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The Single-Judge Court of Lecce, by its order of 21 March 2023, considered well founded the question of constitutional legitimacy, for breach of Articles 3 and 76 of the Constitution, in relation to…
The Single-Judge Court of Lecce, by its order of 21 March 2023, considered well founded the question of constitutional legitimacy, for breach of Articles 3 and 76 of the Constitution, in relation to Article 635 of the Criminal Code, in so far as it does not provide that the offence in question is punishable on the complaint of the injured person, in the case under paragraph 2, no. 1) of the same article. That is, when the act (criminal damage) is committed in respect of things exposed to public trust.
Following the so-called “Cartabia reform”, the offence of criminal damage became punishable on the complaint of the injured person, provided that:
The injured person is not incapable by reason of age or infirmity;
It is not committed on the occasion of the offence under Article 331 of the Criminal Code;
The cases under paragraphs 2 and 3 of Article 635 of the Criminal Code do not apply.
The offence in question therefore remained prosecutable ex officio where it concerns:
Public buildings or buildings intended for public use or for worship, or buildings within the perimeter of historic centres, or buildings whose construction, renovation, recovery or rehabilitation works are in progress or have been completed, or other things indicated in no. 7) of Article 625 of the Criminal Code;
Works intended for irrigation;
Plantings of vines, trees or fruit-bearing shrubs, or woods, forests or woodlands, or forest nurseries intended for reforestation;
Sports equipment and facilities, for the purpose of preventing or interrupting sporting events.
The things indicated in no. 7) of Article 625 of the Criminal Code, as is well known, consist of “things existing in public offices or establishments, or subject to seizure or attachment, or exposed by necessity or by custom or by destination to public trust, or intended for a public service or public utility, defence or reverence”.
Accordingly, while the rationale of prosecution ex officio appears acceptable as regards property of public relevance, it is harder to see the reasonableness of the reference to things exposed to public trust.
The Salento court, having regard to the aim of the Cartabia reform (to encourage conduct directed at extinguishing offences before trial, for the benefit of the defendant, the victim and the judicial system), considers that the failure to provide for prosecution on complaint in the case under Article 635, paragraph 2, by reference to Article 627, paragraph 1, no. 7, limited to things exposed by necessity or by custom or by destination to public trust, breaches Article 3 of the Constitution, creating unequal treatment as against a person who, for example, is responsible for aggravated theft of the same property exposed to public trust and could benefit from the milder regime of prosecution. Indeed, under Article 2, letter i), of Legislative Decree no. 150/22 the cases in which theft is prosecutable on complaint were extended, providing that “The offence is punishable on the complaint of the injured person. Proceedings are, however, brought ex officio if the injured person is incapable, by reason of age or infirmity, or if any of the circumstances under Article 625, numbers 7, save where the act is committed in respect of things exposed to public trust, and 7-bis) applies”.
In practice, the anomalous situation would arise in which a person who takes, for gain, a car parked on a public street (an offence with a statutory penalty well higher than criminal damage) could benefit from a much more favourable regime of prosecution than a person who merely damages that car.
That legislative choice also appears unreasonable by reference to the rationale of the reform, which is directed at offences that lend themselves to compensatory and reparatory conduct, among which the damaging of property exposed to public trust may certainly fall. All of this with an added burden on the machinery of justice which, under the reform, should instead tend more towards an early conclusion of proceedings, including through reparation of the harm.
It is precisely on this unreasonable inequality of treatment that a conflict with Article 76 of the Constitution would also arise, because there would be a breach of the duty to respect the path marked out by the delegating statute.
The Court of Lecce therefore transmitted the papers to the Constitutional Court for determination of the question of the constitutional legitimacy of the last paragraph of Article 635 of the Criminal Code, for breach of Articles 3 and 76 of the Constitution, in so far as it does not provide that the offence is punishable on the complaint of the injured person also in the case under paragraph 2, no. 1), that is when the act is committed in respect of things exposed to public trust.
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