ORDER NO. 24
YEAR 2024
ITALIAN REPUBLIC
IN THE NAME OF THE ITALIAN PEOPLE
THE CONSTITUTIONAL COURT
composed of:
President: Augusto Antonio BARBERA;
Justices: Franco MODUGNO, 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 judgment concerning the constitutional legitimacy of Article 18-bis of Law No. 69 of April 22, 2005 (Provisions to align domestic law with Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States), as replaced by Article 15, paragraph 1, of Legislative Decree No. 10 of February 2, 2021 (Provisions for the full adaptation of national legislation to the provisions of Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between Member States, in implementation of the delegation referred to in Article 6 of Law No. 117 of October 4, 2019), initiated by the Court of Appeal of Naples, Fourth Criminal Division, in the proceedings against A.H., with order of January 19, 2023, registered under No. 109 of the 2023 register of orders and published in the Official Gazette of the Republic No. 36, first special series, of the year 2023.
Heard in the deliberation chamber of February 6, 2024, Justice Rapporteur Francesco Viganò;
Deliberated in the deliberation chamber of February 6, 2024.
Considered that, by order of January 19, 2023, the Court of Appeal of Naples, Fourth Criminal Division, raised – in reference to Articles 2, 3, 27, third paragraph, 117, first paragraph (the latter in relation to Articles 8 of the European Convention on Human Rights and 17, paragraph 1, of the International Covenant on Civil and Political Rights), as well as 11 and 117, first paragraph, of the Constitution (in relation to Articles 4, point 6, and 1, paragraph 3, of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, Articles 2 and 6 of the Treaty on European Union, and Articles 7 and 20 of the Charter of Fundamental Rights of the European Union) – questions of constitutional legitimacy of Article 18-bis of Law No. 69 of April 22, 2005 (Provisions to align domestic law with Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States), as replaced by Article 15, paragraph 1, of Legislative Decree No. 10 of February 2, 2021 (Provisions for the full adaptation of national legislation to the provisions of Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between Member States, in implementation of the delegation referred to in Article 6 of Law No. 117 of October 4, 2019);
that the provision is challenged «in the part where it does not provide for the optional refusal of the surrender of a citizen of a non-European Union Member State who legitimately and effectively resides or dwells in Italian territory for at least five years, provided that the Court of Appeal orders that the penalty or security measure imposed on them by the judicial authority of a European Union Member State be executed in Italy in accordance with its domestic law»;
that the main proceedings concern the execution of a European arrest warrant, issued by the French judicial authority against A. H., a Moroccan citizen who has been stably rooted in Italy from a working and social point of view for more than five years, for the execution of the two-year prison sentence, imposed on the person concerned on June 25, 2021 by the Court of Montpellier for the crimes of receiving stolen goods and criminal association aimed at the theft of solar panels;
that, in the opinion of the referring court, the challenged Article 18-bis, paragraph 2, of Law No. 69 of 2005 would infringe Article 27, third paragraph, of the Constitution, since the unjustified exclusion of the citizen of a third State from the possibility of serving the sentence in the State in which they have been stably rooted for at least five years would be contrary to the principle of re-education, of which the aim of the social reintegration of the convicted person constitutes a corollary;
that Article 3 of the Constitution would also be violated, since such exclusion would result in an unjustified disparity of treatment between Italian or European Union Member State citizens on the one hand, and citizens of third States on the other; moreover, it would be flawed by unreasonableness, since the objective of resocialization would be the same for any person stably rooted in the territory of the State, regardless of their citizenship;
that the challenged Article 18-bis would then be contrary to Articles 2 and 117, first paragraph, of the Constitution, the latter in relation to Article 8 ECHR and Article 17, paragraph 1, ICCPR, as well as to Articles 11 and 117, first paragraph, of the Constitution, in relation to Article 7 CFREU, as the omission of the optional refusal of the surrender of the citizen of a third State stably residing or dwelling in Italian territory for at least five years would infringe their right to respect for private and family life;
that Articles 11 and 117, first paragraph, of the Constitution would, finally, be violated, in relation to Article 4, point 6, of Framework Decision 2002/584/JHA, given that the transposition of the ground for refusal of the surrender of the convicted person, provided therein, while falling within the discretion of the Member States, could not, pursuant to Article 1, paragraph 3, of the same Framework Decision, take place in a way that entails a violation of the fundamental rights or principles contemplated by Article 6 TEU and by the Charter of Fundamental Rights of the European Union, including in particular the principle of equality (Articles 2 TEU and 20 CFREU) and the right to respect for private and family life (Article 7 CFREU);
that the President of the Council of Ministers did not intervene in the proceedings.
Considered preliminarily that the questions, although involving the entire Article 18-bis of Law No. 69 of 2005 (in the wording introduced by Legislative Decree No. 10 of 2021), must be considered as referring only to paragraph 2 of the provision, which specifically regulates the grounds for optional refusal of surrender in the case of a European arrest warrant aimed at the execution of a custodial sentence or security measure;
that with judgment No. 178 of 2023, subsequent to the referring order now under examination, this Court declared the constitutional illegitimacy – for conflict with Articles 11 and 117, first paragraph, in relation to Article 4, point 6, of Framework Decision 2002/584/JHA, as well as with Article 27, third paragraph, of the Constitution – of Article 18-bis, paragraph 1, letter c), of Law No. 69 of 2005 (in the version introduced by Article 6, paragraph 5, letter b, of Law No. 117 of October 4, 2019, containing «Delegation to the Government for the transposition of European directives and the implementation of other acts of the European Union - European Delegation Law 2018»), in the part where it did not provide that the Court of Appeal may refuse the surrender of a wanted person who is a citizen of a third State, who legitimately and effectively resides or dwells in Italian territory and is sufficiently integrated in Italy, in the meanings specified in the grounds, provided that the Court of Appeal orders that the penalty or security measure be executed in Italy;
that, in the same judgment, this Court declared, consequentially, pursuant to Article 27 of Law No. 87 of March 11, 1953 (Rules on the establishment and functioning of the Constitutional Court), the constitutional illegitimacy of Article 18-bis, paragraph 2, of Law No. 69 of 2005, in the wording introduced by Article 15, paragraph 1, of Legislative Decree No. 10 of 2021 and challenged by the present referring court, in the part where it did not provide that the Court of Appeal may refuse the surrender of a wanted person who is a citizen of a third State, who legitimately and effectively resides or dwells in Italian territory for at least five years and is sufficiently integrated in Italy, in the meanings specified in the grounds, provided that the Court of Appeal orders that the penalty or security measure be executed in Italy;
that, moreover, after judgment No. 178 of 2023, during the conversion of Decree-Law No. 69 of June 13, 2023, containing «Urgent provisions for the implementation of obligations arising from acts of the European Union and from infringement and pre-infringement procedures pending against the Italian State», Law No. 103 of August 10, 2023, added to this normative text an Article 18-bis, which in paragraph 1, letter a), number 1), amends Article 18-bis, paragraph 2, of Law No. 69 of 2005, providing for the possibility of refusing «the surrender of the Italian citizen or of a person who legitimately and effectively resides or dwells continuously for at least five years on Italian territory», and thus including citizens of third countries in the scope of the provision;
that, therefore, the questions now under examination must be declared manifestly inadmissible because they are now devoid of object (ex plurimis, orders No. 87 and No. 78 of 2023, No. 226, No. 206, No. 204, No. 172 and No. 102 of 2022).
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 Article 18-bis of Law No. 69 of April 22, 2005 (Provisions to align domestic law with Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States), as replaced by Article 15, paragraph 1, of Legislative Decree No. 10 of February 2, 2021 (Provisions for the full adaptation of national legislation to the provisions of Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between Member States, in implementation of the delegation referred to in Article 6 of Law No. 117 of October 4, 2019), raised – in reference to Articles 2, 3, 27, third paragraph, 117, first paragraph (the latter in relation to Articles 8 of the European Convention on Human Rights and 17, paragraph 1, of the International Covenant on Civil and Political Rights), as well as 11 and 117, first paragraph, of the Constitution (in relation to Articles 4, point 6, and 1, paragraph 3, of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, Articles 2 and 6 of the Treaty on European Union, and Articles 7 and 20 of the Charter of Fundamental Rights of the European Union) – by the Court of Appeal of Naples, Fourth Criminal Division, with the order indicated in the epigraph.
Thus decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on February 6, 2024.
Signed:
Augusto Antonio BARBERA, President
Francesco VIGANÒ, Drafter
Igor DI BERNARDINI, Registrar
Filed in the Registry on February 23, 2024