JUDGMENT No. 25
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 pronounced the following
JUDGMENT
in the constitutional legitimacy proceedings concerning Article 95 of Legislative Decree No. 150 of 10 October 2022 (Implementation of Law No. 134 of 27 September 2021, containing delegation to the Government for the efficiency of criminal proceedings, as well as on restorative justice and provisions for the swift resolution of judicial proceedings), initiated by the Ordinary Court of Marsala, Criminal Division, in the proceedings against A. D.V., by order of 27 June 2023, registered under No. 107 of the register of orders 2023 and published in the Official Gazette of the Republic No. 35, first special series, of the year 2023.
Having reviewed the act of constitution of A. D.V., as well as the act of intervention of the President of the Council of Ministers;
Having heard at the public hearing of 7 February 2024, the reporting Judge, Francesco Viganò;
Having heard Attorney Giacomo Frazzitta for A. D.V. and State Attorney Salvatore Faraci for the President of the Council of Ministers;
Deliberated in the council chamber of 7 February 2024.
Considered in fact
1.– By order of 27 June 2023, the Ordinary Court of Marsala, Criminal Division, raised questions of constitutional legitimacy, with reference to Articles 3, 24, and 27 of the Constitution, of Article 95 of Legislative Decree No. 150 of 10 October 2022 (Implementation of Law No. 134 of 27 September 2021, containing delegation to the Government for the efficiency of criminal proceedings, as well as on restorative justice and provisions for the swift resolution of judicial proceedings), insofar as it does not allow the submission to the enforcement judge, within thirty days of the judgment becoming final, of an application for the imposition of one of the alternative sanctions to short custodial sentences referred to in Article 20-bis of the Criminal Code "to those convicted to a custodial sentence not exceeding four years in respect of whom, at the time of entry into force of the aforementioned decree, the term for the filing of the judgment was pending before the Court of Appeal".
1.1.– The referring judge is seized, in his capacity as enforcement judge, by A. D.V., who was irrevocably sentenced to a term of one year and five months of imprisonment and requests the substitution of that sentence, which was not conditionally suspended, with one of the short custodial sentences provided for by Article 20-bis of the Criminal Code.
More specifically, the referring judge reports:
– that the judgment had been pronounced in the first instance on 20 April 2022 by the Court of Marsala;
– that on 9 November 2022 the Court of Appeal of Palermo had fully confirmed the first instance judgment, setting a ninety-day deadline for the filing of the judgment;
– that, earlier than that deadline, the appeal judgment had been filed on 13 December 2022;
– that Legislative Decree No. 150 of 2022 had entered into force on 30 December 2022;
– that on 21 January 2023 the convicted person's counsel had submitted an application to the Court of Appeal requesting the substitution of the measure of pre-trial detention with one of the alternative sanctions provided for by the new Article 20-bis of the Criminal Code;
– that on 13 February 2023 the Court of Appeal of Palermo had declared that application inadmissible, on the basis of the observation that the appeal proceedings had already concluded prior to the entry into force of the reform;
– that on 25 March 2023 the first instance judgment, fully confirmed on appeal, had become irrevocable, no appeal to the Supreme Court having been lodged;
– that "[w]ithin thirty days of the aforementioned judgment of the Court of Marsala becoming final (specifically, on 2 May 2023)" the convicted person's counsel had submitted an application to the same judge a quo, in his capacity as enforcement judge, for the imposition of an alternative sanction, and then requested – at the hearing in chambers of 15 June 2023 – that a question of the constitutional legitimacy of the transitional regime referred to in Article 95 of Legislative Decree 150 of 2022, be raised.
1.2.– Having emphasized his status as a "judge" for the purposes of proposing the incident of constitutional legitimacy, the referring judge observes that – by strictly applying the contested provision – he should arrive at a declaration of inadmissibility of the application.
Article 95 of Legislative Decree No. 150 of 2022 provides, in fact, a differentiated regime, in particular, for proceedings pending on appeal and for those pending before the Supreme Court at the time of entry into force of the legislative decree itself. In the case at hand, however, the criminal proceedings against the convicted person would have been "only formally pending on appeal, since the appeal judge had already issued the ruling (on 9 November 2022) and even – ahead of schedule compared to the deadline for filing the judgment, set by the Court at ninety days – drafted the related reasoning (filed on 13 December 2022)"; so much so that the Court of Appeal had rejected the application for substitution of the sentence proposed by the appellant, precisely because it would have already relinquished its decision-making power with the pronouncement of the ruling. On the other hand, however, the appellant would not have been able to request the substitution of the sentence from the Supreme Court, as this possibility is not provided for by the contested provision. Nor, finally, could such a request now be made to the enforcement judge, "as the literal wording of the normative provision in question would prevent it".
Hence the relevance of the questions raised.
1.3.– As to the non-manifest groundlessness of the same, the referring judge believes that the contested provision first of all violates the principle of reasonableness referred to in Article 3 of the Constitution, since – as a result of "an obvious unintentional normative gap" – it would preclude the application of alternative sanctions to defendants in criminal proceedings in which, at the time of entry into force of the new legislation, the deadline for the filing of the second instance judgment by the Court of Appeal was pending. This is without any reasonable justification being identified for the difference in treatment compared to defendants whose proceedings were on that date actually pending in first and second instance or in cassation, all of whom would instead have access to the possibility of substitution of the sentence.
Such an unreasonable differentiation would, on the other hand, result in a violation of Article 24 of the Constitution. The contested provision would preclude only some defendants from the option of requesting the application of an alternative sanction from the enforcement judge, with an unreasonable impairment of their right to defence, which is inviolable at every stage and degree of the proceedings.
Finally, the rehabilitative purpose of the sentence referred to in Article 27 of the Constitution, which inspires the reform, would be undermined, since only some categories of convicted persons would be prevented from accessing a non-custodial sentence, which is the expression of a diversified, as well as more effective and timely, punitive response of the State.
1.4.– The legislative gap complained of would not, finally, be filled through interpretation, given the obstacle represented by the littera legis. On the other hand, considering that the legislation established for proceedings pending before the Supreme Court at the time of entry into force of the rule, is applicable in the proceedings a quo would result in an analogical interpretation of Article 95 of Legislative Decree No. 150 of 2022, which is precluded by Article 14 of the Pre-laws, given the nature of the contested provision as a "normative rule of an 'exceptional' nature (because of its 'intertemporal' nature)".
2.– The President of the Council of Ministers, represented and defended by the State Attorney General's Office, intervened in the proceedings, requesting that the questions be declared manifestly inadmissible, or in any case manifestly unfounded.
2.1.– The intervener first objects to the lack of relevance of the questions. The ruling requested from this Court, in fact, could not have any impact on the proceedings a quo, in which the application should, in any case, be rejected as untimely: indeed, it was submitted on 2 May 2023, and therefore after the deadline of thirty days from the judgment becoming final, as provided for under penalty of forfeiture by Article 95 of Legislative Decree No. 150 of 2022.
2.2.– The questions would, moreover, be manifestly unfounded, since the referring judge would not have correctly understood the scope of the contested rule, which would apply to "proceedings pending at all levels". The intervener emphasizes, on this point, the possibility for the party to challenge the appeal judgment by appeal to the Supreme Court "for any reason (e.g., the failure to grant conditional suspension of the sentence)", given that "the pendency of the litigation (even in the event of a declaration of inadmissibility of the appeal to the Supreme Court) would have allowed the convicted person to apply to the enforcement judge".
3.– The appellant in the proceedings a quo also appeared in the proceedings, concluding in favour of the acceptance of the questions raised.
The party textually observes that "[t]he deadline for proposing the application of the alternative sanctions referred to in Article 20bis of the Criminal Code to those convicted to a custodial sentence not exceeding four years within thirty days of the judgment becoming final, was therefore 24 March 2023, however, [D.V.] submitted an application through his trusted legal counsel on 2 May 2023 and the enforcement judge seized of the quaestio iuris set a hearing for 15 June 2023 and on that date considered the question of constitutional legitimacy to be founded".
The private party's defence also emphasizes that seizing the enforcement judge with the application for the imposition of the alternative sanction "in a different intertemporal phase" than that provided for by the contested provision would constitute the only procedural instrument that can be used to obtain the granting of the benefit.
Considered in law
1.– By the order indicated above, the Ordinary Court of Marsala, Criminal Division, raised questions of constitutional legitimacy, with reference to Articles 3, 24 and 27 of the Constitution, of Article 95 of Legislative Decree No. 150 of 2022, insofar as it does not allow the submission to the enforcement judge, within thirty days of the judgment becoming final, of an application for the imposition of one of the alternative sanctions to short custodial sentences referred to in Article 20-bis of the Criminal Code "to those convicted to a custodial sentence not exceeding four years in respect of whom, at the time of entry into force of the aforementioned decree, the term for the filing of the judgment was pending before the Court of Appeal".
The referring judge complains of an "unintentional gap" in the transitional regime established by Article 95 of Legislative Decree No. 150 of 2022, concerning the new alternative sanctions to short custodial sentences, now governed by Article 20-bis of the Criminal Code, introduced by Article 1 of the same Legislative Decree No. 150 of 2022.
Article 95(1) of that legislative decree stipulates, in the first sentence, that the rules relating to short custodial sentences shall also apply "to criminal proceedings pending in the first instance or on appeal at the time of entry into force of this decree". The second sentence then provides for a transitional regime for those convicted to a custodial sentence not exceeding four years whose criminal proceedings were "[p]ending before the Supreme Court at the time of entry into force of this decree", stipulating that – within thirty days of the date on which the conviction judgment becomes irrevocable – they could submit an application for the imposition of one of the alternative sanctions to the enforcement judge pursuant to Article 666 of the Code of Criminal Procedure.
According to the referring judge, in essence, the delegated legislator would have omitted to regulate the specific case in which the proceedings, on the date of entry into force of the decree, had already been defined by the Court of Appeal through the reading of the ruling, but could not yet be considered "pending before the Supreme Court", since the deadline for the filing of the appeal judgment had not yet expired.
Such an omitted provision would have deprived the convicted person who found himself in this situation, at the time of entry into force of the reform, of the possibility of obtaining the substitution of the custodial sentence imposed on him with one of the penalties provided for by the new Article 20-bis of the Criminal Code.
This would have violated:
– Article 3 of the Constitution, from the perspective of the unreasonable disparity of treatment compared to all those convicted expressly contemplated by the literal tenor of the transitional provision;
– Article 24 (recte: Article 24, second paragraph) of the Constitution, because the preclusion of access to alternative sanctions would have unreasonably curtailed the inviolable right of the interested party to defence; as well as
– Article 27 (recte: Article 27, third paragraph) of the Constitution, because such preclusion would be incompatible with the rehabilitative purpose of the sentence, which inspires the 2022 reform as a whole.
2.– The State Attorney General's Office preliminarily raises the objection of inadmissibility of the questions for lack of relevance.
2.1.– According to the intervener, the application initiating the main proceedings would have been submitted late with respect to the thirty-day deadline from the judgment of conviction becoming final, established by the contested provision. This would result in an obvious reason for the inadmissibility of the application itself, which should in any case be rejected for this reason by the judge a quo; this would deprive the questions raised of relevance.
2.2.– In this regard, it can only be agreed with the State Attorney General's Office that the application initiating the proceedings a quo appears ictu oculi to have been submitted after the deadline of thirty days from the date on which the judgment of conviction became final: the order for reference itself acknowledges, within a few lines, that the judgment became final on 25 March 2023, and that the application was submitted on 2 May 2023.
The consistent case law of this Court affirms, however, that the assessment of relevance only requires demonstration of the need, on the part of the referring judge, to apply the contested rule in the proceedings a quo, and does not require instead demonstration that the acceptance of the question is actually capable of affecting the outcome of the proceedings themselves. What is essential is, rather, the demonstration that a possible acceptance would affect at least the reasoning iter leading to the decision (ex multis, Judgments No. 88 and No. 19 of 2022 and No. 202 of 2021).
Now, the interpretative presupposition from which the present referring judge departs would lead him to reject the application in that the concrete case is not subsumable among those provided for by the abstract case. Where, on the other hand, the questions of constitutional legitimacy were accepted, by means of an additive ruling capable of also encompassing the case at hand, the application could no longer be rejected for this reason; and the different question would then arise as to whether the application is inadmissible or not in that it was submitted after the thirty-day deadline established generally by the contested provision.
In that scenario, the possible finding that the application initiating the proceedings a quo is late would therefore give rise to its rejection on the basis of a completely different reasoning iter: which is sufficient to guarantee the relevance of the questions raised.
The objection of inadmissibility must therefore be rejected.
3.– On the merits, however, the questions are unfounded.
3.1.– In the referring judge's interpretation, the contested provision would be affected by an unintentional gap, not having regulated the particular hypothesis in which the Court of Appeal – on the date of entry into force of Legislative Decree No. 150 of 2022 – had already defined the proceedings before it through the pronouncement of the ruling at the hearing, but the deadline for the filing of the reasoning was still pending. A hypothesis to which, moreover, could easily be added that in which the reasoning had been filed, but the deadline for appeal to the Supreme Court was still pending.
3.2.– Such an interpretation cannot, in itself, be considered implausible.
In both these cases, the proceedings could well be considered – from a literal point of view – still "pending on appeal", given that the related documents were still physically in the offices of the relevant Court of Appeal; but the provision of the first sentence of Article 95(1) of Legislative Decree No. 150 of 2022 would prove practically inapplicable for systemic reasons, since, according to the general principles of criminal proceedings, once the ruling is read at the hearing, the Court of Appeal no longer has any power to modify the ruling relating to the sentence, except for the case of the correction of a material error, which certainly does not occur here.
On the other hand, the regulation of the second sentence – which provides for the possibility for the convicted person to obtain the substitution of the sentence through an enforcement incident, once the conviction judgment has become irrevocable – is textually referred only to proceedings "[p]ending before the Supreme Court": an expression that, according to the literal meaning of the words, is not referable to proceedings that have not yet reached the Supreme Court, and whose documents were, at the time of entry into force of the reform, at the Court of Appeal that pronounced the judgment.
3.3.– If the interpretation adopted by the referring judge were the only possible interpretation of the contested rule, it would result – in effect – in obvious friction with the principle of equality, there being no justifying reason for the difference in treatment compared to the other hypotheses regulated therein, and in particular to that in which the proceedings were already pending before the Supreme Court.
The gap in the regulation would also be in contrast with the principle of retroactivity of the lex mitior, even though not invoked by the referring judge; a principle that the consistent case law of this Court refers to the area of protection of Articles 3 and 117, first paragraph, of the Constitution, the latter in relation to Article 7 of the European Convention on Human Rights (most recently, Judgments No. 198 of 2022, No. 238 of 2020 and No. 63 of 2019).
3.4.– Subsequent to the order for reference, the case law of the Supreme Court has, however, clarified that, for the purposes of the applicability of the transitional regime provided for by the contested provision, any proceedings that, on the date of entry into force of the reform, had been defined by the Court of Appeal by the pronouncement of the ruling, must be considered to be "[p]ending before the Supreme Court": and, therefore, also those proceedings in which the deadline set by the panel for the filing of the reasons is still pending (Supreme Court, Fourth Criminal Division, Judgment of 26 September-2 November 2023, No. 43975), or in which the deadline for the appeal to the Supreme Court is pending (Supreme Court, Fifth Criminal Division, Judgment of 28 June-8 September 2023, No. 37022 and Sixth Criminal Division, Judgment of 21 June-2 August 2023, No. 34091).
In these judgments, the Supreme Court proceeds from the observation that the Code of Procedure does not contain any rule that identifies the fact or procedural act that determines the "pendency" of the appeal proceedings. However, it values the precedent constituted by a judgment of the United Sections on the transitional regime established by Law No. 251 of 5 December 2005, containing "Amendments to the Criminal Code and to Law No. 354 of 26 July 1975, on general mitigating circumstances, recidivism, the assessment of the comparison of the circumstances of the offence for recidivists, usury and limitation", (so-called "ex Cirielli Law"), which, as a result of Judgment No. 393 of 2006, limited the retroactive application of the more favourable regime on limitation to proceedings pending in the first instance, thus excluding from its scope those pending on appeal or before the Supreme Court.
On that occasion, the United Sections had identified the procedural fact that determines pendency on appeal in the pronouncement of the ruling by the first instance judge: from that moment, in fact, the judge can no longer make further decisions on the accusation (with the exception of the residual competence in the matter of incidental precautionary proceedings). On the other hand, the pronouncement of the ruling is also the moment in which the appeal phase begins, regardless of whether the deadlines for proposing it are pending (Supreme Court, United Criminal Sections, Judgment of 29 October-10 December 2009, No. 47008).
The solution had then been reached on the basis of the argument that "the general and abstract notion of pendency of the proceedings or of pendency of the appeal proceedings must not so much be reconstructed, but rather the exact meaning that the normative locution assumes in the particular context in which it has been introduced, considering the interests pursued and the conditions for which the exclusion of retroactivity proves compatible with the fundamental law. Nor could a dogmatic reference to the textual data be beneficial, given that the concept of pendency has not been defined in our criminal-procedural system, which allows it to be adapted to the characteristics and purpose of the situations in which it is intended to have an impact".
The same argumentative framework has now been adopted by the Supreme Court also with regard to the transitional regime under examination, whose obvious ratio is that of guaranteeing all defendants whose proceedings are still pending the possibility of a "recovery" of the possibility of having an alternative sanction applied.
3.5.– The judgments just mentioned, which reflect a hitherto unanimous orientation of the Supreme Court, can already be considered expressive of the established law relating to the interpretation of the contested provision.
This interpretation – which coincides, in its outcome, with the result hoped for by the judge a quo, and at the same time avoids the practical inconveniences of the more cumbersome solution suggested by the State Attorney General's Office (point 2.2. of Considered in fact) – avoids all the complaints of constitutional legitimacy formulated by the referring judge. It does indeed ensure uniformity of treatment for all defendants whose proceedings were still pending – at any level of judgment – at the time of entry into force of Legislative Decree No. 150 of 2022, and allows them to access the more favourable alternative sanctions referred to in the new Article 20-bis of the Criminal Code, markedly oriented towards the rehabilitation of the convicted person, while avoiding at the same time any vulnus to the right of defence.
3.6.– On the other hand, the argument of the referring judge, according to which the interpretation in question would not be permitted by the literal tenor of the contested provision, which would make an intervention by this Court essential, is not on point.
Indeed, the rule derived from the established law with reference to the specific hypothesis of the convicted person on appeal, for whom the deadline for the filing of the judgment or that for the proposal of the appeal to the Supreme Court was still pending at the time of entry into force of the reform, is not extractable from the literal data of the second sentence of Article 95(1) of Legislative Decree No. 150 of 2022. However, this rule is not incompatible with the textual data, inserting itself in a space not regulated in a different way by the legislator; and cannot therefore be considered the result of an interpretation contra legem (as instead in the case recently examined by Judgment No. 5 of 2024, point 3 of Considered in law). The rule in question must, if anything, be considered the result of an analogical interpretation, which is certainly permitted in procedural matters in the face of a non-intentional gap in the law, in application of the ordinary hermeneutical canons.
That the gap was not intentional, on the other hand, is shown by the explanatory memorandum to Legislative Decree No. 150 of 2022, which emphasizes that "the regulatory amendments concerning the sanctioning system are undeniably of a substantive nature and, therefore, are subject to the principle of non-retroactivity in malam partem and of retroactivity in bonam partem. The provisions that raise the limit of the substitutable custodial sentence are more favourable to the offender and must be retroactively applicable, subject to the limitation of the judgment (Article 2, paragraph 4 of the Criminal Code)". This shows how the legislator's clear intention was to ensure the possibility of accessing the new alternative sanctions for all proceedings in progress until their definition by irrevocable judgment: a possibility ensured, also in the interstices not covered by the literal data of the legislative product, precisely by the now referred interpretation of the case law of legitimacy.
Such an interpretation, finally, is not at all precluded – pursuant to Article 14 of the Pre-laws – by the transitional, and therefore purportedly exceptional, nature of the contested provision, as the referring judge erroneously maintains. The contested provision is, on the contrary, expressive of a general principle of the legal system, moreover of constitutional rank: that, that is, according to which the more favourable rules on punitive sanctions must, as a rule, be applied retroactively to all proceedings in progress. Thus the analogical interpretation adopted by the Supreme Court constitutes, at the same time, a (mandatory) constitutionally compliant interpretation of the contested provision.
3.7.– In light, therefore, of an established law that has already extracted from the contested provision a rule not incompatible with the constitutional parameters evoked, the questions raised by the referring judge must be declared unfounded.
For these reasons
THE CONSTITUTIONAL COURT
declares the questions of constitutional legitimacy of Article 95 of Legislative Decree No. 150 of 10 October 2022 (Implementation of Law No. 134 of 27 September 2021, containing delegation to the Government for the efficiency of criminal proceedings, as well as on restorative justice and provisions for the swift resolution of judicial proceedings), raised, with reference to Articles 3, 24 and 27 of the Constitution, by the Ordinary Court of Marsala, Criminal Division, by the order indicated above, to be unfounded.
Thus decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 7 February 2024.
Signed:
Augusto Antonio BARBERA, President
Francesco VIGANÒ, Reporting Judge
Roberto MILANA, Director of the Registry
Filed in the Registry on 26 February 2024