Nullum Crimen Sine Lege, the European Convention on Human Rights and the Foreseeability of the Law

Cover
Introduction
Chapter One: The European Convention on Human Rights and Criminal Law
	1. A European-oriented approach in Criminal Law.
		1.1. Methodological challenges.
		1.2. The philosophical reach of Mireille Delmas-Marty.
	2. The ECHR system.
		2.1. The ECHR: peculiarities and interpretive methods.
		2.2. The ECHR between subsidiarity, margin of appreciation and minimum standard.
			2.2.1. Subsidiarity and margin of appreciation after the Brighton Conference of 2012.
			2.2.2. Günstigkeitsprinzip as cornerstone of fundamental rights in Europe.
	3. ECHR as European Magna Carta and Criminal Law.
		3.1. Human Rights: Sword and Shield of Criminal Law.
		3.2. The status of the ECHR in national legal orders.
		3.3. Consistent interpretation, Criminal Law and the ECHR.
		3.4. Franco Bricola’s criminal law constitutionalism.
	4. Conclusions of Chapter One.
Chapter Two: Art. 7 ECHR As A European Definition of Nullum Crimen
	1. Origin and rationale of Art. 7 ECHR.
		1.1. The travaux préparatoires of Art. 11(2) of the Universal Declaration of Human Rights.
		1.2. The travaux préparatoires of Art. 7 ECHR.
			1.2.1. The first phase of negotiations.
			1.2.2. The finalisation of the text of Art. 7 ECHR.
	2. The international normative context surrounding the European nullum crimen.
	3. The comprehensive reach of the ECHR definition of the European Principle of Legality.
		3.1. The Principle of Legality as a non-written principle in EU Law.
		3.2. The Principle of Legality as a written principle in EU Law.
	4. Introductory remarks on Art. 7 ECHR.
		4.1. The autonomous definition of law in Art. 7 ECHR.
		4.2. The intersecting scope of the principle of legality in the ECHR.
	5. The definition of law.
		5.1. The definition of law outside Art. 7: Art. 8–11 ECHR and other provisions.
		5.2. Art. 7 ECHR and the autonomous concept of ‘law’.
		5.3. International law as a legal basis and the ‘scandalous’ Art. 7(2) ECHR.
	6. Antinomies between national principles and the European definition of law.
		6.1. The traditional reading: compromise between common law and civil law.
		6.2. Another interpretation: the acknowledgement of the difference between ‘disposition’ and ‘norm’.
		6.3. Substantive legality as a right to justification and a descriptive definition of law.
	7. The influence of the concept of law on non-retroactivity and the role of foreseeability.
	8. Foreseeability and accessibility as the ‘qualities’ of the law.
	9. Conclusions of Chapter Two.
Chapter Three: Foreseeability in Art. 7 ECHR: Origin And New Perspectives Through Case-Law Analysis
	1. Origin and rationale of foreseeability.
		1.1. Foreseeability as legal certainty in General Theory of Law and Legal Philosophy.
			1.1.1. Foreseeability as a definition of legal certainty.
			1.1.2. Foreseeability as a relative gradual ideal for Hans Kelsen.
			1.1.3. The role of prediction in Hart.
			1.1.4. Rule of law as a matter of degree in Raz.
			1.1.5. Predictability as essence of the rule of law in Waldron.
			1.1.6. Realists and foreseeability.
			1.1.7. Legal certainty and foreseeability in Italian positivists and anti-formalists.
		1.2. Fair warning and maximum certainty.
			1.2.1. Bar to retroactive application of judicial interpretations and fair warning.
			1.2.2. Void-for-vagueness prohibition and fair warning.
			1.2.3. Maximum certainty in British Criminal Law.
		1.3. Conclusions.
	2. The evolution of the ECHR definition of foreseeability: summary and presentation of the analysis.
	3. Classifications of foreseeability requirement in literature.
		3.1. Foreseeability for Pascal Beauvais.
			3.1.1. Synchronic foreseeability.
			3.1.2. Diachronic foreseeability.
		3.2. Foreseeability for Alessandro Bernardi.
			3.2.1. Precision of the criminal law.
			3.2.2. Reasonable interpretation of the criminal law.
		3.3. Foreseeability for Marco Scoletta.
			3.3.1. Precision.
			3.3.2. Reasonable foreseeability of judicial interpretation.
			3.3.3. Objective and subjective accessibility.
	4. Case-law analysis.
		4.1. Relative and in concreto foreseeability.
		4.2. The leading cases Kokkinakis v. Greece and Cantoni v. France and legal certainty.
			4.2.1. Cantoni v. Franceand the subjective assessment of foreseeability.
			4.2.2. The Cantoni subjective criteria in diachronic perspective.
			4.2.3. The Cantoni subjective criteria in new extensive interpretations and the precedent Soros v. France.
			4.2.4. The Cantoni criteria in Art. 2 Prot. 4 ECHR.
		4.3. Consistency with the essence of the offence and reasonable foreseeability of the development in judicial interpretation: S.W. v. United Kingdom, Streletz, Kessler, Krenz v. Germany and K.-H.W. v. Germany.
			4.3.1. Consistency with the essence of the offence and the presumption of foreseeability in first impression.
			4.3.2. Consistency with the essence of the offence as a matter of common sense.
			4.3.3. The foreseeability assessment in hard cases: international crimes and the precedents in the Mauerschützenfälle.
		4.4. Objective foreseeability of judicial construction in synchronic and diachronic conflicting interpretations.
			4.4.1. Conflicting judicial interpretations and the role of the Supreme Courts.
			4.4.2. Towards a right to a consistent practice of courts.
		4.5. Scope of application of foreseeability.
		4.6. Functional relationship legality-culpability.
		4.7. Conclusions.
			4.7.1. Subjective foreseeability.
			4.7.2. Objective foreseeability.
			4.7.3. Foreseeability and the rule of law between absolute protection and balance.
	5. Conclusions of Chapter 3.
Chapter Four: Foreseeability Between Criminal Law Theory, Judge-Made Law And Fundamental Rights
	I. Traditional Rationales of Nullum Crimen and The Role of the Judge
		1. Rationales of nullum crimen sine lege and judge-made law.
		2. The crisis of formal legality and the role of judge-made law in criminal law: the historical aspect of legality in crisis.
			2.1. The crisis of statutory sources in criminal law.
			2.2. The role of judge-made law in criminal law.
				2.2.1. The perspective of sources of law and the theories of interpretation.
				2.2.2. An increasing debate.
				2.2.3. Side-effects.
			2.3. Problems arising from the law in action.
				2.3.1. The creation of the criminal rule and judge-made law.
				2.3.2. Synchronic interpretive conflicts and the specification of the criminal offence and penalty through interpretation.
				2.3.3. Diachronic interpretive conflicts.
			2.4. Tipicità and nullum crimen.
	II. Italy
		1. Subjective solutions under culpability: mistake of law.
			1.1. The mistake of law in Italy and the inevitable ignorance of the criminal law.
				1.1.1. The background of art. 5 c.p.
				1.1.2. The Constitutional Court judgement no. 364/1988.
				1.1.3. Objective and subjective criteria and the inevitable ignorance of the law.
				1.1.4. Limitations and distinctions.
				1.1.5. The negligence standard of homo eiusdem condicionis et professionis.
			1.2. Parallels Rome-Strasbourg: foreseeability and the mistake of law.
				1.2.1. Insufficiencies of the reduction of foreseeability to mistake of law: different consequences under legality and culpability.
				1.2.2. Insufficiencies of the reduction of foreseeability to mistake of law: exceptional nature of mistake of law.
				1.2.3. Insufficiencies of the reduction of foreseeability to mistake of law: the principle of equality.
		2. Objective solutions: determinatezza, living law and synchronic foreseeability.
			2.1. Determinatezza in the books and doctrine of living law of the Constitutional Court.
			2.2. Effectiveness of a solution under the principle of determinatezza.
			2.3. Prohibition of analogy.
		3. Objective solutions: non-retroactivity and diachronic foreseeability.
			3.1. Prospective overruling and non-retroactive case-law.
			3.2. The extension of art. 2 c.p. to case-law.
			3.3. Criticism on prospective overruling and the application of art. 2 c.p. to case-law.
			3.4. The approach of the Constitutional Court to case-law in intertemporal law.
			3.5. The approach of the Corte di Cassazione to case-law and intertemporal law.
				3.5.1. The French Cour de Cassation and the influence of European legality.
				3.5.2. The Corte di Cassazione and judge-made law as a source of law.
				3.5.3. The Corte di Cassazione and European foreseeability: a new perspective.
		4. The operational side of legality.
			4.1. Binding precedent.
			4.2. Fostering of the nomophylactic role of the Corte di Cassazione through operative remedies.
	III. Germany
		1. Subjective solutions under culpability: mistake of law.
			1.1. Verbotsirrtumand judicial interpretation.
			1.2. Conclusions on mistake of law and legality.
		2. Objective solutions: non-retroactivity and overruling in malam partem.
			2.1. The case of Promillefälle.
			2.2. Precedent, prospective overruling and non-retroactivity of judge-made law in the German debate.
				2.2.1. Favourable opinions to the prohibition of retroactive overruling.
				2.2.2. Contrary opinions to the prohibition of retroactive overruling.
		3. Objective solutions: Bestimmtheitsgebot and the new obligation of the judges (Präzisierungsgebot).
			3.1. Bestimmtheitsgebotand the role of judicial interpretation.
			3.2. The BVerfG judgement on Präzisierungsgebot.
				3.2.1. The affirmation of the Präzisierungsgebot.
				3.2.2. The implementation of the Präzisierungsgebot.
				3.2.3. The consequences of the BVerfG judgement.
		4. The operational side of legality.
			4.1. The role of highest courts and case-law.
			4.2. The German highest courts and the development of the law.
				4.2.1. Vorlagepflicht between BGH and OLG.
				4.2.2. Vorlagepflicht within the BGH.
	IV. European Union
		1. The principle of legality and foreseeability in EU Law.
			1.1. Foreseeability and the general principles of legal certainty and legitimate expectations.
			1.2. The principle of non-retroactivity.
		2. Foreseeability standard in EU Competition Law.
			2.1. Foreseeability and EU Competition Law before Lisbon.
			2.2. Foreseeability and EU Competition Law after Lisbon.
				2.2.1. Diachronic foreseeability.
				2.2.2. Synchronic foreseeability.
		3. Foreseeability of EU sanctions.
		4. Foreseeability in the European Arrest Warrant.
		5. Direct and indirect role of legality and foreseeability in EU legislation.
			5.1. Direct role of precision and foreseeability in EU Criminal Law legislation: a false friend.
			5.2. Limited direct role of legality and foreseeability in Directives.
			5.3. Indirect role: limitation to the duty of consistent interpretation and to the direct effects of Directives.
		6. The principle of foreseeability and EU primary law: the Taricco saga.
		7. Conclusion.
	V. Conclusions on the Principle of Foreseeability
		1. The principle of foreseeability as a possible integration of European and domestic legality.
		2. Rationales and previous applications of the principle of foreseeability.
		3. Consistency with constitutional principles.
		4. Scope of application.
		5. Advantages of the introduction of the principle of foreseeability.
	VI. Conclusions of Chapter Four.
Conclusions
Appendix
Bibliography