Recent judgments

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 Judgment No. 117 of 2019
Giorgio LATTANZI, President, Francesco VIGANO', Author of the Judgment
In this case, the Court heard a referral order from the Supreme Court of Cassation questioning the constitutionality of domestic legislation that did not recognise an accused's right to silence in proceedings that, although formally administrative in nature, entail the imposition of sanctions of a substantially punitive nature. The Court was of the view that the legislation could well violate Articles 24(2) and 111(2) of the Constitution, but a finding of unconstitutionality risked creating a conflict with EU law, since the legislation in question stemmed from obligations incumbent on Italy under, initially, Directive 2003/6/EC and, subsequently, Regulation (EU) No. 596/2014. The Court was however also of the opinion that the EU secondary law in question was ambiguous, and, under a certain interpretation, could even be incompatible with Articles 47 and 48 of the Charter of Fundamental Rights of the European Union. Therefore, the Court decided that before ruling on the question of constitutionality, it was necessary to request clarification from the CJEU on the exact interpretation and, possibly, also the very validity of the EU secondary law at issue. To that end, two questions were referred to the CJEU for a preliminary ruling. The first question was whether the EU secondary law at issue must be interpreted as enabling Member States not to punish those who refuse to answer questions from a competent authority if that could reveal their liability for wrongdoing punished with administrative sanctions of a punitive nature. In the event of an affirmative answer to that first question, striking down the domestic legislation would not conflict with EU law. In the event of a negative answer to the first question, the second question was whether the provisions of the EU secondary law at issue were compatible with Articles 47 and 48 of the Charter of Fundamental Rights of the European Union insofar as those secondary law provisions would require sanctions to be imposed on persons who refuse to answer questions from a competent authority that could reveal their liability for wrongdoing punished with administrative sanctions of a punitive nature. The proceedings before the Court were stayed pending the outcome of the request for a preliminary ruling.

 Judgment No. 112 of 2019
Giorgio LATTANZI, President, Francesco VIGANO', Author of the Judgment
In this case, the Court heard a referral order from the Court of Cassation concerning legislation providing for the mandatory confiscation not only of the profits of certain financial market offences but also of the "product" of the offence (i.e. the means or assets used in order to commit it), as an automatic corollary of the imposition of an administrative fine. The referring court argued that the confiscation of the "product" was out of proportion with the harm caused by the offence, and also excessively encroached upon the rights of ownership of the perpetrator of the offence. Despite a previous ruling in which the Constitutional Court had invited the legislator to amend the legislation in question, the amendment subsequently enacted had not substantively altered the rule in question. The Court ruled the legislation unconstitutional, holding that it did not comply with the constitutional requirements that sentences must be aimed at re-education and must be tailored to the individual circumstances of the case. Considering that the legislation already provided elsewhere for fines, which were moreover already severe, the additional penalty of confiscation resulted in excessive punishment, and was thus unconstitutional, and incompatible with both the ECHR and the Charter of Fundamental Rights of the European Union.

 Judgment No. 99 of 2019
Giorgio LATTANZI, President, Marta Cartabia, Author of the Judgment
In this case, the Court considered a referral order from the First Criminal Division of the Court of Cassation questioning the constitutionality of Article 47-ter(1-ter) of Law no. 354 of 26 July 1975 (Norms regulating the penitentiary system and the enforcement of measures involving deprivation and limitation of liberty - [hereafter "Prison Law"]), in the part in which it does not provide for the application of "derogating" house arrest even in the event of serious mental illness supervening during enforcement of the sentence. The Court first rejected the objection of inadmissibility advanced by the President of the Council of Ministers based on the alleged lack of a sole measure able to remedy the defects of constitutionality raised by the referring court, affirming that it is consolidated case law that in the event of the infringement of constitutional rights, the lack of a sole measure to bring the law into line with the constitution cannot be an obstacle to examining the question of constitutionality from the point of view of the merits. Thus, according to the Constitutional Court, the absence of any alternative to imprisonment for those who develop serious mental illness rather than a physical one while in detention creates a lack of effective protection of the fundamental right to health. When combined with the inevitable suffering arising from deprivation of liberty, this lack of an alternative manner of implementing a sentence handed down before the illness developed can be considered tantamount to an additional and inhumane punishment liable to further damage the health of the detainee. The Court therefore accepted the question raised together with the "remedy" identified by the Court of Cassation, namely the application of the alternative measure of "humanitarian" or "derogating" house arrest, (Article 47-ter, (1-ter), of the Prison Law), which is able to satisfy all the interests and values at stake, reaffirming the responsibility of courts to assess on a case-by-case basis whether a detainee suffering from supervening serious mental illness can serve his or her sentence in prison or needs to be treated in secure accommodation elsewhere, all the while balancing the right of the detainee to humane treatment and health care with the safety requirements of the community at large.

 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. 24 of 2019
Giorgio LATTANZI, President, Francesco VIGANO', Author of the Judgment
In this case, the Court heard referral orders from various courts concerning the application of certain personal preventive measures and the in rem preventive measures of seizure and confiscation to (a) "any person who may be presumed, on the basis of factual findings, to be habitually involved in unlawful dealings" and (b) "any person who, owing to his or her conduct and lifestyle, may be presumed, on the basis of factual findings, to earn a living, either in full or in part, from the proceeds of unlawful activities". The Court noted as a preliminary matter that "the fact that the imposition of a personal preventive measure is in any case conditional upon indications that suggest prior involvement in criminal activity by the individual does not mean that the measures concerned have the status of sanctions or punitive measures". Referring also to the case law of the ECtHR (in particular the de Tommaso case), the Court declared unconstitutional the provision allowing for the first type of personal and in rem preventive measures (letter (a) above). However, it declined to make a similar ruling to measures issued on the basis of letter (b) above. Whilst the legislation was sufficiently precise in relation to letter (b), the wording of letter (a) was inherently imprecise (in particular as regards the terms "unlawful dealings" and "habitually") in a manner that could not be rectified through judicial interpretation.

 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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