Starting from the observation that criminal law is different in each of the member states as a result of which (1) what constitutes an offence in one member state does not necessarily constitute an offence in another member state, (2) even where offences are equally criminalised in all member states, the sanction levels may still vary and (3) more generally, the position of the offences in the entirety of the justice system may vary, the question arises to what extent those so-called offence diversities are an obstacle for EU policy making and to what extent it is feasible to overcome those obstacles. The doctoral research underpinned the need for the development of an EU offence policy, using the common criminalisation acquis as a centre piece. The common criminalisation acquis can help (1) to ensure comparability of crime statistics, (2) to avoid redundant double criminality testing, (3) to overcome evidence gathering difficulties, (4) to clarify the mandates of the EU level actors, (5) to identify the equivalent national sentence and (6) to scope the taking account of prior convictions. The only condition: the development of an EU offence policy.

https://biblio.ugent.be/publication/2129164/file/4336026.pdf

Overcoming offence diversities in EU policy making: needs and feasibility assessment

Significant changes in Italian political, socioeconomic, and institutional contexts since 1985 have led to markedly harsher policies and laws. Sentencing law and penal policies have changed substantially. In the late 1980s, the legislature embraced rehabilitation in corrections and enacted a new Code of Criminal Procedure modeled on principles and values typical of adversarial legal systems. The demise in the early 1990s of the so-called First Republic due to the massive bribery scandal known as Mani Pulite (“Clean Hands”) profoundly affected the structure and functioning of the political system, perceptions of crime, and shaping of penal policies. Despite stable and declining crime rates, over time governments have enacted policies overrelying on criminal sanctions. Particular categories of offenders, undocumented immigrants and drug offenders, have been hit especially hard. Rapidly growing imprisonment rates produced overcrowding that was tackled mostly with alternatives to implementation of cus...

Sentencing and Penal Policies in Italy, 1985–2015: The Tale of a Troubled Country

Despite the fact that Australia and the European Union (EU) have different structures of governance, histories, and cultures, both entities face remarkably similar problems in relation to police cooperation across borders. Australia is divided in nine different criminal jurisdictions, each of them policed by its own police force. Problems of border crossing, information exchange and joint investigations therefore arise similar to those in the EU. These problems have intensified in the 20th century with globalisation and the increased mobility of offenders. Several strategies, both legal and administrative, have necessarily developed to secure inter-state borders. Many of these strategies, like joint investigation teams, common databases and mutual recognition can be compared to solutions developed in the EU. This article will analyse some of the strategies that have been developed in Australia and in the EU to out-balance the lack of borders within them. It will be discussed what the major common impediments to police cooperation are in both entities. As many problems of cross-border policing result from the fact that law enforcement strategies are purely regional, it will be explored how more advanced cooperation strategies could be harmonised at the EU and Australian Federal levels. The major inhibiting factor in relation to harmonisation of legal frameworks in both entities will be defined as 'the fear of insignificance' or the fear of state actors to lose their individual identities in the process of harmonisation.

https://papers.ssrn.com/sol3/Delivery.cfm?abstractid=1660229

‘The Fear of Insignificance’: New Perspectives on Harmonising Police Cooperation in Europe and Australia

This review article investigates academic research about the debates surrounding prison crises that expose overcrowding and the bets on criminal policy reforms to address these situations. For this purpose, a documentary analysis as a qualitative research method is used based on the Scopus database review. Of the 393 results obtained, the following exclusion criteria were executed: disciplinary area, study period, and thematic relevance, which let us with 78 viable documents. The analysis was performed in VOSviewer, allowing us to group the papers into three categories: the crisis in the prison system, conflictive situations in prisons, and response options for criminal policy. The results and conclusions are obtained after the implementation of a content analysis, which allowed us to notice that there are three debates around the subject: Studies that indicate the challenges that prison systems present in reducing overcrowding, those that account for the endogenous situations that are evident by the crises, and finally the proposals for criminal policy reforms.

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Crisis en los sistemas penitenciarios: derechos humanos, hacinamiento y desafíos de las políticas criminales. Una aproximación desde la producción bibliográfica

Italian veto in the EU Council reversed by Berlusconi – Italian Parliament: lack of trust in other European Union member states – Italian implementing Act: in between the Framework Decision and the Italian legal order – Case-law of the Corte di Cassazione: interpretations in conformity with the Framework Decision and with the Italian constitutional order – Some reflections on consistent interpretation, the relationship between the legislature and the judiciary, and two very recent decisions of the Corte Costituzionale.

The European Arrest Warrant in the Italian Republic

In April 2010 a group of EU Member States proposed a Directive on the European Investigation Order, an instrument which, if adopted, will significantly change the way in which evidence is gathered at the EU level. After the failure of the EEW, which focused on the exchange of evidence which had already been gathered, the objective of the new text is to create a single instrument for obtaining all kinds of evidence located in another Member State. The aim of this paper is to examine, within the current framework, the suitability of this new instrument, with particular reference to its impact on the rights of defendants.

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A New and Controversial Scenario in the Gathering of Evidence at the European Level: The Proposal for a Directive on the European Investigation Order

The right to take part personally in criminal proceedings, although not expressly provided at a Constitutional level, is an expression of the principle of a fair trial upheld by Article 6 of the ECHR and translated into Article 111 of the Italian Constitution. In the course of years, the CCP, also following some condemnations by the Strasbourg Court, underwent several modifications aimed at implementing principles and conditions affirmed by the ECHR that can legitimate proceedings in absentia of a defendant.

Report on Italy

The European Union, keeping to the traditional principles of conventional international law, dealt with judicial assistance within the framework provided by the Third Pillar, at first rather timidly through its new normative instruments; and then more effectively through the traditional route of conventions. The two main aims of the EU Convention 2000 are, on the one hand, 'ensuring that mutual assistance between Member States is provided in a fast and efficient manner'; 29 and on the other, guaranteeing that this is done in a way that is: 'compatible with the basic principles of their national law and in compliance with the individual rights and principles of the European Convention for the Protection of Human Rights of 1950'. The new model of judicial cooperation based on the principle of mutual recognition is complemented by another principle affirmed in the Hague Programme: namely the principle of availability of information. Keywords: EU Convention 2000; European Union; mutual assistance conventions

The Future Of Mutual Assistance Conventions In The European Union

Italian law only provides the general conditions for the institution of recall. It follows that significant discretionary powers are enjoyed by the surveillance judges (and in particular by the Surveillance Tribunal) who evaluate on a case-by-case basis whether the commission of another offence or the infringement of parole conditions demonstrate the offenders‟ negative attitude to reintegrate into society. However, especially with reference to the commission of serious crimes, the judges‟ discretionary assessment can result in a restrictive application of the law on recall with the consequence that parolees are returned to prison even when they commit minor violations. The Italian penitentiary system is currently undergoing a serious crisis mainly caused by prison overcrowding. This article argues that reform of the system is thus urgently needed. Such reform should be aimed, among other objectives, at strengthening the role of the bodies which are involved in the different phases of recall (e.g. social services, prison staff, etc.), in order to assist and support judges in their difficult task of decision making in an area – such that of recall – full of social implication.

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Annalisa Mangiaracina

Papers

A New and Controversial Scenario in the Gathering of Evidence at the European Level: The Proposal for a Directive on the European Investigation Order

Report on Italy

The Future Of Mutual Assistance Conventions In The European Union

‘Back Door Sentencing’ in Italy: Common Reasons and Main Consequences for the Recall of Prisoners:

Cooperazione giudiziaria e forme di confisca