Sindacato di legittimità costituzionale e legalità penale: il delicato equilibrio tra ruolo della Corte Costituzionale e discrezionalità del legislatore negli itinerari giurisprudenziali più recenti

Abstract

The paper intends to focus on the issue of the relationship between the judgment of constitutional legitimacy and the legislator's discretionary power in criminal matters. The Constitutional Court, especially in recent years, has carried out an overall rewriting of criminal law, through rulings that have affected some of the most significant institutions, introducing a substitute regulation for that deliberated by the legislator. To achieve this result, in the name of safeguarding fundamental rights, the Constitutional Court devised new techniques of adjudication, forcing patterns that had already been established in its jurisprudence or proposing new ways of adjudication in incidental proceedings. On the substantive level, the Court of Laws modified certain orientations that had stabilized, giving new strenght to the constitutional principles related to criminal law. This allows for the identification of a new phase in the relationship between the Constitutional Court and criminal norms, which, in a more general context, is part of a season in which a strong prominence of the judge of laws has emerged, that seems to be a symptom of a new and different settlement of institutional relations between the Constitutional Court itself and the organs of political guidance. From the perspective of constitutional law, questioning the declinations of the criminalistic principle of legality, between the primacy of the Constitution and discretionary political choices, necessarily entails projecting the issue against the backdrop of the polyarchical arrangement of relations between constitutional organs, on which all the profiles of complexity implied by the topic reverberate. In fact, the problems of balancing conflicting interests, all of primary rank, that come into play in such a sensitive area as criminal policies, affect the dynamic balance between powers, establishing a dialectic susceptible to find, in the various periods, different settlements, which pose the scholar with ever new angles from which to look at the institutions involved. In the issue under consideration, axiological-conceptual elements of crucial scope in classical as well as contemporary debate overlap, which have repercussions of immediate concreteness on the national and multilevel jurisdictional level, defined by the dialogue between the Courts; this animates another dialectical dimension, in which the theoretical status of the constitutional principles of criminal law is often counterbalanced by their realization in the legislative and judicial spheres. All this gives a good idea of the absolute centrality of the issue, such as to open up reflection on questions of very wide scope, which touch on the very axiological roots of the constitutional dictate, and the way in which they should be imposed on the legislator as an intangible limit to the exercise of its discretion. The same issues, specularly, question the margins of intervention of the Judge of Laws in affirming values disregarded or contradicted by normative production. An investigation into the relations between the legislator, that is the political sphere, and the review of constitutional legitimacy, particularly having regard to criminal matters, is not, moreover, a mere theoretical exercise, since it allows one to go beyond dogmatic schematisms, in order to relate the functions performed by the Judge of Laws to the evolving dynamics of the form of government. This is the focus of the first chapter of the monograph, which looks at the principle of criminal legality and its guarantee function as a neuralgic junction of the relations between the legislator and the Constitutio, on the one hand, and, on the other, of the relations between constitutional legitimacy review and criminal norms. For a long time, the Court understood criminal legality as almost absolute compliance with legislative deliberations. In today's stage, however, deviations of the criminal normation from the constitutional mod