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Italy: Constitutional Court Declares Revocation of Certain Criminal Offenders’ Driver’s Licenses Unconstitutional

(July 2, 2020) On May 29, 2020, the Italian Constitutional Court issued a decision declaring unconstitutional a provision of the New Highway Code that established the automatic revocation of certain criminal offenders’ driver’s licenses. (Decision No. 99 of May 27, 2020.)

Background of the Case

The regional administrative court (Tribunale Amministrativo Regionale, TAR) for Italy’s Marche region raised a constitutional legitimacy question regarding the power of a prefect (police chief) to revoke the driver’s license of a released convicted criminal still subject to anti-Mafia preventive measures because, according to article 120, paragraph 2 of Legislative Decree No. 235 of April 30, 1992 (New Highway Code), “The recipient of the revocation order cannot obtain a new driver’s license before at least three years have passed … ‘even if a judicial order declaring that the subject no longer poses any danger [to public safety] is issued’.”

The constitutional referral argued that the language of the challenged provision in the New Highway Code specified that the prefect automatically “provides” for the revocation of the license instead of “can provide” at the prefect’s discretion for the revocation of the license. The claim noted that the automatic nature of the revocation would impede the offender from carrying out lawful work activities during the whole period of the respective sentence, thus making the measure even more onerous than what the criminal judge had intended. (Considerations of fact § 1, para. 2.)

The constitutional referral claimed that the challenged provision violated articles 3, 4, 16, and 35 of the Italian Constitution (English translation), which guarantee, in general, equality before the law and due process, the right to work and its protection through international agreements, freedom to reside anywhere in the country and to leave and reenter the national territory, and the right to emigrate from Italy. (Considerations of fact § 1, para. 1.)

Reasoning of the Court

The court reasoned that its previous case law had deemed the automatic revocation of the driver’s license by the prefect as contrary to the principles of equality, proportionality, and reasonableness. (Considerations of law § 4.3, para. 2.) The court highlighted the arbitrariness of the provision in that other criminal provisions establish the measure of revocation against offenders who have been convicted or suspected of criminal offenses of different levels of severity, ranging from crimes of high social alarm (such as terrorism and Mafia-type associations) to crimes of less intense social danger, including those criminals who habitually live, even partially, off the proceeds of criminal activities. (Considerations of law § 5, para. 3.) The challenged provision, instead, applied the automatic revocation to much less serious crimes and prevented the affected individuals from finding substantive gainful employment. (Considerations of law § 5, para. 5.)

Holding of the Court 

The court concluded that the application of the same penalty to conduct that is meaningfully different in its gravity and dangerousness is inherently unreasonable and violates essential principles of the Italian Constitution. (Considerations of law § 5, para. 7.) Accordingly, the court declared the constitutional illegitimacy of article 120, paragraph 2, of Legislative Decree No. 285 of April 30, 1992 (New Highway Code) because it establishes that the prefect must revoke the driver’s license of criminal offenders who are or have been subject to anti-Mafia preventative measures. (Holding, para. 1.)