The Nulla Poena Sine Culpa Principle in European Courts Case Law. The Perspective of the Italian Criminal Law.

Although the nulla poena sine culpa principle is not clearly recognised by the ECHR or in the Charter of Fundamental Rights of the European Union, several judgments acknowledge it in a more or less wide sense. European Courts identify the legal basis of the nulla poena sine culpa principle in the presumption of innocence, as provided by Article 6(2) ECHR as well as by Article 48 of the Nice Charter. However, the presumption of innocence is a principle regarding procedural criminal law and does not seem suitable as the basis for the nulla poena sine culpa principle, which pertains to substantive criminal law. The inadequacy of Article 6 ECHR as a basis for the principle of culpability forces the ECtHR to reason on the burden of proof at the procedural level. The suspected offence of absolute liability is thus turned into a presumption of liability that the defence needs to rebut. A similar approach can be found in the latest ECJ case law, which refers to Article 6(2) ECHR. To be more precise, the ECtHR case law shows a new hermeneutical approach relating the principle of culpability to the nulla poena sine lege principle, and from this perspective the legal basis of the principle is identified in Article 7 ECHR. In relation to the justiciability of the nulla poena sine culpa principle after the Lisbon Treaty, it seems appropriate to identify the basis of this principle in Article 49 of the Nice Charter or, to refer once again to the presumption of innocence, in Article 48. Whatever legal basis is referred to, the recognition of the nulla poena sine culpa principle also in the EU law system, through the Nice Charter, would multiply the chances of safeguard increasing the justiciability means. Basing the principle of culpability on the Charter of Fundamental Rights of the European Union implies its binding nature for the EU institutions as well as for Member States, since Article 6(1) TEU attributes to the Nice Charter "the same legal value as the Treaties".