Court Of Cassation Research Articles

THE PRINCIPLE OF NEMO TENETUR SE DETEGERE IN THE AGE OF DATA

The objective of the present article is to examine the manner in which the Italian criminal justice system protects the nemo tenetur se detegere principle in the digital era, with a view to providing an insight into this approach for an international audience. In doing so, the article will also consider the experience of other legal systems and the jurisprudence of the courts. In Italy, the nemo tenetur is a right that has its origins in the constitutional protection of the right of defense and the presumption of innocence. There is considerable debate surrounding the extent to which the right should be safeguarded. While the majority of scholarship advocates for the broadest possible extension of the right, this view is not universally accepted: the Cassation court has recently adopted a more lenient approach to the protection of the privilege against self-incrimination, which may permit the use of the suspect's refusal to cooperate as grounds for adverse consequences. The issue arises in instances where law enforcement officials require evidence stored on a laptop or mobile phone that cannot be retrieved without a password, or without the potential for irreparable data loss. Questions arise. Does the obligation to disclose one’s password constitute a form of self-incrimination or a violation of the right to remain silent? Would granting police the power to compel passwords cross a linecenturies old against forcing a person to speak to build the case against them? What are the differences between traditional passwords and biometrical authentication, and what difference does this make for the privilege against self-incrimination?

The concept and legal nature of the principle of cassation appeal in administrative proceedings of Ukraine

The article is devoted to an in-depth analysis of the principle of cassation appeal in the administrative proceedings of Ukraine, its legal nature, significance, and place within the administrative law system. The author emphasizes that cassation appeal is an important component of the right to access justice, enshrined both in the Constitution of Ukraine and in international legal acts such as the Convention for the Protection of Human Rights and Fundamental Freedoms. The article examines in detail the evolution of legislation regarding cassation appeal, particularly the changes introduced in 2020 by Law of Ukraine No. 460-IX, which significantly affected the possibilities of appealing to cassation courts. Special attention is paid to the analysis of the new requirements for cassation appeals, which impose stricter conditions for filing cassation complaints. The author explores the so-called «cassation filters,» which were introduced to screen out appeals that lack significant legal merit, which on one hand reduces the workload on cassation courts, but on the other hand limits access to justice for certain categories of individuals. The article also highlights the problematic aspects of applying these filters, especially in minor cases and simplified proceedings. The practice of the European Court of Human Rights regarding cassation restrictions and their compliance with the principle of a fair trial, as enshrined in Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, is analyzed. The article cites specific rulings of the European Court of Human Rights, which define the permissible limits of cassation appeal restrictions and the requirements for «cassation filters» from the perspective of international law. The study of this issue is extremely important given that legislative shortcomings may lead to an increase in applications to the European Court of Human Rights. A number of recommendations for further improving the cassation appeal mechanism are proposed, including ensuring greater transparency in determining the grounds for cassation review and guaranteeing equal access to the courts for all participants in the process. The emphasis is placed on the importance of maintaining a balance between the efficiency of the judicial system and the citizens’ rights to defend their interests in court.

Проблемы разграничения законности, обоснованности и мотивированности приговора в теории и практике уголовного судопроизводства

This article examines the problems associated with defining the concept of a justified verdict, its relationship with the properties of legality and motivation of a court decision. The conclusion is formulated that modern judicial practice has actually turned the property of the validity of a sentence into an appendage of legality. Violation of the norms of the Code of Criminal Procedure of the Russian Federation, in turn, is a universal basis for canceling or changing a court decision. Thus, in the practice of appellate courts, the identification of violations of the law committed by the court of first instance, as a rule, precedes the verification of issues of the validity of the verdict, which the court may generally leave without consideration, and the cassation courts, contrary to the requirements of the law, actually verify the validity of the verdict. In this case, the sentence is canceled (changed) due to a legal basis (the only legal one, according to the letter of the law) significant violations of the criminal and (or) criminal procedural law. The authors associates the appearance of such collisions with the confusion in judicial practice and in procedural science of the concepts of legality, validity and motivation of a sentence. However, such a mixture directly contradicts the requirement of the Code of Criminal Procedure of the Russian Federation, which distinguishes the subject of appeal (legality, validity and fairness of the sentence) and cassation (literally according to the Code of Criminal Procedure of the Russian Federation — only the legality of the sentence) proceedings. Based on the results of the study, the authors proposed her own vision of the content of the concepts of legality, validity and motivation of a court decision, and their significance in rendering a legal verdict. Key words: sentence, properties of the sentence, legality, validity, motivation.

Дела частного обвинения: вечное или уходящее? Статья вторая: анализируем конкретную судебную практику

The article gives an example of two specific criminal cases to analyze the mistakes found by the first court of cassation: the Fourth General Jurisdiction Court of Cassation and the second court of cassation: the Judicial Chamber on Criminal Cases of the Supreme Court of the Russian Federation.

Nonarbitrability and Mandatory Rules: Brothers, Not Twins

Notwithstanding the lack of clear legislative intent, Belgian judges have unilaterally prohibited the arbitration of exclusive distribution disputes, unless a specific Belgian pro-distributor statute was applied or unless similar substantive foreign rules were applied. However, in 2023, the Court of Cassation finally reversed its jurisprudence. Yet, the syllogism underlying this longawaited reversal remains unsatisfactory. It mistakenly equates a conflict-of-laws issue concerning mandatory rules with questions of nonarbitrability under international arbitration law. Such an overly simplistic assimilation is inappropriate in many respects. It dilutes the tailored legal standard applicable to international arbitration into a lesser question of applicable rules. It unduly prevents a subject matter from entering ratione materiae into the arbitration field. Upon closer examination, it conflates two substantively different gateways to arbitration: the nonarbitrability doctrine (Article V(2)(a) of the New York Convention) and the public policy exception (Article V(2)(b) thereof). In so doing, it needlessly erodes confidence in the arbitral process, which is based on parties’ autonomy, and violates the principles of judicial non-interference in international arbitral proceedings and of competence-competence. In essence, regardless of the pro-arbitration outcome in the case at hand, this flawed syllogism violates the New York Convention’s straightforward language and pro-arbitration ethos by potentially generating unnecessary, unforeseeable, and improper exceptions to arbitration.

PROBLEMS OF JUDICIAL ACTS REVIEW IN THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN

The work is devoted to studying the problems of reviewing court decisions of lower courts by the Supreme Court of the Republic of Kazakhstan. This article examines the control of higher courts over lower courts' activities in the system to ensure the rule of law in case consideration and decision-making. The procedure of reviewing judicial decisions by a higher court that have become effective and those that are not effective in the order of cassation and supervisory review, as well as representations of the President of the Supreme Court, and protests of the Prosecutor General of Kazakhstan, are investigated. Problems of citizens' implementation of their constitutional rights to judicial protection and appeals against court decisions are highlighted. The grounds for reviewing judicial acts that have entered into force, the range of subjects entitled to apply for review, criteria for the admissibility of appealing judicial acts as well as procedure for preliminary consideration of complaints and protest by a judge alone is shown. The analysis of these issues allows us to conclude that the current grounds and procedure for reviewing judicial decisions of the appeal and cassation courts based on the submissions of the Chairman of the Supreme Court and the Attorney General of the Republic of Kazakhstan firstly hinder the realization of citizens' constitutional right to judicial protection, including the right to appeal against judicial decisions, and secondly prevent the formation of consistency in judicial practice. The lack of guidance to lower courts on reviewing judicial decisions by way of cassation and supervision has once again convinced courts of their inability to achieve consistency in the interpretation and application of law, as well as failure to contribute effectively to citizens' exercise of the right to justice. The paper provides a critical analysis of judges, lawyers, and legal experts on the current process for the Supreme Court of the Republic of Kazakhstan to review appeals and cassation court decisions. At the end of the paper, the author draws conclusions and makes suggestions regarding the enhancement of the constitutional right to judicial protection and uniformity in court practice.

Standard of proof ‘beyond reasonable doubt’ in criminal proceedings: analysis of national and international experience

It is stated that, according to the standard of proof beyond a reasonable doubt, if there is proof beyond a reasonable doubt of the defendant’s guilt, it is sufficient for a conviction, and it is also undisputed that such a reasonable doubt must be evaluated according to the evidentiary difficulties of the particular case, as well as according to the crime committed. . The standard of proof beyond a reasonable doubt is the most acceptable standard in criminal proceedings for a fair trial. At the same time, indicating the need for courts to use this standard of proof, the legislator does not define its concept and does not reveal its meaning. Reasonable doubt is a frequently used term that is probably well understood but difficult to define. It is not merely a possible doubt, as everything related to human activity that depends on evidence that gives rise to moral certainty is subject to some possible or imaginary doubt. Reasonable doubt, then, deals with a state of affairs that leaves the judge’s mind in such a state that he cannot say that he feels a firm conviction that gives rise to moral certainty about the truth sought. If there is a reasonable doubt as to the proof of guilt, the accused is entitled to the benefit of the presumption of innocence and to be acquitted. Thus, evidence must establish the truth of the facts in a way that produces reasonable or moral certainty, that is, a certainty that convinces, guides understanding and satisfies the minds and judgements of judges. This, he concludes, is what counts as proof beyond a reasonable doubt. The adoption of the standard of proof beyond a reasonable doubt reflects the high degree of probability required to develop the personal certainty (conviction) necessary for the purposes of conviction in criminal proceedings (guilt beyond a reasonable doubt), ultimately if there is sufficient evidence of a criminal act, and not, it should be emphasised, complete, total or absolute proof. The article examines the legal positions of the Criminal Court of Cassation as part of the Supreme Court and the European Court of Human Rights with regard to determining the content of the standard of proof ‘beyond reasonable doubt’ in criminal proceedings. In the doctrine of criminal procedure, the concept and content of the standard of proof ‘beyond reasonable doubt’ is the subject of considerable attention of procedural scholars.

International acts as part of the current legislation of Kazakhstan: Influence on the country’s social policy

The topic is relevant in the light of the current globalisation processes, which promote intensive interaction between international and national norms. This creates a need for a systematic study of this problem. The purpose of this study was to analyse the practice of using international acts as part of the current legislation of Kazakhstan and to investigate the role of international acts in the legal system of the country. To fulfil this purpose, the methods of analysing regulations, the method of comparative analysis of judicial practice, as well as the historical legal method, systemic, and statistical analysis were used. It was found that international acts have a prominent place in the system of national legislation of Kazakhstan, contributing to the adaptation of the domestic legal order to the standards of the international community. The types of international instruments and the level of their implementation in national legislation were examined, together with the ratification procedure. A study of statistical data for the last three years was carried out on the use of international instruments by the courts. According to the results of statistical analysis, it was found that the court of first instance in both civil and criminal cases is the enforcer of international norms, while the courts of appeal and cassation used international treaties in their decisions in isolated cases. A tendency was noted for a steady decline in the use of international treaties in court judgements starting from 2020 to 2022. The analysis of judicial practice showed a restrained use of international acts in court judgements. Such use can be of various kinds, such as purely formal references and the intended use of the norms that justified a particular decision. It was concluded that even the formal use of a norm of an international act in the reasoning part of a judgement is a positive practice of human rights promotion. This study can be used to further improve the mechanisms of incorporation, implementation, and application of international acts in the legislation of Kazakhstan, as well as a more profound understanding of their impact on law enforcement in the context of global changes

Legal Characterization of the Offence of Forging a Legal Instrument; Pursuant to the Provisions of the Jordanian Criminal Judicature

This study addresses the rulings of the Jordanian Supreme Court regarding the Legal characterization of the forgery of legal instruments, with comments on such rulings. This is aimed to address a main challenge of the difficulty to distinguish between the felony forgery and the misdemeanour forging false affidavits, when forgery occurs to a legal instrument, especially that such a case is not addressed under the provisions of the Jordanian penal code. Keywords: legal description; forgery; Jordanian Court of Cassation; legal instrument; forgery felony; misdemeanour of forging a false affidavit.

Institute Of Conditional Early Release In The Republic Of Armenia

The article refers to the analysis of the institution of parole from the further serving of the sentence of persons sentenced to a certain term or life imprisonment in the Republic of Armenia, in particular, the current and previous legislative regulations, the changes made, their comparison, the problems arising in practice, as well as the possible new legislative changes for their solution. In the article, an attempt was made to outline in the most accessible and accessible way possible the legislative regulations regarding early release from punishment, one of the fundamental rights of persons sentenced to life imprisonment or a certain period of imprisonment, which is an important and integral part of the penal legislation during the formation of the new legal system after the achievement of independence in the Republic of Armenia, because in practice the majority of complaints among convicts relate to the problems arising in the process of their parole. An analysis was made of both the previously existing legal regulations and the new legal regulations that came into force on July 1, 2022, and their differences were also analyzed. The article also describes the legal positions expressed in precedent decisions of the RA Court of Cassation regarding the parole of persons sentenced to life imprisonment or a certain period of imprisonment, as well as the international practice regarding it. The current legislative regulations in the Republic of Armenia were compared with the international practice. Accordingly, the Order 336-L of the RA Minister of Justice of June 12, 2018, which is a cornerstone in the process of parole for persons sentenced to life or a certain term of imprisonment, needs to be amended and amended in terms of assessing and summarizing the standards of convicts.

The Concept, The Structure Of The Incentive Norms And The Consequences Of Their Changes Over Time

The incentive norms provided by the special part of the Criminal Code of the Republic of Armenia have undergone various changes. A number of questions arise in connection with the mentioned. First of all, what kind of norms are incentive norms, are they complete or incomplete norms, are they eliminating or determining criminality or punishment, are they norms improving or worsening the legal status of a person, etc. These issues currently have a very topical practical significance, because with the adoption of the new Criminal Code of the Republic of Armenia, which came into force on July 1, 2022, the question arises as to whether they are applicable at the time of the act, or in accordance with the current legislation, including incentives norms. In order to get the answers to the mentioned questions, this article introduces various scientific approaches regarding the role, meaning, structure and type of incentive norms, the comments of the RA Court of Cassation, through which the author reaches his conclusions. As a result, the reader will be presented with a clear concept of the incentive norm, its structure, which type of norm the incentive norms belong to, and finally, the specifics of the operation of these norms over time.

Violence Under The Regulation Of The New Criminal Code Of The Republic Of Armenia

Considering that the definition “violence” received a new interpretation in the new RA Criminal Code, which entered into force on July 1, 2022, it became necessary to consider the content of this definition and the possibility of its application within the framework of the Аrticles of the Special Part of the RA Criminal Code. This issue has become more relevant due to the differences in the interpretation of the definition “violence” enshrined in Article 3 of the RA Criminal Code, and the term previously given by the RA Court of Cassation on November 1, 2012 in the criminal case ԱՐԴ/0176/01/11 in relation to Arevik and Tsovinar Sahakyan: especially since practice not only accepted the position of the indicated RA Court of Cassation and widely applied it. As a result of the comprehensive analysis carried out in this context, implementing the goals of this study, recommendations of both a legislative and practice were presented. It is undeniable that intentional physical influence on another person against his/her will or regardless his/her will, or causing him/her physical harm in this way is considered violence, however, this definition doesn’t completely solve the issues posed by the RA Criminal Code, and doesn’t satisfy the requirements of certain Articles of the Special Part of the RA Criminal Code. Consequently, on the basis of the presented recommendations, it will be possible not only to clarify the existing confusion that arises between the analyzed definitions, but also, by applying the presented interpretations in practice, to form a judicial-investigative practice that will comply with legislative norms and is based on the principles of law. The article examines the problem of the definition “violence” of practical and theoretical significance, based on which the article can be useful to both theorists and practitioners. The presented comments can be effective for formulating further decisions of the RA Court of Cassation, as well as for specialists carrying out legislative activities.

Review of judicial practices of the civil court of cassation as part of the supreme court regarding the consideration of complaints on the actions or inactions of a private/government executive during the execution of court decisions in civil cases

The paper is devoted to the study of the judicial practice of cassation appeals of court decisions, namely the analysis of the judicial practice of the civil court of cassation as part of the Supreme Court regarding the consideration of complaints about the actions or inaction of a private/state executor during the execution of court decisions in civil cases. The main grounds for canceling or changing court decisions in the process of consideration of the specified category of cases have been determined. The analysis makes it possible to single out procedural errors, which form the basis for the cancellation of decisions of previous instances. A person who did not take part in the case, if the court decided the issue of his rights, freedoms, interests and (or) obligations, has the right to file a cassation appeal against the court decision only after it has been reviewed in the appellate procedure according to his appeal. After the opening of cassation proceedings based on the cassation complaint of a person who did not participate in the case, but the court decided the issue of his rights, freedoms, interests and (or) duties, such a person enjoys the procedural rights and bears the procedural obligations of a participant in the case. The cassation appeal concerns a question of law that is of fundamental importance for the formation of a unified law enforcement practice. The study of the practice of cassation appeals of court decisions in civil cases regarding the consideration of complaints about the actions or inaction of a private/state executor during the execution of court decisions makes it possible to single out typical violations that occur, taking them into account in practical activities, which allows to avoid violations of rights, freedoms and legitimate interests persons participating in the proceedings, and also contributes to the adoption of a legal, substantiated and reasoned court decision.

Текущее состояние и перспективы развития цифровых технологий в кассационном производстве по уголовным делам

Based on the analysis of the current level of digitalization development in our country, digital technologies used in criminal cassation proceedings in Russia are being investigated. The current use of technologies such as automated information systems and video conferencing in the Supreme Court of the Russian Federation is highlighted, as well as prospects for further development, including the use of artificial intelligence and blockchain. Both the positive aspects and potential risks of digitalization are discussed, including issues of security, privacy and changing the role of judges. Attention is focused on the potential of these technologies to improve the accessibility and quality of criminal justice in the courts of cassation. The author emphasizes that digitalization has the capability to streamline procedural processes in criminal cassation, significantly reduce case review times, and alleviate administrative burdens on judicial bodies. Attention is also paid to the need for an integrated approach in the development and implementation of advanced information systems that should ensure the safety and confidentiality of personal data in accordance with the principles of legal protection. Improving the quality of justice through digital innovation involves a synergy of efforts between the public sector, private business and academia. The author considers the strategic need to inform the public about new digital technologies so that citizens can actively use the opportunities provided, which contributes to improving the quality of cassation proceedings in criminal cases and increases their fairness. The article is an important contribution to the discussion on the prospects for the development of digital technologies in criminal cassation proceedings in Russia and offers a reasoned analysis of both the opportunities and challenges associated with these prospects.

When legal interpretation is not about language

Abstract Linguistic arguments are paramount in legal interpretation. They are widely used by judges and considered to be ubiquitous across jurisdictions. It is claimed that they are decisive and limitative in the judicial interpretation of the law. The claims have long been subject to theoretical scrutiny and, recently, testing within experimental jurisprudence. In this paper, we analyse the judicial reasoning in a landmark Italian case from the end of the nineteenth century concerning Lidia Poët, an aspiring practising female lawyer. The case was decided in the last instance by the Turin Court of Cassation. We give a detailed argumentative analysis of the reasoning of the Court of Cassation in Turin in the Lidia Poët case and show that the crucial linguistic and systematic arguments used are not grounds for the interpretative decision to exclude women from the denotation of the word “lawyer.” We conclude that the linguistic arguments employed by courts often do not do the argumentative work they are expected to do. Instead, they cover the substantial views that have determined the ascription of normative meaning to a term or sentence.

The Assessment of the nature of national law provisions which set the rules for the compensation for harm caused by the death of the closest person in the light of Art. 16 of the Rome II Regulation – comments in the context of a preliminary question submitted to the Court of Justice of the EU following the decision of the

Despite the fifteen-year period of validity of the “Rome II” Regulation, its application by the courts of the Member States is still, in some respects, a source of serious controversy. It manifests itself with particular intensity in Art. 16, devoted to overriding mandatory rules. This should be attributed to two factors. The first one is the resignation from including therein a legal definition of this category of norms, in contrast to Art. 9 section 1 of the “Rome I” regulation. The other is the phenomenon of a kind of “inflation” of the concept of overriding mandatory provisions, observed in the PIL. It manifests itself in the attempts to attribute such qualification to binding rules of national law, the nature of which do not indicate a conflict of laws element inherent in them, implying the need to apply them in addition to or instead of the applicable law. The case C-86/23 pending before the CJEU, as a result of a request for a preliminary ruling submitted in the decision of the Bulgarian Supreme Court of Cassation of February 7, 2023, gives an excellent opportunity to bring up once again the issue of the proper way of understanding the concept of overriding mandatory rules in the context of Art. 16 of the Rome II Regulation, using as an example the norms applicable in Bulgarian substantive law, which regulate the principles of granting compensation for harm caused by the death of a close relative. Looking at the matter in question from the perspective of the fifteenth anniversary of the regulation’s validity, the author recommends particular caution in applying Art. 16 and, at the same time, makes an attempt to formulate a proposal of an answer to the question referred to in a preliminary ruling.

From the Recognition of ‘Psychiatric Disorder Caused by Asbestos Exposure’ to the Mobilisation of Dignity in Labour Law: A Comparison of France and Sweden

Abstract In two rulings on 8 February 2023, the French Court of Cassation invoked the notion of ‘dignity’ in labour law to support claims for ‘damage due to anxiety’ (‘préjudice d’anxiété’). The concept of ‘damage due to anxiety’, which might in English be translated more functionally as ‘psychiatric disorder caused by asbestos exposure’, is based on loss arising from the fear of developing a future disease due to occupational exposure to a toxic and hazardous substance, such as asbestos. Based on a reading of these two cases, the aim of this article is to analyse the approach developed in the French legal system, and to discuss it from the standpoint of Swedish law. The concept of ‘psychiatric disorder caused by asbestos exposure’ is not currently recognised in Swedish law. However, the idea that physical work environment factors can cause psychological injury is not entirely unfamiliar. It touches upon the ideas of a holistic approach to the work environment and a broad and inclusive concept of health and illness, which are important foundations for Swedish work environment law. By studying this specific occupational health and safety issue it is possible to illuminate not only how this topical and important issue is regulated in France and Sweden, but also on a broader level how these two legal systems—the French one based on the individual responsibility of the employer and the Swedish one on collective bargaining—are functioning when it comes to systems of prevention of and compensation for ill health.

Squandering Marital Movables: On Family and Criminal Law in Egypt

Abstract This essay focuses on the trousseau inventory (ayma) created by Egyptian Muslims at the time of marriage. Though not a legal requirement, creating the ayma is widespread as it proves the husband’s receipt of the wife’s property. After divorce, he must return the items listed in the inventory to her, and if he fails to do so, she may sue him for “squandering marital movables” (tabdīd manqūlāt zawjiyya), as stipulated in the Penal Code. In July 2022, when an Egyptian man posted a message suggesting that the ayma had been abolished, his post caused a huge outcry. In this essay, I address the social debate triggered by the post, introduce the case of an Egyptian woman who filed a tabdīd lawsuit to secure a divorce, and discuss judgments issued by the Court of Cassation on tabdīd cases. I argue that Egyptians use criminal law and courts to solve family disputes.

THE PUNITIVE POWER OF INDEPENDENT ADMINISTRATIVE AUTHORITIES: FOCUS ON FINANCIAL AND TAX VIOLATIONS (A COMPARATIVE STUDY)

Background: In France, some independent administrative authorities have been granted punitive powers concerning violations committed against stated regulatory rules. In this regard, the issue of the accumulation of penalties has been repeatedly raised concerning sanctions imposed by independent administrative authorities and criminal justice penalties. For example, a certain action could be criminalised by virtue of the Penal Law, necessitating a custodial sanction or a fine, while also considered a mere breach under financial and monetary laws, leading to the imposition of a certain financial penalty. This raises the question of whether the infliction of both criminal and administrative sanctions on financial and tax crimes violates the 'ne bis in idem' principle. The French Constitutional Council has addressed this issue extensively; it has banned the accumulation of criminal penalties and administrative sanctions of a punitive nature upon the fulfilment of certain conditions. Interestingly, these conditions did not apply to tax disputes, permitting the accumulation of penalties in this specific field. However, the accumulation of penalties was banned and deemed impermissible in financial markets. Therefore, a major question can be raised: Why has the Constitutional Council adopted two different approaches in those two similar fields? Methods: In pursuit of the research goals, this study employed a combination of comparative, historical, and analytical methodologies. By examining the legal nature of independent administrative authorities, this study conducts a comprehensive examination of relevant legal texts, encompassing constitutional provisions, legislation, and judicial decisions, to analyse the ne bis in idem principle in France. A comparative analysis approach was utilised to compare the rulings of the French Constitutional Council, the French Court of Cassation, and European judicial bodies. Results and conclusions: In various jurisdictions, including France and the EU, the principle of non-accumulation of criminal penalties and administrative sanctions is recognised, yet differences arise in its application. Jurisdictions vary in approach, with some strictly prohibiting accumulation while others allow flexibility based on factors like offence nature and societal interests. The French Constitutional Council sets standards, allowing dual penalties in tax matters but not in finance. Rulings by the French Constitutional Council and Court of Cassation offer insights into applying the principle, revealing complexities in balancing regulatory enforcement and individual rights.

Delibazione e divorzio nella giurisprudenza della Cassazione: il difficile bilanciamento tra attuazione della normativa concordataria e tutela del coniuge più debole

Exequatur procedure and divorce in the jurisprudence of the Supreme Court: the difficult balance between implementation of the concordat legislation and protection of the weaker spouse ABSTRACT: The 1984 Agreement with the catholic church modified the rules for implementing canonical sentences of nullity of marriage in the Italian legal system, introducing several controls among wich the non-contradiction to Italian public order of such sentences has acquired increasing importance. In recent years, this requirement has been interpreted by the jurisprudence of the Supreme Court in a very restrictive manner in order to limit the recognition proceeding as much as possible, with the aim of avoiding the unfavorable economic consequences deriving from the nullity of the marriage for the spouse who would have been entitled to maintenance allowance in the event of divorce. The work focuses on the relationship between recognition of canonical nullity and divorce, analyzing the repeated interventions of the Court of Cassation to prevent that with the exequatur procedure the economic measures taken in the divorce judgment could be annulled. The protection of the weaker spouse was made even more complete by the recent ruling of the United Sections of the Supreme Court of 2021 that allowes the treatment of economic issues still pending, provided that the divorce decree between the parties was pronounced before the exequatur of the ecclesiastical sentence of marriage nullity. SOMMARIO: 1. Premessa - 2. I tratti salienti dell’attuale procedimento di delibazione - 3. La differente tutela del coniuge nel caso di nullità e di divorzio - 4. Il rapporto delibazione-divorzio tra tesi dottrinali e orientamenti giurisprudenziali dalla metà degli anni Ottanta alla fine degli anni Novanta - 5. Gli interventi della giurisprudenza di vertice su delibazione e divorzio a partire dal 2001 - 6. L’ulteriore passo in avanti della Cassazione: dopo il giudicato di divorzio è possibile la trattazione delle questioni economiche ancora pendenti anche se nelle more sia intervenuto l’exequatur della nullità canonica - 7. Conclusioni.