Suchergebnisse

Within the well-known Taricco affair, the Constitutional Court, with the refer n. 24 of 2017, raised the principle of legality in criminal law, enshrined in art. 25, second paragraph of the Constitution, to the rank of supreme principle of the constitutional legal order, insofar it requires that criminal rules must be precise and must not have retroactive effect, recognizing the extraordinary importance of the individual guarantees related to it. However, this statement of the Constitutional Judge comes into a context of deep crisis of the guarantees historically referred to the principle of nullum crimen, which, due to the distortions of legislative procedures and the increasingly importance of the jurisprudence (common and constitutional), due to the definitive affirmation of a European criminal law and of the progressive incidence of the European Court in the criminal sector, has profoundly changed its own content of guarantee, compared to the original model traced by the Constituent. This doctoral research intends to investigate, with the peculiar perspective of constitutional law, this complex ground focusing, after a brief introduction of its historical and philosophical origins, on the evolution of the principle of legality in criminal law, in light of the integration with the European Charters, with the idea of particularly deepening the most recent and controversial issues: firstly, the definition of the scope of the principle recognized by the art. 25, second paragraph of the Constitution (which is a priority topic); the current significance of the statutory clause in criminal matters in a scenario where the representative Parliament seems ousted from the definition of the criminal policy's directives; the role played in criminal matters by the Constitutional Court, called to represent the last bastion in defense of the principle of legality and sometimes becomes itself the source of guarantees' weakening linked to the statutory clause and the principle of certainty; and lastly, the impact on the domestic penal system brought by the criminalization's choices taken by the institutions of the European Union and the increasingly role of supranational Courts.

Con il presente contributo, l'Autore offre un commento della sentenza n. 276 del 2016 della Corte costituzionale in materia di incandidabilità, concentrandosi, in particolare, sulla presunta incostituzionalità dell'applicazione retroattiva della "misura" della sospensione dalle cariche regionali e locali prevista dal decreto legislativo n. 235 del 2012 (cd. "Decreto Severino"). Dopo una analisi delle più rilevanti problematiche di ordine processuale poste dalla decisione, l'Autore esamina, con alcune osservazioni critiche, l'itinerario argomentativo seguito dalla Corte costituzionale per dichiarare non fondate, in relazione ai parametri di cui agli artt. 25, secondo comma, Cost. e 117, primo comma, Cost., le questioni sollevate dalle autorità rimettenti. Nell'ultima parte dello scritto, infine, l'Autore si interroga circa i possibili sviluppi giurisprudenziali della materia, in vista della prossima decisione della Corte EDU sul ricorso dell'ex Sen. Berlusconi. ; With this paper, the Author proposes a comment on judgment no. 276 of 2016 of the Italian constitutional Court about the ineligibility ("incandidabilità"), focusing, in particular, on the presumed unconstitutionality of the retroactivity of the suspension from the regional and local offices provided by the legislative decree n. 235/2012 (the so-called "Severino Decree"). Following an analysis on the main procedural aspects of the decision, the Author examines, with a few critical remarks, the way in which the constitutional Court dismissed the questions of constitutionality raised, in reference to Art. 25.2 and 117.1 by the referring judges. In the last part of the essay, the Author analyses the possible jurisprudential developments in this matter, in view of the forthcoming decision of the Court of Strasbourg on the appeal of the former Senator Berlusconi.

In the Taricco judgment, the ECJ held that Article 325 TFEU requires the national courts to disregard the Italian rules of limitation periods if their application prevents the imposition of effective and deterrent penalties in a significant number of cases of serious fraud affecting EU financial interests. In Italy, some courts considered that the disapplication imposed by the ECJ runs counter to the fundamental principles of the Italian constitutional system, including the principle of strict legality in criminal matters, formally recognized in the Italian Constitution. Consequently, the ICC had been requested by these judges to exercise the "counter-limits" power in order to prevent the enforcement of the ECJ ruling in Taricco. The ICC sought a preliminary reference from the ECJ on the interpretation of the Article 325 TFUE, making some important statements on the principle of legality. In particular, the ICC stated that this principle is an expression of a supreme principle of the legal order, which has been posited in order to safeguard the inviolable rights of the individual, by clarifying also that this principle does not grant the courts the power to create new criminal law in place of that established by legislation approved by Parliament. Awaiting the ECJ's decision on the case, there are already several points on the issue of the "Judiciary creation of law and dialogue between judges" around which is possible to discuss and confront different legal traditions.