La pena accessoria della decadenza dai parental rights e la Corte EDU. Riflessioni a partire dal caso M.D. and Others v. Malta

[Autom. eng. transl.] The paper examines an evolutionary line of great interest that emerged in the jurisprudence of the Court of Strasbourg and, in parallel, in the Italian constitutional jurisprudence on the subject of ancillary criminal sanctions. The European Court was recently asked to rule on the criminal law of Romania, which provided for an automatic sanction for the parent convicted of ill-treatment of a minor child: the loss of parental rights. A similar automatism has come to the attention of the Italian Constitutional Court, with reference to the case of crime of alteration of state by falsehood. The contribution highlights the profound similarity, at the argumentative level, of the decisions of the two Courts that, with autonomous motivational paths and applying different normative references (art. 8 ECHR; articles 3 and 30 of the Constitution), received the same result: the declaration of unreasonableness of the sanctioning automatism of disqualification from parental authority (now responsibility), which does not allow the trial judge to assess, in the concrete case, if the measure in question actually corresponds to the best interest of the minor involved