Tuesday, December 10, 2019
Simone Lonati (Bocconi University - Department of Law) has posted A Comparative Study of the Relationship Between Time and Criminal Justice: the New Face of Criminal Statutes of Limitations in Italy (European Criminal Law Review 3/2019) on SSRN. Here is the abstract:
Addressing the need to avoid punishing long past events that have fallen into oblivion, only to then come into play when the government, by means of proceedings, stages a re-enactment and thus a reminiscence of those events: statutes of limitations in criminal law are marked by an axiological ambiguity. The debate on their quomodo becomes particularly heated when the focus turns to the possible interferences between limitation periods and criminal proceedings. The discussion stems from the difficult attempt to balance primary and essentially heterogeneous interests: on the one hand, protecting the accused from the “punishment of trial” and, on the other, providing the criminal justice system with adequate time for prosecuting and adjudicating criminal offences as a way to effectively protect the interests harmed by the commission of certain crimes. Furthermore, there is a widespread concern to avoid instrumental conducts by the parties solely aimed at running out the clock. The matter is undoubtedly complex, as the issues and implications it gives rise to are multiple and varied. In an attempt to outline a possible statutory framework that may govern the relationship between the passage of time after the commission of an offence and the time needed for its adjudication, it may be useful to expand the knowledge base from which to draw upon in order to identify appropriate solutions: to look beyond domestic boundaries is, after all, good practice when faced with an impasse.
This analysis aims to closely examine the choices made in two legal systems–Germany and Spain–whose legal traditions are the closest to Italy. Firstly, the study will describe the key features characterizing, in general, limitation periods for criminal offences. Subsequently, special attention will be paid to the rules governing the impact that the launch and dynamics of criminal proceedings have on the running of limitation periods. Based on the differences and especially the similarities between the respective rules in force in the two countries, it will be possible to formulate a number of observations regarding the provisions implemented by the Italian legislator. Lastly,comparing and contrasting the German and Spanish legal experiences will allow a closer look at the more recent reforms of statutes of limitations in Italy, to the extent that the latter appear roughly inspired by the principles applied in the aforementioned systems.