Dalla mera interpretazione alla «manipolazione»: creatività e tecniche decisorie della Corte costituzionale tra diritto penale vigente e diritto vivente

Translated title of the contribution: [Autom. eng. transl.] From mere interpretation to "manipulation": creativity and decision-making techniques of the Constitutional Court between current criminal law and living law

Research output: Chapter in Book/Report/Conference proceedingChapter

Abstract

[Autom. eng. transl.] The contribution, characterized by an interdisciplinary theoretical and methodological approach, deepens the theme of the contribution of constitutional jurisprudence in criminal matters: a contribution that is so significant that it appears comparable to that deriving from the legislator himself. In the more than sixty years of his work the Constitutional Court has expressed itself in criminal matters through a variety of sentences, heterogeneous in content but above all in method. Over time it has developed new decision-making tools, which have integrated the original and certainly not exhaustive dichotomy of sentences of acceptance-sentences of rejection. The Court's intervention in the field of criminal law is still in continuous expansion and is characterized by a growing degree of creativity, which manifests itself evidently with respect to certain types of sentences, in particular the so-called manipulative sentences. Through these controversial judgments the Court implements an interference in the legislative dictate, in the sense of its elimination or its extension, and appears to go beyond its jurisdictional role strictly intended to offer a direct and immediate remedy to situations (real or potential ) unconstitutionality. The analysis, conducted on the basis of a rich and punctual case law, which also explores the specific sectors of criminal justice in the child and military sectors, is carried out according to a double basic perspective: to investigate the report of the Constitutional Court with the legislator and with ordinary judges. Compared to the relations with the legislator, emblematic of the growing awareness acquired by the Court about its role as guarantor of constitutional principles are the so-called warning sentences, with which the Court, recognizing in the current legislation imbalances or disharmonies with respect to the constitutional dictate, urges the intervention of the legislator in order to avoid rulings of unconstitutionality and regulatory gaps, except to intervene directly with decisions of a guaranteeing nature in the case of persistent inertia of the same. Also the relations between the Constitutional Court and ordinary judges are affected by a significant evolution, clearly distinguishable above all in the last decades. The analysis of constitutional jurisprudence makes it possible to identify among these interlocutors the establishment of a relationship based on mutual enhancement: the interpretative powers of the ordinary judge are encouraged by the Court, and the effects of the decisions of the judge of the laws are accepted and developed by the ordinary judges . The so-called interpretative rejection sentences, in particular, represent an important decision-making technique for these purposes since, while rejecting the question of constitutional legitimacy, they promote an interpretation of the normative dictate different from that provided by the judge in the square, which can be implemented in the subsequent practical applications. The tendency of the Constitutional Court to engage ordinary judges in a research and identification work, among the various possible interpretations, of those conforming to the Constitution is also outlined. In other words, from the Consulta there are references to a greater responsibility of the magistrates in the exercise of the constitutionality of laws and to an increasingly accentuated and widespread control of their constitutionality, above all when the object of dispute are not the basic legislative options but their absolute or excessively rigid character, which in the application to the concrete case leads to results contrary to reasonableness. At the outcome of the survey carried out it is possible to grasp the complexity of the scenario in which the Constitutional Court currently operates. The doctrine, both penalistic and constitutional, seems to agree in this regard in recognizing to the judge of laws a role of pious
Translated title of the contribution[Autom. eng. transl.] From mere interpretation to "manipulation": creativity and decision-making techniques of the Constitutional Court between current criminal law and living law
Original languageItalian
Title of host publicationStudi in onore di Mario Romano - volume I -
Pages55-148
Number of pages94
Publication statusPublished - 2011

Keywords

  • Criminal Law
  • Diritto penale
  • Giurisprudenza costituzionale
  • Italian Constitutional Court
  • Judicial Techniques
  • Tecniche decisorie

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