Gaetano Insolera

Recently, it has assumed a 'particular importance the question regarding the control of reasonableness exercised by Constitutional Court above 'norms of favor', with the consequential results of amplyifying the area of criminal relevancy established by law. In parallel, the paradigm of reasonableness appears to reflòect - on the level of European Community Juirsidiction - the discussion about the (supposed) inadequacy of internal criminal law with regard to those fonts (the emblematic case was the one regarding the so called "community illeghitimacy" of the new false accounting). Over those arguments, until now, the solutions - even the ones offered by the jurisprudence of the Constitutional Court, or by the Court of Justice - seemed to converge, even if with different argumentations. Thwe picture seems destined to change.


With regard to the matter of reasonableness control, at the end of last year the Constitutional Court has issued a very relevant sentence which had affirmed the illegitimacy of a 'favor' law - assume unconstitutinal - regarding electoral false (n. 394 of 2006). The reasonablenesse control in malam partem and the principle of law reserve, affirmed by article 25, par. 2, Cost., were based on the position assumed until then by Constitutional Court. To the solidity of that position had corresponded, with regard to unreasonable free zone or odious privileges created by law, the 'sterile' vicissitude opened by the sentence n. 148 of 1983, regarding the differnt question about admissibility/relevance. With the above mentioned sentence - which has deeply reexamined the whole theme - we are arrived to solutions which are surely original and innovative. It is easy to assume that this sentence will rekindle the debate on that theme, which results crucial on the definition of the attribuytion of powers in our political system. That will surely happen on the 'internal' level, but it will have reflection also on a community level.