ORDER NO. 97
YEAR 2024
ITALIAN REPUBLIC
IN THE NAME OF THE ITALIAN PEOPLE
THE CONSTITUTIONAL COURT
composed of:
President: Franco MODUGNO;
Judges: 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 issued the following
ORDER
in the proceedings concerning the constitutional legitimacy of Article 2, paragraph 2-bis, of Law No. 89 of 24 March 2001 (Provision for equitable redress in case of violation of the reasonable time limit of the proceedings and amendment of Article 375 of the Code of Civil Procedure), as introduced by Article 55, paragraph 1, letter a), number 2), of Decree-Law No. 83 of 22 June 2012 (Urgent measures for the growth of the Country), converted, with amendments, into Law No. 134 of 7 August 2012, referred by the Court of Appeal of Milan, Second Civil Section, in the proceedings between the Ministry of Justice and O. D. K. J. D. D., by order of 1 December 2022, registered at No. 166 of the Register of Orders 2023 and published in the Official Gazette of the Republic No. 2, First Special Series, of the year 2024, the hearing of which was set for the Chamber Council meeting of 7 May 2024.
Having seen the intervention of the President of the Council of Ministers;
Having heard, at the Chamber Council meeting of 9 May 2024, the Reporting Judge Stefano Petitti;
Having deliberated at the Chamber Council meeting of 9 May 2024.
Considering that, by order of 1 December 2022, registered at No. 166 of the Register of Orders 2023, the Court of Appeal of Milan, Second Civil Section, raised questions of constitutional legitimacy of Article 2, paragraph 2-bis, of Law No. 89 of 24 March 2001 (Provision for equitable redress in case of violation of the reasonable time limit of the proceedings and amendment of Article 375 of the Code of Civil Procedure), as introduced by Article 55, paragraph 1, letter a), number 2), of Decree-Law No. 83 of 22 June 2012 (Urgent measures for the growth of the Country), converted, with amendments, into Law No. 134 of 7 August 2012, in reference to Articles 111, second paragraph, and 117, first paragraph, of the Constitution, the latter in relation to Article 6 of the European Convention on Human Rights, insofar as the provided reasonable time limit for the duration of the proceedings not exceeding three years in the first instance applies to first-instance proceedings concerning the recognition of international protection under Article 35-bis of Legislative Decree No. 25 of 28 January 2008 (Implementation of Directive 2005/85/EC establishing minimum standards on procedures in Member States for the granting and withdrawing of refugee status);
that, according to the order, the Court of Appeal of Milan is seized of the opposition ex Article 5-ter of Law No. 89 of 2001, filed by the Ministry of Justice against the decree issued by the judge appointed pursuant to Article 3, paragraph 4, of the same law, in granting the application for equitable redress filed by an applicant for international protection, whose proceedings, pursuant to Article 35-bis of Legislative Decree No. 25 of 2008, took place from 5 December 2018 to 4 June 2022;
that the contested decree held that the underlying proceedings had exceeded the reasonable time limit by two years, estimated at one year, in analogy with what was recognized for the equitable redress proceedings under Law No. 89 of 2001;
that, in the opinion of the referring court, it is not possible to adopt the constitutionally oriented interpretation of the provision adopted by the first instance court, adhering to the observation made by the Ministry of Justice according to which the three-year time limit established in Article 2, paragraph 2-bis, of Law No. 89 of 2001, is predetermined by the legislator and is outside the discretion of the judicial authority, as already established in judgment No. 36 of 2016 of this Court;
that the Court of Appeal of Milan therefore considered the questions of constitutional legitimacy of Article 2, paragraph 2-bis, of Law No. 89 of 2001, in reference to Articles 111, second paragraph, and 117, first paragraph, of the Constitution, the latter in relation to Article 6 ECHR, not manifestly unfounded, since the challenged provision provides for a reasonable time limit of three years with regard to the first instance of international protection proceedings, for which the entire proceedings are structured in only two instances and the proceedings are required to be conducted "urgently", as these are proceedings concerning the fundamental rights of individuals, in relation to which the European Court of Human Rights considers particular diligence and speed in the determination to be necessary;
that the President of the Council of Ministers intervened in the proceedings, represented and defended by the Attorney General of the State, requesting that the questions be declared unfounded;
that, in fact, in the opinion of the Attorney General, the questions raised would be different from those decided by judgment No. 36 of 2016 of this Court, as this case concerns proceedings for establishing, also through complex factual investigations, whether or not the requirements for the recognition of international protection are met, and the conclusions reached in the more recent judgment of this Court No. 205 of 2023 should be referred to instead.
Considering that the Court of Appeal of Milan, Second Civil Section (reg. ord. no. 166 of 2023), raised questions of constitutional legitimacy of Article 2, paragraph 2-bis, of Law No. 89 of 2001, as introduced by Article 55, paragraph 1, letter a), number 2), of Decree-Law No. 83 of 2012, as converted, for conflict with Articles 111, second paragraph, and 117, first paragraph, of the Constitution, the latter in relation to Article 6 ECHR;
that the challenged provision, by establishing a predefined reasonable time limit of three years, outside the discretion of the judicial authority, also with regard to the first instance of international protection proceedings, would not take into account the characteristics and nature of such cases, which require particular diligence and speed in their determination, as they concern the fundamental rights of individuals;
that this Court has already decided questions analogous to those now under consideration, with judgment No. 205 of 2023, filed on 14 November 2023 and therefore subsequent to the order of referral for review;
that this judgment declared unfounded the questions of constitutional legitimacy of Article 2, paragraph 2-bis, of Law No. 89 of 2001, raised by six orders from the Courts of Appeal of Naples and Bologna, in reference to Articles 3, first paragraph, 111, second paragraph, and 117, first paragraph, of the Constitution, the latter in relation to Article 6 ECHR, where the provision in question was identically challenged insofar as, providing that the reasonable time limit for the duration of the proceedings is considered to be respected if it does not exceed three years in the first instance, it finds indiscriminate application also to proceedings concerning the recognition of international protection under Article 35-bis of Legislative Decree No. 25 of 2008;
that the aforementioned judgment No. 205 of 2023 recalled and reaffirmed the principles of judgment No. 36 of 2016, according to which paragraphs 2-bis and 2-ter of Article 2 of Law No. 89 of 2001 outline "a legal provision concerning the time limits within which the proceedings must be considered to respect the principle of the reasonable duration of proceedings, as stated in Article 111, second paragraph, of the Constitution and Article 6, paragraph 1, of the ECHR", through unambiguous precepts that can only be understood in the sense that these time limits are to be considered reasonable;
that, in particular, in that judgment it was noted that, with regard to proceedings concerning international protection, in the case law of the Court of Cassation there is no approach that can unequivocally lead to the belief that it is possible to identify a specific duration for them, different from that of other civil proceedings;
that similarly – it was emphasized – there is no repeated and uniform exercise of the ECtHR's case law, from which to draw the meaning of Article 6 ECHR, which is to be considered, hypothetically, preclusive of a provision that equates the time limits for the reasonable duration of international protection proceedings to that justified with regard to other civil proceedings;
that, furthermore, it was highlighted that from the examination of European Union legislation and the case law of the Court of Justice of the European Union no element can be derived that is capable of giving proceedings concerning international protection a differentiated status, as regards their duration, compared to the set of judicial proceedings conducted within a Member State;
that, indeed, the frequently cited judgment No. 205 of 2023 further emphasized how the case law of the Court of Justice of the EU unequivocally derives the need for judicial proceedings concerning international protection to be governed in such a way as to ensure a full examination of the applicant's individual situation, which may involve complex investigations;
that this judgment therefore concluded that the speed of proceedings required by the proceedings in question does not require a shorter reasonable time limit to be identified for them than the three-year limit established for the first instance of the merits;
that the referral order does not provide new arguments compared to those already examined in the aforementioned judgment No. 205 of 2023, or such as to lead to a different conclusion;
that, therefore, the questions must be declared manifestly unfounded (ex plurimis, orders No. 78 of 2024, No. 214 of 2023 and No. 220 of 2022).
Having seen Articles 26, second paragraph, of Law No. 87 of 11 March 1953, and 11, paragraph 1, of the Supplementary Rules for proceedings before the Constitutional Court.
For These Reasons
THE CONSTITUTIONAL COURT
declares the manifest unfoundedness of the questions of constitutional legitimacy of Article 2, paragraph 2-bis, of Law No. 89 of 24 March 2001 (Provision for equitable redress in case of violation of the reasonable time limit of the proceedings and amendment of Article 375 of the Code of Civil Procedure), as introduced by Article 55, paragraph 1, letter a), number 2), of Decree-Law No. 83 of 22 June 2012 (Urgent measures for the growth of the Country), converted, with amendments, into Law No. 134 of 7 August 2012, raised, in reference to Articles 111, second paragraph, and 117, first paragraph, of the Constitution, the latter in relation to Article 6 of the European Convention on Human Rights, by the Court of Appeal of Milan, Second Civil Section, with the order indicated in the heading.
So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 9 May 2024.
Signed:
Franco MODUGNO, President
Stefano PETITTI, Reporting Judge
Roberto MILANA, Director of the Registry
Filed with the Registry on 3 June 2024