SENTENTIA MITIOR E LIMITI DEL DECISUM: UN CONFINE INVALICABILE?

This thesis focus on the possibility to review a final conviction upon a new and more favorable judicial interpretation. The work begins with the analysis of an Italian case law, which put the problem of the retroactivity of the judicial interpretation in the middle of the scientific and judicial debate. In particular, the case was related to the abolition of the crime of omission of the exhibition of the documents by a foreign person. In this case, both the Constitutional Court and the Court of Cassation dealt with the problem of the retroactivity of a new judicial interpretation, adopting two very different models: one based on the acknowledgment of the judicial law-making; the other one based on the assumption that only the Parliament can abolish a crime. So that, according to the first model, it would be always impossible to review a final conviction upon a new judicial interpretation; on the other hand, according to the second model, it would be possible to reverse a final decision only if the judge didn't expressly consider that question of law (with which the new interpretation is related). Therefore, in both the cases, the Italian jurisprudence admits the possibility to execute the sentence for a fact which is considered no longer a crime. The Author tries to follow a third path, based on the assumption that the jurisprudence is not a source of law, but it can change its interpretation in order to correct a former one and to reaffirm the Parliament willingness.