Crimes against the PA, anti-corruption legislation and control systems in the EU and Italy“: the lectures of Prof. Avv. Roberto De Vita ‘s teaching for the 35th “Economic Financial Investigator” Qualification Course at the Guardia di Finanza School of Economic and Financial Police begin today.

 

Read the original article on The Messenger

February 5, 2024 marked the beginning of the work of the “Generative Artificial Intelligence Learning and Innovation Hub” Observatory sponsored by Unimarconi, Italy’s first digital university.

The Observatory’s mission aims to play a key role in the development and application of Artificial Intelligence (AI) in Italy, focusing on an in-depth analysis of the scientific, economic, ethical, regulatory and educational implications related to this revolutionary technology.

The scope of the Observatory will focus primarily on Generative Artificial Intelligence and, in particular, on the Training of Skills necessary for its best application including through the use of this technology.

Authoritative representatives from the world of Education and Training, Research, Industry, Technology and other important sectors (Defense and Security, Legal, Communication, Sports, Third Sector) that can contribute to the ethical and sustainable development and application of Generative Artificial Intelligence in Italy have been called to join the Observatory.

The following experts, along with Director Luca Manuelli and the 3 representatives designated by Unimarconi Arturo Lavalle, Tommaso Saso and Ernesto De Luca, are part of the Observatory: Piero Azzalini of Fincantieri, Father Paolo Benanti, Marco Bentivogli, Stefano Besana of Deloitte, Stefano da Empoli of I-Com, Roberto De Vita of DEVITALAW, Roberto Fraccapani of SAP Italia, Giovanni Gambaro of RINA, Marco Gay of Digital Magics, Stefano Greco of CDP, Riccardo Meloni of Sport and Health, Alex Moscetta of the Community of Sant’Egidio, Dario Pagani of Eni, Ezia Palmeri of the Ministry of Education and Merit, Davide Rizzo of A2A, Fiammetta Salmoni of Defense Industries Agency, Giuseppe Saragò of Wartsila, and Flavio Tonelli of UNIGE.

The Observatory will operate on an international dimension through the support of major multinational entities and the involvement of renowned Italian IA specialists working abroad.

Among the first activities initiated by the Observatory, also in view of the G7 scheduled to take place in mid-2024 in Italy where the topic of Artificial Intelligence will be at the center of the agenda, is the preparation of a Position Paper that addresses useful recommendations to the government and key national and international Stakeholders on the topic of the skills needed to be able to best develop, apply and manage Generative Artificial Intelligence in all professional and everyday areas.

“In an increasingly interconnected and technologically advanced world, the birth of the Generative Artificial Intelligence Learning and Innovation Hub Observatory marks a key step toward the understanding and ethical application of artificial intelligence in Italy.

This week, the firm welcomed two students from the “Torquato Tasso” State Gymnasium High School as part of a Ministry for Education Path for Transversal Skills and Orientation (PCTO).

The project allowed the younglings to work alongside the firm’s professionals to learn about the role of the criminal lawyer and orient themselves in the criminal justice system.

“Security in the new technologies”: the lessons of Prof. Avv. Roberto De Vita for the Officers of the 51st Higher Course of the Guardia di Finanza School of Economic Financial Police.

Minors, even under 14, increasingly enlisted by organized crime, baby gangs structured, armed and ferocious as clans, drug dealing experienced as “school-to-work alternation” and group sexual violence as teenage exuberance, criminal patterns as sung and acted out lifestyles.

Juvenile delinquency is becoming increasingly “normalized,” inscribed as part of a generalized “juvenile malaise” rather than deviance in the strict sense, a symptom of a changing society, but also of inadequate institutions and instruments of prevention and counteraction. The city of boys is a world now inhabited by the ghosts of frustrations and pain, of unattainable dreams, anesthetized by alcohol and drugs, with a frightening increase in addiction among younger and younger youth. A city abandoned by adults, always busy with something else, inadequate and disoriented, ready to flee from parental failure and bent on blaming schools and institutions, frightened and now resigned.

In the face of a society increasingly alarmed by a youth experienced as deviant, dangerous and out of control, Italy’s juvenile justice system (the result of multiple legislative interventions, layered but not organic) manifests the chronicity of its inability, not only to achieve its original purposes but, above all, to be perceived as a bulwark of juvenile protection and juvenile crime prevention.

In recent decades, the population of juvenile defendants in Italy has undergone significant changes, reflecting social, cultural and legislative dynamics that have shaped the juvenile justice environment in the country.

One of the most obvious transformations concerns the perception of criminal responsibility for juveniles. Over the years, there has been a shift in approach from a strict-paternalistic view to a paradigm more oriented toward individual responsibility. This change was most evident with the 1988 reform, which introduced the institution of suspended trial with probation for the juvenile defendant, aimed at actively involving the juvenile in his or her own reeducation.

With this in mind, there has been a growing awareness of the importance of avoiding the systematic use of imprisonment for juveniles. This has led to the implementation of programs and initiatives aimed at providing reeducational and preventive solutions, thereby reducing the number of incarcerated youth. Suspension of trial, the institution of “irrelevance of the fact,” judicial pardons, and other measures aimed at the juvenile’s rapid exit from the juvenile justice system (considered afflictive and stigmatizing in itself) have, however, often gained ground as deflective tools for court workloads and the dramatic shortage of resources for juvenile social services. An approach that has also reduced, if not eliminated altogether, confrontation with victims (who are almost always absent in juvenile proceedings) and which, moreover, proves totally inadequate in the face of the exponential increase in group crime phenomena. The result is that the juvenile not only does not confront the punishment (regardless of the nature of the punishment), not even in terms of the fear experienced, but also does not confront the process and the victims: elements, the latter, that constitute pathways that are nonetheless empowering.

The phenomena of greatest alarm: baby gangs

In 2022, there were 14,221 juveniles in the juvenile welfare service’s charge in criminal proceedings for the most serious offenses, including 6,400 from Campania. There were 400 juveniles detained at the 17 Juvenile Correctional Institutions, of whom 201 (50 percent) were foreign minors, mainly Romanian, followed by Moroccan and then Albanian.

Alongside the phenomenon with greater diffusion in the south of Italy and in particular in Campania and the metropolitan cities of Sicily and Apulia, of the enlistment by the mafias of young boys for activities of transportation and drug dealing, the juvenile criminal phenomenon that has been of greatest concern in recent times is represented by the so-called “baby gangs,” groups composed of minors and sometimes young adults, who make themselves the protagonists of particularly alarming crimes: fights aggravated by the consequences and use of firearms, murders, robberies and extortion.d. “baby gangs,” groups composed of minors and sometimes young adults, who become the protagonists of particularly alarming crimes: fights aggravated by the consequences and use of firearms, murders, robberies and extortion, organized drug dealing with widespread and capillary networks, and group sexual violence.

According to data collected in the area by the Police and Social Services, the most distinctive features of baby gangs are the severity and repetitiveness of the crimes committed[1]. Groups often differ in common socio-anagraphic characteristics of members, type of social media activity, and an attempt to operate forms of control over their territory.

It is particularly difficult to operate an analytical data collection activity to identify the number of youth gangs in the territory and the incidence of these on the total number of crimes committed by juveniles. However, there are a number of indicators that can at least provide a picture on the growth of the phenomenon.

A 2022 research conducted in collaboration with the Ministry of Justice showed that there has been a noticeable increase in press articles containing references to “juvenile gang” or “baby gang” over the past few years. Specifically, it rose from 612 in 2017 to 1909 in 2022.

Although the extent of this increase may in part be due to increased public awareness of the issue, the Provincial Carabinieri Commands and Police Headquarters state how cases of fights, beatings, injuries, thefts or robberies on public streets and disturbance of the public peace attributable to baby gangs are on the rise during the same period.

Another relevant fact is the composition of these groups: the majority of the teens are Italian and about half do not come from socio-economic hardship situations, with a prevalence of teens between the ages of 15 and 17.

There are different types of baby gangs, some of which are inspired by homegrown or foreign organized crime groups, but the most prevalent are groups of unorganized teens with weak social ties and without defined hierarchies or specific criminal aims, devoted mainly to occasional violent or deviant activities.

According to data from the USSM (Juvenile Social Service Offices), only 3 percent of boys involved in juvenile gang-related crimes end up in juvenile correctional institutions. Most, however, are involved in reeducational programs: the institution of probation is applied to about 50 percent of these minors.

However, it is shown that alongside the albeit commendable activities of study, work, socially useful or mediation with victims, there are very few (around 15 percent) prescriptions regarding compliance with schedules or prohibitions to frequent certain places and people.

This aspect, on the other hand, should assume primary importance for defendants for crimes committed with other minors. In fact, during the adolescent period, the major influencing factors on a person’s personality formation are family support and relationships with one’s peers[2].

According to some studies, adolescents with prosocial friendships or groups would be less likely to engage in antisocial behavior (so-called peer pressure[3]) and would also be better able to cope with any adversity from the family unit[4]. In fact, peer disapproval of criminal behavior would reduce the commission of violent crimes.

In contrast, hanging out with deviant peers is very often the most significant predictor of antisocial behavior[5].

The problem of youth gangs has been addressed in various ways in foreign legal systems, with the approach taken often influenced by the severity and prevalence of the phenomenon in each nation. In the United States in particular, baby gangs have been a major focus of public debate. In fact, the phenomenon has had a significant impact especially in urban communities, giving rise to coping strategies that have evolved over time. In the 1980s and 1990s, some U.S. cities implemented more aggressive approaches, using particularly strong“law and order” policies and increasing penalties for gang-associated crimes.

However, in recent decades, there has been a transition to more prevention- and rehabilitation-oriented approaches. Prevention programs, social service interventions, educational opportunities and reintegration programs have been developed to provide alternatives to gang life and reduce youth vulnerability to such involvement.

The approach varies greatly according to local specifics and the perception of the problem. While some jurisdictions in the United States continue to emphasize law enforcement, many are trying to balance public safety with programs that address the underlying causes of gang involvement, such as poverty, lack of opportunity, and family challenges.

In fact, interventions used include community mobilization, involving local citizens, including former gang members, community groups and agencies, and coordination of programs and staff functions within and across agencies. Opportunities are also sought: development of various specific education, training and employment programs aimed at the young people involved.

There is no shortage of widespread social intervention, involving youth-serving agencies, schools, grassroots groups, faith-based organizations, law enforcement and other youth/criminal organizations in “reaching out” to gang-involved youth and their families, connecting them with the conventional world and needed services.

Of course, this is accompanied by suppression tools, from formal and informal social control procedures (including close supervision and monitoring of gang-involved youth by youth/criminal system agencies) to school interventions[6].

The question posed with respect to the phenomenon in our country, then, concerns the ability of the current juvenile system to deal effectively with rather complex phenomena, which are not resolved exclusively in the deviant behavior of an individual boy, but often-and increasingly-must be framed and resolved within a broader social context.

Complexities that often lead the debate, especially in public opinion and in the superficial political response to some particularly serious incidents, to call for a lowering of the chargeable age and greater use of prison.

The evolution of juvenile trial principles

The punitive segregation of deviant minors (and the overcoming of equalization with adults in the case of criminal conduct) began as early as the 18th century, stemming from the separate institutionalization of poor minors. The Catholic Church previously dealt with vagrant, delinquent or abandoned youths, following a pedagogical-punitive approach. Throughout the history of Italian legislation, there have been different ways of handling juvenile justice. In 1703, Pope Clement XI founded the first specialized institutions for the reeducation of convicted juveniles.

In 1890 the Zanardelli Code came into force in the Kingdom of Italy, introducing imputability as early as age 9 and establishing reformatories for reeducation. Under Fascism, the Rocco Code raised the age of presumption of non-indictment from 9 to 14. This was followed by the establishment of Juvenile Courts in 1934.

In 1956, the Juvenile Procedural Code was introduced, marking a clear breakthrough in the field, and then arrived at the current structure with the 1988 reform (by Presidential Decree No. 448), thanks to which the juvenile criminal justice system was completely reformed, taking on its current founding characteristics, focusing on the responsibility of the juvenile and introducing the institution of suspended trial with probation.

At the international level, the recognition of children’s rights has spread following the evolution of the affirmation of human rights and slowly finding its own autonomous space, especially since the early 1900s, with specific rights and special protection requirements.

In 1913, the International Conference for the Protection of Children[7] was held in Brussels, and in 1919, the ILO (International Labor Organization) set the minimum age for children employed in the work of industries at 14 and banned night work for children under 18[8]. However, the child was first considered a subject of rights only with the “Declaration of the Rights of the Child,”[9] which was approved in 1924 in Geneva and by which the child assumed the dignity of a citizen.

Subsequently, the “Declaration of the Rights of the Child”[10], signed in New York in 1959, affirmed that the child, given his or her physical and intellectual immaturity, needed legal protection that was appropriate to his or her condition and that “the best interests of the child”-a primary interest for the whole of society-should be constantly borne in mind; it also enshrined the right to a free compulsory elementary education.

In the specifics of juvenile deviance and the administration of juvenile justice, the “Minimum Rules for the Administration of Juvenile Justice” (also referred to as the ‘Beijing Rules’) are of fundamental importance[11], approved by the 6th UN Congress in 1985, which are the international source from which most modern juvenile procedure codes have been inspired. Our Presidential Decree no. 448 of 1988 embraced the most innovative principles of these rules.

Various application models have been inspired by this evolution of the juvenile justice system. Some of these are still considered a staple for scholars around the world.

The most innovative model, an alternative to institutionalization, is precisely the so-called “probation” system, which was first introduced in England in 1907 and later spread throughout the world. It consists of a form of suspended sentence, provided that the person does not commit any other crimes during the period of the measure, under the supervision of a “probation officer,” who monitors and supports the juvenile. In aggiunta il servizio “Aftercare”[12]si prende cura dei minori prima, durante e dopo l’esecuzione della condanna, allo scopo di favorire la riabilitazione e la risocializzazione dei ragazzi.

At the community level, Recommendation no. 87/20 of the Council of Europe, concerning social responses to juvenile delinquency, listed education and social reintegration as the goals of juvenile justice, and reiterated that prison sentences should be thelast resort, to which “sentences suitable for juveniles” should be preferred.

With the 1989 “Convention on the Rights of the Child.”[13], then, the UN intervened to protect children under the age of 18. On juvenile justice, it stipulates that neither capital punishment nor life imprisonment should be applicable to juveniles, and again advocates the need to use deprivation of liberty only as a last resort when nothing else can be done. In addition, juveniles deprived of their liberty must receive treatment appropriate to their status as developmental agè subjects, such as maintaining contact with the family, while the purpose of juvenile justice must be the education of the juvenile aimed at the promotion of the juvenile’s person.

In 1990, the General Assembly of the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Delinquents approved two key documents: the “Riyadh Guiding Principles on the Prevention of Juvenile Delinquency” and the “United Nations Minimum Rules for the Protection of Juveniles Deprived of their Liberty.”[14].

In the “Guiding Principles,” the need for all of society to strive for the harmonious development of childhood and adolescence is affirmed, as the prevention of juvenile delinquency is essential to the prevention of delinquency in general. Regarding procedure, it is recommended that governments pass laws that protect minors, taking into account their specific condition, and avoid harsh and degrading means of correction.

Even in the “Minimum Rules,” it is stated that deprivation of liberty for juveniles should be a last resort, applied only in exceptional cases, and that juvenile justice should promote the physical and moral well-being of juveniles.

In particular, Art. 40 of the U.N. Convention on the Rights of the Child (ratified by Italy through Law 176 of 1991) contains the guiding principles for the application and interpretation of the juvenile criminal trial discipline, enshrining “the right of the juvenile suspected, accused or found guilty of having committed a crime to be treated in such a way as to foster his or her sense of dignity and personal worth, to reinforce his or her respect for human rights and fundamental freedoms, and to take into account his or her age as well as the need to facilitate his or her reintegration into society and to enable him or her to play a constructive role in it“.

Thus, they have taken their place in our juvenile penal system:

  • The purpose of recovery through reeducation and social reintegration;
  • the “principle of adequacy” (Art. 9 Presidential Decree 448/1988) according to which the criminal process must adapt “to the personality of the child and his educational needs,” for the realization of which the work of the Social Servants and interdisciplinary work between all operators is fundamental;
  • the “principle of minimum offensiveness,” which aims to protect juveniles from the risks that may arise to their still-forming personalities due to early entry into the criminal justice circuit. Entry which should therefore be avoided wherever possible, favoring the closure of the process and the fastest possible exit of the juvenile from the criminal circuit;
  • destigmatization” (Art. 13), aimed at stemming as much as possible the harmful repercussions that can affect the child even from the mere news of being subjected to judicial proceedings, through maximum protection of confidentiality and anonymity with respect to any outside parties.
  • the “residuality of detention“, that is, the conception of all criminal intervention with regard to juveniles, and a fortiori the measure of detention, as extrema ratio. Thus, detention is justified only in cases of serious risk to social defense, and only in the absence of alternative measures that could lead to the same protection. For this very reason, new alternative measures to prison custody have been devised, which have a greater empowering value with less coercive impact;
  • The “self-selectivity principle” of the juvenile criminal process, which makes the juvenile’s educational experiences take precedence over the process itself, based on the investigation of each juvenile’s unique and individual personal condition, through forms of self-restraint and even closure of the process itself.

In deference to these principles, various institutions have been introduced, the basis of which is always the assessment of the child’s personality, such as judicial pardon or suspension of trial with probation.

Rivolgendo uno sguardo in Europa, invece, in Francia sin dal 1945 ha luogo la c.d. “education surveillée”, con cui si mira a coinvolgere la famiglia nel processo educativo del minore autore di reato, cercando quanto più possibile di mantenere il minore nel suo ambiente[15].

In the 1980s, alternative sanctions, called ‘work-projects and training-projects,’ were developed in the Netherlands, as in other Northern European countries, for the purpose of empowering and socializing minors, who must participate in work and training projects, supervised by a coordinator[16].

These systems operate, however, only after the juvenile has entered the criminal justice system and received a sanction. Un sistema di misure alternative che, invece, intervengono ancor prima dell’ingresso del minore nel sistema giustizia (o durante le prime fasi del processo) è nato negli Stati Uniti e si indica con il termine inglese “diversion”[17]. It is based on the discretion of the judge, who bases his decisions on the criterion of expediency instead of formal legal criteria.

The Italian juvenile trial: the interventions of the Constitutional Court

In the development of juvenile justice, the Constitutional Court has played a central role. In fact, the Court’s rulings have adapted the standards to the specific needs of juvenile justice, inspiring their interpretation by Article 27, third paragraph[18] and 31, second paragraph[19] of the Constitution. Moreover, by lending authority to the demands of much of the doctrine in this area, they constituted a fundamental point of departure toward the 1988 reform of the juvenile criminal justice process.

As early as the 1960s, the Constitutional Court upheld the need for the specificity of juvenile justice, to be considered an autonomous sector from that provided for adults and aimed primarily at reeducation. In ruling no. 25 of 1964[20], in particular, in deference to Art. 31, second paragraph of the Constitution, established that “juvenile justice has a special structure in that it is directed specifically to the pursuit of the most suitable forms for the reeducation of juveniles.”

Later, ruling no. 49 of 1973[21] pointed out the existence of a “peculiar interest-duty of the state in the recovery of the child,” to which the realization or non-realization of the punitive claim must be subordinated. This was followed by no. 222 of 1983 placed “protection of minors” among the constitutionally protected interests; and the Juvenile Court among the institutions “whose development and operation the Republic must foster thus fulfilling the constitutional precept committing it to the protection of youth.”

Judgment no. 16 of 1981[22], on the other hand, included the provision of the exception to the publicity of the hearing among the means prepared by the legal system for the achievement of the purpose of protecting minors, considering that the publicity of facts may result in negative consequences to the spiritual development and material life of the minor.

According to the Constitutional Court, the principle expressed in the second paragraph of Art. 31 of the Constitution requires the adoption of a juvenile justice system based on judge specialization and the goal of juvenile recovery, which must be pursued “by means of his reeducation and social reintegration, in harmony with the goal pointed out in Paragraph 3 of Article 27 of the Constitution, as well as by Article 14(4) of the International Covenant on Civil and Political Rights (adopted in New York on December 19, 1966 and whose ratification and execution was arranged by Law No. 881 of October 25, 1977).”

The reference to the principle of minimum offensiveness, which constituted one of the fundamental principles of the new juvenile criminal trial in 1988, was made by Judgment No. 206 of 1987[23], which pointed out that the purpose of juvenile justice must be the recovery of the deviant juvenile through his reeducation and social reintegration; this purpose can also be pursued through the mitigation of the offensiveness̀ of the process.

Thus, the principle that the child is a subject to be protected as such and the state is bound by this obligation even if the child has committed a crime has been strongly affirmed. Hence, an interest-duty was configured in the recovery and reeducation of the juvenile itself, to be pursued through the juvenile courts.

In this way, the juvenile criminal trial has become an opportunity for the juvenile’s social recovery, rather than an affirmation of the state’s punitive claim. And from the indication of the need for individualized prognoses for the juvenile’s recovery, emerges the position of centrality in the process assigned by the Court to the juvenile defendant. This is because in relation to minors the re-educational principle takes on a very special meaning and importance, as their educational process is not complete, but is evolving, as is their personalitỳ. The entire juvenile criminal justice system is, therefore, marked almost exclusively by reeducation, which is considered an interest-duty of the state, and to which the punitive claim itself is subordinate, as is also evident from the aforementioned ruling no. 49 of 1973[24].

Presidential Decree 448 of 1988 itself explicitly states that the juvenile criminal process “must not interrupt ongoing educational processes” and therefore regulates interventions aimed at not hindering the unfolding of the educational-evolutionary-relational process, to prevent its interruption from destabilizing a personality in the process of structuring.

Thus in the juvenile criminal trial we go beyond the reeducational function of punishment provided for in the third paragraph of Art. 27 of the Constitution, in that the purpose of social defense is subordinate to the main purpose of educating the child, as for the legislature, prevention would implement greater social defense.

The juvenile judge: the role of honorary components

In the juvenile justice system, the most critical point is a lack of judge’s third party status in certain evaluations, a state that can undermine its necessary impartiality at the root[25]. In fact, in the Juvenile Courts, the typical decision-making functions of the judiciary are commingled with and often outclassed by the social welfare functions, which, while necessarily present, should, however, be separate and distinct in a “due process” including juvenile. In fact, for the Judge to be third and impartial, it is necessary that his role in the process be limited to the definition of the case in accordance with the existing and applicable regulations and not to be predominantly entrusted with the management of the situation submitted to his decision-making power from a social welfare perspective, resulting in the exercise of his powers in a non-decisional function.

This dangerous imbalance, on the other hand, is attested to and clearly represented by the origin of practically all honorary judges (i.e., non-tobacco components) from social services; an “adjudicative” presence that is not only anomalous, but in far greater numbers than that of the togal judges, and who return to the territorial social service of origin at the expiration of their judicial term.

The juvenile judge’s “subservience” to social workers, already so ingrained in the adjudicating panel itself, results in a further imbalance-almost a complete delegation-in favor of social services’ assessment of the situation. Such “information” is gathered outside any real adversarial process with the parties to the case, but to which alone reference is made in the exercise of the adjudicative function. Thus, the lack of third party status and recognition of equal importance to investigations and technical assessments brought by the parties, which necessarily succumb in this context before those of the social welfare services, also has repercussions on the level of evidentiary investigation. The latter are basically evaluated by the panel of judges as the only reliable instrument, as they are considered their own direct externalization, while also excluding the potential presence of party technicians in this context.

According to some, the only remedy would be to eliminate the anomaly of non-tobacco judges from the judging panel, thereby restoring competence and third party status to the juvenile judge and his or her functions, which should remain confined to the decision-making perimeter within the legal framework of reference.

Criminal execution in juvenile proceedings: the difficulties of reeducation

The failure to adopt a specific penitentiary order on the subject of criminal execution in juvenile proceedings is currently in serious conflict with the dictates of Articles 31, paragraph two and 27 paragraph three of the Constitution, especially in light of the substantial divergence of the purposes of criminal proceedings against juveniles from those of adults and given the specificity of the juvenile’s as yet unstructured and defined personality and identity[26].

In fact, the purposes of the juvenile criminal justice system aim to be an instrument of enhanced education, with the purpose of implementing a juvenile’s recovery, linking the sanction to the need to bring about a positive development of the juvenile’s personality. In contrast, the structure of the prison system for adults clashes with the purposes and institutions dictated for juveniles.

Fundamental to the training and education of the juvenile offender is-or should be-school.

Unfortunately, its role in juvenile correctional institutions loses its educational value because it often places the child in a heterogeneous and multiproblem group of minors. The classes are attended by children with enormous learning and attention difficulties, frequently coming from repeated failures.

Statistics show how recidivism is more frequent for juveniles released from IPMs (even where they have followed a positive path of study, work and contact with outside society during detention) than for juveniles undergoing alternative measures to detention, confirming their greater effectiveness in the education and resocialization of juvenile offenders[27].

The position of residential communities is also not simple[28], increasingly considered the main tool of extra-curricular criminal execution deputed to the care, treatment and change of the juvenile offender. To achieve this function, the community stands at the border between the normality of the outside world and the confinement of detention, and the coordinators and managers of facilities that house juveniles under criminal court order juggle the needs for containment and control of the juvenile guests of the facilities and the need to create for them spaces for relational experimentation and empowerment that are functional to their reeducation. This creates an obvious and equivocal ambivalence, since the procedural rules define community placement as a precautionary measure (thus characterizing it as a penal facility deputed to execute a measure limiting personal freedom, with a consequent intrinsic afflictiveness) but on the other hand allow the judge to authorize the minor to attend study, work or otherwise educational activities.

Also with a view to simplifying management and abating the difficulties and risks inherent in any removal from the structure of the juvenile placed in the community, outings and contacts of the children with the outside are penalized and avoided as much as possible. As a result, the afflictive dimension of the coercion of permanence is amplified as well as the community pedagogical self-referentiality itself; thus, the pedagogical value of building a relational life appropriate to the developmental needs and chronological age of the placed minors is put to nothing. These, in fact, no longer have any protected space for empowerment, to be managed independently, that can positively affect the treatment path, with the effect of exponentially increasing the reactions of conflict and opposition. Boys thus direct their resources toward a harmful exercise of power assertion and increase centrifugal drives toward escapism and transgression.

Moreover, not “training” the minor in a positive contact with the outside world through a return to a protected context where he can elaborate and reinforce the difficulties gradually encountered, and not building a valid alliance with the family (which can thus accompany and support him when he leaves the community path), mean that the period in the community becomes a parenthesis separated from the context of life, from that outside world to which the boy must return and with which he will not be able, therefore, to build a pedagogically correct relationship.

Thus, communities are often reduced to places without an effective focus on the path, but only on the present, given the incompatibility of the time allowed (a few months) with even a medium-term evolutionary planning. Moreover, the simultaneous presence, both in IPMs and communities, of minors, young adults, foreigners (moreover, without cultural and linguistic mediation), and adolescents with objective pathologies, almost inevitably leads to the failure of a model built around an individual who nevertheless finds himself immersed in a context that thwarts the very foundations of the educational development project that should enable his positive re-entry into the socio-familial fabric of belonging.

The unequal treatment of foreign minors

It should also be considered that the presence of foreign minors has gradually increased in recent years. In their case, however, for the same offense, custodial pre-trial measures (especially prison) are applied much more frequently, they remain there for longer and are more often sanctioned with a sentence, while very rarely they are recipients of measures in the housing community, in the family and at large.

Suffice it to consider how the institution of probation, the application of which has grown to affect about one-fifth of total proceedings, is accessed by 82 percent Italian boys and only 18 percent foreigners[29].

The detention measure, in these cases, is not justified by the failure of the application of alternative measures to detention, but by their objective inapplicability, since they are often irregular foreign minors in the territory and unaccompanied, usually lacking references and stable socio-familial contexts. In addition, the culture of origin, values, and language constitute often insurmountable difficulties for Italian practitioners, who are thus unable to activate interventions and develop educational projects for them. Already, just the reconstruction of the child’s family and personal history, which is placed at the basis of all decisions and judgments about the child, a history that finds its main sources in the narratives of family members, teachers and any social workers, is virtually impossible for the unaccompanied alien child to recover. This results in serious discrimination between Italian and foreign juveniles with respect to the possibility of taking advantage of paths that are not only less afflictive but, above all, more effective in the recovery and reeducation of the juvenile offender.

Thus, although the Supreme Court has affirmed the principle that alternative measures to detention can also be applied to the non-EU foreigner who entered the state illegally and without a residence permit[30], however, in juvenile proceedings it is objectively difficult, if not impossible, to ensure the educational purposes of punishment for foreign minors with the use of the special institutions provided, as it is not possible to involve the often nonexistent or clandestine family environment. At the same time, community placement is also often impractical or ineffective, given also the unpreparedness of facilities to handle ethnic diversity.

The difficulty of juvenile justice

In the face of the above, it is clear how a system that is very unbalanced-though rightly so-may find itself in crisis in the face of a juvenile crime phenomenon that is physiologically (and statistically) greatly influenced by the way in which juveniles at risk of committing crimes interact with each other.

However, attention should be turned to the dangerous mechanism that is being triggered in the reeducational/sanctioned treatment of young people who come into contact with the juvenile process. In fact, on the one hand, the most fragile and higher-risk individuals – such as foreigners or Italian youths with little or no family support – are more likely to fail re-education paths or not access them at all; on the other hand, the increase in defendants from favorable socio-economic backgrounds risks making instruments such as probation little more than a weak rebuke to the individual (even in the face of serious crimes), without actually removing him or her from the social dynamics that may have contributed to the initiation of deviant behavior.

Moreover, the priority pursuit of the quickest possible exit from the justice system does not adequately confront another shortcoming of our system: the lack of accountability in the criminal justice system for damages caused to the victim of the crime. Insufficient in this regard appears to be the use of mediation and restorative justice pathways, which are presented, instead, as useful tools to enable the juvenile to actively confront the consequences of his or her antisocial conduct.

Add to this the fact that the staffing levels of the USSMs, which are supposed to ensure the careful evaluation of pathways, are often portrayed as totally insufficient[31] To cope with the massive workload (17,341 minors and young adults in 2022[32]), a situation bound to worsen with the further strengthening of alternative rites following the Cartabia Reform[33].

In any case, data regarding recidivism rates are certainly comforting, whereby juveniles after probation return to commit crimes in a much lower percentage (22%) than those who have been convicted instead (63%)[34]. Although this figure is affected, as highlighted above, by the reference “statistical sample.”

Despite this encouraging element, these juvenile justice tools cannot be the only method of dealing with the difficulties of a youth population that seems to have changed in the ways they approach criminal behavior-no longer exclusively (or predominantly) as a result of socioeconomic hardship or marginalized conditions.

Rethinking intervention in the approach to juvenile deviance, on the contrary, should be the result of a choral sharing of contributions and experiences of the family (where possible), the school and all institutions in the area.

In fact, regardless of whether one prefers a response of a more reeducational or punitive nature, it seems necessary to put back at the center of the debate on juvenile crime the positive intervention of all proximate figures who can have a significant impact on minors, from a more preventive and participatory perspective, rather than seeking ever broader instruments of “reeducational pardonism” that often conceal alibis that deresponsibilize adults and institutions with regard to minors.

Avv. Giada Caprini
Avv. Marco Della Bruna

 

References

[1] E. U. Savona, M. Dugato, E. Villa, Youth Gangs in Italy., Transcrime Research in Brief – Italy Series no. 3, October 2022.

[2] Y. Partial, Juvenile group crime in the international landscape. Perspectives on adapting current criminal law to neuroscientific findings, Electronic journal of the European Documentation Center of Kore University of Enna.

[3] B. B. Brown, M. J. Lohr, E. L. McClenahan, Early Adolescents’ Perception of Peer Pressure., Journal of Early Adolescents, 1986 Vol 6 No. 2 pp. 139-154.

[4] V. Pirrò, L. Muglia, M. Rupil, The crisis of the family and new forms of juvenile deviance: beyond the mask., Justice Together, April 21, 2020.

[5] M. Warr, Companions in Crime. The Social Aspects Criminal Conduct, Cambridge University Press, 2002.

[6] https://nationalgangcenter.ojp.gov/spt/Programs/53

[7] A. De Giovanni, Genesis of the International Convention on the Rights of the Child (1989) and its most recent legislative developments., Salento University Publishing.

[8] The ILO and child labor., AIDOS.

[9] Declaration of the Rights of the Child (Geneva Declaration 1924)..

[10] Declaration of the Rights of the Child (New York Declaration 1959)..

[11] United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules)..

[12] Young offender aftercare., College of Policing.

[13] Convention on the Rights of the Child (New York, November 20, 1989).

[14] United Nations Guidelines for the Prevention of Juvenile Delinquency: The Riyadh guidelines.

[15] J. Bourquin, M. Gardet, Éducation surveillée, Enfants en Justice.

[16] P. van der Laan, Alternative Sanctions for Juveniles in the Netherlands., NCJRS Virtual Library, U.S. Department of Justice, 1993.

[17] Diversion programs., Youth.gov.

[18]Punishments cannot consist of treatment contrary to the sense of humanity and must aim at the re-education of the convicted person.”

[19]The Republic shall facilitate with economic measures and other provisions the formation of the family and the fulfillment of related tasks, with special regard to large families.

It protects motherhood, childhood and youth by fostering the necessary institutions for this purpose.”

[20] https://giurcost.org/decisioni/1964/0025s-64.html

[21] https://giurcost.org/decisioni/1973/0049s-73.html

[22] https://giurcost.org/decisioni/1981/0016s-81.html

[23] https://giurcost.org/decisioni/1987/0206s-87.html

[24] https://giurcost.org/decisioni/1973/0049s-73.html

[25] Gianfranco Dosi: My views on… Angels and demons: the responsibilities of juvenile justice., Lexicon of Family Law.

[26] Criminal execution in juvenile proceedings., States General of Criminal Execution, Table 14.

[27] Recidivism in the criminal pathways of juvenile offenders.o, Series “I NUMERI pensati,” edited by Isabella Mastropasqua, Maria Maddalena Leogrande, Concetto Zanghi, Maria Stefania Totaro, Luca Pieroni, Alessio Gili, Gangemi Editore, Rome – May 2013.

[28] A. Scandurra, Foster communities for minors and probation., Ragazzi Dentro, February 2020.

[29] The suspension of trial and placing on probation, (Article 28 Presidential Decree 448/88). Statistical data Year 2021, Ministry of Justice.

[30] Cass. SS.UU. 27.04.2006 n. 14500.

[31] New DGMC staffing plans., FP CGIL, UIL PA, CISL FP, February 28, 2023.

[32] Juveniles and young adults in the care of Juvenile Services. Statistical analysis of data, Ministry of Justice, 2022.

[33] D. Di Cecca, Alternative rites in the juvenile criminal trial and the “Cartabia Reform”., Boys Inside.

[34] Recidivism in the criminal pathways of juvenile offenderso, cit.

Crimes against the Public Administration, anti-corruption legislation and control systems in the EU and Italy“: the lectures of Prof. Avv. Roberto De Vita ‘s class for the 33rd Qualification Course “Economic Financial Investigator” at the Guardia di Finanza School of Economic and Financial Police begin today.

 

crimes against the public administration

abuse of office

trafficking in unlawful influence

The Supreme Court has qualified comic strips and illustrations of erotic tales depicting minors as child pornography, holding that it must include in this notion anything that is likely to give the viewer the idea that the object of the pornographic representation is a minor [1].

The case in point

The appellant had been convicted by the Trieste Court of Appeals for possession of child pornography [2], which included comic strips and illustrations of erotic tales reproducing minors engaged in incestuous acts or other sexual activities.

With respect to these images, the defendant’s defense had complained of adherence to a notion of virtual pornography that would fall outside the perimeter of Art. 600-quater.1 of the Criminal Code, moreover not disputed in the present case, in which the images would not have been suitable to deem the situations depicted in them as real.

In fact, that standard defines virtual images as those “made by graphic processing techniques not associated in whole or in part with real situations, whose quality of representation makes non-real situations appear as real.”

Hence, in the view of the defense, the subjective element would have been absent in any case, as it could not require the defendant to make a complex interpretative exegesis on the scope of application of the aforementioned criminal precept.

The protected legal asset

The Supreme Court has already ruled in a similar vein in the past, adhering to a broad interpretation in identifying the legal asset protected by the child pornography regulations, also in light of the international and conventional legal framework [3].

In fact, the court of legitimacy had held that the protected good could not be limited to the sexual freedom of a person under the age concretely represented (and qualifying as a person aggrieved), but rather that boys and/or girls should be considered as a person aggrieved “To be understood as a category of persons who are the recipients of enhanced protection of sexual intimacy, including respect for the different stages of their physical and psychological development, to be understood as including the development of their sexuality[4].

According to this reading, the legislator would have provided enhanced protection for the intangibility and development of the personality of minors, punishing all conduct that, by representing it, expresses the possibility of the minor’s involvement in sexual activities for which minors are unable to give valid consent, taking into account their degree of psychological development and relational maturity.

On this point, of great importance is the observation of the Budapest Convention’s Explanatory Report on Cybercrime [5], which pointed out that “realistic” images of minors engaged in sexual activities also present the risk of being used to seduce minor subjects or invite them to participate in sexual activities.

The court’s decision

In the present case, the Supreme Court concurred with the guideline set forth, which was also adhered to by the lower court judjes in convicting the defendant; in particular, the Court of Appeals of Trieste held that the notion of child pornography included “drawings, paintings, and anything else that is likely to give the viewer the idea that the object of the pornographic depiction is a minor“, ruling out limiting it to just “pornographic physicality.”

Therefore, the Supreme Court held that both comic books and illustrations of an erotic tale depicting minors engaged in incestuous acts or other sexual activities were correct in qualifying pornographic material.

The consolidation of the aforementioned orientation has significant repercussions not only for the pornographic comic book industry (the so-called Japanese hentai and others), but also and especially with respect to the proliferation of generative artificial intelligence systems that are invading all pornographic markets, including that of images depicting minors. The latter, in particular, represent a higher level of risk than comic books (both print and digital), due to the greater ease of access to the material’s production tools and the high difficulty of controlling them.

 

 

References

[1] Cass. Sez. III, n. 47187, 24.11.2023.

[2] Article 600c of the Criminal Code.

[3] Optional Protocol to the Convention on the Rights of the Child, on the Sale of Children, Child Prostitution and Child Pornography, done at New York on September 6, 2000, and ratified by Italy by L. March 11, 2002, no. 46; Council of Europe Convention for the Protection of Children against Sexual Exploitation and Sexual Abuse, opened for signature in Lanzarote on October 25, 2007, ratified by Italy with L. 01.10.2012 no. 172; Council of the European Union Framework Decision no. 2004/68/JHA, on combating the sexual exploitation of children and child pornography; Council of Europe Convention on Cybercrime, done at Budapest, Nov. 23, 2001, ratified by Italy through L. March 18, 2008, no. 48.

[4] Cass. Sez. III, n. 22265, 09.05.2017.

[5] Explanatory Report to the Convention on Cybercrime, p. 16.

On Oct. 19, 2023, Advocate General Jean Richard de La Tour filed his opinion[1] in Case C-352/22 pending before the Court of Justice of the European Union and concerning the request for a preliminary ruling on the binding effect of refugee status on an extradition request.

As reconstructed in our previous contribution, by order filed on 1.06.2022 the Superior Court of the Land of Hamm made a reference to the CJEU for a preliminary ruling, asking whether the final recognition of a person’s refugee status under the Geneva Refugee Convention by a member state of the European Union is binding, with regard to the extradition procedure to another member state requested for surrender, due to the obligation of conforming interpretation of national legislation established by Union law, with the consequence that the extradition of such a person to the third country or country of origin is necessarily excluded until the revocation or expiration of the refugee status.

Well, in his conclusions filed last Oct. 19, the Advocate General expressed his position, suggesting the Court make a fence-sitting and half-hearted decision that attempts, at least on the surface, to reconcile the prerogatives of states accessing extradition procedures with the protection of the fundamental rights of the individual. Although, in fact, the premises seem to lay for a prevalence of the latter, the subsequent arguments result in a solution of deemed autonomy and non-interference between the two procedures that, in the reality of the facts, affects the real effectiveness of the protection granted to the refugee.

The analysis of the story

In the beginning of his brief, the Advocate General states that “even though a decision granting refugee status adopted in a Member State is not, as EU law currently stands, binding on the authority responsible for examining a request for extradition in another Member State, the fact remains that the extradition procedure must be conducted in accordance with the right to asylum enshrined in Article 18 of the Charter of Fundamental Rights of the European Union and, more broadly, the principle of non-refoulement which is guaranteed, as a fundamental right, in the same article of the Charter, read in conjunction with Article 33 of the Convention relating to the Status of Refugees […]“.

After a detailed reconstruction of the legal context and an examination of the specific case under consideration by the German court, ample space is devoted to the question submitted to the European Court and the various positions taken by all those involved.

It is first pointed out that in the absence of an international convention on the matter between the Union and the third state concerned (Turkey), extradition rules fall within the competence of the member states, but these member states themselves are obliged to exercise this competence in compliance with Union law. Moreover, to the extent that the Turkish national has been granted refugee status in Italy (in accordance with the norms of the Union’s secondary legislation on international protection) and has subsequently exercised his right to move and reside in a member state other than the one that granted him refugee status, the issue pertaining to his extradition falls within the scope of Union law.

As reflected in Article 6 of the Asylum Act, a decision by a member state granting refugee status does not have binding effect in extradition proceedings in another member state and therefore should not automatically result in a refusal to extradite. The same would be true if the decision to grant refugee status had been made by an authority in the same state requested for surrender. However, it is admitted that “The parties to the proceedings and other interested parties agree that the existence of a decision granting refugee status in one Member State must play an important role in an extradition procedure conducted in another Member State. There is disagreement only as to the precise extent of the effects to be attributed to such a decision.“.

According to the Advocate General, the member state is obliged to guarantee the rights of asylum and international protection and to verify that the extradition procedure does not undermine the person’s fundamental rights by refusing surrender to a country where there are serious and proven grounds to believe that the person would be exposed to a real risk of treatment contrary to Union and international standards.

However, the principle that the requested member state is bound by a decision to recognize refugee status taken by another member state and is, therefore, obliged to refuse to hand over the person until that status is revoked could not follow from this. And this is on the basis of two reasons. On the one hand, the law of the Union, in its current state of development, does not provide for mutual recognition among member states of decisions granting refugee status, and therefore such a decision cannot have direct binding effect in extradition proceedings in another member state.

On the other hand, the extradition procedure and the procedure for revocation of refugee status are two separate procedures, so that an extradition cannot be made conditional on the prior revocation of the refugee status of the requested person, but is subject to an autonomous and up-to-date examination by the extradition authority regarding compliance with the principle of non-refoulement.

Mutual recognition of refugee status decisions

The existence or non-existence of a principle of mutual recognition among member states of decisions granting refugee status is a question on which the Court is called upon to rule in three other judgments,[2] in addition to the one under comment here.

At the hearing, the parties and other interested parties in the proceedings were invited by the court to take a position on this sensitive issue.

The Advocate General agrees with the German government and the Commission that Union law does not, at its current state of development, provide for a principle of mutual recognition among member states of decisions granting refugee status. The Italian government, on the other hand, argues that the spirit of the Common European Asylum System argues in favor of such recognition, which would imply that a decision granting refugee status taken by one member state should be binding on authorities in other member states. In support of the latter position, moreover, all of the common standards and criteria that the European system is inspired by would depict.

However, it is noted that the Union legislature has not yet fully realized, through the provision of a principle of mutual recognition among member states of decisions granting refugee status and the clarification of how this principle is to be implemented, the objective to which Article 78(2)(a) TFEU aims, namely a uniform asylum status for third-country nationals valid throughout the Union. In fact, the primary law of the Union provides for the gradual establishment of the Common European Asylum System, to be implemented in stages, eventually leading to a uniform asylum status valid throughout the Union. As the German government and the Commission have argued, the Common European Asylum System is being built gradually and it is solely up to the Union legislature to decide, where necessary, to give binding cross-border effect to decisions granting refugee status: “[…] although mutual trust is the necessary basis for the mutual recognition of decisions adopted by the competent authorities of the Member States […], that trust is not sufficient, however, if it is not accompanied by an express provision in primary law or by an express intention on the part of the EU legislature“.

In addition, according to the provisions of Directives 2011/95 and 2013/32, a member state invested with an application for international protection is not bound by the previous recognition decision granted by another state, having to examine the application individually, objectively and impartially in all cases, based on accurate and up-to-date information.

The autonomy between the two procedures

Among the arguments used by the Italian government is that extradition by a member state of a person who has been granted refugee status in another member state would constitute a de facto revocation of that status and a circumvention of the rules established in this regard by Directive 2011/95. Any extradition should, therefore, be subject to the prior revocation of that status.

In contrast, both the German government and the Commission emphasized the distinction between refugee status and quality, pointing out that the loss of refugee status does not necessarily mean the loss of refugee status.

In this regard, it is emphasized that the recognition of refugee status under Directive 2011/95 is reconnaissance in nature and not constitutive of refugee status. Therefore, in the system established by Directive 2011/95, a third-country national or stateless person who meets the material conditions contained in Chapter III of that Directive has, by that fact alone, the status of a refugee, within the meaning of Article 2(d) of that Directive and Article 1, Section A, of the Geneva Convention. Thus, “refugee” status under these provisions does not depend on formal recognition through the granting of “refugee status.”[3]

A clear distinction should also be made between the process that can lead a member state to withdraw refugee status and the process of assessing compliance with the principle of non-refoulement in removal proceedings. In this sense, in accordance with Union law, the competent authority may be entitled to revoke the refugee status granted to a third-country national, without, however, necessarily being authorized to remove him or her to his or her country of origin.

It follows that it is not refugee status as such that protects the beneficiary from extradition, but the principle of non-refoulement, which must be evaluated independently and objectively by the requested state of surrender. And the very existence of the latter obligation would, according to the Advocate General, exclude the binding effect of a previous recognition decision since the discretion of the authority in charge of deciding on surrender would be lost: “an up-to-date assessment of compliance with the principle of non-refoulement would be impossible if that authority was bound by the assessment made previously, sometimes several years earlier, by a competent authority for asylum in another Member State It should also be borne in mind that a request for extradition may bring to light new elements capable of justifying a different assessment of the risk of persecution faced by the requested person“.

Therefore, there would be complete autonomy and separation between the two procedures. However, a previous recognition of refugee status should still “be duly taken into consideration” by the authority considering the extradition request.

The concrete value of refugee status

On the basis of the latter consideration, the Advocate General concludes his reasoning by recalling the importance that, in any case, the existence of a previous decision granting refugee status must assume.

This issue has already been addressed by the Court in the Ruska Federacija case[4] concerning the extradition requested by the Russian Federation of a Russian-Icelandic national who had been granted asylum in Iceland before acquiring that state’s citizenship.

In that judgment, the Court had ruled that the requested member state had to consider whether extradition was compatible with Article 19(2) of the Charter because the Icelandic national claimed that there was a serious risk of inhuman or degrading treatment if extradited. To this end, the member state cannot merely take into consideration the declarations of the requesting third state or its acceptance of international treaties that guarantee, in principle, respect for fundamental rights. Instead, the assessment must be based on objective, reliable, accurate and appropriately updated elements, which may result from international judicial decisions (such as judgments of the European Court of Human Rights or judicial decisions of the requesting third state) as well as decisions, reports and other documents prepared by the bodies of the Council of Europe or belonging to the United Nations system. In addition, the fact that the requested person had been granted asylum on the grounds that he or she ran a risk of being subjected to inhuman or degrading treatment in his or her country of origin constituted a particularly serious element that the competent authority of the requested member state had to take into account for extradition verification purposes. According to the Court, therefore, in the absence of specific circumstances-including a significant change in the situation in the requesting third state-the existence of a previous decision granting asylum must lead the competent authority of the requested member state, to refuse extradition.

That precedent, however, would be somewhat different from the one under consideration because the Republic of Iceland (i.e., the state that had granted asylum to the Russian citizen), while participating in the Dublin system on asylum, is not part of the European Union and therefore does not apply Directives 2011/95 and 2013/32. However, according to the Advocate General, if the Court has recognized the importance of taking into account in extradition proceedings a decision to grant asylum adopted by the Republic of Iceland, the same must apply, a fortiori, if the decision to grant refugee status adopted by a member state.

Therefore, although the decision granting refugee status cannot be considered binding on a member state requesting extradition, it is nevertheless true that it cannot be ignored or deemed irrelevant, as this would run counter to the spirit of cooperation and mutual trust between member state authorities and would certainly be contrary to the process of building a Common European Asylum System, as envisaged in Article 78(2) TFEU.

Conclusions

On the basis of this lengthy excursus, the Advocate General concludes his remarks by suggesting that the Court adopt its decision on the basis of the principles expressed in the Ruska Federacija ruling, without prejudice to the autonomy of the two procedures and the non-binding nature of a decision granting refugee status vis-à-vis a subsequent request for extradition. Therefore, the member state requested to surrender should not automatically refuse to surrender but ensure compliance with the principle of non-refoulement on the basis of an autonomous and objective assessment and up-to-date and serious elements, which undoubtedly includes a previous decision to grant asylum.

A conclusion, this one, that seems partly jarring with many of the arguments presented (including precisely those pertaining to the Ruska Federacija decision) and that opts for a half-hearted solution that could affect the real effectiveness of the mechanism for the recognition of international protection and the protection of the refugee’s fundamental rights.

 

Prof. Avv. Roberto De Vita
Avv. Valentina Guerrisi

 

 

References

[1] Opinion of the Advocate General.

[2] Bundesrepublik Deutschland (C-753/22), El Baheer (C-288/23) and Cassen (C-551/23).

[3] Under Article 2(e) of Directive 2011/95, read in conjunction with Article 13 thereof.

[4] Case C-897/19 – https://eur-lex.europa.eu/legal-content/IT/TXT/PDF/?uri=CELEX:62019CJ0897

The III Section of the Supreme Court referred to the United Sections the questions concerning the applicable discipline for the acquisition of encrypted chats from abroad (Sky-ECC) and the need for a review of the legitimacy of such acquisition by the Italian judicial authority.

Ordinance no. 47798 dated 11/30/2023

As mentioned in the order, the issues concerning the Sky-ECC platform originate from the joint operation of French, Belgian, and Dutch police that led to accessing and decrypting the chats of more than 70,000 users from different countries in 2021.

In particular, the Court noted how on the one hand there are multiple legitimacy rulings[1] that have upheld the possibility of acquiring encrypted chats under Art. 234 bis c.p.p. (allowing the acquisition of documents and computer data stored abroad), outlining a distinction between wiretapping, on the one hand, and the activities of acquiring and deciphering communicative data, on the other.

This guideline, in fact, distinguishes between the operation of capturing the encrypted message in transit to the recipient and the operations of capturing and decrypting the forwarded content, deeming the discipline of wiretapping applicable only to the former case, as flows of communications under Article 266 bis of the Code of Criminal Procedure[2]. The messages now sent and received, therefore, would represent a mere record of these communicative flows, usable as evidence when there is the availability of the cryptographic key to decipher their content.

Based on this distinction between data “in progress” and data crystallized on a device’s memory, the cited case law deems it possible to acquire the latter through a European Investigation Order triggered by the prosecutor. In fact, Art. 234 bis c.p.c. would constitute the domestic rule granting the necessary power to proceed with the OIE, which can only be used if the same investigative acts requested “could have been issued in a similar domestic case.”[3]

Moreover, with respect to the second question submitted to the consideration of the United Sections, the case law in question has maintained that no control must be carried out by the Italian judge with respect to the evidence acquired in the foreign court proceedings; this on the basis of the assumption that the acquisition activity is and must be carried out according to the legislation of the foreign state, since it is carried out on its own initiative and not at the request of the Italian Prosecutor’s Office. Therefore, judicial protection with respect to this activity can only be found within the foreign legal system.

In the face of these directions, however, two recent Supreme Court rulings have shed light on a different direction.

In particular, the former (No. 44154, 02.11.2023) argued how acquisition under Article 234 bis of the Code of Criminal Procedure is justified in the case of ““dematerialized” information elements, which pre-existed with respect to the time of the initiation of investigations by the French judicial authority or were formed outside of those investigations“; this was not the case at the time of the request and transmission of the data in question.

According to the Court, such a takeover should otherwise be framed under the rules on search and seizure (namely Article 254 bis of the Code of Criminal Procedure).

In addition, and with respect to the question concerning the OIE, the Court found it necessary that it be verified “forthe purpose of usability of the acquired information data, concerning communications at the ‘static’ stage, whether the original conditions for the jurisdictional authorization of the relevant investigative activities covered by the European orders were met.”

This guideline, moreover, recalls the recent rulings of the EDU Court[4] that extended the protection of Article 8 ECHR (Right to respect for private and family life)[5] to messages sent and received via the Internet and the Constitutional Court’s ruling no. 170/2023 with respect to the extension of the guarantees of Art. 15 of the Constitution with respect to all forms of communication[6].

It also enhances the emergency introduction of the provisions of Art. 132 Privacy Code (d.l. 132/2021, converted into l. 178/2021), by which the legislature recently chose to jurisdictionalise the procedure for acquiring external telephone and telematic traffic data in criminal proceedings, which now requires a reasoned authorizing order from the judge.

A final guideline, however, was formed by two recent rulings[7], published in the course of drafting the reasons for the ordinance under review. In light of the Constitutional Court’s ruling 170/2023, it was argued, most recently, that the correspondence nature of computer messaging (even when retained after receipt) would exclude the applicability of Art. 234 bis c.p.c., falling instead within the scope of the acquisition of documentary evidence under Article 234 c.p.c.

The issues

In light of this interpretive uncertainty, the Court referred the following questions to the United Sections:

(a) On the subject of evidence, does the acquisition of messages on group chats exchanged using an encrypted system, through [Sky-ECC] with foreign A.G. who performed the decryption, constitute the acquisition of “documents and computer data” within the meaning of Art. 234-bis cod. proc. pen. in the mind of which “it is always permissible to acquire computer documents and data stored abroad, even other than those available to the public, subject to the consent, in the latter case, of the rightful owner” or documents under Article 234 of the Code of Criminal Procedure. pen. or is attributable in other discipline related to the acquisition of evidence.

(b) Further, should such acquisition be subject, for the purpose of the usability of the data so poured into the record, to prior or subsequent judicial review of its legality by the National Judicial Authority.”

Download the ordinance here.

 

 

References

[1] Cass. sez. 4, no. 37503 of 30/05/2023 n.m.; sez. IV of 16/05/2023 no. 38002/23 n.m; sez. 4, no. 16345 of 05/04/2023, Liguori and others, non mass; Sez. 4 -, no. 16347 of 05/04/2023 Rv. 284563 – 01; Sez. 1 – no. 6364 of 13/10/2022 (dep. 15/02/2023) Rv. 283998 – 01;)

[2]1. In proceedings related to the crimes specified in Article 266, as well as those committed through the use of computer or telematic technologies, the interception of the flow of communications related to computer or telematic systems or interspersed between several systems shall be permitted.”

[3] Directive 2014/41/EU of the European Parliament and of the Council of 03.04.2014.

[4] EDU Court, judgment. 5/09/2017, Barbulescu v. Romania, § 72; EDU Court, sent. 3/04/2007, Copland v. United Kingdom, § 41; EDU Court, judgment. 17/12/2020, Saber v. Norway, § 48.

[5] “1. Every person has the right to respect for his or her private and family life, home and correspondence.

2. There can be no interference by public authority in the exercise of this right except insofar as such interference is provided for by law and insofar as it constitutes a measure which, in a democratic society, is necessary for national security, public order, the economic welfare of the country, the prevention of crime, the protection of health or morals, or the protection of the rights and freedoms of others.”

[6] “The freedom and secrecy of correspondence and all other forms of communication are inviolable.

Their limitation can only take place by reasoned act of the judicial authority with the guarantees established by law.”

[7] Cass. Sez. VI no. 46482, Nov. 17, 2023; Sect. VI no. 46833 dated 11/21/2023).

Read the original article on AP News
by The Associated Press

ROME (AP) — Rome prosecutors asked a judge Thursday to effectively close an investigation into Italian and U.N. health officials over Italy’s 2020 COVID-19 response without charges, on the grounds that no crimes were committed, a lawyer said.

Rome prosecutors Claudia Terracina and Paolo Ielo asked to archive the investigation that had grabbed headlines given Italy’s huge toll as t he first epicenter of the pandemic in Europe. While the judge can override the request, such a decision is highly unlikely.

Already prosecutors had closed their case without filing charges against three of Italy’s past health ministers. On Thursday, they asked a judge to archive the case against nine other officials, including a former top official at the World Health Organization, Dr. Ranieri Guerra, said his lawyer Roberto De Vita.

The investigation initially focused on whether delayed lockdowns in the hard-hit northern city of Bergamo contributed to the toll, but expanded to include whether Italy’s overall preparedness going into the crisis played a role.

Included was controversy over a WHO report into Italy’s response that was published by the U.N. health agency in May 2020 and then taken down a day later and never republished.

A former WHO official, Francesco Zambon, had suggested that WHO spiked the report to spare the Italian government criticism that its pandemic preparedness plan hadn’t been updated. WHO said it was pulled because it contained inaccuracies and was published prematurely.

Guerra had been the former head of the department of prevention in the Italian health ministry until 2017 and was a WHO envoy to Italy during the pandemic. De Vita said prosecutors determined the pandemic plan was in the process of being updated.

He welcomed the decision to archive the case, saying it should have been closed two years ago as soon as Guerra provided documentation to prosecutors showing he had acted correctly.

In a statement, Guerra said his reputation had been “gravely” harmed by the controversy and lashed out at those who had accused him of not protecting Italy.

Read the original article on GeoTv News
by The Associated Press

Rome prosecutors asked a judge on Thursday to effectively close the investigation into Italian health officials and the United Nations over Italy’s COVID-19 response in 2020 without bringing charges, on the grounds that no crimes were committed, a lawyer said.

Prosecutors in Rome, Claudia Terracina and Paolo Ilo, requested the archiving of the investigation, which made headlines given the heavy losses inflicted on Italy as the first epicenter of the epidemic in Europe. While a judge could overrule the request, such a decision is highly unlikely.

Prosecutors have already closed their case without bringing charges against three former Italian health ministers. On Thursday, they asked the judge to archive the case against nine other officials, including the former top WHO official, Dr. Ranieri Guerra, his lawyer Roberto De Vita said.

The investigation initially focused on whether late lockdowns in the hard-hit northern city of Bergamo contributed to the death toll, but expanded to include whether Italy’s overall preparation for the crisis played a role.

This included the controversy surrounding a WHO report on Italy’s response that was published by the UN health agency in May 2020 and then deleted the next day and never re-published.

A former WHO official, Francesco Zambon, had suggested that the WHO submitted the report to spare the Italian government criticism that its pandemic preparedness plan had not been updated. The world Health Organization said it was withdrawn because it contained inaccurate information and was published prematurely.

Guerra was the former head of the prevention department at the Italian Ministry of Health until 2017 and was the World Health Organization’s envoy to Italy during the pandemic. De Vita said prosecutors determined the pandemic plan was in the process of being updated.

He welcomed the decision to close the case, saying it should have been closed two years ago once Guerra provided documents to prosecutors showing he had acted properly.

Guerra said in a statement that his reputation had been “seriously” damaged by the controversy and criticized those who accused him of not protecting Italy.

Read the original article on ABC News
by The Associated Press

ROME — Rome prosecutors asked a judge Thursday to effectively close an investigation into Italian and U.N. health officials over Italy’s 2020 COVID-19 response without charges, on the grounds that no crimes were committed, a lawyer said.

Rome prosecutors Claudia Terracina and Paolo Ielo asked to archive the investigation that had grabbed headlines given Italy’s huge toll as t he first epicenter of the pandemic in Europe. While the judge can override the request, such a decision is highly unlikely.

Already prosecutors had closed their case without filing charges against three of Italy’s past health ministers. On Thursday, they asked a judge to archive the case against nine other officials, including a former top official at the World Health Organization, Dr. Ranieri Guerra, said his lawyer Roberto De Vita.

The investigation initially focused on whether delayed lockdowns in the hard-hit northern city of Bergamo contributed to the toll, but expanded to include whether Italy’s overall preparedness going into the crisis played a role.

Included was controversy over a WHO report into Italy’s response that was published by the U.N. health agency in May 2020 and then taken down a day later and never republished.

A former WHO official, Francesco Zambon, had suggested that WHO spiked the report to spare the Italian government criticism that its pandemic preparedness plan hadn’t been updated. WHO said it was pulled because it contained inaccuracies and was published prematurely.

Guerra had been the former head of the department of prevention in the Italian health ministry until 2017 and was a WHO envoy to Italy during the pandemic. De Vita said prosecutors determined the pandemic plan was in the process of being updated.

He welcomed the decision to archive the case, saying it should have been closed two years ago as soon as Guerra provided documentation to prosecutors showing he had acted correctly.

In a statement, Guerra said his reputation had been “gravely” harmed by the controversy and lashed out at those who had accused him of not protecting Italy.

Read the original article on Washington Post
by Associated Press

ROME — Rome prosecutors asked a judge Thursday to effectively close an investigation into Italian and U.N. health officials over Italy’s 2020 COVID-19 response without charges, on the grounds that no crimes were committed, a lawyer said.

Rome prosecutors Claudia Terracina and Paolo Ielo asked to archive the investigation that had grabbed headlines given Italy’s huge toll as t he first epicenter of the pandemic in Europe. While the judge can override the request, such a decision is highly unlikely.

Already prosecutors had closed their case without filing charges against three of Italy’s past health ministers. On Thursday, they asked a judge to archive the case against nine other officials, including a former top official at the World Health Organization, Dr. Ranieri Guerra, said his lawyer Roberto De Vita.

The investigation initially focused on whether delayed lockdowns in the hard-hit northern city of Bergamo contributed to the toll, but expanded to include whether Italy’s overall preparedness going into the crisis played a role.

Included was controversy over a WHO report into Italy’s response that was published by the U.N. health agency in May 2020 and then taken down a day later and never republished.

A former WHO official, Francesco Zambon, had suggested that WHO spiked the report to spare the Italian government criticism that its pandemic preparedness plan hadn’t been updated. WHO said it was pulled because it contained inaccuracies and was published prematurely.

Guerra had been the former head of the department of prevention in the Italian health ministry until 2017 and was a WHO envoy to Italy during the pandemic. De Vita said prosecutors determined the pandemic plan was in the process of being updated.

He welcomed the decision to archive the case, saying it should have been closed two years ago as soon as Guerra provided documentation to prosecutors showing he had acted correctly.

In a statement, Guerra said his reputation had been “gravely” harmed by the controversy and lashed out at those who had accused him of not protecting Italy.

Prof. Avv. Roberto De Vita gave a lecture for the officials of theFBI – Federal Bureau of Investigation, of the U.S. Secret Service, of theIRS , of the Metropolitan Police Service, ofHM Revenue & Customs, and of the Royal Canadian Mounted Police., titled “The fight against money laundering and financing of international terrorism – Intelligence and analysis techniques – Introduction” within the International Courses organized by the Economic and Financial Police School of the Guardia di Finanza.

The Senate Standing Committee on Justice has delivered the conclusions of its fact-finding investigation on the subject of wiretapping, which has been ongoing since December 2022: among the most notable observations is the Commission’s opposition to an expansion of the tool of preventive wiretapping.

The overall purpose of the survey was to delve into the most critical aspects of the wiretapping phenomenon, both in light of the latest reforms and, most importantly, the impact of new technologies, “both for the prevention of organized crime and for the need to introduce protections beyond the tool of the computer capturer (trojan) or other particularly invasive devices“.

The preventive wiretapping

Of particular interest are the reported considerations regarding preventive wiretapping, especially in light of the current geopolitical scenario and the resulting aggravated risks of international terrorist activity in Europe.

In particular, the Commission clearly spoke out against the strengthening of this tool, accepting the demands of some of the hearings, who pointed out that the numerous proposals to limit wiretaps ordered in criminal proceedings should not risk leading instead to greater use of preventive wiretaps and – as a result – to fewer protections for individuals[1].

The survey’s conclusions, on the contrary, reaffirmed that “the protection of privacy and the individual sphere of citizens can only be ensured through appropriate guarantee procedures, necessarily embedded within judicial proceedings” before a third and impartial judge.

In this regard, the criticism made by the Union of Criminal Chambers in a memorandum filed at the hearing was valued and cited: “The extension of preventive interceptions would result in the abstract possibility that the public authority, in the expectation of identifying news of crime on which to carry out subsequent investigations, would be authorized to listen to the communications of anyone in general, with the sole consequence of their non-usability in the trial[2]“.

Indeed, the concern shared in the survey’s conclusions is that the procedural guarantee of unusability alone is insufficient to limit the use of prior wiretapping as a means of evidence-seeking (removed from a judge’s subsequent review).

In the Commission’s view, “instead, the perimeter set by Article 15 of the Constitution under which the limitation of the principle of inviolability and secrecy of correspondence and all forms of communication can only take place by virtue of a reasoned act of the judicial authority must be reaffirmed.”

The conclusions drawn at the end of the investigation are particularly relevant in light of recent changes in the global political environment, which underscores the current need for preventive wiretapping to combat international terrorism.

The opinion expressed by the Commission stimulates the debate of scholars, jurists and the intelligence community, aimed at the confrontation and composition of different instances: in fact, today it is even more evident that a (complex) balancing of the needs of prevention and protection of the community with the safeguarding and respect of constitutional rights is necessary; and this in order not to deprive the public authority of a bulwark for the security of citizens and – at the same time – to avoid that a widespread and indiscriminate use of the instrument generates undue compressions of the fundamental freedoms of individuals.

To learn more, download the survey findings here.

 

 

References

[1] See https://www.camerepenali.it/public/file/Documenti/Documenti_Giunta_Caiazza/2023-01-12-Note-UCPI.pdf.

[2] Ibid, a criticism also reiterated at the hearing by Union President Adv. Giandomenico Caiazza, see https://www.senato.it/service/PDF/PDFServer/DF/426472.pdf, p. 10-11.