ORDER NO. 150
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 proceeding concerning the constitutional legitimacy of Article 34, paragraph 2, of the Code of Criminal Procedure, brought before the Court by the Preliminary Hearing Judge of the Ordinary Court of Isernia in the criminal proceedings against L. C., by order of 18 December 2023, registered under no. 6 of the Register of Orders 2024 and published in the Official Gazette of the Republic No. 6, first special series, of the year 2024, the hearing of which was set for the Chamber Council meeting of 18 June 2024.
Having considered the intervention of the President of the Council of Ministers;
having heard, at the Chamber Council meeting of 19 June 2024, the Reporting Judge Giovanni Amoroso;
having deliberated at the Chamber Council meeting of 19 June 2024.
Considering that, by order of 18 December 2023 (Reg. Ord. No. 6 of 2024), the Preliminary Hearing Judge of the Ordinary Court of Isernia raised, with reference to Articles 3, first paragraph, 24 and 111, second paragraph, of the Constitution, questions of constitutional legitimacy of Article 34, paragraph 2, of the Code of Criminal Procedure, "insofar as it does not provide for the incompatibility of the preliminary hearing judge who has rejected, on grounds relating to the merits, the plea bargain request formulated by the same defendant for the same historical event, in the same proceedings";
that the referring court reports that the defendant was committed for trial for the offences under Articles 73, paragraphs 1 and 4, and 80, paragraph 1, letter b), of Presidential Decree 9 October 1990, No. 309 (Consolidated Act on the regulation of narcotics and psychotropic substances, prevention, treatment and rehabilitation of related states of drug addiction), for having supplied narcotic substances such as cocaine, hashish and marijuana;
that, with the consent of the Public Prosecutor and through the defence counsel and special attorney, the defendant, at the preliminary hearing, requested the application of a sentence of six months' imprisonment and a fine of one thousand euros, concurrently with the sentence imposed by another final judgment, issued by the same judge for similar facts and which has become irrevocable;
that the referring court, considering the defendant not deserving of the grant of mitigating circumstances for the seriousness of the multiple conduct and the aggravating circumstance alleged, rejected the plea bargain request and, considering his own incompatibility, declared his intention to abstain from conducting the preliminary hearing, ordering the transmission of the documents to the President of the Court for subsequent determination;
that, following the rejection of the request for abstention, the case was reassigned to the referring judge, who, upon objection by the defence and with the opposition of the Public Prosecutor, raised the questions of constitutional legitimacy as indicated above;
that, as regards the lack of manifest unfoundedness, the referring court refers to the constitutional jurisprudence formed with regard to the provision challenged, indicating in particular the decision of this Court No. 186 of 1992, which highlighted that the judgment applying the agreed penalty presupposes a negative finding regarding the existence of the conditions justifying "the acquittal pursuant to Article 129 of the Code of Criminal Procedure, as well as the consistency with the [...] findings [of the preliminary investigations] of the legal qualification of the fact and/or the circumstances considered in the request";
that the referring court reports that it is aware that, with Order No. 123 of 2004, this Court limited the incompatibility of the preliminary investigation judge who has rejected the plea bargain request only to the case where he finds himself in a different phase of the proceedings, on the decisive point that for the occurrence of a case of incompatibility of the judge "it is necessary that the previous assessments, including those on the merits, have been carried out in different phases of the proceedings and not during the same phase";
that, however, according to the referring court, first Article 1 of Law 8 April 1993, No. 105 (Amendment to Article 425 of the Code of Criminal Procedure, concerning the judgment of dismissal), then Article 23 of Law 16 December 1999, No. 479 (Amendments to the provisions on proceedings before the single-judge court and other amendments to the Code of Criminal Procedure. Amendments to the Criminal Code and the judicial system. Provisions concerning pending civil litigation, compensation payable to the judge of peace and the practice of the legal profession) and, finally, Article 23 of Legislative Decree 10 October 2022, No. 150 (Implementation of Law 27 September 2021, No. 134, delegating the Government to improve the efficiency of criminal proceedings, as well as concerning restorative justice and provisions for the speedy settlement of judicial proceedings), have led to a progressive expansion of the areas of intervention of the judge at the preliminary hearing;
that, in fact, as highlighted by constitutional and ordinary jurisprudence, in the aftermath of Law No. 479 of 1999, the preliminary hearing had lost the summary nature that previously characterized it, with the judge having competence to assess the merits of the accusatory hypothesis and its object, the hearing itself becoming a "moment of "judgment"";
that this would be even more true in the light of the reformulation of the provision of Article 425, paragraph 3, of the Code of Criminal Procedure, carried out by Article 23 of Legislative Decree No. 150 of 2022, under which the judge must assess the documents to verify whether there is a reasonable expectation of conviction according to a prognostic standard that is now of guilt or innocence and with broader decision-making powers;
that, according to the referring court, the questions are certainly relevant, since the judgment cannot be defined independently of the resolution of the incident of unconstitutionality, since the referring judge himself is called upon to hold the preliminary hearing despite the existence of the aforementioned prejudicial situation, also considering the rejection of the declaration of abstention;
that the President of the Council of Ministers intervened in the proceedings, represented and defended by the State Legal Office, requesting that the questions be declared unfounded.
Considering that the Preliminary Hearing Judge of the Court of Isernia raised, with reference to Articles 3, first paragraph, 24 and 111, second paragraph, of the Constitution, questions of constitutional legitimacy of Article 34, paragraph 2, of the Code of Criminal Procedure, "insofar as it does not provide for the incompatibility of the preliminary hearing judge who has rejected, on grounds relating to the merits, the plea bargain request formulated by the same defendant for the same historical event, in the same proceedings";
that it is undeniable that the preliminary hearing constitutes a prejudicial or prejudicable forum, having become a deliberative forum lacking "summary characteristics" (judgment No. 335 of 2002);
that, in fact, from the original wording of Article 425 of the Code of Criminal Procedure, which linked the acquittal to the evidence of the proof (a requirement then abolished by Article 1 of Law No. 105 of 1993), we have moved, with Article 23 of Law No. 479 of 1999, firstly, to the rule of judgment according to which the judge had to exclude the trial even when the evidence was insufficient or contradictory or, in any case, not suitable to support the accusation in court, and then, with the recent reform, to the current paragraph 3 of Article 425 of the Code of Criminal Procedure, which requires the assessment of the reasonable expectation of conviction;
that this Court, with judgment No. 224 of 2001, stated that "following the important innovations introduced, in particular, by Law 16 December 1999, No. 479, the preliminary hearing has undergone a profound transformation both in terms of the quantity and quality of evaluative elements that can enter it, and the powers consequently attributed to the judge, and, finally, as regards the wider range of decisions that the same judge is called upon to adopt";
that in the same judgment it was also highlighted that "[t]he alternative decision that is offered to the judge as the outcome of the preliminary hearing, therefore, rests on an assessment of the merits of the accusation that is now no longer distinguishable - in terms of intensity and completeness of the deliberative overview - from that of other procedural moments, already considered not only "prejudicial", but also "prejudicable", for the purposes of the existence of incompatibility" (also judgments No. 400 of 2008 and No. 335 of 2002; Court of Cassation, United Criminal Sections, judgment 24 February-6 July 2022, No. 25951);
that, finally, Article 23, paragraph 1, letter l), of Legislative Decree No. 150 of 2022 introduced a new rule for the preliminary hearing judge, now called upon to order the commitment for trial only when, at the outcome of the hearing, he considers it possible "to formulate a reasonable expectation of conviction", so that the nature of the judgment is further strengthened;
that, however, this enhanced nature does not entail a "new" case of incompatibility in the sense desired by the referring court;
that, in particular, with Order No. 123 of 2004, this Court, overcoming the previous isolated case, constituted by judgment No. 186 of 1992, has already declared the manifest unfoundedness of the questions of constitutional legitimacy of the challenged provision insofar as it does not provide, "in the absence of a request for an abbreviated procedure", an obligation for the preliminary hearing judge "who has previously rejected the request for the application of the penalty during the same preliminary hearing" to abstain;
that in the aforementioned judgment it was highlighted that the challenges of unconstitutionality were directed at the affirmation of a ground of incompatibility for the function of conducting the preliminary hearing of the judge who, after having rejected the request for the application of the penalty at the request of the parties (and in the absence of a request for an abbreviated procedure), was called upon to perform this function against the same defendants and for the same facts;
that, for the purposes of the solution of manifest unfoundedness, the Court considered decisive the point "according to which, for the occurrence of a case of incompatibility of the judge, it is necessary that the previous assessments, including those on the merits, have been carried out in different phases of the proceedings and not during the same phase (see, among others, Orders No. 370 of 2000 and No. 232 of 1999, judgment No. 131 of 1996)";
that, in fact, the rejection of the plea bargain request - although it presupposes the evaluation of the merits of the accusatory hypothesis, with the judge expressing his conviction on the criminal liability of the defendant - is placed immediately before the final decision of the preliminary hearing, constituting an "endophasic" moment prodromal to its natural definition;
that, more specifically, the order rejecting the request for the application of the penalty, to which the referring court connects prejudicial effect, is adopted not in a previous and distinct procedural phase, but within the same preliminary hearing, which already in the discipline provided by the code of procedure is presented without interruption, and therefore, not even divided into "sub-phases" (judgment No. 64 of 2022);
that, according to the consolidated jurisprudence of this Court, the assessments on the same res iudicanda must be made in different procedural phases "because, otherwise, the defendant would be given the power to determine the incompatibility of the judge correctly invested with the judgment, in contrast with the principle of the pre-constituted natural judge according to law, simultaneously giving rise to an unreasonable fragmentation of the procedural series: the process is by its nature constituted by a sequence of acts, each of which can abstractly imply assessments on what appears to affect its outcomes, so that, if every act containing a decision capable of manifesting an assessment within the same procedural phase were to be isolated, the unity of the judgment would be irremediably compromised" (judgment No. 74 of 2024);
that, furthermore, in judgment No. 64 of 2022, it was stated that "[t]he jurisprudence of this Court is [...] constant, starting at least from 1996, in considering it entirely reasonable that, within each of the phases - understood as ordered sequences of acts that may imply incidental assessments, including on the merits, on what is found in them, prodromal to the final decision - the need for continuity and globality remains preserved, otherwise resulting in an absurd fragmentation of the proceedings, which would imply the need to have, for the same phase of the proceedings, as many different judges as there are acts to be performed (ex plurimis, judgments No. 7 of 2022, No. 66 of 2019, No. 18 of 2017, No. 153 of 2012, No. 177 and No. 131 of 1996; Orders No. 76 of 2007, No. 123 and No. 90 of 2004, No. 370 of 2000, No. 232 of 1999)";
that, therefore, in continuity with the previous decisions of this Court, the questions raised must be declared manifestly unfounded.
Having considered Articles 26, second paragraph, of Law 11 March 1953, No. 87, and 11, paragraph 1, of the Supplementary Rules for proceedings before the Constitutional Court.
For these reasons
THE CONSTITUTIONAL COURT
declares the manifest unfoundedness of the questions of constitutional legitimacy of Article 34, paragraph 2, of the Code of Criminal Procedure, raised, with reference to Articles 3, first paragraph, 24 and 111, second paragraph, of the Constitution, by the Preliminary Hearing Judge of the Ordinary Court of Isernia, with the order mentioned above.
So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 19 June 2024.
Signed:
Augusto Antonio BARBERA, President
Giovanni AMOROSO, Reporting Judge
Roberto MILANA, Registrar
Filed with the Registry on 25 July 2024