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ISSN 2611-8858

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Proportionality

European Court of Human Rights and Constitutional Court Between Balancing and Binding Precedent (Part III)

This article is divided into three parts. The subject is the complex connections between the test balancing of the Italian Constitutional Court and that of the CEDU Court. Balancing between interests protected by European Convention and interests protected by national constitutional system. The “ad hoc balancing” is the first type of test balancing, according to the author, applied by CEDU Court to many judicial cases, which argues that the val- ue protected by the European Convention is superior to the value protected by the national State. In the second part of the article, the author shows some judicial cases as examples of his argumentation. In the third part, the author analyzes the cases in which the European Court applies general standards for the resolution of conflicts of interests at stake, but only connected to specific cases decided, and argues that if the balancing should be binding, general rules of conflict ex ante available should be applied or there should be many precedents which create rules

The Report on the Activities of the Italian Constitutional Court in 2019

The Trends in the Italian Constitutional Jurisprudence, in the Report by President Cartabia

European Court of Human Rights and Constitutional Court Between Balancing and Binding Precedent (pt. II)

This article is divided into three parts. The subject is the complex connections between the test balancing of the Italian Constitutional Court and that of the CEDU Court. Balancing between interests protected by European Convention and interests protected by national constitutional system. The “ad hoc balancing” is the first type of test balancing, according to the author, applied by CEDU Court to many judicial cases, which argues that the value protected by the European Convention is superior to the value protected by the national State. In the second part of the article, the author shows some judicial cases as examples of his argumentation. In the third part, the author analyzes the cases in which the European Court applies general standards for the resolution of conflicts of interests at stake, but only connected to specific cases decided, and argues that if the balancing should be binding, general rules of conflict ex ante available should be applied or there should be many precedents which create rules.

European Court of Human Rights and Constitutional Court Between Balancing and Binding Precedent

This article is divided into three parts. The subject is the complex connections between the test balancing of the Italian Constitutional Court and that of the CEDU Court. Balancing between interests protected by European Convention and interests protected by national constitutional system. The “ad hoc balancing” is the first type of test balancing, according to the author, applied by CEDU Court to many judicial cases, which argues that the val- ue protected by the European Convention is superior to the value protected by the national State. In the second part of the article, the author shows some judicial cases as examples of his argumentation. In the third part, the author analyzes the cases in which the European Court applies general standards for the resolution of conflicts of interests at stake, but only connected to specific cases decided, and argues that if the balancing should be binding, general rules of conflict ex ante available should be applied or there should be many precedents which create rules

Il principio di proporzionalità nell’era del controllo tecnologico e le sue implicazioni processuali rispetto ai nuovi mezzi di ricerca della prova

The paper focuses on proportionality with respect to electronic surveillance, often used in criminal investigations. Firstly the matter is analysed from a supranational standpoint, taking into account the legal framework and the relevant case-law; secondly, the analysis goes deeper into the Italian legal system, showing how the notion of proportionality is sometimes misunderstood.

Legislative Options about Mens Rea in New Environmental Crimes

The discipline of the environmental crimes included in the penal code leads to questioning about some issues concerning culpability and the relationship between it and the punishment. In particular, the ambiguous wording of new art. 452-ter c.p. requires to verify whether death and bodily injuries require a mens rea of negligence. Moreover, art. 452-quinquies c.p. stimulates interesting reflections on the proportion between culpability and punishment.

Constitutionality of the Maximum Limit Applicable to Punishment as Requirement for the Exclusion of Punishability due to the Particular Tenuity of the Fact

According to Art. 131-bis of the Italian Penal Code, the exclusion of punishment for the particular tenuity of the fact is applicable only to offences, whose statutory punishment does not exceed five years imprisonment. Consequently, Art. 131-bis of the Italian Penal Code cannot be applied to the offence of receiving stolen goods, even if the act was of negligible significance according to Art. 648 Par. 2 of the Penal Code, because the statutory punishment is imprisonment for up to six years. The Italian Constitutional Court, by its judgement No. 207/2017, has ruled that this legislative outcome is not unreasonable, but has also highlighted some inconsistencies of the current regulation, that would require a reform. The present contribution tries to demonstrate that the decision of the Court does not remove every doubt about the constitutionality Art. 131-bis of the Italian Penal Code.

The Limits Applicable to Punishment, Between Political Discretion and Constitutional Constraints

The choices regarding the limits applicable to punishment (both minimum and maximum) that fall to the political assessment of the legislator should be verified on the basis of the proportionality principle, having regard to the seriousness of the various offences, in accordance with the principle of equal treatment and the rehabilitative purpose of punishment. There are several restrictions pertaining to the limits applicable to punishment: excessively broad ranges or ranges that break the link between the seriousness of the offence and the discretionary evaluations of the legislator are not permitted.

A Remarkable Judgment by the Italian Constitutional Court on Proportionality of Penalties

In this judgement, the Italian Constitutional Court adopts a brand new approach in assessing the proportionality of the sanctions provided for specific offences. The Court keeps on invoking, as legal bases for this assessment, Articles 3 (principle of equality) and 27(3) (rehabilitation as essential aim of punishment) of the Constitution, but gives up the traditional requirement of a tertium comparationis as a condition for a criminal provision to be declared invalid because of the disproportionality of the penalty set forth therein. Should such an approach be confirmed in the future, it will be possible to demonstrate the lack of proportionality by showing not only that the penalty provided for the offence A is unjustifiably higher than the one provided for the comparable offence B, but also that the penalty provided for the offence A is too harsh in absolute terms, because it implies an excessive limitation of the fundamental rights of the convict in respect of the aims pursued by the criminal provision.