Concorso formale di reati e principio del ne bis in idem tra diritto interno e Convenzione europea dei diritti dell’uomo

In its judgment no. 200 of 21 July 2016, the Italian Constitutional Court has declared the partial unconstitutionality of Article 649 of Code of Criminal Procedure insofar this norm did not provide for the application of the principle of ne bis in idem to cases in which a single act constituted various offences (“concorso formale di reati”). As follows from the settled “law in action” (diritto vivente), Article 649 contravenes Article 4 of Protocol no. 7 of ECHR regarding the above mentioned principle and breaches Article 117 (1) of the Constitution. The Italian Constitutional Court also has taken the opportunity to shed light on the concept of idem factum following to the European Court’s case law that emphasises the identity of the material facts irrespective of their legal qualification