JUDGMENT NO. 176

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 47-ter, paragraph 1-bis, of Law no. 354 of 26 July 1975 (Regulations on the penitentiary system and the enforcement of measures depriving and limiting personal liberty), initiated by the Trieste Supervisory Court, in the proceedings concerning M. P., by order of 20 March 2023, registered under no. 56 of the 2023 ordinance register and published in the Official Gazette of the Republic no. 18, first special series, of the year 2023.

Heard in the council chamber of 21 May 2024, Judge Rapporteur Franco Modugno;

Deliberated in the council chamber of 21 May 2024.

Statement of Facts

1.– By order of 20 March 2023, registered under no. 56 of the 2023 ordinance register, the Trieste Supervisory Court raised, with reference to Articles 3 and 27, third paragraph, of the Constitution, questions of constitutional legitimacy of Article 47-ter, paragraph 1-bis, of Law no. 354 of 26 July 1975 (Regulations on the penitentiary system and the enforcement of measures depriving and limiting personal liberty), insofar as it «does not provide for house arrest for so-called free suspended convicts, prior to the entry into force of Legislative Decree 150/2022, to serve a custodial sentence imposed not exceeding four years, regardless of the conditions referred to in paragraph 1 [recte: referred to in paragraph 1 of the same Article 47-ter of the Penitentiary Law], when the conditions for probation with the social services are not met and provided that the measure is suitable to avoid the danger that the convict will commit other crimes, with regard to proven family, study, professional training, work, or health needs of the convict, as provided for by Article 56 of Law 689/81, replaced by Article 71, paragraph 1, letter c), of Legislative Decree 10/10/2022, no. 150, under the conditions provided for by Article 59 of Law 689/81 as replaced by Article 71, paragraph 1, letter g) of Legislative Decree 10.10.2022 no. 150, with the prescriptions regulated in Article 56-ter of Law 689/81, introduced by Article 71, paragraph 1, letter d) of Legislative Decree 10.10.2022 no. 150».

1.1.– The referring court reports being seized of a petition, filed by a person sentenced to a term of two years and ten months of imprisonment, aimed at obtaining, on a graded basis, probation with the social services, house arrest, or semi-liberty.

The court a quo specifies that the sentence the applicant should serve is the result of the cumulation of the sentences imposed on him by judgments of 15 January 2019 and 15 May 2019, which became final on 26 November 2021 and 11 February 2022, respectively, for the crimes of unlawful possession of narcotic substances and simulation of a crime, both aggravated by repeated recidivism: cumulation operated by the Public Prosecutor’s Office at the Court of Udine by provision of 25 February 2022, which also ordered the suspension of the execution of the sentence pursuant to Article 656, paragraph 5, of the Code of Criminal Procedure.

In the referring court’s opinion, none of the alternatives to imprisonment requested by the convict could be granted.

Probation with the social services would be precluded by the provisions of Article 58-quater, paragraph 7-bis, of the Penitentiary Law, under which the same type of alternative measure cannot be granted more than once to a convict to whom recidivism under Article 99, fourth paragraph, of the Criminal Code has been applied. In the case at hand, the applicant had already obtained probation with the social services on 18 October 2016 in relation to two previous convictions for crimes of unlawful cultivation of narcotics committed in 2012 and 2014, which were also aggravated by repeated recidivism. The measure had also been revoked because the convict had committed, while it was in force, the crime of simulation of a crime, which is the subject of the second of the judgments of conviction currently under discussion. During the execution of the order revoking the measure, the unlawful possession of narcotic substances was also ascertained, which led to the first of those convictions.

In this regard, the referring court observes that this Court, in Judgment no. 291 of 2010, stated that the aforementioned Article 58-quater, paragraph 7-bis, of the Penitentiary Law should be interpreted to mean that the prohibition of reiteration of the benefit operates absolutely only when the crime expressing repeated recidivism was committed after the experimentation of the alternative measure, carried out during the execution of a sentence in turn imposed with the application of the same aggravating circumstance. According to the court a quo, however, the arguments made by this Court, regarding the reasonableness, in such a case, of an absolute presumption of inadequacy of the benefit to prevent the commission of new crimes, would be valid not only when the additional crimes aggravated by repeated recidivism were committed after the positive experimentation of the measure, but also when they were carried out during it, as in the case under consideration.

Based on the indications of the same Judgment no. 291 of 2010 and the case law of the Court of Cassation, Article 58-quater, paragraph 7-bis, of the Penitentiary Law would not prevent the granting of alternative measures of a different type. In the case at hand, however, the duration of the custodial sentence to be served, exceeding two years, would not allow the convict access to house arrest under Article 47-ter, paragraph 1-bis, of the Penitentiary Law; nor would any of the conditions referred to in paragraphs 1 and 1-ter of the same article be met, which make such a benefit available even for sentences exceeding the aforementioned limit: in particular, not the one referred to in letter d) of paragraph 1, since, although the convict has been recognized as 75 percent disabled in civil matters due to some pathologies, the concurrent requirement of being over sixty years of age is lacking; nor those referred to in letter c) of paragraph 1 and paragraph 1-ter, as the pathologies in question would not be such as to qualify the interested party’s health conditions as particularly serious.

Finally, as regards semi-liberty, Article 50, paragraph 2, last sentence, of the Penitentiary Law, does allow the convict to be admitted to this measure even before serving half of the sentence, when, in the cases provided for by Article 47 of the Penitentiary Law, the conditions for probation with the social services are lacking. In the case at hand, however, the practicability of the measure would be hindered by the time required for travel by public transport – the only means that can be used – from the prison of Udine to the municipality where the applicant is included in a work program.

In the light of the information acquired, on the other hand, the applicant could not be considered a drug addict, and therefore it would not be possible to order probation with the social services for therapeutic purposes, under Article 94 of Presidential Decree no. 309 of 9 October 1990 (Consolidated text of the laws on the discipline of narcotics and psychotropic substances, prevention, treatment and rehabilitation of the related states of drug addiction).

1.2.– Having stated the above, the court a quo, however, doubts the constitutional legitimacy of Article 47-ter, paragraph 1-bis, of the Penitentiary Law, insofar as it does not provide that definitive convicts, so-called free suspended convicts prior to the entry into force of Legislative Decree no. 150 of 10 October 2022 (Implementation of Law no. 134 of 27 September 2021, containing delegation to the Government for the efficiency of the criminal trial, as well as in the field of restorative justice and provisions for the expeditious conclusion of judicial proceedings), may be granted house arrest to serve a custodial sentence not exceeding four years, regardless of the conditions referred to in paragraph 1 of the same Article 47-ter of the Penitentiary Law, when the conditions for probation with the social services are not met and provided that the measure is suitable to avoid the danger that the convict will commit other crimes, and there are also proven family, study, professional training, work, or health needs of the convict, as provided for by Article 56 of Law no. 689 of 24 November 1981 (Amendments to the criminal system), as replaced by Article 71, paragraph 1, letter c), of Legislative Decree no. 150 of 2022, within the limits of the subjective conditions established by Article 59 and with the minimum prescriptions indicated in Article 56-ter of the same law (articles respectively replaced and added by letters g and d of Article 71, paragraph 1, of Legislative Decree no. 150 of 2022).

According to the referring court, the contested provision would violate Article 3 of the Constitution, causing an unreasonable disparity of treatment between definitive free suspended convicts prior to Legislative Decree no. 150 of 2022 and non-definitive convicts who have a residence available, who, following the reform operated by that legislative decree, may be admitted to house arrest as a substitute penalty under the amended Article 56 of Law no. 689 of 1981, with the prescriptions referred to in the subsequent Article 56-ter, where the judge of the proceedings deems it necessary to determine the duration of the custodial sentence within the limit of four years.

The so-called definitive free suspended convicts before Legislative Decree no. 150 of 2022 would also be discriminated against in peius with regard to the regulation of the subjective conditions for the substitution of the custodial sentence, given that Article 59, first paragraph, letter a), of Law no. 689 of 1981, as replaced, «does not preclude access to the substitute penalty for those who have committed a non-culpable crime during the execution of probation with the social services».

Article 27, third paragraph, of the Constitution would also be violated, insofar as, in a situation such as the one at stake in the proceedings a quo, «[r]e-entry into prison tout court or the execution of the sentence under a semi-liberty regime, with consequent total or partial removal from the community of residence, where the convict has accommodation made available by the municipality as a disadvantaged person […], and into which he has reintegrated after the last release from prison without incurring significant remarks», would conflict with the rehabilitative purpose of the penalty.

1.3.– In the opinion of the referring court, the questions would be relevant in the main proceedings.

The municipality has, in fact, allocated accommodation to the convict until he is able to become economically independent and has included him in a regional program for disadvantaged people, which allows him to participate in professional training courses and work in the municipality of residence. He is also being followed, for a «[d]ependent [p]ersonality [d]isorder», by a specialist department of the local health authority, at which he is taking pharmacological therapy.

Therefore, there would be proven health, professional training, and work needs to serve the sentence, exceeding two years and less than four years, under a house arrest regime.

On the other hand, although the applicant is burdened by multiple previous convictions and despite the negative outcome of the probation with the social services measure to which he was previously admitted, there would be reason to believe that the prescriptions inherent to house arrest, which are flexible and adaptable to the care, professional training, and work needs of the interested party, are suitable to prevent the danger that he will commit new crimes.

Statement of Law

1.– The Trieste Supervisory Court doubts the constitutional legitimacy of Article 47-ter, paragraph 1-bis, of the Penitentiary Law, insofar as it «does not provide for house arrest for so-called free suspended convicts, prior to the entry into force of Legislative Decree 150/2022, to serve a custodial sentence imposed not exceeding four years, regardless of the conditions referred to in paragraph 1 [recte: referred to in paragraph 1 of the same Article 47-ter of the Penitentiary Law], when the conditions for probation with the social services are not met and provided that the measure is suitable to avoid the danger that the convict will commit other crimes, with regard to proven family, study, professional training, work, or health needs of the convict, as provided for by Article 56 of Law 689/81, replaced by Article 71, paragraph 1, letter c), of Legislative Decree 10/10/2022, no. 150, under the conditions provided for by Article 59 of Law 689/81 as replaced by Article 71, paragraph 1, letter g) of Legislative Decree 10.10.2022 no. 150, with the prescriptions regulated in Article 56-ter of Law 689/81, introduced by Article 71, paragraph 1, letter d) of Legislative Decree 10.10.2022 no. 150».

The referring court alleges a violation of Article 3 of the Constitution, considering that there is an unreasonable disparity of treatment between definitive free suspended convicts prior to Legislative Decree no. 150 of 2022 and non-definitive convicts who have a residence available, who, following the reform operated by the aforementioned legislative decree, may be admitted to house arrest as a substitute penalty under Article 56 of Law no. 689 of 1981, with the prescriptions referred to in the subsequent Article 56-ter, where the judge of the proceedings deems it necessary to determine the duration of the custodial sentence within the limit of four years. The discrimination in peius against the subjects indicated above would also be found in relation to the regulation of the subjective conditions for the substitution of the custodial sentence, given that Article 59, first paragraph, letter a), of Law no. 689 of 1981, as replaced, «does not preclude access to the substitute penalty for those who have committed a non-culpable crime during the execution of probation with the social services».

Article 27, third paragraph, of the Constitution would also be violated, as, in the case subject to the questions of constitutional legitimacy, imposing the convict’s entry into prison would be a solution that conflicts with the rehabilitative purpose of the penalty.

2.– As a preliminary matter, it is appropriate to clarify the subject matter of the referring court’s complaints and to reconstruct, in summary, the regulatory framework that forms their backdrop.

Beyond the complex articulation of the petitum – which would not, in any case, be binding on this Court, if it deemed the questions to be well-founded (among the many, Judgments no. 138 of 2024, no. 221 of 2023) – the doubts of constitutional legitimacy expressed by the Trieste Supervisory Court are essentially connected to the fact that convicts with an irrevocable judgment prior to the entry into force of Legislative Decree no. 150 of 2022, for whom the execution of the sentence has been suspended under Article 656, paragraph 5, of the Code of Criminal Procedure (so-called free suspended convicts), cannot benefit from the house arrest introduced by the aforementioned legislative decree as a substitute penalty for short-term detention: an institution whose regulation is in various aspects more favorable to the offender than that of the homonymous alternative to detention provided for by the penitentiary law.

This Court has already had occasion to deal with this difference in regime recently, from a different perspective (Judgment no. 84 of 2024).

For the purposes relevant herein, it is particularly worth recalling how, in implementation of the legislative delegation conferred by Article 1, paragraph 17, of Law no. 134 of 27 September 2021 (Delegation to the Government for the efficiency of the criminal trial as well as in the field of restorative justice and provisions for the expeditious conclusion of judicial proceedings), Article 71 of Legislative Decree no. 150 of 2022 has carried out a reform intended to revitalize and enhance the substitute sanctions for short-term custodial sentences governed by Chapter III of Law no. 689 of 1981, which are now referred to as «substitute penalties». Indeed, in the conception of the reform legislator, these are real penalties, albeit different from those laid down by the law, which can be imposed by the judge of the proceedings at the same time as the conviction instead of the prison sentence, in view of the rehabilitation of the convict, as well as the objectives of general and special prevention. The greater suitability for achieving the rehabilitative purpose compared to short-term detention (whose de-socializing effects are well known) and the ability to prevent the danger of committing other crimes represent, in fact, the general criteria that guide the judge’s discretionary power in the application and choice of substitute penalties (Article 58, first paragraph, of Law no. 689 of 1981).

From the aforementioned perspective of enhancing the institution, the limit of the replaceable custodial sentence – previously fixed at two years – has been doubled, thus coinciding with that (four years) within which, under Article 656, paragraph 5, of the Code of Criminal Procedure, as a result of Judgment no. 41 of 2018 of this Court, the public prosecutor must, as a rule, suspend the execution order of the irrevocable judgment, in order to allow the convict to request from the supervisory court an alternative to imprisonment without prior entry into the penitentiary institution.

The reform aims, in this way, to anticipate in the judgment of the proceedings the decision on the alternative to prison, which is otherwise left to the supervisory magistracy in the execution phase. At the same time, the substitute penalties are configured as «certain, rapid, and effective sanctioning responses to the crime» (Judgment no. 84 of 2024): in relation to them, neither conditional suspension can be granted (Article 61-bis of Law no. 689 of 1981) nor alternatives to detention, with the exception of the case referred to in the newly introduced Article 47, paragraph 3-ter, of the Penitentiary Law, which, however, presupposes the serving of at least half of the sentence (Article 67 of Law no. 689 of 1981).

As emerges from the explanatory report of Legislative Decree no. 150 of 2022, among the positive results that the intervention aspires to achieve, there is specifically that of curbing the alarming phenomenon of the expansion of the pool of free suspended convicts. In numerous districts, in fact, the supervisory courts, due to the excessive workload of proceedings, were unable to respond within a reasonable time to requests for the granting of alternative measures, the decision on which often occurred years after the suspension of the execution order: this, to the detriment of the efficiency of criminal justice, which – as also noted in the report – cannot be assessed solely in relation to the proceedings, neglecting the activation times of the executive phase. By anticipating the decision on the alternative to prison to the judgment of the proceedings, it becomes possible to immediately apply measures «that also allow for the control of the convict’s possible social dangerousness from the moment the judgment of conviction becomes final» (Judgment no. 84 of 2024), avoiding leaving the interested party in a "limbo" for a long time, until the supervisory court rules.

This, beyond the further objective of the reform to achieve a procedural deflation of the cognitive phase itself, encouraging «alternative definitions of the process – through the prospect of obtaining the application of substitute penalties for imprisonment, also as a result of the sentence reductions connected to the choice of alternative rites» (Judgment no. 84 of 2024).

3.– As regards more directly the current thema decidendum, the reform has also profoundly modified the composition of substitute penalties. The pecuniary substitute penalty has, in fact, been joined by those – newly established – of semi-liberty, house arrest, and substitute work, abolishing semi-detention and supervised release.

In the aforementioned logic of anticipating the alternative to prison in the judgment of the proceedings, semi-liberty and substitute house arrest clearly come to be the ideal counterparts of the alternatives to detention of the same name provided for by the penitentiary law. This does not, however, imply a coincidence of regulation, as to prerequisites and content.

This is particularly true for house arrest, to which the current questions of constitutional legitimacy relate.

First of all, the perimeters of the related area of ​​usability are different. Substitute house arrest may, in fact, be applied when the judge deems it necessary to determine the custodial sentence within the limit of four years (Articles 53, first paragraph, of Law no. 689 of 1981, and 20-bis, second paragraph, of the Criminal Code). This is a wider limit than that for access to the alternative measure, where the convict does not find himself in the conditions that allow him to benefit from the special house arrest provided for by Article 47-quinquies of the Penitentiary Law (reserved for subjects who have to care for young children), nor in the subjective conditions of particular vulnerability indicated by paragraphs 01, 1 and 1-ter of Article 47-ter of the Penitentiary Law, which allow for the benefit of ordinary house arrest, depending on the case, without sentence limits or within the same limit of four years. Outside of these cases, the contested paragraph 1-bis of the same Article 47-ter of the Penitentiary Law provides, in fact, that house arrest may be granted only when, in the absence of the conditions for probation with the social services, the sentence to be served does not exceed two years: a limit that in the case under consideration is exceeded (unlike that relating to substitute house arrest), as the convict has been given a total sentence of two years and ten months of imprisonment.

Substitute house arrest then presents itself, in general, as more favorable in terms of content. Article 47-ter, paragraph 4, of the Penitentiary Law, referring to Article 284 of the Code of Criminal Procedure, provides, in fact, that the convict admitted to the alternative measure may be authorized by the judge to be absent from the place of execution of the measure for the time strictly necessary to meet his indispensable needs of life or to carry out a work activity: but this only when he cannot otherwise meet those needs or is in a situation of absolute indigence. The provisions of the amended Article 56 of Law no. 689 of 1981, according to which the convict sentenced to substitute house arrest is required to remain in the place where the sentence must be served for a minimum period of twelve hours a day, determined by the judge «having regard to proven family, study, professional training, work, or health needs of the convict», while in any case the possibility remains for the latter to «leave the domicile for at least four hours a day, even if not continuous, to provide for his indispensable needs of life and health, as established by the judge»; all this also taking into account the «treatment program developed by the external penal execution office, which takes charge of the convict and which reports periodically on his conduct and his path of social reintegration». These are provisions that the referring court emphasizes in relation to the case submitted to its review, noting how the prescriptions that accompany substitute house arrest would allow, due to their flexibility, to safeguard the care, professional training, and work needs of the applicant convict, so as to facilitate his rehabilitation, while at the same time being suitable – also given the prescriptions common to all substitute penalties other than the pecuniary one, referred to in Article 56-ter of Law no. 689 of 1981 – to prevent the danger that he will commit new crimes.

Unlike a convict admitted to the alternative measure, a convict sentenced to substitute house arrest may also benefit from permits (Article 69, first paragraph, of Law no. 689 of 1981) and is subject to less severe rules regarding the consequences of unjustified absence from the place of serving the sentence (Article 72, first paragraph, of Law no. 689 of 1981).

It is worth recalling that this Court – called upon to verify the constitutional legitimacy of the discrepancies in the rules now mentioned – has specifically excluded that the new text of Article 56 of Law no. 689 of 1981 implies a violation of Article 76 of the Constitution, for non-compliance with the criterion of legislative delegation referred to in Article 1, paragraph 17, letter f), of Law no. 134 of 2021 (which required to borrow for substitute house arrest, but only «as far as compatible», the regulation of the homonymous alternative to detention), instead declaring inadmissible, under various profiles, the further questions raised (Judgment no. 84 of 2024).

4.– Legislative Decree no. 150 of 2022 deals with the problems of transitional law connected to the introduction of the new regulation of substitute penalties in Article 95 (a provision that the court a quo does not mention, however).

It is established therein that the rules provided for in Chapter III of Law no. 689 of 1981, if more favorable, also apply to criminal proceedings pending in the first instance or on appeal at the time of the entry into force of the legislative decree. If the judgment is pending before the Court of Cassation, the convict sentenced to a custodial sentence not exceeding four years may submit a request for the application of one of the substitute penalties to the judge of the execution, under Article 666 of the Code of Criminal Procedure, within thirty days from the irrevocability of the judgment: a solution justified by the fact that the decision on the substitution of the custodial sentence implies a judgment on the merits, outside the scope of review of legality. In the event of annulment with referral, the referring court shall provide.

The substitute sanctions of semi-detention and supervised release, already applied or being executed at the time of the entry into force of Legislative Decree no. 150 of 2022, continue to be governed by the previous provisions. However, convicts sentenced to semi-detention may request the magistrate of the supervisory court to convert it to substitute semi-liberty.

These provisions are in line with the general rule on the succession of criminal laws over time enunciated by Article 2, fourth paragraph, of the Criminal Code, of which they constitute implementation. Based on them, the more favorable provisions regarding substitute penalties apply to previously committed acts, even if they are the subject of a judgment, with the only limit represented by the formation of a final judgment of conviction for a custodial sentence, which is not substituted, on a date prior to the entry into force of the reform (Court of Cassation, Sixth Criminal Section, 21 June - 2 August 2023, no. 34091).

5.– This limit, however, is considered to be a harbinger of constitutional violations by the referring judge, insofar as it prevents free suspended convicts before the reform, for whom the regulation referred to in Article 47-ter, paragraph 1-bis, of the Penitentiary Law applies, from benefiting from the more advantageous institution of substitute house arrest.

In this regard, the Trieste Supervisory Court primarily suggests the violation of Article 3 of the Constitution due to unreasonable disparity of treatment, considering that the contested preclusion places the subjects in question in an unjustifiably worse position than that of non-definitive convicts on the date of entry into force of Legislative Decree no. 150 of 2022, who are instead allowed to benefit from the substitute penalty in question. In essence, according to the court a quo, there would be no reason to treat less favorably subjects convicted by irrevocable judgment, who are awaiting the decision of the supervisory court regarding the grantability of an alternative to prison, compared to those who, on the same date, were similarly convicted, but with a judgment not yet final.

The question is not well-founded.

5.1.– It is immediately evident how – despite the absence of any express reference to the issue in the referral order – the underlying problem evoked by the referring court’s proposition is that of the legitimacy of the limits to the principle of retroactivity of the lex mitior in criminal matters: a principle that finds its direct constitutional basis precisely in Article 3 of the Constitution (beyond the indirect one offered by supranational rules capable of acting as interposing rules with respect to Article 117, first paragraph, of the Constitution).

According to the constant jurisprudence of this Court, in fact, the principle in question remains outside the sphere of protection of Article 25, second paragraph, of the Constitution, which limits itself to establishing the distinct principle of irretroactivity of unfavorable criminal rules, primarily aimed at protecting the freedom of individual self-determination, ensuring that the individual is not surprised by the imposition of a criminal sanction that he could not have foreseen at the time of the commission of the act. A guarantee that is not called into question by the application of a criminal rule, even more burdensome than those that came into force subsequently, but which was still in force when the act was carried out (Judgments no. 238 of 2020, no. 63 of 2019 and no. 394 of 2006).

The constitutional basis of retroactivity in mitius lies rather in the principle of equality, which «imposes, in principle, to equate the sanctioning treatment of the same acts, regardless of whether they were committed before or after the entry into force of the rule that ordered the abolitio criminis or the mitigating modification» (Judgment no. 394 of 2006). This is because, in general, «[i]t would not be reasonable to punish (or continue to punish more severely) a person for an act that, according to the subsequent law, anyone else can commit with impunity (or for which a lighter penalty is provided)» (Judgment no. 236 of 2011; similarly, Judgments no. 238 of 2020, no. 63 of 2019 and no. 230 of 2012).

The reclassification of the principle of retroactivity of the lex mitior within the scope of Article 3 of the Constitution, rather than that of Article 25, second paragraph, of the Constitution, entails, however, that the related constitutional statute is less forceful than that of the principle of irretroactivity in peius. While, in fact, the latter constitutes an absolute and non-derogable value, the rule of retroactivity in mitius is susceptible to limitations and legitimate derogations on the constitutional level, if supported by objectively reasonable justifications (Judgments no. 278 and no. 238 of 2020, no. 63 of 2019, no. 236 of 2011, no. 394 and no. 393 of 2006).