L’incidenza dei diritti fondamentali in materia penale sulla ricostruzione dell’ordine pubblico internazionale: il caso del riconoscimento delle decisioni straniere attributive di punitive damages

By a judgment of 5 July 2017, the Court of Cassation reconsidered its case law concerning the recognition of foreign judgements imposing punitive damages. The Court held that such judgments are not necessarily at odds with Italian public policy, since the function of awarding damages in civil cases is no longer restricted, under Italian law, to the compensation for the harm suffered by the injured person. The paper examines the key passages of the judgment, beginning with the definition of public policy, which the Court questionably identifies with constitutional and supranational principles protecting fundamental rights. The paper then analyses the Court's assertion that the compatibility of punitive damages with public policy should be based on whether the law applied in the foreign judgment complies, as regards damages, with the principles of legality and predictabil-ity of criminal sanctions. In this respect, the Court pointed out the similarity between over-compensatory damages and criminal sanctions, on account of their function and effects. The paper argues that the compatibility test should extend to the issue of whether the foreign decision awarding punitive damages is consistent with the prin-ciple of favourable retroactivity of criminal law, as well as with the mens rea and double jeopardy principles.