Recent judgments

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 Judgment No. 40 of 2019
Giorgio LATTANZI, President - Marta CARTABIA, Author of the Judgment
In this case, the Court considered a referral order challenging a criminal law provision concerning serious drug offenses. The referring Court alleged that the gap between the maximum allowable punishment for minor offenses (four years incarceration) and the minimum allowable punishment for serious offenses (eight years) was too large, and suggested that the provision should make six years the minimum for serious offenses. The Court agreed, and struck down the provision, in the part in which it provided for a minimum punishment of eight, rather than six, years. The Court first reviewed its own authority to hear the case, rejecting one of the claims of the referring Court, which took issue with a previous decision of the Court, in what the Court deemed an unconstitutional attempt to appeal a previous Constitutional Court decision. The Court also rejected the referring Court's underlying assumption that the Constitutional Court may not pronounce on criminal matters with potentially negative effects, as well as State Counsel's objection that the criminal law is reserved to the exclusive action of the legislator, and reaffirmed its authority to strike down unconstitutional criminal provisions where they are patently unreasonable and disproportionate. It also pointed out that it may take action not only where there is one, constitutionally mandated solution to an unconstitutional measure of punishment, but also where the overall criminal system provides punishments in analogous situations that permit the Court to insert a punishment that is consistent with the legislator's overall punishment scheme. The Court then traced the history of the gap in the two sentencing ranges, which had resulted from a complex layering of judicial and legislative action in the area of drug regulation. The Court also revisited the many occasions it has had to examine this same, and related, provisions and pointed out that its urgent requests for legislative action to remedy this sentencing discrepancy had gone unheeded. Citing the seriousness of the fundamental rights involved, the fact that disproportionate punishments undermine the constitutionally mandated rehabilitative purpose of criminal punishment, and the fact that a great deal of conduct falls into a grey area on the borderline between serious and minor offenses (rendering the four-year gap between the minimum punishment for one and the maximum punishment for the other manifestly unreasonable and open to causing undue influence on finders of fact in criminal proceedings as well as resulting in unjust sentencing), the Court refused to allow the provision to remain in force any longer. As for the referring Court's suggestion of six years as an appropriate substitute provision for the minimum punishment for serious crimes, the Court found that this was consistent with the legislator's overall scheme and traceable in pre-existing legislation, and took care to specify that, as a non-mandatory solution, the legislator remained free to alter the six-year provision.

 Judgment No. 38 of 2019
Giorgio LATTANZI, President, Nicolo' Zanon, Author of the Judgment
In this case, the Court heard a referral order challenging a provision of an ordinary law that required courts to obtain advance authorization from a parliamentarian's House of membership in order to use records related to communications as evidence in legal proceedings against that MP. The referring court alleged that the advance authorization requirement, already in place for transcripts and recordings of intercepted communications, equated information "external" to communications with the contents of the communications themselves, unlawfully expanding the scope of the constitutionally established parliamentary prerogative according to which parliamentarians are granted protection in the form of an exception to the principle of equal treatment before the courts. The Court held that the question was unfounded. It pointed to previous case law stating that the advance authorization requirement reflects the purpose of an investigatory action (the purpose of obtaining information relating to a parliamentarian's communications), as evidenced by, for example, the fact that special protection is not limited to intercepting communications on devices belonging to MPs, but also extends to devices belonging to third parties in frequent contact with them, and even to places frequently visited by them. Moreover, the Court disagreed with the claim that there is an ontological, or natural, difference between the contents of communications and the data about them found in external records (like the date, duration, participants, and location of a communication). The Court said that this "external" data are, in fact, communication evidence. Therefore, it rightly falls under the constitutional guarantee that protects the freedom and autonomy of the functioning of Parliament (and, only as a secondary and indirect matter, protects the individual members of Parliament), a conclusion supported by the case law of the Supreme Court of Cassation. Thus, Court held that it is legitimate to extend the constitutional protection of parliamentary communications to investigatory acts able to have a direct impact on said communications, and obtaining telephone records, which can reveal highly invasive information, falls into this category.

 Judgment No. 20 of 2019
Giorgio LATTANZI, President, Nicolo' Zanon, Author of the Judgment
In this case, the Court considered a referral order from an administrative tribunal challenging a provision of a transparency law that imposed a duty to publish fiscal data concerning income, assets, and involvement and shares in companies concerning all managers working for the public administrations, irrespective of their position, and extending to their spouses and relatives up to the second degree. The Court affirmed the admissibility of the questions and its own authority to rule, with erga omnes effect, on cases that raise questions of compatibility with both the Constitution and the Charter of Fundamental Rights of the European Union (except where it makes a reference for a preliminary ruling for questions of the interpretation or invalidity of European law). In such cases, the Court specified that its ruling will be based on internal constitutional provisions and European law if applicable, according to whichever system is most appropriate to the specific case. It also stressed the importance of its constitutional interpretation of the fundamental rights guaranteed by the CFR, which allow it to be interpreted in harmony with national tradition, without prejudice to ordinary courts' ability to refer matters to the ECJ. The Court pointed out that the case involved the balancing between two rights: the right to the privacy of personal data, understood as the right to control the spread of information about oneself, and the right of citizens to have free access to the data and information held by the public administrations. It observed that the digital context, which both heightens threats to personal security and increases the ability to provide access and circulate information. The Court used a proportionality test to assess the legislative choice expressed in the challenged provision, pointing out that European law also embraces the principle of proportionality in this context. Examining the evolution of the duty to publish, the Court noted the passage from "accessibility" of information, a regime under which interested parties could request information, to "availability," where information is published, for example online, for the general population. It also noted the legitimate purpose of the provision, which was to grant widespread public oversight on the use of public funds and carrying out of public functions, as an anti-corruption measure. It found that the provision partly failed the test of proportionality in the part in which it placed the duty to publish the full range of data (which formerly applied only to political positions accountable to voters) on all public managers without distinction. The Court found that the indiscriminate application of duties to publish such an extensive quantity of data, which could, depending on the position in question, be irrelevant for the purpose of granting oversight relating to public functions and the use of public funds, was inherently unreasonable, both because it created a confusing and unmanageable quantity of data that private citizens did not have the tools to navigate (failing to meet the requirement that lowering the protection of one right should result in an increase in the protection of another), and because it invited curious digging into the private lives of managers and their families rather than facilitating the correct informing of the public. Nor did the measure meet the requirement of being the least restrictive option. Finally, the provision's application to all managers without distinction was held to be unconstitutional. As a temporary solution, the Court pointed to a classification of managers carried out by the legislator in a provision of a different law.

 Judgment No. 17 of 2019
Giorgio LATTANZI, President, Marta Cartabia, Author of the Judgment
In this case, a group of senators objected to the usage of a procedural mechanism in the Senate whereby the government amended draft budgetary legislation by a block amendment, and also associated its approval with a confidence vote, thereby preventing amendments from being tabled. The Court noted that members of Parliament could theoretically have standing to initiate a jurisdictional dispute, although this matter turned upon the specific circumstances of each case. This is because standing lies only with bodies with the power "to state the definitive position of the respective branch of state", and members of Parliament have a right under Constitutional law to state "an intention that is in itself definitive and conclusive". However, due to the broad margin of appreciation in the application of parliamentary rules, the Court's power of review must be limited to cases in which violations are evidently identifiable already within a summary consideration. The Court held that, on the facts, this exacting test was not met in this case, although reserved the right to review particularly manifest violations of the rights of parliamentarians in future.

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