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- PROF SEMINAR RUGGIERI - CONTRIBUTIONS SESSA

SEMINAR On the analogy in a criminal trial - PROF RUGGERI - 20:03:07

Rules of Criminal Procedure are rules of public law although difficult to characterize.

in law procedural criminal penalties for conduct not be found, but only internal sanctions in the proceeding.

Much has been discussed on the subject of law in criminal proceedings, whether that is possible to regulate the law of criminal procedure with standards of the secondary source.

To Manzini there is complementarity between the Albertine Statute and procedural rule.

After the Albertine Statute, the Constitution requires uniform interpretation standards for procedural law and other rights.

The problem of analogy has been characterized as a problem on the affinity between criminal law and procedural law-penal.

The analogy, however, is that process of interpretation that can be summed up in the possibility of using the principles of or standard governing such cases, when the sort of weakness.

in the penal code there is an explicit prohibition of recourse to analogy.

Article. 14 of preleggi, indeed, might solve the problem of the application of analogy in a criminal trial, though, can not be neglected, the predicted art. 14 contains no reference to the law of criminal procedure.

In 1932, Massari, Neapolitan scholar, put an alert to the possibility procedural rules that could benefit from the use of analogy ("standards tightened by the exercise of rights", only these can not be extended by analogy) in the formulation art. 14 of preleggi, subsequent studies of Massari, however, there is no trace of such an expression.

reflection of the criminal-procedural, following the entry into force of the Constitution, focus on paragraphs 2 and 3 of art. And 13 of the Constitution, then, subject to the law. In essence, they said, if the court compresses freedom in cases not specifically laid down, they reserve the right to violate the law.

Another reflection, then, embraced within art. 25 of the Constitution (principle of legality), the first paragraph refers to the natural judge.

In the seventies, the reflection foot down on the problem of the connection. In this regard, the Constitutional Court states that both substantial and procedural rules had to respect the rule of law, resolving, so the problem of analogy in a criminal trial, denying the use of the same.

Foschini was the first in the Second World War, to affirm the prohibition on the analogy of the rules governing the right of the suspect. Even Chiavari, then followed this approach.

The real difficulty encountered in dealing with the issue of analogy is the lack of explicit reflection.

Undoubtedly, the judgments, avutesi to between 1999 and 2001, relating to the "equalization of telephone data," clarified the scope by focusing their thoughts about art. 15 of the Constitution. The wiretaps, in fact, may be undertaken only in specific cases and on the order of the court.

He asked us, in particular, whether there was identity between the mere acquisition of telephone and data calls on (external data), in essence, the real problem was constituted by the understanding that if Latest figures were protected by art. 15 of the Constitution. It must be said that the code of criminal procedure not to be found explicitly the possibility of treating these various acquisitions (otherwise, the Privacy Code governing them together).

For some authors, it should be noted, the rules on wiretaps can not be extended to the acquisition of external data. Certainly, however, the acquisition of telephone data is covered by the guarantee provided for in art. 15 of the Constitution.

precisely this theme has been the most beaten by the test case in the analogy applied to the reality of the case-criminal law, to date, however, there a specific discipline in the acquisition of phone records, which filled the gap in order, making it no longer necessary to the possible use of analogy.

further problem is constituted by the transitional rules, under which applies the principle of non-retroactivity of criminal law is more favorable. With a provision of the Implementing Rules of the Code of Criminal Procedure of 1930 has, for the first time, the application of the principle then transfused art. 2 cp. In essence, as regards the rules on personal freedom, upon the entry into force of the Code of 1930 continued to apply the more favorable provisions of the Code of 1913.

Remember, ultimately, whether the sentence "Pupino" of the European Court of Justice, which calls for an analog extension of the rules of evidence relating to the accident.