Article Italy: Constitutional Court Declares Certain Procedures Relating to Rights of the Accused Unconstitutional

On November 10, 2022, the Italian Constitutional Court declared unconstitutional certain provisions of the Criminal Procedure Code concerning the deadline for defendants to file defenses against charges in abbreviated trials (giudizio direttissimo). (Decision No. 243 of November 10, 2022) (in Italian).) 

Underlying Case

In the underlying case, the Ordinary Court of Florence raised the issue of the constitutionality of article 451, paragraphs 5 and 6, and article 558, paragraphs 7 and 8 of the code where they provide for the defendant’s right to file a defense within a stipulated period only after the opening of the hearing, instead of also providing for the possibility of accessing alternative procedures following the stipulated period for filing a defense. (Decision, Considerations of Fact No. 1.)

The Florentine court raised the possibility that the provisions of the code were unconstitutional in light of article 3, article 24, and article 117, first paragraph of the Italian Constitution, which refer to the right of all citizens to equal social dignity and equality before the law, to the right to defend oneself before a court of law, and to the legislative powers of the state vis-à-vis European and international obligations. The court also mentioned the European Human Rights Convention, article 6, paragraph 3(b), on the right of criminal defendants to have adequate time and facilities to prepare their defense, and the International Covenant on Civil and Political Rights of 1966, ratified by Italy by Law No. 881 of October 25, 1977.

In the underlying case, the criminal defendant was charged under article 497-bis of the Criminal Code with the crime of possessing and manufacturing false identification documents. The court held a first hearing in which it validated the arrest and gave the defendant a stipulated period in which to file a response, after which an abbreviated trial consisting of a single hearing was to follow. (Considerations of Fact No. 1.1.)

The substance of the constitutional challenge was that by scheduling a hearing for an abbreviated trial, the court denied the defendant’s right under article 444(1) of the Criminal Procedure Code (C.P.C.) to request the judge to apply a substitute sentence or a monetary penalty, reduced by up to a third, or a custodial sentence also reduced by up to a third when the assigned penalty does not exceed five years alone or combined with a fine. (Considerations of Fact No. 2.1., para. 3.) This request may be submitted up to the opening statement of the trial of first instance in the abbreviated trial. (C.P.C. art. 446(1); Decision, Considerations of Fact No. 2.1., para. 2.)

The Florentine court submitted to the Constitutional Court that in cases where an abbreviated trial was to be held, defendants’ requests for the application of lesser penalties under article 446 of the Criminal Procedure Code would have to be denied, and this denial would violate their constitutional right to defense because they would be compelled to choose between filing a defense within the stipulated period established after the first hearing and subjecting themselves to an abbreviated trial, or forfeiting their right to request the application of a diminished penalty per article 446(1) of the Criminal Procedure Code. (Considerations of Fact Nos. 2.1., para. 4 & 3.1, para. 2.)

In sum, the challenged provisions ordering the abbreviated trial would be unconstitutional to the extent that they do not allow defendants to also use their right to request diminished penalties. (No. 3.2, para. 4.)

The court recalled that the European Court of Human Rights has repeatedly held that the fairness of the trial does not depend only on informing defendants in a timely manner about the claims raised against them, but also on guaranteeing them the time and means necessary to adequately prepare their defense. (No. 3.3, para. 2.)

Reasoning of the Constitutional Court

The court acknowledged that the challenged provisions created an unreasonable difference in treatment for defendants who are subject to an abbreviated trial compared to defendants tried with a different procedure. (Decision, Considerations of Law, No. 1.2, para. 2.) According to the court, in prior decisions the same court found no incompatibility between the defendants’ two options as it is a prerogative of the respective court to accept one or the other. (No. 3.2, para. 3.) In other decisions, however, the Constitutional Court had held that the granting of the stipulated period for a defense does not preclude, until the formal opening of the trial of first instance, the request for special procedures concerning reduced penalties. (No. 3.3, para. 1.)

However, the court reasoned that settled constitutional case law recognizes that the possibility of exercising the right to request an alternative penalty constitutes one of the most important methods for defendants to exercise their right of defense. (No. 4, para. 2.) Equally, the court recalled its prior holdings stating that defendants must be able to carry out their election of the procedure with full awareness of the possible sanctions resulting from one or the other procedure vis-à-vis the charges pressed by the public prosecutor. (No. 4, para. 3.) In addition, the court held that the defendants’ election of alternative procedures must not be subject to excessive time constraints that would entail “the sacrifice of the defendant’s essential defense necessities on the altar of speed of the trial time.” (No. 4.1, para. 1.)

Decision of the Constitutional Court

The court declared the constitutional illegitimacy of article 451, paragraphs 5 and 6, and article 558, paragraphs 7 and 8 of the Criminal Procedure Code, as interpreted in the sense that the granting of the time limit for the defense in abbreviated trials precludes defendants from formulating, in the first hearing following the expiry of this time limit, the request for summary judgment or the application of alternative penalties in accordance with article 444 of the same code. (Decision, Considerations of Law No. 5 & Holding.) As a result, in abbreviated trials there is no time limitation (beyond the trial hearing) for defendants to request alternative penalties according to articles 444 and 446 of the Criminal Procedure Code.