One of the most important features which characterizes the system of protection of fundamental rights established by the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) is the creation of a jurisdictional body entrusted with the ascertainment of violations. Furthermore, the European Court of Human Rights (ECtHR) has, over time, not limited itself to verifying the respect of the guarantees laid down in the ECHR, but has frequently provided an “evolutive” interpretation of these guarantees,¹ especially giving an “autonomous” definition of certain provisions.² In the scope of such development of the European system of protection of human rights, the inclusion of judicial law under the concept of “law” has undoubtedly been one of the points with the highest cultural impact on civil law systems.

This theoretical approach was developed beginning with the judgment Sunday Times v. United Kingdom of 26 April 1979, in which the ECtHR observed that the word “law” in the expression “prescribed by law”³ must cover not only statutory law but also unwritten law. ⁴ On that occasion, the European Court was asked to establish whether the prohibition to publish certain articles in order to prevent the commission of the offence of contempt of court had a legal basis in the English system. In fact, the offence was not covered by any statutory definition, as it was rather the results of a long-term elaboration of the common law, in which the contempt of court was recognized in a vast and heterogeneous series of hypotheses. Faced with this problem, the ECtHR decided that the offence should nonetheless be considered as “prescribed by law”. The reasons leading to the Court’s conclusion were essentially twofold.

First of all, the ECtHR observed that:

[I]t would be contrary to the intention of the drafters of the Convention to hold that a restriction imposed by virtue of the common law is not “prescribed by law” on the sole ground that it is not enunciated in legislation: this would deprive a common-law State which is Party to the Convention of the protection of Article 10 (and of others) and strike at the very roots of that State’s legal system.

Then, the European Court observed that the core of the principle of legality is well summarized by the requirements of “accessibility” and “foreseeability” of law.⁵ From this point of view, both statutory definitions and judicial interpretation have to be taken into consideration and, what is more, the Court remarked that absolute precision in statutory provisions cannot be attained and might also entail excessive rigidity, while “the law must be able to keep pace with changing circumstances”.⁶ Therefore, even if a statute providing incrimination or any other limitation of a fundamental right is in force, its foreseeability relies essentially upon the way it is interpreted and applied by the courts.

This kind of approach was also employed with regard to the principle of legality in criminal law, enshrined in Article 7 of the ECHR.⁷ In fact, starting from Kokkinakis v. Greece of 24 March 1993, the ECtHR has established that any assessment based upon Article 7 of the European Convention cannot be limited to the wording of relevant statutory provisions and that their judicial interpretation has to be taken into consideration also.

In Kokkinakis, the applicant argued that, on the basis of the textual formulation of the relevant Greek statutory provision, it would have been impossible to foresee his conviction for the offence of proselytism. According to the claimant, the lack of predictability was due to the overly general legal definition of the offence and to the expansive and contradictory interpretation rendered by the national courts. The ECtHR recognised that the Criminal Code provision incriminating proselytism was, to a certain extent, vague. Consistently with the conclusion reached in the Sunday Times case, however, the Court also dwelt on the interpretation of the offence given by the Greek Supreme Court: in this respect, the European Court deemed the case law on that point sufficiently settled and coherent and dismissed the application.

The judgment is also well known because the ECtHR, for the very first time, stated that Article 7 of the European Convention is not confined to prohibiting the retrospective application of the criminal law to an accused’s disadvantage, but it also embodies the principle that only the law can define a crime and prescribe its penalty. The decision also established the principle that criminal law must not be extensively construed to an accused’s detriment employing means such as analogical reasoning. Even if such prohibition of extensive and analogical interpretation could be understood as a contradictory claim of the prevalence of statutory law on judicial law,⁸ in the Court’s view it actually entails that any interpretation must be reasonably foreseeable in the light of statutory provisions and, above all, of judicial precedents.⁹

In the light of foregoing premises, in the case of Pessino v. France of 10 October 2006, the ECtHR for the first time found a violation of Article 7 of the ECHR because of lack of accessibility and foreseeability in criminal law. The main reason which led the Court to this conclusion was represented by the uncertainty of judge-made law. In particular, the ECtHR observed that the French government had been unable to indicate any judicial precedent from the Court of Cassation in which that offence had previously been interpreted in the extensive manner which led to the conviction of the applicant.¹⁰

In conclusion, the European Court on the one hand recognises the fundamental importance of the law in action. Even if simultaneous contrasting interpretations have been deemed to be contrary to the principle of fair trial established in Article 6(1) of the ECHR,¹¹ judicial law-making has nonetheless always been recognised as an important factor of evolution of each legal system. Moreover, the ECtHR has repeatedly stated that its institutional role is not concerned with assessing the correct interpretation of national legislation. However, should a new interpretation result as unfavourable to the defendant, the Court would consider its retrospective application as being contrary to Article 7 of the ECHR. In other words, the ECtHR seems to adopt the logic of the adjudicative technique known as prospective overruling. This means of adjudication has been initially developed in the United States and it prescribes that, in certain cases, new interpretation can merely be stated, while it will be applied only to future conducts.

Finally, it is important to remark that the European Court in the last years seems to have abandoned its self-restraint, as evidenced by the recent judgments Dragotoniu and Militaru–Pidhorni v. Romania, ¹² Liivik v. Estonia ¹³ and, most recently, Del Rio Prada v. Spain, ¹⁴ in which violations of Article 7 of the ECHR were caused precisely by a retroactive application of a judicial overruling.

The two historical decisions about marital rape, in which the ECtHR held that an unfavourable overruling could be considered predictable even in light of changes in the socio-cultural context and of the “evil” nature of the prohibited conduct, remained rather isolated.¹⁵ Notably, the applicants complained of being the first convicted in the United Kingdom for the offence of marital rape by reason of the repeal of the common law principle of the “marital exemption” (stated by Sir Matthew Hale in 1736). According to this now-repealed principle, marital rape would not be punishable because of the implied consent to sexual intercourse given by the wife upon entering into marriage. The European Court, however, acknowledged that:

[T]he essentially debasing character of rape is so manifest that the result of the decisions of the Court of Appeal and the House of Lords – that the applicant could be convicted of attempted rape, irrespective of his relationship with the victim – cannot be said to be at variance with the object and purpose of Article 7.

For understandable reasons, this reasoning was criticized not only by civil lawyers,¹⁶ but also by English ones.¹⁷

In the Italian criminal law, the problem of judicial overruling has traditionally been related to the principle of culpability (principio di colpevolezza) rather than to the principle of legality. In particular, with the famous judgment no. 364 of 1988, the Constitutional Court affirmed for the first time the constitutional value of the principle of culpability and, therefore, the necessary existence of the defence of unavoidable ignorance of law. ¹⁸ Exemplifying cases of such unavoidable ignorance, the Constitutional Court dwelt specifically on the problem of unsettled case law and sudden changes in interpretation, which may be detrimental for the accused.

Comparing the point of view of the ECtHR with the position of the Italian Constitutional Court, two aspects can be observed.

Firstly, it is clear that the principle of legality intended as foreseeability of the criminal law—or “recognisability”, using the words of the Italian Constitutional Court—is closely connected to the principle of culpability. The latter is intended by Italian scholars, following the German model, as a principle upon which the individual must be considered blameworthy for the offence committed in order to be punishable.¹⁹ This means that he must have had at least the opportunity to understand the negative value of his behaviour and, subsequently, to act differently. Very briefly, freedom of self-determination serves as the common basis both for the requirement of offender’s mens rea (and, more in general, of his culpability)²⁰ and for the requirement of “predictability” of criminal law.²¹

This link between principle of legality and principle of culpability can be clearly observed both in the case law of the Italian Constitutional Court and in the judgments of the ECtHR.

In the judgment no. 364 of 1988, in fact, the Constitutional Court stated in an extremely significant manner that:

[T]he mandatory nature of law would be worthless if the a person would be held accountable for a conduct which he cannot prevent or whose proscription he cannot, without the slightest fault on his own part, understand. The principle of culpability, in this sense, does not only complete the principle of legality but rather it constitutes its second aspect, recognised in any system based on the Rule of law.²²

In a very similar way, in the important Sud Fondi judgment, the ECtHR affirmed that strict liability would be incoherent with the requirements of accessibility and predictability of criminal law and that, therefore, Article 7 of the ECHR implies that intention or negligence have to be ascertained along with the actus reus. ²³

In fact, civil lawyers usually do not include case law under the concept of “law”,²⁴ due to the cultural heritage represented by the clear separation between legislative and judiciary powers. Subsequently, a new interpretation is not considered as a new “law” whose retrospective application (if detrimental) is prohibited by the principle of legality, but rather as a lack of the subjective element of crime (mens rea) by virtue of the specific defence provided by Article 5 of the Italian Criminal Code (as “amended” by the Constitutional Court judgment no. 364 of 1988).²⁵

In the opinion of the ECtHR, instead, such new interpretation entails the very absence of the objective element of the offence (actus reus, tipicità in Italian, Tabtestand in German) because of the lack of any legal basis of the offence. As precisely underlined by the former Italian judge of the European Court, Vladimiro Zagrebelsky:

What at national level is reason of exclusion of guilt, in the scope of the Convention is a reason of exclusion of the very existence of a “law” provision.²⁶

Now, like many scholars underline, the “Italian style” solution guarantees a certain balance between opposing needs. On the one hand, it aims to preserve the clear separation between parliamentary legislation and judicial law-making (prohibited, at least in theory). On the other hand, it still permits the acquittal of the accused in the event that a particular change of interpretation is not effectively predictable.²⁷

However, some criminal lawyers point out today that the consideration of the problem of judicial overruling in the field of mens rea is basically artificial. It is true, in fact, that the need for predictability of criminal law is linked to the principle of culpability, but not every guarantee connected to that principle must be taken into account when ascertaining mens rea. At a closer look, an unfavourable overruling constitutes an aberration of the legal system and not a lack of comprehension of the unlawful nature of the behaviour due to individual’s deficiencies. Consequently, the defendant’s acquittal should be justified not by a presumed absence of mens rea, but rather by the non-existence of any provision of “law” (in a wider and “substantial” meaning) capable of guiding the individual’s behaviour.²⁸

It is precisely for this reason that even in Italian scholarship, at least in the modern reconstructions of the principle of legality which emphasises the importance of the “law in action”, the aforementioned “prospective overruling” is increasingly referenced as a possible remedy, since it promises to provide more reliable solutions to the problem of unfavourable judicial overruling than the defence laid down in Article 5 of the Criminal Code.²⁹

The contrast between the two different conceptions of judicial law-making and judicial overruling has clearly emerged in some recent decisions adopted by the Italian courts, especially since the Beschi judgment of the United Chambers (Sezioni Unite) of the Court of Cassation.³⁰

The mentioned decision arose from a request for pardon, pursuant to a Convention in force between the two States, submitted by an Italian citizen convicted in the United Kingdom and subsequently transferred to Italy for the execution of the penalty. A first request had been previously rejected pursuant to a widespread interpretation of the Convention according to which the pardon could only be granted to persons convicted by an Italian court. However, after some time, the United Chambers of the Court of Cassation overruled that conclusion, establishing that the pardon could also be granted to those who had been convicted abroad and then transferred to Italy for execution of the penalty and, for this reason, the convicted person submitted the mentioned second request of pardon. The issue, however, was that Article 666 of the Criminal Procedure Code determines a second request for pardon similar to a previous one as being admissible only in cases where changes have occurred in the factual situation or in the legal framework.

The Beschi decision shows that the point of view of the European Court has been accepted with respect to the relation between written law and judicial law-making. This is especially true when the Court of Cassation recognises “a concurring relationship between legislative and judicial powers” as well as “a limited creative nature of the interpretation”. Therefore, judicial overrulings are qualified as “new law” (ius novum) and not merely as a “different factual situation” having originated from a newly emerged “legal reasoning” (which was the alternative solution proposed in order to declare the second instance admissible).

In the wake of the Beschi judgment, some authors argued that courts should be empowered to overturn final convictions (res iudicata) as a result of favourable changes in the case law as well, at least in cases of “judicial decriminalisation” (i.e. new interpretation according to which certain behaviours are not considered as punishable anymore), also considering the progressive recognition of the principle of the retrospective application of the more lenient law (lex mitior