Nullum Crimen Sine Lege and the Role of Foreseeability in the European Human Rights Protection System. A European approach to the problem of judge-made law in Criminal Law

The aim of this research is investigating nullum crimen sine lege as European principle. Therefore, the analysis focuses on the European Court of Human Rights (ECtHR) interpretation of this principle. The approach of this work is top-down. Since the research question is the role of foreseeability assessment in ‘Europeanised’ Criminal Law and its possible relevance at the European and national level, when and if necessary, the chosen approach is to look first at the European perspective, in order to analyse it in depth in its own specificities and then try to link it to the national perspective. With regards to ECHR law, the autonomous definition of law and the application of foreseeability (one of the ‘qualities’ of the law) as main parameter to assess legality, both in light of retroactivity and legal certainty, are investigated. In particular, special attention is given to the role of judge-made law in the interpretation of Art. 7 ECHR. Hence, the research focuses on the role of foreseeability, milestone of European legality, as a means to find a solution to the legality issues raising from judge-made law in criminal law. The origin, rationale and application of the concept of foreseeability in ECtHR case-law are scrutinised, trying to extract its main development paths. Subsequently, the current solutions that civil law States adopt to try solving the problem of case-law in criminal law are analysed, with reference to Italy and Germany, also with regards to the traditional rationales of nullum crimen and its theoretical foundations. Moreover, the role of foreseeability and legality in the European Union legal order is considered, as an example of an effectiveness-oriented and de-formalised legal order. In the end, future perspectives for the implementation of the principle of foreseeability are analysed, with particular regard to the Italian legal order.