Il giudizio di proporzionalità in materia penale. Prospettive e limiti come strumento critico delle scelte di criminalizzazione

The doctoral thesis deals with the key topic of the limits of criminal lawand, in particular, of the legal limits that can be enforced by means of constitutional litigation in front of constitutional or human right courts. In doing so, the work explores the proportionality test as developed by many important constitutional and human rights courts around the globe. After having introduced this test in its general aspects, the first part of the work tries to elaborate the structure of this test when applied to criminal offences, taking into account the peculiarities of criminal law. In ordes to do so, a vastoverview of the relevant case-law of different constitutional and human rights courts is undertaken. The thesis identifies first of all the different fundamental rights limited by criminal offences, then an autonomous test for each of these fundamental rights is sketched out. By analysing the different steps of the proportionality test a clear disctinction is made betwen the and similar concepts developed by the criminal law scholarship (e.g. Rechtsgut, ultra ratio, harm principle, etc.). In the second part of the work are analysed the peculiarities of the proportionality test in each legal order considering the different models of judicial review of legislation adopted. In particular the work tries to analyse the different kinds of decision available for the constitutional or human rights courts in cases of an unconstitutionale criminal offence. In the conclusion of the work the proportionality test in then compared with the already mentioned concepts developed by the criminal law scholarship, in order to asses which of these two conflicting approaches best serves the identification of legal limits to the criminal power of the state.