ITALIAN REPUBLIC

IN THE NAME OF THE ITALIAN PEOPLE

THE CONSTITUTIONAL COURT

composed of:

President: Augusto Antonio BARBERA

Justices : 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 delivered the following

JUDGMENT

in the proceedings concerning the constitutional legitimacy of Article 34, paragraph 2, of the Code of Criminal Procedure, initiated by the Ordinary Court of Siena, in single-judge composition, in the criminal proceedings against M. D.L., with Order of 14 February 2024, registered under no. 52 of the register of orders 2024 and published in the Official Gazette of the Italian Republic no. 14, first special series, of the year 2024.

Having seen the act of intervention by the President of the Council of Ministers;

Having heard in the council chamber of 15 October 2024 the reporting Judge Giovanni Amoroso;

Resolved in the council chamber of 15 October 2024.

Facts of the Case

1.– By Order of 14 February 2024, registered under no. 52 of the register of orders 2024, the Ordinary Court of Siena, in single-judge composition, raised, with reference to Articles 111, second paragraph, 3, 24, second paragraph, 101 and 117 of the Constitution, the latter in relation to Article 6, paragraph 1, of the European Convention on Human Rights, and Article 14, paragraph 1, of the International Covenant on Civil and Political Rights, questions of constitutional legitimacy of Article 34, paragraph 2, of the Code of Criminal Procedure, insofar as it does not provide that the judge of the pre-trial hearing who set the date of the trial hearing before a different judge, for the continuation of the trial, may not participate in the subsequent trial proceedings.

1.1.– On the facts, the referring court reports that it is proceeding against a person accused of the crime under Article 341-bis of the Criminal Code, following a direct summons to trial, with which the public prosecutor simultaneously set the date of the pre-trial hearing.

In particular, the a quo judge points out that, in application of the provisions set out in the office organisation table, he was assigned to conduct the pre-trial hearing, following which he ordered that the trial, in the absence of requests for alternative resolutions, should continue before a different judge, as identified according to the assignment criteria established in the aforementioned table, and he set the date for the holding of the trial hearing.

The referring court notes that at the aforementioned hearing, due to the temporary absence of the different judge designated for the trial, the proceedings were adjourned to him, as trial judge, destined to carry out, for a semester, substitute duties for the entire docket of the different judge already designated as trial judge, due to the supervening application of the same to another judicial office.

Having pointed this out, the a quo judge notes that, as judge of the trial hearing, he is required to adopt a decision on the merits, despite having already assessed the content of the accusatory hypothesis, on the basis of previously carried out acts and relating to the same res iudicanda, which is the subject of the order issued at the pre-trial hearing.

In the opinion of the referring court, the legal system does not provide, for the case in point, for a hypothesis of incompatibility, despite the fact that an activity has already been carried out which is capable of generating the so-called "force of prevention" because it is of a strictly decisional nature, not concerning the simple conduct of the trial or a merely formal aspect of the proceedings.

The a quo judge further points out that the institution of incompatibility relates to situations of prejudice to the impartiality of the judge that occur within the same proceedings and is an expression of cardinal values of the judiciary, such as impartiality and fairness, which in turn are linked to the guarantee of a fair trial.

He further underlines that the discipline of incompatibility aims to prevent excessive subjectivity in the judgement and to safeguard the impartiality of the judge.

He then identifies, in the norms indicated as violated, the constitutional and supranational normative references of the institution of incompatibility, and points out that the right to a fair trial (Article 6, paragraph 1, ECHR) requires that a case be examined by a court which, in addition to being independent, is also impartial and thus implies and postulates the recognition of the fundamental right to a judge who offers such a guarantee.

The referring court points out that, in the conventional framework, the impartiality of the judge corresponds to the absence of prejudice on the part of the judge himself, both according to a subjective approach, which seeks to ascertain his conviction or his personal interest in a specific case, and an objective approach, which seeks to ascertain whether he offers sufficient guarantees to exclude any legitimate doubt about his impartiality. Furthermore, the lack of impartiality, within the framework of the ECHR, can also arise from a functional point of view, if it relates to hierarchical or other types of relationships within the same judicial process, or to the exercise of various functions by the same person in that process (reference is made to the judgment of the European Court of Human Rights, Grand Chamber, 15 December 2005, Kyprianou v. Cyprus, paragraph 121).

The referring court also does not fail to consider that, according to the conventional case-law, having already adopted decisions before the trial is not in itself sufficient to justify fears as to his impartiality and that, in order to assess compliance with the principle of judicial impartiality laid down in Article 6, paragraph 1, ECHR, the scope and nature of the measures adopted by the judge before the trial are of decisive importance (reference is made to the judgments of the ECtHR of 24 August 1993, Nortier v. Netherlands, paragraph 33; 24 February 1993, Fey v. Austria, paragraph 30; 16 December 1992, Sainte-Marie v. France, paragraph 32).

With regard to the so-called "horizontal" cases of incompatibility, the referring court points out that some pronouncements of the Constitutional Court (reference is made to Judgments no. 16 of 2022, no. 155 and no. 131 of 1996, no. 453 of 1994, no. 439 of 1993, no. 261, no. 186 and no. 124 of 1992) have specified that by judgment is meant any process which, on the basis of an examination of evidence, leads to a decision on the merits and that the notion of a decision on the merits clearly includes the trial proceedings.

In fact, the a quo judge notes that the decisional task of the trial judge consists in testing all the competing explanatory hypotheses introduced in a trial conducted in the adversarial context between parties placed on an equal footing, pursuant to Article 111, first paragraph, of the Constitution, accepting as "true" the accusatory hypothesis only if it is proven "beyond any reasonable doubt" (Article 533, paragraph 1, of the Code of Criminal Procedure).

The referring court, then, referring in particular to the Judgment no. 16 of 2022, recalls that this Court has long identified the conditions that make the provision of a case of incompatibility constitutionally necessary, namely the pre-existence of assessments that fall on the same res iudicanda: the fact that the judge has made an assessment of previously carried out acts, instrumental to the adoption of a decision, as well as that the decision relates to the merits of the accusatory hypothesis and not to the mere conduct of the trial or to a formal aspect of the proceedings.

1.2.– Having made this general premise, the referring court points out that, in the light of the provisions of Articles 553 and 554-ter of the Code of Criminal Procedure, as amended by 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 criminal proceedings, as well as in the matter of restorative justice and provisions for the swift definition of judicial proceedings), the decisional task incumbent on the judge of the pre-trial hearing consists in making assessments and taking decisions "on the basis of the acts" (Article 554-ter, paragraph 1, of the Code of Criminal Procedure) transmitted by the public prosecutor, consisting of the "file for the trial [...] together with the file of the public prosecutor" (Article 553 of the Code of Criminal Procedure), carrying out a thorough examination and control of the evidentiary material collected by the public prosecutor, on whom alone the investigative power is concentrated, correlated to the duty, for the same, to investigate all possible aspects and profiles of a news of crime, with a view to a complete and exhaustive reconstruction of the facts and the "truth", carrying out "investigations on facts and circumstances in favour of the person under investigation" (Article 358 of the Code of Criminal Procedure).

In the opinion of the referring court, the control entrusted to the judge of the pre-trial hearing consists in a non-formal, but content-based assessment of the consistency of the accusatory hypothesis and this assessment involves the existence of the conditions necessary for the trial to proceed "before a different judge" (Article 554-ter, paragraph 3, of the Code of Criminal Procedure), before whom the evidence is then taken in the adversarial context between the parties.

From this point of view, the referring court notes that the conditions for the trial to proceed before a different judge are described, by Legislative Decree no. 150 of 2022, in negative terms, identifying themselves both in the absence of the "conditions for pronouncing a judgment of no grounds for proceeding", and in the "absence of alternative resolutions" of the trial (Article 554-ter, paragraph 3, of the Code of Criminal Procedure).

It also observes that the "conditions for pronouncing a judgment of no grounds for proceeding" have, on the other hand, been described in positive terms, identifying themselves both in the cases in which "there is a cause that extinguishes the crime or for which the criminal action should not have been initiated or should not be continued", or in which "it appears that the fact is not provided for by law as a crime or that the fact does not exist or that the defendant did not commit it or that the fact does not constitute a crime or that the defendant is not punishable for any cause", as well as in the cases in which "the elements acquired do not allow a reasonable forecast of conviction" (Article 554-ter, paragraph 1, of the Code of Criminal Procedure).

Therefore, as the pre-trial hearing is configured as the seat intended for the assessment of all the evidence collected in the preliminary investigation phase and their capacity to offer coherent confirmations to the accusatory hypothesis described in the charge, through the exercise of intensive powers of verification on the merits of the latter, the omitted provision of the incompatibility of the judge of the pre-trial hearing to the holding of the trial hearing is in open contrast with the constitutional parameters evoked above.

From the omitted provision of such a case of incompatibility of the judge would then derive a disparity of treatment compared to the case of incompatibility to participate in the trial for the judge who issued the concluding order of the preliminary hearing, pursuant to Article 34, paragraph 2, of the Code of Criminal Procedure.

In fact, the decisional tasks of the judge of the preliminary hearing and of the judge of the pre-trial hearing would be identical, with regard to the assessment of the merits of the charge, both being subject to the same rule of judgment aimed at identifying the cases of "objective non-superfluity of the trial" (reference is made to the judgment of this Court no. 88 of 1991), a rule now condensed in the formula according to which "the judge pronounces a judgment of no grounds for proceeding" when "the elements acquired do not allow" to formulate "a reasonable forecast of conviction" (Articles 425, paragraph 3, and 554-ter of the Code of Criminal Procedure).

The a quo judge observes that the individual cases of abstention due to the presence of situations that may prejudice the impartiality and fairness of the judge remain entrusted to the only cases exhaustively provided for in Articles 34 and 36 of the Code of Criminal Procedure, without being able to be extended or applied analogously (reference is made to the Court of Cassation, fifth criminal section, judgment 11 February-17 March 2021, no. 10328), so that, by virtue of the exceptional and exhaustive nature of such cases, no attempt aimed at remedying the noted lacuna would be feasible, it being necessary to invoke the additive intervention of this Court.

2.– By an act filed on 23 April 2024, the President of the Council of Ministers, represented and defended by the State Attorney General's Office, intervened in the proceedings, requesting that the questions be declared inadmissible or, in any case, unfounded.

In the first place, the State defence argues that the referring judge has failed to consider the possibility of applying Articles 34 and 36 of the Code of Criminal Procedure, not addressing the provisions of letter h) of paragraph 1 of the latter which, with a closing formula, indicates, among the cases in which there is an obligation to abstain, also the case of "other serious reasons of expediency".

Consequently, only following the possible rejection of the application for abstention by the president of the court (competent ex Article 36, paragraph 3, of the Code of Criminal Procedure), the referring judge, seized of the proceedings, could have raised the questions of constitutional legitimacy to bring the case within the provisions of Article 34, paragraph 2, of the Code of Criminal Procedure and, therefore, within the scope of Article 36, paragraph 1, letter g), of the Code of Criminal Procedure.

From another point of view, the State defence points out that Article 554-ter, paragraph 3, of the Code of Criminal Procedure, provides that the trial hearing must be held "before a different judge", with wording substantially identical to that used in Article 623, paragraph 1, letter d), of the Code of Criminal Procedure, so that this expression could be interpreted as a real case of incompatibility.

Therefore, in the opinion of the State defence, Article 554-ter, paragraph 3, of the Code of Criminal Procedure has introduced a special cause of incompatibility, governed by Articles 35 et seq. of the Code of Procedure, the violation of which should have required the referring judge to involve the president of the court in order to point out the incorrectness of the assignment, as it is contrary to the law (as well as to the table provisions implementing the law), in order to obtain its revocation.

Points of Law

1.– By Order of 14 February 2024, the Court of Siena, in single-judge composition, raised, with reference to Articles 111, second paragraph, 3, 24, second paragraph, 101 and 117 of the Constitution, the latter in relation to Article 6, paragraph 1, ECHR and Article 14, paragraph 1, ICCPR, questions of constitutional legitimacy of Article 34, paragraph 2, of the Code of Criminal Procedure, insofar as it does not provide that the judge of the pre-trial hearing who set the date of the trial hearing before a different judge, for the continuation of the trial, may not participate in the subsequent trial proceedings.

The referring court, having premised that it had held the pre-trial hearing in respect of a person accused of the crime referred to in Article 341-bis of the Criminal Code and having ordered, in the absence of requests for alternative resolutions, the continuation of the trial before a different judge, setting the date for the holding of the trial hearing, points out that it was also designated to hold this hearing, albeit as a substitute for the different judge, due to the supervening application of the same to another judicial office.

Having clarified this, the a quo judge observes that the challenged provision, insofar as it does not provide for the incompatibility to the conduct of the trial proceedings of the judge of the pre-trial hearing who set the date of the trial hearing before a different judge, for the continuation of the trial, pursuant to Article 554-ter, paragraph 3, of the Code of Criminal Procedure, violates the parameters indicated above since the activity entrusted to the judge of the pre-trial hearing has as its object a non-formal but content-based assessment of the consistency of the accusatory hypothesis, because it is based on the analysis of the overall results of the preliminary investigations, with the consequence that the pre-trial hearing is a seat suitable to generate the so-called "force of prevention", such as to prejudice the impartiality and fairness of the trial judge.

There would also be a violation of Article 3 of the Constitution, insofar as this lack of provision would lead to unequal treatment compared to the provision contained in the same Article 34, paragraph 2, of the Code of Criminal Procedure, which expressly provides for incompatibility to participate in the trial for the judge who issued the concluding order of the preliminary hearing.

In support of the censure, the referring court notes that, on the point of examining the merits of the accusation, the decisional tasks of the judge of the preliminary hearing and of the judge of the pre-trial hearing are identical, both being subject to the same rule of judgment condensed in the formula according to which "the judge pronounces a judgment of no grounds for proceeding" when "the elements acquired do not allow" to formulate "a reasonable forecast of conviction", according to the provisions of Articles 425, paragraph 3, and 554-ter, paragraph 1, of the Code of Criminal Procedure.

The a quo judge further affirms that the questions of constitutional legitimacy are relevant insofar as the individual cases of abstention, provided for the presence of situations that may prejudice the impartiality and fairness of the judge, remain entrusted to the only cases exhaustively provided for in Articles 34 and 36 of the Code of Criminal Procedure, not being able to be extended or applied analogously, which is why no attempt aimed at remedying the lack of provision of the case of incompatibility is feasible.

2.– By way of preliminary remark, it should be noted that the objection of inadmissibility raised by the State Attorney General's Office cannot be upheld.

According to the constant orientation of this Court, the question of constitutional legitimacy is admissible when the referral order is argued in such a way as to allow the "external" control of relevance through a non-implausible motivation of the logical path taken and of the reasons why the referring judge affirms that he must apply the challenged provision in the main proceedings (ex plurimis, judgments no. 94 of 2023, no. 237 of 2022 and no. 259 of 2021).

The referring court has held, in a non-implausible manner, that it cannot abstain from holding the trial proceedings by virtue of the provisions of Article 36, paragraph 1, letter g), of the Code of Criminal Procedure, which obliges to do so only if the judge "finds himself in one of the situations of incompatibility established by Articles 34 and 35 and by the laws on judicial organisation", in which, precisely, the one concerning the judge of the pre-trial hearing called to be also the trial judge is not included. Hence the relevance of the questions of constitutional legitimacy, aimed at introducing into Article 34, paragraph 2, of the Code of Criminal Procedure the further hypothesis of the judge of the pre-trial hearing called to be also the trial judge.

3.– Turning to the merits of the questions raised, it must first be noted that the pre-trial hearing - recently introduced in the proceedings before the court in single-judge composition by Article 32 of Legislative Decree no. 150 of 2022, on the model of the preliminary hearing - obliges the judge to a prior assessment of the necessity of holding the trial, in order to guarantee the correct exercise by the prosecuting authority of the exercise of the criminal action, thus acting as a "filter" to unjustified trials and, in any case, thus pursuing purposes of reduction and simplification.

To this end, the summons to trial, pursuant to Article 552 of the Code of Criminal Procedure, in addition to containing, inter alia, an indication of the judge competent for the pre-trial hearing, also prescribes that, if the conditions are met, the defendant, within the time limit referred to in Article 554-ter, paragraph 2, of the Code of Criminal Procedure, may submit the requests provided for in Articles 438, 444 and 464-bis of the same Code, or submit an application for obliteration. In fact, the defendant may request the alternative definition of the criminal proceedings with the request for a summary judgment, or for the application of the penalty pursuant to Article 444 of the Code of Criminal Procedure, or for suspension of the proceedings with probation, or may formulate an application for obliteration, on pain of forfeiture, before the judge of the pre-trial hearing pronounces a judgment of no grounds for proceeding.

The amended provision of Article 552 of the Code of Criminal Procedure also establishes, in letter g), that the summons must contain the notice that the file relating to the preliminary investigations is deposited in the registry of the judge and that the parties and their defenders have the right to view it and to take a copy of it. Indeed, Article 553 of the Code of Criminal Procedure provides that "[t]he public prosecutor shall form the file for the trial and transmit it to the judge, together with the public prosecutor's file and the summons immediately after notification".

The pre-trial hearing, as a chamber hearing with the necessary participation of the public prosecutor and the defendant's counsel (Article 554-bis, paragraph 1, of the Code of Criminal Procedure), is therefore outlined as an obligatory link between the preliminary investigations and the trial, with the attribution to the judge of the decision-making powers referred to in Articles 554-bis and 554-ter of the Code of Criminal Procedure.

In addition to verifying the regular constitution of the procedural relationship, Article 554-bis, paragraph 5, of the Code of Criminal Procedure provides that the judge "also ex officio, after hearing the parties, invites the public prosecutor to reformulate the charge and, if the same does not do so, declares, by order, the nullity of the charge and orders the return of the acts to the public prosecutor"; he also provides in the same sense "[in] order to allow the fact, the legal definition, the aggravating circumstances and those that may lead to the application of security measures, to be indicated in terms corresponding to what emerges from the acts" (paragraph 6 of the same article).

Once these verifications have been carried out, the provision of Article 554-ter of the Code of Criminal Procedure gives the pre-trial judge the task of ascertaining whether, on the basis of the acts transmitted pursuant to the aforementioned Article 553 of the Code of Criminal Procedure, there is a cause that extinguishes the crime or for which the criminal action should not have been initiated or should not have been continued, as well as whether it appears that the fact is not provided for by law as a crime or that the fact does not exist or that the defendant did not commit it or that the fact does not constitute a crime or that the defendant is not punishable for any cause. In this case, the pre-trial judge shall issue a judgment of no grounds for proceeding.

There is, then, a reference to several provisions that govern the preliminary hearing, as a model of a "filter" hearing, now also extended to the single-judge rite. Insofar as they are compatible, the provisions of Articles 424, paragraphs 2, 3 and 4, 425, paragraph 2, 426 and 427 of the Code of Criminal Procedure are indeed applicable.

In particular, for the purposes of the questions under consideration, Article 554-ter, paragraph 1, of the Code of Criminal Procedure, which establishes that "[t]he judge shall also pronounce a judgment of no grounds for proceeding when the elements acquired do not allow a reasonable forecast of conviction", thus providing for the same rule, introduced in Article 425, paragraph 3, of the Code of Criminal Procedure by the same reforming legislator with Article 23, paragraph 1, letter l), of Legislative Decree no. 150 of 2022, replacing the rule that allowed the pronouncement of an acquittal "when the elements acquired are insufficient, contradictory or in any case not suitable to support the accusation in court".

This is the same rule provided for in Article 408 of the Code of Criminal Procedure, in the wording amended by Article 22, paragraph 1, letter e), number 1), of Legislative Decree no. 150 of 2022, for the application for dismissal.

Therefore, the judge of the pre-trial hearing, if he believes that the elements acquired allow "a reasonable forecast of conviction" and that the conditions for acquittal do not exist, sets the date for the continuation of the trial for the trial hearing before a "different judge" and orders the return of the public prosecutor's file (Article 554-ter, paragraph 3, of the Code of Criminal Procedure).

3.1.– The referring court correctly notes that the new procedural norm, contained in paragraph 3 of Article 554-ter of the Code of Criminal Procedure, sets the rule according to which the trial judge must be "different" with respect to the judge of the pre-trial hearing; a rule that, according to the literal meaning of the same, is not that of the incompatibility referred to in Article 34 of the Code of Criminal Procedure, the wording of which has remained unchanged. The catalogue of prejudicial situations, which determine the incompatibility of the judge to participate in the trial, has not been enriched by the case referred to in paragraph 3 of Article 554-ter of the Code of Criminal Procedure when this provision was introduced in the Code of Procedure.

It is worth recalling that, on the subject of the incompatibility of the criminal judge, the consolidated case law of the Court of Cassation is in the sense of considering that Article 34 of the Code of Criminal Procedure is a provision of an exceptional nature and, as such, not susceptible to analogical or extensive interpretation (ex multis, Court of Cassation, fifth criminal section, judgments 18 October 2022-3 February 2023, no. 4813 and no. 10328 of 2021; third criminal section, judgment 5 February-7 June 2019, no. 25313).

4.– Having premised this, the questions of constitutional legitimacy, raised with reference to Articles 24, second paragraph, and 111, second paragraph, of the Constitution, are well-founded.

4.1.– According to the consolidated orientation of this Court, recently reiterated by Judgment no. 93 of 2024, the discipline on the incompatibility of the judge finds its ratio in the safeguarding of the values of impartiality and fairness of the judge, protected by Article 111, second paragraph, of the Constitution, aiming to exclude that he can pronounce on the accusation when he is conditioned by the "force of prevention", i.e. "by the tendency to confirm a decision or to maintain an attitude already taken, deriving from assessments that he has previously been called to carry out regarding the same res iudicanda" and to ensure "that the functions of judging are assigned to a 'third' subject, free of his own interests that may veil the rigorous application of the law and also free from preconceived convictions regarding the matter on which he must pronounce" (Judgment no. 172 of 2023; in the same sense, judgments no. 64, no. 16 and no. 7 of 2022 and previous judgments cited therein).

This Court, in the judgment indicated, has also reiterated that "in order for the endoprocedural incompatibility of the judge to be deemed to exist, the following conditions must be met: a) the pre-existing assessments must fall on the same res iudicanda; b) the judge must have been called to make an assessment (and not have had mere knowledge) of acts previously carried out, instrumental to the adoption of a decision; c) the latter must be of a non-'formal', but 'content' nature, i.e. entail assessments on the merits of the accusatory hypothesis; d) the previous assessment must be placed in a different phase of the proceedings (judgments no. 172 and no. 91 of 2023 and no. 64 of 2022)".

It was also pointed out that "[w]here it is affirmed that the judge cannot express himself more than once on the same res iudicanda, by 'judgment' is meant any process which, on the basis of an examination of the evidence, leads to a decision on the merits: the trial proceedings, but also the summary judgment, the application of the penalty at the request of the parties, the preliminary hearing and sometimes the incident of execution, as well as the penal decree of conviction (most recently, Judgment no. 16 of 2022)" (again Judgment no. 93 of 2024).

With Judgment no. 91 of 2023, this Court then recognised the existence of an integrated system aimed at achieving the necessary protection of the principle of due process, referred to in Article 111 of the Constitution, in all cases in which there is a risk that the impartiality of the judge may be compromised.

In this regard, it affirmed that "the principle of the third and impartial judge, which in the past the case-law of this Court had derived from other parameters (Articles 3, 25, 101 and 108 of the Constitution), has assumed autonomous relevance with the constitutional law no. 2 of 23 November 1999 (Insertion of the principles of due process in Article 111 of the Constitution), so as to constitute an essential and necessary characteristic of the exercise of any jurisdiction".

It was therefore specified that "[t]he process can only be said to be 'fair' insofar as the impartiality of the judge is guaranteed"; and it was underlined that impartiality "is only one aspect of that characteristic of 'third-party' status that essentially connotes both the jurisdictional function and the position of the judge, distinguishing it from that of other public subjects, and conditions the effectiveness of the right of action and defence in court".

The rule of impartiality of the judge is also contained in the European Charters, as Article 6, paragraph 1, ECHR establishes that everyone is entitled to have his case examined fairly, publicly and within a reasonable time, by an independent and impartial tribunal; and Article 47 of the Charter of Fundamental Rights of the European Union guarantees the right to the examination of the case by a judge "independent and impartial, pre-established by law".

4.2.– Therefore, in order to safeguard the guarantee of the impartiality of the judge (Article 111, second paragraph, of the Constitution), which is a prerequisite for the effectiveness of judicial protection (Article 24, second paragraph, of the Constitution), the Code of Procedure provides (in Articles 34 and 35 of the Code of Criminal Procedure) a catalogue of abstractly prejudicial situations - thus, regardless of the concrete possible prevention of the judge - which in principle involve his incompatibility and which,