CRIMINAL LAW

CRIMINAL LAW

Francesca Minerva, Emanuele Birritteri

Instructional goals

Provide the student with the legal tools to analyse the constitutional principles in criminal matters, the notions set out by the Italian Criminal Code as well as the general categories, by following the appropriate logical and legal approach.

Intended learning outcomes

Knowledge and understanding: the student – through course attendance, group discussions on cases and workshops – will gain full knowledge of the constitutional principles in criminal matters, of the general theory of crime and of the fundamental concepts related to the so called ‘general part’ of the Italian criminal law. The student will also be able to interpret such concepts taking into account the supranational regulatory framework and the influence of the national and European case law. Such knowledge will be ascertained through an oral exam at the end of the course. Applying knowledge and understanding: The student, by learning the theory and the appropriate legal method, will be able to interpret and apply, also to cases, the fundamental principles and concepts related to the so called ‘general part’ of the Italian criminal law. The student will also be able to use the main criminal law research methods. Finally, at the end of the course, such knowledge will be ascertained through an oral exam. Making judgements: The student, by making use of the appropriate study and research methods learned during the course, will be able to collect data and materials to analyse the relevant provisions, case law as well as scholars’ approaches related to the ‘general part’ of the Italian criminal code. The student, therefore, will gain – also through the participation to different workshops – the ability to evaluate such data and materials independently and to make critical judgements on the application of principles and fundamental categories to practical cases. The student will be also able to identify concrete solutions to the legal issues at stake. Communication skills: at the end of the course the student will be able to use the legal and technical vocabulary of criminal law, addressing the legal issues at hand with terminological accuracy. Through the various training activities that will take place during the course, the student will be able to put these communication skills into practice in various contexts, thus gaining advanced rhetorical skills and the ability to adapt the terms used to the situation and to the interlocutor in the specific case. Learning skills: the knowledge gained during the course, as well as through participation in the various workshops provided, will allow the student to independently understand and interpret regulatory changes, new case law and scholars’ approaches related to the fundamental principles and concepts of the so called ‘general part’ of the Italian criminal law.

Course Contents

The general principles in criminal matters; the criminal law; structure and types of criminal offenses; the offender; the legal consequences of crimes, except the specific security measures (but including the confiscation) and the civil obligations arising from criminal offenses.

Reference Books

Students may choose to prepare for the exam by choosing one of the following textbooks: - Antolisei, Francesco. Manuale Di Diritto Penale. Parte Generale. 16. aggiornata e integrata / a cura di Luigi Conti ed. Milano: Giuffrè, 2003: https://tinyurl.com/hxzkeaye - Marinucci, Giorgio, Emilio Dolcini, and Gian Luigi Gatta. Manuale Di Diritto Penale. Parte Generale. Tredicesima ed. Milano: Giuffrè Francis Lefebvre, 2024.

Teaching Methods

Lessons; discussion of cases; practical workshops.

Assessment Method

The final exam consists of an oral interview and the student shall demonstrate that he/she has achieved the expected learning outcomes, firstly with regard to the necessary knowledge of the fundamental concepts related to the ‘general part’ of the Italian Criminal Code. The student is also expected to prove that he/she is able to apply such concepts to concrete cases and to independently analyse relevant legislation and case law, as to develop an autonomous ability to study the subject. The student shall also be able to use the appropriate technical and legal vocabulary of criminal law. The grade will be awarded in thirtieths and the following evaluation criteria will be taken into account: - knowledge and understanding of the fundamental concepts and principles related to the ‘general part’ of criminal law and ability to apply them to concrete cases (75 %); appropriate use of the technical and legal vocabulary, ability to independently evaluate and analyse relevant sources, activities carried out during the course (25%). With reference to the latter evaluation criterion, the participation in the workshops and other course activities mentioned above will be considered. Learning gaps concerning one or more notions or principles will lead to an insufficient evaluation, even in presence of a basic knowledge of the matter.

Thesis assignment criteria

Interest in the course; high grade as a result of the oral exam; attendance of the criminal law major.

Week 1

Introduc. Sec. I - The criminal law Topic 1.1 Origins and evolution of criminal law Topic 1.2 Criminal law and morality Topic: 1.3 Functions of criminal law in the constitutional framework Introduc. Sec. II Topic 2.1 General principles. Autonomia, sussidiarietà, frammentarietà Topic 2.2 The protection of legal goods Topic 2.3 Punishment proportioned to guilt (proporzione e meritevolezza della pena) Introduc. Sec. III The criminal provision Topic 3.1 Offense and punishment (precetto e sanzione) Topic 3.2 Different types of criminal provisions Topic 3.3 The subjects of criminal provisions Topic 3.4 Crimes and misdemeanours (delitti e contravvenzioni) Sec. IV – The Italian criminal law Topic 1.1. The principle of ‘reservation’ to the Criminal Code (riserva di codice) ---- On textbooks: Marinucci-Dolcini-Gatta: Sec. I, Chap. I: pp. 3-48; Antolisei: Introduc., Sec. I and II, Part I, Chap. I, pp. 3-64.

Week 2

Sec. I – Sources of law and interpretation The sources of criminal law Topic 1.1 The principle of legality Topic 1.2 The principle of reservation to the law (riserva di legge) Topic 1.3 Lex certa principle (tassatività/precisione) Sec. II Topic 2.1 Relationship with secondary law Topic 2.2 Blanket criminal provisions (norme penali in bianco) Sec. III Topic 3.1 Reservation to the law and EU legislation Topic 3.2 Decree-law and legislative decree Topic 3.3 Regional law Topic 3.4 Custom Sec. IV The interpretation of criminal law Topic 4.1 Interpretation techniques Topic 4.2 Analogy in general Topic 4.3 Analogy in criminal law and extensive interpretation Case-study: group analysis and discussion ---- On textbooks: Marinucci-Dolcini-Gatta: Sec. II, Chap. II, pp. 49-124; Antolisei: Part I, Chap. II and III, pp. 65-102.

Week 3

Sec. I – The application of criminal law Criminal law and time Topic 1.1 The principle of non-retroactivity Topic 1.2 Successive criminal laws (art. 2 of the Italian Criminal Code) Topic 1.3 The principle of retroactivity in mitius Sec. II Topic 2.1. Emergency and temporary laws Topic 2.2 Expiration and non-ratification of a decree-law Topic 2.3 Unconstitutional laws Topic 2.4 Tempus commissi delicti Sec. III Criminal law and space Topic 3.1 The territory of the State Topic 3.2 Offenses committed abroad Topic 3.3 Political crimes Topic 3.4 Common crimes committed abroad Topic 3.5 Locus commissi delicti Sec. IV Criminal law and personal limits Topic 4.1 Binding force of the criminal law Topic 4.2 Immunities Case-study: group analysis and discussion ---- On textbooks: Marinucci-Dolcini-Gatta: Sec. II, Cap. III, pp. 125-216 (except par. from 21 to 24, pp. 182-192, and letter D “Un sistema penale sovrastatuale”, pp. 202-216); Antolisei: Part I, Chap. IV, Sec. I, II and III, pp. 103-150, and additional teaching materials.

Week 4

Sec. I – The offense – systematic analysis and structure Offense analysis and general theory Topic 1.1 The bipartite, tripartite and quadripartite theories (teoria bipartita, tripartita, quadripartita) Topic 1.2 ‘Tipicality’ (tipicità) and harm (offesa) to legal goods Topic 1.3 Unlawfulness and blameworthiness Sec. II The structure of the crime. Objective element (actus reus) Topic 2.1 The conduct Topic 2.2 Commissive and omissive offense Topic 2.3 The event Topic 2.4 The material object Sec. III Causal relationship Topic 3.1 The different theories Topic 3.2 The criminal code regime Topic 3.3 Concurrent causes Sec. IV Topic 4.1 ‘Proper’ and ‘improper’ crimes of omission (reati omissivi propri e impropri) and other classifications based on the structure of the fact Topic 4.2 Causal relationship and ‘improper’ crimes of omission Topic 4.3 The legal obligation to prevent an event Topic 4.4 The ’position of guarantee’ (posizione di garanzia) Case-study: group analysis and discussion Workshop: the students will solve a practical case in criminal matters --- On textbooks: Marinucci-Dolcini-Gatta: Sec. III, Chap. IV, V, and VI, pp. 217-318; Antolisei: Part II, Title I, Chap. I and Chap. II [Sec. I, II, III and IV], pp. 165-272.

Week 5

Sec. I – Justifications (scriminanti) Topic 1.1 Lawful defense Topic 1.2 State of necessity Sec. II Topic 2.1 Lawful consent Topic 2.2 Exercise of a right and performance of a duty Topic 2.3 Lawful use of arms Sec. III Topic 1. Negligent excess and error concerning justifications Case-study: group analysis and discussion ---- On textbooks: Marinucci-Dolcini-Gatta: Sec. III, Chap. VII, pp. 319-388; Antolisei: Part II, Chap. II, Sec. V, pp. 272-320, and additional teaching materials.

Week 6

Sec. I – Blameworthiness – Mental element of the offense (mens rea) Blameworthiness Topic 1.1 Notion and constitutional basis Topic 1.2 Psychological and normative theory Topic 1.3 The so called ‘guilt of the perpetrator’ (colpa d’autore) Sec. II The mental element Topic 2.1 Consciousness and will Topic 2.2 Intention (dolo). Structure and object Topic 2.3 Forms of intention Topic 2.4 Ascertaining the intention Workshop: the students will solve a practical case in criminal matters --- For the pages of the textbooks relating to the topics covered in this week, see week 8.

Week 7

Sec. III - The mental element Negligence Topic 3.1 The lack of will. The violation of precautionary rules Topic 3.2 Generic and specific negligence (colpa generica e specifica) Topic 3.3 Ascertaining the negligence Topic 3.4 Foreseeability and avoidance of the event Topic 3.5 Conscious negligence (colpa con previsione) Topic 3.6 The so called ‘improper negligence’ Topic 3.7 Accident and force majeure Sec. IV Topic 4.1 The mental element in misdemeanours Case-study: group analysis and discussion --- For the pages of the textbooks relating to the topics covered in this week, see week 8.

Week 8

Sec. V – Objective or strict liability and error Objective or strict liability Topic 5.1 Preterintentional crime Topic 5.2 Crimes aggravated by the event (delitti aggravati dall’evento) Topic 5.3 Offenses committed by means of the press Topic 5.4 Strict liability and constitutional principles Sec. VI – Error Topic 6.1 Error and ignorance Topic 6.2 Error of fact and error as to a law Topic 6.3 Mistake of extra-criminal law Topic 6.4 Error induced by deceit of others Topic 6.5 The unavoidable ignorance of criminal law Topic 6.6 The so called ‘inesigibilità’ Sec. VII – Error in executing an offense Topic 7.1 Aberratio Sec. VIII - Responsibility (imputabilità) and punishment Responsibility (imputabilità) Topic 8.1 The offender Topic 8.2 Insanity and diminished responsibility Topic 8.3 Responsibility and blameworthiness Sec. IX - Punishability Topic 9.1 Notion Topic 9.2 Objective conditions of punishability Topic 9.3 Circumstances precluding punishability Topic 9.4 Extinction of the offense Case-study: group analysis and discussion --- On textbooks: Marinucci-Dolcini-Gatta: Sec. III, Chap. VIII and IX, pp. 389-554; Antolisei: Part II, Chap. III, pp. 321-436; Part III, Chap. II, pp. 609-642; Part IV, Chap. I [Sec. III], pp. 755-804; additional teaching materials.

Week 9

Sec. I – ‘Forme di manifestazione del reato’ Attempted crime  Topic 1.1 Consummation (consumazione del reato) Topic 1.2 Preparation and punishable attempt Topic 1.3 Acts aptly directed in an unequivocal manner towards commission of a crime (idoneità e non equivocità degli atti) Topic 1.4 Intention in attempted crimes Students will be divided into groups for the mock trial which will be held on week 12; Topic 1.5 Voluntary withdrawal and active withdrawal (desistenza e recesso attivo) Topic 1.6 Attempt in different types of crimes Topic 1.7 Erroneously supposed offenses and impossible offenses (reato putativo e reato impossibile) Topic 1.8 The ‘realistic’ theory ---- For the pages of the textbooks relating to the topics covered in this week, see week 10.

Week 10

Sec. II Complicity in the offense Topic 2.1 Complicity in general Topic 2.2 ‘Concorso eventuale e concorso necessario’ Topic 2.3 Different theories about complicity Topic 2.4 Structure and requirements Topic 2.5 Offense other than that desired by one of the participants (varianti individuali) Topic 2.6 Complicity in the so called ‘reato proprio’ Topic 2.7 Consideration of circumstances (comunicabilità delle circostanze) Topic 2.8 Collaboration in crimes of negligence Sec. III Multiple offenses (concorso di reati) Topic 3.1 Formal multiplicity and material multiplicity Topic 3.2 Continuing offenses Topic 3.3 Complex offenses Sec. IV Matters governed by more than one criminal law or more than one provision if the same criminal law (concorso apparente di norme) Topic 4.1 Principle of specialty Topic 4.2 Absorption and consumption Topic 4.3 Criminal progression Topic 4.4 Non-punishable ante factum and post factum Sec. V Circumstances of the offense Topic 5.1 Notion Topic 5.2 Classification Topic 5.3 Criterion of imputation Topic 5.4 Concurrence of circumstances Topic 5.5 Recidivism Workshop: mock trial preparation. On textbooks: Marinucci-Dolcini-Gatta: Sec. IV, V and VI, Chap. X, XI and XII, pp. 555-737; Antolisei: Part II, Title II, Chap. I, II, III and IV, pp. 437-594; Part I, Chap. IV, Sec. IV, pp. 150-162; Part III, Chap. III, n. 215, pp. 658-663, and additional teaching materials.

Week 11

Sec. I – Legal consequences of committing a crime Topic 1.1 The purposes of punishment: types and features Topic 1.2 Alternative punishments and collateral punishments (pene sostitutive e accessorie) Topic 1.3 Computation of punishment Topic 1.4 Extinction of punishment (in general) and conditional suspension of punishment Sec. II – Security measures Topic 2.1 Personal security measures (general provisions) Topic 2.2 Security measures affecting property (general provisions) Topic. 2.3 Confiscation Workshop: mock trial preparation. --- On textbooks: Marinucci-Dolcini-Gatta: Sec. VII, Chap. XIII, n. from 1 to 9 (pp. 738-825), n. 11 (pp. 858-860), n. 19 (pp. 871-881). Par. n. 10, from 12 to 18, and 20 are excluded. Chap. XIV, n. from 1 to 7 (pp. 897-910), n. 16 (p. 930), n. 18 (pp. 932-945). Par. from 8 to 15, 17, 19, and Chap. XVI are excluded. Antolisei: Part IV, Chap. I, Sec. I and II: pp. 675-740 (except n. 235, pp. 740-755 and Part III. Chap. I and Chap. III, from 209 to 214 and from 216 to 218, pp. 609-657, 664-671); Part IV, Chap. II, pp. 805-837 and additional teaching materials (except Chap. III: pp. 839-853).

Week 12

Sez. I – Restorative justice Topic 1.1 General principles, aims and scope of application Topic 1.2. Restorative justice programs Topic 1.3 Criminal consequences Mock trial ---- On textbooks: Marinucci-Dolcini-Gatta: Sec. VIII, Chap. XV; Antolisei: additional learning materials.