JUDGMENT NO. 143

YEAR 2026

ITALIAN REPUBLIC

IN THE NAME OF THE ITALIAN PEOPLE

THE CONSTITUTIONAL COURT

composed of:

President: Giovanni AMOROSO;

Judges: 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, Massimo LUCIANI, Maria Alessandra SANDULLI, Roberto Nicola CASSINELLI, Francesco Saverio MARINI,
has pronounced the following

JUDGMENT

in proceedings concerning the constitutionality of Articles 2, 4, 11, and 13 of Law No. 237 of December 20, 2012 (Provisions for alignment with the provisions of the Statute establishing the International Criminal Court), brought by the Court of Appeal of Rome, Fourth Criminal Section, in the criminal proceedings against O.A.H. N., by order of October 30, 2025, registered under No. 227 of the Register of Orders 2025 and published in the Official Journal of the Republic No. 48, 1st Special Series, of the year 2025, the hearing for which was set for the chambers session of May 18, 2026.

Having regard to the intervention briefs filed by L.M. B.R. and the President of the Council of Ministers;

having heard in chambers on May 19, 2026, the Judge Rapporteur Giovanni Pitruzzella;

deliberated in chambers on May 19, 2026.

Ritenuto in fatto

1.– By order dated October 30, 2025, registered under No. 227 of the Register of Orders 2025, the Court of Appeal of Rome, Fourth Criminal Section, raised questions as to the constitutional legitimacy of Articles 2, 4, 11, and 13 of Law No. 237 of December 20, 2012 (Provisions for alignment with the provisions of the Statute establishing the International Criminal Court), with reference to Articles 11, 101, second paragraph, and 117, first paragraph, of the Constitution, the latter in relation to the Statute establishing the International Criminal Court, with Final Act and annexes (hereinafter also the "Rome Statute”), adopted by the United Nations Diplomatic Conference in Rome on July 17, 1998, ratified by Law No. 232 of July 12, 1999 (Ratification and implementation of the Statute establishing the International Criminal Court), and to Council Decision 2011/168/CFSP of March 21, 2011, on the International Criminal Court and repealing Common Position 2003/444/CFSP.

The provisions under examination govern, respectively, the powers of the Minister of Justice regarding cooperation between the Italian State and the International Criminal Court (Article 2), the modalities for executing judicial cooperation (Article 4), the application of precautionary measures for the purpose of surrender (Article 11), and the procedure established for such surrender (Article 13). They are challenged insofar as they "do not provide that the Prosecutor General must formulate his or her requests and the Court of Appeal of Rome must rule upon them even following the direct transmission of such requests for cooperation by the International Criminal Court”, thereby notifying the Minister of Justice thereof.

1.1.– The referring judge states that it is required to rule on the pending proceedings concerning the requests for cooperation from the International Criminal Court, having ordered, on January 21, 2025, the release and repatriation to Libya of O.A.H. N., who had been arrested on January 19, 2025, in view of the failure of the Minister of Justice to transmit the case files.

Regarding relevance, the referring judge points out that the motion for a declaration of no need to adjudicate (non luogo a provvedere), formulated by the Prosecutor General, cannot be granted, since the absence of the requested person does not prevent the remitting court from deciding on the request for cooperation. Under the challenged provisions, it is the failure to transmit the files that possesses a preclusive effect.

1.2.– These provisions, by conditioning "the transmission of cooperation requests from the ICC upon a discretionary and procedurally unchallengeable choice by the Minister of Justice, even when there exists a conventional international obligation to cooperate with the ICC”, allegedly conflict, firstly, with Article 11 of the Constitution, which enshrines the obligation to cooperate with institutions designed to ensure peace and justice among Nations.

Article 117, first paragraph, of the Constitution would likewise be violated, in relation to the Rome Statute and Decision 2011/168/CFSP, as the obligation to cooperate with the International Criminal Court would be frustrated and the repression of war crimes and crimes against humanity thereby compromised.

Finally, the challenged legislation, by conferring significance upon an unchallengeable political evaluation by the Minister of Justice, allegedly infringes the principle of the subjection of the judge to the law alone (Article 101, second paragraph, of the Constitution).

2.– The President of the Council of Ministers intervened in the proceedings, represented and defended by the State Attorney General’s Office, and requested that the questions of constitutional legitimacy raised by the Court of Appeal of Rome be declared inadmissible or, in any event, unfounded.

2.1.– As a preliminary matter, the State’s defense excepted the lack of relevance of the questions, arguing that the challenged provisions had already been applied in the main proceedings and that the judge had exhausted his decision-making power.

Also preliminarily, the State Attorney General’s Office argued that the questions were inadmissible on the grounds that they exceed the boundaries of constitutional review and shift the focus to the distinct profile of compliance with the obligations arising from the statute establishing the International Criminal Court.

2.2.– On the merits, the questions would in any event be unfounded.

It cannot be deduced from the statute establishing the International Criminal Court that there is an unconditional obligation to immediately transmit every request from said Court—an obligation that would transform the Minister of Justice into a "mere clerk for the transmission and sorting of requests between domestic judicial offices”, devoid of any margin of discretion.

3.– By a brief filed on December 9, 2025, L.M. B.R. intervened in the proceedings and requested an early chambers hearing on the admissibility of the intervention, asserting the holding of a qualified interest connected to the subject matter of the main proceedings.

4.– By Order No. 79 of 2026, this Court declared the intervention made by L.M. B.R. inadmissible.

Considerato in diritto

5.– By the order indicated in the heading (Reg. Ord. No. 227 of 2025), the Court of Appeal of Rome, Fourth Criminal Section, challenges the constitutional legitimacy of Articles 2, 4, 11, and 13 of Law No. 237 of 2012, with reference to Articles 11, 101, second paragraph, and 117, first paragraph, of the Constitution, the latter in relation to the Rome Statute and Decision 2011/168/CFSP.

In the referring court's view, the challenged provisions do not permit the Prosecutor General at the Court of Appeal of Rome, in the event that the Minister of Justice has failed to transmit the case files, to fulfill the request for cooperation from the International Criminal Court and to request the necessary measures against the requested person while subsequently informing the said Minister. Such a preclusion does not cease to operate even if the request for cooperation has otherwise reached the Italian judicial authority, as occurred in the present case.

In this manner, "a discretionary and procedurally unchallengeable choice by the Minister of Justice” impacts the execution of cooperation requests, thereby frustrating the obligation to cooperate with the International Criminal Court.

5.1.– The challenged provisions would violate, first of all, Article 11 of the Constitution, as they stand in antithesis "to the consent given through Italy’s ratification of the Statute, which contains the limitations of sovereignty necessary for a legal order that ensures peace and justice among Nations”. This would violate "the State’s obligation to promote and favor the ICC, which is the international organization aimed at such purpose, having been established precisely to punish war crimes and crimes against humanity in order to ensure peace and justice among Nations”.

5.2.– Secondly, the mechanism outlined by Law No. 237 of 2012 would conflict with Article 117, first paragraph, of the Constitution and with "the State’s obligation to exercise its legislative power in compliance with the constraints deriving from the EU legal order and international obligations”.

Cooperation with the International Criminal Court would be subjected to more burdensome conditions than those characterizing the European arrest warrant, and there would be no "procedural remedy for the situation resulting from the failure to transmit the case files, with the subsequent impossibility for the Prosecutor General to formulate requests on the merits and for the Court of Appeal to adjudicate them in fulfillment of the aforementioned international obligations invoked by the Constitution”.

The challenged provisions would therefore conflict with the obligation of Member States "to cooperate fully with the Court in its investigation and prosecution of crimes within its jurisdiction”, in accordance with the requirements prescribed by the Rome Statute and Decision 2011/168/CFSP, which establishes "a ‘specific obligation’ for the European Union Member State”.

The referring judge attributes to this obligation a foundation that is both conventional and "systemic”, qualifying it as a "necessary condition for the effectiveness of international criminal jurisdiction in repressing the most serious crimes of all, namely war crimes and crimes against humanity”.

5.3.– Finally, the challenged legislation would infringe the "principle of the subjection of the judge to the law alone” (Article 101, second paragraph, of the Constitution), since it subjects the judge "to a discretionary choice of a political nature”, thereby "inhibiting his or her judicial activity in fulfilling the international obligations provided for by the Rome Statute”. This would result in a "procedural deadlock” that cannot be resolved through appropriate remedies, such as the "possibility to proceed even in cases of direct transmission by notifying the Minister of Justice”.

6.– The State Attorney General’s Office has excepted the inadmissibility of the questions "due to the lack of a nexus of prejudiciality between the main proceedings and the incidental proceedings”.

The provisions suspected by the referring judge of constitutional illegitimacy had allegedly already been applied in the main proceedings, and the Court of Appeal of Rome, by ruling on January 21, 2025, both on the validation of the arrest and on the status detentionis of the requested person, had exhausted "[t]he duty to act and the correlated decision-making power”.

7.– This exception must be dismissed.

7.1.– The doubt of conflict with the Constitution is relevant when it concerns a provision that the judge, for the purpose of deciding the case, is required to apply (Judgment No. 55 of 2026, point 3.3.).

It is essential that the challenged provision affects the argumentative path of the decision, even if a ruling of acceptance does not provide a concrete benefit to the parties (Judgment No. 122 of 2024, point 2.1. of the Considerations in Law).

This Court exercises an external review over the arguments set forth by the referring judge regarding relevance, which stops at the threshold of non-implausibility concerning the applicability of the provision in the main proceedings and the impossibility of resolving the case without solving the raised question (among many, Judgments No. 72 of 2026, point 8.1.2., and No. 40 of 2026).

7.2.– In the present case, the reasoning provided in support of relevance passes the external review entrusted to this Court, as confirmed by an examination of the salient junctures of the main proceedings.

The referring judge states that he received the report of the provisional arrest of O.A.H. N. along with a concurrent request for search and seizure of the corpus delicti and items pertaining to the crime, as well as the arrest warrant issued by the International Criminal Court, communicated on January 19, 2025, by the International Police Cooperation Service, "which performs the functions of the INTERPOL National Central Bureau”.

The documents were concurrently received by the Prosecutor General at the Court of Appeal of Rome "through the Flying Squad (Squadra mobile) and the DIGOS at the Police Headquarters (Questura) of Turin, to which they had been forwarded by the International Police Cooperation Service” and were transmitted to the Minister of Justice through diplomatic channels.

By order dated January 21, 2025, the Court of Appeal of Rome, after excluding the applicability of the provisions on arrest by the judicial police (Article 716 of the Code of Criminal Procedure), ordered the release of O.A.H. N. and the restitution of the seized assets, granting the requests of defense counsel and the application of the Prosecutor General himself, which was motivated by the absence of ritual transmission of the documents by the Minister of Justice.

Further tasks were subsequently carried out in the proceedings initiated by the International Criminal Court’s request for cooperation.

In particular, on January 27, 2025, the appellate judges ordered the translation of the arrest warrant and acquired the International Criminal Court’s decision of January 24, 2025, which lifted the confidentiality of the warrant and amended certain clerical errors.

On February 11, 2025, the Court of Appeal of Rome transmitted copies of the documents, accompanied by their translation, to the Prosecutor General to enable him to express his assessments.

By decree dated July 25, 2025, the remitting court adjourned the proceedings to the hearing of September 26, 2025, for the purpose of determining "the pending proceedings relating to the requests for cooperation from the ICC”.

At the hearing thus scheduled, the Prosecutor General requested that the requests themselves be declared "no longer in need of adjudication”, reiterating the preclusive effect of the failure to transmit the documents by the Minister of Justice and also pointing out the departure of O.A.H. N. from Italian territory.

The defense of O.A.H. N. joined these requests, reiterating them in the written brief authorized by the proceeding authority.

The representative of the International Criminal Court, for his part, confirmed "his request for the arrest and surrender of the accused”.

The referring judge, after analyzing these procedural antecedents, observes that "the absence of the accused from the territory of the State” does not preclude a decision on the merits of the surrender. Consequently, the request for a declaration of no need to adjudicate, formulated by the General Prosecutor’s Office on this basis, cannot be granted, and it is necessary to apply the challenged provisions, which are unequivocal in qualifying the role of the Minister of Justice as essential for the subsequent activities of the General Prosecutor’s Office and of the proceeding Court itself.

7.3.– The analytical considerations of the referring court clear the field of the preliminary exception concerning the lack of relevance of the questions.

The referring judge is called upon to determine the proceedings concerning the request for cooperation from the International Criminal Court, also in light of subsequent acts and the evolution of the procedural events.

Nor is there any sign of that "regression of proceedings” feared by the State Attorney General’s Office. The issue here is not the phase already concluded by the order that deemed inapplicable the provisions on arrest on the initiative of the judicial police.

In ruling out the exhaustion of the potestas iudicandi and in supporting the necessity to apply the challenged provisions, the Court of Appeal of Rome provided a substantiated and non-implausible reasoning linked to the most recent developments of the procedural dialectic.

Following the order of January 21, 2025, which did not validate the provisional arrest of the requested person and applied no precautionary measures, the Court of Appeal of Rome ordered the acquisition and translation of the arrest warrant—meanwhile amended by the International Criminal Court—and invited the parties to take a position on the issues that emerged after the precautionary phase.

In this perspective, it is indicative that the representative of the International Criminal Court, at the hearing of September 26, 2025, even after the conclusion of the precautionary incident, reiterated the request to grant the application for cooperation, manifesting an interest in a ruling on the matter.

The International Criminal Court itself, in the procedure initiated pursuant to Article 87, paragraph 7, of the Statute, highlighted the necessity to evaluate the developments of internal proceedings still pending.

In a proceeding that at this stage lacks predefined schedules and consolidated application, the need to weigh subsequent developments and the requests formulated in this regard by the parties and by the representative of the International Criminal Court excludes the implausibility of the reasoning concerning the persistence of the potestas iudicandi, pursuant to the external review entrusted to this Court.

Once the necessity to provide an exhaustive response to the request for cooperation is established, even after the outcome of the release of the requested person, the challenged provisions play a crucial role in the argumentative path that the remitting court is called upon to perform.

Nor does the circumstance that the surrender of the requested person cannot be executed at present contradict the applicability of these provisions and their impact on the logical path of the decision entrusted to the Court of Appeal of Rome.

8.– The State Attorney General’s Office also deems the questions inadmissible on a distinct ground.

The referring judge, far from denouncing a conflict between ordinary law and constitutional precepts, allegedly questions this Court regarding the conduct of the actors variously involved in the affair, urging it to exceed the verification of the normative act’s conformity with the Constitution.

8.1.– Nor can this exception be granted.

8.2.– The core of the challenges lies in the discrepancy between the implementing legislation and the cooperation obligations enshrined in the Statute establishing the International Criminal Court.

A different conclusion is not warranted by the fact that the referring judge, in order to frame the context in which the raised questions are placed, details the concrete events.

The examination nonetheless concerns the constitutional legitimacy of the legislation in force, without overlapping with the peculiar and more articulated evaluations regarding state responsibility that the International Criminal Court is called upon to carry out.

Consequently, the conflation of levels alluded to in the intervention brief must be ruled out.

Nor is it helpful to object that the proceedings upon which the constitutional legitimacy incident is grafted have also given rise to the International Criminal Court’s procedure, with the outcomes that both the referring judge and the President of the Council of Ministers do not fail to recount: the Pre-Trial Chamber of the International Criminal Court, by decision of October 17, 2025, ascertained non-compliance with the obligations of the Rome Statute.

Following the raising of the questions of constitutional legitimacy, the same Pre-Trial Chamber of the International Criminal Court, by decision of January 26, 2026, referred the Italian State to the Assembly of States Parties to the Rome Treaty, an Assembly scheduled to take place between December 7 and 17, 2026.

The common genesis of the constitutional legitimacy proceedings and the proceedings concerning the Italian State’s default does not eliminate the diversity and autonomy of the evaluations incumbent upon each Court.

Nor can the connection between the two proceedings dispense this Court from the task of scrutinizing the compatibility of domestic legislation with the Constitution, thereby contributing, in its own sphere, to safeguarding the adequacy of domestic procedures and respect for the foundational principles of the constitutional legal order.

9.– The reasoning concerning the non-manifestly unfounded nature of the questions also passes the admissibility review.

The reasoning supporting the challenges is extensive and is not exhausted by a generic and indiscriminate reference to the obligation to cooperate.

The referral order focuses on the source of the obligation and the precepts that define its scope, and is not vitiated by the shortcomings pointed out by the State’s defense.

10.– Nor are there obstacles to examining the merits regarding the duty to adequately explore a constitutionally oriented interpretation of current legislation.

10.1.– The referring judge, in harmony with the literal text and the guiding principles of Law No. 237 of 2012, attributes an exclusive role to the Minister of Justice in cooperation with the International Criminal Court, as the fundamental driving organ of the procedure in question.

Indeed, national legislation identifies a single point of contact—the Minister of Justice—since he is endowed with the multiple competencies that the fulfillment of such tasks presupposes.

The implementing legislation thus aims to make cooperation with the International Criminal Court smoother and swifter, as it presents irreducible peculiarities and prominent novelties compared to previously tested forms of international cooperation (extradition and the European arrest warrant).

It is therefore the Minister of Justice who implements cooperation, which is expressed, first and foremost, in the transmission of documents to the Prosecutor General at the Court of Appeal of Rome, a cornerstone of the procedure.

In the design of Law No. 237 of 2012, the Prosecutor General receives the documents from the Minister of Justice and thereby formulates the relevant requests to the Court of Appeal of Rome.

10.2.– According to the interpretive option favored by the remitting court, a different reading is not viable—one that would bypass the Minister of Justice and, to remedy his inactivity, configure a surrogate intervention by the judicial authority devoid of the indispensable tools of coordination with governmental authority.

In this regard, a comparison with other provisions of Law No. 237 of 2012 is also helpful, such as Article 8, which concerns requests by the Italian judicial authority to the International Criminal Court: the Prosecutor General at the Court of Appeal of Rome, should the inactivity of the Minister of Justice persist, may, under certain conditions, transmit such requests directly to the International Criminal Court, informing the Minister thereof. In this case, the legislature takes care to overcome a potential stalemate by expressly indicating the solution that balances opposing interests.

Such a solution is, by contrast, absent in the challenged legislation.

10.3.– The conduct of those who, in various capacities, examined the request for cooperation from the International Criminal Court conformed to the operational paradigm outlined by the letter and systematic interrelations of the legislation in force.

10.4.– The referring judge, having unequivocally excluded the feasibility of a satisfying interpretive adjustment, therefore questioned this Court regarding the compatibility of domestic legislation with the obligations enshrined in the Rome Statute.

Such a source, while binding the State, does not establish a supranational legal order and does not therefore permit the assertion of the competence of national judges to apply the norms of that order while simultaneously failing to apply domestic norms that may be in conflict (Judgment No. 348 of 2007, point 3.3. of the Considerations in Law, regarding the European Convention on Human Rights).

Therefore, "it is for the ordinary judge to interpret domestic law in a manner conforming to the international provision, within the limits permitted by the texts of the norms. Should this not be possible, or should the judge doubt the compatibility of the domestic norm with the ‘interposed’ conventional provision, he must refer the relative question of constitutional legitimacy to this Court with respect to the parameter of Article 117, first paragraph” of the Constitution (Judgment No. 349 of 2007, point 6.2. of the Considerations in Law).

10.5.– The referring judge did not shirk this task.

Judicial review of constitutionality makes it possible to restore a univocal modus operandi in a matter that demands uniform and predictable rules and cannot tolerate differing interpretations and practices, which generate application uncertainty that fundamentally undermines the requirements of cooperation.

11.– The questions can therefore be examined on the merits, and those concerning Articles 2 and 4 of Law No. 237 of 2012 have logical priority, as they pertain to the role of the Minister of Justice and the modalities for executing judicial cooperation from a broader perspective destined to reverberate on the detailed rules for applying precautionary measures for the purpose of surrender (Article 11) and the surrender procedure (Article 13).

12.– They are well-founded, on the terms and for the reasons set out below, with reference to Article 11 of the Constitution—which expresses the international openness of the Italian Constitution—and Article 117, first paragraph, of the Constitution, the latter in relation to the Rome Statute.

13.– The International Criminal Court, established by the Rome Statute, has jurisdiction over the "most serious crimes of concern to the international community as a whole”, which are a matter of concern for the entire international community: genocide, crimes against humanity, war crimes, and now also the crime of aggression—crimina iuris gentium which, even when perpetrated by States, violate "universal values such as respect for human dignity and human rights” (Judgment No. 159 of 2023, point 9 of the Considerations in Law).

The Court itself has jurisdiction over crimes committed on the territory of States Parties or by nationals of such States and is an integral part of the international order safeguarded by Article 11 of the Constitution, which does not aim to preserve mere balance in power relations, but has as its cornerstone the promotion of peace and justice among Nations, thereby contributing to the protection of the inviolable rights of the individual in a dimension that now transcends that of individual sovereign States.

The questions currently before this Court lie at the crossroads between international rule of law, inseparably connected to the protection of democracy and human rights, and the safeguarding of the core essence of constitutional principles, in a perspective that requires an integrated approach and a convergence of various guarantees.

14.– The model shaped by the Rome Statute rests on the cooperation of States, which constitute the "arms” and "legs” of this peculiar jurisdiction.

Without cooperation, a system that does not contemplate trial in absentia (Article 63, paragraph 1, of the Statute) cannot operate and therefore presupposes, as an inescapable step, the surrender of the requested person.

The obligation to cooperate finds its deepest reasons in the very process that led to the establishment of the International Criminal Court, configuring it as a permanent jurisdiction, complementary to that of States Parties, and freeing it from the contingencies that from time to time determined the creation of ad hoc tribunals—jurisdictions limited in time and space, albeit in a position of supremacy over national jurisdictions.

15.– This reveals the "particular character” of the Court (Article 91, paragraph 2, letter c, of the Statute), which finds plastic expression also in the innovative model of cooperation introduced by the treaty: no longer horizontal cooperation between sovereign States, which characterizes extradition and other forms of mutual assistance, but a cooperation that is tendentially vertical, albeit tempered, and not of a hierarchical type.

Even the language of the Rome Statute reflects this novelty, as transpires from the use of the term "surrender”, intended to mark the emancipation of cooperation from the horizontal logic coessential to extradition.

16.– Article 86 of the Rome Statute, with incisive formulation, requires States to "cooperate fully with the Court in its investigation and prosecution of crimes within its jurisdiction”.

This general enunciation is then enriched and reinforced in its normative content by other provisions.

The subsequent Article 87 regulates the modalities for transmitting requests for cooperation (paragraphs 1 and 2) and, should a State Party fail to comply with a request for cooperation and thereby prevent the International Criminal Court from exercising its functions and powers, empowers the Court itself to take note thereof and refer "the matter to the Assembly of States Parties or, where the Security Council referred the matter to the Court, to the Security Council” (paragraph 7).

States must undertake to "ensure that there are procedures available under their national law for all of the forms of cooperation which are set out under this Part” (Article 88).

The obligation to cooperate permeates the entire regulation of the surrender of the requested person and requires the expenditure of every reasonable effort also in light of the general canon of good faith and the prohibition against invoking provisions of domestic law to justify failure to execute a treaty (Articles 26 and 27 of the Vienna Convention on the Law of Treaties, ratified by Law No. 112 of February 12, 1974, entitled "Ratification and execution of the convention on the law of treaties, with annex, adopted in Vienna on May 23, 1969”).

Article 59 of the Statute prescribes that a State Party that has received a request for provisional arrest or for arrest and surrender shall "take immediate steps to arrest the person in question in accordance with its laws and the provisions of Part 9” (paragraph 1). In such a case, the competent judicial authority of the custodial State shall determine whether the warrant applies to the person, whether the person has been arrested in accordance with the proper process, and whether the person’s rights have been respected (paragraph 2).

Article 89, paragraph 1, provides that "[s]tates Parties shall, in accordance with the provisions of this Part and the procedures under their national law, comply with requests for arrest and surrender”, procedures that the Statute conceives as instrumental to the objective of the broadest and most fruitful collaboration.

As regards requests for arrest and surrender, Article 91, paragraph 2, letter c), provides that "the requirements for request under the requested State shall not be more burdensome than as regards extradition requests and should, if possible, be less burdensome, taking into account the special status of the Court”.

Finally, Article 97 of the Statute binds States Parties to consult without delay with the International Criminal Court where difficulties arise that are likely to impede or prevent the execution of requests for cooperation.

17.– Loyal cooperation is the qualifying trait of the system prefigured by the Rome Statute.

Loyal cooperation inspires relations between the State Party and the International Criminal Court at the highest level and is also manifested on the domestic side of relations between the governmental authority, designated to receive requests from the International Criminal Court, and the judicial authority tasked with evaluating them.

18.– The provisions dictated by Articles 2 and 4 of Law No. 237 of 2012 are out of tune with this model.

Pursuant to Article 2, paragraph 1, of the aforementioned law, the Minister of Justice has the exclusive task of handling relations with the International Criminal Court, receiving its requests, and giving follow-up to them, coordinating his action, where necessary, with other interested ministers, institutions, or state bodies.

In the event of competing requests for cooperation originating from the International Criminal Court and one or more foreign States, it is the Minister’s task to establish the order of precedence (Article 2, paragraph 2).

The Minister of Justice is also entrusted with the task of presenting documents and requests to the Court, ensuring the confidentiality of cooperation requests and their rapid execution (Article 2, paragraph 3).

Article 4, paragraph 1, of Law No. 237 of 2012 establishes that every request for cooperation must be transmitted by the Minister of Justice to the Prosecutor General at the Court of Appeal of Rome, who shall personally carry out the requested activities or assist the Prosecutor of the International Criminal Court in carrying out activities on Italian territory.

When the request for cooperation concerns investigative activities or the acquisition of evidence, the Prosecutor General shall ask the Court of Appeal of Rome to execute the request, possibly delegating the implementation to a member of his office or to the judge for preliminary investigations of the place where the acts are to be performed (Article 4, paragraphs 2 and 3).

18.1.– The complaints of the referring court hit the mark in denouncing the attribution to the Minister of Justice of a role devoid of any parameter suitable for directing and circumscribing its exercise, including on a temporal plane, according to qualified canons of immediacy.

The challenges of the referring judge focus precisely on this aspect of the unchallengeable nature of the power attributed to the Minister.

18.2.– The law, while obliging the Minister to execute requests without delay, does not avert the risk of prolonged inactivity, generating uncertainties that jeopardize cooperation itself with the International Criminal Court, and does not place the modus agendi of the Minister within the channel of a procedural sequence in which times are strictly predetermined and the reasons for any refusal must be expressed in equally immediate terms.

Any procedural deadlock that a mechanism thus structured may determine cannot be ascribed to the category of mere factual inconveniences, but represents an intrinsic flaw of the regulatory framework and fundamentally undermines the adequacy of domestic procedures in a sphere—that of the repression of the most serious crimes—which tolerates neither slowdowns or delays, even if motivated by investigative or political requirements, nor tacit positions that are thereby shielded from any control, nor, a fortiori, arbitrary delays.

19.– It is therefore necessary to ensure a system marked by certain and rigorous stages and rules of transparency, overcoming the lack of directive criteria and the consequent unchallengeability that constitute the core of the referring court’s challenges.

19.1.– This flaw must be remedied in an effective manner, without regard to the particular hypothesis in which documents reach the judicial authority aliunde. Cooperation is frustrated even more evidently when the Minister fails to forward the documents and the judicial authority possesses no such documents through other channels either.

19.2.– Nor can the censured incongruities be remedied in the terms envisaged by the referring judge, who hopes for the attribution, as an extrema ratio, of a power of direct intervention by the judicial authority aimed at making up for the Minister’s inertia and counterbalanced by subsequent communication of the cooperation request.

Indeed, a system devoid of any instrument of coordination and liaison between governmental authority and judicial authority—which would be legitimated to intervene based on the accidental and imponderable fact of the prior receipt of requests from the International Criminal Court, according to uncontrollable and uncertain times—would conflict with the very requirements of cooperation valued by the referring court.

20.– On the other hand, the obligation to cooperate must be harmonized with the protection of preeminent constitutional principles that the Republic is bound to safeguard in their intangible core.

20.1.– The Rome Statute itself, with the closing rule on consultations with the International Criminal Court (Article 97), prefigures exceptional situations that cannot be predetermined in abstract terms, in which the request for cooperation may encounter difficulties and obstacles related, inter alia, to insufficient information, the unlocatability of the requested person, or the risk of violating conventional obligations toward another State.

These cases, notwithstanding the breadth of the text, must necessarily be interpreted with rigor so as not to debilitate that mutual trust upon which cooperation with the International Criminal Court is founded.

In this regard, inviolable principles linked to the protection of fundamental human rights and the constitutional identity of the Republic (Article 11 of the Constitution) come into play first and foremost.

These are principles that cannot be sacrificed and that the variegated range of situations determined by the complexity of the international context can concretely compromise, imposing explicit choices anchored to verifiable parameters capable of orienting and circumscribing them.

20.2.– In this horizon, the action of the Minister of Justice cannot be legibus solutus, but must be linked to binding procedural and substantive rules and translated into explicit and controllable choices, according to the fundamental rule of the rule of law, which requires even broadly discretionary political choices to conform to the canons of legality predetermined by the legal order (Judgment No. 81 of 2012, point 4.2. of the Considerations in Law).

20.3.– The Minister's obligation to immediately execute requests from the International Criminal Court must be matched by the obligation to state, with equal immediacy, any reasons for refusal linked to the occurrence of exceptional hypotheses.

20.4.– Moreover, such evaluations are justiciable, including through a conflict of attribution between jurisdictional power and executive power, with the possibility of activating the precautionary powers belonging to this Court in the relative proceedings.

20.5.– In this way, the guarantees provided by the Constitution cooperate in making international law itself effective, along harmonic and complementary lines.

21.– Therefore, the constitutional illegitimacy of Articles 2 and 4 of Law No. 237 of 2012 must be declared, to the extent that they do not provide that the Minister of Justice must immediately transmit requests for cooperation from the International Criminal Court to the Prosecutor General at the Court of Appeal of Rome, unless he communicates to the Court of Appeal itself a reasoned declaration not to proceed with such requests due to the need to safeguard preeminent constitutional principles.

22.– The questions raised with reference to Articles 101, second paragraph, and 117, first paragraph, of the Constitution—the latter in relation to Decision 2011/168/CFSP—are consequently absorbed.

23.– On the other hand, the questions concerning Articles 11 and 13 of Law No. 237 of 2012 are unfounded with reference to all the parameters invoked by the referring court.

23.1.– The Court of Appeal of Rome also challenges the provisions of Article 11 of Law No. 237 of 2012, which relates to the "surrender of a person against whom an arrest warrant has been issued pursuant to Article 58 of the Statute or a sentence of imprisonment” (paragraph 1).

In particular, pursuant to the aforementioned paragraph 1, the Prosecutor General at the Court of Appeal of Rome, upon receiving the documents, asks the same Court of Appeal "for the application of the measure of precautionary custody against the person whose surrender is requested”.

The challenges also concern the subsequent Article 13 of Law No. 237 of 2012, which, on the topic of the surrender procedure, requires the Prosecutor General to present his conclusions regarding surrender without delay (paragraph 1) and the Court of Appeal of Rome to decide "in the forms of Article 127 of the Code of Criminal Procedure, with the mandatory participation of defense counsel, where appropriate following the acquisition of the information and documentation referred to in Article 91, paragraph 2, subparagraph c), of the Statute” (paragraph 2).

23.2.– The surrender procedure, in the framework highlighted in its salient points, is limited to regulating the activities reserved to the Prosecutor General and the Court of Appeal, without in itself giving rise to any antinomy with the treaty obligation of cooperation.

Instead, the flaw denounced by the referring court resides solely in the rules that the legislature dictated in general terms, via Articles 2 and 4 of Law No. 237 of 2012, for the purpose of making cooperation operational and outlining a common context in which such cooperation is placed.

per estos motivi

THE CONSTITUTIONAL COURT

1) declares the constitutional illegitimacy of Articles 2 and 4 of Law No. 237 of December 20, 2012 (Provisions for alignment with the provisions of the Statute establishing the International Criminal Court), to the extent that they do not provide that the Minister of Justice must immediately transmit requests for cooperation from the International Criminal Court to the Prosecutor General at the Court of Appeal of Rome, unless he communicates to the Court of Appeal itself a reasoned declaration not to proceed with such requests due to the need to safeguard preeminent constitutional principles;

2) declares unfounded the questions as to the constitutional legitimacy of Articles 11 and 13 of Law No. 237 of 2012, raised—with reference to Articles 11, 101, second paragraph, and 117, first paragraph, of the Constitution, the latter in relation to the Statute establishing the International Criminal Court, with Final Act and annexes, adopted by the United Nations Diplomatic Conference in Rome on July 17, 1998, ratified by Law No. 232 of July 12, 1999 (Ratification and implementation of the Statute establishing the International Criminal Court), and to Council Decision 2011/168/CFSP of March 21, 2011, on the International Criminal Court and repealing Common Position 2003/444/CFSP—by the Court of Appeal of Rome, Fourth Criminal Section, through the order indicated in the heading.

Thus decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on May 19, 2026.

Signed:

Giovanni AMOROSO, President

Giovanni PITRUZZELLA, Rapporteur

Roberto MILANA, Director of the Registry

Filed in the Registry on July 23, 2026

 

The anonymized version conforms in text to the original