Year

Order No. 182 of 2020

Marta CARTABIA, President, Silvana SCIARRA, Author of the Judgment

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In this case the Court considered a referral from the 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. Although other types of family allowance had already been considered by the Court of Justice, the allowances at issue in these proceedings differed in that they did not pertain exclusively to the branch of social security but also performed the function of an incentive (specifically, incentivising childbirth). At the same time, the allowance is payable in different amounts depending upon the income bracket of the recipient, and thus on the different level of need on the part of the parents. Since opinions differed between the courts and the administration competent to grant the benefits as to whether Article 12 of Directive 2011/98/EU is directly applicable, the Court decided to make a reference for a preliminary ruling to the European Court of Justice.

Judgment No. 158 of 2020

Marta CARTABIA, President, Luca ANTONINI, Author of the Judgment

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The Constitutional Court rejects the question concerning the constitutionality of Art. 20 of the Consolidated law on registration tax regarding the powers of interpretation of transactions submitted for registration, upon referral by the Fifth Civil Division of the Supreme Court of Cassation, in respect of Articles 3 and 53 of the Constitution. Article 20 of the Decree of the President of the Republic No. 131 of 26 July 1986, following the amendments introduced by the Financial Law for 2018, states that in interpreting each instrument subjected to registration tax, the tax authorities must take into consideration only “elements inferrable from the contract itself […] regardless of the extratextual instruments and the contracts linked to them, except as provided for in subsequent articles”. According to the referring judge, the rule in question – which Art. 1, para. 1084, Law No. 145/2018 (State budget for 2019) expressly qualifies as a rule of authentic interpretation – is alleged to be in conflict with the principle of the ability to pay taxes enshrined in Art. 53 of the Constitution and with the principle of equality expressed in Art. 3. With regards to the first possible conflict, by precluding the possibility of giving importance to extra-textual elements related to the contract presented for registration, the new wording of Art. 20 of the Consolidated law on registration tax would produce “the practical effect of removing from the scope of taxation a typical indication of the ability to pay”. Concerning the second, the possibility that equal manifestations of economic power might be subject to different levels of taxation on the basis of whether a transaction is established by a single contract rather than several related instruments would result in a probable breach of the principle of equality and reasonableness. Summarising the orientation followed by the prevailing constitutional case law, the referring court claims that the concept of “contract presented for registration” is to be understood in the sense of an overall transaction, regardless of whether it is carried out by means of one or more formally separate documents: these related documents may indeed be taken into consideration to reconstruct the nature of the transaction as a whole. It also claims that the consolidated case law of the Supreme Court of Cassation constitutes a given fact made necessary on constitutional grounds. The Constitutional Court, however, does not deem that the importance of the concrete reason for the contract for tax purposes is a priori equivalent to a constitutionally necessary interpretation, stating that there may be other definitions of the term “contract submitted for registration” and “legal effects” equally compatible with the Constitution. Indeed, the clear meaning of the wording of the challenged provision points towards interpreting contracts submitted for registration as requiring the interpreter to disregard the “extra-textual elements and related transactions”, save for the exceptions provided for in subsequent articles of D.P.R No. 131 of 1986. The Court also states that it would be of no avail to object that the provision under discussion, excluding (except for the circumstances expressly regulated by the consolidated text) the interpretative relevance of both extra-textual instruments and related contracts, might facilitate undue fiscal advantages by exonerating “effective taxable wealth” from taxation in breach of the aforementioned constitutional provisions. The Court thus finds the questions of constitutionality raised unfounded and makes a veiled invitation to the legislator, evoking the advisability to provide for a possible update of the legal framework of registration duty that would take into account the complexity of modern contractual techniques and current technological developments, with particular regard to both the system of registration of notary deeds and the system of document management by the financial administrative offices.

Judgment No. 150 of 2020

Marta CARTABIA, President, Silvana SCIARRA, Author of the Judgment

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In this case, the Court heard referral orders from two lower courts questioning the constitutionality of a legislative decree on permanent employment contracts with increasing protection over time insofar as it provided that the compensation payable for dismissals made in breach of the requirement to state reasons therefor or to adhere to certain procedures was to be based solely on the dismissed worker’s length of service. In essence, the referring courts maintained that the inflexibility in quantifying the compensation 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. The Court ruled that the provision that automatically tied the amount of compensation to the dismissed worker’s length of service was unconstitutional because although the legislator is free to decide what the appropriate remedy for dismissal is, it cannot totally ignore the specific circumstances of each case. Doing so implied the same treatment for situations that in practice were profoundly different, thus infringing the principle of equality. The inflexibility of the mechanism for calculating compensation was also held to be unreasonable in that it did not provide a remedy that struck an adequate balance between the competing interests at stake and moreover failed to properly vindicate the right to work.

Order No. 132 of 2020

Marta CARTABIA, President, Francesco VIGANO', Author of the Judgment

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The Constitutional Court has examined two referral orders submitted by lower criminal courts concerning the compatibility with the Constitution and the European Convention on Human Rights of criminal provisions envisaging custodial sentences for the offence of defamation committed through the press. The Court has found that the questions raised require a complex balancing exercise between freedom of expression and the protection of reputation, both key rights within the constitutional order. Any adjustment – by now necessary, in light of the case law of the European Court of Human Rights – of the balance struck is, first and foremost, a task for the legislator. As several bills on the subject are currently before Parliament, the Court, in a spirit of loyal collaboration between institutions, has decided to postpone the examination of the questions until a public hearing scheduled for 22 June 2021, thereby granting Parliament an adequate time to enact new legislation on the topic in the meantime. Pending the Court’s decision, the criminal proceedings in which the questions as to constitutionality were raised will remain suspended.

Judgment No. 131 of 2020

Marta CARTABIA, President, Luca ANTONINI, Author of the Judgment

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In this case, the Court heard an application from the President of the Council of Ministers questioning the constitutionality of Umbria Regional Law No. 2 of 11 April 2019, Article 5(1)(b) of which, in connection with community cooperatives, sought to regulate the methods of implementation of the co-planning, co-design and accreditation provided for by Article 55 of the Third Sector Code. The Government alleged that the regional law encroached upon the exclusive legislative powers of the State under Article 117(2)(l) of the Constitution insofar as it broadened the range of third-sector bodies, exhaustively defined by national law, entitled to actively participate in the national planning of measures of social utility. The Court settled the question by way of interpretation, ruling that the participation envisioned by Article 55 of the Third Sector Code, referred to by the regional law, applied not to all community cooperatives but solely to those that also fulfilled the requirements to be classified as third-sector bodies.

Judgment No. 121 of 2020

Marta CARTABIA, President, Mario Rosario MORELLI, Author of the Judgment

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With Judgment No. 121 of 2020, the Constitutional Court declared that, in terms of Article 117(1) of the Constitution, and in relation to Articles 6 and 13 of the European Convention on Human Rights, the question as to the constitutionality of Articles 1-bis, paragraph 2, 1-ter, paragraph 1, and 2, paragraph 1, of Law No. 89 of 24 March 2001 is unfounded, insofar as they establish that the admissibility of claims for compensation for the unreasonable length of civil proceedings is subject to submission of a request for a decision according to the simplified model of oral discussion with an immediate ruling, as this condition constitutes an effective preventive remedy, potentially accelerating the course of the proceedings and indicative of willingness of the party to collaborate with the court.

Judgment No. 120 of 2020

Marta CARTABIA, President, Luca ANTONINI, Author of the Judgment

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In this case, the Court considered a question raised by a regional tax board as to the constitutionality of a provision of the consolidated law on the inheritance and gift tax. The referring tax board alleged that since the provision, which created an exception to the inheritance and gift tax for transfers of business enterprises or branches or shares thereof under certain conditions, did not extend to spouses of the donor, it violated the equality principle and protection of the family enshrined in the Constitution. The Court first rejected objections by State Counsel, in part by reaffirming its power to emit additive rulings and to review discretionary choices by the legislator for manifest or arbitrary unreasonableness. The Court acknowledged that calls for inheritance and gift tax relief in connection with family business enterprises had been the focus of a Recommendation of the European Commission, with regard to small and medium-sized enterprises, in the mid-1990s. However, the Court rejected the suggestion that the Commission’s recommendations could still be connected to situations like the present case in the contemporary Italian tax context. It pointed out that the Italian tax context had significantly changed since the Commission had called on Member States to reduce taxes on inherited businesses and related assets, and the fiscal burden of such taxes was already reduced significantly by legislation. Then, it clarified the character of the concession within the overall tax system, deeming it outside the bounds of the purposes laid out in constitutional provisions. In particular, it pointed to the absence of a needs-based consideration or limitation to small and medium-sized enterprises, and emphasized that there was no obligation to extend tax relief to categories of persons well able to make tax contributions, and that, particularly in the case of large enterprises, to do so could incentivize bad market outcomes in terms of company management and resistance to sale. Turning to the merits of its review, the Court concluded that the question as to constitutionality was unfounded. It recalled that judicial review of tax provisions for violations of the equality principle call for a particularly high standard of scrutiny. It held that the legislator did not infringe the principle of equality when it distinguished between spouses and descendants, in its decision to extend the tax relief only to the former, pointing to distinctions including the greater likelihood that descendants will be younger than spouses of the deceased, and, thus, more likely to carry on the operation of the business. The Court ruled that the legislator acted within the bounds of its discretionary authority in selecting the list of subjects to whom the tax relief would apply.

Judgment No. 118 of 2020

Marta CARTABIA, President, Nicolo' ZANON, Author of the Judgment

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In this case, the Court considered a referral order concerning legislation that precluded the payment of compensation for harm caused by the vaccine against hepatitis A, which was not mandatory but had been recommended by the health service. Drawing on previous judgments concerning other vaccines, the Court ruled the legislation unconstitutional insofar as it did not provide for the payment of compensation under such circumstances. Whilst the fact that a vaccine was recommended left scope for individual decisions, the fact that it pursued a public health goal engaged solidarity considerations under the Constitution, and hence a duty of the State to pay compensation.

Judgment No. 102 of 2020

Marta CARTABIA, President, Francesco VIGANO', Author of the Judgment

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The judgment holds that a criminal provision imposing a mandatory suspension of parental responsibility in case of conviction for the offence of child abduction is unconstitutional. The main proceedings concerned a mother who had abducted her two children and taken them to Austria without their father’s permission. She had therefore been convicted of the criminal offence established by Article 574-bis of the Criminal Code and sentenced, inter alia, to four years’ suspension of her parental responsibility towards the children. She had then appealed against the sentence before the Supreme Court of Cassation, which raised a question as to the constitutionality of the mandatory application of this ancillary penalty in case of conviction for this offence. The Constitutional Court reiterates here that, in accordance with national and international law, any decision concerning a child should be primarily based on his or her best interests, and that, in principle, every child has the right to maintain a personal relationship and direct contact with both of his or her parents. While stressing the seriousness and special harmfulness for the child of the offence of parental child abduction, the Court observes that the mandatory nature of the penalty at issue does not allow the trial court to assess whether the measure is actually in the best interests of the child, also in the light of the evolution of the relationship between parent and child that might have occurred after the commission of the offence. Therefore, the Court declares that the provision is unconstitutional insofar as it provides for a mandatory, and not merely discretional, suspension of parental responsibility in the event of a conviction for the offence at issue.

Judgment No. 97 of 2020

Marta CARTABIA, President, Nicolo' ZANON,, Author of the Judgment

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This case considered the constitutionality of a provision of the Prison Law that banned the exchange of objects among inmates subject to the special rules for inmates involved in criminal organizations. Considering the provision as interpreted and applied by courts, that is, with general application to all such inmates, including those assigned to the same “socialization group” within prisons, the Court struck down the provision. The Court held that, as a blanket rule, the provision was unreasonable and purely punitive, citing the fact that it could not be justified by the purpose of the special prison rules, that is, to sever ties between inmates and their criminal organizations, since inmates in the same socialization groups had ample occasions to communicate with words and gestures, without resorting to the symbolic meanings of objects. The Court pointed out that the rigorous application of ordinary prison rules sufficed to meet the needs claimed as a justification for the unconstitutional provision, citing specific rules already in place to permit the reshuffling of socialization group membership and to limit the kinds and quantities of objects that could be brought into group settings.

Judgment No. 73 of 2020

Marta CARTABIA, President, Francesco VIGANO', Author of the Judgment

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The judgment holds that a criminal provision precluding the application of the mitigating circumstance of diminished responsibility to repeat offenders violates the principle of proportionality between the seriousness of the offence and the severity of punishment under Articles 3 and 27 (3) of the Constitution and is, therefore, void. The Court reiterates here its established case law, according to which manifestly disproportionate penalties are in breach of both the principle of equality before the law and the rehabilitative function of punishment. This latter principle, in particular, is frustrated if sentences cannot be seen as a “just” reaction against the harm caused through past criminal behaviour by the convict concerned. According to this new judgment, the proportionality principle requires that the punishment bear an adequate relationship also with the subjective elements of criminal responsibility, such as the degree of mental competence of the defendant. Therefore, a provision that rules out a mitigated punishment for partially incompetent defendants who are, at same time, repeat offenders is incompatible with the principle at issue and is, therefore, unconstitutional.

Judgment No. 44 of 2020

Marta CARTABIA, President, Daria de PRETIS, Author of the Judgment

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In this case, the Court considered a referral order concerning regional legislation purporting to impose a requirement of five years' prior residence or gainful activity in the Region as a mandatory prerequisite for establishing eligibility for residential housing. The Court held that this prerequisite was unreasonable, having regard to the rationale for providing social housing, and in fact that its consequences were at odds with the function of public housing, i.e. providing a home to people who do not have one. The Court therefore ruled the legislation unconstitutional insofar as it imposed this requirement.

Judgment No. 32 of 2020

Marta CARTABIA, President, Francesco VIGANO', Author of the Judgment

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In this case, the Court heard a series of referral orders from a number of courts questioning the constitutionality of a provision set forth in a recently enacted anti-corruption law (No. 3 of 2019). The provision lays down more restrictive conditions under which a supervisory court can replace the term of imprisonment that a person convicted of a corruption offence has been sentenced to with a non-custodial measure. According to established case law, any changes to the rules on the enforcement of sentences making them harsher can apply retroactively, since such rules have been considered so far not to be covered by Article 25(2) of the Constitution, which enshrines the principle that no person may be punished by a more severe penalty than that provided for at the time the offence was committed (nulla poena sine lege praevia). As a consequence, the 2019 amendments have been widely held as applicable also to persons convicted of offences committed before the enactment of the new law. The referral orders essentially asked whether the retrospective application of the new detrimental rules was compatible with Article 25(2) of the Constitution, considered in light of the recent case law of the European Court of Human Rights (ECtHR) on Article 7 ECHR. Departing from its own previous case law, the Court ruled that the enforcement of sentences is, in principle, governed by the law in force at the time of the execution of the sentence and not by the law in force at the time of the commission of the offence, unless the legislative amendments enacted after the commission of the offence are so significant as to transform the scope of the penalty and its actual impact on the convict’s personal liberty. In this latter case, the application of the subsequent law would amount to an enforcement of a penalty that is essentially different from that provided for at the time of the commission of the offence, and would thereby infringe the nulla poena principle. As a consequence, the Court declared that the challenged provision, as interpreted by established case law as applicable also to persons convicted of offences that have been committed before its entry into force, is unconstitutional.

Judgment No. 18 of 2020

Marta CARTABIA, President, Marta CARTABIA, Author of the Judgment

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The Court declares unconstitutional a number of provisions on special house arrest, insofar as they only apply to female inmates having children under the age of ten, and do not apply to incarcerated mothers with severely disabled children of any age. In fact, the Court considers that the limit of ten years of age violates the constitutional principles of equality, reasonableness and protection of the fundamental rights of the human person (Articles 2 and 3 of the Constitution), along with those laid down in Article 31(2) of the Constitution (also invoked by the referring court), which provides for the protection of maternity, that is the bond between mother and child, which cannot be considered to end after the initial stages of the child’s life. These principles require providing for alternative measures to detention having the principal purpose of protecting the child, an innocent third party requiring daily relationship with and care from the inmate; principles that must also apply to situations involving a severely disabled child, who is always in a particularly vulnerable physical and psychological state irrespective of his or her age. In fact, experience shows that the life circumstances and health of persons with a severe disability tend to deteriorate further as they advance in age. As a result, making the prison benefit concerned conditional upon a parameter related only to age is unconstitutional where a severely disabled person is involved. It must also be noted that according to the Constitutional Court’s case law, human relationships, including in particular family ones, are decisive factors in the full development and effective protection of the most vulnerable people. In fact, this Court has consistently held, in a rich line of settled case law, that “ensuring full protection for weaker individuals” also requires “continuity within the constitutive relationships of the human personality” (Judgment no. 203 of 2013). Moreover, it has also reiterated that the right of a disabled person to “receive assistance within the context of his or her life community” constitutes “the fulcrum of the protections established by the legislator, with the aim of removing the impediments liable to prevent the full development of the human person” (Judgment no. 232 of 2018). It need hardly be added, the Court notes, that the declaration of unconstitutionality does not impinge upon the further prerequisites for granting the measure according to which female inmates will be eligible for house arrest in their own home, in another private residence, or within a facility offering care, assistance or hospitality only “if there is no tangible risk of the commission of further offences”.

Judgment No. 12 of 2020

Aldo CAROSI, President, Mario Rosario MORELLI, Author of the Judgment

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In this case, the Court considered a referral order raising a question as to the constitutionality of civil procedure provisions providing just compensation for parties to proceedings that fail to conclude within a reasonable time limit, insofar as it applies (according to the interpretation of the Supreme Court of Cassation) only to judicial proceedings, and not to merely administrative proceedings like the administrative forced liquidation proceedings at issue in the underlying matter. The Court held the question to be unfounded, ruling the provision constitutional. First, the Court affirmed that classifying administrative forced liquidation procedures differently from insolvency proceedings was justified by the public interests involved, and rejected the referring court’s argument that the two overlapped entirely. Then, it pointed out that remedies were available to parties to unjustifiably prolonged administrative forced liquidation proceedings even if they did not have access to the challenged just compensation provision. This was despite the fact that administrative forced liquidation proceedings have no predefined time limit, given that time limits were established on a case-by-case basis, and in accordance with general principles for administrative actions. Since the referring court had alleged a violation of Article 117(1) of the Constitution on the grounds that the challenged provision conflicted with a judgment of the ECtHR, the Court pointed out, first, that the cited ECtHR judgment failed to fully take stock of the alternative remedies available to parties to administrative forced liquidation proceedings under the Italian system and, second, that its ruling also depended upon the fact that the applicant in the case before it had been waiting for the liquidation of its claim for nearly 25 years. The Court concluded by upholding the constitutionality of the challenged provisions.

Judgment No. 10 of 2020

Marta CARTABIA, President, Daria de PRETIS, Author of the Judgment

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The Constitutional Court met to discuss the admissibility of the request for an electoral referendum entitled “Abolition of the proportional method in the allocation of seats in multi-nominal constituencies in the electoral system of the Chamber of Deputies and the Senate of the Republic”, presented by eight Regional Councils (Veneto, Piedmont, Lombardy, Friuli Venezia Giulia, Sardinia, Abruzzo, Basilicata, Liguria). The referendum request concerned, first and foremost, the two electoral laws regarding the Senate and the Chamber of Deputies, seeking to eliminate literal references to multi-nominal constituencies and therefore the proportional allocation of seats, thus transforming the electoral system into an entirely majority system with single-member constituencies. If a referendum request regards the electoral law of a constitutional body, or one of constitutional relevance, it must in any case, according to constant constitutional case law, ensure that once the law in question has been repealed, a self-applicable law (the so-called “resulting legislation”) remains in force, meaning that what survives is sufficient to allow elections to be held immediately. If this is not the case, the outcome of the referendum could paralyse the normal conduct of the activities of the bodies in question. To this end, the promoters of the referendum also proposed the partial abrogation of the powers delegated to the Government by Law no. 51/2019, with the purpose of implementing the constitutional reform on the reduction of the number of parliamentarians. In so doing, however, the referendum proposal “radically altered” the meaning and scope of this delegated power, transforming it into a tool to change the electoral system resulting from the referendum. In fact, all the “somatic characteristics” of the original delegated powers (object, time, guiding principles and criteria) would have been changed, to the extent of giving rise to a new delegated power, potentially fulfilling a dual purpose (the implementation of the constitutional reform on the reduction of members of Parliament and the implementation of the electoral law resulting from the referendum). For this reason, there would have been an excessive, and therefore inadmissible, manipulation of the original text of the delegating legislation. For this reason, subsuming all others, the Court declared the referendum request inadmissible.