The Relationship Between Positive Obligations of Incrimination Under the ECHR and the Constitutional Principle of Legality in Criminal Matters in the Italian Legal System.

The purpose of this work is to bring to light the relationship between the positive obligations of incrimination under the ECHR and the constitutional principle of the legislature’s exclusive power to create crimes and establish criminal sanctions. This theme has a peculiar place within the general theme of judicial review of political power, providing food for thought regarding the grounds of appeal to which is underpinned the hypothesis of checks on the inertia of the legislator in the face of positive obligations deriving from international level in matters traditionally entrusted to the discretion of the Parliament. The problematic profile that affects the praticability of judicial review relates to the fact that such control should be exercised on structural violations not positive, but negative. In such regard shall the failure of the Italian legislature to introduce into Italian law the obligation of the Strasbourg Court to punish the conduct of torture be taken as a paradigmatic example. As will be explained, the Italian system recognizes one type of sentence of the Constitutional Court - additive judgments - which consents to the censuring of omissions incurred by the legislature. However, such sentences cannot be uttered whenever they have the effect of extending the area of punishment as it would lead to a conflict with the principle of nullum crimen, nulla poena sine lege, expressed in article 25, paragraph 2 of the Italian Constitution. The impossibility of proposing a solution to the omissions of the legislator, in accordance and with respect to the aforementioned principle, therefore, creates an extremely problematic and tense relationship between the fulfillment of international obligations set forth by the Strasbourg Court and the Italian legal order, leading to a possible breakage.