It's Not True That Italian Law Applies

Not everyone knows that EU law also has a significant impact on the criminal justice system. Let me give you two examples.
Hassen El Dridi is an Algerian citizen who entered Italy illegally without a residence permit. The prefect of Turin issued an expulsion decree against him and, subsequently, the police commissioner of Udine issued a removal order. During police checks carried out some time later, Mr El Dridi was found still in Italy and therefore reported for the crime listed in the Consolidated Law on Immigration which punishes a foreigner who does not comply with the expulsion order with a prison sentence. After being sentenced to a one-year prison sentence in the first insance, Mr. El Dridi was acquitted by the Court of Appeal which - after having consulted the Court of Justice of the European Union for a preliminary ruling - deemed to disapply the Italian incriminating provision because it is in conflict with the European Directive on repatriations (Directive 2008/115/EC).

Now consider P.O., owner of a copy shop, who illegally made photocopies of texts covered by copyright for the purpose of selling them to customers. The administrative authority that ascertained the infringement inflicted Mr. P.O. a financial penalty amounting to almost €6,000. Since the Italian law on copyright (Law 633 of 1941) provides that the same conduct constitutes the elements of a crime punishable with a prison sentence as well as a fine, Mr. P.O. is subjected to criminal proceedings. However, the Constitutional Court – addressed by the judge who was deciding the case - considered the rule that allows criminal proceedings to be held against a person accused of a copyright infringement to be constitutionally illegitimate, if for the same fact he or she has already been subjected to administrative proceedings of a punitive nature. According to the Court, in fact, the duplication of sanctions for the same violation conflicts with the right of ne bis in idem provided for by European law and, in particular, by art. 4 of Protocol no. 7 of the European Convention on Human Rights (ECHR).

So what do the stories Mr. El Dridi and Mr. P.O. have in common? Both cases demonstrate, in a tangible way, how disruptive the impact of European law can be on the Italian legal system, even in a department - that of the administration of criminal justice - which is traditionally thought to be anchored to the national context. European law that affects the national legal system is emanated both by so-called "little Europe" (i.e. the European Community, now the European Union), and that of so-called "big Europe" (the Council of Europe, and the European Court of Human Rights in particular). The effects that European law can have on national criminal law can be seen in two ways: on the one hand, European law can require the removal from the national legal system of those criminal provisions that are in conflict with it ("reductive" effect ); on the other hand, although it does not contemplate rules that directly address crimes, European law can impose on the national legislator the obligation to legally contemplate new forms of crime, when this is necessary to better protect the interests of the European Union or to guarantee effective protection of a right recognized by the ECHR ("extensive" effect).