La modulazione dell’applicazione delle garanzie convenzionali e costituzionali tradizionalmente collegate alla materia penale a misure formalmente non penali

This essay addresses the issue of the application of conventional and constitutional guarantees traditionally linked to criminal matters to formally non-criminal measures. After some preliminary methodological considerations aimed at clarifying the approach and the basic theses developed in the paper, a reasoned reconstruction, accompanied by some more general reflections, of the evolution of the relevant case law of the European Court of Human Rights is performed in the first part of the work, focusing especially on the development of the criteria and modalities by which this operation of extensive application of the criminal law guarantees contained in the Convention has been carried out. The evolution of the relevant case law of the Italian Constitutional Court is then examined, paying particular attention to Judgment No. 68 of 2021 and its implications. Some reflections are subsequently developed on the prospect of a “variable geometry” reconstruction of the notion of criminal matters, and of a graduation of the application of typically criminal conventional and constitutional guarantees to formally non-criminal sanctions; in support of this view, some remarks on the underlying reasons for the original approach of the European Court are made, and a comparative analysis of the interesting jurisprudence of the Inter-American Court on the same issues is provided. Finally, some future research perspectives suggested by the outcomes of the work are outlined.