In this decision, the Court of Cassation considers the difficult issue regarding the specific implications of the application of the judgment in Contrada v. Italy on Italian legal system, which denied Marcello Dell’Utri the opportunity to invoke the principles of law enshrined therein in order to obtain the quashing of his conviction pursuant to art. 673 c.p.p. The court thus construed the binding force of the European judgment narrowly with regard to the “younger brothers” of the victorious applicant, i.e. all persons who, whilst not having applied directly to Strasbourg, assert that they have suffered the same violation already recognized by the ECtHR. This case requires us to consider once again the most appropriate procedural mechanisms for ensuring compliance with the obligation to abide by the final judgments of the European Court imposed on the States under art. 46 ECHR; at the same time however, it invites us to reflect on the real need for an erga omnes extension of the Contrada judgment’s ratio decidendi, read in the light of the wider context of Strasbourg case law concerning the nullum crimen principle.
This article analyses the concept, current developments and paradigmatic examples of criminal law case law, in relation to topics such as case law as a source of law, the doctrine of precedent, and the implications of the nullum crimen in the continental legal systems. The research investigates the category of unlawful interpretation through the violation of the principle of non-retroactive application of unpredictable, but legitimate, case law . A special attention is devoted to those cases that are not covered by such principle (realisation and individualization of the law, or otherwise a hidden analogy) and on those cases that are subjected to it according to the different influence of the discipline of mistake of law and to the nomophylactic role of the United Divisions of the Italian Court of Cassation and to the supreme courts in general. In conclusion, the article presents an updated reconstruction of the relationship between predictability of case law and judicial syllogism.
It has been clear for a long time that in the field of criminal law the decline of the "law in the books" coincides with a growing appreciation for the “law in action". However, if it is true that this process comes with, and indeed is supported by, several institutionally committed "betrayals" to the detriment of the more traditional structure of criminal law, it is also undeniable that this "change of era" for the classical axioms of criminal law seems to increase the importance of the familiar question of the relationship between the Legislative and the Judiciary. In this context, it is imperative to devise a way to consolidate the - new - guarantees offered by the “legality in action" is compelling, while striking at same time a fair balance between the "law in the books" and the “law in action” .
The subject of the relationship between criminal law and criminal procedure, if examined under the perspective of the law-making process, calls for a reflection on the possibility to conciliate the “judge-made law” with the principle of legality, as it is enshrined in the Italian Constitution and as it is intended by the European Court of Human Rights. The author is skeptical about the possibility for the judge-made law, in the Italian system, to comply with the substantive meaning of the principle of legality as a guarantee for the individual. Indeed, for legality to act as a guarantee, not only the law must be clear and precise in order to constitute a reason for action and allow the individual to foresee the consequences of his action. But also, the individual must be judged according to the same rule that is supposed to lead his action. In other words, the “rule of judgment” ought not to be “created” in the proceeding where the responsibility of the individual is established. Otherwise, the requirement of foreseeability (and non-retroactivity) of the law would be infringed. As well as the cognitive nature of the criminal proceeding. In response to the intrinsic unpredictability of a judge-made law in the Italian system, and to the difficulty to find remedies for it, it still seems necessary to require the respect of the principle of legality as it is enshrined in Article 25 of the Italian Constitution. This means that it is for the legislator to intervene when the law does not define clearly and precisely the elements of the offence and Leaves too much discretion to the judge in the definition of the “rule of judgment”. As it has been revealed by the ECtHR case Contrada v. Italy with regard to the offence of concorso esterno in associazione mafiosa.
Muovendo da alcune recenti pronunce delle Corti interna ed europea, l’Autrice evidenzia la problematicità del concetto di “prevedibilità dell’esito giudiziario” e della tendenza ad attribuire efficacia vincolante ai precedenti dei giudici europei. Sottolinea, per contro, l’esigenza di un approccio di tipo ermeneutico, volto ad esplicitare i presupposti assiologici e le conseguenze delle differenti opzioni interpretative.
Prendendo spunto da una recente sentenza della Corte di cassazione (Sez. II, 21 aprile 2015 n. 34147, Perego), che censura la sentenza della Corte EDU nel caso Contrada, l’Autrice disegna un possibile percorso di sviluppo dialogico e corale del diritto, risultante anche dall’incontro tra giudici nazionali e giudici sovranazionali.
La sentenza della Corte EDU sul caso Contrada, comunque la si valuti nel merito, addita esigenze di arricchimento del principio di legalità, che trovano fondamento non solo nella legalità europea, ma anche, nell’ordinamento italiano, nel principio di colpevolezza come definito nella sentenza n. 364/1988 della Corte costituzionale. L’idea di legalità/prevedibilità vincola l’ermeneutica giudiziaria alla ricerca di significati precettivi riconoscibili dai destinatari.