In the entry dedicated to Retroactivity of the more favorable penal law published in The book of the year of law 2012 we pointed out among the still open questions the problem if the principle in question also operates with respect to mere jurisprudential changes more favorable to the offender.
In presenting this last issue, we were considering a question of constitutional legitimacy concerning art. 673 cpp already submitted to the Court, with which the remitting judge aimed in substance to extend the remedy of the revocation of the final sentence of conviction in the case of abolitio criminis to the hypothesis not of the repeal of the incriminating norm by the legislator,
but of mere revirement interpretative by the United Sections of the Court of Cassation, in the hypothesis in which they declare the criminal irrelevance of a class of hypothesis previously considered by the same jurisprudence which may be subsumed in the provision of an incriminating norm still in force 1 .
The Constitutional Court has now intervened, with the ruling 12.10.2012, n. 230, to declare the groundlessness of the question, with a ruling that aims to circumscribe the scope of the principle of retroactivity in mitius to the law alone , or to acts having the force of law 2 , thus rejecting the perspective – adopted by the order of remission, which had largely drawn on the extended concept of "law" ( law ) used by the jurisprudence of the Court of EDU – of a tendential equality, for the purpose of determining the scope of the principle of legality in criminal matters, between law of legislative source and right of source pretoria .
In a subsequent ruling – the decision 18.7.2013, n. 210 – the Constitutional Court then faced another thorny issue, concerning the possibility of remedying the one that the Court EDU, in the Scoppola case c. Italy of 17.9.2009, had considered to constitute a violation of the retroactivity principle of a more favorable intermediary criminal law , but with respect to convicted persons who, unlike Scoppola, had not proposed a timely appeal to the European Court against the Italian State for to declare the violation.
In this case, however, the Constitutional Court found the question raised by the same United Sections of the Court of Cassation 3 in relation to the subsequent (unfavorable) rule, whose retroactive application had prevented the application of the intermediate lex mitior and, therefore, determined the violation of the principle in question.
Both pronunciations thus show that the subject of the retroactivity of the most favorable law in criminal matters is more open than ever in our legal system, in particular as regards the possible impacts of this principle on the intangibility of the court: problem, the latter, which we will pay particular attention to in the final part of this contribution.
However, it is advisable to give a detailed account of the two constitutional judgments mentioned above.
2.1 THE SENTENCE N. 230/2012
As anticipated, the question of constitutionality addressed in sentence no. 230/2012 had as object the art. 673 of the Code of Criminal Procedure, that is the norm that requires the execution judge to revoke the sentence of sentencing with res judicata in cases of abrogationor declaration of constitutional illegitimacy of the incriminating law. The remitting judge denounced the possible contrast of this rule with articles 3, 13, 25, co. 2, 27, co. 3, and 117, co. 1, Constitution in relation to articles 5, 6 and 7 of the ECHR "in the part in which it does not provide for the hypothesis of revocation of the sentence … in the event of a change in jurisprudence– intervened by decision of the United Sections of the Court of Cassation – according to which the offense is not provided for by the criminal law as a crime ».
The case was as follows. A non-EU foreigner, lacking a regular residence permit in our country, was definitively convicted in March 2011 for the crime of failure to show identity documents and residence permit pursuant to art. 6, co. 3, Legislative Decree 25.7.1998, n. 286. A sentence of the United Sections of the Court of Cassation, issued in February and filed in April 2011, established however that the crime in question, as amended in 2009, is not applicable to foreigners who, as the accused, are in root without a residence permit and are therefore in the objective impossibility to exhibit it at the request of the public authority.
The judge found that the textual data of the art. 673 of the Code of Criminal Procedure is confined to the two hypothesis of the abrogation or declaration of constitutional illegitimacy of the incriminating norm, urges at this point from the Constitutional Court an additive sentence that extends the scope of operation of the norm to the hypothesis in which the criminal irrelevance of the conducted by the defendant has been declared not by the legislator (through the repeal of the incriminating rule) or by the Constitutional Court(through the declaration of constitutional illegitimacy of the same law), but by ordinary jurisdiction, and in particular by the United Sections of the Court of Cassation, in their function as interpreters of current law.