere with or prevent computer communication (art. 617 quinquies c.p.) or the mere supplying or possess of codes, key words or other means apt to giving access to a system (art. 615 quater c.p.), as well as the issuing of programs aiming at interfering with a system (art. 615 quinquies c.p.). In the specific field of child pornography even the mere possess or supply (also only virtual) of such materials is punishable (art. 600 quater, and 600-quater.1 c.p. introduced by the law 38/2006); in the field of the penal protection of copyright on technological products new incriminations concerning both the evasion of protective devices and the commercial possess of devices having such aim or aiming at the decoding of limited-access transmissions have been introduced (art. 171 bis, paragraph 1, and art. 171 ter, paragraph 1, letter e, f and f-bis, and 171 octies law 633/1941).
b) As to the extension of the forms of participation, it displays itself via two separate yet converging forms.
Firstly, through the case law, detecting new conducts of participation in the offence consisting in the mere support (aiding and abetting) or “external” backing to crime of associations on the part of individuals who are neither members nor associates to such organizations or criminal groups, such as professional men/women, advisors, judges, complying civil servants etc.; this was the case in Italy with the case law on the “external participation” to associative offences in the field of organized crime (the so-called external concourse in mafia associations).
Such liability scheme, owing to its character of institute of general part concerning the discipline of the concourse of individuals in the offence, is applicable to other areas of crime, from terrorist or subversive associations to the various forms of associations devoted to the trafficking in human beings, drugs, weapons etc.
Secondly, various reform interventions trough new law, often enforcing international and European sources, have outlined or extended independent offences punishing the “mere consent” aimed to the commission of a crime (the so-called conspiracy according to the traditional terminology of common law regulations) or the conducts of mere support, backing, assistance, supply of means or information, preparation of plans or instructions, incitement, glorification of offences etc.
In the area of the fight against terrorism, besides the introduction and extension of the offence of terrorist association (art. 270 bis c.p.), the offence of mere instigation/incitement or of mere conspiracy (artt. 302 e 304 c.p.) are to be taken into account: now they are punishable – also in connection with international terrorism offences – regardless of the elements required for the criminal association; the new offences of assistance, recruiting, training (artt. 270 ter, 270 quater, 270 quinquies c.p.), partially already relevant for the incrimination of “preparatory acts”, but to be considered also as forms of independent incrimination of “participation acts”, are punishable even when the terrorism-aimed crime to which they are connected has not been carried out or has not been ascertained.
The same can be said for the field of organized crime as far as the newly formulated offence of “assistance to the associates” is concerned, as well as for the offence of “political-mafious electoral exchange” (artt. 416 ter and 418 p.c.), and for the new aggravating circumstance of the “contribution” given by an “organized criminal group” having a trans-national character (artt. 3 e 4 law 146/2006).
3. The influence of supranational sources – The analysis of the various “techniques of normative formulation” of offences, from which the actual configuration of the penal protection of the juridical goods emerges, will have to distinguish between choices referring to supranational regulations and the ones more directly referring to the sources and the tradition of national legislators.
In the field of the fight against terrorism the new laws introduced in 2001, 2003 and 2005 enforce both ONU Conventions (particularly on terrorism acts with the use of explosive substances) and the Framework Decision of European Union of 2002, and also conform to the Conventions of the Council of Europe on repression and prevention of terrorism.
Rules on computer crime mostly correspond to the provisions of the Recommendations of the Council of Europe of 1989 (and, partially, to the ones in the more recent Cybercrime Convention of 2001) and to what is provided by the Framework Decision of the European Union of 2005 on computer attacks, which is however still not completely in force in Italy.
The same can be said for a number of new provisions in the matter of child pornography, with special regard to the so-called virtual and/or apparent one (see art. 9 of the Cybercrime Convention and the Framework Decision of the European Union of 2003).
Many directives of the European Community have conditioned penal law in the matter of violation of the copyright in the computer and Internet fields (protection of the software, of databases, of digital works, of crypted transmissions etc.)
New provisions also punish conducts preparatory and functional to the violation of the copyright such as the use of “supports without authorization” or the supplying of services aiming at side-stepping security devices; specific positions of guarantee and control have been provided for service providers.
4. The new competences of the European Union and the “shared competence” with the national one in penal matters – Starting from the scientific bases given by the results of the previous project carried out on the subject «Penal Law and the Treaty establishing a Constitution for Europe» (PRIN funds 2005), we will analyse the extent and the influences on penal law provided by the recent reform project (October 2007), offering absolutely innovative element as to the current situation; the project not only confirms the overcoming of the division into pillars («The Union substitutes and succeeds to the European Community»: art. 1, paragraph 3, Treaty on the Union) but states explicitly the “shared competence” of the Union in penal matters, including the one having a legislative character (art. 4, par. 2, letter j of the Treaty on the Functioning of the Union, renaming of the Treaty establishing the European Community), with the aim of creating that unique «area of freedom, security and justice» that is among the fundamental targets of the Union (new art. 3, par. 2, Treaty on the Union, referring to the “new” Title IV of the treaty on the functioning of the Union, artt. 61 ff., substituting and overcoming the in-force Title VI of the Treaty on the Union, artt. 61 ff.).
Among the specific areas explicitly entrusted to the “shared competence” of the Union and of the Member States, a particular relevance have the areas of terrorism, organized crime, computer crime and more generally trans-national crime, and particularly illicit trafficking in human beings, exploitment of women and children etc. (art. 69 F of the Treaty on the Functioning of the Union, corresponding to art. III-271 of the dismissed Constitutional Treaty). In these areas, as already anticipated by a number of legislative initiatives of the European Commission after the well known sentence of 2005 of the Court of Justice on the matter of penal protection of the environment, the so-called double-text mechanism (directive and framework decision) will be dismissed in favour of one single act having a legislative nature of European competence (directive), leaving the national legislator small space in the matter of crime policy both as to the choice of punishable conducts and as to the structure of the incrimination – possibly stressing the above mentioned trends to the anticipation of punishability and to the extension of the punishment for participating conducts (supra par. 2) – and as far as the choice and extent of the sanctions to be issued.
We will then analyze the consequences of such reforms, referring not only to the principles of subsidiarity and proportionality, on which any action of the European Union must be based, but also to the need of protecting the essential guarantees and the constitutional principles that must go together with the recourse to penal instruments.
5. Tasks of the Research Unit – It is necessary to underline that, with reference to such targets, that have their own definite articulation in terms of concept, the different phases of the research may be in turn partially independent one from the other, having to deal with The detection, collection, selection and filing of the normative, jurisprudence and doctrinal sources, both Italian and foreigner, will at the same time concern also those of European and international law. For such objective stages abroad, at foreign universities and research institutes with which the coordinator of the research team has already been personally in touch (such as the Max Planck Institut für ausländisches und internationales Strafrecht of Freiburg/Germany, the Wiarda Insitut of the Utrecht/Neederland University, the Boalt Hall of the University of California in Berkeley/USA) must be planned for the members of the team, as well as stages at other institutions competent in the matter (and especially OLAF, the European parliament and the European Council).
The elaboration and comparative analysis of the various disciplines and results will always have to be put into relation with the practical side and the practical and new forms of manifestation of crime phenomena and behaviours to be contrasted, in a continuous evolution and change; hence the need for the cooperation of a technical staff of experts in the field of informatics and of security, such as computer technicians, lawyers, detectives, experts in trans-national crime in the areas to be considered (terrorism, organized crime, computer crime, trafficking in human beings).
The second and final part of the research, concerning the relationships among the above mentioned areas of penal law ant the new scheme of competences outlined by the reform of the European Union Treaties, will obviously require investigations not only on the in-force communitarian law and European Union law, but also on the contents of the reform presently under achievement and enforcement, influencing those areas, in order to evaluate what influence may have on it not only the new European legislative competences in the penal field but, more generally, the structure of the institutional frame in its whole, starting from the fundamental principles and rights included in the European Chart of fundamental rights (that will have the value of a Treaty), through the various fields of the European ‘policies’ that may be of interest for the areas considered, up to the more specific target of the «area of freedom, security and justice» that will be regulated by the new Title IV of the Tretay on the Functioning of the Union, with the connected normative instruments.
6. Results of the research – The results will be presented and discussed in seminars and conferences (that migth also be organized together with other Units) especially at the end of the research, with the participation of foreign experts, scholars and representatives of European and international institutions interested in the subject; essays, contributions and lectures on the results will also be published.
As the criminal phenomena and the juridical responses that form the object of our research are to be studied under the normative dimension, but also from an empiric and operational point of view, it will be necessary a specific test concerning the actual implementation of the in-progress legislative modifications and reforms; the testing will be carried out through specific tasks assigned to one or more appointed grant researchers.