JUDGMENT NO. 83
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 legitimacy of Article 444 of the Code of Criminal Procedure, brought before it by the Marsala Ordinary Court, sitting as a single judge, in the criminal proceedings against G. P., pursuant to the Order of 1 December 2022, registered under no. 33 of the 2023 register of orders and published in the *Official Gazette* of the Republic, no. 13, first special series, of the year 2023.
Having considered the intervention of the President of the Council of Ministers;
Having heard the reporting Judge, Franco Modugno, at the Chamber hearing of 19 March 2024;
Having deliberated at the Chamber hearing of 19 March 2024.
Facts
1. – By Order of 1 December 2022, registered under no. 33 of the 2023 register of orders, the Marsala Ordinary Court, sitting as a single judge, raised, with reference to Articles 3, 24 and 111 of the Constitution, questions of constitutional legitimacy of Article 444 of the Code of Criminal Procedure, insofar as, in the case of application of the penalty upon request of the parties for contraventions, it provides for a reduction of the penalty by up to one-third, rather than by up to one-half.
1.1. – The referring court reports that it is seized of the proceedings against a person accused of the contravention of violation of the obligations relating to special surveillance, pursuant to Article 75, paragraph 1, of Legislative Decree 6 September 2011, no. 159 (Code of anti-mafia laws and preventive measures, as well as new provisions concerning anti-mafia documentation, pursuant to Articles 1 and 2 of Law 13 August 2010, no. 136).
Having declared the absence of the accused, it was noted that the Public Prosecutor had not consented to a previous request for the application of the penalty, submitted by the defence counsel pursuant to Article 444 of the Code of Criminal Procedure: non-consent was motivated by the fact that the defence counsel had requested a premium reduction of the penalty by one-half, which is greater than that permitted.
In the face of this, the defence counsel raised the issue of the constitutional illegitimacy, *in parte qua*, of the aforementioned Article 444 of the Code of Criminal Procedure, for violation of Articles 3, 24 and 111 of the Constitution.
The exception is based on the consideration that Article 1, paragraph 44, of Law 23 June 2017, no. 103 (Amendments to the Penal Code, the Code of Criminal Procedure and the Penitentiary System), amending paragraph 2 of Article 442 of the Code of Criminal Procedure, established for the abbreviated judgment a premium reduction of the penalty by one-half when proceeding for a contravention, without making a parallel adjustment of paragraph 1 of Article 444 of the Code of Criminal Procedure, which continues to provide for the reduction of the penalty by up to one-third, even when the plea bargain concerns a contravention. This would have created – according to the defence counsel – a discrepancy contrary to the principles of due process, equality and inviolability of the right of defence.
1.2. – In the opinion of the referring court, the questions thus raised would be relevant – since it must apply the contested provision to decide on the plea bargain request – and at the same time not manifestly unfounded.
The legislative choice to provide, for the same contravention, a reduction of the penalty by up to one-third in the case of a plea bargain, unlike the abbreviated judgment – which ensures a reduction by one-half – would, in fact, prove to be "conducive to discriminatory application results", incompatible with the principles of reasonableness and equality, especially considering that the plea bargain procedure is the one that guarantees maximum procedural efficiency and the quickest conclusion of proceedings.
The unreasonableness of the disparity would appear even more evident in the case where the accused opts for the so-called conditional abbreviated judgment, pursuant to Article 438, paragraph 5, of the Code of Criminal Procedure. In this case, one or more pieces of evidence are included in the judge's knowledge, the admission of which would inevitably lengthen the procedural times (often requiring the holding of several hearings).
Judgments rendered pursuant to Article 444 of the Code of Criminal Procedure are also unappealable, being challengeable only by appeal to the Court of Cassation, while in the case of an abbreviated judgment, the accused remains entitled to lodge normal appeals.
All this would make unreasonable, "if not paradoxical", the failure to extend to the plea bargain the amount of the premium reduction of the penalty provided for the abbreviated judgment, when proceeding for contraventions.
2. – The President of the Council of Ministers intervened in the proceedings, represented and defended by the State Legal Office, requesting that the questions be declared inadmissible or unfounded.
2.1. – As a preliminary matter, the defence of the intervener raised the inadmissibility of the questions, due to insufficient description of the specific case and lack of reasoning on relevance.
The referring court allegedly failed to indicate the conduct contested and the *tempus commissi delicti*, and justified the relevance of the questions with a mere formulaic expression ("since [it] must apply Article 444 of the Code of Criminal Procedure"), without deducing anything regarding the existence of the prerequisites for the applicability of the requested procedure, i.e. the existence, or not, of grounds for acquittal pursuant to Article 129 of the Code of Criminal Procedure and the correct legal qualification of the fact. These omissions, not amendable through direct reading of the documents of the proceedings, given the principle of self-sufficiency of the referral order, would prevent this Court from verifying the relevance of the questions, making them appear premature and hypothetical.
The questions raised with reference to Articles 24 and 111 of the Constitution would also be inadmissible for lack of reasoning on the non-manifest unfoundedness, the referring court having evoked these parameters without stating any of the reasons for their alleged violation.
2.2. – On the merits, the question raised with reference to Article 3 of the Constitution – to which the State Legal Office limits its analysis, given the noted total lack of reasoning regarding the other parameters – would prove to be manifestly unfounded.
The referring court criticized the different treatment of the two alternative procedures with regard to the penalty discount without considering the structural differences between them, which would not allow a valid comparative comparison.
In this regard, it would suffice to recall the difference in the rules relating to conditional suspension, to which the plea bargain request may be subject, but not that of the abbreviated judgment; the possibility for the parties to agree in the plea bargain on the non-applicability of accessory penalties, not provided for in the abbreviated judgment; the non-usability, for evidentiary purposes, of the plea bargain judgment in civil, disciplinary, tax or administrative proceedings, unlike the judgment rendered following an abbreviated judgment.
The dissimilarity of the institutions compared would therefore prevent the finding of the alleged violation of the principle of equality, lacking a useful term of comparison.
Nor could any aspect of intrinsic unreasonableness be found in the different penalty discount provided for in relation to the agreed application of the penalty, given the fact that – according to repeated pronouncements by this Court – the legislator enjoys wide discretion in the configuration of procedural institutions, which is only censurable within the limits of manifest unreasonableness or arbitrariness of the choices made, in this case not found.
Reasons
1. – By Order of 1 December 2022 (reg. ord. no. 33 of 2023), the Marsala Court, sitting as a single judge, raises questions of constitutional legitimacy, with reference to Articles 3, 24 and 111 of the Constitution, of Article 444 of the Code of Criminal Procedure, insofar as, in the case of application of the penalty upon request of the parties for contraventions, it provides for a reduction of the penalty by up to one-third, rather than by up to one-half.
The referring court bases its doubt of constitutional legitimacy on the disparity of treatment found compared to the rules of the abbreviated judgment: a special procedure which, when proceeding for a contravention, ensures the accused – by virtue of Article 442, paragraph 2, of the Code of Criminal Procedure, as amended by Article 1, paragraph 44, of Law no. 103 of 2017 – a reduction of the penalty by one-half.
In the opinion of the referring court, this would be a disparity that is detrimental to the principles of reasonableness and equality, particularly in light of the fact that, among the two special procedures, the plea bargain is the one that guarantees greater efficiency in terms of time and resources.
2. – As a preliminary matter, it should be noted that the rules governing the two special procedures compared by the referring court were amended, also as regards the extent of the benefits connected to them, by Legislative Decree 10 October 2022, no. 150 (Implementation of Law 27 September 2021, no. 134, delegating to the Government the efficiency of criminal proceedings, as well as in matters of restorative justice and provisions for the swift conclusion of judicial proceedings), which entered into force – by virtue of the transitional provision of Article 99-bis, paragraph 1 – on 30 December 2022: therefore, after the date of the referral order.
This *ius superveniens* does not, however, justify the return of the documents to the referring court for a new examination of the relevance and non-manifest unfoundedness of the questions.
The reform, in fact, did not affect the specific aspect covered by the questions: the amount of the penalty reduction associated with the plea bargain remained unchanged. The legislative amendment has even deepened, from a different perspective – however, clearly not relevant in the referring court proceedings – the disparity criticised by the referring court, recognising to the accused who has been judged with an abbreviated procedure (for any offence) a further penalty discount, by one-sixth, if the accused and his/her counsel do not appeal the conviction (new paragraph 2-bis of Article 442 of the Code of Criminal Procedure). This discount is also not extended to plea bargains.
Legislative Decree no. 150 of 2022 increased, however, the advantages other than penalty reduction connected to the plea bargain, and not to the abbreviated judgment. Even in this direction, however, the reform was limited to amplifying a disciplinary difference already existing at the date of the referral order (infra, point 5.4.), so as not to make it necessary to return the documents to the referring court for consideration of the changed regulatory framework.
3. – The State Legal Office raised the inadmissibility of the questions for insufficient description of the specific case and lack of reasoning on relevance: this, because the referring court allegedly failed to indicate the conduct contested against the accused and the *tempus commissi delicti*, and justified the relevance of the questions without deducing anything regarding the existence of the prerequisites for the applicability of the requested procedure.
The exception is unfounded.
The referring court stated that it was proceeding for the offence, of a contraventional nature, of violation of the obligations relating to special surveillance, also stating that in relation to it the accused, through his counsel, requested to plea bargain with the application of a penalty reduced by one-half: a request that did not obtain the consent of the Public Prosecutor, for the sole reason that the proposed reduction exceeds that permitted by the contested provision. This is sufficient to consider the burden of description of the specific case fulfilled: the specific conduct contested against the accused and the date on which it was committed are not essential elements for this Court to verify the relevance of the questions raised.
4. – The further exception raised by the State Legal Office, of inadmissibility of the questions raised with reference to Articles 24 and 111 of the Constitution, for lack of reasoning on non-manifest unfoundedness, is however well-founded.
In reporting on the exception of constitutional illegitimacy raised by the defence counsel, the referral order contains, in fact, only a cursory and apodictic reference to the principles, enunciated by the aforementioned constitutional provisions, of inviolability of the right of defence and due process, without developing any argument to support their alleged violation.
Therefore, in accordance with the consistent jurisprudence of this Court (*ex plurimis*, judgments no. 198, no. 186 and no. 46 of 2023), the questions in question must be declared inadmissible.
5. – On the merits, the question raised with reference to Article 3 of the Constitution – the only one supported by adequate reasoning on the point of non-manifest unfoundedness and, therefore, admissible – is unfounded.
5.1. – The criticism of the referring court focuses on the disparity of treatment that would have been created, following Law no. 103 of 2017, between the abbreviated judgment and the plea bargain, in terms of the amount of the penalty discount granted to the accused. This penalty discount is, notoriously, the main incentive to access these special procedures, introduced by the 1988 Code of Criminal Procedure to reduce the number of trials, in the awareness that the new accusatorial procedural model, based on particularly guaranteed evidence-gathering mechanisms, could ensure acceptable results in terms of efficiency only if the number of proceedings destined to go through the complex stages of the "ordinary" procedure were kept within strongly reduced limits.
In the original design of the Code, which remained largely unchanged in this respect for a long time, the *quantum* of the premium penalty reduction was expressed, for the two procedures, by the same numerical fractional coefficient (having, moreover, as will be explained later, a different value in the two cases). It was provided, in fact, that the penalty be reduced "by one-third", in the case of conviction following an abbreviated judgment (Article 442, paragraph 2, of the Code of Criminal Procedure), and "up to one-third", in the case of a plea bargain (Article 444, paragraph 1, of the Code of Criminal Procedure). This, regardless of the nature of the offence for which proceedings were being conducted.
The symmetry was partially lost following the aforementioned Law no. 103 of 2017, Article 1, paragraph 44 of which, amending paragraph 2 of Article 442 of the Code of Criminal Procedure, established that, in the case of an abbreviated judgment – without prejudice to the reduction of the penalty by one-third if proceedings are conducted for felonies – the penalty is reduced by one-half if proceedings are conducted for contraventions.
The intervention pursues the transparent objective of increasing the appeal of this special procedure: a procedure which, despite the repeated amendments it had undergone, had not fully met expectations in terms of its ability to reduce the number of trials, due to the insufficiently high number of requests. The solution adopted by Law no. 103 of 2017 to reverse this trend is, however, very cautious, being only a marginal adoption of the proposal formulated by the study commission to develop proposals for interventions on the criminal penalty system, established by decree of the Minister of Justice 10 June 2013, which, in its final report, suggested modulating the amount of the penalty discount associated with the abbreviated judgment according to the seriousness of the offences, providing, in particular, for a reduction by one-half not only for contraventions, but also for felonies punishable by imprisonment not exceeding five years or a fine.
The legislative amendment in question counterbalances, on the other hand, a set of other amendments to the rules of the abbreviated judgment, made by the same reform law, which – partly giving legislative form to jurisprudential findings and partly assuming an innovative value – further restrict, in a perspective of procedural simplification, the rights exercisable by the accused in this procedure (particularly significant, in this sense, the new paragraph 6-bis of Article 438 of the Code of Criminal Procedure).
Law no. 103 of 2017 did not, however, make a corresponding revision, for the aspect considered, of the rules governing the plea bargain, with regard to which the contested provision continues to provide that the penalty is reduced "up to one-third" whatever the offence for which proceedings are conducted, and therefore also when it is a contravention.
And it is precisely this that the referring court deplores, considering it unreasonable – if not outright "paradoxical" – that, in the case of a contravention, the alternative procedure that is able to ensure a quicker conclusion of proceedings and greater savings in procedural resources is "treated worse".
5.2. – That the plea bargain allows, in principle, a greater saving of time and procedural resources than that resulting from the abbreviated judgment is, in fact, undeniable.
Beyond the common feature of being alternative procedures that "avoid" the trial, the plea bargain, however, radically simplifies the procedural debate, leaving the judge only the task of verifying that there are no grounds for acquittal of the accused already apparent *ex actis*, that the legal qualification of the fact, the application and comparison of the circumstances put forward by the parties are correct and that the requested penalty is appropriate (Article 444, paragraph 2, of the Code of Criminal Procedure). Whereas, conversely, the abbreviated judgment leaves unchanged the power-duty of the judge to ascertain in ordinary terms – albeit on the basis of the evidence gathered by the Public Prosecutor during the investigation, and therefore outside the adversarial process (however, possibly enriched by the defence investigation) – whether or not the accused is guilty and to determine the appropriate penalty.
As noted by the referring court, the gap between the two procedures – in terms of deflative effect – widens further if the accused opts for the so-called conditional abbreviated judgment, i.e. subject to additional evidence (Article 438, paragraph 5, of the Code of Criminal Procedure): in which case – subject to the judge's assessment of the actual need for the addition for the purpose of the decision and the suitability of the special procedure to achieve, in any case, procedural efficiency – the procedure itself becomes "burdened" by the admission of new evidence (including contrary evidence that the Public Prosecutor may request); an eventuality, conversely, radically excluded in the case of a plea bargain.
The procedural efficiency resulting from the plea bargain – as also noted by the referring court – is also more marked in relation to the means of appeal. The plea bargain judgment is, in fact, unappealable (except by the Public Prosecutor, if issued despite his dissent: Article 448, paragraph 2, of the Code of Criminal Procedure). It is subject only to appeal to the Court of Cassation, which, following Law no. 103 of 2017, may only be lodged on specific and limited grounds (Article 448, paragraph 2-bis, of the Code of Criminal Procedure). On the other hand, in the abbreviated judgment, the accused retains the right to appeal against conviction judgments, which are also appealable by the Public Prosecutor if they amend the offence (Article 443 of the Code of Criminal Procedure), while the appeal to the Court of Cassation is unlimited.
5.3. – From all this, however, it cannot be inferred – as is the logic of the referring court – the constitutional need to attach to the plea bargain a penalty reduction, in any case, not less than that provided for the abbreviated judgment.
It is worth noting, in this regard, that, from the outset, the penalty reduction connected to the plea bargain has been defined in terms of less favour than that connected to the abbreviated judgment, despite the same fractional coefficient of reference.
As already mentioned, it was provided that, in the case of an abbreviated judgment, the penalty be reduced "by one-third" (Article 442, paragraph 2, of the Code of Criminal Procedure): the reduction is therefore – pacifically – fixed and one-third represents the predetermined and mandatory measure (*ex plurimis*, Court of Cassation, fifth criminal section, judgments 15 June-7 July 2022, no. 26189 and 22 February-19 April 2012, no. 15068).
Conversely, in the case of a plea bargain, the penalty is reduced "up to one-third" (Article 444, paragraph 1, of the Code of Criminal Procedure).
The United Criminal Sections of the Court of Cassation have specified that the wording in question indicates the maximum amount of the reduction, and not the minimum amount of the penalty that may remain after it. It has been noted that the plea bargain allows the accused to directly influence the quantification of the penalty imposed, unlike the abbreviated judgment, which, concerning only the procedure, leaves intact the power of the judge to discretionarily assess the penalty, except for having to apply to the penalty freely determined by him/her the fixed reduction of one-third. And this regardless of the further wide range of premium incentives, exclusively connected to the plea bargain (Court of Cassation, United Criminal Sections, judgment 24 March-28 April 1990, no. 6179).
5.4. – Substantially similar considerations have also been made, by the jurisprudence of this Court – with regard to aspects other than the one under discussion today – to show that we are dealing with clearly differentiated institutions (judgments no. 135 of 1995, no. 81 of 1991 and no. 66 of 1990; order no. 320 of 1991), not only in terms of abstract connotations, but also of practical effects (order no. 455 of 2006) and, therefore, not usefully comparable for the purpose of attributing violations of Article 3 of the Constitution to discrepancies between their respective rules (judgment no. 135 of 1995; orders no. 455 of 2006 and no. 320 of 1991).
As this Court has noted, the plea bargain allows the accused to undergo a certain penalty, previously agreed, as the judge cannot change the contents of the "agreement" between the parties: a penalty that will be imposed – applying a particular rule of judgment (the non-existence of the prerequisites for an acquittal pursuant to Article 129 of the Code of Criminal Procedure) – with a judgment that is only "equivalent" to a conviction and which remains ineffective in extra-penal proceedings (Article 445, paragraph 1-bis, of the Code of Criminal Procedure). On the other hand, with the abbreviated judgment, the accused, by agreeing to be judged on the basis of the documents, leaves unchanged the decision-making powers of the judge: "in the case of conviction, [the judge] will issue a judgment containing a full affirmation of responsibility, with which he/she will impose the penalty – even if reduced by one-third – deemed fair by the judge himself/herself and which could be far greater than the one the accused would have been willing to "negotiate"" (order no. 455 of 2006).
The plea bargain also offers the accused a range of further advantages, in addition to the penalty discount, with no equivalent in the abbreviated judgment. Having regard to the rules in force at the date of the referral order, the plea bargain judgment is not attributed, as already mentioned, the nature of a true and proper conviction judgment, being only "equivalent" to it; its extra-penal effectiveness is also strongly limited (Article 445, paragraph 1-bis, of the Code of Criminal Procedure). The plea bargain request may, on the other hand, be subject to the granting of conditional suspension of the penalty (Article 444, paragraph 3, of the Code of Criminal Procedure); furthermore, if there is a civil party, the judge does not decide on the relevant claim (Article 444, paragraph 2, of the Code of Criminal Procedure).
When the penalty imposed does not exceed two years' imprisonment, alone or combined with a pecuniary penalty – as is generally the case when proceedings are conducted for contraventions – the judgment does not entail conviction for the costs of the proceedings, nor the application of accessory penalties and security measures, except for confiscation in the cases provided for by Article 240 of the Penal Code (Article 445, paragraph 1, of the Code of Criminal Procedure). In this case, moreover, after five years, if the judgment concerns a felony, or two years, if it concerns a contravention, without the accused having committed a felony or a contravention of the same nature, the offence is extinguished and any penal effect ceases. If a pecuniary penalty or a substitute penalty has been applied, the judgment does not, however, hinder the granting of subsequent conditional suspension of the penalty (Article 445, paragraph 2, of the Code of Criminal Procedure).
The set of advantages attached to the plea bargain has been further enriched, as already mentioned, with the entry into force, after the referral order, of Legislative Decree no. 150 of 2022, which, with Article 25, paragraph 1, letter *b)*, extended the exclusion of the extra-penal effectiveness of the judgment, previously limited to civil and administrative proceedings, also to disciplinary, tax and ascertainment of accounting liability proceedings, with the provision, moreover, that in such proceedings the plea bargain judgment cannot even be used as evidence (new paragraph 1-bis of Article 445 of the Code of Criminal Procedure). It has been provided, then, that in the case of a so-called extended plea bargain – for penalties, i.e., exceeding two years – the parties may ask the judge not to apply accessory penalties or to apply them for a determined duration, and not to order optional confiscation or to order it with reference to specific assets or a determined amount (Article 444, paragraph 1, of the Code of Criminal Procedure, as amended).
5.5. – Regardless of these subsequent amendments, the choice made with Law no. 103 of 2017 – to increase to one-half the penalty reduction connected to the abbreviated judgment when proceedings are conducted for contraventions, without making a corresponding increase in the penalty discount connected to the plea bargain – must therefore be considered as an expression of the wide discretion which, according to the consistent jurisprudence of this Court, is vested in the legislator in the regulation of procedural institutions, the exercise of which is censurable only if it falls into manifest unreasonableness or arbitrariness (*ex plurimis*, judgments no. 67 of 2023, no. 230 and no. 74 of 2022, no. 95 of 2020 and no. 155 of 2019). This eventuality is not found in this case, since the increase in question, while increasing the incentive to access the abbreviated judgment, does not appear to compromise, indirectly, the expediency of the plea bargain, taking into account the structure of the latter procedure and the substantial set of other advantages it ensures.
6. – In light of the foregoing considerations, the questions raised with reference to Articles 24 and 111 of the Constitution must therefore be declared inadmissible; that raised with reference to Article 3 of the Constitution, unfounded.
For These Reasons
THE CONSTITUTIONAL COURT
1) *declares* inadmissible the questions of constitutional legitimacy of Article 444 of the Code of Criminal Procedure, raised, with reference to Articles 24 and 111 of the Constitution, by the Marsala Ordinary Court, sitting as a single judge, with the order indicated in the heading;
2) *declares* unfounded the question of constitutional legitimacy of Article 444 of the Code of Criminal Procedure, raised, with reference to Article 3 of the Constitution, by the Marsala Ordinary Court, sitting as a single judge, with the same order.
So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 19 March 2024.
Signed:
Augusto Antonio BARBERA, President
Franco MODUGNO, Reporting Judge
Roberto MILANA, Director of the Registry
Deposited in the Registry on 10 May 2024