ORDER NO. 62
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, Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D'ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI,
has issued the following
ORDER
in the proceedings concerning the constitutional legitimacy of Article 635, paragraphs two, number 1), and five, of the Criminal Code, as amended by Article 2, paragraph 1, letter n), of Legislative Decree No. 150 of 10 October 2022 (Implementation of Law No. 134 of 27 September 2021, delegating to the Government the task of improving the efficiency of criminal proceedings, and concerning restorative justice and provisions for the speedy conclusion of judicial proceedings), and of the aforementioned Article 2, paragraph 1, letter n), of Legislative Decree No. 150 of 2022, brought before the Court by the Ordinary Courts of Siracusa, Nola, Rovereto, Lecco, Modena, Lecce, Ancona, Palermo, Agrigento, Messina, Terni, Gela, Ragusa and Arezzo in seventeen separate criminal proceedings, with as many orders registered under numbers 47, 57, 77, 79, 90, 91, 94, 115, 118, 123, 130, 136, 137 and 164 of the 2023 Register of Orders and numbers 2, 14 and 20 of the 2024 Register of Orders, and published in the Official Gazette of the Republic, numbers 16, 18, 24, 25, 28, 37, 38, 39, 41 and 42, Special Series, of the year 2023 and numbers 2, 4, 8 and 9, Special Series, of the year 2024.
Having considered the pleadings of the President of the Council of Ministers;
having heard the Judge Rapporteur, Francesco Viganò, at the Chamber hearing of 16 April 2024;
having deliberated at the Chamber hearing of 16 April 2024.
Considering that, preliminarily, the aforementioned proceedings must be joined, given that the referral orders raise the same issues and are based on substantially common arguments;
that the common intent of all referral orders is to challenge the choice made by the delegating legislator, through Legislative Decree No. 150 of 2022, not to provide for the requirement of a complaint in the crime of damaging things "exposed by necessity or by custom or intended for public trust", provided for and punished by Article 635, paragraph two, number 1), of the Criminal Code, by virtue of the referral to Article 625, number 7), of the same Code;
that Legislative Decree No. 31 of 2024, which entered into force on 4 April 2024, subsequent to the referral orders, introduced the requirement of a complaint for the crime in question, while at the same time providing for specific transitional procedural rules;
that, therefore, prior to the examination of the numerous objections of inadmissibility of the issues raised by the Attorney General's Office in its pleadings, the return of the documents to the referring judges must be ordered for a new examination of the relevance and the non-manifestly unfounded nature of the issues in light of the changed regulatory framework (ex plurimis, Order No. 230 of 2019).
Having considered that seventeen orders of similar tenor from the Ordinary Courts of Siracusa (r.o. no. 47 and no. 91 of 2023), Nola (r.o. no. 57 of 2023), Rovereto (r.o. no. 77 of 2023), Lecco (r.o. no. 79 of 2023), Modena (r.o. no. 90 of 2023), Lecce (r.o. no. 94 of 2023), Ancona (r.o. no. 115 of 2023), Palermo (r.o. no. 118 of 2023 and no. 14 of 2024), Agrigento (r.o. no. 123 of 2023), Messina (r.o. no. 130 of 2023), Terni (r.o. no. 136 and no. 137 of 2023), Gela (r.o. no. 164 of 2023), Ragusa (r.o. no. 2 of 2024) and Arezzo (r.o. no. 20 of 2024) have collectively raised questions of constitutional legitimacy of Article 635, paragraphs two, number 1), and five, of the Criminal Code, as introduced by Article 2, paragraph 1, letter n), of Legislative Decree No. 150 of 10 October 2022 (Implementation of Law No. 134 of 27 September 2021, delegating the Government to improve efficiency of criminal proceedings, and concerning restorative justice and provisions for the speedy conclusion of judicial proceedings), and of the aforementioned Article 2, paragraph 1, letter n), of Legislative Decree No. 150 of 2022, in reference to Articles 3, 27, 76, 111 and 117 of the Constitution, the latter in relation to Article 6 of the European Convention on Human Rights;
that, as extensively illustrated by the referral orders, in all the a quo proceedings the referring courts are judging individuals accused of the crime of damage, relating – by virtue of the reference, made by Article 635, paragraph two, number 1), of the Criminal Code, to Article 625, number 7), of the same Code – to things "exposed by necessity or by custom or intended for public trust";
that, as regards relevance, all the referring courts analytically set out the implications of the amendments relating to the procedural regime in relation to the specific procedural events of the individual a quo proceedings;
that, as regards non-manifest unfoundedness, the a quo judges point out that, for the specific case of damage that is the subject of the proceedings, Legislative Decree No. 150 of 2022 failed to provide for the requirement of a complaint;
that, according to the referral orders, the delegated legislator acted unreasonably, and therefore in contrast with Article 3 of the Constitution, by providing for the requirement of a complaint for another offence – the theft of things exposed by necessity, custom or intended for public trust – similar but much more serious than the damage to the same goods, for which the ex officio procedure has been maintained;
that, in the view of the referring courts, the Government violated Article 76 of the Constitution, contravening the delegation which "among its inherent and always implicit guiding principles and criteria cannot but also include respect for the principle of reasonableness";
that only one referral order (r.o. no. 57 of 2023) criticised the rules that are the subject of today's questions also in reference to Articles 27, 111 and 117 of the Constitution, the latter in relation to Article 6 ECHR;
that, in particular, this order observes how the continued application of the penalty in cases where the injured party has withdrawn the complaint, with reference to a fact which, "according to the general criteria established by the same delegating legislator, is not instead 'necessary', according to the free assessment of the injured party", would constitute a "clear violation [...] also of the rehabilitative purpose of the penalty";
that this same order considers that the ex officio procedure would be "in conflict with the principle of a reasonable duration of the proceedings and, consequently, with the aim of reducing court cases which underlies the amendments to the rules concerning the requirement of a complaint supported by the delegated legislator";
that the President of the Council of Ministers intervened in all the proceedings, represented and defended by the Attorney General of the State, requesting that the questions raised be declared inadmissible;
that, subsequent to the referral orders, Article 1, paragraph 1, letter b), of Legislative Decree No. 31 of 19 March 2024 (Supplementary and amending provisions of Legislative Decree No. 150 of 10 October 2022, implementing Law No. 134 of 27 September 2021, delegating the Government to improve the efficiency of criminal proceedings and concerning restorative justice and provisions for the speedy conclusion of judicial proceedings), which entered into force on 4 April 2024, amended Article 635, fifth paragraph, of the Criminal Code, introducing the requirement of a complaint for the crime of damage committed on "things exposed by necessity or by custom or intended for public trust";
that, at the same time, Article 9, paragraph 1, of the same Legislative Decree No. 31 of 2024 provided that "[f]or the crime referred to in Article 635 of the Criminal Code, committed before the entry into force of this Decree, when the act is committed on things exposed by necessity or by custom or intended for public trust, the provisions of Article 85 of Legislative Decree No. 150 of 10 October 2022, as amended by Decree-Law No. 162 of 31 October 2022, converted, with amendments, by Law No. 199 of 30 December 2022, shall apply, but the time limits provided therein shall run from the date of entry into force of this Decree";
that the Attorney General of the State, with identical pleadings filed in all the proceedings, except those under nos. 47, 77, 91 and 118 of the 2023 Register of Orders, and that under no. 2 of the 2024 Register of Orders, acknowledged the entry into force of the described ius superveniens, insisting on the declaration of inadmissibility of all the questions now before the Court.
Having considered the aforementioned points, and Articles 26, second paragraph, of Law No. 87 of 11 March 1953, and 11, paragraph 1, of the Supplementary Rules for proceedings before the Constitutional Court.
For These Reasons
THE CONSTITUTIONAL COURT
having joined the proceedings,
orders the return of the documents to the referring judges.
So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 16 April 2024.
Signed:
Augusto Antonio BARBERA, President
Francesco VIGANÒ, Rapporteur
Valeria EMMA, Registrar
Filed with the Registry on 18 April 2024