LE TECNICHE DI REDAZIONE DELLA LEGGE PENALE NEL QUADRO DEI PRINCIPI COSTITUZIONALI

This research study inscribes itself within that particular area of the juridical knowledge named Legislation Science, and it aims at expanding on the drafting techniques of criminal law. The analysis is first conducted in the frame of the constitutional principles, especially in the light of the principle of legality in those of its declinations which more directly affect the definition of the relations between the Parliament and the juridical order: precision, steadfastness and imperativeness. On the other hand, a truly complete reconstruction of the constitutional dimension of the principle of penal legality claims – in our opinion – a conceptual broadening regarding the criminal trial, mainly in the attempt to endow that principle with more meaningful contents and to enforce its value as a parameter of constitutionality of the ordinary penal legislation. Penal legality, thus, is put in strict correlation with the different principle (rectius: with the rule) of cross-examination for the evidence (art. 111 Constitution). The clear and precise formulation of the penal case in point, actually, proves to be a necessity imposed not only by the principle of legality, but also by the principles of the so called “fair trial”, from whose accurate implementation depends the functioning of an accusatorial judgment, which relies on the cross-examination method and on the effective exercise of the right of defending oneself by evidence. As much fundamental appears to be a reconstruction of the international dimension of the principle of legality/steadfastness. What is here mainly pointed out is the regulatory and jurisprudential system of the European Convention on Human Rights, without leaving aside the Institutive Statute of the International Criminal Court, inside which the principle of clarity certainly has a key role. After having outlined the overall frame of the Gründnormen able to act as points of reference during the drafting of the penal rules, the research is directed toward an analysis of the current “spiritual situation” of criminal law, in order to highlight the noticeable creativity which characterizes the present interpretative and applicative activity of our jurisprudence. A creativity which has to be ascribed to an almost deliberate and already fairly settled activity of judicial supply. After verifying the very low level of the applicative hold of the criminal law’s principle of steadfastness, the work largely focuses on the main technical procedures of lawmaking on the matter. The practical needs of criminal law are thus considered in the light of the different writing alternatives provided by legislation science: synthetic or general clauses technique and case-studies technique; descriptive or regulatory concepts (both judicial and extrajudicial); legal definitions and legal denominations. The treatment of the above-mentioned techniques of penal rules formulation takes always place with the look constantly directed to some of the most impressive hypothesis of drafting deficit shown by current criminal law. That aims at offering a picture of those jurisprudential enforcements which mostly show a “bad use” of the aforesaid techniques criminal law formulation. De iure condito e condendo, this research ends with the offer of some interpretational proposals directed towards a recovery of the steadfastness, having taken into account especially the solutions provided until now within various reform projects of the penal code since 1992.