The kick-off conference of the PRIN 2022 “Borderline” project, entitled “L’ibridazione della lotta alla criminalità attraverso misure non penali o di confine: principi, regole, limiti e opportunità per un sistema di contrasto integrato”, was held on November 20th 2023 at Luiss Guido Carli University in Rome.
The event started with the opening remarks by Professor Stefano Manzocchi, Deputy Rector for Research at Luiss Guido Carli University, who praised the choice of the topic and the interdisciplinary nature of the research project being presented, emphasizing, from an economist’s perspective, the importance of conducting investigations that address cross-cutting issues, such as compliance or the confiscation system.
The opening speech was given by Paola Severino, Professor Emeritus of Criminal Law at Luiss Guido Carli University and President of the Luiss School of Law, who stated that the project represents an important opportunity for scientific collaboration between Luiss Guido Carli University, the University of Rome “Unitelma Sapienza“, the University of Naples Federico II and the Sant’Anna School of Advanced Studies. Professor Severino pointed out that the principal objective of the project is to carry out a systematic review of all non-criminal or hybrid crime control measures and their related legal framework, in order to strike a fair balance between the strengthening of such enforcement mechanisms and the protection of fundamental rights.
Tullio Padovani, Member of the Accademia dei Lincei and former Professor of Criminal Law at the Sant’Anna School of Advanced Studies in Pisa, delivered a speech on the topic of “civil punitive offences”, highlighting the challenges related to the legislative interventions of decriminalization that have marked our legal system in recent decades, and pointing out that some reforms have failed to achieve the deflationary objectives advocated by the legislator. Regarding possible proposals for legislative reform, Professor Padovani focused on the introduction of the “punitive damages” in our legislation, and on the possibility of enhancing their application to respond effectively to specific criminal phenomena.
In the following speech, Pasquale Fimiani, Attorney General at the General Prosecutor’s Office of the Italian Supreme Court, delved into the topic of integrated compliance, proposing a taxonomy and clarifying its scope of application, while also providing legislative examples that can be related to this complex notion. He highlighted how the integration of internal control mechanisms should operate as a means of simplifying and rationalizing the obligations imposed on professionals and businesses.
The morning session ended with a panel discussion titled “L’ibridazione dei modelli di enforcement tra pubblico e privato: verso quale stagione di contrasto alla criminalità?”, introduced and moderated by Antonio Gullo, Professor of Criminal Law at Luiss Guido Carli University and Principal Investigator of PRIN 2022 “Borderline” project.
While introducing the discussion, Professor Gullo highlighted how the conference sessions were designed to develop the issues raised by the previous speakers and to foster an enriching dialogue among different voices from the initial stage of the research project. Indeed, beyond the kick-off conference, the project is intended to maintain close contacts with academics, magistrates and experts, planning further scientific initiatives throughout the various stages of the research’s development. In this perspective, Professor Gullo announced the launch of the project website (https://borderline.prin.luiss.it/), conceived as a platform to disseminate research findings and stimulate reflection on the issues at stake.
The floor was then given to David Brunelli, Professor of Criminal Law at the University of Roma Tre, who discussed the concept of “regulatory seasons”. Professor Brunelli highlighted how the current season is no longer exclusively based on penal sanctions, as a means of combating illegal behaviours, but is shifting towards simplified sanctioning models, aimed at achieving enforcement goals through more flexible approaches. With a view to the future, he noted the necessity of structuring a system capable of meeting the state’s needs to fight crime while also effectively safeguarding fundamental rights.
The following presentation by Gaetana Morgante, Professor of Criminal Law at the Sant’Anna School of Advanced Studies in Pisa and Associated Investigator of the PRIN 2022 “Borderline” project, focused on the notion of “hybridization”. In particular, Professor Morgante underlined how compliance mechanisms relate to the hybridization between criminal and non-criminal legal sciences – considering, for example, the relationship between the former and civil or administrative law – and between non-legal disciplines, such as management sciences, organizational sociology and the impact of new technologies. Professor Morgante’s analysis identified three levels of incidence of hybridization mechanisms in the criminal justice scenario: the expansion of enforcement actors, the shift in enforcement paradigms – from ex post repression to ex ante prevention – and the issue of safeguards.
Carlo Piergallini, Professor of Criminal Law at the University of Macerata, concluded the panel discussion, by focusing on the critical issues in the implementation of the criminal liability of collective entities and highlighting, among other things, the limited and unequal effective enforcement of Legislative Decree No. 231/2001 throughout the national territory. Looking to the future, Professor Piergallini emphasised the importance of providing the Decree’s recipients with a regulatory framework that is as stable and uniform as possible, encouraging self-regulation and making its benefits clearly foreseeable.
The afternoon session began with a speech on the topic of confiscation by Anna Maria Maugeri, Professor of Criminal Law at the University of Catania. It was pointed out how this legal measure has an ontologically hybrid, polyform nature that varies according to the object of seizure and the purpose pursued. Professor Maugeri stressed the necessity, in this matter, to both avoid “label frauds”, carried out in order to bypass the guarantees of criminal law, and ensure respect of fundamental principles (including due process, legality, proportionality), no matter what nature one wants to recognize to confiscation, or to individual forms of it.
The next panelist was Raffaello Magi, magistrate of the Italian Supreme Court, who dealt with the analysis of property prevention measures different from confiscation under the so-called Anti-mafia Code. During the presentation, judicial administration and judicial control of companies were examined as alternatives to traditional preventive confiscation orders, in order to facilitate the full legal recovery of those companies that are not directly under the control of mafia associations, but only influenced by organized crime activities. In this regard, he emphasized the importance of diversifying enforcement approaches while also balancing, where possible, the needs of crime prevention with the aim of ensuring business continuity.
The second panel discussion, entitled “Il ruolo delle misure ablative e di prevenzione nell’ibridazione della lotta al crimine: tra efficienza e garanzie”, was opened by an introductory presentation by Vincenzo Mongillo, Professor of Criminal Law at the University of Rome Unitelma Sapienza and Associated Investigator of the PRIN 2022 “Borderline” project. In particular, Professor Mongillo highlighted the complications arising from the extremely fragmented legal framework of anti-mafia measures, considering the possible systematic short-circuits associated with the coexistence and intersection between the judicial and administrative preventive legal means, as well as the challenges posed by confiscation in the context of multilevel criminal constitutionalism.
Marco Pelissero, Professor of Criminal Law at the University of Turin, then took the floor, delving into the relationship between efficiency and legal safeguards in the Italian system of confiscation measures, also considering the implications of various sources of supranational law. Professor Pelissero underlined that the variability between legislative interventions in this matter could end up in the limitation of fundamental rights, and further focused on the attempts to recover the protection of these guarantees through legal interpretation, highlighting the significance of the principle of proportionality.
The day’s proceedings were concluded with the speech by Giuseppe Amarelli, Professor of Criminal Law at the Federico II University of Naples and Associated Investigator of the PRIN 2022 “Borderline” project. Professor Amarelli examined the disqualifications outlined in the Anti-mafia Code as a paradigm of the hybrid crime control measures, stressing the ongoing necessity for an in-depth reflection, both in terms of a possible legal reform and within the scientific and institutional discourse, regarding the issues of legal guarantees, including the requirements for a precise legal basis legitimizing such an intrusive State intervention in the life of companies. He addressed recent legislative interventions that aimed at reducing the scope of application of this instrument and promoting mechanisms of cooperative prevention, in order to support those companies influenced by organized crime, instead of expelling them from the public sphere, and finally focused on the guarantees of adversarial participation in the procedural rules.
