JUDGMENT NO. 166
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 341-bis of the Criminal Code, as amended by Article 7, paragraph 1, letter b-bis), of Legislative Decree No. 53 of 14 June 2019 (Urgent provisions on public order and security), converted, with amendments, into Law No. 77 of 8 August 2019, referred by the Ordinary Court of Trieste, Criminal Division, sitting as a single judge, in the criminal proceedings against F. M., pursuant to order of 30 January 2024, registered at no. 74 of the register of orders 2024 and published in the Official Gazette of the Republic No. 20, first special series, of the year 2024.
Having considered the intervention of the President of the Council of Ministers;
having heard the Judge Rapporteur Angelo Buscema in the chamber meeting of 24 September 2024;
having deliberated in the chamber meeting of 24 September 2024.
Facts
1. – The Ordinary Court of Trieste, Criminal Division, sitting as a single judge, by order registered at number 74 of the register of orders 2024, raised, with reference to Articles 3 and 27, third paragraph, of the Constitution, questions of constitutional legitimacy of Article 341-bis of the Criminal Code, as amended by Article 7, paragraph 1, letter b-bis), of Legislative Decree No. 53 of 14 June 2019 (Urgent provisions on public order and security), converted, with amendments, into Law No. 77 of 8 August 2019, insofar as it provides for a minimum custodial sentence of six months.
1.1. – The referring court states that, following a summons issued by the Public Prosecutor, F. M. was ordered to appear in court to answer charges of resisting and insulting a public official, pursuant to Articles 337 and 341-bis of the Criminal Code, and the contravention pursuant to Article 651 of the Criminal Code, consisting in the refusal to provide information on his identity, all committed with a single executive action of a single criminal design pursuant to Article 81 of the Criminal Code.
1.2. – At the pre-trial hearing of 27 November 2023, the defendant and his counsel requested admission to the abbreviated proceedings, which were duly initiated. Following the debate, the judge a quo raised ex officio the aforementioned question of the constitutional legitimacy of Article 341-bis of the Criminal Code.
2. – The referring court considers, as to the relevance of the question, that in this case, in addition to other offences, the offence under Article 341-bis of the Criminal Code is alleged and that, given the special procedure of the abbreviated proceedings, it is incumbent upon it to assess the merits of each of the alleged offences, including the said offence.
The single-judge court of Trieste observes that, since each of the charges is subject to independent assessment, in the event of an acquittal for the offence under Article 337 of the Criminal Code, it would emerge that the offence under Article 341-bis of the Criminal Code should then be considered more serious.
3. – As regards the lack of manifest unfoundedness, the referring court recalls that, with Judgment No. 341 of 1994, this Court declared the unconstitutionality of Article 341, first paragraph, of the Criminal Code (Insulting a public official), insofar as it provided for a minimum custodial sentence of six months; an offence which was then entirely repealed by Law No. 205 of 25 June 1999 (Delegation to the Government for the decriminalization of minor offences and amendments to the criminal and tax system).
3.1. – The referring court considers that the six-month minimum sentence, reintroduced by Legislative Decree No. 53 of 2019, as converted, with regard to Article 341-bis of the Criminal Code, would be subject to the same criticisms that supported the declaration of partial unconstitutionality by the aforementioned judgment, without the structural differences between that provision and the current one being such as to eliminate or weaken its relevance also to the present case.
3.2. – The judge a quo notes that the aforementioned minimum sentence would be unreasonable because Article 131-bis, third paragraph, number 2), of the Criminal Code would preclude the recognition of the corresponding ground for non-punishability "when the act is committed against a public security officer or a judicial police officer in the exercise of their duties."
3.3. – On the other hand, the unreasonableness of the minimum sentence in question would also be highlighted by the fact that it has been set at the same level as the more serious offence of resisting a public official.
That the offence punished under Article 337 of the Criminal Code is more serious than the insult, representing, in substance, also in the eyes of the legislator, a kind of progression in terms of gravity, would be highlighted, according to a perception corresponding to common sense, by the objective nature of the facts attributable to the two offences (acts of violence and/or threats in the first case, mere insulting verbal expressions in the second) and would be recognized above all by the legislator by providing in the first case a maximum sentence of five years' imprisonment while in the second of three years, except for contradictorily equating the two offences in the minimum.
Therefore, the equalization in the minimum sentence between insulting and resisting a public official would prevent the referring judge from modulating the sentence in a way that is congruent with the objective gravity of the act and would amount to an unreasonable clause if compared to the same assessments of the legislator with respect to the considerably greater gravity of the offence ex Article 337 of the Criminal Code.
3.4. – The questions would appear not manifestly unfounded also in light of the legislative amendments that have taken place after Judgment No. 341 of 1994, since at the time of the said judgment insult was punishable as an offence whereas, in the current context, insult towards a private individual would constitute a mere civil wrong and that towards a public official would be punishable with a minimum custodial sentence of six months.
3.5. – The unreasonableness of the minimum sentence for the offence of insulting a public official would finally also be evident from Article 341-bis, last paragraph, of the Criminal Code, where it provides that the offence is extinguished only if the defendant has compensated the damage before the trial, because, being an offence that the legislator himself would have foreseen as being extinguished with pecuniary compensation (without there being any limits to the number of times one can benefit from this provision, highlighting the possible distorting effects given by the fact that a subject able to pay a few hundred euros each time is never punishable for the offence, while a poor person risks a minimum sentence of six months' imprisonment each time), this special extinguishing cause would constitute an implicit recognition of the not particular gravity of the offence in itself, although it is prosecutable ex officio.
3.6. – The judge a quo then states that the minimum sentence for the offence of insulting a public official would be excessively disproportionate and in this regard the principles outlined by this Court in the aforementioned Judgment No. 341 of 1994 would appear today to be strengthened by Article 49, paragraph 3, of the Charter of Fundamental Rights of the European Union, which states that "[p]enalties imposed shall not be disproportionate to the offence".
The principle of proportionality of the penalty would also be explicitly recognized both by Judgment No. 284 of 2019, where this Court had pointed out that the offence in question is based not only on Article 27, third paragraph, of the Constitution, but also on Article 3 of the Constitution, and by the case law of the European Court of Human Rights (judgment of 26 April 2016, Murray v. Netherlands, paragraph 99; judgment of 9 July 2013, Vinter and others v. United Kingdom, paragraph 102).
4. – The President of the Council of Ministers, represented and defended by the State Advocate General, intervened in the proceedings, requesting that the questions of constitutional legitimacy be declared inadmissible for lack of reasoning on the point of relevance or, in any case, unfounded.
4.1. – As a preliminary matter, the State defence argues the inadmissibility of the question because the referral order lacks any reasoning concerning the actual attribution of the alleged facts to an offence against the legal asset protected by the incriminating provision so slight as to make it considered that even the minimum sentence provided for by the challenged provision is entirely disproportionate, by excess, to the actual gravity of the facts.
This lack of reasoning would be even more serious if one considers that, in the event of conviction for all the alleged offences, the minimum sentence provided for by Article 341-bis of the Criminal Code could not be considered disproportionate, the referring judge having correctly stated that, in this case, the rules on continued offences, laid down in Article 81 of the Criminal Code, would be applicable, with the consequent determination of the sentence for the offence under Article 341-bis of the Criminal Code by increasing the sentence provided for the more serious offence, namely that provided for and punished under Article 337 of the Criminal Code and, although the possibility of acquittal for the latter offence is envisaged, with the consequent need to determine the sentence for the offence under Article 341-bis of the Criminal Code independently, this would be an absolutely hypothetical event.
4.2. – The questions would also be unfounded because of the structural differences existing between the offence under Article 341 of the Criminal Code, subsequently repealed, and the offence under Article 341-bis of the Criminal Code, as examined by this Court in Judgment No. 284 of 2019, in which the unreasonableness of the legislator's choice in determining the sentence framework established for the offence under Article 341-bis of the Criminal Code is explained because of the close context between the offender's conduct and the performance of a specific act of the office by the public official, alongside the double injury to the individual honour of the public official who suffers the offence and the prestige of the administration to which he belongs, a new dimension of danger for the concrete implementation of the public function actually performed by the public official.
Reasons
1. – By the order indicated in the heading, the Court of Trieste, First Criminal Division, sitting as a single judge, raised – with reference to Articles 3 and 27, third paragraph, of the Constitution – questions of constitutional legitimacy of Article 341-bis of the Criminal Code, insofar as it punishes the offence of insulting a public official with a minimum custodial sentence of six months.
The judge a quo considers unreasonable the choice – made by Legislative Decree No. 53 of 2019, as converted – to raise the minimum penalty from the previous threshold of fifteen days to six months' imprisonment, believing that it leads to the imposition of disproportionate penalties, both in relation to the actual offensiveness of a wide range of concrete conduct subsumed under the criminal offence, and in relation to the penalty, identical in the minimum, applicable for the offence of resisting a public official, considered more serious.
2. – The State Advocate General objects to the admissibility of the questions of constitutional legitimacy because the referring court did not provide reasons concerning the slight nature of the offence, so as to consider unreasonable and disproportionate by excess the minimum sentence provided for, all the more so since, in the event of conviction also for the more serious offence under Article 337 of the Criminal Code in continuity with that of insult, the sentence could be increased, pursuant to Article 81 of the Criminal Code, by even a single day, with the consequent irrelevance of the questions.
3. – The objection is unfounded.
The referring judge has indeed plausibly reasoned on the relevance of the questions, reporting the charge in which the concrete insulting conduct that he is required to judge is described clearly and in detail and has subsequently extensively set out, in abstract terms but with arguments valid also for the judge a quo, the reasons that lead him to consider excessive the minimum penalty provided for by Article 341-bis of the Criminal Code.
Moreover, even if the judge were to decide to convict the defendant for the offence of insult and for that of resisting a public official in continuity with each other, the relevance of the questions would remain intact, because, although the referring judge, in calculating the defendant's sentence, must start from that provided for the more serious offence of resisting a public official, susceptible of increase up to three times pursuant to Article 81 of the Criminal Code, it is evident that the assessment of the concrete extent of this increase depends on the sentence framework of the offence of insult and can therefore be influenced by the possible acceptance of the present questions.
4. – On the merits, the questions are unfounded.
4.1. – As a preliminary matter, it should be noted that, as can be seen from a comprehensive reading of the referral order, the judge a quo, in criticizing the minimum custodial sentence of six months, aims to restore the penalty provided for the offence of insulting a public official before the amendments introduced by Legislative Decree No. 53 of 2019, as converted, in line with the general provision of Article 23 of the Criminal Code, according to which, in the absence of a specific indication, the minimum penalty is understood to be set at 15 days' imprisonment.
4.2. – Also as a preliminary matter, this Court considers it necessary to briefly reconstruct the normative and jurisprudential evolution of the offence of insulting a public official.
Article 194 of the Zanardelli Code of 1889 provided that "[w]hoever, by words or acts, offends the honour, reputation or decorum of a public official in his presence and because of his duties shall be punished with imprisonment of up to six months or with a fine of five hundred to three thousand lire if the offence is directed against a member of the police force or with imprisonment from one to two years if the offence is directed against another public official", while the subsequent Article 196 provided that "[w]hen any of the facts foreseen in the preceding articles is committed against a public official not because of his duties but in the act of the public exercise thereof, the penalties therein established shall be applied, reduced by one third to one half".
The Rocco Code provided in Article 341 that: "[w]hoever offends the honour or prestige of a public official, in his presence and because of or in the exercise of his duties, shall be punished with imprisonment from six months to two years. The same penalty shall apply to anyone who commits the act by means of a telegram or telephone communication, or by writing or drawing, addressed to the public official, and because of his duties. The penalty is imprisonment from one to three years if the offence consists in the attribution of a specific fact. The penalties are increased when the act is committed with violence or threat, or when the offence is committed in the presence of one or more persons".
The minimum sentence of six months provided for by the incriminating provision was declared unconstitutional by Judgment No. 341 of 1994, which identified "the minimum penalty to be applied for the offence in question by referring to the limit of fifteen days generally set for the penalty of imprisonment by Article 23 of the Criminal Code".
The incriminating provision was then repealed by Article 18 of Law No. 205 of 25 June 1999 (Delegation to the Government for the decriminalization of minor offences and amendments to the criminal and tax system). The Sixth Criminal Division of the Court of Cassation, however, with its judgment of 27 June-17 July 2001, No. 29023, stated that the possibility remained that, if the prerequisites existed in concreto, the act would still be sanctioned in terms of offence to "honour" or "decorum" pursuant to Articles 594 (subsequently repealed), which governed the offence of insult, and 61, number 10, of the Criminal Code, which provides for the generic aggravating circumstance of having committed the act against a public official.
In 2009 the offence of insult was reintroduced into the Criminal Code by Article 1, paragraph 8, of Law No. 94 of 15 July 2009 (Provisions on public security) with the same heading (insulting a public official) but with a new numbering (no longer Article 341 but Article 341-bis) and a new wording, providing for a minimum penalty of fifteen days and a maximum of three years' imprisonment.
Finally, in 2019, the minimum penalty was raised by Legislative Decree No. 53 of 2019, as converted, to the six months' imprisonment currently in force.
4.3. – The current wording of the offence of insulting a public official (Article 341-bis of the Criminal Code) provides that: "[w]hoever, in a public place or a place open to the public and in the presence of more than one person, offends the honour and prestige of a public official while performing an official act and because of or in the exercise of his duties shall be punished with imprisonment from six months to three years". Two special circumstances are provided for: "[i]f the act is committed by a parent exercising parental responsibility or by the guardian of the pupil against a school principal or a member of the teaching, educational or administrative staff of the school" (with an increase in the penalty up to half) and "[i]f the offence consists in the attribution of a specific fact". However, "[i]f the truth of the fact is proven or if the official to whom the fact is attributed is convicted after the attribution of the same fact, the author of the offence shall not be punishable". The fourth paragraph of the same Article 341-bis of the Criminal Code then establishes the extinction of the offence if "[t]he defendant, before the trial, has fully repaired the damage, by compensating it both against the injured party and against the entity to which the latter belongs". Finally, Article 393-bis of the Criminal Code provides for a ground for non-punishability in the event that the public official has caused the act by exceeding the limits of his powers with arbitrary acts.
4.4. – The offence of insulting a public official under the current Article 341-bis of the Criminal Code, unlike the criminal offence provided for by the repealed Article 341 of the Criminal Code, requires necessarily and simultaneously that the insulting conduct: 1) takes place in a public place or a place open to the public; 2) takes place in the presence of more than one person; 3) takes place while the public official is performing an act of his office; 4) offends the honour "and" the prestige of a public official.
4.4.1. – The first two constituent elements of the "new" offence of insult – not required by the previous incriminating provision – consist in the fact that the offence must be committed in a public place or a place open to the public and in the presence of more than one person, which implies an injury to the reputation of the public official and the prestige and image of the public administration.
4.4.2. – The third specifying element, compared to the previous offence of insult, requires that the offence is constituted only if the offensive conduct is carried out at the moment when the public official is performing a necessary act of his office and therefore where the damage that such conduct can cause is maximum.
4.4.3. – The last element of novelty finally requires that both the honour and the prestige of the public official are offended at the same time, unlike what was provided for in the previous incriminating provision, which considered sufficient the injury to one or the other asset (ex plurimis, Court of Cassation, Sixth Criminal Division, judgment of 17 March-13 April 2016, No. 15440).
In fact, as this Court has already stated, the "new" offence of insult under Article 341-bis of the Criminal Code, with "the introduction of a requirement of strict contextuality between the offender's conduct and the performance of a specific functional act (expressed by the phrase 'while performing an official act') has configured an 'offence also against the good functioning of the public administration, sub specie of the concrete performance of the (legitimate) activity of the public official, not unlike what happens [...] for the offence under Article 337 of the Criminal Code' (Judgment No. 284 of 2019) (Judgment No. 30 of 2021).
As this Court has also had occasion to specify, the requirement in question gives the offence "a new dimension of danger for the concrete implementation of the specific official act that the offender's conduct evidently aims to hinder, and therefore for the regular exercise of the public function concretely performed by the public official. Exercise which, it is worth remembering, must be legitimate and not arbitrary, otherwise configuring in favour of the private individual the justifying circumstance under Article 393-bis of the Criminal Code" (Judgment No. 284 of 2019).
5. – These new requirements introduced by the legislator significantly restrict the application of the new offence of insult compared to the previous one, which was the subject of Judgment No. 341 of 1994, enriching its offensive dimension and selecting conduct of appreciable gravity, which makes the provision of a minimum penalty of six months' imprisonment not intrinsically disproportionate or contrary to the rehabilitative principle. This is in light of the constant approach of this Court which recognizes the wide discretion of the legislator in defining criminal policy, and in particular in determining the penalties applicable to those who have committed crimes, as well as in the selection of conduct constituting a crime (ex multis, Judgments No. 207 of 2023 and No. 117 of 2021).
On the other hand, the "new" offence of insult now shares with the offence of resisting a public official under Article 337 of the Criminal Code, taken as a tertium comparationis by the referring court, despite the difference in the conduct sanctioned, the same offensive direction with respect to the regular performance of the public function, an asset of immediate constitutional relevance pursuant to Article 97, second paragraph, of the Constitution. This makes the legislator's choice of providing for the same minimum penalty for both offences not manifestly unreasonable or arbitrary.
6. – Finally, it cannot be overlooked that, with reference to offences with direct summons such as the one in question, Article 554-bis of the Code of Criminal Procedure recently introduced by Article 32, paragraph 1, letter d), of Legislative Decree No. 150 of 10 October 2022 (Implementation of Law No. 134 of 27 September 2021, containing a delegation to the Government for the efficiency of criminal proceedings, and on restorative justice and provisions for the speedy resolution of judicial proceedings), has introduced the pre-trial appearance hearing (following which the referring judge raised the present question of constitutional legitimacy), to encourage the use of restorative justice instruments; in fact, the moment in which the activities for which the opening of the trial is foreseen as a deadline can take place has been broadened and among these are, precisely, the restorative conduct ex Article 162-ter of the Criminal Code (Judgment No. 45 of 2024).
In fact, it must be considered that for this type of offence it is possible to use the aforementioned instrument of restorative justice which allows to hold accountable the author of the offence and recover the interpersonal relationships damaged by the offence, contributing to restore a positive image to the action of the public administration (similarly, Judgment No. 71 of 2024).
7. – From all this, the unfoundedness of the questions raised with reference to all the parameters invoked follows.
For these reasons
THE CONSTITUTIONAL COURT
declares unfounded the questions of constitutional legitimacy of Article 341-bis of the Criminal Code, as amended by Article 7, paragraph 1, letter b-bis), of Legislative Decree No. 53 of 14 June 2019 (Urgent provisions on public order and security), converted, with amendments, into Law No. 77 of 8 August 2019, raised by the Ordinary Court of Trieste, Criminal Division, sitting as a single judge, with reference to Articles 3 and 27, third paragraph, of the Constitution, with the order indicated in the heading.
Thus decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 24 September 2024.
Signed:
Augusto Antonio BARBERA, President
Angelo BUSCEMA, Rapporteur
Roberto MILANA, Registrar
Filed with the Registry on 22 October 2024