The Principle of Legality: Reflections on the Dialogue between the Court of Justice, the European Court of Human Rights and the Italian Constitutional Court
| DOI | 10.1177/203228441500600418 |
| Author | Giovanni Maria Flick |
| Date | 01 December 2015 |
| Published date | 01 December 2015 |
| Subject Matter | Session 5: The CJEU and Future Challenges |
New Journal of Eu ropean Crimina l Law, Vol. 6, Issue 4, 2015 553
THE PRINCIPLE OF LEGALITY
Re ections on the Dialogue Between the Court of
Justice, the European Court of Human Rights and
the Italian Constitutional Court*
G M F**
Both at the national level and at t he supranational and Europea n level, in order to
de ne a common framework for criminal o ences, there is an overriding need to
respect the fund amental principle of legality. Under article25 comma II of the Italia n
Constitution, a law must be su ciently clearly de ned and binding: “no punish ment
may be in icted except by virtue of a law in force at the t ime the o ence was
committed”. e supranational and Europea n order, the ECHR (Article 7) and the
Nice Charter (Article 49) al so provide for a principle of legality which is equally
fundamental to, but f ramed di erently from, the Italian principle: “No one shall be
held guilty of any criminal o ence on account of any act or omission which did not
constitute a criminal o ence under nationa l law or international law at the time when
it was commit ted”.
Rights – as the Str asbourg Court and t he Court of Justice expressly a rm – are
those which derive from the law, from the wr itten norms, and from t he pronouncements
emanating from the t wo courts, but not only these; for in the case of t he supranational
norms – which must also be c apable of being applied within the common law sys tems
– greater reliance is placed on case-law. For this reason the ECHR and the Nice
Charter both moved towards a principle of legality which no longer and exclusively
places emphasis only on the source of the norm, but al so on its content.
e parameter of the principle of legality from this perspective is represented by
the foreseeability and accessibility of the norm, wh ile for our national constitutional
* is contribution is to be considered an Opinion, with reference to t he tradit ional NJECL division
between Ar ticles and Opinion.
Presentation at the C onference on the ‘Competence of th e Court of Justice of the Euro pean Union in
the Area of Freedom , Security and Justic e, that was held on November 14, 2014, at the LUISS Guido
Carli University i n Rome.
** Former President of the Ita lian Const itutional Cou rt, Emeritu s President of the Ital ian
Constitutiona l Court, Former Ital ian Minister of Justic e, representative of the Ital ian Government
in the convention for t he dra ing of the Nice Cha rter, Emeritus Profess or of Criminal L aw at LUISS
Guido Carli Universit y.
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