ORDER NO. 11
YEAR 2024
ITALIAN REPUBLIC
IN THE NAME OF THE ITALIAN PEOPLE
THE CONSTITUTIONAL COURT
composed of:
President: Augusto Antonio BARBERA;
Judges: Franco MODUGNO, Giulio PROSPERETTI, Giovanni AMOROSO, Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI,
has issued the following
ORDER
in the proceedings concerning the constitutional legitimacy of Articles 3, paragraph 4, and 76, paragraph 2, of Legislative Decree No. 159 of September 6, 2011 (Code of Anti-Mafia Laws and Prevention Measures, as well as new provisions on anti-mafia documentation, pursuant to Articles 1 and 2 of Law No. 136 of August 13, 2010), initiated by the Judge for Preliminary Investigations at the Ordinary Court of Syracuse, in the criminal proceedings against L. C., by order of November 24, 2022, registered as No. 22 in the register of orders 2023 and published in the Official Gazette of the Republic No. 10, first special series, of the year 2023, the hearing of which was scheduled for the meeting in the Council Chamber of January 9, 2024.
Heard in the Council Chamber of January 11, 2024, the Reporting Judge Stefano Petitti;
Deliberated in the Council Chamber of January 11, 2024.
Considered that, by order of November 24, 2022, registered as No. 22 in the register of orders 2023, the Judge for Preliminary Investigations at the Ordinary Court of Syracuse raised questions of constitutional legitimacy of Articles 3, paragraph 4, and 76, paragraph 2, of Legislative Decree No. 159 of September 6, 2011 (Code of Anti-Mafia Laws and Prevention Measures, as well as new provisions on anti-mafia documentation, pursuant to Articles 1 and 2 of Law No. 136 of August 13, 2010), with reference to Articles 3, 15, 21, 25 and 117, first paragraph, of the Constitution, the latter in relation to Articles 8 and 10 of the European Convention on Human Rights;
that the referring judge reports being called to rule, in precautionary proceedings, on the request for preventive seizure of the mobile phone of L. C., under investigation for the crime referred to in Article 76, paragraph 2, of Legislative Decree No. 159 of 2011, because, on February 15, 2021, he allegedly violated the oral warning of the Police Commissioner of Syracuse (notified on January 12, 2021) with which he was prohibited from possessing or using "any radio transmitting communication device," in application of the provisions of Article 3, paragraph 4, of the same Legislative Decree No. 159 of 2011;
that, the referring judge continues, the issues would be relevant because the ruling on the precautionary request requires an assessment of the *fumus* relating to the crime provided for by the challenged provisions;
that the issues would not be manifestly unfounded in light of the constant interpretation that the jurisprudence of legitimacy has given to Article 3, paragraph 4, of Legislative Decree No. 159 of 2011, according to which the strengthened oral warning of the Police Commissioner, when it prohibits the possession and use of "any radio transmitting communication device," also includes the mobile phone (Corte di Cassazione, holiday section, judgment September 1 - October 1, 2009, No. 38514 is cited on this point);
that, thus interpreted, the challenged provisions would conflict with multiple constitutional and conventional parameters;
that, first of all, Article 15 of the Constitution would be violated, because the forms of correspondence and communication that it protects could not fail to include today those conveyed, electronically, through the use of mobile phones, and their limitation, in this case, would not take place in compliance with the reservation of jurisdiction provided for by that article, since it is an administrative authority that assesses the conditions for the application of the measure;
that Article 21 of the Constitution would also be violated, because the challenged provisions would seriously compromise the freedom of expression of thought in the sphere of participation in public life, with regard to the freedom to inform, to be informed (or to receive information) and to inform oneself (or to seek information);
that the prohibition of possession and use of mobile phones resulting from the issuance of the strengthened oral warning would also conflict with Article 3 of the Constitution, due to the fact that it determines "the isolation of the individual and the difficulty of social reintegration of the most disadvantaged subjects";
that the principle of specificity in criminal matters, guaranteed by Article 25 of the Constitution, would also be impaired, because the prohibition issued by the administrative authority would not indicate the period of validity of the same, exposing the passive subject to the risk of committing the crime for an undetermined time;
that the same prohibition would, lastly, prove to be disproportionate to the scopes and purposes of Articles 8 and 10 ECHR, invoked through Article 117, first paragraph, of the Constitution, which respectively protect the right to respect for private and family life and the freedom of expression, since the considerable sacrifice suffered by the individual – who is criminally sanctioned for violating a precept of the administrative authority – would not be adequately related to the good that is intended to be protected, that of public safety, which would not seem to be actually harmed by the possession of a mobile phone.
Considered that, with judgment No. 2 of 2023, filed on January 12, 2023, and published in the Official Gazette on the following January 18, this Court declared the constitutional illegitimacy, for violation of Article 15 of the Constitution, of Article 3, paragraph 4, of Legislative Decree No. 159 of 2011 in the part in which it includes mobile phones among the radio transmitting communication devices of which the police commissioner may prohibit, in whole or in part, the possession or use;
that, therefore, as a result of the aforementioned declaration of constitutional illegitimacy, the norm that can be derived, according to the interpretation established in the living law, from Article 3, paragraph 4, of Legislative Decree No. 159 of 2011, which prohibits the possession and use of mobile phones for those who are the recipients of a strengthened oral warning from the police commissioner, has ceased to exist;
that, consequently, the non-observance of the same prohibition no longer constitutes the crime referred to in Article 76, paragraph 2, of the same Legislative Decree No. 159 of 2011, also the subject of challenges;
that, therefore, the questions of constitutional legitimacy raised in the present proceedings are without object, a circumstance which, according to the constant jurisprudence of this Court, determines their manifest inadmissibility (ex multis, orders No. 213 and No. 86 of 2023, No. 204 and No. 102 of 2022, No. 206 of 2021 and No. 125 of 2020).
Seen Articles 26, second paragraph, of Law No. 87 of March 11, 1953, and 11, paragraph 1, of the Supplementary Rules for proceedings before the Constitutional Court.
For These Reasons
THE CONSTITUTIONAL COURT
Declares the manifest inadmissibility of the questions of constitutional legitimacy of Articles 3, paragraph 4, and 76, paragraph 2, of Legislative Decree No. 159 of September 6, 2011 (Code of Anti-Mafia Laws and Prevention Measures, as well as new provisions on anti-mafia documentation, pursuant to Articles 1 and 2 of Law No. 136 of August 13, 2010), raised, with reference to Articles 3, 15, 21, 25 and 117, first paragraph, of the Constitution, the latter in relation to Articles 8 and 10 of the European Convention on Human Rights, by the Judge for Preliminary Investigations at the Ordinary Court of Syracuse, with the order indicated in the epigraph.
Thus decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on January 11, 2024.
Signed:
Augusto Antonio BARBERA, President
Stefano PETITTI, Reporting Judge
Igor DI BERNARDINI, Registrar
Filed in the Registry on February 6, 2024