Fundamental Criminal Law

INTERPRETATION AND ANALOGY: DISTINGUISHING CRITERIA

- Analogy is prohibited in CL. Therefore, it is very important to establish when the application of

the law by the court is the result of analogy, and when it is instead the result of a mere interpretative

activity. In the first case, the judge exceeded his powers. In the second case, he has acted within the

limits of his powers and has indeed fulfilled his duty to interpret the laws.

Analogy occurs when, faced with a lacuna in the (written) law, the judge fills it by applying to

the case not envisaged by the law a rule of written law that provides for cases analogous to the

one to be decided.

Example: a written rule requires that all wolves on private property. The judge finds himself judging

a person who owns an Australian dingo, which is not covered by the law as an animal to be

reported; but he considers extending protection to the dingo by extending the obligation to report to

the dingo's owner as well.

- Interpretation, on the other hand, does not postulate a lacuna in the written law. Instead, it

consists of attributing a certain meaning to a certain written law. Interpretation sometimes

seems to ‘border on’ analogical application. This happens especially in cases of extensive

interpretation.

What is extensive interpretation? It is normal interpretation, in the context of which, however, the

apparent, initial meaning of the words used by the law is ‘narrower’ than the meaning

attributed to the same words by the interpreter, which turns out to be broader, more

‘extensive’.

Example: if a rule, during a famous film festival, prohibited filming nude in the street, what would

the judge have to do when faced with the case of a girl who, in order to advertise herself, had filmed

dressed in cellophane clothes, and therefore totally transparent? The judge could say that the

adjective ‘nude’ extends to cases where the clothes worn by the subject are completely transparent.

In this case, we could have a broad interpretation of the rule. However, the reader will already have

guessed the similarity of the extensive interpretation to the analogy. In both hypotheses, the

concrete case under consideration, on closer inspection, cannot be immediately located within a

rule. There is in both hypotheses a rule that unquestionably regulates cases very similar to the one to

be decided. And in both hypotheses that rule is also extended to regulate that uncertain case. What

is the difference?

 Analogy vs. Extensive Interpretation

The distinction between analogy and extensive interpretation in legal reasoning is critical,

particularly in the context of CL.

Analogy hypothesis’ approach posits that legislative language cannot be stretched to cover

unregulated cases. Instead of applying an existing rule, judges create a new rule specifically to

address the case. This ensures that the law remains within its intended scope and maintains legal

certainty.

Extensive interpretation allows for the legislative words to be broadened to include

unregulated cases. Here, judges interpret the rule to apply to situations that, while not explicitly

covered, fall within the broader meaning of the law.

Challenges in practice: although the theoretical distinction between analogy and extensive

interpretation exists, it can be challenging to apply in practice. Judges often blur the lines between

the two, sometimes mischaracterizing cases of analogy as instances of permissible extensive

interpretation. This overlap complicates legal consistency and predictability.

Scholars, including Vogliotti, have questioned the viability of distinguishing between analogy and

extensive interpretation, reflecting ongoing debates in legal theory. Some in Italian doctrine argue

that both forms of interpretation should be restricted in CL to uphold principles of legality and

certainty.

A minority view within Italian legal doctrine supports the idea of prohibiting extensive

interpretation in CL, paralleling existing restrictions on analogy. This perspective gained traction

during discussions on constitutional amendments proposed by the bicameral commission in 1998.

Furthermore, in cases of ambiguity where multiple interpretations are plausible, some legal scholars

argue that judges should choose the interpretation most favorable to the offender. This approach

aims to protect the rights of individuals in the face of potentially expansive legal interpretations.

NB: while analogy and extensive interpretation serve different purposes in legal reasoning, their

practical application often intersects, leading to challenges in maintaining clear legal standards.

INTERPRETATION v. PRINCIPLE OF LEGALITY

Tension between how laws are interpreted and the principle of legality, particularly in systems that

follow the principle of nullum crimen sine lege (only the legislator has the authority to create CLs,

and judges should simply apply these laws without making any alterations).

Judges cannot avoid interpreting the law. This necessity for interpretation can lead to concerns

about whether their interpretations might effectively alter the law, which poses a challenge to the

idea that the legislator holds exclusive power over CL.

The problem is particularly pronounced with extensive interpretation, where judges apply a law

in a broader context than its original wording might suggest. This type of interpretation can

sometimes lead to analogical applications, where the judge extends the law's application to cases

that are not explicitly covered by the statute. This raises questions about whether such practices

align with the principle of legality.

HArt elaborated on this issue by distinguishing between two parts of legal rules:

1. Core: clear and straightforward application of the law, where the meaning is evident and

easy to interpret.

2. Marginal Halo: more ambiguous area surrounding the core, where interpretation becomes

problematic and complex.

Example: consider a law that prohibits the killing of animals. The core of this law clearly applies to

common domestic animals, such as dogs and cats. However, when considering whether this law

applies to smaller creatures like ants, we enter the "marginal halo" of the rule, where the

interpretation is less clear and might lead to confusion or debate.

Given this distinction, we must note that interpretive activity is rarely a "mechanical" process.

When judges or interpreters work within the marginal halo of a norm, they engage in a

complex process of reconstructing meaning. In this process, their own perspectives - such as

ideologies, political beliefs, and moral views - inevitably influence their interpretation.

This means that a judge's personal views can shape how they interpret laws, making it difficult to

separate the law from the interpreter’s own worldview. Consequently, interpretation is not merely

about applying the law; it involves subjective elements that reflect the interpreter's beliefs and

experiences.

This is the reason why it is used to say that interpretation is also a subjective, creative activity.

The judge - even if he wants to be ‘obedient to the law’ - must interpret it. So, the tension between

the principle of legality and interpretation exists. A scrupulous and honest use by the judge of all

interpretative criteria limits the damage, but it will never completely resolve this ‘tension’ between

‘law on the books’ and ‘law in action’.

 Law in action becomes harmful to the citizen when it is a harbinger of legal uncertainty.

And case law creates legal uncertainty when the decisions of the courts are too conflicting: it is the

jurisprudential contrasts that create the greatest damage (especially those that occur simultaneously

with each other, or ‘synchronic contrasts’). In our country jurisprudential contrasts abound.

A more careful respect for judicial precedent could contribute to limiting legal uncertainty.

The tension between legality and interpretation could be reduced, meeting the request for

‘accessibility’ and ‘predictability’ of decisions formulated by the Eu Court in its case law on Art 7

Eu Conv on HR.

Lecture 5 - PRINCIPLES CONCERNING THE APPLICABILITY OF CRIMINAL WITH

RESPECT TO SPACE, TIME AND PERSONS

OVERVIEW OF THE CRIMINAL CODE

Italian CC, in its general part and Book 1, focuses on "Offences in general." Title I specifically

addresses fundamental principles of CL, including the principle of legality (no one can be punished

under a law unless that law is clear and has been established beforehand). The code also regulates

how CLs apply over time and across different geographical areas.

Applicability of CL in Time

Art 2 CC deals with how laws interact over time, particularly in terms of succession of CLs. It

emphasizes that individuals cannot be retroactively punished for actions that were not crimes at the

time they were committed. This section introduces the essential constitutional principle of non-

retroactivity, meaning that individuals cannot be punished for actions that were not considered

ABOLITIO CRIMINIS

crimes when they were committed. In simpler terms, if a person commits an act that is not classified

Art 2(2) introduces the concept of abolitio criminis. This term refers to a situation where an act

as a crime under the law at that time, they cannot be prosecuted for it later, even if the law

was classified as a crime at the time it was committed, but subsequent changes in the law

changes.

decriminalize that act or change its legal status (for example, turning it into a mere

administrative offense or deeming it lawful). Thus, abolitio criminis ensures that if laws change to

decriminalize an action, the effects of previous convictions must also be nullified.

According to Art 2(2):

No one may be punished for an act that is no longer considered a crime under later laws.

 If someone has already been convicted for that act, the effects of that conviction, including

 punishment, must cease.

This rule emphasizes full retroactivity of the new law if it is more favorable to the individual. In

other words, if the law changes to lessen the penalties or decriminalize an action, that new law

applies even to actions committed in the past.

This rule aligns well with constitutional principles: if the ICC did not include such a provision, it

could potentially lead to constitutional conflicts. Essentially, the law ensures that individuals are

treated fairly and not punished for acts that have subsequently been recognized as lawful or less

serious offenses.

NB: The timing of when the new law takes effect - whether before or after a conviction becomes

final (irrevocable) - does not matter. If the law is amended to decriminalize an act, it nullifies the

previous judgment against anyone who committed that act.

If the case is still ongoing, the judge must issue a verdict of acquittal, stating that "the fact is no

longer provided for by law as a criminal offense" (as per Art 530(1) of the Code of Criminal

Procedure