On April 14, 2022, the Italian Constitutional Court issued Decision No. 95, declaring that a Criminal Code provision concerning penalties for indecent conduct in public places was unconstitutional. The court considered unconstitutional the part of article 726 of the Criminal Code establishing the pecuniary administrative sanction of 5,000 euros–10,000 euros (€) (about US$5,264–$10,529), and held that the penalty should instead be €51–€309 (about US$53–$325).
The Justice of the Peace of Sondrio raised a constitutional legitimacy question before the Constitutional Court regarding article 726 of the Criminal Code, as replaced by article 2(6) of Legislative Decree No. 8, of January 15, 2016 on the decriminalization of particular conduct. (Decision, Statements of Fact, No. 1, para. 1.) The challenged provisions provided that “[a]nyone who, in a public place or in a place open or exposed to the public, carries out acts contrary to public decency is subject to a pecuniary administrative sanction of €5,000 to €10,000.”
The underlying case consisted of the administrative prosecution of an individual who urinated in a parking space next to a local discotheque when the public bathrooms of the facility were functioning normally, as reported by the local Sondrio police. (Decision, Statements of Fact, No. 1.1, para. 1.)
The referring court noted that the conduct of the individual could “denote a certain indifference, neglect, thoughtlessness, inattention to the social norms that regulate coexistence, but certainly not the will (id est, malice) to offend.” (Decision, Statements of Fact, No. 1.1, para. 4.) The referring court also mentioned that the challenged provision did not distinguish between a malicious and negligent action, and that the penalty was disproportionate in light of other comparable offenses in the Italian criminal justice system. (Decision, Statements of Fact, Nos. 1.1, para. 5 & 1.2, para. 1, respectively.)
Consequently, the challenged provision would violate article 3 of the Italian Constitution, which establishes the principle of proportionality of criminal penalties, particularly because the pecuniary penalties established for the conduct under review were higher than those established for more serious conduct, as regulated in article 527, paragraph 3, of the Criminal Code, which penalizes obscene acts (that is, those of an offensive sexual nature) in public places. (Decision, Statements of Fact, No. 1.2, para. 2.)
Reasoning of the Constitutional Court
The Attorney General of Italy defended the constitutionality of the challenged provision on the grounds that, among other arguments, the Italian state needs to punish conduct that negligently conflicts with the rules of civic life, which have been established ne cives ad arma veniant (so that citizens do not come to arms) and which have become even more relevant vis-à-vis the “increasingly vast coexistence of cultural groups of extremely different origins on the national territory due to the migratory phenomenon.” (Decision, Statements of Fact, No. 2.2.)
The court considered that the conduct under review was “certainly capable of generating harassment and annoyance, but equally undoubtedly of limited value, resulting — ultimately — in an expression of neglect with respect to the rules of good manners typical of a civil coexistence.” (Decision, Statements of Law, No. 4.2, para. 3.)
The Constitutional Court recalled that before the amendment of article 726 of the Criminal Code by Legislative Decree No. 8 of 2016, the same provision penalized conduct contrary to public decency in public places with incarceration for up to a month or a pecuniary fine of €10–€26 (about US$10.54–$27.41). (Decision, Statements of Fact, No. 3.1, para. 1.) In turn, article 527, paragraph 1, penalized obscene acts in public places with incarceration of three months to three years, while paragraph 2 of the same provision enabled a fine to be applied when there was only negligence in the commission of the act. (Decision, Statements of Law, No. 3.1, para. 3.)
The court mentioned its own jurisprudence recognizing that Italian criminal legislation clearly distinguishes between obscene acts and acts contrary to public decency, allocating a higher gravity to the former (as offensive to sexual modesty) as compared with the latter (as violative of social manners). (Decision, Statements of Law, No. 3.1, para. 4.)
The court found that there was a manifest lack of proportionality in the amount of the pecuniary penalties established in article 726 of the Criminal Code, which was violative of article 3 of the Italian Constitution, therefore meriting the invalidation of the provision. (Decision, Statements of Law, Nos. 4.3 & 5, para. 1.)
The court concluded that the legislator was under a constitutional obligation to “equate” the amount of the pecuniary penalties currently contained in article 527, paragraph 3 of the Penal Code, which covers obscene acts carried out through “fault” (negligence), to the conduct described in article 726 of the same Code. (Decision, Statements of Law, No. 5, para. 3.)
Decision of the Court
Consequently, the court declared the unconstitutionality of that part of article 726 of the Criminal Code — as replaced by article 2(6) of Legislative Decree No. 8 of 2016 — which established the pecuniary administrative sanction of €5,000–€10,000 for the crime of indecent conduct in public places. It held that the penalty should instead be €51–€309. (Decision.)
The effects of the Constitutional Court decision are retroactive, meaning those who at the time of its issuance were being prosecuted for urinating in a public place will no longer be tried for acts against public decency but will be subject to an administrative fine. Those administratively prosecuted may exculpate themselves before the Justice of the Peace within 30 days of receiving the sanction by presenting a medical certificate explaining the health reasons for the action.