European Court of Human Right, IV Section, February 16, 2021, V.C.L. a. A.N. v. UK
The consultative mechanism provided for by Protocol n. 16 ECHR is applied for the third time
This paper critically analyses the relationship between the ECtHR balance in implementing a right based on the ECHR and the ECHR-driven interpretation by the domestic judge in applying defenses. While ECHR-driven interpretation is kept within the boundaries of the wording of the law, the balance is per se integrative-additive, so it goes by definition beyond such boundaries. Consequently, the ‘case by case’ approach at a domestic level could be more difficult and this would require to involve the Constitutional Court.
The increasing relevance of case-law in criminal trials through art. 7 ECHR put several issues in civil law systems, that are primally founded on statutory laws according to their constitutional traditions. Notwithstanding the influence of European Court of Human Rights did not equate statutory law with judge-made law in such systems of law, relevance of case-law in criminal trials cannot be denied. Otherwise, irretroactivity and lex mitior retroactivity principles would be thwarted. As a result, judge-made law and statutory lawstill remain unequated when case-law is not well-established, but they should be considered equal in extraordinary cases, such as absolutely unforeseeable overruling in malam partem and overruling in bonam partem by united chambers of Supreme Court of Cassation
The struggle against the heap of illegal assets finds in the subject of confiscation the primary and main tool of intervention: with its qualities of a structurally changeable and a finalistically eclectic concept, the confiscation takes on some chameleonic traits that allow it to adapt to many different purposes, both on the level of prevention and repression. The confiscation, in this regard, is the most emblematic manifestation of that specific model of “modern” criminal law, voted for the contrastive efficiency, to which the criminal policy of the last few years seems to tend to. The present contribution aims to outline the basics coordinates to orient the interpreter within the vast, complex and actual ablative panorama.
With a mechanism recalling the supranational blacklisting, the Italian law-maker introduced with Legislative Decree no. 90/2017 national measures of asset freezing aimed to prevent and fight financing terrorism. This is a new tool to trace the money trail which potentially crosses the Mediterranean Sea to finance ISIL or other terrorist organizations. This paper moves from analysis of the recent regulation and puts national asset freeze in the broader context of preventive measures with ban effect. Then, it focuses on its compatibility with the principles of domestic preventive system, highlighting the most critical issues: on the one hand, the justiciability deficit, on the other hand, the uncertain assessment of dangerousness. The lack of guarantees of listed persons pushes to wonder whether this domestic regulation has accomplished an adequate and lawful balancing between security and liberty.