The Report on the Activities of the Italian Constitutional Court in 2019

The Trends in the Italian Constitutional Jurisprudence, in the Report by President Cartabia

The Report is available here.


1. We would like to point out to our readers that the Report on the activities of the Constitutional Court in 2019, signed by President Marta Cartabia, was published on 29th April 2019 and can be read attached. It is a document of particular interest, in many perspectives, also for criminal academics.

The Report highlights some important news. In view of the Court's openness towards civil society, the recent introduction of the amici curiae Institute and the possibility of listening to experts are particularly substantial (in this regard, see an article by S. Finocchiaro). Significant are also some figures relating to the increase in the demand for constitutional justice, the increase in the number of judgments, compared to that of ordinances, and the average duration of the judgment, equal to ten months. 

Above all, in her Report, President Cartabia identifies three main trends in the recent constitutional jurisprudence, which provide a plurality of food for thought, also and precisely for criminal academics.


2. A first trend line is represented by the principle of loyal cooperation with and between Institutions, which is acknowledged to be of constitutional importance: “the full implementation of constitutional principles can only be collective in nature, and requires the active, loyal cooperation of all the Institutions: ordinary courts, international courts, the regions, the Public Administration, and, above all, the national Legislator”.


3. A second trend, highlighted in the Report, concerns interjurisdictional cooperation in the protection of fundamental rights. “With three 2019 decisions in particular – Judgments no. 20 and 63, and Order no. 117, which makes a new reference for a preliminary ruling to the Court of Justice of the European Union – the Court wished to reiterate the cooperative and inclusive import of the shift established by its case law in recent years. Cooperating with all relevant courts and tribunals, and maximizing the protection of fundamental rights, are the compass points that guide the work of the Constitutional Court in this field. And the Court’s contribution is all the more necessary the more that EU law acquires a constitutional character, starting with acknowledging the legal value of the Charter of Fundamental Rights.”


4. Finally, a third trend identified in the 2019 constitutional jurisprudence concerns a stronger supervision on criminal law and the execution of criminal sentences (paragraph that we bring back here in full).

“In 2019 the Court devoted special attention to criminal justice, continuing along a trajectory that has marked the past several years. Here, the new developments relate not so much to criminal procedure as to prison law and substantive criminal law itself; areas that, in the past, were typified by extreme deference to legislative discretion on the part of the Constitutional Court. Over time it became increasingly clear that it is unacceptable for the Court to limit its scrutiny, precisely in the area where the fundamental rights of the person come to the fore most clearly in relation to the punitive authority of the State, simply because a univocal solution is absent. Therefore, this became another area in which the Court, driven by a new degree of sensitivity, sought solutions already existing in the system that were suitable to remove the unconstitutional rule while simultaneously preserving the discretion of the Legislator.

The Constitutional case law of recent years has relied upon certain fundamental principles that have permitted the Court to carry out more precise constitutional evaluations, including in these areas. One is the principle of proportionality of punishment, implied by the principle of reasonableness (Article 3 of the Constitution) and the rehabilitative purpose of punishment (Article 27 of the Constitution), and stated explicitly in the case law of the European Courts. The Court applied this principle, with opposite outcomes, in Judgment no. 40, a drug trafficking case, and Judgment no. 284, about insulting a public officer.

Then, the principle that criminal punishments be flexible and based on individual circumstances, in order to meet the rehabilitative purposes of punishment as required under Article 27 of the Constitution, led the Court to several high-impact rulings in 2019. A few of the most important examples bear mentioning here.

Judgment no. 99 extended the scope of application of house arrest, for cases of convicted persons affected by serious mental illness, the onset of which came after they began serving their sentence.

One particularly important decision was Judgment no. 253, which struck down Article 4-bis(1) of the prison system law in the part in which it failed to allow inmates convicted of specified crimes to have access to bonus periods of short release unless they cooperated with the judicial authorities, even when acquired evidence indicated that they neither maintained current links with organized crime nor posed a risk of reinstating past links. The Court held that the existing scheme, which placed an absolute bar on these inmates’ access to the bonus periods of short release, made it impossible to carry out concrete evaluations of an offender’s progress toward rehabilitation in prison and ran the risk of stifling such progress entirely. The presumption of non-qualification for the bonus had to be rebuttable through the case-by-case demonstration of the separation that has occurred between the offender and the relevant criminal organization, and of the absence of any risk that such ties will be re-established as the prisoner enjoys the bonus.

For the same reasons, the parallel Judgment no. 263 declared that a similar prohibition that applied to juvenile offenders was unconstitutional, especially in light of the special protection that the Court has always afforded juvenile detainees.

The Court’s work in these areas will allow the supervisory courts, whose task it is to exercise their discretionary powers through careful discernment, to pursue the aims of rehabilitating detainees, at the same time without disregarding the demands of public safety, by calibrating each decision according to each offender’s progress, taking into account the full range of concrete circumstances.”


5. Before concluding, what President Cartabia writes in her Report on the COVID-19 outbreak and its implications for fundamental rights deserve to be highlighted and mentioned:

Our Constitution does not envisage a special form of law for states of emergency, and this was a conscious choice. The text of the Constitution does not contain clauses suspending fundamental rights, which can be triggered by exceptional circumstances, nor provisions that allow for changes to the power structures in times of crisis, similar to article 48 of the Weimer Constitution, or article 116 of the Spanish Constitution or article 16 of the French Constitution.

Nevertheless, the Constitution is not insensitive to changing circumstances, or to the potential outbreak of emergency situations, crises, or extraordinary cases of necessity and urgency, as Article 77 of the Constitution puts it, on the topic of decree-laws. The Italian Republic has passed through various crises and emergencies – from the years of armed conflict to the more recent economic and financial crisis – all of which have been dealt with without ever suspending the constitutional system, but rather drawing from within it the tools it has needed to adjust constitutional principles to meet specific needs: necessity, proportionality, balancing, justiciability and transience are the criteria with which, according to constitutional case law, the “systemic and not piecemeal” protection of the principles and fundamental rights enshrined in the Constitution must be implemented in every day and age (Judgment no. 264 of 2012).

This means that even today, it is the Constitution, such as it is – with its balanced complex of principles, powers, limits and guarantees, rights, duties, and responsibilities – that offers government Institutions and citizens a much-needed compass to navigate “the high seas” of the current emergency and post-emergency period that awaits us.”

(Extract from the Italian version published on Sistema penale)