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With the introduction of the Codice Rosso there was, among other changes, a change of jurisdiction over offences of domestic abuse which, whereas they were previously tried by the court sitting as a single judge…
With the introduction of the Codice Rosso there was, among other changes, a change of jurisdiction over offences of domestic abuse which, whereas they were previously tried by the court sitting as a single judge, are now, following Law 69/2019, within the jurisdiction of the court sitting as a panel. The problem of jurisdiction is, however, linked to the principle of tempus regit actum, and that question was addressed by our firm only recently. We therefore set out the case handled by our firm.
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THE FACTS: Our client is charged with the offence under Article 572 of the Criminal Code, aggravated by having committed the act to the detriment of and in the presence of his minor child (under Article 61, no. 11-quinquies, of the Criminal Code), from January 2017 to 9 February 2019. Following the charge, the public prosecutor’s office served notice under Article 415-bis of the Code of Criminal Procedure, dated 15 April 2019. After that service, the public prosecutor drew up, on 22 July 2019, a request for committal for trial, following which the preliminary hearing judge, by notice of 19 February 2020, fixed the prescribed preliminary hearing for 3 July 2020. After the preliminary hearing had been duly held, the defendant was committed for trial before the Single-Judge Court of Bari, before which, on 7 October 2020, there being no preliminary issues, the evidence was admitted and the trial was declared open. The case was then adjourned to the hearing of 31 March 2021 to hear the first witnesses on the public prosecutor’s list. On that date, however, the trial was not held because of the restrictions imposed by the Covid-19 pandemic and was subsequently adjourned to the hearing of 16 June 2021 before another judge. The “new” judge, having recorded the change in the person of the judge, revoked the orders made by the previous judge and declared himself without jurisdiction by subject matter, sending the case to this court sitting as a panel. The single judge writes in his order that: “… at the time of the decree ordering trial, the offence in question, although committed on an earlier date, was plainly to be attributed to the court sitting as a panel, in application of Article 33-bis, paragraph 2, of the Code of Criminal Procedure; whereas Article 33-bis, paragraph 2, of the Code of Criminal Procedure, which attributes to the court sitting as a panel ‘… offences punishable by imprisonment exceeding ten years at the maximum …’, uses the legislative technique of reference which, this being a procedural rule and as such subject to the principle of tempus regit actum and not to Article 2 of the Criminal Code, must be referred to the offence-creating provision in force at the time of the procedural act of attribution — that is, the decree ordering trial — and not to that in force at the time of the commission of the act; the latter, if anything, is relevant in the different context of the application of the criteria governing the succession of criminal laws in time under Article 2 of the Criminal Code; whereas that principle of law has recently also been stated by the case law of the Court of Cassation in a case very similar to the one in issue, where the charge concerned an offence (that under Article 642 of the Criminal Code) which, at the time of the commission of the act, required the criminal action to be brought by a decree of direct summons for trial, while, at the time of the procedural act, it required a decree ordering trial, by reason of a legislative amendment which increased the statutory sentencing range; in that regard, it was held that ‘as regards the bringing of the criminal action by direct summons for trial, the reference in Article 550 of the Code of Criminal Procedure to imprisonment not exceeding four years at the maximum is “fixed” because, given the non-derogable nature of the principle of tempus regit actum in procedural matters, it must be referred to the rule in force at the time the criminal action is brought and not to the substantive rule concretely applicable to the defendant, on the basis of the criteria governing the succession of criminal laws in time’ (Cass. pen., Second Division, 12 February 2021, judgment no. 9876); holding, therefore, that the offence is to be attributed to the court sitting as a panel, and not to the court sitting as a single judge, what is relevant in that regard being the procedural rules in force at the time of the procedural act, and not the substantive rules in force at the time of the commission of the offence, so that it is irrelevant, for procedural purposes, that, in the present case, a more favourable statutory range was in force at the time of the commission of the offence”. In substance, the single-judge court declared itself without jurisdiction, in favour of the court sitting as a panel, on the footing that, following the amendment made by Law 69/2019, the penalty for the offence under Article 572 of the Criminal Code committed in the presence of, or to the detriment of, a minor was increased. The single judge therefore writes that, from the procedural point of view, the new reform must be followed, while, from the substantive point of view and on the basis of the principle of favor rei, the previous rules are observed. Furthermore, according to the single judge, the focal point for identifying the moment of transition, in procedural terms, from the rules preceding the reform to the new ones is the decree ordering trial, issued following the preliminary hearing held, as stated, on 3 July 2020 (and therefore after the reform laid down by the “Codice Rosso”). As is well known, the offence under Article 572 of the Criminal Code was amended following the introduction of the so-called “Codice Rosso” (Law 69/2019), enacted on 25 July 2019 and in force on 9 August 2019. That law, as stated, changed not only the penalty but also the procedural aspect, giving jurisdiction to the court sitting as a panel in cases in which (paragraph 2) the offence is committed to the detriment of or in the presence of a minor. Accordingly, on the single judge’s reasoning, the decree ordering trial being dated July 2020, the procedural regime introduced in August 2019 by the so-called “Codice Rosso” must be applied under the rules of tempus regit actum. In our view, however, jurisdiction was, and had to remain, that of the single-judge court, and that is also clear from a reading of the Court of Cassation judgment cited by the single judge in his order. That judgment states that “as regards the bringing of the criminal action by direct summons for trial (which is not our case), the reference in Article 550 of the Code of Criminal Procedure to imprisonment not exceeding four years at the maximum is ‘fixed’ because, given the non-derogable nature of the principle of tempus regit actum in procedural matters, it must be referred to the rule in force at the time the criminal action is brought and not to the substantive rule concretely applicable to the defendant, on the basis of the criteria governing the succession of criminal laws in time” (Cass. pen., Second Division, 12 February 2021, judgment no. 9876). It is therefore the moment at which the criminal action is brought that governs the procedural sphere, and that moment is marked, in our case, by the request for committal for trial and not by the decree ordering trial. The request for committal for trial, as is well known, is the act by which the public prosecutor brings the criminal action. By that act the prosecutor’s office asks that the defendant be called to answer for the offence described in the charge. In the present case, the request for committal for trial, signed by the public prosecutor, is dated 22 July 2019 (and therefore well before the “Codice Rosso” reform). The single judge’s reference to the decree ordering trial is therefore of no avail. That act is nothing other than the direct consequence of the criminal action already brought by the public prosecutor. It is the public prosecutor’s office that holds the “power” to bring the criminal action, and certainly not the preliminary hearing judge, who is called upon to assess the conditions of the request for committal formulated by the prosecutor’s office. Accordingly, under the principle of tempus regit actum already recalled, the procedural aspect contemplated by the previous rules remains in force, leaving jurisdiction to decide the offence in issue with the single-judge court. There is, however, a further element to consider. The offence being prosecuted requires service of notice under Article 415-bis of the Code of Criminal Procedure. Article 50 of the code of procedure specifies that the public prosecutor brings the criminal action when the conditions for a request to discontinue are not met. That intention is therefore manifested through the notice under Article 415-bis of the Code of Criminal Procedure, by which the public prosecutor makes known his position on the report of the offence, declaring his intention not to request discontinuance but instead to proceed against the suspect. The intention to bring the criminal action is therefore already discernible in the notice under Article 415-bis of the Code of Criminal Procedure which, in our case, is dated 15 April 2019, well before the reform introduced by the so-called “Codice Rosso”. It is therefore plain that jurisdiction must remain with the single judge, the court sitting as a panel being without jurisdiction under the principle of tempus regit actum. The only possible jurisdiction by subject matter is therefore that of the single-judge court, and the submission concluded by asking that the papers be transmitted to the single-judge court.
The court sitting as a panel, accepting the request in part, transmitted the papers to the Court of Cassation for resolution of the conflict.
THE DECISION OF THE COURT OF CASSATION: The Court of Cassation, First Division, by judgment 24007 of 2022, sharing our argument, returned the papers to the single-judge court, declaring it to have jurisdiction to decide the matter. We set out an extract of the judgment of the Court of Cassation:
“regard must be had to the date of the request for committal for trial made against …… (22 July 2019, prior to the legislative amendment made by Law no. 69 of 2019, which entered into force on 9 August 2019) and not to that of the decree which ordered trial (3 July 2020), as the single-judge court held. Consequently, since the offence being prosecuted, committed from January 2017 to 9 February 2019, is not punishable by a penalty exceeding ten years at the maximum, jurisdiction to decide lies with the Court of Bari sitting as a single judge, to which the papers are to be transmitted.
