JUDGMENT NO. 116
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
JUDGMENT
in the proceedings concerning the constitutional legitimacy of Article 73 of Legislative Decree No. 159 of 6 September 2011 (Code of Anti-Mafia Laws and Prevention Measures, as well as new provisions regarding anti-mafia documentation, pursuant to Articles 1 and 2 of Law No. 136 of 13 August 2010), initiated by the Ordinary Court of Nuoro, Criminal Division, in the proceedings against N. S., with order of 19 September 2023, registered under No. 141 of the 2023 Orders Register and published in the Official Gazette of the Republic No. 44, First Special Series, of the year 2023, the hearing of which was set for the meeting in the council chamber of 4 June 2024.
Having regard to the instrument of intervention of the President of the Council of Ministers;
Having heard in the council chamber of 5 June 2024 the Reporting Judge Giovanni Amoroso;
Having deliberated in the council chamber of 5 June 2024.
Statement of Facts
1. – By order of 19 September 2023 (r. o. no. 141 of 2023), the Ordinary Court of Nuoro, Criminal Division, raised, with reference to Articles 3 and 25 of the Constitution, questions of constitutional legitimacy of Article 73 of Legislative Decree No. 159 of 6 September 2011 (Code of Anti-Mafia Laws and Prevention Measures, as well as new provisions regarding anti-mafia documentation, pursuant to Articles 1 and 2 of Law No. 136 of 13 August 2010), in the part where it punishes with a criminal sanction anyone who, having previously been subjected to a personal prevention measure, drives a car or motorcycle without a license, because it has been revoked or suspended, also in cases where the revocation or suspension of the driving license is not a consequence of the application of the prevention measure.
1.1. – The referring court reports that it is proceeding against a person accused of the offense under Article 73 of the Anti-Mafia Code because, being the recipient of the oral warning measure issued by the Police Commissioner, was driving the car without a driving license as it had been revoked for driving a car while intoxicated.
The *a quo* judge points out that the defendant was subjected to the prevention measure of the oral warning with order of the Police Commissioner of 24 October 2017, notified to him on 22 December 2017.
Subsequently, the Prefect, with an order of 31 July 2019, ordered, for a period of one year, starting from 26 July 2019, the suspension of the driving license, as the defendant, on the same date, was caught driving a car while intoxicated as a result of the abuse of alcohol, in violation of Article 186, paragraph 2, letter c), of Legislative Decree No. 285 of 30 April 1992 (New Highway Code).
The referring court also notes that during a traffic police check, the defendant was caught driving his car without a license, precisely because it was suspended by the aforementioned prefectural order.
On the point of relevance, the referring court states that the procedural evidence proves conduct attributable to the offense, referred to in Article 73 of Legislative Decree No. 159 of 2011 and emphasizes that this provision does not distinguish with regard to the reasons for the revocation or suspension of the driving license, thus being applicable also in cases where the relevant administrative measure does not follow the application of the prevention measure, the literal data supporting this first of all.
In this regard, it recalls a recent decision of the Court of Cassation according to which the offense in question is not committed by driving a car without a license, or after the license has been revoked, by the recipient of a mere oral warning from the Police Commissioner without the prescription of the prohibitions provided for in Article 3, paragraph 4, of the aforementioned Legislative Decree (Court of Cassation, Fifth Criminal Section, judgment of 28 February-7 April 2023, No. 14935).
According to the referring court, this would be an orientation that is not compatible with the provision of Article 3 of the Anti-Mafia Code, which includes the oral warning of the Police Commissioner among personal prevention measures, even in the so-called simple form. Moreover - the referring court points out - this orientation is not univocal, given that another decision of the Court of Cassation has stated that the offense is configurable even in the case in which a prevention measure ordered by the administrative authority is relevant (Court of Cassation, First Criminal Section, judgment of 17 November 2022-10 January 2023, No. 418).
Having clarified this, in the absence of a unique orientation of the jurisprudence of legitimacy and in compliance with the literal tenor of Article 73 of the Anti-Mafia Code, according to the *a quo* judge, the offense must be considered configurable even in the case of a subject who is the recipient of an oral warning without prescriptions.
In support of these arguments, other jurisprudence of legitimacy is invoked (ex plurimis, Court of Cassation, Sixth Criminal Section, judgment of 12 December 2017-20 February 2018, No. 8223), according to which the decriminalization of the offense of driving without a license referred to in Article 116 of the Highway Code does not extend to the case in which driving without a license is carried out by a person subject to a personal prevention measure, since Article 73 of the Anti-Mafia Code provides for an autonomous offense.
Therefore, the relevance of the questions of constitutional legitimacy would exist, as the proceedings cannot be decided in the absence of a resolution of the incident of constitutional legitimacy; nor is it possible to proceed, as highlighted, to a constitutionally oriented interpretation.
The *a quo* judge then states that the judgment of this Court No. 211 of 2022, concerning the same provision under scrutiny, has examined questions of constitutional legitimacy which are not actually superimposed on those raised by him.
1.2. – On the merits, the referring court believes that the provision under scrutiny is in conflict with the principle of the necessary offensiveness of the offense referred to in Article 25, second paragraph, of the Constitution.
Having recalled the numerous judgments of this Court on the principle of offensiveness, and among these the aforementioned judgment No. 211 of 2022, the referring court points out that even the offenses of presumed danger, to which the provision of Article 73 of the Anti-Mafia Code should be ascribed, must be characterized by the necessary offensiveness of the criminal offense.
In particular, the referral order points out that the principle of offensiveness of the offense, even in its configuration as a case of danger, postulates that the personal qualities of the subjects or their past behavior cannot justify provisions that attribute criminal relevance to subjective conditions, unless such specific and differentiated treatment compared to other persons responds to the need to preserve other interests worthy of protection. Indeed, the incrimination of a mere status, rather than of a conduct, is not compatible with the principle of offensiveness, even though the subjective condition of the perpetrator may be relevant in crimes proper.
1.3. – Having clarified this, the referring court is aware that, with the judgment No. 211 of 2022, this Court has held that a case of liability by the author is not discernible in the case referred to in Article 73 of the Anti-Mafia Code, but in this regard it points out that, in relation to the case then taken into consideration, the judgment stated, among other things, that the "[p]resupposition of the criminal offense is the lack of a driving license as a consequence of the application of the personal prevention measure; a presupposition that – as noted – finds its specific regulatory reference in the provision of Article 120 of the Highway Code".
The literal tenor of the provision, however, is such as to determine its applicability also to cases in which the suspension or revocation of the driving license do not derive from the application of the personal prevention measure, but result from other events, such as the loss of the psychophysical requirements for driving or, as in the case in question, when it comes to a precautionary measure imposed by the administrative authority to counter further conduct connected to the abuse of alcoholic beverages.
In such cases, the justifying reason for the criminal provision would be lacking from the point of view of the principle of offensiveness, identified in the need to limit movement, to prevent or hinder the perpetration of illegal activities and to make it less easy to evade the controls of the authority by subjects considered dangerous and therefore subjected to a prevention measure.
In this regard, the referring court observes that where the revocation or suspension of the license is not linked to the application of the prevention measure, to the dangerousness of the subject and to the need to provide more stringent methods of control, the provision of a criminal penalty connected to the violation of the ban on driving without a license ends up punishing a personal quality of the subject, that is, that of being a person subjected to a prevention measure; in the absence of such a subjective qualification, the same conduct is instead punished only administratively, without prejudice to the case of recidivism within two years.
In such cases, recalling the principles affirmed in the judgment of this Court No. 354 of 2002, being subject by final order to a personal prevention measure is presented as an "event completely extraneous to the offense” provided for in Article 73 of the Anti-Mafia Code, thus configuring a case of criminal liability by the author.
The referring court observes that - unlike what was stated in the judgment of this Court No. 211 of 2022 in relation to the specific case of revocation of the license as a consequence of the application of the prevention measure, for which there is a case-by-case assessment of the specific dangerousness, which is also accompanied by the justiciability of the prefectural assessment - in the case in question, in which the suspension of the license is not connected to the application of the prevention measure, the evaluative moment of social dangerousness is lacking.
According to the referring court, the provision under scrutiny, in the part where it sanctions the recipient of a personal prevention measure, against whom the driving license has been suspended or revoked for reasons unrelated to the application of the prevention measure, configures a case of an offense of the author, in contrast with the principle of offensiveness, which prohibits punishing or punishing more rigorously a subject, by virtue of his personal qualities deriving from the previous commission of acts completely unrelated to the offense for which proceedings are being brought.
1.4. – There would also be a conflict with Article 3 of the Constitution, under the profile of the violation of the principle of reasonableness.
In this regard, the referral order notes that, following the decriminalization implemented with Article 1 of Legislative Decree No. 8 of 15 January 2016 (Provisions regarding decriminalization, pursuant to Article 2, paragraph 2, of Law No. 67 of 28 April 2014), the driving of vehicles without having obtained a license, or driving without a license because it has been revoked or not renewed for lack of physical and psychological requirements, is no longer provided for by law as a crime (except in the case of recidivism within two years), as it has been transformed into an administrative offense and punished, pursuant to Article 116, paragraph 15, first period, of the Highway Code, with the administrative sanction last raised to a minimum of 5,100 and a maximum of 30,599 euros.
Therefore, in the current regulatory system, having been subjected, by final order, to a personal prevention measure, while being a circumstance completely extraneous to the offense (driving without a license), makes punishable a conduct which, if carried out by any other subject, does not assume any disvalue on a criminal level, except for the case of recidivism within two years.
The provision under scrutiny, in this perspective, would be vitiated by unreasonableness, since the same fact, driving without a license, is relevant under the criminal aspect only for a particular category of subjects, those subjected to a prevention measure.
In this regard, the *a quo* judge points out that the arguments on the point, contained in the judgment of this Court No. 211 of 2022 - which declared the unfoundedness of the questions then raised - cannot be valid in the case in question, since the administrative suspension order of the license was ordered for reasons not related to the dangerousness of the defendant.
2. – By instrument filed on 22 November 2023, the President of the Council of Ministers, represented and defended by the State Attorney General's Office, intervened in the proceedings concerning constitutional legitimacy, asking that the questions be declared unfounded.
According to the state defense, the provision under scrutiny would not be in conflict with the principle of offensiveness in that, as noted in the judgment No. 211 of 2022, the personal prevention measures, both those applied by the administrative authority and those adopted by the judicial authority, in addition to presupposing the attribution of a person to one of the categories of recipients provided for by the Anti-Mafia Code, require "the current social dangerousness of the recipient of the measure and the effective social dangerousness of the person for public safety".
Considered in Law
1. – With the referral order indicated in the heading (r. o. no. 141 of 2023), the Court of Nuoro, Criminal Division, raised, with reference to Articles 3 and 25 of the Constitution, questions of constitutional legitimacy of Article 73 of Legislative Decree No. 159 of 2011, in the part where it punishes with a criminal sanction anyone who, having previously been subjected to a personal prevention measure, drives a car or motorcycle without a license, because it has been revoked or suspended, also in cases where the revocation or suspension of the driving license is not a consequence of the application of the prevention measure.
The referring court states, first of all, that the provision under scrutiny would conflict with Article 25 of the Constitution, with reference to the principle of offensiveness, in that in cases where the revocation or suspension of the license is not a consequence of the application of the prevention measure, which presupposes the dangerousness of the subject, the provision of a criminal penalty connected to the violation of the ban on driving without a license ends up punishing a personal quality, that is, being a person subjected to a prevention measure, thus configuring a case of so-called liability of the author.
Furthermore, the provision under scrutiny would violate Article 3 of the Constitution, with reference to the principle of reasonableness, because being subjected, by final order, to a personal prevention measure, while being a circumstance completely extraneous to the offense (driving without a license), makes punishable a conduct which, if carried out by any other subject, does not assume any criminal disvalue, having been decriminalized by Article 1 of Legislative Decree No. 8 of 2016.
2. – The President of the Council of Ministers, represented and defended by the State Attorney General's Office, intervened in the proceedings, asking that the questions be rejected due to their lack of merit.
3. – The questions are admissible.
Their relevance exists, first of all, as the referring court has adequately motivated the need to apply the provision under scrutiny in the main proceedings (ex plurimis, judgments No. 211 of 2022, No. 182 and No. 55 of 2021).
In particular, the *a quo* judge must judge the existence of the offense provided for by Article 73 of the Anti-Mafia Code, of which a person is accused who is the recipient, definitively, of the prevention measure of the oral warning, ordered by the Police Commissioner, in this case without the prescriptions (so-called simple warning), referred to in Article 3, paragraph 4, of the Anti-Mafia Code; the defendant is accused of having driven a car despite having previously had his license suspended, by prefectural order, for driving while intoxicated.
In acknowledging the existence of a prevailing - but not unanimous - orientation of the jurisprudence of legitimacy that affirms the non-configurability of the offense in the case of a so-called simple oral warning, the referring court points out that the literal tenor of the provision under scrutiny is clear in the sense of its application to prevention measures in general, without any distinction and therefore without excluding the oral warning (in the sense of the existence of the offense with reference to the defendant recipient of the oral warning of the Police Commissioner, see Cass., judgment No. 418 of 2023; in the opposite sense, Cass., judgment No. 14935 of 2023).
This is sufficient, in the absence of a clear living law on the point, to affirm the relevance of the questions (ex multis, judgments No. 5 of 2024, No. 225 of 2023 and No. 246 of 2022), especially since in criminal matters there is a greater need for certainty regarding the existence, or not, of offenses.
4. – Before proceeding to the examination of the censures on the merits, it is first necessary to recall, in summary, the reconstruction of the evolution of the regulatory framework of reference, already carried out by this Court in the judgment No. 211 of 2022, concerning the same provision now also under scrutiny.
In particular, for the purposes relevant here, this judgment highlighted that, over time, the evolution of the regulation of driving without a license has occurred according to "a long-standing and constant parallelism between the general case (of driving without a license or with a revoked or not renewed license) and the special case (in which the same conduct is carried out by someone who is subject to a personal prevention measure by final order)", which have always been the subject of distinct regulations "both when both have configured offenses, differentiated by gravity and custodial sentence, and when the common case has been decriminalized and transformed into an administrative offense, while the special case has remained an offense".
Indeed, coming to the current regulation, on the traffic front, Legislative Decree No. 8 of 2016, in Article 1, entitled "Decriminalization of offenses punishable only by a pecuniary penalty and exclusions", in paragraph 1, established that "[t]hey do not constitute an offense and are subject to the administrative penalty of payment of a sum of money all violations for which only a fine or penalty is provided for" and, in paragraph 2, provided that "[t]he provision of paragraph 1 also applies to the offenses provided for therein which, in the aggravated cases, are punished with imprisonment, alone, alternative or combined with a pecuniary penalty. In this case, the aggravated cases are to be considered autonomous offenses".
As a result of the legislative intervention of 2016, the case constituting an offense, already provided for in paragraph 15 of Article 116 of the Highway Code, in the case punished only with the pecuniary penalty, has become an administrative offense, with the exclusion of only the aggravated case from this decriminalization, which occurs in the case of recidivism within two years, punished also with imprisonment and, therefore, still an offense.
Pursuant to Article 5 of Legislative Decree No. 8 of 2016, in fact, "[w]hen the offenses transformed into administrative offenses pursuant to this decree provide for aggravated cases based on recidivism and excluded from decriminalization, recidivism is to be understood as the reiteration of the decriminalized offense".
Instead, on the front of the fight against mafia crime, the legislative intervention of decriminalization has not affected Article 73 of the Anti-Mafia Code which, as a special rule compared to that of the Highway Code, continues to provide for a distinct offense (Court of Cassation, First Criminal Section, judgment of 14 June-6 August 2019, No. 35772; Sixth Criminal Section, judgment No. 8223 of 2018 and First Criminal Section, judgment of 13-26 June 2013, No. 27828).
The jurisprudence of legitimacy has, in fact, remarked that the persistence of the criminal relevance of the conduct described in Article 73 of the Anti-Mafia Code has the "purpose of strengthening the obligation to observe the rules suitable to contain its dangerousness and the consequent offense is punished with the penalty of arrest from six months to three years" (Court of Cassation, Sixth Criminal Section, judgment No. 8223 of 2018).
5. – Having established this, the questions of constitutional legitimacy are well-founded with reference to both the evoked parameters.
6. – First of all, it should be pointed out that this Court, with the aforementioned judgment No. 211 of 2022, has already scrutinized the incriminating case, object of today's scrutiny, with reference to the conduct of driving without a license, because it was revoked, or denied, or never obtained, due to the fact that the defendant was a person subjected, by final order, to personal prevention measures, and has held that there is no conflict with Articles 3, 25, second paragraph, and 27, third paragraph, of the Constitution, without recognizing a case of so-called liability by the author.
This Court has highlighted that personal prevention measures, whether applied by the administrative authority or adopted by the judicial authority, presuppose the attribution of the person to one of the categories of recipients provided for by the Anti-Mafia Code and the current social dangerousness of the recipient of the measure for public safety. And it has remarked that, among the specific objectives of the application of such measures, there is that of "guaranteeing the implementation of the necessary surveillance by the public security bodies, also through the provision of limitations on freedom of movement (judgment No. 24 of 2019)" (also judgment No. 211 of 2022).
In particular, in the judgment No. 24 of 2019, it was stated that "[b]eing based on a judgment of persistent dangerousness of the subject, personal prevention measures have a clear preventive rather than punitive purpose, aiming to limit the freedom of movement of their recipient to prevent them from committing further offenses, or at least to make their realization more difficult, while at the same time allowing the public security authority to exercise more effective control over the possible criminal initiatives of the subject. The undoubted afflictive dimension of the measures themselves is, in this perspective, only a collateral consequence of measures whose essential purpose is the control, for the future, of the social dangerousness of the subject concerned: not the punishment for what they have done in the past”.
This Court has also held that not every failure to comply with generic and indeterminate obligations can be charged to the recipients of prevention measures, but only that which is embodied in violations of specific prescriptions aimed at protecting public order and safety. Prescriptions which, in the cases that were the subject of the questions of constitutional legitimacy decided with the judgment No. 211 of 2022, can be traced back both to paragraph 1 of Article 120 of the Highway Code, according to which those who are, or have been, subjected to the prevention measures provided for by Law No. 1423 of 27 December 1956 (Prevention Measures against persons dangerous to safety and public morality), with the sole exception of that referred to in Article 2, and by Law No. 575 of 31 May 1965 (Provisions against organized crime of a mafia type, also foreign), can not obtain a driving license, and to paragraph 2 of Article 120 of the Highway Code, according to which driving can be prohibited by a possible revocation order of the Prefect if "the subjective conditions indicated in the first period of paragraph 1" occur on a date subsequent to the issue of the license (judgment No. 99 of 2020).
This Court has, in fact, emphasized that "the violation of the rule, which prohibits driving cars and motorcycles without a license to the subject subjected to a personal prevention measure, is an expression of a discretionary assessment by the legislator, who considered that there was a quid pluris of dangerousness due to the fact that someone who is subjected by final order to a personal prevention measure can drive a vehicle" (judgment No. 211 of 2022).
On the one hand, therefore, there is the choice of the legislator to include, on a general level, among the subjective requirements for obtaining a license, the fact of not being a person subject to a personal prevention measure (with the exception of the measure of the compulsory road map) and, on the other, to provide, once the application of the prevention measure occurs, the possibility for the Prefect, recognized by this Court (judgment No. 99 of 2020), to carry out in concrete terms "a verification of the need/opportunity, or not, of the revocation of the driving license administratively in the face of the specific prevention measure to which its holder is subjected in the specific case".
With the aforementioned judgment No. 211 of 2022, it was stated, in particular, that "the provision under scrutiny, in providing for a more severe sanctioning treatment, compared to that of the provision referred to in Article 116, paragraph 15, of the Highway Code, is aimed at protecting public order, potentially endangered in cases where the provision of Article 120 of the Highway Code is violated, which is linked to the need to place limitations on movements, to prevent or hinder the perpetration of illegal activities and to make it less easy to evade the controls of the authority against dangerous subjects. Therefore, with respect to the case in question, being subject, by final order, to a personal prevention measure - to which Article 120 of the Highway Code links the impossibility of legitimately getting behind the wheel - is not presented as an "event completely extraneous to the offense" provided for in Article 73 of the Anti-Mafia Code (judgment No. 354 of 2002) and therefore cannot be configured as "criminal liability by the author"".
Therefore, it can be reiterated that the incrimination, provided for by Article 73 of the Anti-Mafia Code, of the conduct of driving in the absence of a driving license, when the defendant does not have a license for never having requested it or, despite having requested it, it was denied to him, or it was revoked due to the application of the prevention measure, cannot be attributed to a liability "for the way of being of the author".
These are cases in which the lack of a driving license is a consequence - in a general and automatic way (Article 120, paragraph 1, of the Highway Code) or as a result of the prefectural assessment of the specific case (Article 120, paragraph 2, of the Highway Code) - of the application of prevention measures, to which the legislator, for the purposes of protecting public order, connects limitations to the obtaining of a driving license.
7. – Different, however, is the case, which is the subject of the main proceedings, which concerns the case in which the defendant was caught driving the car without a license, because it was suspended or revoked for reasons not attributable to the prevention measure, but to the violation of rules of the Highway Code and specifically, of Article 186 of the Highway Code, regarding the prohibition of driving under the influence of alcohol, which provides, in fact, the ancillary penalty of suspension or, in the most serious cases, of revocation of the license.
However, even this conduct, as well as that of driving without a license because it has been revoked due to the application of the prevention measure, falls textually within the area of application of the provision under scrutiny, which, without distinguishing, provides for the misdemeanor referred to in Article 73 of the Anti-Mafia Code for being the conduct carried out by a defendant, where, in general, the same conduct carried out by others constitutes an administrative offense (Article 116, paragraph 15, of the Highway Code).
Therefore, it is only the quality of being a defendant, not connected to the suspension or revocation of the license, that leads to the qualification of the conduct as an offense, rather than as an administrative offense; a quality, in reality, that is neutral with respect to the offense.
It is therefore relevant that the legislator, by generally decriminalizing the case of driving without a license, has lowered the threshold of offensiveness of the conduct, excluding its prosecutability as an offense, with the consequence that the persistent criminal relevance, by virtue of the sole quality of defendant, configures an inadmissible criminal liability by the so-called author.
7.1. – This Court has, in fact, stated that compliance with the principle of offensiveness (*nullum crimen sine iniuria*), deducible from Article 25, second paragraph, of the Constitution (ex plurimis, the aforementioned judgment No. 354 of 2002), implies that the legislator, in the exercise of its discretion, can repress criminally, as an offense, only conduct that, in their typical description, however, respectful of the principle of legality, also consist of behavior with an offensive content of assets worthy of protection, also under the profile of their mere exposure to danger.
With a constant orientation (ex multis, judgments No. 225 of 2008, No. 265 of 2005, No. 519 and No. 263 of 2000; more recently judgment No. 28 of 2024), it has also been pointed out that the principle of offensiveness operates on two distinct levels: on the one hand, as a precept addressed to the legislator, aimed at limiting criminal repression to facts which, in their abstract configuration, have an offensive content of assets or interests considered worthy of protection (offensiveness "in the abstract”); on the other, as an interpretative-applicative criterion for the ordinary judge, who, in verifying the attribution of the individual concrete case to the abstract punitive paradigm, must avoid that behaviors devoid of any harmful aptitude fall within the latter (offensiveness "in concrete terms”). And in order for the principle of offensiveness to be considered respected, it is necessary "that the legislative assessment of dangerousness of the incriminated fact does not appear irrational and arbitrary, but responds to *id quod plerumque accidit*" (judgment No. 225 of 2008; similarly, judgments No. 278 and