The foundation of the retroactivity of the favorable criminal law
The retroactivity of the favorable law constitutes an exception to the principle Pursuant to art. 11 available prel.: Absolutely legitimate derogation given the rank of ordinary law of That principle.
Problem Posed by favorable retroactivity: if this principle Should be given constitutional rank even in the silence of the Constitution, as the constitutional rule has other principle (unfavorable irretroactivity) That regulates the effectiveness of the criminal law over time. The question can be Answered by ascertaining the ratio and function of The More favorable retroactivity principle. Abolitio criminis intervened.
Recently the Court cost. he excluded That the principle of retroactivity of the most favorable law can be counted among the constitutional ones, "from the reading of the art. 25.2 of the Constitution, it Emerges That only the principle of non-retroactivity of the criminal law incriminating has acquired constitutional value but not that of the retroactivity of the law most favorable to the offender.
From this it follows That, as the principle of retroactivity of the most favorable disposition must be Considered compliant with the aforementioned constitutional provision, the same conclusion must be Reached in Accordance with the law Which Provides for the non-retroactivity of norms favorable ".
However, the foundation of favorable retroactivity must be Recognized in the superior principle of equality.
1 / Affirm the need for equality of treatment between Those who have committed the same material fact, but the latter being banned ounces and the other allowed, discriminating means denying any relevance to mere failure to comply with the law incriminating. Consider: Dude has committed to the fact during the validity of the law That prohibited it. Caio commits the same fact A2 after the repeal of the law incriminating. 1 Therefore facts are the same and the treatment is provided by the next law. However, it could be objected That does not really be the same, since it does not comply with the law that does not imply.
The identification of the principle of equality of treatment as the foundation of favorable retroactivity entails some important implications of a political-constitutional order.
EQUALITY OF TREATMENT AND TEMPORARY NEEDS
But, by contrast, 2_ The derivation of the favorable retroactivity from the principle of equality of treatment implies The Possibility That the disciplines of the abolitio criminis can go through entirely legitimate constitutional exceptions as founded on interests or justificatory Reasons objectively "reasonable". This is the case of exceptional and temporary laws.
Article. 2.4 of the Criminal Code Establishes That the regulation of favorable retroactivity does not apply to temporary exceptional laws, as Both have a period of Predetermined Predetermined or a priori, since they are destined to lose force either with the end of the final term or with the end of the exceptional situation in relation to Which they were issued.