Tipicità di contesto. A proposito dei c.d. indici di sfruttamento nell’art. 603-bis c.p.

This article provides a detailed analysis of the offence definition of the crime of labour exploitment. The actus reus is not defined in a static fashion, i.e. through a proper definition, but resorting to “indicators” that frame a context of situations from which the conditions of exploitment –as a crucial constituent element of the crime– can be inferred by the judge. This structure of the offence might actually appear innovative as well as it is controversial and has been in fact highly criticized by many scholars. However, this article firstly maintains that a long-lasting history of the penal systems (encompassing both substantive as well as procedural law), as long as the phrasing of abstract offence definitions is concerned, leads to a different general reading of the crime; secondly, the Author underlines that dynamic, contextual elements of the facts conveyed by the indicators amount to the requisite actus reus and therefore the offence definition is a contextual one. This account is able to shed light onto other significant instances of such a method of describing the constituent elements of crimes. Against this background, the building of a principled general theory of “contextual offence definitions” (kontextuelle Tatbestandsmässigkeit) is suggested, which takes into account, in particular, widely recognised general principles of criminal law (especially the nullum crimen principle, the principle of strict definition of crimes, the presumption of innocence and more broadly the fair trial principle).