ORDER NO. 106
YEAR 2024
Commentary on the Decision of
Roberto Bartoli
for g.c. of Sistema Penale
Â
ITALIAN REPUBLIC
IN THE NAME OF THE ITALIAN PEOPLE
THE CONSTITUTIONAL COURT
composed of: President: Augusto Antonio BARBERA; Judges: Franco MODUGNO, Giulio PROSPERETTI, Francesco VIGANĂ’, 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 605, sixth paragraph, of the Criminal Code, introduced by Article 2, paragraph 1, letter d), of Legislative Decree No. 150 of 10 October 2022 (Implementation of Law No. 134 of 27 September 2021, delegating powers to the Government for the efficiency of criminal proceedings, as well as concerning restorative justice and provisions for the speedy conclusion of judicial proceedings), and of Article 1, paragraph 15, of Law No. 134 of 27 September 2021 (Delegation to the Government for the efficiency of criminal proceedings, as well as concerning restorative justice and provisions for the speedy conclusion of judicial proceedings), brought before the Court by the Pre-Trial Judge of the ordinary Court of Rome, in the criminal proceedings against M. M. and others, by order of 4 July 2023, registered at no. 138 of the register of orders 2023 and published in the Official Gazette of the Republic No. 43, first special series, of the year 2023.
Having seen the intervention of the President of the Council of Ministers;
having heard, at the Chamber of Council of 21 May 2024, the Reporting Judge Francesco ViganĂ²;
having deliberated at the Chamber of Council of 21 May 2024.
Considering that, by order of 4 July 2023, the Pre-Trial Judge of the ordinary Court of Rome raised questions of constitutional legitimacy concerning Article 605, sixth paragraph, of the Criminal Code, introduced by Article 2, paragraph 1, letter d), of Legislative Decree No. 150 of 10 October 2022 (Implementation of Law No. 134 of 27 September 2021, delegating powers to the Government for the efficiency of criminal proceedings, as well as concerning restorative justice and provisions for the speedy conclusion of judicial proceedings), and Article 1, paragraph 15, of Law No. 134 of 27 September 2021 (Delegation to the Government for the efficiency of criminal proceedings, as well as concerning restorative justice and provisions for the speedy conclusion of judicial proceedings), with reference to Articles 3, 13, 97 and 112 of the Constitution;
that the referring judge requests a declaration of unconstitutionality of the challenged provisions a) "in the terms specified in the reasoning," or b) "insofar as they do not exclude from the requirement of a complaint the crime of kidnapping perpetrated against public officials in the exercise of their duties and/or in the performance of an official act," c) "insofar as they do not provide for ex officio proceedings when the act referred to in Article 605 of the Criminal Code, paragraph 1, is connected with another crime for which ex officio proceedings are required," d) "insofar as they do not provide for ex officio proceedings when the act referred to in Article 605 of the Criminal Code, paragraph 1, is of long duration," e) "insofar as they do not provide for ex officio proceedings when the act referred to in Article 605 of the Criminal Code, paragraph 1, is committed by more than one person acting in concert pursuant to Article 110 of the Criminal Code";
that the referring judge is the pre-trial judge in the proceedings against several detainees accused, among other things, of the crime of kidnapping under Article 605, first paragraph, of the Criminal Code, against two prison guards;
that, during the proceedings, a change occurred in the conditions for prosecution of this crime, which became prosecutable upon complaint, under the new sixth paragraph of Article 605 of the Criminal Code – introduced by Article 2, paragraph 1, letter d), of Legislative Decree No. 150 of 2022 – which provides that "[i]n the case provided for in the first paragraph, the crime is punishable upon complaint by the injured party, unless the act is committed against a person who is incapacitated due to age or infirmity";
that the change in the conditions for prosecution of the crime of kidnapping is the result of the implementation, by the delegated legislator, of the delegation criteria contained in Article 1, paragraph 15, letter b), of Law No. 134 of 2021, which provides for "the extension of the regime of prosecution upon complaint to further specific crimes against the person or against property among those punishable by a custodial sentence not exceeding two years at a minimum [...], safeguarding ex officio proceedings when the injured party is incapacitated due to age or infirmity";
that, following the legislative intervention now described, the pre-trial hearing had been adjourned to allow for the submission of any complaint, as provided for in Article 85 of Legislative Decree No. 150 of 2022, but the deadline indicated therein had expired without result;
that, as regards relevance, the referring judge explains that he must apply Article 605, sixth paragraph, of the Criminal Code, as resulting from the implementation of the delegation criteria set forth in Article 1, paragraph 15, of Law No. 134 of 2021, in order to issue a judgment of dismissal;
that, as regards non-manifestly unfounded nature, the referring court finds a conflict between the challenged provisions and Articles 3, 13, 97 and 112 of the Constitution;
that, according to the referral order, the modification of the prosecution regime for kidnapping in the cases provided for in Article 605, sixth paragraph, of the Criminal Code, would conflict with Article 3 of the Constitution, since prosecution upon complaint would be unreasonable when compared to the ex officio prosecution provided for in "the incriminating provisions governing the basic crimes of kidnapping and the incriminating provisions of other kidnapping offences," as well as when compared with "those incriminating provisions that, for crimes normally prosecutable upon complaint, provide for ex officio proceedings when connected with crimes prosecutable ex officio";
that, in the referring judge's view, the legislator would also have violated Articles 13, 97 and 112 of the Constitution, since prosecution upon complaint in the cases provided for in the sixth paragraph of Article 605 of the Criminal Code would, respectively: a) create "a private mechanism by which personal liberty, the greatest of constitutional freedoms, would be treated as a commodity in exchange for other interests and values of lesser importance"; b) take on even more unreasonable contours in cases where the victims of the kidnapping are public officials, as in the case at issue; c) derogate from the mandatory nature of criminal proceedings without the aim of better protecting the victim or, in any case, constitutionally relevant interests of equal rank to that of personal liberty (these cannot be considered to be the needs of reducing litigation pursued by the reform);
that the President of the Council of Ministers intervened in the proceedings, represented and defended by the State Legal Office, arguing that the questions of constitutional legitimacy raised are inadmissible and manifestly unfounded;
that the questions would, first of all, be inadmissible, given the prohibition of declarations of unconstitutionality in malam partem in criminal matters;
that, on the merits, the questions would be manifestly unfounded, since the legislator would have remained within the broad discretion reserved to him in choices concerning the prosecution regime of individual crimes (the Court's Order No. 178 of 2003 is cited).
Considering that the referring judge criticizes the choice of Legislative Decree No. 150 of 2022 to provide for prosecution upon complaint for the crime of kidnapping under Article 605, first paragraph, of the Criminal Code, in implementation of the delegation criteria contained in Article 1, paragraph 15, of Law No. 134 of 2021;
that, however, on the basis of the literal wording of the delegation criteria contained in letter b) of the aforementioned paragraph ("to provide for the extension of the prosecution regime upon complaint to further specific crimes against the person or against property among those punishable by a custodial sentence not exceeding two years at a minimum; to provide that, for the purposes of determining the custodial sentence, circumstances shall not be taken into account, safeguarding ex officio proceedings when the injured party is incapacitated due to age or infirmity"), the delegated legislator had broad discretion in selecting the crimes against the person, punishable by a custodial sentence not exceeding two years at a minimum, to which to extend the prosecution upon complaint;
that the defect complained of by the referring judge therefore concerns exclusively the choices of the delegated legislator: this entails the manifest inadmissibility due to aberratio ictus (most recently, judgments No. 48 of 2023 and No. 22 of 2022, as well as Order No. 53 of 2022) of the questions formulated with reference to the enabling act;
that, as regards the questions concerning Article 2, paragraph 1, letter d), of Legislative Decree No. 150 of 2022, which led to the introduction of the new sixth paragraph of Article 605 of the Criminal Code, the aim pursued by the referring judge is to restore, following the hoped-for declaration of unconstitutionality, the ex officio prosecution regime for all or, at least, for some of the acts provided for in Article 605, first paragraph, of the Criminal Code;
that the objection of inadmissibility raised by the State Legal Office is well-founded;
that, in fact, the possible acceptance of the questions raised would have a detrimental effect on the punitive response against the convicted person, expanding the number of cases of kidnapping that are prosecutable and punishable;
that the constant case law of this Court states that "the adoption of rulings with in malam partem effects in criminal matters is, in general, precluded by the principle of the reserve of law enshrined in Article 25, second paragraph, of the Constitution, which, by entrusting to the "Parliament-subject" (judgment No. 5 of 2014), which embodies the political representation of the Nation (judgment No. 394 of 2006), the choices of criminal policy (with the related delicate balancing of conflicting rights and interests), prevents the Court, both from creating new offences or extending existing ones to cases not provided for, and from impacting negatively on the punitive response or on aspects relating, in any case, to punishability (ex plurimis, judgments No. 17 of 2021, No. 37 of 2019, No. 46 of 2014, No. 324 of 2008, No. 394 of 2006 and No. 161 of 2004; Orders No. 219 of 2020, No. 65 of 2008 and No. 164 of 2007)" (judgment 84 of 2024, point 2.2.1. of the Considered in law, as well as judgment No. 8 of 2022, point 4 of the Considered in law);
that this prohibition extends, in principle, also to provisions that provide for the prosecution upon complaint of certain crimes, provisions which the case law of legitimacy describes as having a "mixed, substantive and procedural nature," since the complaint constitutes "at the same time a condition for prosecution and for punishability" (ex multis, Court of Cassation, fifth criminal section, judgment of 20 June-18 September 2023, No. 38141; to the same effect, second criminal section, judgment of 25 January-23 March 2023, No. 12179);
that, precisely on the basis of this mixed nature, the United Sections of the Court of Cassation have considered the complaint "as an institution to be assimilated to those that make up the framework for determining the an and the quomodo of application of the precept," with the consequent application to the relative provisions of the principles on the succession of criminal laws over time under Article 2, fourth paragraph, of the Criminal Code (Court of Cassation, United Criminal Sections, judgment of 21 June-7 September 2018, No. 40150);
that, contrary to the argument put forward by the referring judge, it cannot be considered either that the challenged provision constitutes a favourable criminal provision, subject to the scrutiny of this Court even though the effects of the declaration of its unconstitutionality would have in malam partem effects for the defendant in the proceedings at issue (most recently, on the subject of favourable criminal provisions, judgment No. 155 of 2019, point 5 of the Considered in law);
that, in fact, this Court identifies favourable criminal provisions in those provisions that ""withdraw"" a certain class of subjects or conduct from the scope of application of another, more comprehensive provision, configuring for such subjects or conduct a "privileged treatment" (judgment No. 394 of 2006, point 6.1. of the Considered in law), whereas the challenged provision merely makes one of the two fundamental choices open to the legislator concerning the prosecution regime of each crime;
that it could not be argued either that, in the current criminal system, ex officio prosecution for crimes constitutes the rule and prosecution upon complaint the exception, so that the elimination of the exception would automatically lead to the re-expansion of the rule;
that, in fact, the legislator today shows a growing preference for the prosecution upon complaint regime for crimes that offend individual rights, where the act is not of particular gravity and the victim is not in a condition of vulnerability that could affect their ability to freely decide whether to file a complaint or withdraw a complaint already filed: and this both as a function of objectives of reducing litigation, directly connected to the principle – of constitutional and conventional rank – of the reasonable duration of the proceedings, and in order to encourage conciliatory and restorative solutions, capable of satisfying the legitimate need for protection of the victim without necessarily having to arrive at the outcome of conviction and the infliction of punishment;
that, consequently, the mechanism by which prosecution upon complaint is the subject of an express provision, while ex officio proceedings are not, constitutes a solution of mere legislative technique, which no longer underlies the consideration of ex officio proceedings as a rule or even a general principle of the criminal system – as was the case in the past, under the now obsolete conception according to which every crime offends above all the interests of the entire community, leaving aside the consideration of the interests of the injured party in the individual case;
that, finally, the argument of the referring judge that the sixth paragraph of Article 605 of the Criminal Code constitutes a favourable criminal law provision with respect to the alleged lex generalis of Article 50, paragraph 2, of the Code of Criminal Procedure ("[w]hen a complaint, request, application or authorization to proceed is not necessary, criminal proceedings are instituted ex officio") does not hit the mark, since this procedural provision – far from presenting itself as a general rule on prosecution, capable of re-expanding when the lex specialis ceases to exist – in reality merely refers to the choices, made separately and case by case by the legislator, on the prosecution regime of individual crimes;
that, for this absorbing reason, the questions of constitutional legitimacy of Article 605, sixth paragraph, of the Criminal Code, as introduced by Article 2, paragraph 1, letter d), of Legislative Decree No. 150 of 2022, must also be considered manifestly inadmissible.
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 inadmissibility of the questions of constitutional legitimacy of Article 605, sixth paragraph, of the Criminal Code, introduced by Article 2, paragraph 1, letter d), of Legislative Decree No. 150 of 10 October 2022 (Implementation of Law No. 134 of 27 September 2021, delegating powers to the Government for the efficiency of criminal proceedings, as well as concerning restorative justice and provisions for the speedy conclusion of judicial proceedings), and of Article 1, paragraph 15, of Law No. 134 of 27 September 2021 (Delegation to the Government for the efficiency of criminal proceedings, as well as concerning restorative justice and provisions for the speedy conclusion of judicial proceedings), raised, with reference to Articles 3, 13, 97 and 112 of the Constitution, by the Pre-Trial Judge of the ordinary Court of Rome with the order indicated in the heading.
So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 21 May 2024.
Signed:
Augusto Antonio BARBERA, President
Francesco VIGANĂ’, Reporting Judge
Roberto MILANA, Registrar
Filed with the Registry on 13 June 2024