JUDGMENT NO. 93

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 review of Article 34, paragraph 2, of the Code of Criminal Procedure, brought before the Court by the Investigating Judge of the Ordinary Court of Naples in the criminal proceedings against G. S., pursuant to Order of 3 July 2023, registered under no. 119 of the 2023 Register of Orders and published in the Official Gazette of the Republic no. 38, Special Series, of the year 2023.

Heard the Judge Rapporteur Franco Modugno at the deliberation session of 5 March 2024;

Deliberated at the deliberation session of 5 March 2024.

Facts

1. - By Order of 3 July 2023, registered under no. 119 of the 2023 Register of Orders, the Investigating Judge of the Ordinary Court of Naples raised questions of constitutional review concerning Article 34, paragraph 2, of the Code of Criminal Procedure, insofar as it does not provide for the incompatibility of the Investigating Judge to participate in the proceedings concerning an objection to the request for dismissal "pursuant to Article 410 of the Code of Criminal Procedure" after having expressed an opinion on the existence of a ground for non-punishability when rejecting a request for the issuance of a summary conviction order, on the grounds of incompatibility with Articles 3, 24, second paragraph, 111, second paragraph, and 117, first paragraph, of the Constitution, the latter in relation to Article 6, paragraph 1, of the European Convention on Human Rights.

1.1. - The remitting Order explains that the judge had rejected the request for the issuance of a summary conviction order, submitted by the Public Prosecutor, concerning the crime under Article 612, second paragraph, of the Criminal Code, and returned the case file, considering the existence of the ground for non-punishability under Article 131-bis of the Criminal Code (Exclusion of punishability for the particular triviality of the offence). The order specified the reasons why the offence was considered to be "particularly trivial": it was committed in anger following a road accident, did not cause serious harm and did not constitute habitual conduct on the part of the suspect.

The Public Prosecutor, adopting the viewpoint of the Investigating Judge, requested dismissal due to the particular triviality of the offence, pursuant to Article 131-bis of the Criminal Code, and carried out the necessary notifications to the suspect and the injured party.

The latter filed an objection to the dismissal within the legal time limit, pointing out the suspect's alarming propensity to commit offences and the significance of the moral damages caused; he therefore requested that the compulsory prosecution order be issued or that further investigations be conducted, in particular by hearing the information held by the son of the victim of the offence.

A deliberation session was scheduled, and the injured party's lawyer raised an objection concerning the incompatibility of the same Investigating Judge, in his personal capacity, to decide on the objection to the dismissal, since he had already expressed his views on the offence committed.

The Investigating Judge therefore requested to be excused, but the President of the Court rejected this request, observing that the incompatibility to decide on the objection proceedings "does not exist even in cases of declaration of nullity of the dismissal order".

1.2. - The Investigating Judge then decided to raise these questions of constitutional review, pointing out, first of all, that the "lack of impartiality of the judge", who, despite having expressed an opinion on the existence of a ground for non-punishability when rejecting the request for a summary conviction order, must then decide on the objection, could not be overcome through interpretation, in the absence of a specific provision of law.

In circumstances such as those that occurred in the case at hand - it is argued - the objection proceedings could be affected by the "force of preconception", the same magistrate having already made assessments on the same res iudicanda; however, the impartiality of the judge is a condition imposed by Article 111, second paragraph, of the Constitution, and by Article 117, first paragraph, of the Constitution, which makes the precepts of Article 6, paragraph 1, of the ECHR effective in the Italian legal system, according to which "[e]veryone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law, which will decide either on the substance or on the admissibility of any criminal charge against him".

The referring judge observes that the two moments in which he is called upon to pronounce judgment do not belong to the same "phase of the proceedings" - a circumstance which, according to Constitutional case law, would exclude the existence of incompatibility - since the return of the case file to the Public Prosecutor, following the rejection of the request for a summary conviction, would have resulted in the regression of the proceedings to the preliminary investigation phase (the Court’s Judgment no. 16 of 2022 is cited). He further observes that the injured party, although a party to the proceedings, has a legitimate interest in the affirmation of the criminal responsibility of the perpetrator of the offence, by an impartial judge, not influenced by his previous decisions.

This Court has already stated that, in summary proceedings, the Investigating Judge's control relates not only to the procedural requirements, but also to the existence of the offence and the responsibility of the suspect; the request for a summary conviction order may, however, be followed by an acquittal order pursuant to Article 129 of the Code of Criminal Procedure (the Court’s Judgments nos. 502 of 1991 and 346 of 1997 are cited).

The failure to provide for the incompatibility of the Investigating Judge who, when rejecting the request for a summary conviction order, has expressed a conviction concerning the existence of a ground for non-punishability and is subsequently called upon to decide on the injured party's objection, ultimately violates Articles 3, 24, second paragraph, 111, second paragraph, and 117, first paragraph, of the Constitution, the latter in relation to Article 6, paragraph 1, of the ECHR.

1.3. - In the opinion of the referring judge, the relevance of the questions is clear: he must proceed to hear the objection to the dismissal, despite having already expressed his conviction on the res iudicanda.

Reasons

1. - By the Order indicated in the heading (Reg. Ord. no. 119 of 2023), the Investigating Judge of the Court of Naples raised questions of constitutional review of Article 34, paragraph 2, of the Code of Criminal Procedure, requesting this Court to recognise a new instance of incompatibility of the criminal judge who, in a different and previous phase of the same proceedings, has already expressed an opinion on the merits of the res iudicanda. The referring judge believes that the challenged provision violates Articles 3, 24, second paragraph, 111, second paragraph, and 117, first paragraph, of the Constitution, the latter in relation to Article 6, paragraph 1, of the ECHR, insofar as it does not provide for the incompatibility to decide on the objection to the dismissal of the Investigating Judge who, when rejecting a request for the issuance of a summary conviction order, has expressed the conviction that a ground for exclusion of punishability exists: in this case, the particular triviality of the offence.

In the order returning the case file to the Public Prosecutor, the Investigating Judge observed that the criminal offence submitted to his examination expressed "a particularly trivial degree of offensiveness", because it was allegedly committed in anger following a road accident, did not cause serious harm and did not represent habitual conduct on the part of the suspect. Adopting the arguments of the Investigating Judge, the Public Prosecutor requested dismissal due to the particular triviality of the offence (Article 131-bis of the Criminal Code), and carried out the necessary notifications to the suspect and the injured party.

The latter filed an objection to the dismissal, considering that the suspect had a propensity to commit offences and that the moral damages caused by his conduct were significant. At this point, the same Investigating Judge raised these questions of constitutional review, alleging the "lack of impartiality", and claiming to feel "prejudiced" in examining the evidence of the offence which he had already considered to exist, but not punishable. The neutrality of the judge is a condition required by Article 111, second paragraph, of the Constitution, and by Article 117, first paragraph, of the Constitution, in relation to the precepts of Article 6, paragraph 1, of the ECHR; furthermore, it would not be possible to overcome the problem through interpretation, in the absence of a specific legislative provision recognizing, in these cases, the incompatibility of the judge.

2. - The subject matter of this review must first be delimited, with respect to the broad petitum formulated at the end of the remitting order. The referring judge requests that the Court declare the unconstitutionality of Article 34, paragraph 2, of the Code of Criminal Procedure, insofar as it does not provide for the incompatibility of the Investigating Judge to participate in the proceedings concerning an objection to the request for dismissal "pursuant to Article 410 of the Code of Criminal Procedure", after having expressed an opinion on the existence of a ground for non-punishability when rejecting a request for the issuance of a summary conviction order. However, it is clear that the only relevant case in the main proceedings is the situation of a judge who has considered the offence committed not punishable due to its particular triviality and who then has to pronounce again on the existence of the particular triviality of the same offence.

The reasons given in the remitting order show that the complaints are exactly tailored to the circumstances that occurred in the case at hand.

The referring judge, in fact, alleges that he is conditioned by the "force of preconception" due to the specific assessments he has made on the triviality of the offence: in deciding to reject the request for a summary conviction, he allegedly already thoroughly examined the offensiveness of the conduct and the suspect's propensity to commit offences. He also points out that the Public Prosecutor, when requesting dismissal, notified the suspect and the injured party, in order to allow them to file an objection, in accordance with the specific rules governing dismissal due to the particular triviality of the offence, set out in Article 411, paragraph 1-bis, of the Code of Criminal Procedure.

The interpretation of the petitum, in the light of the overall reasons given in the introductory document, therefore allows it to be delimited "in order to ensure its adherence to the subjective circumstances of the case at hand" (ex multis, Judgment no. 267 of 2020).

The issue therefore only concerns the review of the constitutionality of Article 34, paragraph 2, of the Code of Criminal Procedure, insofar as it does not provide for the incompatibility to participate in the objection to dismissal due to the particular triviality of the offence of the judge who has already expressed his conviction concerning the existence of the aforementioned ground for exclusion of punishability.

3. - The questions relating to Articles 3 and 24, second paragraph, of the Constitution must be declared inadmissible, for lack of any reasoned grounds for the challenges.

4. - The question raised in relation to Article 111, second paragraph, of the Constitution is, however, well-founded.

4.1. - As this Court has repeatedly stated, the rules on the incompatibility of the judge are based on the safeguarding of the values of impartiality and objectivity of the judge - safeguarded by Articles 111, second paragraph, and 117, first paragraph, of the Constitution, the latter in relation to Article 6 of the ECHR, in relation to which the questions of constitutional review are admissible -, aiming to prevent the judge from making decisions conditioned by the "force of preconception", i.e., the tendency to confirm a decision or maintain an attitude already taken, deriving from assessments that he has previously been called upon to make concerning the same res iudicanda. It is necessary "that the functions of judging are assigned to a 'third' party, free from personal interests that may obscure the rigorous application of the law and also free from preconceived notions concerning the matter on which to pronounce" (Judgment no. 172 of 2023; to the same effect, Judgments nos. 64, 16 and 7 of 2022 and previous cases cited therein).

4.2. - The challenged Article 34, paragraph 2, of the Code of Criminal Procedure regulates "horizontal incompatibility", relating to the relationship between the judgment phase and the phase immediately preceding it. This provision is structured according to the technique of the exhaustive list: "[t]he judge who issued the concluding order of the preliminary hearing or ordered immediate trial or issued a summary conviction order or decided on the appeal against the judgment of no case to answer may not participate in the judgment". Over time, it has been subject to declarations of unconstitutionality of an additive nature, which have extended the operation of the institute also to cases not expressly contemplated.

4.3. - In its most recent pronouncements on the matter, this Court has indicated, point by point, the conditions under which the incompatibility of the judge may be established. It has, in fact, stated that, for the intra-procedural incompatibility of the judge to be considered to exist, the following conditions must concur: a) the pre-existing assessments relate to the same res iudicanda; b) the judge has been called upon to make an assessment (and not merely had knowledge) of previously performed acts, instrumental to the taking of a decision; c) the latter is not of a "formal" but of a "substantive" nature, i.e., involves assessments on the merits of the accusation; d) the previous assessment takes place in a different phase of the proceedings (Judgments nos. 172 and 91 of 2023 and no. 64 of 2022).

4.3.1. - Where it is stated that the judge cannot express an opinion more than once on the same res iudicanda, "judgment" must be understood as any proceeding which, on the basis of an examination of the evidence, arrives at a decision on the merits: the trial, but also the abbreviated proceedings, the application of the penalty at the request of the parties, the preliminary hearing and sometimes the enforcement incident, as well as the summary conviction order (most recently, Judgment no. 16 of 2022).

Within each of the phases - understood as ordered sequences of acts that may involve incidental assessments, even on the merits, of what emerges therein, preliminary to the final decision - the need for continuity and overall coherence must, in any case, be preserved, otherwise a fragmentation of the proceedings would be created, which would imply the need to have, for the same phase of the proceedings, as many different judges as there are acts to be performed (Judgment no. 64 of 2022 and previous cases cited therein).

5. - Turning to examine the assessments that the referring Investigating Judge has been (and is) called upon to make in the present case, reference must be made to the provisions of Article 131-bis of the Criminal Code, according to which the offence is not punishable when, due to the manner in which the offence was committed and the insignificance of the harm or danger, and "also taking into account the conduct subsequent to the offence, the offence is particularly trivial and the conduct is not habitual"; the same article excludes the application of these provisions where proceedings are initiated for certain offences (listed in the third paragraph) or in the presence of certain circumstances (indicated in the second paragraph).

According to the consolidated case law of the Courts of Appeal, the judgment on the particular triviality of the offence requires a complex and joint assessment of all the peculiarities of the specific case, taking into account, pursuant to Article 133, first paragraph, of the Criminal Code, the manner in which the offence was committed, the degree of culpability that can be deduced therefrom and the extent of the harm or danger (Court of Cassation, Joint Criminal Chambers, Judgment of 25 February-6 April 2016, no. 13681). The subject of the assessment is, in fact, the commission of the offence - which, in order to be considered "particularly trivial", must, logically, have occurred -; an offence which, however, it may be decided not to punish because it caused insignificant harm or danger. The Court of Appeal therefore qualifies the particularly minor offence pursuant to Article 131-bis of the Criminal Code as an offence that is, in any case, typical, unlawful and culpable (Court of Cassation, Joint Criminal Chambers, Judgment of 27 January-12 May 2022, no. 18891). This Court has already had occasion to refer to these statements, establishing, however, that the criminal judge who intends to acquit due to the particular triviality of the offence must be allowed to also pronounce on the claim for damages (Judgment no. 173 of 2022).

5.1. - The decision recognising the particular triviality of the offence may be made throughout the proceedings: at the end of the preliminary investigations, in the pre-trial phase, or following the trial.

In particular, Article 411, paragraph 1-bis, of the Code of Criminal Procedure provides that, "[i]f dismissal is requested due to the particular triviality of the offence, the Public Prosecutor must notify the person under investigation and the injured party, specifying that, within ten days, they may inspect the case file and file an objection indicating, on pain of inadmissibility, the reasons for their disagreement with the request. If the objection is not inadmissible, the judge proceeds pursuant to Article 409, paragraph 2, and, after hearing the parties, if he accepts the request, he issues an order. In the absence of an objection, or when the objection is inadmissible, the judge proceeds without formality and, if he accepts the request for dismissal, issues a reasoned decree. In cases where the request is not accepted, the judge returns the case file to the Public Prosecutor, possibly taking action pursuant to Article 409, paragraphs 4 and 5".

On the assumption that dismissal due to the particular triviality of the offence may have potentially prejudicial effects, both for the interests of the injured party and for the interests of the suspect - who may aim to obtain dismissal for a more favourable reason - the law has sought to ensure full adversarial proceedings on this possible outcome, which must, precisely, be explicitly announced by the Public Prosecutor (in this sense, already Court of Cassation, Fifth Criminal Section, Judgment of 7 July-5 September 2016, no. 36857). Having recognized the characteristic features of this procedural sequence, this Court has therefore recently stated that "a ruling of non-punishability pursuant to Article 131-bis of the Criminal Code, in whatever procedural or trial phase it is placed, logically presupposes the assessment that an offence, complete in all its objective and subjective elements, has been committed by the person under investigation or the accused" (Judgment no. 116 of 2023).

6. - In the present case, every condition required by the case law of this Court for the incompatibility of the judge to be established is present.

6.1. - A first decision has, in fact, been taken - the so-called "prejudicial" decision - in which, by assessing the evidence, the judge rejected the request for a summary conviction order, becoming convinced that the offence was not punishable, pursuant to Article 131-bis of the Criminal Code, due to its particular triviality. It should be recalled that, in summary proceedings, when assessing the Public Prosecutor's request, the judge carries out a complete examination of the accusation, from both the objective and subjective points of view; therefore, this Court has affirmed its nature as a true and proper judgment: the control entrusted to the Investigating Judge, in fact, relates "not only to the procedural requirements, but also to the merits of the accusation, requiring verification of the historical facts and the responsibility of the accused" (Judgment no. 16 of 2022; similarly, Judgment no. 346 of 1997).

6.2. - Then, with the return of the case file to the Public Prosecutor, the proceedings regressed to the preliminary investigation phase, thus fulfilling the condition of the difference in the procedural phase (Judgments nos. 16 of 2022 and 18 of 2017).

6.3. - Finally, it must be verified whether the decision-making body that the referring judge considers "prejudiced" by the formation of the previous conviction is also classifiable as a judgment on the criminal responsibility of the accused. In the case of an objection to dismissal due to the particular triviality of the offence, the answer is positive.

Although, in fact, in the traditional dynamics of inaction, the judge's decisions are summary and interlocutory in nature, characterizing the dismissal as a proceeding with an agile structure, the reasoned order based on the particular triviality of the offence is preceded by thorough assessments on the criminal responsibility of the suspect and, consequently, the objection to dismissal due to the particular triviality of the offence has the characteristics of a judgment that addresses the merits of the charge.

This is clearly shown by what has already been observed above (point 5.1.) on the subject matter of the assessment required of the Investigating Judge and on the guarantees of adversarial proceedings provided for in Article 411, paragraph 1-bis, of the Code of Criminal Procedure.

In perfect alignment with these observations, the Court of Cassation has stated that the order of dismissal due to the particular triviality of the offence issued, pursuant to Article 411, paragraph 1-bis, of the Code of Criminal Procedure, following an objection by the suspect, is appealable by appeal to the Court of Cassation for violation of the law, pursuant to Article 111, seventh paragraph, of the Constitution (Court of Cassation, Fifth Criminal Section, Judgment of 31 May-31 August 2023, no. 36468). This judgment, although not in the form of a sentence, clearly has a decision-making character and the capacity to definitively affect situations of subjective rights; since no other means of appeal is provided for, the possibility of appealing to the Court of Cassation for review of this decision has therefore been recognised.

It should also be noted that - precisely because dismissal pursuant to Article 131-bis of the Criminal Code implies the establishment of the commission of the offence - the Court of Appeal has established that the order of dismissal due to the particular triviality of the offence must be entered in the judicial record, thus producing direct effects in the subjective sphere of the person under investigation (Court of Cassation, Joint Criminal Chambers, Judgment of 30 May-24 September 2019, no. 38954): for the purpose of assessing the non-habitual nature of the conduct (an element that must exist in order for the particular triviality of the offence to be declared), it is in fact necessary that there be "memory" of any other offences committed by the same perpetrator, already considered not punishable pursuant to Article 131-bis of the Criminal Code.

For all these reasons, it must be considered that, if the judge is called upon to assess the same criminal offence twice, first when examining the request for a summary conviction order and then when considering the objection to dismissal due to the particular triviality of the offence, he may be influenced by the decision taken previously, in violation of Article 111, second paragraph, of the Constitution, according to which the proceedings must take place before a third and impartial judge.

Article 34, paragraph 2, of the Code of Criminal Procedure must therefore be declared unconstitutional, insofar as it does not provide for the incompatibility to decide on the objection to dismissal due to the particular triviality of the offence of the judge, in person, who, when rejecting the request for a summary conviction order, has already expressed his conviction concerning the existence of the aforementioned ground for exclusion of punishability.

7. - The examination of the further challenge relating to the violation of Article 117, first paragraph, of the Constitution, in relation to Article 6, paragraph 1, of the ECHR, is absorbed.

For These Reasons

THE CONSTITUTIONAL COURT

1) declares the unconstitutionality of Article 34, paragraph 2, of the Code of Criminal Procedure, insofar as it does not provide for the incompatibility, to decide on the objection to dismissal due to the particular triviality of the offence, of the judge, in person, who has rejected the request for a summary conviction order, considering that the aforementioned ground for exclusion of punishability exists;

2) declares inadmissible the questions of constitutional review of Article 34, paragraph 2, of the Code of Criminal Procedure, raised, in relation to Articles 3 and 24, second paragraph, of the Constitution, by the Investigating Judge of the Ordinary Court of Naples, by the Order indicated in the heading.

So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 5 March 2024.

Signed:

Augusto Antonio BARBERA, President

Franco MODUGNO, Rapporteur

Roberto MILANA, Registrar

Filed with the Registry on 23 May 2024

The Registrar