Year

Judgement No. 183 of 2022

Giuliano Amato, President Silvana Sciarra, Author of the Judgment

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In this case the Court heard a referral order from a lower court questioning the constitutionality of Article 9(1) of Legislative Decree No 23/2015 regulating the compensation payable in the event of unlawful dismissal by small businesses and limiting the amount payable to between three and six months’ remuneration. The referring court argued that the inflexibility in quantifying the compensation, tied as it was mainly if not exclusively to the size of the workforce, infringed the principles of reasonableness and equality enshrined in Article 3 of the Constitution and the right to work protected by Articles 4 and 35 of the Constitution. In essence, it was alleged that the criterion failed to tailor the compensation to the specific circumstances of each case, contrary to what the Court had held in its previous judgments Nos 194/2018 and 150/2020 striking down a compensation calculation mechanism anchored to the rigid and uniform criterion of length of service. The Court found that there was indeed a violation of the Constitution, but it was not one that it could redress. This was because the solutions were so many and varied as to require action on the part of the legislator insofar as it was up to the latter to choose the most appropriate solutions to ensure adequate protection. Accordingly, the Court ruled that the question was inadmissible as any likely solution would encroach on the legislator’s legislative discretion. That said, the Court stated that prolonged legislative inertia would not be tolerable and that should the question come before it again, it would intervene directly in relation to the challenged provision despite the aforementioned difficulties in doing so.

Judgement No. 149 of 2022

Giuliano Amato, President Francesco Viganò, Author of the Judgment

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In the field of offences against intellectual property, the right to ne bis in idem enshrined in Article 4 of Protocol n. 7 ECHR prevents the opening or the continuation of a criminal proceeding against an individual for the same behaviour which has already been finally adjudicated in another proceeding of a punitive nature. A criminal court requested the Constitutional Court rule on the compatibility with Article 117 (1) of the Italian Constitution, in conjunction with Article 4 of Protocol n. 7 ECHR, of the provision of the Italian code of criminal procedure on ne bis in idem (Article 649 of the code). This provision states that a court must discontinue any criminal proceeding against the defendant as soon as it becomes apparent that he or she has already been tried for the same offence and the judgment has become final. In the case at issue, a defendant in a criminal trial concerning an intellectual property offence argued that he had already been sanctioned by an administrative body for the very same infringement of copyright law, albeit qualified differently in law. The referring court essentially asked whether the mentioned provision of the Italian code of criminal procedure was unconstitutional in as far as it did not set forth an obligation to discontinue the proceeding when the defendant has already been adjudicated for the same behaviour in an administrative proceeding, which might potentially lead to the imposition of a punitive sanction according to the Engel criteria. The Court answered the question in the affirmative but limited the scope of its judgment to the specific field of offences against intellectual property, at issue in the main proceeding. The Court applied the criteria set forth by the ECtHR in A and B v. Norway and found that the legislation in force in Italy does not establish a sufficient connection in substance and time between the two sets of proceedings envisaged for offences that are essentially the same.

Judgement No. 131 of 2022

Giuliano Amato, President Emanuela Navarretta, Author of the Judgment

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In this case, the Court heard a challenge to a provision that did not allow parents, despite their agreement, to give only the mother’s surname to their child. The Court held that the provision was unconstitutional not only because it failed to allow for this agreement, as the underlying Court argued, but because it rested on a system standard that required giving the father’s surname as representative of the union of the two parents, with recently added exceptions for adding the mother’s surname. In the absence of legislative action, despite pressure coming from international obligations as well as the Constitutional Court, which had, in the past, held that the automatic assignment of the father’s surname to children was a vestige of an outdated family law structure and incompatible with the constitutional principle of equality, the Court struck down the provision. As a matter of consequence, it also struck down the other provisions that relied upon the rule automatically giving the father’s surname to children. The new rule introduced by the Court requires the assignment of both parents’ surnames to children simultaneously acknowledged by them (or born to a married couple or adopted by a couple), in the order agreed upon by them, except where they agree to give only one of their surnames.

Judgement No. 79 of 2022

Giuliano Amato, President Emanuela Navarretta, Author of the Judgment

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Constitutional Court Judgment No. 79 (Judge Rapporteur Emanuela Navarretta) declares Article 55 of Law No. 184 of 1983 to be incompatible with Articles 3, 31 and 117(1) of the Constitution insofar as it requires the rules laid down in Article 300(2) of the Civil Code for the adoption of adults to be applied to the adoption of children “in special cases”. The Court stated that the protection of a child’s best interests requires all adopted children to be guaranteed the recognition of kinship resulting from adoption. Children adopted under the procedure known as “adoption in special cases” have the status of son or daughter and may not be deprived of ties of kinship, which the legislator introducing reforms to the law on filiation “wished to guarantee to all children on equal terms, so that all minors can grow up in a solid environment protected by family ties, starting with the most immediate ones, namely with siblings and grandparents”. Non-recognition of a family tie with the adoptive parents’ relatives is tantamount to disregarding a child’s identity, which derives from belonging to the new network of family relations that are so important to a child’s family life.

Judgement No. 67 of 2022

Giuliano AMATO, President Silvana SCIARRA, Author of the Judgment

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In this case, the Court considered two referral orders from the labor division of the Supreme Court of Cassation, asking it to strike down, on constitutional grounds, a social security provision. The provision stipulated that the family unit allowance, a social security benefit the Italian Republic extended to its own citizens and legal residents of Italy, did not apply to third-country nationals legally residing and working in Italy, when the members of the family unit did not reside in Italy. The Supreme Court of Cassation had already referred the question to the Court of Justice of the European Union with a reference for a preliminary ruling. The Court of Justice had ruled on this reference for a preliminary ruling by holding that the provision violated EU law and the principle of equality of treatment, and that, given that the Italian authorities had not invoked one of the specific derogations available for the principle of equality, the benefit must be extended to legal residents of Italy whose families reside outside the Republic on equal terms. Having received this answer, the Supreme Court of Cassation referred the case to the Constitutional Court, on the assumption that it could not disapply the provision, given that EU law did not provide a complete framework to fill the gap that would be left by the disapplied provision. The Constitutional Court disagreed with this assumption. The Court held the questions as to constitutionality to be inadmissible as irrelevant, ruling that the Supreme Court of Cassation was, indeed, able to simply disapply the provision, leaving in place the domestic provisions governing the family unit allowance, which would no longer be withheld from third-country nationals residing and working legally in Italy, when members of the family units reside temporarily abroad.

Judgement No. 63 of 2022

Giuliano AMATO, President Francesco VIGANÒ, Author of the Judgment

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It is disproportionately harsh and therefore unconstitutional to punish the facilitation of illegal immigration by using international transport services or forged or unlawfully obtained documents with imprisonment from 5 to 15 years. In the case at issue, a foreign woman who accompanied to Italy on a commercial international flight her young daughter and niece, who were respectively 13 and 8 at the time, using forged identity documents had been accused of the offence in question. The criminal court referred to the Constitutional Court a question on the compatibility of the provision at issue with the principle of proportionality of penalties, based on Articles 3 and 27(3) of the Constitution. The Constitutional Court held that the dramatic increase in the ordinary penalty envisaged for the basic offence of facilitation of illegal immigration (imprisonment from 1 to 5 years) in the event of aggravating circumstances may be justified in other instances, e.g. when the migrant’s life is endangered or the migrant is subjected to inhuman or degrading treatment during transportation, but is wholly unreasonable with respect to the circumstance at issue.

Judgement No. 54 of 2022

Giuliano AMATO, President Silvana SCIARRA, Author of the Judgment

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In this case the Court considered a referral from the Supreme Court of Cassation questioning the constitutionality of the rule stipulating that the eligibility of third-country nationals for the childbirth allowance and the maternity allowance is conditional upon the holding of a long-term resident’s EU residence permit, and not for instance on the holding of a residence and work permit for at least one year. Since the challenge also revolved around the interpretation of number of provisions of EU law whose meaning was disputed, the Court decided to lodge a reference for a preliminary ruling to the Court of Justice of the European Union. The outcome of those proceedings was a ruling that the allowances in question fell within the scope of the EU notion of social security benefit and were thus subject to the principle of equal treatment as regards third-country nationals. Resuming the proceedings before it, the Court held that there was no reasonable correlation between the prerequisite of a long-term residence permit and eligibility for benefits designed to safeguard maternity and infancy and address the state of need that arises after the birth or adoption of a child. It ruled that the challenged provisions infringed Articles 3, 31 and 117 of the Constitution because they established, solely for third-country nationals, a system that is irrationally more cumbersome, reaching beyond the albeit legitimate goal of granting welfare benefits only to those with a valid residence permit and who are just occasionally in the country, whilst denying adequate protection precisely to those who are in the greatest need.

Judgement No. 43 of 2022

Giuliano Amato, President Emanuela Navarretta, Author of the Judgment

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In this case, the Court considered a referral order from the Tribunal of Verona challenging a set of property law provisions dealing with physical persons who purchase real property “on paper,” when it is yet to be built. The provisions extended protections to purchasers who contracted to buy after the builder had submitted a request for a building permit, in the form of a right of preemption (or right of first refusal). The Court held that the provisions were unconstitutional to the extent that they failed to extend the right of preemption to buyers of new construction who contracted to buy prior to the submission of the request for a building permit.

Judgement No. 28 of 2022

Giuliano AMATO, President Francesco VIGANÒ, Author of the Judgment

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The referring court challenged a provision establishing that the amount of the fine replacing short custodial sentences cannot be below 250 € per day, arguing that such a provision could lead to the imposition of disproportionately harsh penalties for offenders of limited financial means. The Constitutional Court struck down the provision, holding it to be incompatible with the principle of equality enshrined in Article 3 of the Constitution, as well as the principle of proportionality of penalty based on Articles 3 and 27(3) of the Constitution, which the Court considered applicable also to financial penalties. In this respect, the Court underlined that the offender's financial means are an important factor to consider when assessing the severity of a fine and its proportionality to the seriousness of the offence. The Court held that applying the impugned provision led to the imposition of fines that are much higher than what most people in Italy today can afford to pay based on their income and assets. This ends up “transforming the fine in lieu of prison into a privilege for wealthy offenders alone”, in clear breach not only of the principle of the proportionality of penalties but also of the equality principle.

Judgement No. 22 of 2022

Giancarlo CORAGGIO, President Francesco VIGANÒ, Author of the Judgment

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The Court was asked to assess the constitutionality of the rules on residential facilities to enforce psychiatric security orders (“residenze per l’esecuzione delle misure di sicurezza”, REMS) regarding offenders with mental disorders. The ensuing judgment recalls that, according to legislation enacted in 2012, the REMS are residential facilities with a radically different purpose from that of the former judicial psychiatric hospitals, which operated exclusively as custodial facilities. By contrast, they are intended to contribute to the gradual social rehabilitation of their inmates. These are small facilities that promote maintenance or re-establishment of relations with the outside world. People suffering from a psychiatric illness may only be referred to such facilities when it is impossible to control the danger they pose to others by alternative means, such as referring them to local mental health services. However, under Italian law, a decision to place an individual in a REMS is a psychiatric safety order issued by the criminal courts. They serve not only to ensure treatment but also to contain the threat to society of a person who has committed an offence. This means – the Court noted – that the constitutional principles applicable to “security measures” (misure di sicurezza) and compulsory medical treatment must be complied with. These include “reservation to primary legislation” (riserva di legge, i.e., the requirement that the relevant matter must be regulated under primary State legislation) not only concerning the circumstances in which security measures may be ordered, but also the manner of implementation. However, only a small fraction of the rules currently applicable to REMS facilities are set out in primary legislation: most are contained in secondary legislation and agreements between the State and local government bodies, with the result that these facilities differ widely from Region to Region. The Court also stressed that, due to severe operational problems, the system does not effectively protect the fundamental rights of potential victims of the offences which those with mental disorders might commit again, nor the right to health of the latter, who do not receive appropriate medical treatment. It notes, in this regard, that between 670 and 750 people are currently on waiting lists for allocation to a REMS, also remarking that the average waiting time is approximately ten months, although it is much longer in some Regions, adding that many of these people have committed serious, and in some cases violent, offences. However, the Court holds that it is unable to declare the current legislation unconstitutional. Such a decision would result in “the abolition of the entire system of REMS, which has resulted from an unavoidable process of replacing the old judicial psychiatric hospitals”; to do so would leave “an intolerable gap in the protection of constitutionally significant interests”. The Court therefore calls upon the legislator to implement a comprehensive reform of the system without delay in order to ensure: – an appropriate legislative framework for new psychiatric safety orders; – the establishment and efficient operation throughout the country of a sufficient number of REMS to cover actual needs, as well as the enhancement of alternative non-custodial facilities for treating mentally ill offenders; – appropriate involvement of the Minister of Justice in the coordination and monitoring of REMS facilities and other agreements to protect the mental health of offenders, in addition to planning for the associated budgetary requirements.

Judgement No. 18 of 2022

Giancarlo CORAGGIO, President Francesco VIGANÒ, Author of the Judgment

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The Court was called upon to examine a provision contained in Article 41-bis of the prison law, which – according to the case law of the Court of Cassation – provided for mandatory censorship of the correspondence between prisoners placed under the enhanced surveillance regime envisaged therein and their lawyers. The provision was found to be incompatible with the rights of defense enshrined in Article 24 of the Constitution, and, therefore, unconstitutional. The judgment notes that, according to the settled case law of the Constitutional Court and the ECtHR, the rights of defense include the right to communicate in confidence with one’s own lawyer, and stresses that detainees serving a custodial sentence also enjoy this right. This is necessary, inter alia, in order to ensure effective protection for the prisoners against any abuses committed by the prison authorities. This right is not absolute and may be restricted, insofar as this proves to be reasonable and necessary in situations in which other constitutional rights are at stake, and provided that it does not make the rights of defense ineffective. Moreover, prisoners to whom the Article 41-bis regime applies are ordinarily subject to far-reaching restrictions on their fundamental rights in order to prevent any contact between them and their respective criminal organizations. However, the Court holds that the censorship of correspondence between a prisoner and his or her lawyer is not an appropriate instrument for achieving this aim, and thus unreasonably impairs the detainee’s rights of defense. First of all, a prisoner is entitled to speak in private with his or her lawyer at any time, whenever he or she considers it necessary, by virtue of this Court’s Judgment No. 143 of 2013. Since these meetings may not be monitored by the prison authorities, and a prisoner can already pass any information to his or her lawyer, censorship on their correspondence cannot be deemed a suitable means to prevent the exchange of information between the prisoner and the criminal organization to which he or she belongs. Second, the provision under review provides that the censorship should occur automatically, even where there are no specific grounds to suspect any unlawful conduct on the part of the lawyer. According to the Court, the challenged provision reflects a “general and untenable presumption of collusion between defense council and criminal groups […]. This assumption casts suspicion upon the essential role the legal profession performs in protecting not only the fundamental rights of prisoners, but also the rule of law as a whole.” Therefore, the Court held that the rule under examination did not reflect an appropriate balance between the competing interests at stake and had, therefore, to be struck down.