IL PRINCIPIO DI LEGALITÀ NEL RAPPORTO TRA L'ORDINAMENTO GIURIDICO ITALIANO E IL SISTEMA DELLA CONVENZIONE EUROPEA DEI DIRITTI DELL'UOMO

The principle of legality is one of the fundamental principles of the Italian constitutional system. It requires that an individual prescription must be authorized by an higher norm of the legal system with respect non only to the competence of the issuing authority but also to its normative content. This principle has had different origins and developments in the European continental States than in the common law systems. It is granted, in the Italian Constitution, at article 25.2 and it needs the so called “riserva di legge” in order to be effective: it requires that all law must be clear, ascertainable and non-retrospective and, overall, that they come from Parliament, the only constitutional organ which is representative of people. In particular, in criminal law it is embodied in the general prohibition of the imposition of criminal sanction for fact or omission that were not criminal at the time at the commission or omission. Instead, in the common law systems, the rule of law is satisfied by both the written than the unwritten law. This paper addresses the question of whether the interaction between the Italian legal system and that of the European Convention of Human Rights has influenced the practical application of this principle by the Italian courts. In particular, the research analyses what the ECtHR means with the term law and notes that it makes no difference between written and unwritten law. Both of them are law in the meaning of the Convention and the guarantees of the principle of legality apply for one as for the other. In the Italian system the principle is satisfied only by written law and not by the jurisprudence of the courts even if consolidated. These two different settings have led to the growth of conflicts between the two legal systems and require thinking about the opportunity and the need for the domestic courts and the Strasbourg Court to find a common language when they speak of the rule of law aimed at defining human rights.