Il fatto e il fenomeno nel processo penale: come rimanere garantisti dinanzi alla tentazione giustizialista posta dal terrorismo internazionale

Abstract

The aim of the work is to demonstrate how the transition from a criminal trial aimed at ascertaining a "fact" to a criminal trial aimed at repressing certain "phenomena" leads to a significant compression of fundamental rights, also in the form of procedural guarantees. The analysis starts from the distinction between the two concepts of "fact" and "phenomenon". In particular, starting from the concept of "fact" in the context of criminal proceedings, and in the light of what is the primary guarantee function of criminal procedural law, it is shown that as soon as one moves away from the ascertainment of the "fact", which can be appropriately achieved only in the presence of a third and impartial judge, one moves towards inquisitorial schemes. Moving on to analyse the concept of "phenomenon", an attempt has been made, in particular, to highlight how its origin, in the criminal field, is strongly influenced by the perception that one has of a certain "fact" of crime, which, in turn, is purposely determined by the so-called mediated reality, i.e. a reality created by the media, which does not correspond to the actual reality. There is, therefore, a perception of crime that appears manipulated by the political-media circuit and that determines demands for security. These demands for security find their factual confirmation in a symbolic criminal legislation. It was also stressed that the transition from the "fact" of crime to the criminal "phenomenon" finds its theoretical basis in the development of the "criminal law of the enemy". In order to be able to analyse the practical consequences, the Islamic terrorism was chosen as the criminal "phenomenon" par excellence, the result of this passage. The next step was to analyse the response of the legal systems to such phenomena, focusing, in the first place, on the Italian legal system and, in particular, on the symbolic criminal legislation against terrorism, which is manifested with a notable anticipation of the threshold of punishability, with the revitalization of the measures of prevention and with the so-called double trial system. In the second place, with a comparative look, we passed to analyse the political and legislative responses of the French System, in the aftermath of the most recent terrorist attacks - reactions all inspired by the concept of "war terrorism"; finally, the analysis moved to the reaction of the European System and concentrated, in a particular way, on a critical approach with respect to the recent proposals made on the subject within the Community framework. Finally, it has been shown how all these reactions, which are determined at a political, legislative - substantive and procedural - and jurisprudential level when the passage from the "fact" of crime to the criminal "phenomenon" takes place, entail an inevitable compression of fundamental rights and of those constitutional, penal and procedural-penalistic principles which constitute their bulwark.