The Relationship Between Positive Obligations of Incrimination Under the ECHR and the Constitutional Principle of Legality in Criminal Matters in the Italian Legal System

Abstract

The purpose of this work is to bring to light the relationship between the positive obligations of incrimination under the ECHR and the constitutional principle of the legislature’s exclusive power to create crimes and establish criminal sanctions. This theme has a peculiar place within the general theme of judicial review of political power, providing food for thought regarding the grounds of appeal that underpins the hypothesis of checks on the inertia of the legislator in the face of positive obligations deriving from the international level in matters traditionally entrusted to the discretion of the Parliament. In this regard, the failure of the Italian legislature to introduce into Italian legal system the legal obligation of the Strasbourg Court to punish the conduct of torture shall be taken as a prime example. As will be explained, the Italian system recognizes one type of decision of the Constitutional Court—additive judgments—which consents to the censuring of omissions incurred by the legislature. However, such decisions cannot be made whenever they would have the effect of expanding the area of punishment, because doing so would lead to a conflict with the principle of nullum crimen, nulla poena sine lege, expressed in article 25, paragraph 2 of the Constitution. The impossibility of proposing a solution to the omissions of the legislator, in accordance and with respect to the aforementioned principle, therefore, creates a problematic and tense relationship between the fulfillment of international obligations set forth by the Strasbourg Court and the Italian legal order, leading to a possible breakage.