The paper aims at highlighting the role of courts in selecting facts (so called ‘facts of case’) which might be relevant in the constitutional review and, more specifically, the role and marge of discretion that the Italian constitutional Court can enjoy in evaluating the selection of facts previously made by a judge/court. The case here discussed concerns an ‘incidental’ constitutional review, i.e. a case where the question of law’s constitutionality arises as an ‘incident’ to ordinary legal proceeding. The ‘inci-dent’ arose before the Court of Appeal of Bari, in 2018, and had as an object the question of consti-tutionality of art. 3, statute n. 75/1958, foreseeing as a crime the recruitment and aiding of voluntary prostitution. In turn, the Bari legal proceeding had to do with some people accused of recruiting escorts for the former Italian Premier Berlusconi. The article focuses on the evaluation, made by both the Bari Court of Appeal and the Italian constitutional court, of the ‘harm principle’, requiring an offense to have been committed against a given legal asset. It then critically inquires the decision made by both courts of restricting the flaw of facts that have been considered relevant in the legal reasoning of the constitutional Court.
