JUDGMENT NO. 23

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 issued the following

JUDGMENT

in the proceedings concerning the constitutional legitimacy of Article 17, paragraph 4, of Legislative Decree No. 274 of 28 August 2000 (Provisions on the criminal jurisdiction of the Justice of the Peace, pursuant to Article 14 of Law No. 468 of 24 November 1999), initiated by the Justice of the Peace of Bari in the criminal proceedings against I.F.A. L., by order of 25 September 2019, registered under No. 32 of the 2023 register of orders and published in the Official Gazette of the Republic No. 13, first special series, of the year 2023, the hearing of which was scheduled for the deliberation in the council chamber on 9 January 2024.

Heard in the council chamber of 10 January 2024 the Reporting Judge Franco Modugno;

Deliberated in the council chamber of 10 January 2024.

Facts of the Case

1.– By order of 25 September 2019, filed in the registry on 8 March 2023 and registered under No. 32 of the 2023 register of orders, the Justice of the Peace of Bari has raised, with reference to Articles 3, 24, and 111 of the Constitution, questions of constitutional legitimacy of Article 17, paragraph 4, of Legislative Decree No. 274 of 28 August 2000 (Provisions on the criminal jurisdiction of the Justice of the Peace, pursuant to Article 14 of Law No. 468 of 24 November 1999), insofar as it does not provide that, in proceedings before the Justice of the Peace, the opposition of the injured party to the request for dismissal be dealt with in a closed-door hearing, with the presence of the counsel for the person under investigation, or that the latter be at least informed in order to guarantee the adversarial process, also through written submissions.

2.– The referring judge, having stated that he is seized of criminal proceedings against a person accused of the offense under Article 582 of the Criminal Code, reports that, during the final discussion, the counsel for the defense raised the issue of the constitutional illegitimacy of the aforementioned Article 17, paragraph 4, of Legislative Decree No. 274 of 2000, on the grounds indicated.

The referring judge considers the doubts of constitutional legitimacy raised by the defense counsel not manifestly unfounded, noting that, in proceedings before the Justice of the Peace, Article 17 of Legislative Decree No. 274 of 2000 allows only the injured party to oppose the request for dismissal to solicit further investigations or the formulation of the so-called mandatory indictment, while the suspect - not informed of such initiative - would not be guaranteed any possibility to interject, presenting defenses and offering points for further investigation in support of the request itself.

Such a regime would be "asymmetrical" compared to that operating in the proceedings for offenses within the jurisdiction of the Tribunal, with regard to which Article 409, paragraph 2, of the Code of Criminal Procedure establishes that "[i]f it does not accept the request, the judge, within three months, sets the date of the hearing in the council chamber and gives notice to the public prosecutor, the person under investigation, and the injured party". In the ordinary proceedings, moreover, the public prosecutor, when he concludes the preliminary investigations and does not intend to request dismissal, must notify the suspect of the notice referred to in Article 415-bis of the Code of Criminal Procedure, thus guaranteeing the right to an adversarial procedure.

In essence, therefore, while in the proceedings for offenses deemed more serious, assigned to the Tribunal, the legislator would have fully respected the principles of equality of the parties in the adversarial process and in the formation of evidence (Article 111 of the Constitution) and the inviolability of the right of defense at every stage and level of the proceedings (Article 24 of the Constitution), in the proceedings for offenses within the jurisdiction of the Justice of the Peace, considered less serious, the legislator would have deemed "to weaken the concrete respect of such constitutional canons". In the latter procedure, the suspect becomes aware of any opposition to the request for dismissal only if the judge orders a mandatory indictment, with the consequent issue of the summons to appear in court by the public prosecutor. The suspect would therefore not be placed in a position to offer, from the preliminary investigation stage, possible elements of exculpation suitable to support the dismissal.

In the opinion of the referring judge, the legislative choice could not be justified by the objectives of speed and simplification which - as emerges from the government report to Legislative Decree No. 274 of 2000 - characterize the regulation of the proceedings before the Justice of the Peace. The possibility of variously modulating the participation of the suspect in the preliminary investigation phase could not, in any case, result in a compression of the principles set by the aforementioned Articles 24 and 111 of the Constitution, to which characteristics of non-derogability and "absolute preeminence" should be recognized. Moreover, the challenged provision would not even be suitable for achieving the aforementioned objectives of speed and simplification, given that it prevents the judge from knowing and appreciating elements that could, hypothetically, avoid the initiation of an unnecessary criminal trial.

From this perspective, the unequal treatment of the suspect, depending on whether proceedings are for offenses within the jurisdiction of the Tribunal or the Justice of the Peace, induced by the challenged provision, would also prove to be detrimental to the principle of "formal and substantive" equality (Article 3 of the Constitution), as it does not respect the canon of reasonableness.

3.– The questions would also be "relevant for the purposes of the decision", since, in the proceedings a quo, the hypothesis of mandatory indictment had indeed occurred following opposition to the request for dismissal by the injured party: so that "the participation of the accused in the preliminary investigation phase [...] could have provided further elements allowing the Justice of the Peace acting as G.I.P. to fully assess the hypothesis of dismissal, thus being able to avoid criminal proceedings where devoid of sufficient elements for the continuation".

The relevance - according to the referring judge - would also result "from the non-manifest ungroundedness" of the questions.

Reasoning in Law

1.– By the order indicated in the heading (reg. ord. no. 32 of 2023), the Justice of the Peace of Bari raised questions of constitutional legitimacy of Article 17, paragraph 4, of Legislative Decree No. 274 of 2000, insofar as it does not provide that, in proceedings before the Justice of the Peace, the opposition of the injured party to the request for dismissal be dealt with in a closed-door hearing, with the presence of the counsel for the person under investigation, or that the latter be at least informed in order to guarantee the adversarial process, also through written submissions.

The referring judge notes that, in the proceedings for offenses within the jurisdiction of the Tribunal, Article 409, paragraph 2, of the Code of Criminal Procedure establishes that, in the event of opposition by the injured party to the request for dismissal, a hearing in the council chamber must be set, in which the counsel for the suspect participates, at the end of which the judge for preliminary investigations decides whether or not to dismiss the proceedings. This is not provided for, however, by the challenged provision, in relation to the proceedings that take place before the Justice of the Peace, with the consequence that, in it, the suspect is not put in a position to counter the initiative of the injured party, presenting defenses and adducing elements in support of the request for dismissal.

The referring judge sees in this the violation of the principles of equality and reasonableness (Article 3), of inviolability of the right of defense (Article 24 of the Constitution), and of equality of the parties in the adversarial process and in the formation of evidence (Article 111 of the Constitution). The noted "asymmetry" could not, in fact, be justified by the needs for speed and simplification that characterize the proceedings before the Justice of the Peace, which would not allow the compression of the constitutional principles evoked. The challenged provision, moreover, would not even be suitable for achieving the aims of speed pursued by the legislator, since it would prevent the judge from taking into account elements that could avoid the start of an unnecessary trial.

2.– The questions are inadmissible.

2.1.– The referring judge - seized of the criminal proceedings against a person accused of the offense of personal injury - deduces the relevance of the questions from the mere fact that, in the proceedings a quo, the hypothesis of the so-called mandatory indictment had occurred, ordered by the Justice of the Peace acting as judge for the preliminary investigations following the opposition to the request for dismissal by the injured party, without the suspect being put in a position to formulate his defenses. According to the referring judge, the relevance would also result "from the non-manifest ungroundedness" of the questions.

2.2.– Beyond the latter statement - which improperly overlaps two scrutiny profiles that are autonomous from each other - it should be noted, with regard to the former, that the provision object of the questions of legitimacy pertains to a phase of the proceedings (the preliminary investigations) prior to and distinct from that of which the referring judge is seized. It concerns a phase that is now concluded, in which the provision itself has already been applied by the Justice of the Peace invested with the functions of GIP.

In the order of reference, the referring judge does not indicate in relation to which event proper to the trial phase he must, in turn, apply the challenged provision and in what way the additive ruling requested is susceptible to affect the conduct of this phase. This prevents this Court from verifying for which aspect the resolution of the question may have concrete relevance in relation to the phase in which the proceedings a quo are, even in the sole terms, proper to this verification, of an "external" control on the "non-implausibility" of the reasoning offered by the referring judge in this regard.

3.– In light of the foregoing, the questions must therefore be declared inadmissible due to a lack of adequate reasoning on relevance.

For These Reasons

THE CONSTITUTIONAL COURT

Declares the inadmissibility of the questions of constitutional legitimacy of Article 17, paragraph 4, of Legislative Decree No. 274 of 28 August 2000 (Provisions on the criminal jurisdiction of the Justice of the Peace, pursuant to Article 14 of Law No. 468 of 24 November 1999), raised, with reference to Articles 3, 24, and 111 of the Constitution, by the Justice of the Peace of Bari by the order indicated in the heading.

Thus decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 10 January 2024.

Signed:

Augusto Antonio BARBERA, President

Franco MODUGNO, Reporting Judge

Igor DI BERNARDINI, Registrar

Filed in the Registry on 23 February 2024