The paper illustrates the reasons according to which all the stages of criminal justice system are grounded on the so-called ‘negative’ general prevention and the libertarian limits to such a goal, so that the justification of criminal penalty can be defined libertarian in turn.
The paper aims to define the contents and the features of foreseeability, poiting out the normative factors undermining its implementation. Foreseeing criminal law consequences of one’s behaviour cannot be, for any individual, simply a mathematical calculation, but on the other hand it cannot become – as often happens – a sort of prophecy. After the introduction, two examples of non-foreseeability of criminal liability will be offered, in the area of financial crime. Having touched the poor quality of criminal provisions in an area where typical and atypical domestic and international legal sources are more interrelated, some remedies will be outlined in order to ensure foreseeability of criminal liability, both from a comparative perspective and from the very nature of domestic nullum crimen sine lege.
The ECHR and the Treaties of the European Union do not attribute an erga omnes binding value to the precedents of the European Court of Human Rights and the Court of Justice of the European Union. Moreover, the introduction in our system of the Anglo-American doctrine of stare decisis would be in radical conflict with the principle of subjection of the judge to the parliamentary law provided by art. 101 paragraph 2 of the Italian Constitution. This does not exclude that the European precedents, as products of highly authoritative courts, have the maximum persuasive value. Such strength, however, is subject to a series of conditions, which do not serve to block the gates of the national system, but perform a function of dialectical opposition that is indispensable for the progressive improvement of European law.
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