On July 4, 2024, Italy’s Constitutional Court declared unconstitutional a legal provision that limited the pool of eligible persons who may receive benefits as survivors of victims of organized crime. (Decision No. 122 of May 21, 2024 (in Italian).)
Background
Law No. 302 of 1990 contains provisions establishing compensation to the victims of terrorism and organized crime, namely a payment of 200,000 euros (around US$220,000) to survivors of persons who are killed in acts of terrorism or mafia-related criminal acts. (Art. 4, para. 1.) The benefit is available to survivors who are either family members or common-law cohabitants or cohabiting dependents who are not relatives or linked by a marital relationship. (Art. 4, para. 2.)
In 2008, an amendment to this law provided that such benefits should be denied to a “spouse, in-law or cohabitant” of a person subject to pending proceedings for a mafia-related crime. (Article 2-quinquies, paragraph 1(a) of Decree-Law No. 161 of October 2, 2008, Urgent Measures for the Prevention and Detection of Crimes, the Fight Against Organized Crime and Illegal Immigration, inserted by the Conversion Law No. 186 of November 28, 2008 (in Italian).)
In 2009, the law was further amended to extend this denial of benefits to a “relative or in-law within the fourth degree” of such a defendant. (Law No. 94 of July 15, 2009, article 2, paragraph 21, modifying Article 2-quinquies, paragraph 1(a), of Decree-Law No. 161.)
Constitutional Question
The Constitutional Court was asked to consider the constitutionality of the 2009 amendment to Decree-Law 161 denying survivor benefits to relatives of persons charged with a mafia-related crime. (Considerations of Fact No. 1, para. 1.)
The constitutional challenge originated in a request by Appellate Court of Naples, which raised the question whether the challenged provision was contrary to the Italian Constitution, specifically article 3 (guarantee of equality before the law) or article 24 (right of legal defense).
The referring tribunal noted that the contested provision, in denying the benefits established by Law No. 302 to relatives within the fourth degree of persons accused of mafia-related crime, would risk harming those who have courageously dissociated themselves from their families of origin and for that reason have lost the affection of a family member. (Considerations of Fact No. 1.2, paras. 2 and 3.) It noted that the stated purpose of the challenged provision is to prevent criminal associations from profiting from the economic benefits granted by the government, by virtue of “ties of co-interest, solidarity, coverage or, at least, subjection or tolerance” established in the family context. (Considerations of Fact No. 2.2., paras. 2 and 3.)
Reasoning of the Constitutional Court
The Constitutional Court noted that while the 2008 amendment initially only excluded the “spouse, in-law or cohabitant” of a mafia-related criminal defendant, the 2009 modification further denied benefits to a “relative or in-law within the fourth degree” of such a criminal defendant. (Considerations of Fact No. 1.1, para. 3.)
The Constitutional Court observed that persons with kinship or even close affinity relationships with members of criminal organizations are sometimes strangers to them. For that reason, it said, the challenged provision could harm persons who, despite their family ties with members of criminal organizations, have distanced themselves from them and who perhaps have suffered the loss of affection from a family member. (Considerations of Law No. 1.2, paras. 3 and 4.)
As a result, the challenged provision would violate the constitutional principle of equality, as it would establish “a real discrimination based exclusively on family origin.” (Considerations of Law No. 1.2, para. 6.) It would also violate the right to take legal action and defend oneself in court contemplated in article 24 of the Constitution, thus preventing the interested party from demonstrating in a fair trial that he or she deserves the benefits. (Considerations of Law No. 12, para. 1.)
Ultimately, the Constitutional Court held, a judge would be in the best position to determine an applicant’s entitlement to the benefit, by evaluating their ties of kinship or affinity with criminal defendant, including the absence of any substantive contacts, the severance of ties with the family of origin, and behavior incompatible with the logic and hierarchies of values established in the criminal world. (Considerations of Law No. 13, paras. 1 and 2.)
Decision of the Constitutional Court
The court declared the constitutional illegitimacy of the provision in Decree-Law No. 161 of October 2, 2008, as modified in 2009 to deny benefits to one who is a “relative or kinship within the fourth degree,” thus leaving to judicial determination the assessment of beneficiaries of government emoluments to survivors of victims of organized crime. (Holding, and Considerations of Law No. 14.)
Dante Figueroa, Law Library of Congress
August 21, 2024
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