JUDGMENT NO. 88

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 delivered the following

JUDGMENT

in the proceedings concerning the constitutional legitimacy of Article 1, paragraph 4, of Legislative Decree No. 8 of 15 January 2016 (Provisions concerning decriminalization, pursuant to Article 2, paragraph 2, of Law No. 67 of 28 April 2014), and, subordinately, of Article 1, paragraph 1, of Legislative Decree No. 7 of 15 January 2016 (Provisions concerning the repeal of offences and the introduction of civil pecuniary sanctions, pursuant to Article 2, paragraph 3, of Law No. 67 of 28 April 2014), referred by the Ordinary Court of Florence, First Criminal Section, in criminal proceedings against S. H., by order of 17 July 2023, registered under No. 125 of the 2023 orders register and published in the Official Gazette of the Republic No. 40, Special Series No. 1, of the year 2023.

Having considered the intervention of the President of the Council of Ministers;

Having heard, at the deliberation sitting of 16 April 2024, the Judge Rapporteur Luca Antonini;

Having deliberated at the deliberation sitting of 16 April 2024.

Facts

1. – By order of 17 July 2023 (Reg. Ord. No. 125 of 2023), the Ordinary Court of Florence, First Criminal Section, raised, with reference to Article 76 of the Constitution, a question of constitutional legitimacy concerning Article 1, paragraph 4, of Legislative Decree No. 8 of 15 January 2016 (Provisions concerning decriminalization, pursuant to Article 2, paragraph 2, of Law No. 67 of 28 April 2014), in so far as it establishes that the preceding paragraph 1 shall not apply to the offences referred to in Legislative Decree No. 286 of 25 July 1998 (Consolidated Act concerning the rules on immigration and the status of foreigners).

Subordinately, the referring court raised, again with reference to Article 76 of the Constitution, a question of constitutional legitimacy concerning Article 1, paragraph 1, of Legislative Decree No. 7 of 15 January 2016 (Provisions concerning the repeal of offences and the introduction of civil pecuniary sanctions, pursuant to Article 2, paragraph 3, of Law No. 67 of 28 April 2014), "in so far as it does not provide for the repeal, transforming it into an administrative offence," of the offence under Article 10-bis of the aforementioned Legislative Decree No. 286 of 1998.

1.1. – Article 1, paragraph 4, of Legislative Decree No. 8 of 2016 excludes the applicability of the decriminalization provided for in paragraph 1 – which states that "[v]iolations for which only a fine or penalty is provided shall not constitute a crime and shall be subject to an administrative penalty in the form of a monetary sum" – to, among others, the offences under Legislative Decree No. 286 of 1998.

Article 1, paragraph 1, of Legislative Decree No. 7 of 2016 repeals certain incriminating provisions contained in the Criminal Code.

2. – The referring court states that it is seized of the appeal against the judgment which convicted S. H. for the offence of illegal entry and stay in the territory of the State under Article 10-bis of Legislative Decree No. 286 of 1998.

Hence the relevance of both questions, since their acceptance would result in the decriminalization of the aforementioned offence and the acquittal of the accused.

3. – Regarding the lack of manifest unfoundedness, the referring court explains that Article 2, paragraph 1, of Law No. 67 of 28 April 2014 (Delegations to the Government concerning non-custodial sentences and reform of the sanctioning system. Provisions concerning the suspension of proceedings with probation and in relation to absconders), delegated the Government to adopt one or more legislative decrees "for the reform of the sanctioning rules for offences and for the simultaneous introduction of administrative and civil sanctions."

To this end, insofar as relevant here, the subsequent paragraph 2, letter (a), laid down the guiding principle of transforming into administrative offences "all offences for which only a fine or penalty is provided, except" those falling within certain areas.

Paragraph 3, letter (b), of the same Article 2 laid down the guiding principle of repealing and transforming into an administrative offence the offence under Article 10-bis of Legislative Decree No. 286 of 1998.

In the opinion of the Florence Court, the aforementioned provisions conferred on the Government the power to decriminalize the offence of illegal entry and stay in the territory of the State: the first, since this offence is punishable by a fine only and would therefore fall within its scope of application, not being attributable to one of the areas expressly excluded from decriminalization; the second, by explicitly providing for it.

However, the delegated legislature allegedly violated these guiding principles – thus infringing Article 76 of the Constitution – "in both legislative decrees": "in Legislative Decree No. 8/2016 with regard" to Article 2, paragraph 2, letter (a), of Law No. 67 of 2014 and "in Legislative Decree No. 7/2016 with regard" to Article 2, paragraph 3, letter (b), of the same delegation law.

3.1. – Specifically, the referring court observes that, in implementation of the delegation under Article 2, paragraph 2, letter (a), of Law No. 67 of 2014, Article 1, paragraph 1, of Legislative Decree No. 8 of 2016 established that violations punishable by a fine or penalty only shall not constitute a crime and shall be subject to an administrative penalty in the form of a monetary sum.

However, the challenged Article 1, paragraph 4, of the same legislative decree, by precluding the applicability of this decriminalization to all offences under Legislative Decree No. 286 of 1998, allegedly violated the aforementioned intervening provision, which did not expressly exclude immigration matters, and therefore the offence in question in the main proceedings, from the decriminalization itself.

On the other hand, adds the referring court, the immigration matter, although originally included in Bill A.S. No. 110, was subsequently removed from the list of those excepted from the decriminalization in question during the parliamentary process.

Therefore, it could not be considered, as argued in the explanatory memorandum to the draft delegated decree which would then become Legislative Decree No. 8 of 2016, that in this case the Government merely partially failed to implement the delegation received: on the contrary, the challenged Article 1, paragraph 4, of Legislative Decree No. 8 of 2016 would have resulted in a violation, in essence, of the guiding principle aimed at imposing this decriminalization, thus violating Article 76 of the Constitution.

3.2. – If this Court does not deem it appropriate to uphold the question raised in the principal capacity, the referring court raises, subordinately, a question of constitutional legitimacy concerning Article 1, paragraph 1, of Legislative Decree No. 7 of 2016.

In this regard, it specifies that, "although the matter of the decriminalization of the offence under Article 10-bis of Legislative Decree No. 286/1998 is more closely related to the content of Legislative Decree No. 8/2016 (Legislative Decree No. 7/2016 deals instead with repealing certain incriminating provisions and providing for civil pecuniary sanctions for the facts already provided for therein), it is considered more correct to identify the measure to be challenged in Legislative Decree No. 7/2016 and in particular in Article 1 thereof, which provided for the repeal of certain incriminating provisions."

This provision, the referring court points out, in repealing several incriminating provisions contained in the Criminal Code, does not provide anything with regard to the offence under Article 10-bis of Legislative Decree No. 286 of 1998, which, however, Article 2, paragraph 3, letter (b), of Law No. 67 of 2014 specifically delegated the Government to repeal and transform into an administrative offence.

Hence the alleged violation of Article 76 of the Constitution also by the aforementioned Article 1, paragraph 1, of Legislative Decree No. 7 of 2016.

3.2.1. – In the event that this question is upheld, the referring court finally requests this Court to declare, as a consequence, the unconstitutionality also of Article 10-bis, paragraph 1, of Legislative Decree No. 286 of 1998, "in so far as it provides for a fine of 5,000 to 10,000 euros instead of an administrative penalty of 5,000 to 10,000 euros."

4. – The President of the Council of Ministers, represented and defended by the State Legal Office, intervened in the proceedings, requesting that the questions raised be declared unfounded.

4.1. – Regarding the challenge to Article 1, paragraph 4, of Legislative Decree No. 8 of 2016, the State defence prefaces that it would be "quite physiological" for "legislative activity to complete and develop the choices of the delegating body" (Judgment No. 212 of 2018 of this Court is cited), for the implementation of which the Government would therefore enjoy "a margin of discretion," all the more so in the presence of principles and guiding criteria with objectively uncertain meaning.

It then emphasizes, first of all, that, despite the failure to include immigration among the matters excluded from decriminalization pursuant to Article 2, paragraph 2, letter (a), of Law No. 67 of 2014, this provision, however, includes among such excluded matters that of "public safety," with which the offences under Legislative Decree No. 286 of 1998 would have an "undoubted connection."

Furthermore, it points out that the delegating legislature did indeed provide – however, with an intervening provision different from that invoked in relation to the question at issue – for the decriminalization of the offence under Article 10-bis of Legislative Decree No. 286 of 1998, but "certainly not of all the offences contemplated by the aforementioned body of legislation": hence the constitutional legitimacy of the choice adopted by the Government with the provision challenged in the principal capacity.

4.2. – In the opinion of the State Legal Office, the question, raised subordinately, concerning Article 1, paragraph 1, of Legislative Decree No. 7 of 2016 would also be without merit.

The Government, in fact, allegedly merely partially failed to exercise the delegation conferred upon it, which might indeed result in its political responsibility towards Parliament, "but not a violation of Article 76 of the Constitution, unless the partial failure to exercise the delegation itself involves a distortion of the delegation law" (Judgment No. 223 of 2019 of this Court is cited).

A distortion which, on the other hand, would not be evident in this case, since the failure to implement the delegation concerns "a particular point, which is nevertheless quite independent of the other decriminalization cases provided for," as stated in the opinion expressed by the "Parliamentary Committees, called upon to pronounce precisely on Legislative Decrees Nos. 7 and 8 of 2016". This opinion would therefore constitute an "element which, like preparatory works in general, can contribute to the correct interpretation of" the delegation law, so that "precisely from the lack of censure in Parliament this Court has already been able to argue that there was no violation of the law" itself (Judgment No. 127 of 2017 of this Court is cited).

Reasons

1. – By order of 17 July 2023 (Reg. Ord. No. 125 of 2023), the Court of Florence, First Criminal Section, principally doubts, with reference to Article 76 of the Constitution, the constitutional legitimacy of Article 1, paragraph 4, of Legislative Decree No. 8 of 2016, in so far as it establishes that the preceding paragraph 1 shall not apply to the offences under Legislative Decree No. 286 of 1998, and, subordinately, of Article 1, paragraph 1, of Legislative Decree No. 7 of 2016, "in so far as it does not provide for the repeal, transforming it into an administrative offence," of the offence of illegal entry and stay in the territory of the State under Article 10-bis of the aforementioned Legislative Decree No. 286 of 1998.

2. – Article 1, paragraph 4, of Legislative Decree No. 8 of 2016, therefore challenged in the principal capacity, excludes from the decriminalization provided for in paragraph 1 – according to which "[v]iolations punishable by a fine or penalty only shall not constitute a crime and shall be subject to an administrative penalty in the form of a monetary sum" – among others, the offences under Legislative Decree No. 286 of 1998.

In the opinion of the referring court, this provision violates Article 76 of the Constitution because it would conflict with Article 2, paragraph 2, letter (a), of Law No. 67 of 2014, which delegated the Government to transform into administrative offences the offences punishable by a pecuniary penalty only and did not include among the matters excepted from this decriminalization that of immigration: the offence under Article 10-bis of Legislative Decree No. 286 of 1998 (illegal entry and stay in the territory of the State), subject to its jurisdiction and punishable by a fine, should therefore have been decriminalized by virtue of the guiding principle laid down by the aforementioned intervening provision.

2.1. – Article 1, paragraph 1, of Legislative Decree No. 7 of 2016, challenged subordinately, repeals certain incriminating provisions contained in the Criminal Code.

This provision would infringe Article 76 of the Constitution because, by failing to repeal and transform into an administrative offence the offence under Article 10-bis of Legislative Decree No. 286 of 1998, it would conflict with Article 2, paragraph 3, letter (b), of Law No. 67 of 2014, which specifically provided for such repeal and transformation.

3. – Preliminary, it is necessary to clarify the actual scope of the *petitum* of the question raised in the principal capacity.

Despite the indistinct reference in the order for referral to the offences under Legislative Decree No. 286 of 1998, from the overall tenor of the order itself (ex plurimis, Judgment No. 161 of 2023) it is clearly evident that in reality the referring court complains about the exclusion from decriminalization of the offence of illegal entry and stay in the territory of the State.

In numerous passages of the order, in fact, the Florence Court argues with specific reference to this offence, which, on the other hand, is the only one relevant in the main proceedings.

In consideration of the referring court's arguments and the specific case at issue in the *a quo* proceedings (ex plurimis, Judgments No. 54 of 2024, No. 66 of 2022 and No. 68 of 2021), it must therefore be considered that Article 1, paragraph 4, of Legislative Decree No. 8 of 2016 is challenged only in so far as it excludes the applicability to the aforementioned offence of the decriminalization under the preceding paragraph 1.

4. – The question is unfounded.

Law No. 67 of 2014 pursues – as can be seen from the examination of the parliamentary proceedings and as highlighted in the government reports accompanying the drafts of the legislative decrees that implemented it – the objective of deflating the penal system, both substantive and procedural, in compliance with the principles of fragmentarity, offensiveness and subsidiarity of the criminal sanction.

The clear politico-criminal purpose of the delegations under the aforementioned Law is therefore found in the need for a lightening of the penal system consistent with the principle of *extrema ratio* of recourse to punishment.

4.1. – In this perspective, Article 2 of the Law in question, in paragraph 1, delegated the Government to adopt one or more legislative decrees "for the reform of the sanctioning rules for offences and for the simultaneous introduction of administrative and civil sanctions."

In providing for the transformation of a set of offences into administrative offences, the delegating legislature used two selective criteria for their identification.

The first, provided for by letter (a) of paragraph 2 of the same Article 2, consists in the so-called "blind" decriminalization, as it provides, by virtue of a general clause, for the transformation into administrative offences of "all offences" punishable by "a fine or penalty only", except those attributable to certain areas (building and town planning; environment, territory and landscape; food and beverages; health and safety in the workplace; public safety; gambling and betting; arms and explosives; elections and party financing; intellectual and industrial property).

The second is that under letters (b) to (d) of the same provision, which *nominatim* indicated numerous offences under both the Criminal Code and special legislation.

4.2. – During the parliamentary proceedings, as also noted by the referring court, the matter of immigration, initially included in the list of those excluded from "blind" decriminalization (Bill A.S. No. 110), was subsequently removed (by virtue of sub-amendment No. 1.0.100/5 approved by the Senate Justice Committee), with the simultaneous inclusion (in what would then become paragraph 3, letter (b), of Article 2 of Law No. 67 of 2014) of the provision for the repeal of the offence under Article 10-bis of the aforementioned Legislative Decree No. 286 of 1998.

However, in the subsequent course of the proceedings, the Government, with another amendment, introduced the provision, alongside the aforementioned repeal, for the transformation into an administrative offence of the offence in question, and the provision that the criminal relevance of other violations in immigration matters should remain unchanged.

This led to the current wording of Article 2, paragraph 3, letter (b), of Law No. 67 of 2014, which provides: "to repeal, transforming it into an administrative offence, the offence under Article 10-bis of the Consolidated Act concerning the rules on immigration and the status of foreigners, under Legislative Decree No. 286 of 25 July 1998, maintaining the criminal relevance of conduct violating administrative measures adopted in the matter."

4.3. – This development makes it clear that, from a legislative point of view, the *sedes materiae* in which the problem of the failure to repeal and transform into an administrative offence the offence under the aforementioned Article 10-bis must be considered, in order to assess the possible conflict with Article 76 of the Constitution, is no longer the so-called "blind" decriminalization, but the nominative one.

The presence of an explicit provision that identifies *ad nomen* the offence in question, accompanied by the provision to maintain "criminal relevance to conduct violating administrative measures adopted in the matter", makes it clear that, following the parliamentary process, the guiding principle of the delegation law no longer pertains to the aforementioned "blind" decriminalization; this, by definition, operates a generic identification through the sanctioning treatment and not through the specific selection of individual offences.

The challenged Article 1, paragraph 4, of Legislative Decree No. 8 of 2016, insofar as it establishes that the "provision of paragraph 1 shall not apply to the offences under Legislative Decree No. 286 of 25 July 1998", therefore does not conflict with the guiding principle relating to "blind" decriminalization, invoked by the referring court as an intervening rule.

Moreover, this conclusion does not seem to escape the referring court itself which, in formulating the question subordinately, specifies – although improperly, as will be seen below – that it considers "more correct to identify the measure to be challenged in Legislative Decree No. 7/2016 and in particular in Article 1 thereof, which provided for the repeal of certain incriminating provisions."

5. – The question formulated subordinately is, however, inadmissible due to an evident *aberratio ictus* in which the referring court incurs in challenging Article 1, paragraph 1, of Legislative Decree No. 7 of 2016, instead of Article 3 of Legislative Decree No. 8 of 2016, which governs the nominative decriminalization of offences under special legislation (such as the one under consideration here).

The undoubted Article 1, paragraph 1, in fact, provides for the repeal of the offences under Articles 485, 486, 594, 627 and 647 of the Criminal Code (these are the offences of "[f]alsification of private writings", "[f]alsification of blank signed paper. Private act", "[i]nsult", "[a]ppropriation of common things", "[a]ppropriation of lost things, treasure or things obtained by mistake or chance").

These are offences that have nothing to do with the offence of illegal entry and stay in the territory of the State, because the provision in question implements the guiding principle laid down by Article 2, paragraph 3, letter (a), of Law No. 67 of 2014 and certainly not that under Article 2, paragraph 3, letter (b).

The first guiding principle, unlike the second, relates to a specific and innovative instrument provided for by the delegation law, concerning the "repeal of certain offences, with the simultaneous subjection of the corresponding facts to civil pecuniary sanctions of a punitive nature, which are added to the obligation of restitution and compensation for damages according to civil law" (Judgment No. 102 of 2018).

The challenged Article 1, paragraph 1, of Legislative Decree No. 7 of 2016, moreover, must be read together with the subsequent Article 4 of the same legislative decree, whereby, parallel to the aforementioned *abolitio criminis*, the delegated legislature introduced the innovative figure of civil offences accompanied by an additional pecuniary sanction to compensation for damages: this provision, in fact, describes the conduct subject to the repealed incriminating provisions which are subject to this sanction, establishing the relevant amounts within a given edital range.

This is in implementation of letters (c) to (e) of the same Article 2, paragraph 3, of Law No. 67 of 2014, which, in correlation with the preceding letter (a), contain precisely the criteria and guiding principles relating to the introduction, simultaneously with the repeal of the said offences, for the corresponding facts, of additional civil pecuniary sanctions to compensation for damages.

5.1. – This Court has already had occasion to specify that the challenged Article 1, paragraph 1, of Legislative Decree No. 7 of 2016 constitutes "implementation of the delegation under Article 2, paragraph 3, letter (a), of Law No. 67 of 2014", "not of the decriminalization, which is instead the subject of parallel Legislative Decree No. 8 of 2016" (Judgment No. 216 of 2018).

Consequently, it considered inadmissible, due to *aberratio ictus*, the question concerning the failure to decriminalize the offence of non-serious threat, in alleged violation of Article 2, paragraph 2, letters (a) and (g), of Law No. 67 of 2014, as the referring court had challenged, precisely, Article 1, paragraph 1, of Legislative Decree No. 7 of 2016, instead of the relevant provision of Legislative Decree No. 8 of 2016.

5.2. – In conclusion, the referring court, in complaining about the (alleged) violation of the guiding principle under Article 2, paragraph 3, letter (b), of Law No. 67 of 2014, for having the Government failed to transform the aforementioned offence of illegal entry and stay in the territory of the State into an administrative offence, erroneously directs its criticisms to Article 1, paragraph 1, of Legislative Decree No. 7 of 2016, which deals instead with the repeal of incriminating offences subsequently subjected by Article 4 to civil pecuniary sanctions.

For These Reasons

THE CONSTITUTIONAL COURT

1) declares inadmissible the question of constitutional legitimacy of Article 1, paragraph 1, of Legislative Decree No. 7 of 15 January 2016 (Provisions concerning the repeal of offences and the introduction of civil pecuniary sanctions, pursuant to Article 2, paragraph 3, of Law No. 67 of 28 April 2014), raised, with reference to Article 76 of the Constitution, by the Ordinary Court of Florence, First Criminal Section, by the order indicated in the heading;

2) declares unfounded the question of constitutional legitimacy of Article 1, paragraph 4, of Legislative Decree No. 8 of 15 January 2016 (Provisions concerning decriminalization, pursuant to Article 2, paragraph 2, of Law No. 67 of 28 April 2014), raised, with reference to Article 76 of the Constitution, by the Ordinary Court of Florence, First Criminal Section, by the order indicated in the heading.

So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 16 April 2024.

Signed:

Augusto Antonio BARBERA, President

Luca ANTONINI, Rapporteur

Roberto MILANA, Registrar

Filed with the Registry on 14 May 2024