ORDER No. 14
YEAR 2024
ITALIAN REPUBLIC
IN THE NAME OF THE ITALIAN PEOPLE
THE CONSTITUTIONAL COURT
composed of:
President: Augusto Antonio BARBERA
Justices: 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 pronounced the following
ORDER
in the proceedings concerning the constitutional legitimacy of Article 656, paragraph 9, letter a), of the Code of Criminal Procedure, initiated by the Ordinary Court of Catania, First Criminal Section, in the criminal proceedings against A. N., with order of 4 August 2017, registered under No. 132 of the register of orders 2023 and published in the Official Gazette of the Republic No. 41, first special series, of the year 2023, the hearing of which was scheduled for the session in the council chamber of 23 January 2024.
Having seen the instrument of intervention by the President of the Council of Ministers;
Having heard in the council chamber of 24 January 2024, the Reporting Justice Francesco Viganò;
Deliberated in the council chamber of 24 January 2024.
Whereas, by order of 4 August 2017, received by this Court only on 13 September 2023, the Ordinary Court of Catania, First Criminal Section, raised – with reference to Articles 3 and 27, third paragraph, of the Constitution – questions of constitutional legitimacy of Article 656, paragraph 9, letter a), of the Code of Criminal Procedure, insofar as it establishes that the suspension of the execution of the sentence cannot be ordered against those convicted of the crime of burglary referred to in Article 624-bis of the Criminal Code;
Whereas the referring court states that it is called upon to rule in the context of an enforcement incident promoted by A. N. to obtain the suspension of the execution order issued against him on 12 May 2017, relating to a conviction sentence, at the conclusion of an abbreviated trial, to a penalty of two years' imprisonment and three hundred euros fine for the crime of burglary referred to in Article 624-bis of the Criminal Code, which became final on 3 April 2017;
Whereas such a request should be rejected, pursuant to the challenged provision;
Whereas, however, the court a quo doubts the constitutional legitimacy of this provision, suspecting its conflict with the principle of reasonableness under Article 3 of the Constitution, as well as with the principle of the re-educative purpose of the sentence under Article 27, third paragraph, of the Constitution;
Whereas, according to the referring court, the prohibition to suspend the execution order against those convicted of the crime of burglary, provided for in the first paragraph of Article 624-bis of the Criminal Code, would produce an unjustifiable disparity in the penal treatment – resulting from the different methods of execution of the sentence – compared to the more serious crime of robbery, in relation to which such suspension is instead permitted;
Whereas, in fact, in this way, the former crime, characterised by "a purely patrimonial aggression", would be reserved a treatment of more intense afflictive severity than the latter, in which there is also an "aggression perpetrated against the personal safety of the individual";
Whereas, on the other hand, the prohibition of suspending the execution of a short prison sentence, applied indiscriminately to those convicted of burglary, imposing their entry into prison without any consideration for the specific needs of the individual convicted, would introduce, according to the court a quo, an automatism incompatible with the need for flexible and individualised assessments, aimed at pursuing, through the rehabilitation of the offender, the re-educative purpose of the sentence, thus conflicting with Article 27, third paragraph, of the Constitution;
Whereas the President of the Council of Ministers has intervened in the proceedings, represented and defended by the State Attorney General's Office, which has requested that the questions raised be declared manifestly unfounded;
Whereas, in fact, according to the intervener, the choice made by the legislator would be considered and free from unreasonableness and, therefore, fully respectful of Article 3 of the Constitution, since burglary, in terms of seriousness, would be rather comparable to aggravated robbery ex Article 628, third paragraph, number 3-bis), of the Criminal Code, a crime for which, not coincidentally, the prohibition to suspend the execution order applies;
Whereas, in particular, underlying this legislative choice would be the consideration that "the subjective dangerousness demonstrated by the perpetrator" of the crime of burglary "emerges from the violation of another's domicile";
Whereas, according to the intervener, the challenged provision does not at all exclude "an individualised assessment of the accused in relation to the possibility of granting him the benefits provided for by the penitentiary system", this being "deferred to the Supervisory Court during the examination of the request for the granting of benefits, which the convicted person can still submit once the sentence concerning him has become final", thus not compromising in any way the pursuit of the re-educative purpose of the sentence provided for by Article 27, third paragraph, of the Constitution.
Considered that this Court has deemed identical questions unfounded with judgment no. 216 of 2019, and then manifestly unfounded with order no. 67 of 2020;
Whereas, with the aforementioned decisions, the alleged flaw of unreasonableness of the challenged provision was first of all excluded, which "finds [...] its ratio in the discretionary, and not unreasonable, presumption of the legislator relating to the particular seriousness of the act of those who, to commit the theft, enter another's dwelling, or other place of private residence or its appurtenances, and the special subjective dangerousness demonstrated by the perpetrator of such a crime";
Whereas the particular seriousness of the act and the special subjective dangerousness of its perpetrator, demonstrated by the unauthorised entry into the aforementioned places in order to commit a theft there, are not diminished by the sole fact that the perpetrator has not used violence against anyone;
Whereas in judgment no. 216 of 2019, and then in order no. 67 of 2020, it was also denied that the challenged provision gives rise to an unreasonable legislative automatism: "the legislator, in fact, has, with an assessment immune from censure at the constitutional level, considered that - regardless of the seriousness of the conduct carried out by the convicted person, and the amount of the penalty imposed on him - the individual dangerousness highlighted by the violation of another's domicile represents a sufficient reason to generally deny those convicted of the crime in question the benefit of the suspension of the order of imprisonment, pending the case-by-case assessment, by the supervisory court, of the possibility of granting the individual convicted person the benefits compatible with his criminal offence and the duration of his sentence";
Whereas, finally, in these decisions, it was considered that there was no conflict with the principle of the re-educative purpose of the sentence under Article 27, third paragraph, of the Constitution, since the individualised assessment with regard to the possible granting of penitentiary benefits remains always "deferred to the supervisory court during the examination of the request for the granting of benefits, which the convicted person can still submit once the sentence concerning him has become final";
Whereas, for all these reasons, the questions raised must be considered manifestly unfounded, without prejudice to the advisability - already pointed out in judgment no. 216 of 2019 (point 4 of Considered in Law) and reiterated in order no. 67 of 2020 - that the legislator intervenes to remedy the "inconsistency to which the lack of coordination currently existing between the procedural and substantive provisions relating to the prerequisites for accessing alternative measures to detention can give rise, in relation to the situation of convicts against whom the suspension of the order of imprisonment is not provided for pursuant to Article 656, paragraph 5, of the Code of Criminal Procedure, to whom - however - the current substantive provision recognises the possibility of accessing certain alternative measures from the beginning of the execution of the sentence": with the associated risk that the supervisory court's assessment of the request for the granting of benefits will intervene after the convicted person has fully or almost fully served his sentence.
Having seen Articles 26, second paragraph, of Law 11 March 1953, no. 87, and 11, paragraph 1, of the Supplementary Rules for proceedings before the Constitutional Court.
For These Reasons
THE CONSTITUTIONAL COURT
declares the manifest ungroundedness of the questions of constitutional legitimacy of Article 656, paragraph 9, letter a), of the Code of Criminal Procedure, raised, with reference to Articles 3 and 27, third paragraph, of the Constitution, by the Ordinary Court of Catania, First Criminal Section, with the order indicated in the headnote.
Thus decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 24 January 2024.
Signed:
Augusto Antonio BARBERA, President
Francesco VIGANÒ, Reporting Justice
Igor DI BERNARDINI, Registrar
Lodged in the Registry on 9 February 2024