ORDER NO. 136
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, 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 rendered the following
ORDER
in the proceedings concerning the constitutional legitimacy of Article 635, fifth paragraph, of the Criminal Code, as amended by Article 2, paragraph 1, letter n), 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, and concerning restorative justice and provisions for the speedy settlement of judicial proceedings), referred by the Ordinary Court of Livorno, Criminal Division, in the criminal proceedings against M. C., pursuant to Order of 15 February 2024, registered at no. 56 of the register of orders 2024 and published in the Official Gazette of the Republic No. 16, first special series, of the year 2024, the hearing of which was set for the Chamber Council meeting of 2 July 2024.
Having heard the reporting Judge Francesco Viganò in the Chamber Council meeting of 4 July 2024;
Having deliberated in the Chamber Council meeting of 4 July 2024.
Considering that, by order of 15 February 2024, the Ordinary Court of Livorno, Criminal Division, raised questions of constitutional legitimacy of Article 635, fifth paragraph, of the Criminal Code, as amended by Article 2, paragraph 1, letter n), 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, and concerning restorative justice and provisions for the speedy settlement of judicial proceedings), with reference to Articles 3 and 76 of the Constitution;
that the referring judge explains that he must rule on the criminal liability of M. C., accused, among other things, of the crime of damage to property exposed "by necessity, custom, or designation to public faith" (pursuant to the reference made by Article 635, second paragraph, number 1, of the Criminal Code, to Article 625, first paragraph, number 7, of the same code);
that, during the trial, the defendant's undertaking to compensate for the material damage caused to the car which was the object of the crime led the injured party to withdraw the complaint previously filed, with the defendant accepting said withdrawal;
that therefore, with regard to relevance, the referring court points out that – given the wording of the provision challenged herein – it would be prevented from issuing a judgment of inadmissibility for lack of complaint, which it could pronounce if the question of constitutional legitimacy raised by it were upheld;
that, with regard to non-manifest unfoundedness, the Court of Livorno points out that, for the specific instance of damage that is relevant here, Legislative Decree No. 150 of 2022 failed to provide for the requirement of a complaint;
that the referring order is specifically aimed at censuring this choice of the delegated legislator;
that the latter, in fact, on the one hand acted unreasonably and, therefore, in contrast with Article 3 of the Constitution, by providing for ex officio prosecution for a less serious offense than others (completely overlapping, such as the theft of things exposed by necessity, custom, or designation to public faith) for which the requirement of a complaint is instead provided;
that, on the other hand, the Government violated Article 76 of the Constitution, contravening the delegation because of the "absolute unreasonableness" of the legislative outcome obtained through Legislative Decree No. 150 of 2022;
that no one intervened in these constitutional proceedings;
that, subsequent to the referring order, Article 1, paragraph 1, letter b), of Legislative Decree No. 31 of 19 March 2024 (Supplementary and corrective provisions of Legislative Decree No. 150 of 10 October 2022, implementing Law No. 134 of 27 September 2021, delegating powers to the Government for the efficiency of criminal proceedings and concerning restorative justice and provisions for the speedy settlement of judicial proceedings), which entered into force on 4 April 2024, amended Article 635, fifth paragraph, of the Criminal Code, introducing the requirement of a complaint for the crime of damage committed on "things exposed by necessity, custom, or designation to public faith";
that, at the same time, Article 9, paragraph 1, of the same Legislative Decree No. 31 of 2024 provided that "[f]or the crime referred to in Article 635 of the Criminal Code, committed before the entry into force of this Decree, when the act is committed on things exposed by necessity, custom, or designation to public faith, the provisions of Article 85 of Legislative Decree No. 150 of 10 October 2022, as amended by Decree-Law No. 162 of 31 October 2022, converted, with amendments, by Law No. 199 of 30 December 2022, shall apply, but the terms provided therein shall run from the date of entry into force of this Decree."
Considering that the purpose of the referring order is to censure the choice made by the delegated legislator, with Legislative Decree No. 150 of 2022, not to provide for the requirement of a complaint for the crime of damage to "things exposed by necessity, custom, or designation to public faith," provided for and punished by Article 635, second paragraph, number 1), of the Criminal Code, pursuant to the reference to Article 625, first paragraph, number 7), of the same code;
that Legislative Decree No. 31 of 2024, which entered into force on 4 April 2024, subsequent to the referring order, introduced the requirement of a complaint for the crime in question, while also providing for specific transitional procedural rules;
that, moreover, with Order No. 62 of 2024, this Court – in judging seventeen referring orders substantially similar to the one under examination today – took note of the *ius superveniens* described above and consequently ordered the return of the documents to the referring judges;
that, in conclusion, it can only be ordered, also in this case, the return of the documents to the referring judge for a new examination of the relevance and non-manifest unfoundedness of the issues in light of the changed legal framework.
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
orders the return of the documents to the Ordinary Court of Livorno, Criminal Division.
So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 4 July 2024.
Signed:
Augusto Antonio BARBERA, President
Francesco VIGANÒ, Reporting Judge
Igor DI BERNARDINI, Registrar
Filed with the Registry on 18 July 2024
The Registrar