JUDGMENT NO. 71
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 VIGANĂ’, 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 574-bis of the Criminal Code, referred by the Ordinary Court of Cuneo, sitting as a single judge, in the criminal proceedings against M. P., by order of 20 June 2023, registered at no. 106 of the register of orders 2023 and published in the Official Gazette of the Republic No. 35, special first series, of the year 2023, the hearing of which was set for the Chamber Council meeting of 19 March 2024.
Having seen the out-of-time notice of appearance of M. P., as well as the intervention of the President of the Council of Ministers;
Having heard in the Chamber Council of 20 March 2024 the Reporting Judge Giulio Prosperetti;
Having deliberated in the Chamber Council of 20 March 2024.
Facts
1. - By order of 20 June 2023 (reg. ord. no. 106 of 2023), the Ordinary Court of Cuneo, sitting as a single judge, raised, with reference to Article 3 of the Constitution, a question of constitutional legitimacy of Article 574-bis of the Criminal Code, insofar as it does not provide for the prosecution upon complaint of the crime of abduction and retention of a minor abroad, due to unjustified disparate treatment and unreasonableness compared to the crime of abduction of incapacitated persons under Article 574 of the Criminal Code.
1.1. - The referring court reports that it must proceed against a citizen of the Czech Republic, who had been summoned to trial by the public prosecutor on 24 February 2021 because, from the beginning of September 2019 to May 2021, she had detained her minor children abroad, in her country of origin, against the will of the father who exercised parental responsibility over the minors with her.
The latter had wished to withdraw the complaint filed against the mother of his children at the invitation of the Czech judge (Court of Appeal of Brno) who, in ordering the return of the minors to Italy, had made it a condition that the father take all necessary steps to avoid a further worsening of relations between the parents and to promote the restoration of family harmony.
2. - The a quo judge notes, however, the futility of this willingness to withdraw the complaint since the offence under Article 574-bis of the Criminal Code is prosecutable ex officio; the criminal offence was in fact introduced by Article 3, paragraph 29, letter (b), of Law 15 July 2009, No. 94 (Provisions on Public Security), which has tightened the penalty regime compared to the basic offence of abduction of incapacitated persons under Article 574 of the Criminal Code.
According to the referring court, this tightening would be justified by the greater seriousness of the conduct carried out abroad, due to the difficulty of "recovering” the minor, while there would be no reasonable justification for the different regime of prosecution, which would result in unjustified disparate treatment since both offences of abduction of a minor, in Italy or abroad, aim to protect the same legal asset, namely the effective exercise of parental responsibility.
3. - Furthermore, the possibility of withdrawing the complaint would facilitate the restoration of family harmony, which not only applies in this case, having been specifically referred to by the Court of Appeal of Brno which allowed the minors to be returned to Italy, but is an essential interest which this Court has also taken into account when, with judgment No. 102 of 2020, it declared the unconstitutionality of Article 574-bis, third paragraph, of the Criminal Code "insofar as it provides that the conviction pronounced against the parent for the crime of abduction and retention of a minor abroad to the detriment of the minor child entails the suspension of the exercise of parental responsibility, rather than the possibility for the judge to order the suspension of the exercise of parental responsibility".
4. - On the point of relevance, the referring court observes that, since during the trial it was shown that the defendant had detained the minor children abroad against the will of their father, the public prosecutor charged the offence for which Article 574-bis of the Criminal Code must be applied in the trial, without the possibility of pronouncing an acquittal due to the withdrawal of the complaint.
5. - The President of the Council of Ministers intervened in the a quo proceedings, represented and defended by the Attorney General's Office, arguing that the issue raised was unfounded; indeed, after a brief normative excursus on Law No. 94 of 2009, which introduced several rules aimed at strengthening the protection of minors, including the crime of abduction of a minor abroad, the Attorney General highlights the legal and social evolution undergone by the legal asset in question.
5.1. - Originally, in fact, the abduction offences provided for in Article 574 of the Criminal Code (abduction of incapacitated persons) and Article 573 of the Criminal Code (consensual abduction of minors) were aimed at protecting the family unit and the interest of parents in maintaining control over their minor children.
5.2. - However, with the evolution of social conscience, this Court has already recognized that Article 574 of the Criminal Code does not only protect the right of those who exercise the power-duty of a parent, but also the interest of the minor to live in their usual place of residence, according to the determinations and indications of the parent himself, and has identified, as the object of protection of the offence of abduction of a minor, the parental responsibility exercised in the predominant interest of the minor himself.
5.3. - In this context, the new offence under Article 574-bis of the Criminal Code would have been inserted, which, in punishing more severely the conduct of abduction of the minor who is taken abroad by providing for an autonomous offence prosecutable ex officio and for which a more serious penalty is provided, would have made it possible to overcome the weaknesses of the previous legislation, namely the limitations deriving from prosecution upon complaint and the lack of grounds for proceeding with arrest in flagrante delicto and for adopting precautionary measures.
5.4. - In any case, the President of the Council of Ministers considers the question unfounded for two reasons; firstly, because the abduction of a minor in Italy and that abroad would not be comparable, the latter conduct being more serious than that carried out within the State, both for the difficulty of recovering the minor himself, and because the latter is deprived of the possibility of living in his own environmental context and where he can more easily develop his personality.
5.5. - Furthermore, the consideration of the legislator's discretion in determining the regime of prosecution of offences would be relevant, which, according to constant constitutional jurisprudence, would only be reviewable in the case of manifest unreasonableness, which does not occur in this case, given the greater seriousness of the offence under Article 574-bis of the Criminal Code, and in the face of the evolutionary interpretation of the interest protected, which sees the child's right at the center of the assessment and suggests a "publicization" of this interest consistent with ex officio prosecution.
5.6. - The defendant in the a quo proceedings appeared out of time and the hearing of the case was set for the Chamber Council.
Reasons
1. - The Court of Cuneo, sitting as a single judge, raised a question of constitutional legitimacy of the crime of abduction and retention of a minor abroad under Article 574-bis of the Criminal Code, insofar as it provides that the crime is prosecutable ex officio rather than upon complaint.
1.1. - The judge reports that in the a quo proceedings the defendant had detained her minor children in the Czech Republic against the will of their father and the Court of Appeal of Brno, in ordering their return to Italy, had recommended that the father do everything necessary for the restoration of family harmony.
1.2. - According to the referring court, the ex officio prosecution of the offence under Article 574-bis of the Criminal Code would be in conflict with Article 3 of the Constitution due to unjustified disparate treatment and unreasonableness compared to the different offence of abduction of incapacitated persons under Article 574 of the Criminal Code, since both aim to protect the same legal asset, the exercise of parental responsibility, and the greater seriousness of the conduct of abduction or retention of the minor abroad would already be compensated by an aggravation of the penalty provided for the abduction of an incapacitated person within the national territory.
Therefore, the different prosecution regime would not have a reasonable justification and, indeed, would make it impossible to restore family harmony through the possibility offered by the withdrawal of the complaint.
2. - The question is unfounded.
3. - Article 574-bis was introduced into the Criminal Code by Law No. 94 of 2009 and is part of a broader framework of penal responses that the legislator intended to give to criminal conduct involving minors, including the introduction of the crime of begging involving minors and the aggravating circumstances of kidnapping to the detriment of a minor or to the detriment of a minor taken or detained abroad.
4. - The crime of abduction of a minor abroad has been included among the crimes against family assistance, where the crime of abduction of an incapacitated person under Article 574 of the Criminal Code is also placed, with which it shares the typification of the conduct, consisting in abducting a minor from the parent exercising parental responsibility or detaining them against the will of the latter.
4.1. - The specializing element of the new criminal offence is the fact that the taking or detention is carried out abroad, far from the minor's usual place of residence or abode; and for this reason the legislator has provided for a more severe penalty ranging from one to four years' imprisonment, while the offence under Article 574 of the Criminal Code provides for a penalty of imprisonment from one to three years.
5. - From the description of the conduct and the very placement of the offences, which – as mentioned – have been included among the crimes against family assistance, it is evident that the protected asset is the family interest connected to the exercise of parental responsibility, which has undergone normative and jurisprudential evolution since the reform of family law under Law 19 May 1975, No. 151 (Reform of family law).
6. - In particular, this reform has attributed this "power" to both parents (Article 316 of the Civil Code), thus implementing the constitutional provision of moral and legal equality of spouses, and, in Article 147 of the Civil Code, has established that the obligation to maintain, educate and raise children must be fulfilled taking into account the children's abilities, inclinations and aspirations.
6.1. - This conception is strengthened by a subsequent normative stage, constituted by Article 39 of Legislative Decree 28 December 2013, No. 154 (Revision of the provisions in force concerning filiation, pursuant to Article 2 of Law 10 December 2012, No. 219), which, in amending Article 316 of the Civil Code, has replaced the "power" of parenthood with "parental responsibility" over children, referring to a concept that no longer coincides with the exercise of power, of which the minor was the object, but refers to the assumption of a role that the parent plays in the interest of another (the minor) and for which he is called to account.
Article 55 of the aforementioned Legislative Decree No. 154 of 2013 also added Article 337-ter of the Civil Code, which provides that both parents, even if separated, remain holders of parental responsibility, thus further enhancing the child's interest in maintaining a balanced and continuous relationship with the father and mother and in receiving care, education, instruction and moral assistance from them.
7. - The protection of the child is also the subject of attention at the international level and, in fact, the Convention on the Rights of the Child, signed in New York on 20 November 1989, ratified and made executory by Law 27 May 1991, No. 176, expressly establishes the right of the child to be raised by their parents in a way that ensures their development with full respect for their abilities; the European Convention on the Exercise of Children's Rights, signed in Strasbourg on 25 January 1996, ratified and made executory by Law 20 March 2003, No. 77, aims to promote, in the best interests of children, their rights (Article 1) and establishes that decisions of the judicial authority, in proceedings concerning minors, must be guided by the interests of the latter (Article 6).
8. - The jurisprudence of this Court has also recognized that parental responsibility must be exercised in the best interests of minors and, in fact, judgments No. 7 of 2013 and No. 31 of 2012 have declared the unconstitutionality of the automatism of the accessory penalty of the loss of parental power by eliminating it, precisely in consideration of the need to assess in concreto, case by case, what is the actual interest of the minor.
In the same vein, judgment No. 102 of 2020 annulled the automatism of the suspension of parental responsibility precisely in the case of conviction of a parent for the crime of abduction of a minor abroad under Article 574-bis of the Criminal Code.
This judgment expressly refers to the explanatory memorandum to Legislative Decree No. 154 of 2013 and to the concept of parental responsibility introduced by it, which is a broader concept than the previous power, now consisting of a set of duties, obligations and rights incumbent on the parent. In this way, the shift is confirmed from the concept of power attributed in the interest of the father, at the time the sole custodian of family unity, to the current one of parental responsibility, functional to the protection of the minor's interest.
9. - The aforementioned change in the legislation denotes the public interest of the asset protected by the abduction offences, which is no longer related to the maintenance of parental prerogatives, but to the significant social alarm also caused by the difficulty of finding the minor abroad and bringing them back to Italy.
9.1. - Furthermore, the conduct carried out abroad is very different from that under Article 574 of the Criminal Code and, therefore, is not comparable to it, since it affects not only the minor's interest in not growing up away from one or both parents, but also that of not being uprooted from their original context.
Therefore, the legislator's discretion in providing for a different prosecution regime for the two offences has not been exercised unreasonably.
10. - With regard to the restoration of family harmony with the other parent, which would be allowed by the withdrawal of the complaint, the deterrence constituted by ex officio proceedings must be considered, also in consideration of possible psychological conditioning that the reporting parent could undergo regarding the withdrawal of the complaint if the law allowed it.
10.1. - However, it should be considered that the minimum penalty provided for in Article 574-bis of the Criminal Code is below the limit of the possibility of benefiting from the conditional suspension of the sentence, a fact that allows the judge to calibrate the sentence also in view of a family reconciliation.
10.2. - Finally, it should be remembered that for the recomposition of family unity, recourse can be made to the specific instrument of restorative justice, introduced into the legal system by Legislative Decree 10 October 2022, No. 150 (Implementation of Law 27 September 2021, No. 134, containing a delegation to the Government for the efficiency of criminal proceedings, as well as on restorative justice and provisions for the speedy resolution of judicial proceedings), which, through specific programs involving the victim of the crime, the person indicated as the author of the offence and other members of the community, allows the author of the offence to be held accountable and to repair interpersonal relationships damaged by the crime.
11. - Therefore, the aforementioned reasons justify the legislator's choice to differentiate the prosecution regime of the abduction offences under Articles 574 and 574-bis of the Criminal Code and determine the unfounded nature of the question.
For These Reasons
THE CONSTITUTIONAL COURT
declares the question of constitutional legitimacy of Article 574-bis of the Criminal Code, raised, with reference to Article 3 of the Constitution, by the Ordinary Court of Cuneo, sitting as a single judge, with the order mentioned above, to be unfounded.
So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 20 March 2024.
Signed:
Augusto Antonio BARBERA, President
Giulio PROSPERETTI, Reporting Judge
Roberto MILANA, Director of the Registry
Filed with the Registry on 23 April 2024