[Autom. eng. transl.] According to the criminal legislation in force, it would appear that judicial discretion only pertains to the sanctioning phase. The category in question, nevertheless, also assumes importance in ascertaining the assumptions of liability and regarding multiple procedural choices: revealing, in the latter areas, a qualitative dimension. The contribution therefore reflects on the possible introduction of a discipline that brings to light, ensuring compliance with the principle of legality, judicial discretionary appreciation in all cases in which, in view of the application of the law in force, one cannot do without the evaluation activity put in place by the magistrate. However, it should be noted that the qualitative dimension already invests today, and is to be exploited for the future, the same judicial discretion regarding the sanction phase. The criteria are therefore outlined for a possible diversification of the main penalties aimed at individualizing the methods of responding to the crime: proposing, among other things, a review of the concept of proportionality of the penalty, traditionally understood in an arithmetic sense and, nevertheless , susceptible of an evolution in the sense of an overall 'congruity' of the consequences of the crime with respect to the constitutional model of reintegrating prevention.
|Translated title of the contribution||[Autom. eng. transl.] Judicial discretion and criminal law. A relationship to be revisited in the theory of crime and in the penalty system.|
|Number of pages||45|
|Journal||RIVISTA ITALIANA DI DIRITTO E PROCEDURA PENALE|
|Publication status||Published - 2019|
- discrezionalità giudiziaria
- legislazione penale
- sistema sanzionatorio.