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 12, paragraph 5, of Legislative Decree No. 109 of 23 February 2006, concerning "Discipline of disciplinary offences of magistrates, related sanctions and the procedure for their application, as well as amendment of the rules on incompatibility, exemption from service and transfer of office of magistrates, pursuant to Article 1, paragraph 1, letter f), of Law No. 150 of 25 July 2005", brought before the Court by the Court of Cassation, United Civil Sections, in disciplinary proceedings against F. L., with order of 18 September 2023, registered under no. 143 of the register of orders 2023 and published in the Official Gazette of the Republic No. 45, Special Series I, of the year 2023.
Having seen the application for admission of F. L., as well as the intervention of the President of the Council of Ministers;
Having heard at the public hearing of 5 March 2024 the Reporting Judge Francesco Viganò;
Having heard the lawyers Massimo Luciani and Patrizio Ivo D'Andrea for F. L. and the State lawyer Paola Maria Zerman for the President of the Council of Ministers;
Having deliberated in the deliberation chamber of 6 March 2024.
Facts
1. - By order of 18 September 2023, the Court of Cassation, United Civil Sections, raised questions of constitutional legitimacy of Article 12, paragraph 5, of Legislative Decree No. 109 of 23 February 2006, concerning "Discipline of disciplinary offences of magistrates, related sanctions and the procedure for their application, as well as amendment of the rules on incompatibility, exemption from service and transfer of office of magistrates, pursuant to Article 1, paragraph 1, letter f), of Law No. 150 of 25 July 2005", with reference to Articles 3, 97, 105 and 117, first paragraph, of the Constitution, the latter in relation to Article 8 of the European Convention on Human Rights, "in so far as it provides that the sanction of removal shall be applied to the magistrate who incurs a custodial sentence for a non-negligent offence of not less than one year, the execution of which has not been suspended, pursuant to Articles 163 and 164 of the Criminal Code or for which a decision revoking the suspension has been issued pursuant to Article 168 of the same Code, without providing that the Autonomous Governing Body shall in any case be entrusted with the concrete assessment of the offensiveness of the conduct for the purpose of a possible gradation of the sanctioning measure."
1.1. - The referring United Sections are seized of the appeal against the judgment of the Disciplinary Section of the Superior Council of the Judiciary of 22 December 2022, No. 186.
More specifically, the referring judge states:
- that the magistrate in question had been subject to disciplinary proceedings pursuant to Article 4, paragraph 1, letter d), of Legislative Decree No. 109 of 2006 in relation to the pendency, against him, of criminal proceedings for complicity in abuse of office, revelation of official secrets and aggravated forgery in a public document pursuant to Article 476, second paragraph, of the Criminal Code;
- that the disciplinary proceedings had been suspended due to the prioritisation of the criminal proceedings;
- that, following an abbreviated trial, the magistrate had been acquitted of the first two charges, and had instead been sentenced to two years and four months' imprisonment, in addition to compensation for damages to the civil parties, for having affixed, with the consent of the president of the panel of which he was a member, the forged signature of the president herself at the foot of three judicial rulings;
- that the judgment had been fully upheld on appeal and then by the Court of Cassation, Fifth Criminal Section, by judgment of 23 November 2021-24 March 2022, No. 10671.
Upon completion of the criminal proceedings, the Disciplinary Section of the CSM, in the judgment appealed against in the referring court, had declared the magistrate guilty of the same conduct, applying to him the disciplinary sanction of removal, as provided for by the challenged provision.
1.2. - On the point of relevance, the referring judge observes that if paragraph 5 of Article 12 of Legislative Decree No. 109 of 2006 were declared unconstitutional, such illegitimacy should lead to the quashing of the judgment of the Disciplinary Section. In fact, "excluding the automatic sanction provided for in the aforementioned provision, the judgment should be reformed for violation of Articles 4 and 12 of the same Legislative Decree for not having the Panel of the Autonomous Governing Body chosen with due discretion the response to the contested fact on the basis of the judgment of proportionality and appropriateness typical of disciplinary proceedings."
Such a consideration, according to the referring judge, would not be undermined by the reasoning contained in the judgment of the Disciplinary Section, which states that the seriousness of the conduct in question "would have made the extreme sanction of removal necessary even if, by chance, the criminal penalty imposed had been kept below the minimum beyond which Article 12, paragraph 5, of Legislative Decree No. 109 of 2006 imposes the consequence of removal". Such argumentation would, in fact, have a merely hypothetical character, as it is not doubtful that the sanction was imposed pursuant to Article 12, paragraph 5, of Legislative Decree No. 109 of 2006, and therefore constitutes the automatism established by the challenged provision "a conditioning and inescapable element of the reasoning of the judgment, so as to relegate to the field of hypotheses the further considerations that follow a different logic, presupposing a (non-existent) gradation of sanctions."
1.3. - The referring United Sections doubt the compatibility of the challenged provision with Articles 3, 97, 105 and 117, first paragraph, of the Constitution, the latter in relation to Article 8 of the ECHR.
1.3.1. - Excluding the doubt of constitutional legitimacy, raised by the applicant's defence, for conflict with Article 117, first paragraph, of the Constitution, in relation to Article 7 of the ECHR (since the challenged disciplinary sanction cannot be considered as punitive in nature), the doubt of unconstitutionality relating to Article 117, first paragraph, of the Constitution, in relation to Article 8 of the ECHR, does not appear manifestly unfounded to the referring judge.
The referring judge observes that, according to the European Court of Human Rights, certain interferences in working life - such as dismissal, demotion, denial of access to a profession - fall within the scope of application of the notion of private life under Article 8 of the ECHR (cited are ECtHR, Grand Chamber, judgments of 25 September 2018, Denisov v. Ukraine and 17 December 2020, Mile Novaković v. Croatia). He further recalls that in fulfilling the positive and negative obligations imposed by Article 8 of the ECHR, each State must strike a fair balance between competing public and individual interests, within the margin of appreciation granted to it, and in compliance with "a principle of proportionality between the measure [in question] and the aim pursued", as well as a fair decision-making procedure.
The referring judge considers it undeniable that, in the case in question, the consequences of automatic removal "inevitably affect the private life of the applicant, who has been left without work when he had not yet reached the age of sixty (and, therefore, an age which, on the one hand, does not allow access to pension treatment and, on the other, makes the possibility of undertaking another profession, different from the one subject to removal, quite illusory)". On the other hand, the lack of a concrete alternative to removal, even if linked to a criminal conviction, would conflict "with the principles of gradation and proportionality of the disciplinary sanction which alone guarantee, from the perspective of the European Court, an adequate reaction to the legitimate aim pursued". In effect, the simple presumptive deduction of the proportionality of the disciplinary sanction from the existence of a criminal conviction would unduly overlap the State's punitive sphere and the disciplinary sphere; and this would be "all the more evident if it is considered that the provision in question does not even specify what are the criminally relevant facts in relation to which the foreseen conviction automatically determines the removal of the magistrate, thus introducing, in fact, a prohibition from public office not foreseen by the criminal legislator". Therefore, the challenged automatism, "by precluding the Autonomous Governing Body from the possibility of graduating the sanction to be applied in relation to the specific case, would constitute a violation of Article 8 of the European Convention on Human Rights and the principle of proportionality between the measure and the aim pursued."
1.3.2. - The referring judge then considers doubtful the compatibility of the challenged provision with Articles 3 and 105 of the Constitution.
The referring judge underlines the elements that would differentiate the provision now under examination from that which was the subject of Judgment No. 197 of 2018 of this Court. On that occasion, the dispute concerned the fixed sanction of removal for those found responsible by the disciplinary judge for a specific offence, also of a disciplinary nature. The reference would therefore have been to the identification of a precise "species facti". Now, however, the constitutional legitimacy of an automatism linked to the occurrence of a sentence to a penalty exceeding a certain quantum is doubted: so that the challenged provision would not indicate a true and proper "species facti", but would merely identify a "species poenae". And this despite "the heterogeneity of the factual situations which, in abstract terms, could fall within the scope of the aforementioned provision."
In the face of such heterogeneity, "including conduct extraneous to the aspects of impartiality and impartiality of the administration of justice", no possibility of gradation would be left to the Disciplinary Section, and the provision contained in Article 3-bis of Legislative Decree No. 109 of 2006, according to which "[t]he disciplinary offence shall not be constituted where the fact is of minor importance", could not be considered useful for this purpose. This provision, although considered by the case law to be applicable also to the offence under Article 12, paragraph 5, of Legislative Decree No. 109 of 2006, would not allow the disciplinary judge to operate a true gradation, leaving him only "the alternative of excluding the offence for the minor importance of the fact or imposing the sanction of removal": "all or nothing", in short, "without the possibility of intermediate articulations".
This would be a situation similar to that examined by this Court in Judgment No. 170 of 2015, in which a vulnus to the principles of reasonableness and equality was found "in the presence of a punitive system based on automatism and absolutely inattentive to the substance and gravity of the various individual conduct", even in the face of an "excessively broad (and non-homogeneous) range of presuppositions to which the automatic sanction is linked". As reiterated in that judgment, the principle of equality - and the principle of proportionality deriving therefrom - would instead presuppose "that the judge's assessment must be carried out 'in concreto', taking into account the conduct in question in committing the offence, for which rigid sanctions, that is, those applied irrespective of a verification of appropriateness to the specific case and an assessment of the gradual application, would be 'tendentially' illegitimate".
The heterogeneity of the conduct sanctioned would not, on the other hand, allow "to identify the suitability of the sanction to achieve the aim of preserving the confidence of the community in the independence and impartiality of the judicial system, [as well as] the ineffectiveness of less afflictive measures to achieve the same objective, as well as the non-existence of a global violation of the magistrate's rights".
The challenged provision would also prevent the judge from "bringing out the material aspects of the fact, its circumstances, ensuring that these peculiarities are reflected in the measurement of the sanction, which will be 'just' only if adequate to the fact, taking into account a whole series of elements that must be assessed by the judge".
The challenged automatism would introduce "in substance a prohibition from public office additional to that specifically hypothesised (quoad delicta) by the criminal legislator, which, also in this respect, determines a vulnus as regards the prior identification of the consequences deriving from the commission of a particular crime". More specifically, it would be an "absolute presumption of incompatibility with the service relationship due to the criminal conviction": a presumption that could be considered constitutionally legitimate only if it is not easy, as in the case now under examination, to formulate hypotheses of real events contrary to the generalisation underlying the presumption itself (cited are Judgment No. 268 of 2016 of this Court and the other judgments referred to therein).
Removal as a sanction following a criminal conviction could, therefore, be considered constitutionally legitimate only if "the power-duty of discretionary assessment concerning the proportional gradation of the measure to be applied to the specific case" were retained by the Disciplinary Body.
1.3.3. - The challenged provision would also violate Article 97 of the Constitution, "in relation to the Administration's interest in depriving itself of a magistrate in the face of conduct which, serious from the point of view of State punitive reaction, may not be so if assessed in terms of offensiveness of the fact, with reference both to the violation of the specific interest protected by the disciplinary offence, and to the compromise of the image of the magistrate and the prestige he must enjoy in the exercise of his judicial activity". The automatism described by the challenged provision would then also translate into a violation of Article 97 of the Constitution, since it would constitute "a heterogenesis of the purposes to which the constitutional provision is pre-ordained".
1.3.4. - The referring judge finally underlines that the possibility of accessing alternative measures could avoid the imprisonment of the sentence, so that there would not necessarily be an objective impediment to the continuation of the employment relationship even in the presence of an unsuspended conviction.
2. - The President of the Council of Ministers, represented and defended by the State Attorney General, intervened in the proceedings, requesting that the questions be declared inadmissible or, in any case, unfounded.
2.1. - As a preliminary point, the intervener raises the inadmissibility of the questions for lack of relevance.
The reasoning contained in the judgment of the Disciplinary Section, which states that the seriousness of the conduct attributed to the accused magistrate would have made the extreme sanction of removal necessary even if a penalty lower than the threshold beyond which such sanction automatically takes effect had been imposed, would constitute not a hypothetical argument - as stated by the referring judge - but a subordinate or alternative reasoning. Consequently, the question would be "formulated in abstract terms, for the sole purpose of attacking a provision which, even if removed, would not alter the outcome of the proceedings in which the question is raised".
2.2. - On the merits, the question relating to the violation of Article 117, first paragraph, of the Constitution, in relation to Article 8 of the ECHR, would not be well-founded.
Without contesting the applicability of the Convention provision also to events in working life, the intervener observes that the ECtHR has clarified that Article 8 of the ECHR cannot be invoked when the negative effect on private life consists of a foreseeable consequence of one's actions, such as the commission of a crime, or, in any case, when the negative effects complained of are limited to the foreseeable consequences of the unlawful conduct (cited are: judgment of 27 July 2004, Sidabras and Džiautas v. Lithuania; judgment of 7 February 2012, Axel Springer AG v. Germany; judgment of 3 April 2012, Gillberg v. Sweden; Denisov judgment).
2.3. - The question relating to the violation of Article 97 of the Constitution should also be considered unfounded. The interest of the administration, in fact, could not in any way be taken into consideration in the context of the application of a disciplinary sanction. Indeed, precisely in the combined provisions of Articles 97 and 54 of the Constitution - which impose, on the one hand, on the public administration to act according to principles of impartiality and good management and, on the other, on public officials to act with honour - the automatic sanctioning would find an express constitutional legitimation in the face of a non-suspended custodial sentence for an intentional unlawful act.
2.4. - Similarly unfounded would be the questions relating to Articles 3 and 105 of the Constitution.
While acknowledging, in general terms, the unconstitutionality of automatic sanctions following a criminal conviction in disciplinary proceedings, the intervener argues that this principle is not absolute, and that it may yield in the face of the pre-eminence of collective interests in relation to the role played by the public employee and the peculiarity and delicacy of the tasks assigned to him (cited is the judgment of this Court No. 112 of 2014). This would also be the case for magistrates, as this Court had stated in Judgment No. 197 of 2018 with reference to a disciplinary offence, but with reasoning that should apply a fortiori to the commission of a crime. "Logical and legal coherence, as well as the need to safeguard the rigour of a fundamental institution of society, lead one to consider sufficient for the interested party the procedural guarantees offered in the context of the criminal proceedings, within the three levels of judgment, to the point that the provision of a further passage before the disciplinary body is considered not only superfluous but also intrinsically contradictory", whose assessment would thus risk being in contrast with that of the criminal judge.
In any case, the challenged provision would protect the magistrate "from any prosecutorial excesses", subordinating removal to the commission of an intentional crime and to a penalty imposed exceeding one year not conditionally suspended. The assessment of the criminal judge concerning the requirements of Articles 163 and 164 of the Criminal Code would, therefore, constitute a further guarantee: it would, in fact, presuppose "an assessment by a colleague of the incriminated Judge, who, well aware of the consequences on a personal, professional and disciplinary level, considered that all the elements were present to deny the interested party the suspension of the penalty". Consequently, allowing the CSM to impose a disciplinary sanction less severe than removal would entail an evident deminutio of the assessment of the criminal judge. And, furthermore, "[a]pplying sanctions less serious than removal despite the criminal judge's prediction of the danger of repetition of the crime would irremediably compromise the confidence of the community in the administration of justice by a third and impartial body".
3. - The accused magistrate constituted himself in the proceedings through his defenders, who in the application for admission insisted on the acceptance of the questions of constitutional legitimacy, then refuting - in the brief filed shortly before the hearing - the exceptions of the State Attorney General.
3.1. - The defence replies, first of all, to the exception of inadmissibility of the questions of constitutional legitimacy for lack of relevance. It observes that it is up to the referring United Sections, in their function of scrutiny of the decision of the Disciplinary Section of the CSM, to assess the content of this judgment and draw the appropriate conclusions. The referring judge would have clarified, by reasoning exhaustively on the point, the purely hypothetical character of the statements of the Disciplinary Section; moreover, the party observes, "the judge decides tota lege perspecta: in this case, therefore, the Disciplinary Section reasoned as it did because the rule on automatism was part of the perspecta legislation and would have done differently if that rule had not been a component of its heritage of rules to be applied".
The party also recalls how the case law of this Court constantly reiterates that relevance is configured as the need to apply the challenged provision in the iter leading to the decision of the main proceedings (cited are judgments No. 253, No. 194, No. 31, No. 30 and No. 13 of 2022; No. 202 and No. 15 of 2021).
3.2. - The alleged unfoundedness of the question relating to the violation of Article 117, first paragraph, of the Constitution, in relation to Article 8 of the ECHR, would derive, according to the party, from a partial and misleading reconstruction, by the State Attorney General, of the case law of the ECtHR on the point. More specifically, this case law would refer to cases in which Article 8 of the ECHR was considered inapplicable due to a mere custodial sentence (cited is the judgment Gillberg). In the case at hand, however, the legitimacy, according to the Convention, of the criminal conviction itself is not contested, but rather of a further and external effect - the conviction in disciplinary proceedings - which would result in a lack of proportionality. The further and indirect effects with respect to the criminal conviction could, therefore, fall within the scope of application of Article 8 of the ECHR and determine a violation thereof (cited are: Denisov judgment; judgment of 28 May 2020, Evers v. Germany; judgment of 14 October 2021, M.L. v. Slovakia; judgment of 28 June 2018, M.L. and W.W. v. Germany; judgment of 27 June 2017, Jankauskas v. Lithuania (No. 2)).
3.3. - Apodictic would then be the argumentative iter that leads the intervener to deny that there is a violation of Article 97 of the Constitution. Since not all conduct capable of harming the image of the judiciary is sanctioned with removal, the need to inflict the most serious sanction only on those who have irremediably compromised the image of impartiality and impartiality of the judiciary, even in the general and objective interest of the community, would be evident.
3.4. - The observations aimed at denying the alleged violation of Articles 3 and 105 of the Constitution should finally be considered devoid of merit.
First of all, the comparison with Judgment No. 112 of 2014 of this Court would be irrelevant, as it concerns a radically different and much more serious specific case than that which is the subject of the present question of constitutional legitimacy. Nor would it be more relevant to refer to Judgment No. 197 of 2018 to consider the doubt of unconstitutionality unfounded, a fortiori, since that case either could not be compared to the case at hand: it concerned a disciplinary offence (and, therefore, a case in which the judge was, also for the ascertainment of the an of the responsibility, the Disciplinary Section of the CSM), corresponding to a well-defined conduct, certainly laden with disvalue.
Secondly, the consideration - made by the State Attorney General - that the reasonableness of the sanction would be ensured by the possibility of granting conditional suspension of the sentence, and that its non-granting would be the result of a prognosis of dangerousness made by the criminal judge, would also be unfounded. On the one hand, the non-granting of conditional suspension could derive, as in the case at hand, from exceeding the legal ceiling of two years established for the operability of the institution; on the other hand, such non-granting would not necessarily derive from a judgment of social dangerousness. Nor could such dangerousness be inferred, without any concrete assessment by the judge, from the imposition of a penalty exceeding two years' imprisonment. The further assessment entrusted to the CSM, aimed at assessing the disciplinary relevance of the conduct, in compliance with Articles 105 and 106 of the Constitution, would therefore not be superfluous and contradictory at all.
Finally, it is observed that the accused magistrate is serving the sentence imposed on him in the manner provided for in Article 47 of Law No. 354 of 26 July 1975 (Rules on the prison system and on the execution of deprivation and restriction of liberty measures). This consideration would be relevant in two respects: it would demonstrate, firstly, the existence in abstract of the possibility of not serving the sentence in prison, in the absence of a prognosis of dangerousness of the convicted person, different and additional to the conditional suspension of the sentence; and it would highlight, in concrete terms, the absence of such dangerousness with reference to the present accused. The positive outcome of probation, on the other hand, would extinguish the custodial sentence and any other penal effect: thereby further highlighting, in abstract, the unreasonableness of allowing the extinction of the crime and the penal effects of the conviction, but not the extra-penal effect which is most incisive on the life of the convicted person; and in concrete terms, the absence of dangerousness of the accused magistrate, and his suitability to continue performing his duties.
Reasons
1. - With the order indicated in the heading, the Court of Cassation, United Civil Sections, raised questions of constitutional legitimacy of Article 12, paragraph 5, of Legislative Decree No. 109 of 2006, with reference to Articles 3, 97, 105 and 117, first paragraph, of the Constitution, the latter in relation to Article 8 of the ECHR, "in so far as it provides that the sanction of removal shall be applied to the magistrate who incurs a custodial sentence for a non-negligent offence of not less than one year, the execution of which has not been suspended, pursuant to Articles 163 and 164 of the Criminal Code or for which a decision revoking the suspension has been issued pursuant to Article 168 of the same Code, without providing that the Autonomous Governing Body shall in any case be entrusted with the concrete assessment of the offensiveness of the conduct for the purpose of a possible gradation of the sanctioning measure."
Legislative Decree No. 109 of 2006 provides, in Article 5, six different disciplinary sanctions, of increasing severity, against the magistrate who violates his duties: admonition, censure, loss of seniority, temporary incapacity to hold a managerial or semi-managerial position, suspension from duties from three months to two years, and finally removal. Unless otherwise provided, the Disciplinary Section is free to choose, from among all these sanctions, the one most appropriate to the seriousness of the offence for which the magistrate is deemed responsible.
Article 12 of Legislative Decree No. 109 of 2006 then provides a series of rules that limit the discretion of the Disciplinary Section of the CSM in the selection of sanctions, imposing the adoption of a minimum sanction, of progressive severity, in the cases of offence provided for in paragraphs 1 to 4. Paragraph 5, challenged here, instead binds the same Section to impose removal in three distinct cases:
- the case in which the magistrate has been found guilty in disciplinary proceedings of the facts provided for in Article 3, paragraph 1, letter e), of the same Legislative Decree No. 109 of 2006;
- the case in which the magistrate incurs perpetual or temporary interdiction from public office following a criminal conviction;
- the case in which the magistrate incurs "a custodial sentence for a non-negligent offence of not less than one year, the execution of which has not been suspended, pursuant to Articles 163 and 164 of the Criminal Code or for which a decision revoking the suspension has been issued pursuant to Article 168 of the same Code".
The first of these cases was the subject of Judgment No. 197 of 2018, which considered the questions of constitutional legitimacy then raised by the Disciplinary Section of the CSM with reference to Article 3 of the Constitution to be unfounded.
The doubts of constitutional legitimacy of the United Sections of the Court of Cassation, brought before it by a magistrate against whom the Disciplinary Section of the CSM has already applied the sanction of removal, as a consequence of his previous conviction, in criminal proceedings, to two years and four months' imprisonment, now focus on the third case: a conviction not susceptible of conditional suspension, as it exceeds the maximum limit provided for in Article 163 of the Criminal Code.
The referring United Sections argue, in short, that the automatism established by the challenged normative segment violates the aforementioned constitutional parameters, binding the Disciplinary Section of the CSM to the removal of the magistrate and thus preventing it from graduating the sanction, so as to ensure its proportionality to the concrete gravity of the offence.