The foundation of the retroactivity of the favorable criminal law
Provide for the principle of retroactivity favorable:
the co. 2 Establishes the retroactive effectiveness of the so-called abolitio criminis: if the repeal of a previous incriminating rule under Whose validity Has Been Committed, the author can no longer be convicted and, if the sentence has Already intervened, they cease execution and all criminal effects.
The co. 3 Provides That, in the case of so-called succession only modifying, supervised the law Applies retroactively if more favorable Than That Whose vigor under the deed was committed.With the limit, However, That irrevocable condemnation has not yet intervened, in which case the situation Has Been consolidated in a definitive way.
The retroactivity of the favorable law constitutes an exception to the principle Pursuant to art. 11 available prel.: Absolutely legitimate derogation given the rank of ordinary law of That principle.
Problem Posed by favorable retroactivity: if this principle Should be given constitutional rank even in the silence of the Constitution, as the constitutional rule has other principle (unfavorable irretroactivity) That regulates the effectiveness of the criminal law over time. The question can be Answered by ascertaining the rationale and function of the most favorable retroactivity principle.
Recently the Court cost.he excluded That the principle of retroactivity of the most favorable law can be counted among the constitutional ones, "from the reading of art. 25.2 of the Constitution, it Emerges That only the principle of non-retroactivity of the criminal law incriminating has acquired constitutional value but not that of the retroactivity of the law most favorable to the offender.
From this it follows That, as the principle of retroactivity of the most favorable disposition must be Considered compliant with the aforementioned constitutional provision, the same conclusion must be Reached secondo with the law Which Provides for the non-retroactivity of norms favorable ".
However, the foundation of favorable retroactivity must be Recognized in the superior principle of equality.
The need not to differentiate the treatment from the subject who commits the same after the fact abolitio criminis intervened. The identification of the principle of equality of treatment as the foundation of favorable retroactivity entails some important implications of a political-constitutional order.
EQUALITY OF TREATMENT AND TEMPORARY NEEDS
1_ Affirm the need for equality of treatment between Those Who have committed the same material fact, but the latter being banned ounces and the other allowed, discriminating means denying any relevance to mere failure to comply with the law incriminating. Consider: Dude has committed at the fact during the validity of the law That prohibited it. Caio commits the same fact A2 after the repeal of the law incriminating. The facts are the same and deserve Therefore the equal treatment provided by the Following law. It could be objected, However, That the two facts are not really the same, since A1 makes non-compliance with the law A2 That does not imply. But, by contrast,
2_ The derivation of the favorable retroactivity from the principle of equality of treatment implies The Possibility That the disciplines of the abolitio criminis may be subject to exceptions as entirely legitimate constitutionally founded on interests or justificatory Reasons objectively "reasonable". This is the case of exceptional and temporary laws.
Article. 2.4 of the Criminal Code Establishes That the regulation of favorable retroactivity does not apply to temporary exceptional laws, as Both have a period of Predetermined Predetermined or a priori, since they are destined to lose force either with the end of the final term or with the end of the exceptional situation in relation to Which they were issued.