Sentenza n. 52 del 2024

Judgment No. 52 of 2024

JUDGMENT NO. 52

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 rendered the following

JUDGMENT

in the proceedings concerning the constitutional review of Article 214, paragraph 8, of Legislative Decree No. 285 of 30 April 1992 (New Highway Code), as amended by Article 23-bis, paragraph 1, letter b), of Legislative Decree No. 113 of 4 October 2018 (Urgent provisions on international protection and immigration, public safety, and measures for the functionality of the Ministry of the Interior and the organization and operation of the National Agency for the administration and allocation of assets seized and confiscated from organized crime), converted, with amendments, into Law No. 132 of 1 December 2018, referred by the Justice of the Peace of Forlì in the proceedings between E. S. and the Prefecture of Forlì-Cesena, by order of 15 May 2023, registered at no. 92 of the register of orders 2023 and published in the Official Gazette of the Republic No. 28, first special series, of the year 2023.

Heard in the deliberation chamber on 5 March 2024, the Judge Rapporteur Giovanni Pitruzzella;

deliberated in the deliberation chamber on 5 March 2024.

Facts

1. - By order of 15 May 2023, registered at no. 92 of the register of orders 2023, the Justice of the Peace of Forlì raised, with reference to Article 3 of the Constitution, a question of the constitutionality of Article 214, paragraph 8, of Legislative Decree No. 285 of 1992 (New Highway Code), as amended by Article 23-bis, paragraph 1, letter b), of Legislative Decree No. 113 of 2018, introduced, during the conversion process, by Law No. 132 of 2018, insofar as it provides for the ancillary administrative penalty of driving licence revocation.

Article 214 of the Highway Code regulates the "[a]dministrative impoundment of the vehicle" and, in paragraph 8, provides as follows: "[t]he person who has taken custody, who, during the period in which the vehicle is subject to impoundment, drives the vehicle illegally or allows others to drive it illegally, shall be punished with an administrative fine ranging from Euro 1,984 to Euro 7,937. The ancillary administrative penalties of driving licence revocation and vehicle confiscation shall apply. The police authority shall order the immediate removal of the vehicle and its transport to one of the entities referred to in Article 214-bis. The vehicle shall be transferred to the entity to which it is delivered, without any cost to the Treasury."

2. - The referring court states that it must decide on an objection raised against the order of the Prefect who ordered the revocation of the driving licence, in addition to the pecuniary administrative penalty, for having violated the provision of Article 214, paragraph 8, of the Highway Code.

The referring court states that, pursuant to the contested provision, the applicant was sanctioned for having allowed the circulation of a vehicle – entrusted to him for safekeeping – despite the fact that it had been subject to administrative impoundment.

Regarding relevance, the referring court observes that the decision of the question "clearly depends on the decision of the dispute, as there are no other possible legal solutions that can be adopted, not even through interpretation". In fact, the referring court underlines that the applicant could "benefit from a more favorable sanctioning treatment with the application of the administrative penalty of suspension of the driving licence", since he had not directly driven the vehicle and it would be necessary to investigate the "degree of fault in not having taken measures to prevent the vehicle from being put into circulation by other persons": investigations (concerning diligence in fulfilling the duties of custody) that are precluded by the contested rule, which automatically imposes the revocation of the licence, regardless of the conduct of the agent.

3. - As regards the lack of manifest unfoundedness, the referring court argues, on the one hand, the violation of the principle of equality, and on the other hand, the unreasonable and disproportionate nature of the automatic revocation of the licence.

In the first respect, it is observed that the penalty of revocation is provided for conduct characterized by a greater disvalue, "for the danger it poses to the safety of traffic and the safety of individuals". On the contrary, the ratio legis of the contested rule would lie in guaranteeing compliance with the obligations of the custodian to whom the vehicle subject to impoundment is entrusted.

The referring court refers, as tertium comparationis, to Article 186, paragraph 2, of the Highway Code, highlighting that it provides for the ancillary penalty of suspension of the driving licence for more serious conduct (driving under the influence of alcohol), which represents a danger to the safety of traffic. Article 186, paragraph 2, provides for revocation only in the case referred to in letter c) – blood alcohol content exceeding 1.5 grams per litre – and only in case of recidivism within two years or if the driver causes a road accident.

In the second respect, the penalty of revocation, provided for by the contested rule, would be "excessively afflictive and disproportionate" with respect to the actual offensiveness of the conduct sanctioned, considering its automatic nature, which would prevent the judge from assessing the conduct of the offender in concreto and from grading the penalty to be applied. According to the referring court, the suspension of the driving licence for a period between a minimum and a maximum would be suitable to adapt the penalty to the specific case.

Ultimately, the contested rule would be in conflict with the principle of equality and would be "unreasonable and disproportionate insofar as it provides for the ancillary penalty of revocation of the driving licence instead of the suspension of the driving licence, or, alternatively, where it does not provide for the power to grade the penalty by applying, according to the seriousness of the specific case, the penalty of suspension of the driving licence".

The referring court cites in support two rulings of this Court. The first is Judgment No. 88 of 2019, which declared "the unconstitutionality of Article 222, paragraph 2, fourth sentence, of Legislative Decree No. 285 of 30 April 1992 (New Highway Code), insofar as it does not provide that, in case of conviction, or application of the penalty at the request of the parties pursuant to Article 444 of the Code of Criminal Procedure, for the offences referred to in Articles 589-bis (Road homicide) and 590-bis (Serious or very serious road personal injuries) of the Criminal Code, the judge may order, as an alternative to the revocation of the driving licence, its suspension pursuant to the second and third sentences of the same paragraph 2 of Article 222 of the Highway Code, where none of the aggravating circumstances provided for in the respective paragraphs two and three of Articles 589-bis and 590-bis of the Criminal Code is present". The case in that judgment could be assimilated to the one now before the Court, in relation to the considerations on the automatic application of the revocation of the driving licence and the solution adopted with an additive ruling.

The referring court then refers to Judgment No. 246 of 2022 of the Court, which declared unconstitutional the parallel provision of Article 213, paragraph 8, of the Highway Code (violation of the obligations of the custodian of the seized vehicle) insofar as it provides that "Shall apply", instead of "May be applied", the ancillary penalty of driving licence revocation. The rule now contested (Article 214, paragraph 8, of the Highway Code) would be "superimposable" to Article 213, paragraph 8, as both provisions concern the violation of the duties of custody of a vehicle subject to impoundment or seizure.

4. - The President of the Council of Ministers did not intervene in these constitutional proceedings.

Reasons

1. - The Justice of the Peace of Forlì doubts, with reference to Article 3 of the Constitution, the constitutionality of Article 214, paragraph 8, of Legislative Decree No. 285 of 1992, as amended by Article 23-bis, paragraph 1, letter b), of Legislative Decree No. 113 of 2018, introduced, during the conversion process, by Law No. 132 of 2018, insofar as it automatically provides for the ancillary administrative penalty of driving licence revocation in case of violation of the obligations of the custodian of the vehicle subject to administrative impoundment.

According to the referring court, the contested rule violates Article 3, first paragraph, of the Constitution, as it would be in conflict with the principle of equality and would be "unreasonable and disproportionate insofar as it provides for the ancillary penalty of revocation of the driving licence instead of the suspension of the driving licence, or, alternatively, where it does not provide for the power to grade the penalty by applying, according to the seriousness of the specific case, the penalty of suspension of the driving licence".

2. - It should be noted, preliminarily, that in the passage just quoted, the referring court alternatively requests two different interventions: a) the replacement of the automatic revocation with the suspension of the driving licence for a period between a minimum and a maximum; b) the replacement of the automatic revocation with the possibility of grading the penalty by choosing between revocation and suspension of the driving licence.

The alternative nature of the petitum indicated in the reasoning of the order does not affect the admissibility of the questions raised. The Court has declared the inadmissibility of the questions when the alternative proposed by the referring court prevented a precise definition of the thema decidendum, concerning the provisions in question or their meaning (among others, judgments No. 225 and No. 66 of 2022, No. 168 of 2020 and No. 237 of 2019) or the parameters invoked (for example, order No. 104 of 2020). In this case, however, the alternative does not concern the terms of the question, which is precisely identified in relation to both the contested rule (automatic revocation of the driving licence) and the parameter (principles of equality and reasonableness): therefore, the referring court has not referred to the Court the identification of the thema decidendum. The alternative concerns the type of intervention requested, but this aspect falls within the autonomy of the constitutional judge, so much so that the referral order does not necessarily have to indicate a petitum (ex multis, judgments No. 136 of 2022 and No. 204 of 2021) and, when it specifies it, this Court is not bound by it (most recently, Judgment No. 12 of 2024).

3. - On the merits, the question raised with reference to the principle of proportionality is well-founded.

With Judgment No. 246 of 2022, the Court declared the unconstitutionality of Article 213, paragraph 8, of the Highway Code (which sanctions the analogous case of illegal circulation of a vehicle subject to seizure) "insofar as it provides that 'Shall apply', instead of 'May be applied', the ancillary penalty of driving licence revocation".

Judgment No. 246 of 2022 noted that, "on the assumption of an undifferentiated assessment of the conduct of illegal circulation of the vehicle subject to seizure, the contested rule connects to it, in a uniform and automatic manner, not gradable according to the seriousness of the fact, the same effect, namely the ancillary penalty of revocation of the driving licence, even in the presence of a possible heterogeneity of reasons underlying the conduct constituting the administrative offence, without this being able to be assessed by the body responsible for applying the ancillary penalty itself"; it also observed that "[t]he alleged automatism prevents the prefect, and the judge in the appeal proceedings, from assessing the necessity of the revocation of the driving licence, both with reference to the circumstances of the specific case, preventing consideration of the seriousness of the violation of the custody duties in the specific case, and with regard to the repercussions that the revocation of the driving licence has on essential aspects of life, in its daily life, and work". This Court therefore concluded that "[t]his constitutes a violation of Article 3 of the Constitution in terms of the lack of necessary proportionality of the administrative penalty", and adopted a substitutive ruling, which transformed the revocation of the driving licence from an automatic penalty to a penalty applicable after an assessment of the specific case by the prefect (and the judge, in the appeal proceedings).

Judgment No. 246 of 2022 was preceded by several rulings that similarly criticized the provision for the automatic revocation of the driving licence (judgments No. 99 and No. 24 of 2020, No. 88 of 2019 and No. 22 of 2018). Instead, following Judgment No. 246 of 2022, this Court has on two occasions declared unfounded questions relating to the automatic revocation of the driving licence: with Judgment No. 194 of 2023, concerning the case of a road accident caused by a driver with a blood alcohol content exceeding 1.5 g/l, and with Judgment No. 266 of 2022, concerning the violation of the prohibition of reversing the direction of travel on motorways. These rulings are not in contradiction with the previous approach, since they have upheld the automatic revocation of the driving licence in the face of "highly dangerous behaviour for the life and safety of persons" (Judgment No. 194 of 2023).

In the case at hand, this Court can only reiterate the conclusions reached with reference to Article 213, paragraph 8, of the Highway Code. The rule in question in this judgment, in fact, presents the same defects as that relating to the seized vehicle, rigidly imposing the revocation of the custodian's driving licence and preventing the assessment, on the one hand, of the seriousness of the violation of custody duties in the specific case and, on the other hand, the repercussions that the revocation of the driving licence has on the custodian's life. Furthermore, even for the offence referred to in Article 214, paragraph 8, of the Highway Code, it can be observed that "the effectiveness of the custody of the vehicle constitutes the protected legal asset [...], while the need for road safety remains overshadowed" (so Judgment No. 246 of 2022, with reference to Article 213, paragraph 8, of the Highway Code).

Article 214, paragraph 8, of the Highway Code must therefore be declared unconstitutional insofar as it provides that "The ancillary administrative penalties of driving licence revocation and vehicle confiscation shall apply", instead of "The ancillary administrative penalty of driving licence revocation may be applied and the ancillary administrative penalty of vehicle confiscation shall apply".

All other grounds of complaint are thereby subsumed.

For These Reasons

THE CONSTITUTIONAL COURT

declares the unconstitutionality of Article 214, paragraph 8, of Legislative Decree No. 285 of 30 April 1992 (New Highway Code), as amended by Article 23-bis, paragraph 1, letter b), of Legislative Decree No. 113 of 4 October 2018 (Urgent provisions on international protection and immigration, public safety, and measures for the functionality of the Ministry of the Interior and the organization and operation of the National Agency for the administration and allocation of assets seized and confiscated from organized crime), introduced, during the conversion process, by Law No. 132 of 1 December 2018, insofar as it provides that "The ancillary administrative penalties of driving licence revocation and vehicle confiscation shall apply", instead of "The ancillary administrative penalty of driving licence revocation may be applied and the ancillary administrative penalty of vehicle confiscation shall apply".

So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 5 March 2024.

Signed:

Augusto Antonio BARBERA, President

Giovanni PITRUZZELLA, Rapporteur

Roberto MILANA, Registrar

Filed with the Registry on 28 March 2024