CRIMINAL LAW

CRIMINAL LAW

Maurizio Bellacosa, Francesca Minerva

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, as well as to use the main criminal law research methods. Such knowledge will be ascertained through an oral exam. 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, by drafting written texts and preparing oral presentations. 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 (individual or group) and forms, thus gaining advanced rhetorical skills and the ability to adapt the terms used to the context and to the interlocutor in the specific case. Learning skills: the knowledge gained during the course 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. In addition, through the participation in various workshops, the student will improve his/her ability to use the basic methods to design, carry out and present the results of a research in the criminal law area.

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 can prepare for the exam by studying the following textbook: Marinucci, Giorgio, Emilio Dolcini, and Gian Luigi Gatta. Manuale Di Diritto Penale. Parte Generale. XIV ed., Milano: Giuffrè Francis Lefebvre, 2025.

Teaching Methods

Lessons; case-study: group analysis and discussion; practical workshops; podcasts; intermediate self-assessment test on course topics; mock trials; guest lecture, preparation meetings before mock trials.

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 (25%). On the basis of the assessment criteria described above, for students who have attended at least 80 % of the lectures: participation in practical activities will be considered for 25 % in the final examination; participation in the mock trials will be considered for 25 % in the final examination. The remaining 50 % of the mark will be attributed according to the assessment methods and criteria specified above in the context of the final oral interview. 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) Introduc. Sec. IV – The Italian criminal law Topic 1.1. The principle of ‘reservation’ to the Criminal Code (riserva di codice) Guest lecture ---- On textbook: Marinucci-Dolcini-Gatta: Sec. I, Chap. I: pp. 3-48.

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 ---- On textbooks: Marinucci-Dolcini-Gatta: Sec. II, Chap. II, pp. 49-124

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 Workshop: drafting techniques of a legal opinion in criminal matters ---- On textbooks: Marinucci-Dolcini-Gatta: Sec. II, Cap. III, pp. 125-173. ---- To listen prior to the next practical activity (week 4): Podcast – Criminal Law and space Podcast – Criminal law and personal limits On textbooks: Marinucci-Dolcini-Gatta: Sec. II, Chap. III, pp. 173-220 (except par. from 21 to 24, pp. 184-196, and lett. D “Un sistema penale sovrastatuale”, pp. 205-220).

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 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) Podcast on Criminal law and space – Podcast on Criminal Law and Personal limits –Discussion – Quiz --- On textbook: Marinucci-Dolcini-Gatta: Sec. III, Chap. IV, pp. 221-242; Chap. V, pp.243-260; Chap. VI, pp. 261-322.

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 textbook: Marinucci-Dolcini-Gatta: Sec. III, Chap. VII, pp. 323-392.

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: essentials of the criminal trial --- For the pages of the textbook relating to the topics covered in this week, see week 8. --- To listen prior to the next practical activity (week 7): Podcast – Error; Podcast – Discernment (Imputabilità) On textbook (podcast topics): Marinucci-Dolcini-Gatta: Sec. III, Chap. VIII, pp. 398-403, 462-473, 479-483, 483-504.

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 Podcast on Error– Podcast on Discernment (Imputabilità) –Discussion – Quiz --- For the pages of the textbook relating to the topics covered in this week, see week 8.

Week 8

Sec. V – Objective or strict liability 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 Guest lecture --- On textbook (weeks 6-7-8): Marinucci-Dolcini-Gatta: Sec. III, Chap. VIII, pp. 393-504.

Week 9

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 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 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 Case-study: group analysis and discussion ---- On textbooks: Marinucci-Dolcini-Gatta: Sec. III, Chap. IX, pp. 505-563; Sec. IV, Chap. X, pp. 563-588.. ---- To listen prior to the next practical activity (week 10): Podcast – Sentencing; Podcast – Security measures; Podcast – Restorative justice On textbook (podcast topics): Marinucci-Dolcini Gatta. Sec. VII, Chap. XIII, par. 9, pp. 823-845; Sec. VII, Chap. XIV n. from 1 to 7 (pp. 923-936), n. 16 (p. 957-958), n. 18 (pp. 959-972). Par. from 8 to 15, 17,19 are excluded; Sec. VIII, Chap. XV, pagg. 983-998.

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 Podcast on Sentencing; Podcast on Security measures; Podcast on restorative justice – Discussion – Quiz --- On textbook: Marinucci-Dolcini-Gatta: Sec. IV, Chap. X, pp. 588-626; Sec. V, Chap. XI, pp.648-670.

Week 11

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 Podcast on Multiple offenses (concorso di reati) and matters governed by more than one criminal law or more than one provision if the same criminal law (concorso apparente di norme) 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 Guest lecture --- On textbooks Marinucci-Dolcini-Gatta: Sec. V, Chap. XI, pp. 627-648; Sec. VI, Chap. XII, pp. 671-751.

Week 12

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 Extinction of punishment (in general) and conditional suspension of punishment Mock trial ---- On textbook: Marinucci-Dolcini-Gatta: Sec. VII, Chap. XIII, nn. from1 to 9 (pp. 752-845), n. 11 (pp. 882-883), n. 19 (pp. 894-905). Par. nn. 10, from 12 to 18, and 20 are excluded. Sec. VIII, Chap. XVI is excluded.