Italy / Constitutional Court / 32/2020

Several Italian Surveillance Courts (Tribunale di Sorveglianza), Judges of Preliminary Investigations and Ordinary Courts
Deciding body type
National Court/Tribunal
Deciding body
Constitutional Court
Decision date
  • Italy / Constitutional Court / 32/2020
    Key facts of the case:
    Several Italian judicial authorities challenged the constitutional legality of Art. 1.6(b) of the Law No. 3 of 9 January 2019 on “Measures to counter criminal offences against the public administration, as well as on time-barring and transparency of political parties and movements”. According to the complainants, this disposition is constitutionally illegal since people charged with these offences are excluded from the possibility to access alternatives to detention if they perpetrated the crime before the entry into force of the Law No. 3/2019 .
    Key legal question raised by the Court:
    According to the complainants, the challenged disposition represents a violation of the principle of legality and non-retroactivity of penalties, as established by Art. 25.2 and Art. 117.1 of the Italian Constitution, in connection with Art. 7 of the European Convention on Human Rights, Moreover, the challenged disposition might represent also a violation of Art. 24.2 of the Italian Constitution as for the right to defence, since the reform introduced with the Law no. 3/2019 nullified the defence strategies of the defendants who have been sentenced before the reform who might have opted for alternative judicial procedures, as for instance the summary judgement (rito abbreviato) to obtain a reduction by one third of the sentence. Eventually, the challenged disposition might represent, also, a violation of Art. 3 of the Italian Constitution, as per the right to non-discrimination among subjects who perpetrated the same criminal offences but are subject to two different detention regimes
    Outcome of the case:
    The Constitutional Court agreed with the complainants’ argumentation and decided for the constitutional illegitimacy of the challenged disposition. According to the Court, the above-mentioned disposition violates Art. 25.2 of the Italian Constitution, since the new detention regime introduced for the considered criminal offences in 2019 relevantly change the detention conditions of the perpetrators, with a crucial impact on their personal freedom. For this reason, the challenged disposition does not merely concern organisational issues of the detention system, but it is directly associated with the penalties’ discipline and cannot consequently be retroactive.
  • Paragraphs referring to EU Charter

    “4.3.1. – As it is noted, Art. 25.2 of the Italian Constitution entails both the prohibition of retroactive application of the legislation punishing a conduct that previously was criminally irrelevant, and the prohibition of retroactively applying a Law envisaging a more severe penalty for a conduct that was already sentenced. This latter prohibition is explicitly mentioned by Art. 7.1 of the ECHR, by the International Covenant on Civil and Political Rights and by Art. 49.1 of the EU Charter of Fundamental Rights”.

  • Paragraphs referring to EU Charter (original language)

    “4.3.1. - Come è noto, dall’art. 25, secondo comma, Cost. discende pacificamente tanto il divieto di applicazione retroattiva di una legge che incrimini un fatto in precedenza penalmente irrilevante, quanto il divieto di applicare retroattivamente una legge che preveda una pena più severa per un fatto già in precedenza incriminato (da ultimo, sentenza n. 223 del 2018); divieto, quest’ultimo, che trova esplicita menzione nell’art. 7, paragrafo 1, secondo periodo, CEDU, nell’art. 15, paragrafo 1, secondo periodo, del Patto internazionale sui diritti civili e politici, nonché nell’art. 49, paragrafo 1, seconda proposizione, della Carta dei diritti fondamentali dell’Unione europea (CDFUE)”.