ORDER NO. 186
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
ORDER
in the proceedings concerning the constitutional legitimacy of Article 628, paragraphs one and two, of the Criminal Code, brought before the Court by the Ordinary Court of Modena, Criminal Division, sitting as a single judge, in the criminal proceedings against E. B., by order of 14 December 2023, and by the Preliminary Hearing Judge of the Ordinary Court of Bologna, in the criminal proceedings against S.A. P., by order of 31 January 2024, registered under numbers 28 and 55 of the Register of Orders 2024, and published in the Official Gazette of the Republic, numbers 11 and 15, first special series, of the year 2024.
Having considered the intervention of the President of the Council of Ministers;
having heard the reporting Judge, Stefano Petitti, at the deliberation session of 29 October 2024;
having deliberated at the deliberation session of 29 October 2024.
Considering that, by order of 14 December 2023, registered at no. 28 of the Register of Orders 2024, the Ordinary Court of Modena, Criminal Division, sitting as a single judge, raised a question of the constitutional legitimacy of Article 628, paragraphs one and two, of the Criminal Code, insofar as it does not provide that the penalty prescribed therein may be reduced by no more than one third when, due to the nature, type, means, methods or circumstances of the action, or due to the particular triviality of the damage or danger, the act is deemed minor;
that the referring court states that it must rule on a charge of improper robbery, consisting of the shoving of the owner of a shop by a subject who, having stolen two pieces of cheese from the shelves of the commercial establishment, then, with this violent action, secured possession of the goods and impunity;
that, in the opinion of the referring judge, the minimum custodial sentence established by the challenged provision for improper robbery is considerably harsh, so as to be unreasonable, both intrinsically and comparatively, when the specific act is minor, and also detrimental to the principles of individualization and rehabilitative purpose of the penalty, hence the need to mitigate its severity by introducing a mitigating circumstance with common effect for minor offenses, already decided by this Court in judgment no. 120 of 2023 for the crime of extortion;
that, by order of 31 January 2024, registered at no. 55 of the Register of Orders 2024, the Preliminary Hearing Judge of the Ordinary Court of Bologna raised a question of the constitutional legitimacy of Article 628, paragraph two, of the Criminal Code, with reference to the same parameters and with similar arguments;
that the referring court states that it must rule, under the abbreviated procedure, on the charge of improper robbery consisting of the theft of a bottle of wine from the shelves of a shop and the subsequent violent action against an employee of the establishment – a kick to the abdomen and an attempted blow to the head – carried out by the perpetrator to secure possession of the stolen item;
that the Preliminary Hearing Judge of the Court of Bologna also requests the addition of a mitigating circumstance with common effect for the minor nature of the act, extending the ratio decidendi of the aforementioned judgment no. 120 of 2023;
that, in the proceedings initiated by this second order, the President of the Council of Ministers intervened, represented and defended by the State Legal Office, who requested that the question be declared unfounded;
that, in the opinion of the intervening party, the penal treatment provided for by the challenged provision is neither unreasonable nor disproportionate, "as it aims to implement a form of general prevention with respect to conduct that generates particular social alarm"; moreover, there are already "provisions that allow the penalty to be adjusted to the seriousness of the specific act" in the legal system;
that, in the same proceedings, the Italian Union of Criminal Lawyers (UCPI) submitted a written opinion on 24 April 2024 as amicus curiae – admitted by presidential decree of 9 September 2024 – arguing in support of the referring court's objections.
Considering that, by the orders indicated above, the Court of Modena and the Preliminary Hearing Judge of the Court of Bologna raised questions of constitutional legitimacy, respectively, of Article 628, paragraphs one and two, of the Criminal Code, and of Article 628, paragraph two, of the Criminal Code, insofar as it does not provide that the penalty prescribed for the crime of improper robbery may be reduced by no more than one third when, due to the nature, type, means, methods or circumstances of the action, or due to the particular triviality of the damage or danger, the act is deemed minor;
that, in the opinion of the referring courts, this omission violates Articles 3 and 27, paragraphs one and three, of the Constitution, since, by not allowing the judge to moderate the severe statutory minimum of five years' imprisonment in relation to the concrete offensiveness of the crime, it places the penal treatment of improper robbery in contrast with the principles of reasonableness, individualization and rehabilitative purpose of the penalty;
that the proceedings are to be joined and decided with a single decision, since the orders for referral raise an identical question;
that, subsequent to these orders, this Court, by judgment no. 86 of 2024, declared the unconstitutionality of paragraph two of Article 628 of the Criminal Code, relating to improper robbery – and, consequently, the unconstitutionality of its paragraph one, relating to proper robbery – insofar as it does not provide that the penalty prescribed therein be reduced by no more than one third when, due to the nature, type, means, methods or circumstances of the action, or due to the particular triviality of the damage or danger, the act is deemed minor;
that this judgment extended to the crime of robbery – proper or improper – the ratio decidendi expressed by the judgment of this Court no. 120 of 2023 concerning the crime of extortion, inasmuch as "the typical description carried out by Article 628 of the Criminal Code highlights an objective latitude and a variety of material conduct no less wide than that of the crime of extortion, since, also in robbery, the violence or threat may be of modest scope and the utility pursued, or the damage caused, of minimal value", and because, moreover, "[f]or extortion as for robbery, the considerable increase in the statutory minimum – to a level that makes the benefit of conditional suspension of the sentence substantially inaccessible – has been implemented without introducing a "safety valve”, which allows the judge to mitigate the penalty when the concrete offensiveness of the crime does not justify such a severe punishment";
that the subsequent declaration of unconstitutionality of the challenged provision, in response to a question overlapping with the present one, renders the latter now without object, and therefore, according to constant jurisprudence, determines its manifest inadmissibility (most recently, among many, orders no. 24 and no. 11 of 2024, no. 213 and no. 86 of 2023).
Having considered Articles 26, second paragraph, of Law no. 87 of 11 March 1953, and 11, paragraph 1, of the Supplementary Rules for proceedings before the Constitutional Court.
For these reasons
THE CONSTITUTIONAL COURT
having joined the proceedings,
declares the manifest inadmissibility of the questions of constitutional legitimacy of Article 628, paragraphs one and two, of the Criminal Code, raised, with reference to Articles 3 and 27, paragraphs one and three, of the Constitution, by the Ordinary Court of Modena, Criminal Division, sitting as a single judge, and by the Preliminary Hearing Judge of the Ordinary Court of Bologna, by the orders indicated above.
So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 29 October 2024.
Signed:
Augusto Antonio BARBERA, President
Stefano PETITTI, Reporting Judge
Roberto MILANA, Director of the Registry
Filed with the Registry on 26 November 2024