Struggle in Favour of a Criminal Law as an ‘ultima ratio’. Critical Observations on the Criminalisation Obligations Arising from the Jurisprudence of the European Court of Human Rights in the Light of the Principle of Subsidiarity

Abstract

If the use of criminal law requires that legislators carry out empirical tests to establish the inadequacy of other available enforcement systems and the necessity of resorting to the weapon of punishment, how can the Court impose direct criminalisation obligations without resorting to similar tests? The contribution seeks to ascertain whether the case law of the European Court of Human Rights on positive obligations of criminalisation can be considered compatible with the principle of ultima ratio, in the light of the not merely 'rhetorical' reading that should be given to it in individual domestic legal systems.