ORDER No. 113
YEAR 2024
ITALIAN REPUBLIC
IN THE NAME OF THE ITALIAN PEOPLE
THE CONSTITUTIONAL COURT
composed of:
President: Augusto Antonio BARBERA
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 delivered the following
ORDER
in the proceedings concerning the constitutional legitimacy of Article 131-bis, third paragraph, number 3), of the Criminal Code, initiated by the Judge for Preliminary Investigations of the Ordinary Court of Florence, in the criminal proceedings against F. F., by order of 27 April 2023, registered under number 104 of the register of orders 2023 and published in the Official Gazette of the Republic no. 35, first special series, of the year 2023, the hearing of which was scheduled for the meeting in the council chamber on 4 June 2024.
Having regard to the statement of intervention by the President of the Council of Ministers;
Having heard in the council chamber on 5 June 2024, the reporting Judge Francesco Viganò;
Deliberated in the council chamber on 5 June 2024.
Whereas, by order of 27 April 2023, the Judge for Preliminary Investigations of the Ordinary Court of Florence raised the issue of constitutional legitimacy of Article 131-bis, third paragraph, number 3), of the Criminal Code, insofar as it provides that, in relation to the offence of negligent forest fire referred to in Article 423-bis, second paragraph, of the Criminal Code, the judge cannot deem the offence to be of particularly minor nature, with reference to Articles 3 and 27, third paragraph, of the Constitution;
Whereas, the referring judge states that he is called upon, in the preliminary hearing, to decide on the request for committal to trial formulated against F. F. for the offence of negligent forest fire allegedly committed, according to the indictment, on 15 April 2022;
Whereas, in the opinion of the referring judge, the evidence gathered during the preliminary investigations would allow the contested offence to be deemed to exist, the commission of which was also admitted by the defendant;
Whereas, moreover, in the case in question, the conditions for the application of the cause of non-punishability for the particularly minor nature of the offence, provided for by Article 131-bis of the Criminal Code, would exist, since the fire would have caused only minimal damage, also as a result of the conduct of the defendant, who would have taken action to call for help and to contain the fire while awaiting their arrival;
Whereas, on the other hand, the offence is in the abstract punished with a minimum penalty of less than two years of imprisonment, and in concrete terms it appears to be "unrelated to any criminal reality", as well as committed by a "person, no longer very young, without a criminal or judicial record";
Whereas, however, the application of this cause of non-punishability would be "expressly excluded by a legislative provision that does not allow the judge to consider the offence to be of particularly minor nature";
Whereas the referring judge doubts the constitutional legitimacy of the exclusion in question, which would be based on "an absolute presumption of the seriousness of the offence," which would not be "rationally justifiable" and would therefore be in contrast with Articles 3 and 27 of the Constitution;
Whereas, in particular, the rigorous treatment of negligent acts not attributable to criminal phenomena and characterized by a "substantially non-existent" damage, as well as by a modest degree of culpability, would not be justified;
Whereas, furthermore, it would appear "peculiar that among the offences statutorily excluded from the application of the cause of non-punishability, the only negligent offence is Article 423 bis paragraph II of the Criminal Code, the other excluded offences all being intentional offences";
Whereas the excluded offences would be damage offences, while negligent forest fire would constitute "also a danger offence";
Whereas, continues the referring judge, "[e]ven with reference to the offences of "common danger" the only offence excluded from the application of the cause of non-punishability is Article 423 bis paragraph 2 of the Criminal Code, which is essentially treated as if it were an intentional offence, given that all the offences of "common negligent danger" are not excluded from the application of Article 131 bis of the Criminal Code", while "not even the negligent environmental disaster provided for by Article 452 quinquies of the Criminal Code is presumptively excluded";
Whereas, ultimately, the challenged "exclusion rule" would impose "the imposition of a sanctioning treatment even against subjects in respect of whom the reprovability is minimal";
Whereas, the President of the Council of Ministers, represented and defended by the State Attorney General’s Office, has intervened in the proceedings, requesting that the issue be declared manifestly inadmissible or, in any case, manifestly unfounded;
Whereas, the State Attorney General’s Office first raises an objection as to the irrelevance of the issues, since the challenged provision would not be applicable to the case subject to the proceedings in question;
Whereas, in fact, the exclusion of the offence of negligent forest fire from the scope of application of the cause of non-punishability in question is due to Article 1, paragraph 1, letter c), number 3), of Legislative Decree no. 150 of 10 October 2022 (Implementation of Law no. 134 of 27 September 2021, delegating the Government to improve the efficiency of criminal proceedings, as well as in matters of restorative justice and provisions for the speedy resolution of judicial proceedings);
Whereas, from the indictment, it would appear that the offence in question was committed on 15 April 2022, and therefore prior to the entry into force of Legislative Decree no. 150 of 2022;
Whereas, from this circumstance, it would "unequivocally follow the inapplicability, in the main proceedings, of the challenged provision, given the substantial nature of the institution in question" and, consequently, the applicability of the principle of non-retroactivity enshrined in Article 25, second paragraph, of the Constitution, with the consequence that the referring judge could well apply, as requested, the cause of non-punishability to the fact in question;
Whereas, in any case, the issue would be, in the opinion of the State Attorney General’s Office, manifestly unfounded on the merits;
Whereas, the challenged provision would appear, first of all, "proportionate, appropriate and adequate in relation to the purpose pursued by the legislator and the marked social alarm that the "scourge" of fires, especially in the summer, has assumed in the Country";
Whereas, moreover, "the intrinsic reasonableness of the challenged provision" would not appear to be affected by the tertium comparationis identified by the referring judge, since, with regard to the negligent environmental disaster, the heterogeneity of the protected legal interest would prevent comparison.
Considering that, from the indictment reported in the referral order, it effectively emerges that the offence would have been committed on 15 April 2022;
That, on that date, the cause of non-punishability for the particular minor nature of the offence was applicable to offences punishable with a custodial sentence not exceeding five years at the maximum, and therefore also to the offence of negligent forest fire referred to in Article 423-bis, second paragraph, of the Criminal Code, punishable with imprisonment from one to five years;
That only as a result of the amendments made by Legislative Decree no. 150 of 2022, Article 131-bis, third paragraph, number 3), of the Criminal Code now provides for an explicit preclusion with regard to the offence of forest fire provided for by Article 423-bis of the Criminal Code;
That, pursuant to Article 6 of Decree-Law no. 162 of 31 October 2022 (Urgent measures regarding the deadlines for the application of the provisions of Legislative Decree no. 150 of 10 October 2022, and provisions relating to disputes in sports justice, as well as obligations of anti-SARS-CoV-2 vaccination, implementation of the National Plan against an influenza pandemic and prevention and counteraction of illegal gatherings), converted, with amendments, into Law no. 199 of 30 December 2022, Legislative Decree no. 150 of 2022 entered into force on 30 December 2022, and thus after the date on which the offence subject to the proceedings in question would have been committed;
That it is undisputed, both in the case law of this Court (judgment no. 120 of 2019, point 3 of the Considering in law) and in that of the Court of Cassation (United Criminal Sections, judgment 25 February - 6 April 2016, no. 13681), that the cause of non-punishability for the particular minor nature of the offence is an institution of substantive criminal law, subject as such to the rules on the succession of criminal laws over time referred to in Article 2 of the Criminal Code, and in particular to the principle – established at the constitutional level by Article 25, second paragraph, of the Constitution – of the prohibition of retroactive application to the detriment of the defendant;
That, therefore, in the case subject to the proceedings in question, the new preclusions introduced by Legislative Decree no. 150 of 2022 cannot be applied, the more favorable previous legislation continuing to apply;
That the objection of irrelevance formulated by the State Attorney General’s Office is therefore founded, the referring judge not having to apply the challenged legislation;
That, in conclusion, the issues are manifestly inadmissible.
Having regard to 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 issues of constitutional legitimacy of Article 131-bis, third paragraph, number 3), of the Criminal Code, raised, with reference to Articles 3 and 27, third paragraph, of the Constitution, by the Judge for Preliminary Investigations of the Ordinary Court of Florence with the order indicated in the preamble.
Thus decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 5 June 2024.
Signed:
Augusto Antonio BARBERA, President
Francesco VIGANÒ, Reporting Judge
Roberto MILANA, Director of the Registry
Filed in the Registry on 27 June 2024