On April 7, 2023, the Constitutional Court of Italy issued Decision No. 65, declaring the unconstitutionality of article 72-bis of the Code of Criminal Procedure for not providing for the termination of criminal prosecution against a defendant affected by an irreversible physical illness.
Background to the Decision
The underlying case involved a defendant criminally indicted for “building violations” (reati edilizi) who was suffering from a serious physical illness (ALS), causing his progressive paralysis and depriving him of the use of language and of respiratory autonomy. (Decision, Considerations of Fact, no. 1.1, para. 1.) The case was tried at the Ordinary Court of Lecce, which raised the constitutional question for the Italian Constitutional Court.
In particular, the Constitutional Court was called to decide on the constitutionality of article 72-bis of the Code of Criminal Procedure because the article does not direct the judge to terminate criminal proceedings against defendants when their inability to consciously participate in the proceedings derives not only from irreversible mental pathologies but from physical pathologies. (Decision, Considerations of Fact, no. 1, para. 1.) The court pondered whether article 72-bis of the Code of Criminal Procedure violated article 3 of the Italian Constitution, which enshrines the right of all Italian citizens to equal social dignity and equality before the law. (No. 1, paras. 1–2.)
The attorney general of Italy argued against the challenge, claiming that while mental illness would prevent the defendant from understanding the fundamental aspects of criminal procedures and from making conscious decisions concerning his defensive options, physical illness would not affect his self-determination. Consequently, the attorney general requested the Constitutional Court to dismiss the challenge against article 72-bis of the Code of Criminal Procedure. (Considerations of Fact, no. 2.2, paras. 1–2; Considerations of Law, no. 1, para. 2.)
Reasoning of the Court
The court reasoned that in directing the judge to discontinue criminal proceedings against a defendant affected by a mental pathology — to the exclusion of a physical pathology — article 72-bis violated article 3 of the Constitution because it established an unreasonable difference in treatment between cases characterized by the same need. This need, the court added, consists in the use of public resources for a trial that should never have taken place because the defendant is suffering from a condition that diminishes his capacity “to intend and decide” (Considerations of Law, no. 5.1, para. 2), also inflicting on the defendant “a psychological suffering additional to that deriving from already compromised health” (Considerations of Fact, no. 1.2, paras. 1–2).
Moreover, the court recalled that the legislature had passed Legislative Decree No. 150 of October 10, 2022, implementing Law No. 134 of September 27, 2021, which sought to promote the efficiency of criminal procedures and to bring about restorative justice for the prompt settlement of judicial proceedings. (Considerations of Law, no. 3.)
The court also recalled that Law No. 103 of June 23, 2017 — which inserted article 72-bis of the Criminal Code — focused on the mental state of the accused when it “is such as to prevent conscious participation in the proceedings” and that the state is irreversible. (No. 3.1, para. 1.) This provision created the situation of the “eternally justifiable” defendant (Decision No. 23 of 2013; Considerations of Fact, no. 4, para. 2) — that is, the situation of the defendant affected by an irreversible mental illness, which triggers the suspension of the criminal procedure and the concurrent statute of limitations. (Considerations of Fact, no. 3.2, para. 1.)
The court rejected the attorney general’s “traditional” and “rigid” heterogeneous classification of illnesses which holds that it is always possible to analyze the pathological manifestations in strictly binary terms of mental and physical. This approach, the court held, did not take into account the spread of degenerative diseases (such as the one that had befallen the defendant in the underlying case), which despite its physical origins, can equally cause the defendant’s inability to actively participate in the criminal process. (Considerations of Law, no. 5.6.)
Finally, the court reaffirmed its previous findings (e.g., Decision No. 39 of 2004) that the legal system is clearly designed to allow for the suspension of criminal proceedings whenever the mental state of the accused “prevents his conscious participation in the trial.” (No. 5.3, para. 1.)
Holding of the Court
Accordingly, the court declared the unconstitutionality of article 72-bis, paragraph 1 of the Code of Criminal Procedure for referring to the criminal defendant’s “mental” state instead of his “psycho-physical” state. (Decision, Holding, no. 1.) Consequently, on the basis of article 27 of Law No. 87 of March 11, 1953 on the Constitution and Functioning of the Constitutional Court, the court also declared the unconstitutionality of article 70, paragraph 1; article 71, paragraph 1; and article 72, paragraphs 1 and 2 of the Code of Criminal Procedure because these provisions referred to the criminal defendant’s “mental” instead of his “psycho-physical” state. (No. 2.)
Dante Figueroa, Law Library of Congress
May 22, 2023
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