Italy / Constitutional Court / Decision No. 149/2022

Ordinary Court of Verona vs private citizen
Deciding body type
National Court/Tribunal
Deciding body
Constitutional Court
Type
Decision
Decision date
10/05/2022
  • Italy / Constitutional Court / Decision No. 149/2022

    Key facts of the case:

    The private citizen (P.O.) was involved in a criminal proceeding before the Verona Ordinary Court for the infringement of Art. 171-ter of the Law No. 633 of 22 April 1941, governing intellectual property. He was charged for having, for profit, held for sale and unlawfully reproduced literary works photocopied in excess of the permitted limit of 15% in number of forty-nine texts at the copy shop of which he is the owner. This person had already been sanctioned for the same conduct with a fine amounting to EUR 5,974. The Verona Court raised the case before the Constitutional Court as an additional criminal proceeding for the same conduct would violate Art. 649 of the Italian Criminal Procedure Code, governing the ne bis in idem principle, which is the right not to be tried or punished twice in criminal proceedings for the same criminal offence. 

    Key legal question raised by the Court:

    According to the Verona Ordinary Court, this legislative disposition had to be deemed partially unconstitutional as it envisages the application of the ne bis in idem principle only in criminal proceedings, rather than also in those proceedings which are formally administrative but substantially criminal, as it was the case dealt with by the Verona Ordinary Court.

    Outcome of the case:

    The Constitutional Court deemed the raised question admissible and agreed with the argumentation of the Verona Ordinary Court, declaring that Art. 649 of the Italian Criminal Procedure Code is partially unconstitutional as it does not allow the courts to consider if the defendant has already been previously charged and sentenced for the infringement of the intellectual property legislation. Financial sanctions imposed for such infringement – even if formally administrative – are substantially punitive and, for this reason, the ne bis in idem principle must be applied as to not violate the defendant’s right not to be tried or punished twice in criminal proceedings for the same criminal offence.  

  • Paragraphs referring to EU Charter

    2.2 By its second objection, the State’s General Attorney essentially observes that the referring court could, on its own motion, have applied the principles developed by the case-law on market abuse, disapplying in whole or in part the rules defining the treatment of penalties for the offence at issue in the main proceedings, where that is necessary to ensure the proportionality of the penalties imposed on the defendant. And that by virtue of a direct application of Article 50 of the Charter of Fundamental Rights of the European Union.

  • Paragraphs referring to EU Charter (original language)

    2.2 Con la propria seconda eccezione, l’Avvocatura generale dello Stato osserva in sostanza che lo stesso giudice rimettente avrebbe potuto fare applicazione dei principi elaborati dalla giurisprudenza di legittimità in materia di abusi di mercato, disapplicando totalmente o parzialmente le norme che definiscono il trattamento sanzionatorio per il delitto che viene in considerazione nel giudizio a quo, ove ciò sia necessario per ricondurre a proporzionalità il complessivo trattamento sanzionatorio irrogabile all’imputato. E ciò in forza di una diretta applicazione dell’art. 50 della Carta dei diritti fondamentali dell’Unione europea (CDFUE).