it is law. The majority is struggling

The penal reform became law with strokes of confidence after the Senate , but the House has approved a bill that was able to complete his journey in Parliament almost after almost four years. Montecitorio first confirmed the confidence of the Gentiloni government with 320 yes, 149 no and one abstention. But the discomfort within the majority came out at the time of the vote on the provision, passed with only 267 yes and 136 no.

Popular Alternative of Angelino Alfano has defected the House almost en bloc, the parliamentary group of the UDC  has voted against, while Article 1-Mdphe abstained. But above all he has voted against – from the parliamentary tables and not those of the executive – the Minister for Regional Affairs Enrico Costa ,

Alfano's right-hand man and career as an ultragarantist even at the time of the PDL and the legal troubles of Silvio Berlusconi . Ap's decision to leave the Chamber at the time of voting was explained as an act of responsibility. "If Davigo is against this law, it means that something good must be there …" he said in the Hall Ferdinando Adornatoin the name of the alfaniani, who have called themselves "miners" of the Gentiloni government because "we want it to arrive at the end of the term, we are against the fibrillations that damage the country". For former Pd instead the shadows prevail, as explained Danilo Leva ,

hence the abstention. Contraria Forza Italia : "The 95 paragraphs of this text – says Francesco Paolo Sisto in the Chamber that the lawyer is working, including Silvio Berlusconi – will be inserted as many viruses in the judicial system, with a stunning codicism impossible to digest". For the Cinquestelle the reform "is a havoc".

Last March, even at Palazzo Madama , it took confidence to approve the bill , modified by the senators in the justice commission after the first approval of the Chamber on September 23, 2015. Today, two years after that vote, Montecitorio finally approved the law. But again with the vote of confidence, an inevitable choice for holding the majority, but that made all the oppositions jump on the chair .

The National Magistrates Association remains critical "Recourse to trust is a stretch . Although the bill has been examined by Parliament for three years, the contributions of legal practitioners, and in particular of the ANM, have been provisioned. There has been no proactive dialogue and the final text, voted by the Chamber, despite several positive content,

dissatisfied all the categories interested in the proper functioning of justice ", comments the magistrates' union. "The rules on the avocation – always adds the ANM – will create serious disservices in the offices and even the wiretapping and prescription regimes will not satisfythe needs of citizens. Today a path has been interrupted that could have made a real contribution to the justice machine, improving its efficiency ".

Criminal law: principles and disciplines

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.

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.


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.