IL NON LIQUET DELLA CORTE COSTITUZIONALE SULLA QUESTIONE DEL NE BIS IN IDEM SANZIONATORIO: UN MANCATO ESERCIZIO DEGLI STRUMENTI DELL’AGE OF BALANCING

The effective application of bis in idem principle is an issue that, in its own right, is part of different Courts’ dialogue, since it underlies a fundamental right, whose way of application can invade the scope of other fundamental rights, thus making a balancing operation inevitable. Such balancing is part of the competences of the Constitutional Courts and it is probably the reason why the Italian Supreme Court, despite being aware of the possible friction between rights with equal constitutional relevance, has asked the Constitutional Court if domestic double penalty system is compatible with the principle of ne bis in idem, as interpreted by the European Court of Human Rights. However, the Constitutional Court seems like has, in this case, renounced its role as an actor on the stage of the age of balancing. This paper analyzes the judgment of the Court and the possible consequences of a different judgment facing the problem of fundamental rights’ conflict.