JUDGMENT NO. 48
YEAR 2024
Commentary on the Decision of
1. Marco Zincani, Natural Penalties: We'll See You Soon. A Preliminary Commentary on Constitutional Court Judgment No. 48/2024, for the courtesy of Giurisprudenza Penale Web
2. Tullio Padovani, The 'Natural Penalty' Under Scrutiny by the Constitutional Court, for the courtesy of Sistema Penale
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 rendered the following
JUDGMENT
in the proceedings concerning the constitutional legitimacy of Article 529 of the Code of Criminal Procedure, brought before the Court by the Florence Ordinary Court, First Criminal Section, sitting as a single judge, in the criminal proceedings against D. B., by order of 20 February 2023, registered at no. 37 of the register of orders 2023 and published in the Official Gazette of the Republic No. 14, first special series, of the year 2023, the hearing of which was set for the Chamber of Council meeting of 5 March 2024.
Having seen the intervention of the President of the Council of Ministers;
Having heard in the Chamber of Council meeting of 6 March 2024 the Reporting Judge Stefano Petitti;
Having deliberated in the Chamber of Council meeting of 6 March 2024.
Facts
1. - By order of 20 February 2023, registered at no. 37 of the register of orders 2023, the Florence Ordinary Court, First Criminal Section, sitting as a single judge, raised questions of constitutional legitimacy of Article 529 of the Code of Criminal Procedure, in relation to Articles 3, 13 and 27, third paragraph, of the Constitution, "insofar as, in proceedings relating to negligent offences, it does not provide for the possibility for the judge to issue a judgment of no further proceedings where the agent, in relation to the death of a close relative caused by his own conduct, has already suffered hardship proportionate to the gravity of the offence committed."
The referring court explains that it must rule on the charges of aggravated negligent homicide due to violation of accident prevention regulations and related contraventions relating to workplace safety, brought against D. B. for having caused, as the owner of the company carrying out the roof repair work on a warehouse, in complicity with B. N., the client of the work, the death of N. B., an "undeclared" employee of D. B. and his nephew ex fratre, who fell from the roof of the building due to the collapse of the work platform, where a fire had broken out, in the absence of the prescribed fall protection devices.
1.1. - Regarding the relevance of the constitutional legitimacy issues, the Florence Court argues that "the defendant, as a result of his conduct and more precisely in relation to the death of his nephew, which he himself contributed to causing, has certainly already suffered moral hardship proportionate to the gravity of the offence committed, with the consequence that a further penalty imposed by the conviction would be disproportionate."
For a better definition of the case, the referral order adds that D. B. "was the only member of the nephew's family of origin present in Italy and was a point of reference for him", so much so that the night before the incident the boy had slept at his uncle's house; the latter, moreover, worked on the same construction site, exposed to the same risks, and in fact, upon their arrival at the scene, the carabinieri found him "crouching next to the young man, in a desperate and futile attempt to revive him."
According to the referring court, therefore, in this case, "if the hoped-for possibility for the judge to issue a judgment of no further proceedings were introduced - in order to avoid the application of a penalty that would be disproportionate considering the suffering already endured by the perpetrator of the crime - the defendant could certainly benefit from it."
1.2. - Regarding the non-manifest unfoundedness of the issues, the referring court considers that the alleged legislative lacuna violates the constitutional principles of necessity, proportionality and humanity of the penalty.
Evoking the theory of poena naturalis, as adopted by some foreign legal systems (the German one above all) and frequently discussed in the drafting of reform projects of Italian legislation (in particular within the work of the "Pagliaro" and "Pisapia" Commissions), the referring court argues that the penalty could be "unnecessary and excessive if, as a result of the same unlawful act, the perpetrator has already suffered affliction comparable to that which the State would seek to produce with its own sanction or even considerably greater, such as that normally resulting from the death of a close relative", according to the definition of "close relatives" provided by Article 307, fourth paragraph, of the Criminal Code.
The sanction imposed in addition to a natural penalty that is in itself sufficient would be perceived by society and the convicted person as "cruel harassment by the State", therefore unsuitable for fulfilling the rehabilitative function, as well as ineffective in the perspective of any possible finalistic declination of the penalty (general prevention, special prevention and retribution); it would result in treatment contrary to the sense of humanity, "a cold consequence of rigid automatisms, almost the application of a syllogism, regardless of the underlying human story of suffering."
In the opinion of the Florence Court, the aforementioned constitutional principles would therefore require "reserving to the judge the possibility - once the gravity of the fault, the relationship between the victim and the perpetrator of the crime and the other circumstances of the specific case have been assessed - of refraining from convicting the defendant."
The alleged profiles of unconstitutionality would not be excluded by the abstract possibility of conditional suspension of the sentence, the prerequisites for which might not exist in concrete terms and the granting of which would in any case preclude further recognition of the benefit in relation to different facts.
Considering a constitutionally mandated solution to be non-existent, the referring court proposes as appropriate that of integrating the grounds for inadmissibility, while also underlining that, in light of the literal wording of the challenged provision, an interpretative adjustment is impracticable.
2. - The President of the Council of Ministers intervened in the proceedings, represented and defended by the State Legal Office, requesting that the questions be declared inadmissible or unfounded.
2.1. - Inadmissibility would stem from the following concurrent arguments.
Firstly, the relevance of the natural penalty could not be introduced into the legal system except by the legislator, who, among other things, in the exercise of his discretion, should establish the degree of kinship significant for these purposes.
Furthermore, the judgment of no further proceedings ex Article 529 of the Code of Criminal Procedure would not be suitable for the case in question, because it is an act of a strictly procedural nature, while the relevance of the natural penalty would in any case require a factual assessment.
The referring court has not assessed, and should therefore do so after a possible return of the documents, whether in this case a penalty alternative to a short custodial sentence is applicable, pursuant to Articles 20-bis of the Criminal Code and 545-bis of the Code of Criminal Procedure, introduced respectively by Articles 1, paragraph 1, letter a), and 31, paragraph 1, of Legislative Decree 10 October 2022, no. 150 (Implementation of Law 27 September 2021, no. 134, delegating to the Government the efficiency of criminal proceedings, and concerning restorative justice and provisions for the speedy conclusion of judicial proceedings).
Lastly, the judge would in any case have the possibility of moderating the penalty in relation to the degree of the defendant's fault and his relationship with the victim, in application of the subjective circumstances of the offence under Article 70 of the Criminal Code, with the institution of mitigating circumstances under Article 62-bis of the same Code and the sentencing criteria of Article 133 of the same Code also assisting to this end.
2.2. - On the merits, the questions would be unfounded, because they undermine "the very foundation of culpable culpability".
In fact, as a non-intentional offence, a negligent offence would always produce in the perpetrator an "acute suffering" for having harmed someone unintentionally.
Therefore, admitting the relevance of the natural penalty for offences between relatives, the boundaries of non-punishability would then come to include almost all cases of negligent offences, even in non-family relationships, "such as, for example, that between teacher and pupil (in the event of injury or death following failure to supervise) or even doctor-patient, extending even to the unknown pedestrian."
The entire system of culpability would thus be nullified, despite the fact that it protects the most vulnerable subjects, precisely because "[t]he position of guarantee exposes the recipient to the greater burden of attention and diligence towards the protected subject, which, on closer inspection, naturally reaches its apex where it concerns a relative."
Legal Reasoning
1. - By the order indicated in the heading, the Florence Ordinary Court, First Criminal Section, sitting as a single judge, raised questions of constitutional legitimacy of Article 529 of the Code of Criminal Procedure, "insofar as, in proceedings relating to negligent offences, it does not provide for the possibility for the judge to issue a judgment of no further proceedings where the agent, in relation to the death of a close relative caused by his own conduct, has already suffered hardship proportionate to the gravity of the offence committed."
Due to this omission, the challenged provision would violate Articles 3, 13 and 27, third paragraph, of the Constitution, in terms of the necessity, proportionality and humanity of the penalty, as it would compel the judge to impose a sanction which, given the suffering already endured by the offender for the loss of a family member, would be in practice useless, excessive and cruel.
This could happen in the case at issue in the main proceedings, concerning negligent homicide with violation of accident prevention regulations at work, charged against an uncle for the death of his nephew, his employee.
It would therefore be necessary to "reserve to the judge the possibility - once the gravity of the fault, the relationship between the victim and the perpetrator of the crime and the other circumstances of the specific case have been assessed - of refraining from convicting the defendant."
2. - The President of the Council of Ministers intervened in the proceedings through the State Legal Office, raising the inadmissibility of the questions on several grounds.
2.1. - The questions of constitutional legitimacy would be inadmissible because the referring court did not consider the possibility of applying a penalty alternative to a short custodial sentence, pursuant to Articles 20-bis of the Criminal Code and 545-bis of the Code of Criminal Procedure, introduced respectively by Articles 1, paragraph 1, letter a), and 31, paragraph 1, of Legislative Decree no. 150 of 2022, nor the possibility of moderating the amount of the penalty through the exercise of discretion governed by Article 133 of the Criminal Code and the recognition of generic mitigating circumstances.
2.1.1. - The objection is unfounded. Since it concerns the quality and quantity of the penalty, it is not, in fact, relevant to the issues raised, which concern more fundamentally the an of the sanction, which, according to the petitum of addition, should not be imposed at all, the proceedings concluding with a procedural judgment.
2.2. - The State's defence also raised the inadmissibility of the questions in terms of the discretion reserved to the legislator in defining criminal sanctions and grounds for inadmissibility.
2.2.1. - This objection is also unfounded.
This Court has always recognised the broad discretion of the legislator in defining criminal policy, subject to the limit of manifest unreasonableness or arbitrariness of its choices.
Now, the Florence Court assumes that the failure to provide for a ground for inadmissibility for the cases indicated in the referral order signals precisely a manifest unreasonableness, a lacuna capable of causing the penalty to be twisted from a rehabilitative sanction to "cruel harassment by the State".
Therefore, from this point of view too, the complaint can proceed to a review on the merits.
3. - On the merits, the questions are unfounded.
4. - The referring court evokes the notion of "natural penalty", a term that refers to the judicial power - configured in some European legal systems - not to impose the penalty, or to impose it in a mitigated measure, when the perpetrator of the crime has suffered significant damage as a consequence of the crime itself (paragraph 60 of the German Criminal Code, paragraph 34 of the Austrian Criminal Code, Article 29 of the Swedish Criminal Code).
The referral order, however, sets out a petitum so broad as to be incompatible with the thesis of the existence of a corresponding constitutional constraint, and this assessment is confirmed by the peculiar characteristics of the case at issue in the main proceedings.
5. - The excessive latitude of the request for an additive judgment is manifest in three distinct aspects, each of which is sufficient to undermine its soundness.
5.1. - Firstly, referring indiscriminately to "proceedings relating to negligent offences", the referring court requests the introduction of the ground for inadmissibility with regard to any negligent conduct that has caused the death of a relative of the offender.
The indication of the negligent nature of the offence is sufficient to exclude unintentional homicide (Article 584 of the Criminal Code) and death as an unintended consequence of a deliberate crime (Article 586 of the Criminal Code), but, given its general scope, it does not serve to distinguish in any way within the notion of negligence, which also has an ontologically multifaceted nature.
5.1.1. - Pursuant to Article 43, first paragraph, of the Criminal Code, a crime "is negligent, or unintentional, when the event, even if foreseen, is not willed by the agent and occurs due to negligence or imprudence or unskillfulness, or due to non-compliance with laws, regulations, orders or disciplines."
The various types of negligence that can be derived from this all-encompassing notion - generic negligence ("negligence or imprudence or unskillfulness") and specific negligence ("non-compliance with laws, regulations, orders or disciplines"), unconscious negligence (without foresight of the event) and conscious negligence (with foresight of the event), common negligence (based on a non-technical position of guarantee) and professional negligence (based on a qualified position of guarantee) - are considered by the referring court in an elliptical manner, without any internal distinction.
They can, however, correspond to very different cases in criminological terms and in terms of the protection of goods, and not only because the conscious nature of negligence constitutes a common aggravating circumstance (Article 61, first paragraph, number 3, of the Criminal Code), but also because of the particular importance of specific and professional negligence, in which agents holding a guarantee obligation regulated for the protection of particularly exposed subjects typically incur (among these the employer with regard to employees, pursuant to Article 2087 of the Civil Code).
Moreover, the reference in the petitum of the Florence Court to negligent "offences" - and not only to felonies - implies that the proposed ground for inadmissibility should also cover contraventions, which, for these purposes, should be considered as negligent offences, pursuant to Article 43, second paragraph, of the Criminal Code, which would undermine the preventive function of the relevant incriminating rules (in the a quo judgment, numerous contraventions for non-compliance with worker safety measures are attributed to the defendant).
5.2. - In the opinion of the referring court, the judgment of no further proceedings should be able to be pronounced for a negligent offence that causes the death of a "close relative" of the agent, on the assumption that the loss of a family member inflicts on the agent himself an intimate suffering - a natural penalty, in fact - such that the further penalty imposed in the trial would be useless.
This presupposes that an emotional relationship exists between the offender and the victim, considered by the legal system - based on the id quod plerumque accidit - of such intensity as to presume the substantial equivalence between natural penalty and legal penalty.
5.2.1. - The penal notion of "close relative" is provided by Article 307, fourth paragraph, of the Criminal Code, according to which, "[f]or the purposes of criminal law, close relatives are understood to be ascendants, descendants, spouse, party to a civil union between persons of the same sex, brothers, sisters, relatives of the same degree, uncles and nephews."
This is a very broad subjective list, extending far beyond the nuclear family, to include collateral kinship relationships of a degree lower than the second (such as that in the case at hand, between uncle and nephew), and even ties of affinity (except where the spouse has died and there are no children, as specified by Article 307, fourth paragraph itself).
The thesis that intends to cover this broad spectrum of personal relationships with a ground for inadmissibility based on the suffering endured by the offender for the death of a family member culpably caused has no basis in terms of a constitutional constraint.
5.3. - By censuring Article 529 of the Code of Criminal Procedure, the Florence Court requests that the judge be given the possibility "to issue a judgment of no further proceedings" in favour of the agent who has negligently caused the death of a relative.
The object of the addition is therefore indicated as the most favourable final formula for the perpetrator of the offence, on the implicit assumption that, in the hypothesised cases of relevance of the natural penalty, it is necessary to spare him even the suffering of the institution or continuation of the trial.
5.3.1. - As this Court has observed with regard to the triviality of the fact, configuring an event as a ground for inadmissibility has very different effects than making it a ground for non-punishability, in particular, with regard to the entry of the judgment in the judicial record, the suitability of the judgment itself to form res judicata on the criminal unlawfulness of the conduct and, consequently, with regard to the appealability of the judgment itself (Judgment No. 120 of 2019).
Now, there are no constitutional reasons why the natural penalty for negligent homicide of a close relative should constitute a ground for inadmissibility, rather than, in thesi, an exculpatory ground of a substantive nature, or even a subjective mitigating circumstance.
6. - The questions of constitutional legitimacy raised by the Florence Court must therefore be declared unfounded.
For These Reasons
THE CONSTITUTIONAL COURT
declares the questions of constitutional legitimacy of Article 529 of the Code of Criminal Procedure, raised, in relation to Articles 3, 13 and 27, third paragraph, of the Constitution, by the Florence Ordinary Court, First Criminal Section, sitting as a single judge, by the order indicated in the heading, to be unfounded.
So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 6 March 2024.
Signed:
Augusto Antonio BARBERA, President
Stefano PETITTI, Reporting Judge
Roberto MILANA, Registrar
Filed with the Registry on 25 March 2024