JUDGMENT NO. 12

YEAR 2024

ITALIAN REPUBLIC

IN THE NAME OF THE ITALIAN PEOPLE

THE CONSTITUTIONAL COURT

composed of:

President: Augusto Antonio BARBERA;

Justices: 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

JUDGMENT

in the proceedings concerning the constitutional legitimacy of Articles 55 and 61 of Legislative Decree No. 159 of 6 September 2011 (Code of Anti-Mafia Laws and Prevention Measures, as well as new provisions regarding anti-mafia documentation, pursuant to Articles 1 and 2 of Law No. 136 of 13 August 2010), initiated by the Judge of the Movable Property Execution of the Ordinary Court of Palermo, Sixth Civil Division, in the proceedings between R.G.L. L. srl and S. srl in liquidation and another, by order of 24 February 2023, registered under No. 68 of the 2023 register of orders and published in the Official Gazette of the Republic No. 21, first special series, of the year 2023, the hearing of which was scheduled for the meeting in the council chamber of 9 January 2024.

Heard in the council chamber of 11 January 2024 the reporting Justice Giovanni Amoroso;

Deliberated in the council chamber of 11 January 2024.

Considered in fact

1.– By order of 24 February 2023, registered under No. 68 of the relevant register of the year 2023, the Judge of the Movable Property Execution of the Ordinary Court of Palermo, Sixth Civil Division, raised questions of constitutional legitimacy of Articles 55 and 61 of Legislative Decree No. 159 of 6 September 2011 (Code of Anti-Mafia Laws and Prevention Measures, as well as new provisions regarding anti-mafia documentation, pursuant to Articles 1 and 2 of Law No. 136 of 13 August 2010), with reference to Articles 24 and 102 of the Constitution.

The referring judge premises that, within the scope of a forced expropriation from third parties, the debtor had filed an objection to the execution, arguing, inter alia, the non-seizability of the assets pursuant to Article 55 of the Anti-Mafia Code, according to which, following the seizure, enforcement actions cannot be initiated on the assets subject to it, emphasizing that, moreover, the execution had begun after the final confiscation. Thus, it had been highlighted, in the objection filed, that, by virtue of the regulations set forth in Article 52 et seq. of the aforementioned code, creditors, instead of the ordinary enforcement action, should have filed a request for ascertainment of their claims before the prevention judge, without the relative rules being considered derogable in the presence of claims – such as those enforced in the underlying enforcement procedure – of a pre-deductible nature because they arose after the issuance of the prevention seizure, in the same manner as occurs in insolvency procedures arising from the company's crisis.

That being stated, the judge a quo observes, preliminarily, that Article 55 of the Anti-Mafia Code, rather than a case of non-seizability of assets, provides for the inadmissibility of the execution, which can, as such, also be detected ex officio.

However, the Court of Palermo considers that, in effect, in the face of the prohibition to act in executivis, creditors can be satisfied within the framework of the debt payment procedure governed by Articles 60 and 61 of the aforementioned code, which identify the body responsible for the payment of creditors, after the confiscation order has become final, in the National Agency for the Administration and Destination of Seized and Confiscated Assets from Organized Crime (hereinafter, also: Agency).

Moreover, the referring judge assumes that under these aspects, the combined provisions of Articles 55, 60 and 61 of the Anti-Mafia Code could violate Articles 24 and 102 of the Constitution, since these provisions would ensure incomplete and therefore not effective judicial protection for creditors, who could only appeal to the judicial authority to contest the payment plan prepared by the Agency. In particular, the vulnus would be determined because creditors would not have any judicial protection, both in the preceding phase of preparing the credit ranking project, and in the subsequent phase of material execution of the plan, in a situation that is all the more detrimental for the holders of pre-deductible claims – such as the creditor proceeding in the enforcement pending before the same judge – whose ascertainment is carried out outside the insolvency procedure.

The referring judge further emphasizes that the harm caused is revealed with even greater clarity, considering the different rules provided for bankruptcy (now, judicial liquidation), in which, in the phases of ascertainment and ranking of claims, the activity of the receiver is subjected to continuous control by the judicial authority.

The judge a quo observes, finally, that, even within the broad discretion of the procedural legislator, the intervention requested from this Court would be with "obliged rhymes"; in fact, he concludes by requesting the declaration of constitutional illegitimacy of the challenged provisions «in the part where Article 61 does not provide that creditors included in the statement of liabilities and holders of pre-deductible claims who are not, can appeal to the Judicial Authority identified in paragraph 7 with appeal ex Article 702 bis of the Code of Civil Procedure, to obtain inclusion in the payment plan and the effective fulfillment of the plan».

2.– None of the parties to the main proceedings appeared; nor did the President of the Council of Ministers intervene.

Considered in law

1.– By order of 24 February 2023 (reg. ord. no. 68 of 2023), the Judge of the Movable Property Execution of the Court of Palermo, Sixth Civil Division, raised questions of constitutional legitimacy of Articles 55 and 61 of the Anti-Mafia Code, with reference to Articles 24 and 102 of the Constitution.

The referring judge premises that, within the scope of a forced expropriation procedure from third parties, brought against a company against which a confiscation order had been issued that became irrevocable before the start of the execution procedure, the debtor had filed an objection to the execution, alleging the non-seizability of the assets pursuant to Article 55 of the Anti-Mafia Code which, already after the prevention seizure, prohibits the filing of execution actions on the assets subject to the order.

In this case, the forced expropriation had been initiated by the creditor after the final confiscation for a claim arising after the prevention seizure for services rendered in favor of the company subject to the seizure itself; a claim therefore to be considered pre-deductible in the liquidation phase of the prevention procedure.

The referring Court – after premising that the prohibition referred to in Article 55 of the Anti-Mafia Code affects the admissibility of forced execution and not the seizability of the assets – observes that, in effect, in the face of the prohibition to act in executivis, creditors can be satisfied within the framework of the debt payment procedure, regulated, after the final confiscation, by Article 60 of the aforementioned code, which identifies the body responsible for the payment of creditors in the National Agency for the Administration and Destination of Seized and Confiscated Assets from Organized Crime.

This regulatory framework, and in particular Articles 55 and 61 of the Anti-Mafia Code, would however conflict with Articles 24 and 102 of the Constitution, since creditors would be ensured incomplete judicial protection, given that they have the possibility of appealing to the judicial authority only to contest the payment plan prepared by the Agency, while they are without judicial protection, also with respect to the possible inertia of the Agency itself, in the performance of the activities entrusted to it, both in the preceding phase of the preparation of the payment project, and in the subsequent phase of material execution of the plan.

This regulatory system, as a whole, would be detrimental to the holders of pre-deductible claims, the ascertainment of which is carried out outside the prevention procedure, especially if consideration is given to the different rules provided for bankruptcy (now, judicial liquidation), in which, in the phases of ascertainment and ranking of claims, the activity of the receiver is subject to constant control by the judicial authority.

According to the same referring Court, the reductio ad legitimitatem of the system would require an intervention with "obliged rhymes" by this Court, recognizing for creditors included in the statement of liabilities and for the holders of pre-deductible claims the possibility of appealing to the judicial authority identified, by Article 61, paragraph 7, of the Anti-Mafia Code, with an appeal proposed pursuant to Article 702-bis of the Code of Civil Procedure.

2.– Preliminarily, the inadmissibility of the question in reference to the invoked parameter of Article 102 of the Constitution must be declared, since it is not pertinent with respect to the censures that are drawn from the order of reference, which intends to denounce a vulnus to the effectiveness of the judicial protection of creditors contemplated, in the face of the prohibition to introduce and continue individual execution actions, by Article 55 of the Anti-Mafia Code after the prevention seizure.

Indeed, Article 102 of the Constitution provides, on the one hand, that as a matter of principle jurisdiction is exercised by ordinary magistrates and, on the other, that extraordinary judges or special judges cannot be established.

Hence, since the jurisdiction of the ordinary judge for all the phases in which the intervention of the judicial authority is contemplated is not in doubt, not even by the order of reference itself, the evocation of this parameter is irrelevant with consequent inadmissibility of the censure (ex plurimis, judgments no. 225, no. 209 and no. 108 of 2023). In fact – this Court recently stated – when the evoked parameter is irrelevant, and in any case its relevance is not indicated, the question is in parte qua inadmissible (again judgment no. 108 of 2023).

3.– Also with regard to the parameter of Article 24 of the Constitution, the question of constitutional legitimacy is inadmissible, both in the part in which it concerns Article 55 of the Anti-Mafia Code, and in that concerning the subsequent Article 61.

4.– The referring judge – complaining about insufficient judicial protection in executivis of a claim arising, after the prevention seizure, against a subject reached by such measure, a claim already ascertained definitively in the cognition phase – denounces an overall vulnus and, as an interpretative assumption of the question, starts from the consideration that the possibility of obtaining satisfaction of the claim would be, on the one hand, precluded in the ordinary seat of forced expropriation, given the provisions of Article 55 of the Anti-Mafia Code, according to which, following the seizure (and even more so after the subsequent confiscation), execution actions cannot be initiated or continued and, on the other, would instead be recognized – but in terms deemed inadequate – in the special liquidation procedure provided for by Article 61 of the Anti-Mafia Code following the finality of the prevention confiscation.

5.– In reality, under this latter profile, it is the case that for pre-deductible claims – such as, in general, those arising in connection with or in function of the prevention procedure, therefore not before the seizure order – the Code of Anti-Mafia Laws contemplates (Article 54) a more rapid protection, distinct and separate, with respect to that of other claims, prior to the seizure. This is first of all by excluding that the former, unlike the latter, must be verified according to the methods and the ascertainment procedure provided for by Articles 57, 58 and 59 of the Anti-Mafia Code. When they are liquid, due and not disputed, or ascertained definitively in the cognition phase, these claims (the pre-deductible ones) can be satisfied, in whole or in part, outside the distribution plan in which the non-pre-deductible claims converge, subject to the ascertainment procedure, and therefore even before the drafting of the same plan, provided that the assets are sufficient and that the payment does not compromise the management and in any case with the prior authorization of the judge delegated to the prevention procedure, called to verify that it is actually a pre-deductible claim and that the conditions for immediate payment exist. If, however – Article 54 continues, in paragraph 2 – the confiscation concerns assets organized in a company and the court has authorized the continuation of the activity, the distribution takes place through the withdrawal of available sums according to criteria of ranking and proportionality, in accordance with the order assigned by law.

On the other hand, after the irrevocability of the confiscation order, these claims, if not already satisfied before, precede all the others in the project (and in the subsequent plan) of payment drawn up by the Agency (Article 61 of the Anti-Mafia Code).

In either event, the creditor of a pre-deductible claim, whose immediate payment has not been authorized by the judge delegated to the prevention procedure or that has not been included, with due priority, in the debt payment plan, can complain about this by filing an objection with the judge.

In one case, already after the prevention seizure, it is possible to appeal to the court that applied the prevention measure, by means of the objection generally provided for by Article 59, paragraph 6, in favor of the «excluded creditors» and such must also be considered the creditor in pre-deduction not admitted to early payment (in this sense, already Court of Cassation, Fifth Criminal Section, judgment 23 January-26 February 2019, no. 8441); in the other case, after the finality of the confiscation and the communication of the payment plan drawn up by the Agency, it is possible to appeal to the civil section of the Court of Appeal of the district of the specialized section or of the criminal judge competent to adopt the confiscation order (pursuant to Article 61, paragraph 7).

The judicialization of this phase now results from the case law (Court of Cassation, United Civil Sections, judgment 22 April 2022, no. 12871), which has clarified that the Agency operates, in the phases of liquidation of assets and payment of sums in favor of creditors, in the capacity of assistant to the judicial authority and therefore under the control of the latter.

However, in the case under examination, the consideration that this articulated protection concerns the liquidation of claims in the prevention procedure is decisive and, whatever its intensity, it does not project onto the judgment of objection to the execution, in the sense that the judge of this judgment is not called to apply the discipline of the prevention procedure, nor even less Article 61. It follows that this provision is not relevant in the proceedings a quo, initiated by the referring party, precisely as the judge of the objection to the execution in an ordinary expropriation procedure from third parties.

Therefore, the doubt of constitutional legitimacy, expressed by the referring judge in the part in which he censures the aforementioned Article 61, is not relevant and the relative question is inadmissible.

6.– Equally inadmissible – but for insufficient motivation of the order of reference with regard to the non-manifest unfoundedness of the doubt of constitutional legitimacy – is the question in the part in which it concerns Article 55.

7.– Indeed, the premise of relevance exists because in the judgment of objection to the execution there is a dispute precisely regarding the application of Article 55, which – as already mentioned – provides that, following the prevention seizure, execution actions cannot be initiated or continued.

The opposing debtor invokes this provision to support the non-seizability of his claim against the third party (in this case, a credit company), which has already acknowledged its debt by virtue of a current account relationship maintained with the defendant.

The referring judge correctly considers that it is not a case of non-seizability, but rather of inadmissibility of the execution action, which cannot be initiated, nor continued, after the prevention seizure.

A similar preclusion is provided for by Article 150 of Legislative Decree No. 14 of 12 January 2019 (Code of Business Crisis and Insolvency in implementation of Law No. 155 of 19 October 2017), which prescribes that, from the day of the declaration of opening of the judicial liquidation, no individual enforcement or precautionary action, even for claims accrued during the judicial liquidation, may be initiated or continued on the assets included in the procedure. The same provision, with reference to bankruptcy, was previously contained in Article 51 of Royal Decree No. 267 of 16 March 1942 (Regulation of bankruptcy, preventive agreement, controlled administration and compulsory administrative liquidation).

These are symmetrical provisions, to which, in reality, a different ratio and also a distinct foundation is underlying, relevant in order to evaluate the justification, with respect to the guarantee recognized by Article 24 of the Constitution, of the temporary preclusion of ordinary judicial protection in executivis.

The impossibility of initiating (or continuing) an ordinary enforcement action after the declaration of opening of the judicial liquidation or bankruptcy responds to the obvious need to preserve the par condicio creditorum in a situation of insolvency that makes the satisfaction of all debts uncertain.

Instead, the prevention procedure does not presuppose any situation of insolvency of the defendant, but rather his dangerousness, so there is the different need to verify whether, for the claims involved in the prevention procedure (essentially those prior to the seizure), the conditions referred to in Article 52 of the Anti-Mafia Code exist so that the confiscation does not prejudice them and, therefore, they can be satisfied. In particular, it must be a matter of claims that are not instrumental to the illicit activity and characterized by good faith and unaware reliance of the creditors themselves.

In this case, the concourse character of the liquidation of these claims, subjected to a verification procedure, also attracts the pre-deductible claims, arising after the prevention seizure, the payment of which must nevertheless take place in the context of the liquidation of claims in the prevention procedure, both immediately outside the distribution plan (Article 54), and after the finality of the confiscation by means of inclusion in the payment plan (Article 61).

As a result of this, the censured Article 55 establishes the prescription under examination, which excludes that execution actions can be initiated or continued after the prevention seizure; this provision is therefore applicable in the proceedings a quo, unlike the (likewise censured) Article 61, thus, the admissibility of the question under this profile existing.

8.– The question, in the part in which it concerns Article 55, is no less inadmissible for insufficient motivation regarding the non-manifest unfoundedness of the doubt of constitutional legitimacy.

The referring judge, on the one hand, limits himself to recalling the principle, repeatedly enunciated by this Court, according to which the guarantee of judicial protection, established by Article 24 of the Constitution, is not exhausted with the cognition by the judge, but also includes forced execution (ex plurimis, judgment no. 140 of 2022).

Also recently (judgment no. 159 of 2023) it was reiterated that «the guarantee of judicial protection of rights ensured by Article 24 of the Constitution also includes the phase of forced execution, as it is necessary to make the implementation of the judicial provision effective (judgments no. 140 of 2022, no. 128 of 2021, no. 522 of 2002 and no. 321 of 1998); and this is all the more true when a fundamental right (Article 2 of the Constitution) is violated».

On the other hand, the referring party directs his censure by requesting, as petitum, an additive pronouncement of this Court on Article 61, which concerns the liquidation of claims in the prevention procedure, considering that the reductio ad legitimitatem can take place by intervening on the discipline of the liquidation procedure in the prevention procedure and not on that of the forced expropriation procedure in progress. In fact, the referring party – as already mentioned – concludes by requesting the declaration of constitutional illegitimacy of the challenged provisions «in the part where Article 61 does not provide that creditors included in the statement of liabilities and holders of pre-deductible claims who are not, can appeal to the Judicial Authority identified in paragraph 7 with appeal ex Article 702 bis of the Code of Civil Procedure, to obtain inclusion in the payment plan and the effective fulfillment of the plan».

È true that – as stated by this Court (most recently, judgment no. 221 of 2023) – «[i]n the incidental judgment of constitutional legitimacy, the petitum of the order of reference has the function of clarifying the content and the direction of the censures made by the referring judge», so that the Court «remains free to identify the most suitable pronouncement for the reductio ad legitimitatem of the challenged provision, not being bound to the formulation of the petitum of the order of reference in compliance with the evoked parameters».

However, the referring party does not develop his censure by focusing it on the forced expropriation procedure in progress, which is the one object of his cognition of the action of objection to the execution, but deviates towards the liquidation procedure in the prevention confiscation, which is not relevant in the main proceedings, whatever the specificity of the protection of pre-deductible claims in the latter.

This results in motivation, insufficient and perplexed, of the order of reference regarding the premise of the non-manifest unfoundedness of the doubt of constitutional legitimacy. And indeed, this Court has considered the inadmissibility of questions raised with orders whose argumentative modalities betray an uncertainty and contradictoriness of the petitum that does not allow to clearly outline the content of the censures (judgments no. 248 and no. 118 of 2022; no. 123 of 2021).

9.– In conclusion, also the questions of constitutional legitimacy of Articles 55 and 61 of the Anti-Mafia Code, raised with reference to Article 24 of the Constitution, must be declared inadmissible.

For These Reasons

THE CONSTITUTIONAL COURT

Declares inadmissible the questions of constitutional legitimacy of Articles 55 and 61 of Legislative Decree No. 159 of 6 September 2011 (Code of Anti-Mafia Laws and Prevention Measures, as well as new provisions regarding anti-mafia documentation, pursuant to Articles 1 and 2 of Law No. 136 of 13 August 2010) raised, with reference to Articles 24 and 102 of the Constitution, by the Judge of the Movable Property Execution of the Ordinary Court of Palermo, Sixth Civil Division, with the order indicated in the epigraph.

Thus decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 11 January 2024.

Signed:

Augusto Antonio BARBERA, President

Giovanni AMOROSO, Drafter

Valeria EMMA, Registrar

Filed in the Registry on 8 February 2024