JUDGMENT NO. 164

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 rendered the following

JUDGMENT

in the proceeding concerning the constitutional legitimacy of Article 133, paragraph 1-bis, of the Code of Criminal Procedure, as inserted by Article 7, paragraph 1, letter d), of Legislative Decree October 10, 2022, No. 150 (Implementation of Law September 27, 2021, No. 134, delegating to the Government the efficiency of criminal proceedings, and concerning restorative justice and provisions for the swift conclusion of judicial proceedings), brought before the Court by the Ordinary Court of Venice, Criminal Trial Section, sitting as a single judge, in the criminal proceedings against Y. E., by Order of December 12, 2023, registered under No. 12 of the Register of Orders 2024 and published in the Official Gazette of the Republic No. 7, Special Series, of the year 2024.

Having regard to the joinder of Y. E. and the intervention of the President of the Council of Ministers;

having heard at the public hearing of September 24, 2024, the Reporting Judge Giulio Prosperetti;

having heard the State Attorney Domenico Maimone for the President of the Council of Ministers;

having deliberated in chambers on September 24, 2024.

Facts

1.— By Order of December 12, 2023 (Reg. Ord. No. 12 of 2024), the Ordinary Court of Venice, Criminal Trial Section, sitting as a single judge, raised questions of constitutional legitimacy of Article 133, paragraph 1-bis, of the Code of Criminal Procedure, as inserted by Article 7, paragraph 1, letter d), of Legislative Decree October 10, 2022, No. 150 (Implementation of Law September 27, 2021, No. 134, delegating to the Government the efficiency of criminal proceedings, and concerning restorative justice and provisions for the swift conclusion of judicial proceedings), in relation to Articles 24, 111, and 117, first paragraph, of the Constitution, the latter in relation to Article 6, paragraph 3, letter d), of the European Convention on Human Rights.

The referring court prefaces that, by decree filed on August 29, 2019, the Public Prosecutor’s Office instituted criminal proceedings against Y. E., charging him with the crime of aggravated threat, pursuant to Article 612, second paragraph, of the Criminal Code, for having addressed threats and offensive expressions to the victim I. E.

After numerous adjournments of the hearings, due to subsequent changes in the judge presiding over the proceedings and the failure of the complainant to appear, at the hearing of October 20, 2023, the defendant’s counsel, following the rejection of the express withdrawal of the complaint filed by the complainant I. E., requested the judge to order the compulsory attendance of the complainant in court and, considering the provision introduced by Article 133, paragraph 1-bis, of the Code of Criminal Procedure, to be an obstacle to this, raised the question of its constitutional illegitimacy.

Therefore, at the hearing of December 12, 2023, the judge a quo, after having acquired the memorandum in which the defendant’s counsel illustrated the alleged reasons for the constitutional illegitimacy of Article 133, paragraph 1-bis, of the Code of Criminal Procedure, ordered the suspension of the proceedings and referred the matter to the Constitutional Court for a decision.

1.1.— In the opinion of the referring court, Article 133, paragraph 1-bis, of the Code of Criminal Procedure, by excluding the power of the judge to order the compulsory attendance of the complainant when "the failure to appear of the complainant constitutes a tacit withdrawal of the complaint, in cases where it is permitted," does not consider the hypothesis in which the defendant rejects the withdrawal of the complaint, as permitted by Article 155 of the Criminal Code, to avoid being ordered to pay court costs, as otherwise provided for by Article 340, paragraph 4, of the Code of Criminal Procedure, and to obtain a decision on the merits of his innocence.

The judge a quo points out that "[i]n the explanatory report to Legislative Decree October 10, 2022, No. 150, the rationale for the introduction of this provision was indicated in the following terms: "It is considered appropriate to amend Article 133 of the Code of Criminal Procedure (i.e., the provision concerning the compulsory attendance of a witness who has not appeared), providing that – in cases where the failure to appear of the complainant determines the extinction of the offense due to tacit withdrawal of the complaint – compulsory attendance should not be ordered [...]."

However, in the opinion of the referring court, this objective was not "fully translated into the text of the amended Article 133, paragraph 1-bis, of the Code of Criminal Procedure, which appears to be calibrated exclusively on the meaning of the failure to appear ("limited to cases where the failure to appear of the complainant constitutes a tacit withdrawal of the complaint, in cases where it is permitted”) and not on the expected legal effect, i.e., the extinction of the offense."

The legislature did not, in fact, introduce any provision "for the case in which – in the face of a tacit withdrawal of the complaint – the offense is not extinguished, a profile made even more problematic by the fact that, as also recognized by the case law, it is quite possible that the victim, after an initial manifestation of renunciation of the punitive will, may subsequently proceed to a new withdrawal (express or tacit) of the complaint, which must be rejected again by the accused."

This would entail, in the opinion of the Court of Venice, a violation of Article 111 of the Constitution, which guarantees the accused the right before the judge to examine or have examined the persons who make statements to his detriment, and of Article 117, first paragraph, of the Constitution, in relation to Article 6, paragraph 3, letter d), of the ECHR, which recognizes the right of the accused to examine or have examined witnesses for the prosecution and which obliges the contracting States to adopt positive measures to allow the accused to examine or have examined witnesses for the prosecution. The provision under scrutiny, in the opinion of the referring court, would also conflict with the principle of inviolability of the right of defense guaranteed by Article 24 of the Constitution, to which is linked the essential right of the accused to obtain, through a fair trial, which takes place in adversarial proceedings between the parties, a judgment that affirms his non-guilt on the merits and not only a procedural judgment based on the lack of interest in the punitive claim on the part of the complainant.

Nor would it be possible, in the opinion of the judge a quo, to arrive at a constitutionally oriented interpretation of the provision under scrutiny that limits the prohibition of ordering the compulsory attendance of the complainant only to cases where the tacit withdrawal of the complaint has not been rejected by the accused.

This interpretive option would, in fact, lead to an undue extension of the cases in which the judge is entitled to order the compulsory attendance of a witness, which, as a manifestation of the coercive power of the judicial authority, must instead be contained within the limits imposed by Article 13 of the Constitution.

1.2.— The Court of Venice further argues, with reference to the relevance of the constitutional questions raised, that only their positive definition by this Court would result in "the possibility for the Court to disapply Article 133, paragraph 1-bis, of the Code of Criminal Procedure to grant the request for compulsory attendance of the complainant, made by the accused at the hearing of October 20, 2023, following the rejection of the tacit withdrawal of the complaint."

In fact, "in the face of the obligation of immediate declaration of certain grounds for non-punishability which stems from Article 129 of the Code of Criminal Procedure, the alternative course of a judgment of acquittal for the extinction of the offense is not concretely viable, given the explicit declaration of rejection of the withdrawal of the complaint and waiver of the statute of limitations by the accused, nor that of an acquittal on the merits, which cannot disregard the trial examination of the accusatory statements made by the victim at the time of the complaint."

2.— Y. E., the accused in the main proceedings, has joined the proceedings, arguing for the acceptance of the questions.

In the opinion of the party, the questions raised by the Court of Venice should certainly be considered relevant, as the compulsory attendance of the complainant in court and the trial examination of the accusatory statements made at the time of the complaint, indispensable for reaching a judgment of acquittal of the accused, could not be ordered without a declaration of constitutional illegitimacy of the provision under scrutiny.

The party points out, in particular, that the legislature "has identified – in all areas of the process – in compulsory attendance the general remedy (in the form of specific performance) to the non-compliance of the witness with the order to appear."

However, Article 133, paragraph 1-bis, of the Code of Criminal Procedure, introduced by Article 7, paragraph 1, letter d), of Legislative Decree No. 150 of 2022, excluded recourse to compulsory attendance in the case where "the witness who did not appear is the victim of an offense prosecutable upon complaint". This is because, "having the Legislature expressly recognized the value of tacit withdrawal of the complaint to the failure to appear of the witness who is the victim, it was chosen to leave to the will of the complainant, together with the vitality of the criminal action, also the fulfillment of the duty of testimony."

The legislature did not, however, consider the right of the parties to adversarial proceedings on the evidence, since the provision under scrutiny "does not recognize to the accused – nor to the Judge – any role (nor any protection) regarding the decisions of the victim to give testimony."

Article 133, paragraph 1-bis, of the Code of Criminal Procedure would therefore violate both Article 111 of the Constitution and Article 117, first paragraph, of the Constitution, insofar as it assumes "as an intermediary parameter of constitutionality, Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which has recognized – long before Constitutional Law November 23, 1999, No. 2 – the same right of the accused to "examine or have examined witnesses against him and to obtain the summoning and examination of witnesses for the defense under the same conditions as witnesses against him” (Article 6, paragraph 3, letter d)", thus causing "a serious infringement of the right of defense (understood as a set of activities aimed at supporting the innocence of the accused and the inconsistency of the accusation) which translates into an equally serious violation of Article 24 of the Constitution."

Nor would it be possible, in the opinion of the party, to understand the prohibition of compulsory attendance of the victim as limited only to cases where the tacit withdrawal of the complaint has not been rejected by the accused, resulting in the extinction of the offense.

This is because "[t]o believe that the prohibition of compulsory attendance set by the newly introduced rule applies only to cases of acceptance of tacit withdrawal of the complaint is simply nonsense: in such cases, in fact, the trial becomes inadmissible and there is no longer any subsequent hearing in relation to which to impose the prohibition of compulsorily attending the complainant."

Furthermore, "to be able to state that the prohibition of compulsory attendance of the complainant (set without any distinction by Article 133, paragraph 1-bis, of the Code of Criminal Procedure) applies exclusively to cases where the tacit withdrawal is not rejected" would be "necessary to carry out an interpretative operation of a purely additive nature," which would entail "an undue self-attribution (on the part of the criminal judge) of the power to adopt, totally outside the "cases and methods provided for by law”, a measure restricting personal liberty."

3.— The President of the Council of Ministers, represented and defended by the State Attorney General, has intervened in the proceedings, requesting that the constitutional questions be declared inadmissible or unfounded.

3.1.— The State’s defense argues, first of all, that the Court of Venice has raised constitutional questions aimed at obtaining an additive judgment that is not constitutionally obligatory, without, however, arguing, to the necessary extent, on the possibility that a constitutionally compliant interpretation may be given of the provision under scrutiny. This would make the questions raised inadmissible.

In the opinion of the State Attorney General, moreover, the questions could also be declared inadmissible in terms of their relevance in the main proceedings, as the judge a quo has not verified the actual occurrence, in the case, of the constituent elements of the provision under scrutiny.

This is because paragraph 1-bis of Article 133 of the Code of Criminal Procedure, which excludes the power of the judge to order the compulsory attendance of the complainant called to testify in the trial, in cases where his failure to appear at the hearing constitutes a tacit withdrawal of the complaint, can only be applied, as it results from the clear wording of the provision, in cases where the tacit withdrawal is permitted.

To protect vulnerable persons in any capacity, the provision of Article 152, fourth paragraph, of the Criminal Code has been explicitly made, which excludes the application of the preceding third paragraph, number 1), in the case of minor, incapacitated, or particularly vulnerable victims pursuant to Article 90-quater of the Code of Criminal Procedure, and in any case – in order to avoid the risk that any negligence on the part of the representative may result in a reduction of protection for the substantial interests of the represented person – in all situations where the complainant who has not appeared is a person who has filed a complaint acting on behalf of the victim and in fulfillment of a duty of a public nature.

This entails the obligation for the judge, in order for the new case of tacit withdrawal to be considered as established, to carry out any useful verification in order to exclude that the failure to appear of the complainant is due to forms of undue coercion.

Only after a negative outcome of this check, argues the State Attorney General, is it possible to consider the failure to appear of the complainant as a tacit procedural withdrawal of the complaint.

In the absence of these verifications which, in the opinion of the State’s defense, were not carried out by the judge a quo and which, in any case, were not reported in the referral order, the case cannot be considered as perfected, it not being sufficient, for this purpose, that the Court of Venice acquired, at the hearing of October 20, 2023, the minutes of the express withdrawal of the complaint signed on October 13, 2023, by the complainant before the Carabinieri.

3.2.— On the merits, the State’s defense points out, however, that the impossibility of ordering the compulsory attendance of the complainant in application of the provisions of Article 133, paragraph 1-bis, of the Code of Criminal Procedure, would constitute a case of supervening impossibility of taking the testimony, for which the legislature has generally provided the remedy of the reading of the acts provided for in Article 512, paragraph 1, of the Code of Criminal Procedure ("1. The judge, at the request of a party, shall order that the acts collected by the judicial police, the public prosecutor, the private parties' lawyers and the judge during the preliminary hearing be read when, due to unforeseen events or circumstances, their repetition has become impossible").

On the basis of these considerations, the State Attorney General argues that the constitutional questions raised by the Court of Venice should be considered unfounded, since the judge a quo could, in any case, have proceeded, possibly soliciting a request from the accused to that effect, to the reading of the statements made by the victim to the judicial police or the public prosecutor or, at the very least, to the reading of the complaint, thus overcoming the obstacle represented by the statutory prohibition of ordering the compulsory attendance of the complainant in court.

4.— Close to the public hearing, the defendant’s defense filed a memorandum illustrating the arguments, in which it contests the arguments put forward by the State Attorney General in its intervention and requests, on the basis of arguments similar to those set out in the application to join, that the questions be declared well-founded.

5.— At the public hearing of September 24, 2024, the representative of the State Attorney General insisted on the conclusions already submitted, highlighting, in particular, the reasons for the inadmissibility of the questions.

Points of Law

1.— By the order indicated in the heading (Reg. Ord. No. 12 of 2024), the Court of Venice, Criminal Trial Section, sitting as a single judge, raised questions of constitutional legitimacy of Article 133, paragraph 1-bis, of the Code of Criminal Procedure, in relation to Articles 24, 111, and 117, first paragraph, of the Constitution, the latter in relation to Article 6, paragraph 3, letter d), of the ECHR.

In the opinion of the judge a quo, the provision under scrutiny, by excluding the power of the judge to order the compulsory attendance of the complainant, limited to cases where his failure to appear constitutes a tacit withdrawal of the complaint, would conflict with Article 111 of the Constitution, which guarantees the accused the right before the judge to examine or have examined the persons who make statements to his detriment, and with Article 117, first paragraph, of the Constitution, in relation to Article 6, paragraph 3, letter d), of the ECHR, which recognizes the right of the accused to examine or have examined witnesses for the prosecution and which obliges the contracting States to adopt positive measures to allow the accused to examine or have examined witnesses for the prosecution.

The provision under scrutiny would also violate the right of defense guaranteed by Article 24 of the Constitution, to which is linked the essential right of the accused to obtain, through a fair trial, which takes place in adversarial proceedings between the parties, a judgment that affirms his non-guilt on the merits and not only a procedural judgment based on the lack of interest in the punitive claim on the part of the complainant.

With regard to the relevance of the questions, the Court of Venice, excluding the viability of a constitutionally oriented interpretation of the provision under scrutiny, argues that only their positive definition by this Court would result in "the possibility for the Court to disapply Article 133, paragraph 1-bis, of the Code of Criminal Procedure to grant the request for compulsory attendance of the complainant, made by the accused at the hearing of October 20, 2023, following the rejection of the tacit withdrawal of the complaint."

This is because "in the face of the obligation of immediate declaration of certain grounds for non-punishability which stems from Article 129 of the Code of Criminal Procedure, the alternative course of a judgment of acquittal for the extinction of the offense is not concretely viable, given the explicit declaration of rejection of the withdrawal of the complaint and waiver of the statute of limitations by the accused, nor that of an acquittal on the merits, which cannot disregard the trial examination of the accusatory statements made by the victim at the time of the complaint."

2.— The State’s defense has argued, preliminarily, the inadmissibility of the questions raised by the Court of Venice for lack of reasoning on their relevance.

In particular, the State Attorney General considers the questions inadmissible because the judge should have preliminarily verified that the complainant’s failure to appear in court was not due to undue coercion.

Only after a negative outcome of such a necessary check, which was not reported in the referral order, could the elements of the case of tacit withdrawal referred to in Article 152, third paragraph, number 1), of the Criminal Code be considered as established.

2.1.— The objection is unfounded.

This Court has on several occasions recalled that the verification to ascertain whether the judge a quo has provided sufficient elements to assess the necessary application of the provision under scrutiny in the reasoning that leads to the decision of the main proceedings "presupposes a non-implausible reasoning on the existence of a relationship of instrumentality and prejudgment between the resolution of the doubt of constitutional legitimacy and the decision of the dispute in the main proceedings (ex plurimis, judgment No. 50 of 2014 and order No. 282 of 1998) " (so judgment No. 249 of 2021).

In the referral order, the Court of Venice, while not giving a detailed account of the conduct and negative outcome of the verifications imposed by Article 152, third paragraph, number 1), of the Criminal Code to exclude any undue coercion of the complainant, has, however, noted the withdrawal of the complaint by the victim, which reasonably excludes any unlawful interference.

3.— Furthermore, the State Attorney General has argued that the referring court has not adequately verified the possibility of arriving, through interpretation, at the solution it considers to be constitutionally correct.

3.1.— Contrary to what is argued by the State’s defense, it should be noted that the judge a quo has certainly fulfilled his duty to assess the possibility of an adapting interpretation, but considered it to be impracticable, as it is allegedly in conflict with Article 13 of the Constitution.

This objection of inadmissibility must therefore also be rejected.

4.— On the merits, the questions are unfounded, as specified below.

4.1.— It should first be clarified that the peculiarity of the case lies in the fact that, in this case, the accused rejected the withdrawal of the complaint, so that the proceedings were, in any case, destined to continue and reach a judgment on the merits.

4.2.— Article 1, paragraph 1, letter h), of Legislative Decree No. 150 of 2022 amended Article 152 of the Criminal Code, introducing, under number 1) of the new third paragraph, a form of tacit procedural withdrawal that occurs "when the complainant, without justified reason, does not appear at the hearing to which he has been summoned as a witness."

This legislative amendment entailed the simultaneous introduction, by Article 41, paragraph 1, letter t), number 1), of the same Legislative Decree No. 150 of 2022, of letter d-bis) of paragraph 3 of Article 142 of the provisions for the implementation of the Code of Criminal Procedure, pursuant to which the summons must contain the warning that the failure to appear without justified reason of the complainant at the hearing to which he is summoned to appear as a witness constitutes a tacit withdrawal of the complaint, in cases where it is permitted. Furthermore, also for reasons of system coordination, paragraph 1-bis of Article 133 of the Code of Criminal Procedure, the subject of the present judgment, has been introduced, which excludes the power of compulsory attendance of the judge, generally established by paragraph 1 of the same Article 133, "in case of failure to appear of the complainant at the hearing to which he has been summoned to appear as a witness, limited to cases where the failure to appear of the complainant constitutes a tacit withdrawal of the complaint, in cases where it is permitted."

4.3.— The judge a quo argues that the only interpretative option, in line with what is stated in the explanatory report to Legislative Decree No. 150 of 2022, "would be to consider that the prohibition of compulsory attendance of the complainant operates only in cases where the tacit withdrawal pursuant to Article 152 of the Criminal Code, paragraph 3, No. 1, is not rejected by the accused."

This interpretative option, in the opinion of the referring court, would not, however, be practicable, since "[i]t would be [...] – in the light of the literal wording of the rule referred to in paragraph 1-bis of Article 133 of the Code of Criminal Procedure – to operate an intervention of a purely additive nature. This solution – the only one that seems capable of preventing the prohibition of compulsory attendance of the complainant from resulting in a violation of Article 111 of the Constitution, also with regard to the reasonable duration of the proceedings – would, in fact, result in an extension through interpretation of the cases in which the Judge is entitled to adopt a coercive measure aimed at ensuring the taking of testimony."

This would determine, according to the Court of Venice, a violation of the principles established, concerning personal liberty, by Article 13 of the Constitution.

4.4.— However, an adapting interpretation of the provision under scrutiny is possible, oriented towards compliance with the parameters invoked.

Paragraph 1 of Article 133 of the Code of Criminal Procedure generally provides for the power of the judge to order the compulsory attendance of witnesses (as well as experts, persons subjected to the examination of the expert other than the accused, technical consultants, interpreters, or custodians of seized things) who, regularly summoned or called, fail, without legitimate impediment, to appear at the place, time, and date established.

With respect to the scope of application of this provision, the new paragraph 1-bis of the same article introduces an exception, "limited to cases where the failure to appear of the complainant constitutes a tacit withdrawal of the complaint, in cases where it is permitted."

The 2022 legislature was thus concerned to exclude that the judge may order a measure restricting personal liberty such as compulsory attendance – as well as, possibly, the pecuniary penalty referred to in paragraph 1 – against the complainant who, by not appearing at the hearing, has implicitly manifested his will to withdraw the complaint, according to the new text of Article 152, third paragraph, number 1), of the Criminal Code.

However, in the event that the accused rejects the withdrawal of the complaint, the referring court rightly excludes that the judge can immediately order compulsory attendance and a pecuniary penalty against the complainant, who has reasonably relied on the extinctive effect of the offense following his conduct.

Rather, in the face of the fact represented by the failure to extinguish the offense following the rejection of the withdrawal of the complaint by the accused, a new summons of the complainant to a subsequent hearing will be necessary, indicating the rejection by the accused, so that the right of defense of the latter can be fully exercised, who is entitled to a full examination on the merits of the accusations previously brought against him (on this point, judgment No. 41 of 2024, and further precedents therein).

At this new hearing, moreover, the provision under scrutiny can no longer be applied, the possible failure to appear of the complainant no longer being able to be equated with his tacit withdrawal of the complaint, now rejected by the accused. The unjustified failure to appear must, however, be considered as an ordinary violation of the obligation, incumbent upon every witness, to appear in court, once he has been regularly summoned, with the consequences established by the general rule established by paragraph 1 of Article 133 of the Code of Criminal Procedure (compulsory attendance and pecuniary penalty).

Thus interpreted, the provision under scrutiny avoids the defects of constitutional illegitimacy alleged by the referring court.

4.5.— In the light of the aforementioned interpretation of Article 133, paragraph 1-bis, of the Code of Criminal Procedure, it must therefore be considered that, in the event that the withdrawal of the complaint has been rejected by the accused and the proceedings continue, the judge retains the power to order the compulsory attendance of the complainant.

Naturally, for this power to be exercised, the general prerequisites established by Article 133, paragraph 1, of the Code of Criminal Procedure must be met, i.e., that the witness, regularly summoned or called, has failed, without legitimate impediment, to appear in court.

Only the failure to comply, without justified reasons, with the summons to appear in court allows, in fact, the judge to order the compulsory attendance of the complainant, in his specific capacity as a witness, at the hearing following that in which he had already been regularly summoned.

5.— In conclusion, the questions raised by the Court of Venice are declared unfounded, since, contrary to what was considered by the judge a quo, Article 133, paragraph 1-bis, of the Code of Criminal Procedure must be interpreted to mean that the prohibition of compulsory attendance set by the provision applies only in the case where the failure to appear of the complainant has led to the extinction of the offense due to tacit withdrawal of the complaint, and not in the case where, instead, the withdrawal of the complaint has been rejected by the accused.

for these reasons

THE CONSTITUTIONAL COURT

declares unfounded, in the sense specified in the reasons, the questions of constitutional legitimacy of Article 133, paragraph 1-bis, of the Code of Criminal Procedure, as introduced by Article 7, paragraph 1, letter d), of Legislative Decree October 10, 2022, No. 150 (Implementation of Law September 27, 2021, No. 134, delegating to the Government the efficiency of criminal proceedings, and concerning restorative justice and provisions for the swift conclusion of judicial proceedings), raised, in relation to Articles 24, 111, and 117, first paragraph, of the Constitution, the latter in relation to Article 6, paragraph 3, letter d), of the European Convention on Human Rights, by the Ordinary Court of Venice, Criminal Trial Section, sitting as a single judge, by the order indicated in the heading.

So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on September 24, 2024.

Signed:

Augusto Antonio BARBERA, President

Giulio PROSPERETTI, Reporting Judge

Roberto MILANA, Director of the Registry

Filed with the Registry on October 17, 2024