European Journal of Crime, Criminal Law and Criminal Justice
1
p. 1-29
The authors analyse the concept considering ECHR Article 7’s text, object and purpose,
the Strasbourg Court’s overall methodology, and the complex of Italian cases
from which ‘mental link’ sprang as well as case law subsequently making use of it. The
authors argue that the requirement means that a person subject to criminal prosecution
must have procedural opportunity to free themselves from punishment in
cases of avoidable and excusable error of law. Alternative readings, including that it
negates strict liability or requires mental capacity as a condition for punishment, are
discarded. The ‘mental link’ case law therefore seems not to suggest that EU law,
through the CFR, imposes new constraints on Member States’ freedom to define what
constitutes criminal behaviour within their jurisdictions. It rather highlights one of
several aspects of the principle of guilt, a cornerstone of the European legal tradition.