JUDGMENT NO. 74

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, 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 34, paragraph 2, of the Code of Criminal Procedure, initiated by the Judge for Preliminary Investigations of the Ordinary Court of Santa Maria Capua Vetere in the criminal proceedings against S. P., by order of 1 February 2023, registered under no. 63 of the 2023 register of orders and published in the Official Gazette of the Republic no. 20, first special series, of the year 2023, the hearing of which was scheduled for the chamber hearing of 20 February 2024.

Having regard to the act of intervention of the President of the Council of Ministers;

Heard in the chamber hearing of 21 February 2024 the reporting Judge Franco Modugno;

Deliberated in the chamber hearing of 21 February 2024.

Facts of the case

1.– By order of 1 February 2023, registered under no. 63 of the 2023 register of orders, the Judge for Preliminary Investigations of the Ordinary Court of Santa Maria Capua Vetere raised questions of constitutional legitimacy, with reference to Articles 3, 24 and 111 of the Constitution, of Article 34, paragraph 2, of the Code of Criminal Procedure, in the part where it does not provide for the incompatibility of the Judge for Preliminary Investigations who has rejected the request for the issuance of a penal order, due to the alleged illegality of the penalty, to rule on a new request for a penal order submitted by the Public Prosecutor in accordance with the observations previously made by the same judge.

1.1.– The referring judge states that, on 17 November 2022, the Public Prosecutor had submitted a request for a penal order sentencing to a penalty of 780 euros fine a person accused of the offence referred to in Article 4 of Law No. 110 of 18 April 1975 (Supplementary rules to the legislation in force for the control of weapons, ammunition and explosives), for having carried outside his home a blank pistol, calibre 8, without the required red plug.

The referring judge reports having rejected the request for the alleged illegality of the proposed penalty, due to its inferiority to the minimum statutory limit of the offence under investigation. The Public Prosecutor had, in fact, identified a basic penalty equal to thirty days of arrest and 90.00 euros fine, compared to a statutory bracket that provided for arrest from six months to two years and a fine from 1,000 to 10,000 euros.

After returning the documents to the Public Prosecutor, the latter formulated a new request for a penal order against the same person and for the same act, setting the penalty at 500.00 euros fine and simultaneously alleging the incompatibility of the referring judge, for having already rejected the previous request for a penal order. This incompatibility was derived from judgment no. 16 of 2022, with which this Court declared the constitutional illegitimacy of Article 34, paragraph 2, of the Code of Criminal Procedure, in the part where it does not provide that the Judge for Preliminary Investigations, who has rejected the request for a penal order due to the failure to contest an aggravating circumstance, is incompatible to rule on the new request for a penal order formulated by the Public Prosecutor, in accordance with the observations of the judge himself.

1.2.– The referring judge does not share the assumption that, in the present case, the same hypothesis of incompatibility covered by the aforementioned additional judgment can be found and therefore raises questions of constitutional legitimacy of Article 34, paragraph 2, of the Code of Criminal Procedure, in the part where it does not provide that the Judge for Preliminary Investigations who has already ruled on a previous request for a penal order, rejecting it due to the alleged illegality of the penalty, is incompatible to rule on the new request for a penal order, formulated by the Public Prosecutor following his observations. The referring judge believes that, in this circumstance too, the constitutional vulnera found by the aforementioned judgment are present. This is because, even in the present hypothesis, the rejection by the Judge for Preliminary Investigations, with the return of the documents to the Public Prosecutor, would entail a merits assessment of the res iudicanda, as there is an underlying recognition that, in light of the results of the investigation documents, the act for which proceedings are being brought exists and is attributable to the defendant. The prerequisite for the return of the documents to the Public Prosecutor would in fact be, pursuant to Article 459, paragraph 3, of the Code of Criminal Procedure, the lack of preconditions for the pronouncement of a judgment of acquittal pursuant to Article 129 of the Code of Criminal Procedure.

1.3.– The referring judge also notes that the rejection of the request for a penal order, with the return of the documents to the Public Prosecutor, results in the regression of the proceedings to the preliminary investigation phase, with the consequence that the subsequent submission of a further request for a penal order would open a new and distinct phase of judgment, within which the previous assessments would exercise their prejudicial effect.

1.4.– Finally, noting that this Court, in judgment no. 16 of 2022, stated that the rules on the incompatibility of the judge arising from acts carried out in the proceedings are set to protect Articles 3, 24 and 111 of the Constitution, as they are aimed at preventing the decision on the merits of the case from "being or appearing to be conditioned by the force of prejudice – i.e. by the natural tendency to confirm a decision already made or to maintain an attitude already taken – arising from assessments to which the judge has been previously called with regard to the same res iudicanda”, the referring judge considers that, also in today's case, the need to add to Article 34, paragraph 2, of the Code of Criminal Procedure a new hypothesis of incompatibility, referring to the case in question, arises.

2.– The President of the Council of Ministers, represented and defended by the State Attorney General's Office, intervened in the proceedings, requesting that the questions be declared inadmissible or, in any case, unfounded.

2.1.– In the first place, the State Attorney General's Office notes that the order for reference would not have clarified on the basis of which probative elements the referring judge considers that the act contested in the request for the issuance of a penal order exists and is attributable to the defendant, finding in this a defect in the description of the case that would preclude the possibility of fully assessing the applicability, in the proceedings a quo, of the challenged provision.

2.2.– Secondly, the questions would be inadmissible for irrelevance, since, if the judge had actually considered his own incompatibility to take cognizance of the new request for the adoption of the penal order, he could have abstained, alleging the "serious reasons of expediency" referred to in Article 36, paragraph 1, letter h), of the Code of Criminal Procedure.

2.3.– On the merits, the State Defence notes that, according to the frequently cited judgment no. 16 of 2022, four conditions are necessary for an "activity causing prejudice" to be established that makes the provision of a cause of incompatibility of the judge constitutionally imposed: the pre-existence of assessments that fall on the same res iudicanda; the existence of assessments of previously performed acts, instrumental to the adoption of a decision; the circumstance that they concern the merits of the accusatory hypothesis (and not merely the conduct of the proceedings); the circumstance that the previous assessments are located in a different phase of the proceedings.

Of these four conditions, the intervener considers the third and fourth to be non-existent.

2.3.1.– Regarding the third condition, the State Defence maintains that the mere exclusion of a ruling of acquittal pursuant to Article 129 of the Code of Criminal Procedure cannot be equated to the positive finding of the non-existence of the relevant preconditions. Unlike the case of rejection of a request for a penal order due to an incorrect legal classification of the act and the failure to contest an aggravating circumstance, the assessment regarding the illegality of the penalty would be an objective element, exogenous to the specific case and, as such, detectable from the mere reading of the request for a penal order, regardless of any assessments regarding the merits of the accusatory hypothesis.

2.3.2.– Regarding the fourth condition, in the opinion of the intervener, the resubmission of the request for a penal order previously rejected due to the illegality of the penalty would not open a new phase of judgment, distinct and further: it would rather be "the mere re-issue/renewal of the same procedural phase”.

Legal Reasoning

1.– The Judge for Preliminary Investigations of the Ordinary Court of Santa Maria Capua Vetere has raised questions of constitutional legitimacy of Article 34, paragraph 2, of the Code of Criminal Procedure, in the part where it does not provide for the incompatibility of the Judge for Preliminary Investigations who has rejected the request for a penal order, due to the alleged illegality of the penalty proposed by the Public Prosecutor, to rule on a new request for a penal order, submitted by the latter on the basis of the observations of the same judge.

With reference to the case that occurred in the proceedings pending before him, the referring judge requests a ruling similar to judgment no. 16 of 2022, with which this Court declared the constitutional illegitimacy of Article 34, paragraph 2, of the Code of Criminal Procedure, in the part where it does not provide that the Judge for Preliminary Investigations, who has rejected the request for a penal order due to the failure to contest an aggravating circumstance, is incompatible to rule on the new request for a penal order formulated by the Public Prosecutor in accordance with the observations of the judge himself.

Indeed, the referring judge a quo considers that, also in the case of rejection of the request for a penal order due to the alleged illegality of the penalty, with the return of the documents to the Public Prosecutor, the conditions that supported the pronouncement of acceptance of the questions covered by judgment no. 16 of 2022, are met: in particular, the previous merit assessment of the same res iudicanda (an assessment that would be implicit in the exclusion of a judgment of acquittal pursuant to Article 129 of the Code of Criminal Procedure) and the regression of the proceedings to the preliminary investigation phase, with the consequence that the subsequent submission of a further request for a penal order would open a new and distinct phase of judgment, within which the previous assessments would exercise their prejudicial effect.

Therefore, the failure to provide for the incompatibility in the case considered would violate the principles of impartiality and impartiality of the judge referred to in Articles 3, 24 and 111 of the Constitution, since the new decision on the merits of the case could be, or appear to be, conditioned by the "force of prejudice", i.e. by the natural tendency to confirm a decision already made or to maintain an attitude already taken in the previous assessment of the merits of the accusation.

2.– The President of the Council of Ministers, who intervened in the proceedings, preliminarily objected to the inadmissibility of the questions due to an incomplete description of the specific case and for lack of relevance.

Both objections are unfounded.

2.1.– As regards the first objection, relating to the failure to indicate the probative elements on the basis of which the referring judge, in rejecting the first request for a penal order, would have considered the existence of the act and its attributability to the defendant, it should be noted that it is not an indication indispensable for the purpose of verifying the relevance of the questions. For these purposes, as we are dealing with questions concerning the failure to provide for a cause of incompatibility, it is sufficient to know that the referring judge considers that he has affirmed in the rejection phase – albeit implicitly – the criminal responsibility of the defendant, regardless of the elements on which it is based. The description of the specific case, however brief, is therefore sufficient to satisfy the burden of reasoning on the relevance, as the existence of the situation that, if the question were accepted, would lead to the emergence of incompatibility in the main proceedings, has been represented.

2.2.– The other objection of inadmissibility for lack of relevance is also unfounded, motivated by the argument that, if the referring judge had considered his own incompatibility to take cognizance of the new request for a penal order, he could have abstained for "serious reasons of expediency”, pursuant to Article 36, paragraph 1, letter h), of the Code of Criminal Procedure.

In reality, this Court has, on several occasions, affirmed the difference between the institution of incompatibility, on the one hand, and those of abstention and recusal, on the other, noting that these are institutions that do share the same ratio of guaranteeing the neutrality of the exercise of criminal jurisdiction, but at different times and with different characteristics. The legislator has, in fact, differentiated "a list of situations that are prejudicial in the abstract – therefore, regardless of the concrete possible prejudice of the judge – which entail, in principle, incompatibility", from the ""suspect” hypotheses, all united by the existence of a prejudicial situation to be verified in concrete terms, according to a predefined procedure", which give rise to cases of abstention and recusal (judgment no. 91 of 2023; similarly, ex multis, order no. 123 of 2004).

The assessment of the constitutional need to provide for a case of incompatibility – in the abstract – therefore disregards the possibility that the judge – in concrete terms – can make use of the request for abstention.

3. – On the merits, the questions are unfounded.

3.1.– According to the consistent jurisprudence of this Court, the regulation of the incompatibility of the judge finds its ratio in the safeguarding of the principles of impartiality and impartiality of the jurisdiction, being aimed at preventing the decision on the merits of the case from being – or appearing to be – conditioned by the "force of prejudice", i.e. by the natural "tendency to confirm a decision or to maintain an attitude already taken, deriving from assessments that he has been previously called to carry out with regard to the same res iudicanda” (ex plurimis, most recently, judgments no. 172 of 2023 and, in the same sense, judgments no. 64, no. 16 and no. 7 of 2022).

In particular, with reference to the cases of so-called "horizontal" incompatibility, referred to in the challenged paragraph 2 of Article 34 of the Code of Criminal Procedure – i.e. the incompatibility relating to the relationship between the judgment phase and the phase preceding it –, this Court has specified that "incompatibility presupposes a relationship between two terms: a "source of prejudice” (i.e. a jurisdictional activity capable of generating the force of prejudice) and a "prejudiced seat” (i.e. a decision-making task, for which the judge, who has carried out the prejudicial activity, is no longer suitable)" (judgment no. 16 of 2022).

3.2.– As regards the "prejudiced seat", which Article 34, paragraph 2, of the Code of Criminal Procedure identifies in participation in the "judgment", this Court has already clarified that the decision on the request for a penal order constitutes, as a rule, a function of judgment, as the control entrusted to the Judge for Preliminary Investigations concerns not only the preconditions of the rite, but also the merits of the accusatory hypothesis, postulating a verification of the historical fact and the responsibility of the defendant (judgments no. 16 of 2022 and no. 346 of 1997). The judge may investigate, among other things, the appropriateness of the penalty requested by the Public Prosecutor, the accuracy of the legal classification of the act and the sufficiency of the probative elements (all hypotheses which, in the event of a negative outcome of the verification, lead to the rejection of the request). He may also acquit the defendant pursuant to Article 129 of the Code of Criminal Procedure (Article 459, paragraph 3, of the Code of Criminal Procedure).

3.3.– As regards the "prejudicial activity", this Court has long specified the conditions that must simultaneously exist in order to configure the constitutional need to provide for a hypothesis of endoprocedural incompatibility: the pre-existing assessments must fall on the same res iudicanda; the judge must have been called upon to make an assessment of previously performed acts, in a manner that is instrumental to the adoption of a decision (and not simply to have had knowledge of them); this assessment must concern the merits of the accusatory hypothesis (and not merely the conduct of the proceedings); finally, the previous assessments must be located in a different phase of the proceedings.

In the case under examination today, the first two conditions undoubtedly exist.

It is therefore necessary to focus exclusively on the last two, the existence of which is disputed by the State Defence.

3.3.1.– Regarding the need for the assessments on the same res iudicanda to be carried out in different procedural phases, this Court has repeatedly clarified that no "impairment of the impartiality of the judge can be configured in relation to assessments, even on the merits, carried out within the same phase of the proceedings" (order no. 76 of 2007; similarly, ex plurimis, orders no. 123 and no. 90 of 2004, no. 232 of 1999). This is because, if the opposite view were taken, the defendant would be given the power to determine the incompatibility of the judge correctly invested with the judgment, in contrast with the principle of the natural judge pre-established by law, simultaneously giving rise to an unreasonable fragmentation of the procedural series: the process is by its nature constituted by a sequence of acts, each of which can abstractly involve assessments on what may affect its outcome, so that, if it were necessary to isolate every act that contains a decision capable of manifesting an assessment within the same procedural phase, the unity of the judgment would be irreparably prejudiced.

This, however, is not the case: the rejection of the request for the issuance of a penal order entails a regression of the proceedings to the different phase of the preliminary investigation (judgment no. 16 of 2022) and a consequent "full re-expansion of the powers of the Public Prosecutor" with regard to the criminal action and its methods of exercise (Court of Cassation, United Criminal Sections, judgment 18 January - 9 May 2018, no. 20569; similarly, second criminal section, judgments 16 June - 21 July 2021, no. 28288 and 20 - 27 March 2009, no. 13680); a re-expansion that also occurred in the proceedings a quo, within which the Public Prosecutor formulated a second – and different – request for a penal order.

3.3.2.– However, the third condition identified by this Court to consider the provision of a hypothesis of incompatibility constitutionally imposed does not exist.

The activity to which the referring judge would like to attach prejudicial effect is the rejection of the request for a penal order due to the alleged illegality of the penalty proposed by the Public Prosecutor (in the present case, since the penalty assumed as the basis for the reduction connected to the special rite exceeded, due to a defect, the statutory framework of the contested offence): a penalty – that indicated by the Public Prosecutor – which the Judge for Preliminary Investigations, when deciding on the request, is not authorised to modify, with the consequence that the error made by the representative of the prosecution excludes a priori the possibility of acceptance of the request.

The assessment regarding the illegality of the penalty can, moreover, be carried out on the basis of the mere reading of the request for a penal order, without the need to initiate considerations of the merits of the request itself and regardless of any considerations regarding the merits of the accusatory hypothesis. It cannot therefore be ruled out that, if the Judge for Preliminary Investigations notes that the sanction proposed by the Public Prosecutor does not respect the criteria provided for by law for its determination, he will proceed to the return of the documents so that the Public Prosecutor can reformulate the request in compliance with the provisions of the law, without having formed a conviction regarding the existence, or not, of the criminal responsibility of the defendant.

The return of the documents to the Public Prosecutor, in this case, is different from that covered by the incidental proceedings defined by judgment no. 16 of 2022, referring to the rejection of the request for a penal order due to the failure to contest an aggravating circumstance: a measure in which there is necessarily implicit recognition that, in light of the results of the investigation documents, not only the act for which proceedings are being brought exists and is attributable to the defendant, but that it is also aggravated by a circumstance neglected by the Public Prosecutor. The hypothesis under examination today is, instead, characterised by a mere ab externo assessment, which does not require the judge to enter into the merits of the ascertainment of the act and the responsibility of the defendant.

For this reason, it cannot be considered – according to the abstract assessment that supports the identification of the hypotheses of incompatibility – that such a pronouncement possesses a "prejudicial force" such as to disturb the impartiality and impartiality of the judge called upon to carry out a function of judgment in the "prejudiced seat" (i.e., in the present case, to rule on the new request for the issuance of a penal order).

However, the judge still has the possibility of alleging – should the concrete preconditions be met – the existence of the "serious reasons of expediency” that would legitimise his abstention pursuant to Article 36, paragraph 1, letter h), of the Code of Criminal Procedure.

For These Reasons

THE CONSTITUTIONAL COURT

declares that the questions of constitutional legitimacy of Article 34, paragraph 2, of the Code of Criminal Procedure, raised, with reference to Articles 3, 24 and 111 of the Constitution, by the Judge for Preliminary Investigations of the Ordinary Court of Santa Maria Capua Vetere by the order indicated in the heading, are unfounded.

Thus decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 21 February 2024.

Signed:

Augusto Antonio BARBERA, President

Franco MODUGNO, Reporting Judge

Igor DI BERNARDINI, Registrar

Filed in the Registry on 26 April 2024