Lexambiente (May 2019)
Criminal offences related to the «absence» of authorization and responsibility of the authorization holder: a problem still open
Abstract
The paper aims to address the age-old problem of criminal responsibility for activities carried out in accordance with an authorization, that is subject of case law long discussed. Applying to the authorization holder the criminal offenses related to the «absence» of authorization seems possible only if the administration deed is marked by the most radical administrative flaw of the legal “non-existence”; otherwise, the Constitutional and European principle of “no analogy contra reum” would be violated (paragraph 1). De iure condendo, the problem could be faced through the introduction of a provision that explicitly provides for the cases in which the illegitimate authorization can be equated to the absent one, as in the German penal code, § 330 d, n. 5 (par. 2). The aspect of mens rea is then analyzed (par. 3): also in this case the criminal jurisprudence seems to privilege the requests of protection of the legal assets at stake, compared to to the guarantees of the subjects of the criminal laws. Rarely – it seems – the defendant is held to be excusable as he relied on the action of the public administration
