Autori
Cecchetti, Marcello
Pajno, Simone

Titolo
Il problema della prescrizione penale alla prova del costituzionalismo 'per principi'
Periodico
Diritti umani e diritto internazionale
Anno: 2020 - Volume: 14 - Fascicolo: 2 - Pagina iniziale: 417 - Pagina finale: 447

The paper addresses the statute of limitations reform from the point of view of constitutional law,using a principles-based approach. From this point of view and starting from the presupposition ofhow strongly the criminal sanction affects important constitutional rights, the Authors focus on theconstitutional aims of the penalty in order to identify a first constitutional basis for the statute oflimitations that descends from the impossibility for the criminal sanction to achieve its aims due tothe passage of time. The argument continues by identifying two further and direct constitutional basisof the statute of limitations: the right ‘to be left alone’ after a certain period of time – which respectis necessary in order to guarantee the full self-determination of the individual in the events of his life– and the trial within reasonable time, imagined not only as an objective organizational principle ofjurisdiction, but also as a personal right of the defendant. Finally, the essay tries to frame the so-called‘Bonafede reform’ in the identified constitutional context, arguing that the regulation currently inforce, basically causing the possibility of a ‘never ending trial’ once you overcome the first instanceof the trial, betrays the constitutional need of a statute of limitations. In particular, it is pointed outthat the ‘Bonafede reform’, although pursuing purposes clearly rooted in the Constitution, is not ableto pass the balancing test with the already outlined principles, above all because it is certainly possibleto identify less affecting means which are anyway able to pursue the very same purposes in an equallysatisfactory manner. Finally, it is argued that the hypothesis of a further reform arisen in the publicdebate, aiming to keep the current regulation only for those convicted at first instance, would notcorrect the mentioned constitutionality problems with regard to these subjects, and – what is more –would break the specific constitutional principle that one is considered innocent until proven guilty.



SICI: 1971-7105(2020)14:2<417:IPDPPA>2.0.ZU;2-X
Testo completo: https://www.rivisteweb.it/download/article/10.12829/97962
Testo completo alternativo: https://www.rivisteweb.it/doi/10.12829/97962

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