You are here:

Italy / Constitutional Court / Decision No. 43 of 2018

Ordinary Court of Monza

Policy area:
Justice, freedom and security
Deciding Body type:
National Court/Tribunal
Deciding Body:
Constitutional Court
Type:
Decision
Decision date:
24/01/2018

Key facts of the case:

The constitutional legitimacy question was raised by the Ordinary Court of Monza during a judicial proceeding involving a private citizen charged with tax evasion. The subject was convicted both by an administrative Court and a criminal Court of the same fiscal offence. According to the subject, the imposition of a double penalty for the same offence represents a violation of the ne bis in idem principle enshrined both in national legislation (art. 649 of the Italian Criminal Procedure Code) and international law (art. 4 of the Protocol No. 7 of the ECHR and thus indirectly art. 117.1 of the Italian Constitution). 

Key legal question raised by the Court:

According to Italian legislation, the subject – despite being already condemned to an administrative sanction – has to undergo a criminal proceeding as well for the same offence, thus violating – according to the Ordinary Court of Monza -  art. 4 of the Protocol No. 7 of the ECHR and thus indirectly the art. 117.1 of the Italian Constitution. It is also worth considering that the ne bis in idem principle – enshrined in art. 649 of the Italian Criminal Procedure Code – only applies to the criminal justice, thus leaving a gap in the discipline concerning the interaction between judicial proceeding of a different nature, such as the relationship between criminal and administrative proceedings. For this reason, the Ordinary Court of Monza asked the Constitutional Court to assess the legitimacy of the legislation in force, considering its compliance with  international Law. 

Outcome of the case:

According to the Constitutional Court the legislation in force must be considered constitutionally legitimate. The Court retraced the way national, EU and international law rule the ne bis in idem principle: this discipline does not prevent the possibility for the subjects to be involved in more than one judicial proceeding for the same offence; it requires these proceedings to be sufficiently closely connected in substance and in time, meaning that they must be not necessarily contemporary but consecutive and that they pursue the same goal, ruling different sides of the same offence and that each sanction is decided considering the others already imposed. The Court mentioned in particular the innovative interpretation of the above-mentioned principle conveyed by the ECHR decision A&B v. Norway (paragraph 132). Considering the retraced discipline, the Constitutional Court asked the Ordinary Court of Monza to return to the proceeding and come to a decision considering the provided interpretation.