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Taricco

What is at Stake in the Constitutional Court Decision on the Taricco Sentence

The questions of constitutionality raised by the European Court’s in Taricco have to be evaluated under two points of view: as questions of domestic law (would a “Taricco law” be considered constitutional?), and as questions of limits that could be opposed to the reception of a European law principle. Under both points of view, the judgment raises important questions on the evaluation of the functional adequacy ot the power, conferred to the national judge by the European Court, to disapply in malam partem the rules concerning the interruption of the limitation period. The penal principle of legality and the principle of judge subjection to the law are what is at stake here.

Prescription of Crime and Reasonable Duration of the Process: Principles to Be Defended or Obstacles to Be Knocked Down?

Statutes of limitations are a very salient topic in our Country, where a great number of criminal proceedings unfortunately end up being statute barred. This paper critically reflects on the recent tendency – now even more viable in light of the well-known Taricco judgment - to extend statutes of limitations in order to avoid such an outcome, which is certainly not desirable. In particular, it examines the protective nature and the liberal foundation of prescription, and puts the emphasis on the need to speed up criminal proceedings, rather than stretch the length of limitation periods as a non-thought out reform would recommend. Such a choice would in fact result in an even slower criminal justice, with late compensation for the victims of the crime and interventions that are not always able to rehabilitate the convicted, causing negative effects even on the economy the state. Therefore, in the light of recent judgments of the Constitutional Court, there is hope for targeted interventions on procedural criminal law, on regulated directions and also on the substantive criminal law able to affect the unsustainable length of Italian criminal proceedings.

The Unbereable Slowness of Criminal Prosecution: Taricco Facing the Fundamental Principles of the Italian Constitution

The referral orders submitted to the Italian Constitutional Court, with the aim of avoiding the application of the judgment Taricco by the Court of Justice of the European Union, trigger challenging questions related to the fundamental principles of the Italian Constitutional order. This contribution is based on the assumption that not all those legal tools that are somehow connected with the fundamental principles of the constitutional order are to be considered as limits to the principle of primacy of EU law. On the contrary, only the essential core of these principles may resist against the principle of primacy of EU law. Following from this consideration, the contribution analyses the statute of limitations, exploring the possibility – on the one hand – to include this legal institution under the umbrella of the constitutional principle of nullum crimen sine poena sine lege, enshrined by Article 25 of the Italian Constitution, or – on the other hand – to consider the statute of limitations as a mere accidental manifestation of this principle and thus not in its essential core.

The Primacy Of Eu Law And The National Criminal Legal System

The principle of the primacy of EU law is fundamental to the European legal structure, but it isn’t easily established when confronted with the national criminal legal systems, ruled by the principle of legality and generally by constitutional principles concurring to form the member states’ national identity itself, something that the Union must respect. A prime example of these difficulties is the case of the obligations imposed by the Court of Justice in Melloni, which found the Spanish “Tribunal Constitucional” faced with the choice between accepting a limitation to its constitutional right to a fair trial in deference to the application of the European arrest warrant, or taking a position against the judges in Luxembourg. Or those imposed by the Court of Justice in Taricco, which is currently under review by the Italian “Corte Costituzionale”, and whose sustainability against the founding principles of the Italian constitutional identity is specifically examined in this article.

Nemmeno la Corte di Giustizia dell’Unione Europea può erigere il giudice a legislatore

Vengono evidenziate motivazioni attinenti alla divisione dei poteri in base alle quali non può essere richiesto a un giudice, nemmeno dalla CGUE, di disapplicare disposizioni penali o processuali penali in base a un apprezzamento, di carattere generalpreventivo, circa il loro risultare di ostacolo, secondo l’esperienza giurisprudenziale, all’effettività applicativa, o all’efficacia dissuasiva, di determinate fattispecie incriminatrici. Su questa base (e non solo, dunque, con riguardo all’esigenza di evitare conseguenze retroattive in malam partem di pronunce europee), si valuta la prospettabilità della opposizione di «controlimiti» da parte della Corte costituzionale nella questione sollevata presso la medesima in rapporto alla sentenza CGUE «Taricco». La riflessione si estende al rapporto tra disposizioni europee e diritto penale interno, nonché, in particolare, al ruolo degli articoli 83 e 325 TFUE, come pure all’ambiguità della prefigurazione di «obblighi di risultato» in materia penale.