Succession of criminal laws must enforce the law in force at the time of the conduct
The fact and the reasons given in the appeal to the Supreme Court
With a decision passed on 06/26/2017, at the outcome of the hearing in the board of directors set pursuant to art. 447 cod. proc. pen., the judge of the preliminary investigations of the Court of Prato applied to FP the sentence agreed with the public prosecutor of one year imprisonment in relation to the crime referred to in art. 589-bis cod. pen., because "caused BP's death by fault. In particular, on 02/01/2016, driving the car …, did not stop or at least slow down the march of the vehicle from the same conduit, near a pedestrian crossing, already engaged by B., thus investing the latter; subsequently, on 28/08/2016, following the results of the traumas resulting from the road accident mentioned, the death of B .. In Prato, 28/08/2016 ».
The final sentence has been so determined: basic penalty, in the minimum edictal, two years of imprisonment; decreased due to the application of generic extenuating circumstances up to one and four months of imprisonment; reduced to the penalty indicated for the rite.
The defender of FP, avv. CM, appealed for cassation, denouncing non-compliance or incorrect application of the criminal law as the most unfavorable discipline dictated by ' art. 589-bis cod. pen. it was introduced in an epoch following the conduct ascribed to the accused, while at the time of this conduct a more favorable discipline was in force, as art. 589, second paragraph, cod. pen.it provided for an aggravating circumstance where the new provision provides for an autonomous incriminating offense (in addition to the mandatory and automatic application of the administrative sanction for the revocation of the driving license for a minimum period of five years);
moreover, the applicant observes, the application to the present case of the subsequent, more unfavorable discipline, contrasts with the principle of non-retroactivity of the unfavorable criminal law (Article 25 of the Constitution), as well as the prohibition of retroactivity established by art. 7 of the ECHR , so that the so-called "conduct criterion" must be followed, according to which, in the event of a succession of criminal laws, the law in force at the time of the conduct is applicable, if more favorable.
The issues outlined in the remittance order
Investigation of the appeal, the Fourth Criminal Section, by order dated 05/04/2018, referred it to the United Sections, recognizing a contrast in the jurisprudence of legitimacy on the question concerning the sanctioning treatment to be applied in the case of a conduct wholly implemented under the force of a more favorable criminal law and of an event intervening in the presence of a more unfavorable criminal law.
In the introduction, the remittance order noted that, in the formulation prior to the law of 23 March 2016, no. 41, the second paragraph of ' art. 589 cod. pen. it provided for an aggravating circumstance subject to the balancing judgment, while the new art. 589-bis cod. pen. integrates an autonomous incriminating case.
In favor of the thesis that considers the law in force at the time of the offense to be applicable and, therefore, at the moment of the event that was prejudicial, the referral order referred, in particular, Sec. 4, n. 22379 of 17/04/2015, omissis, according to which, for the purposes of the application of the discipline referred to in art. 2 cod. pen., the tempus commissi delicti must be placed at the time of the consummation of the crime and, being in the free form of crime, this moment coincides with the occurrence of the typical event.
In favor of the opposite "criterion of conduct", the referral order referred to Section. 4, n. 8448, dated 05/10/1972, omissis, Rv. 122686, according to which, in the case of succession of criminal laws regulating the same matter, the law to be applied is that in force at the time of execution of the offender's activity and not that of the moment in which the event that determines the consummation of the crime.
Furthermore, in this remittance order, it was intended for this second guideline because «the principle of non – retroactivity of the less favorable criminal lawit is a guarantee of the active subject, in consideration that he should not be called to be subjected not only to incriminating forecasts not in force at the time of the event, but also to forecasts that after the fact have become more serious.
"while, on the contrary, the so-called criterion of the event is in contrast with the principle of equality (due to the unjustified disparity in treatment that derives between the authors of the same conduct at the same time, only because the event of the crime occurs at different times for reasons that can not be referred to them), with the principle of legality referred to in art. 25, second paragraph, Const.peacefully referred not only to the necessary knowability of the precept, but also to the knowability and predictability of the penalty provided for the related violation), as well as with the art. 117, first paragraph, of the Constitution in relation to art. 7 ECHR (which ensures the "accessibility" of the criminal law for the recipient, also from the point of view of sanctions, and the "predictability" of the consequences of his conduct).