They also acknowledged, for the first time, that the grounds for torturing Abu Zubaydah - the Saudi Arabian citizen detained in the wake of September 11, still languishing in Guantánamo - were mistaken
The paper focuses on the increasing role played by ordinary courts in the implementation of EU law. Since Simmenthal and Costa v. E.N.E.L. judgments, these courts are called upon to set aside any domestic provision in conflict with the directly enforceable provisions of EU law. This obligation, however, may prove problematic with respect to criminal law. Recently, the Taricco affaire has once again brought out this topic, by highlighting that the removal of the inconsistences between the domestic law and the EU law may infringe upon the constitutional principles concerning criminal law. At the same time, the Taricco case has questioned the relationship between the primacy of the EU law and the national threshold of protection of fundamental rights. Such a question needs to be faced in the light of the judgment delivered by the Constitutional Court on 31 May 2018.
Text of the speech (already published in the official website of the Italian Constitutional Court: see https://www.cortecostituzionale.it/documenti/varie/albi/vigano_albi.pdf) given by Francesco Viganò at the quadrilateral meeting of the French Conseil Constitutionnel and the constitutional courts of Italy, Spain and Portugal held in Albi, France on the 28 September 2018.
The paper presents the main judgments in constitutional-criminal law matters by the Associate Justice of the US Supreme Court Anthony Kennedy (who served from 1988 to 2018). The peculiar role of “Swing Justice” between conservative and liberal ones made his dynamic-evolutive approach in interpreting some constitutional clauses (cruel and unusual punishment clause under the 8th Amendment and due process clauses under 5th and 14th Amendment) a sort of balancing factor for the Court itself, enhancing the constitutional safeguards in certain areas of substantive criminal law (sanctioning and prisons, in particular). The turnover with Justice Kavanaugh, establishing a conservative majority – in conclusion – could jeopardize many results obtained insofar, affecting even the underlying fundamental principles of dignity, humanity and civilisation
A comment on the decision no. 207 of 2018 by the Italian Constitutional Court, that – with the primary aim to let the Parliament enact appropriate measures – decided to defer the constitutional ruling on article 580 of the Italian Criminal Code (crime of aiding suicide). This paper is also published on www.diritticomparati.it
The recent referral of the Venezuelan case to the International Criminal Court by several State Parties to the Rome Statute has been deeply covered by the media in Latin America. This piece highlights the lack of effectiveness of the referral per se, then pointing out the options for States really eager to implement the international criminal justice system
Two lectures by Sandra Babcock and Joe Margulies.
This short piece tries to reflect, also from a criminal law standpoint, on the locus classicus of the role and legitimacy of the Courts of rights. The latter are bodies that, irrespective of their national or supranational nature, have the power to oversee in a binding manner the conformity of the content of decisions adopted through a democratic method to a certain catalogue of constitutional principles or fundamental rights. The precise identification of the role of such Courts is clearly instrumental to solve the matter of their legitimacy.
The key-role attributed to the Criminal Court judge by the European Courts in resolving the normative conflicts in the area of multilevel protection of fundamental rights is one of the factors behind the crisis of the separation of powers. A clear input to the said process came from the judgments on the statutes of limitations (prescription) of crimes and the revoking of a guilty verdict because of a change of the case law to the benefit of the defendant. Such decisions induced the Constitutional Court to flex its muscle and invoking twice in a while the core principle of separation of powers. The said Constitutional Court case law, in limiting the role of the judiciary, can be the occasion for a reflection on potential and limits of the usage of such a core constitutional principle with respect to the protection of fundamental rights in criminal law matters.
This working paper, presented at a seminar on “Constitutional Criminal Law” organised at the Toronto University on 14-15 September 2018 by Malcolm Thornburn and Christoph Burchard, is a response to a recent work by Javier Wilenmann, where he argues inter alia that constitutional judicial review of criminal legislation is ineffective and, when fully exercised by the courts, is in fact counter-productive. This paper reasons to the contrary that: i) judicial control of criminal legislation can be effective, and historically in many instances has been shown to be so; and ii) from a political and institutional viewpoint, there are sound reasons to justify the exercise of judicial control, provided that certain criteria are met.