il libro - Silvio Riondato

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Others consider that the principle of favor rei depends on the proclamation of the
principle of equality (Art. 10 of the Turkish Constitution). And so on... More than
the dierent theories of the constitutional grounds of the favor rei principle, what it
is interesting to notice here is the fact that the formulation of the rst Paragraph of
Article 38 is almost the same of the rst Paragraph of Article 7 of the European Convention
on Human Rights. at allows to invoke all the arguments that recently led
the European Court of Human Rights to consider implicitly recognized in Article
7.1 of the Convention also the principle of favor rei. Amongst such arguments are
the consensus gradually emerged in Europe and internationally around the view that
application of a criminal law providing for a more lenient penalty (even one enacted
after the commission of the oence) has become a fundamental principle of criminal
law, the dimension of proportionality implied by the Article cited, the (necessity to
ensure the) foreseeability of penalties 50 . Besides, in its Article 49, the recent Charter
of Fundamental Rights of the European Union expressly proclaims the principle of
favor rei, and that just in tight connection with the principle of proportionality («If,
subsequent to the commission of a criminal oence, the law provides for a lighter
penalty, that penalty shall be applicable»). Similarly, indeed, the recent Turkish criminal
code (enacted with Law n. 5237 of 26 September 2004, a few months after
the amendment of Article 38 of the Constitution) expressly and widely proclaims the
principle of favor rei (Article 7 of the criminal code).
5.2. Principle of personality of the criminal responsibility
On Criminal Law and Criminal Justice
Article 38 establishes, at paragraph 7, that criminal responsibility shall be personal.
As well known also in other legal orders, the minimal content of such principle
is to forbid the criminal liability for facts committed by other individuals (objective
responsibility). But there could be another very important meaning of such principle,
that is that criminal responsibility shall be not only personal in a material way
(personality as objective connection between fact and its author), but also in a moral
way (personality as subjective, psychological connection between the fact and its
author). In this second, wider meaning, the principle of personality becomes the
constitutional foundation of the principle of culpability, which makes the criminal
law system proportionate and, therefore, fair and just. Besides, proportionality is
also implied by many other criminal law principles proclaimed by the Constitution
(for instance, the principle of un-retroactivity, as we have just seen), thus proving a
constitutional conception of criminal law based on culpability. Finally, the whole
set of principles proclaimed by the Constitution (especially after the most recent
50 ECtHR, Grand Chamber, case Scoppola v. Italy (No. 2), Application n. 10249/03, Strasbourg, 17
September 2009. Cf., amplius, S. Riondato, op. cit., p. 39 ss.
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