Mafia e terrorismo come «parte generale» del diritto penale

Autore: Massimo Donini
In: Meridiana. 97
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The second half of the twentieth century has seen a strong normalization of criminal law, that today represents a risk to everyday life, for perpetrators as well as victims. The last five years have instead seen a normalization, within the central body of criminal law, of institutes born during the years of the fight against «exceptional» crimes like mafia and terrorism, highlighting their risks, illegitimacies and remedies. The analysis of the normative evolution on mafia and terrorism shows that these matters have become a «general part» of criminal law: not only are they no longer located extra codicem nor temporary exceptions, relegated to some more or less organic special discipline, but they have also contaminated the central body of the code with institutes born under the sign of the s.c. «criminal law of fight», i.e. that criminal law is used as a weapon against certain phenomena and not as a guarantee for persons who are actually the only ones that are solely subject to criminal investigations. Both on the procedural level and (primarily) on the substantive law, it is possible to identify legal disciplines (such as the participation in crime and association crimes, prescription regimes, balance of circumstances, inchoate offences, collaborationist logic, differentiated punitive detention regimes, extended confiscations, preventive measures substituting security ones) where the normalization of the «law of exception» has become the heart of what Feuerbach and Carrara called general part or «philosophical narration» of criminal law. A spectacular starting point for the new «Code reservation» (Article 3-bis of the Criminal Code).

Keywords: Mafia and terrorisms; Criminal law of fight; Legal culture; Individual Guarantees.