JUDGMENT NO. 122

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, 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 legitimacy of Article 2-quinquies, paragraph 1, letter a), of Legislative Decree No. 151 of 2 October 2008 (Urgent measures concerning the prevention and investigation of crimes, the fight against organised crime and illegal immigration), inserted by Conversion Law No. 186 of 28 November 2008, and amended by Article 2, paragraph 21, of Law No. 94 of 15 July 2009 (Provisions on public security), referred by the Court of Appeal of Naples, in the proceedings instituted by F. V. and A. L. against the Ministry of the Interior, Territorial Government Office of Naples, with order of 16 November 2023, registered under No. 159 of the register of orders 2023 and published in the Official Gazette of the Republic No. 51, first special series, of the year 2023.

Having regard to the intervention of the President of the Council of Ministers;

having heard, at the Chamber Council of 21 May 2024, the reporting Judge Giovanni Pitruzzella;

having deliberated at the Chamber Council of 21 May 2024.

Facts

1.— By order of 16 November 2023 (r.o. no. 159 of 2023), the Court of Appeal of Naples raised, with reference to Articles 3 and 24 of the Constitution, questions of constitutional legitimacy of Article 2-quinquies, paragraph 1, letter a), of Legislative Decree No. 151 of 2 October 2008 (Urgent measures concerning the prevention and investigation of crimes, the fight against organised crime and illegal immigration), as converted by Law No. 186 of 28 November 2008, and subsequently amended by Article 2, paragraph 21, of Law No. 94 of 15 July 2009 (Provisions on public security).

1.1.— The challenged provision denies the benefits provided for the survivors of victims of terrorism and organized crime to anyone who is "a relative or in-law within the fourth degree of subjects against whom proceedings are pending for the application or against whom a preventive measure is applied pursuant to Law No. 575 of 31 May 1965, and subsequent amendments, or subjects against whom criminal proceedings are pending for one of the offences referred to in Article 51, paragraph 3-bis, of the Code of Criminal Procedure”.

The Court of Appeal of Naples states that it must apply this provision, considering the kinship of one party with a subject subject to the preventive measure of special surveillance.

1.2.— In the opinion of the referring court, the preclusion, which would lead to the rejection of the claim, would be unreasonable.

It would be based on a rule of experience that could be easily contradicted and, moreover, would risk prejudicing precisely those who have courageously dissociated themselves from their families of origin and for this reason have lost a loved one.

The aim of preventing public funds from being diverted to the benefit of persons connected to organised crime would already be satisfied by the requirement of being extraneous to such environments.

The referring judge suggests a conflict with Article 3 of the Constitution also in relation to the violation of the principle of equality.

The "rigid provision” laid down by law, moreover applicable only to survivors and not to the "directly damaged subject”, would imply "a veritable discrimination based solely on family origin”.

In precluding any contrary evidence, the challenged provision would finally violate the right of defence protected by Article 24 of the Constitution.

2.— The President of the Council of Ministers intervened in the proceedings, represented and defended by the State Legal Office, and requested that the questions be declared inadmissible or, in any case, unfounded.

2.1.— As a preliminary matter, the questions raised by the Court of Appeal of Naples would be inadmissible for lack of relevance.

The denial of the benefits would not be justified solely by the "iuris et de iure presumption of proximity to the contexts of organised crime”, but also by multiple elements, which would confirm such proximity in concreto.

2.2.— On the merits, the referring court's criticisms would be unfounded.

The provision under review by this Court aims to prevent criminal organisations from benefiting from the economic benefits granted by the State, by virtue of the "links of joint interest, solidarity, cover or, at the very least, of subjection or tolerance” that are established within the family context.

The legislature's discretionary choice would therefore translate into an "absolute but not unreasonable” presumption.

Points of Law

1.— By the order indicated in the heading (r.o. no. 159 of 2023), the Court of Appeal of Naples doubts the constitutional legitimacy of Article 2-quinquies, paragraph 1, letter a), of Legislative Decree No. 151 of 2008, as converted, with reference to Articles 3 and 24 of the Constitution.

1.1.— The original wording, inserted by the Conversion Law No. 186 of 28 November 2008, excluded the benefits provided for the survivors of victims of terrorism and crime only for those who were "spouse, in-law or cohabitant” of the subjects who were in the peculiar conditions defined by law. No exclusion was provided for relatives.

Following the amendments introduced by Article 2, paragraph 21, of Law No. 94 of 2009, this provision now denies the benefits granted to the survivors of victims of organised crime not only to the spouse or cohabitant, but also to anyone who is "a relative or in-law within the fourth degree of subjects against whom proceedings are pending for the application or against whom a preventive measure is applied pursuant to Law No. 575 of 31 May 1965, and subsequent amendments, or subjects against whom criminal proceedings are pending for one of the offences referred to in Article 51, paragraph 3-bis, of the Code of Criminal Procedure”.

The referring court’s criticisms focus on the exclusion applicable to relatives and in-laws.

1.2.— The prohibitive condition, extended to a wide range of relatives and in-laws, regardless of the relationship, would be in conflict with Article 3 of the Constitution, in two respects.

The referring court, firstly, alleges a violation of the principle of reasonableness.

The challenged provision would be based on a fallacious rule of experience, which could be "confuted by reality”, as it is "not at all impossible, nor even difficult, in reality, that subjects who have kinship or affinity even close to members of the criminal environment are extraneous to it”.

Thus conceived, the preclusion would end up "damaging, without any reason, precisely the most deserving subjects, that is, those who, despite having family ties with members of criminal organisations, have distanced themselves from them and who perhaps for this very reason have suffered the loss of a loved one”.

Nor would the indiscriminate exclusion provided for by the challenged provision be justified by the need to prevent organised crime from profiting from State resources. This need would already be met by the requirement of absolute extraneousness to criminal environments.

The absolute presumption would also be detrimental to the principle of equality, as it would determine "a veritable discrimination based solely on family origin” and would reserve for the relatives of the victim a worse treatment than the "directly damaged subject”, conversely excluded from the scope of application of the "rigid provision” under discussion.

The referring judge finally finds a violation of Article 24 of the Constitution and, in this regard, argues that the absolute presumption, in denying access to contrary evidence, compromises the right of defence.

2.— The State’s defence has raised the objection of the inadmissibility of the questions of constitutional legitimacy, as lacking relevance.

The objection is unfounded.

2.1.— Even in the perspective of a more widespread access to constitutional review, relevance requires the applicability of the challenged provision in the main proceedings and is not identified with the concrete utility that an order of acceptance may bring to the parties (among many, Judgment No. 174 of 2019, point 2.1. of the Points of Law).

It is necessary and sufficient that the provision suspected of constitutional illegality affects the argumentative path that the referring court is called upon to follow, even if the tenor of the decision does not change (recently, Judgment No. 25 of 2024, point 2.2. of the Points of Law).

The assessment of these prerequisites is entrusted to the referring court and is outside the review of this Court, where it is supported by non-implausible reasoning.

2.2.— The referring court has pointed out that the examination of the absolute prohibitive condition takes logical priority, because of its decisive scope and its relevance to the most liquid reason for decision.

In this argumentative path, linear and coherent, only the declaration of constitutional illegitimacy of the challenged provision would impose that concrete assessment which, in the deliberation carried out by the appellate judges, implies a more articulated investigation, in the absence of decisive elements, prima facie suitable to justify the denial of the benefits.

To the assessment carried out by the referring court, the exception of the State Legal Office opposes a different framework of the acquired evidence, which is outside the review devolved to this Court and does not serve to characterize the reasoning on relevance as implausible.

3.— The questions are well-founded.

4.— The legislature, with Law No. 302 of 20 October 1990 (Measures in favour of victims of terrorism and organised crime), recognised a payment, now determined at a total amount of €200,000.00 (Article 4), to the survivors of those who lose their lives as a result of wounds or injuries sustained as a consequence of acts of terrorism or subversion of the democratic order or criminal acts committed for the pursuit of the aims of mafia associations. The amount was thus redefined, for events after 1 January 2003, by Article 2, paragraph 1, of Legislative Decree No. 337 of 28 November 2003 (Urgent provisions in favour of military and civilian victims of terrorist attacks abroad), converted, with amendments, into Law No. 369 of 24 December 2003.

These benefits are received by the "family members” (Article 4, paragraph 1, of Law No. 302 of 1990) and, after brothers and sisters living with the deceased and dependent on them, the "non-relatives or in-laws, nor bound by a marriage relationship, who are cohabiting and dependent on the deceased person in the last three years preceding the event” and the "cohabitants more uxorio” (Article 4, paragraph 2, of Law No. 302 of 1990).

The spouse of Italian citizenship or the cohabitant more uxorio and the dependent relatives within the second degree of Italian citizenship may opt for a personal, non-reversible life annuity, differently graduated according to the number of beneficiaries (Article 5 of Law No. 302 of 1990).

5.— The payments and the life annuity implement the Republic's solidarity for people affected in their dearest affections by episodes of mafia or terrorism.

The solidaristic purpose that permeates these benefits is supported by the attribution criteria, detached "from the economic conditions and the age of the injured party or the beneficiaries and from the right to compensation for the damage due to them against those responsible for the criminal acts” (Article 10, paragraph 1, of Law No. 302 of 1990).

6.— It is up to the legislature's discretion to identify appropriate selective criteria, in order to safeguard a prudent use of public resources, in compliance with the principles of equality and reasonableness, the cornerstone of that pact between the State and citizens that support measures intervene to consolidate.

The solidaristic nature of the benefits, even if extraneous to the guarantee of minimum subsistence conditions, requires choices respectful of equal treatment and consistent with the ratio legis of the favourable provision laid down by law.

In delimiting the range of beneficiaries, the legislature may well identify absolute presumptions of unworthiness, provided that they are corroborated by plausible rules of experience and reflect the id quod plerumque accidit.

7.— The challenged provision deviates from these criteria for several reasons.

8.— The provisions laid down by Legislative Decree No. 151 of 2008, as converted, aim to prevent the limited resources of the State from being diverted from supporting the victims of mafia and terrorism and indirectly benefiting the very criminal associations that it intends to combat.

The legislative choice to prescribe the most thorough checks in the allocation of benefits is therefore related to a legitimate purpose and stems from the consideration that, in criminal circuits and in the families that gravitate around them, the links of mutual support, connivance or tacit sharing are widespread.

9.— The purpose, although legitimate, is pursued, however, with disproportionate means.

The disproportion is appreciated from two perspectives.

10.— First of all, the law already prescribes stringent and exhaustive requirements of merit.

Article 1, paragraph 2, letter b), of Law No. 302 of 1990 establishes the prerequisite of the total extraneousness of the direct victim to criminal environments.

Article 9-bis of Law No. 302 of 1990, introduced by Article 1, paragraph 259, of Law No. 662 of 23 December 1996 (Measures for the rationalisation of public finance), specifies that the conditions of extraneousness to the commission of terrorist or criminal acts and to criminal environments "are required, for the granting of the benefits provided for by this law, with respect to all the intended recipients” and, therefore, not only the direct victims.

In order to dispel any doubt and to avert the risk of evasive interpretations, the legislature, with Article 2-quinquies, paragraph 1, letter b), of Legislative Decree No. 151 of 2008, as converted, after having introduced the provision challenged in these proceedings, chose to make the recognition of benefits to survivors conditional on the fact that "the beneficiary is completely extraneous to criminal environments and relationships, or is already dissociated, at the time of the event, from the criminal environments and relationships in which he or she participated”.

The need for a rigorous verification of radical extraneousness to the criminal context is therefore inherent in the system. Extraneousness, moreover, does not exhaust itself in the mere condition of having no criminal record or, negatively, in the lack of affiliation to criminal consortiums, but postulates, positively and in a more significant sense, proof of a way of life antithetical to the code of conduct of mafia organisations.

Those claiming payments or life annuities bear the burden of proving persuasively the extraneousness, which becomes a constitutive element of the right, and the lack of adequate proof redounds to the detriment of those claiming the benefits.

The system outlined by law is already safeguarded by precautions and safeguards, which converge on the need for a thorough examination and lead, where doubts remain, to the rejection of claims for lack of proof of the statutory prerequisites.

The need to direct the State's solidarity towards deserving persons is already effectively ensured by the prescription of a thorough judicial verification of the conditions typified by law and the rigorous burden of proof imposed on the beneficiary.

11.— Secondly, it must be noted that the presumption is vitiated by an intrinsic unreasonableness.

11.1.— The law gives importance to kinship and affinity relationships up to the fourth degree, which include a vast category of people and are characterised by a different, sometimes more tenuous, intensity of the family bond.

Even from an objective point of view, the challenged absolute presumption contemplates particularly broad requirements: it is sufficient that the relative or in-law within the fourth degree is subject to proceedings for the application of a preventive measure or that such a measure is already concretely subject to it or that, alternatively, he or she is involved in criminal proceedings for one of the offences referred to in Article 51, paragraph 3-bis, of the Code of Criminal Procedure.

This catalogue, which has been enriched over the years, includes incriminating offences characterised by a heterogeneous disvalue and detached from a common reference to the context of terrorist or mafia crime.

11.2.— The latitude of the presumptive mechanism therefore allows one to easily hypothesise that, to the relationship of kinship or affinity up to the fourth degree, there may not be any contiguity to the criminal circuit.

At the present time, even family ties are loosening and it is not infrequent that the close relationships that can give substance, even in a wider circle of relatives and in-laws, to the absolute presumption under review by this Court, are thinned out.

11.3.— To this profile of unreasonableness, which belies the correspondence of the presumption to a solid empirical basis, a further element of blatant contradictoriness is associated.

The prohibitive condition, in its absoluteness, prejudices precisely those who have dissociated themselves from the family context and, for this life choice, have experienced isolation and painful losses.

Thus structured, the absolute presumption constitutes a stigma for belonging to a particular family nucleus, even when its values and lifestyles are not shared.

12.— The absolute presumption also violates the right to act and defend oneself in court (Article 24 of the Constitution), preventing the interested party from demonstrating, with all the guarantees of due process, that he or she fully deserves the benefits granted by the State.

It is the dialectic of the process, with the unfolding of the adversarial proceeding, that allows a complete reconstruction of the personal and family history of the parties and to outline, beyond rigid and penalising presumptive mechanisms, the specificity of each case.

In a judgment that involves the lives of individuals and the fundamental values of civil coexistence, the need for an exhaustive assessment emerges clearly, which dissipates shadows and uncertainties and restores to the community a detailed picture, without shackling the richness, multifaceted and contradictory, of reality in the rigidity of absolute presumptions.

13.— It will be the considered assessment of the judge to ascertain, with the exacting standard imposed by the legislation, the merit of those requesting the benefits, according to the conditions laid down, in general terms, by Article 2-quinquies, paragraph 1, letter b), of Legislative Decree No. 151 of 2008, as converted.

In the concrete assessment that the judge is called upon to make, the kinship or affinity bonds require an even more incisive scrutiny of the absence of any contact with criminal environments, of the choice to sever ties with the family of origin, of that extraneousness which presupposes, in clearer and more radical terms, a way of life incompatible with the logic and hierarchies of values prevalent in the criminal world.

14.— In conclusion, the unconstitutionality of Article 2-quinquies, paragraph 1, letter a), of Legislative Decree No. 151 of 2008, as converted, as amended by Article 2, paragraph 21, of Law No. 94 of 2009, must be declared, limited to the words "relative or in-law within the fourth degree”.

For These Reasons

THE CONSTITUTIONAL COURT

declares the unconstitutionality of Article 2-quinquies, paragraph 1, letter a), of Legislative Decree No. 151 of 2 October 2008 (Urgent measures concerning the prevention and investigation of crimes, the fight against organised crime and illegal immigration), inserted by Conversion Law No. 186 of 28 November 2008, and subsequently amended by Article 2, paragraph 21, of Law No. 94 of 15 July 2009 (Provisions on public security), limited to the words "relative or in-law within the fourth degree”.

So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 21 May 2024.

Signed:

Augusto Antonio BARBERA, President

Giovanni PITRUZZELLA, Reporting Judge

Roberto MILANA, Director of the Registry

Deposited in the Registry on 4 July 2024