Constitutional Court: the obligation to submit an application for acceleration of the criminal trial for the purposes of compensation for excessive duration is unconstitutional

The Constitutional Court with a judgment of 30 July 2021 n. 175 declared the illegality of art. 2, paragraph 1, in relation to art. 1-ter, paragraph 2, of Law no. 89, which makes the recognition of the right to a fair reparation conditional on the experimentation of the preventive remedy consisting in filing a request for acceleration at least six months before the reasonable deadlines provided for by art. 2, paragraph 2-bis.

The Court, having referred to its own judgments on the subject, consistent with the elaboration of the ECtHR, for which, for the purposes of the "effectiveness" of the appeals relating to cases concerning the excessive duration of the proceedings, the best solution in absolute terms is the prevention; which means that, with respect to the obligation to examine the causes within a reasonable time, imposed by art. 6, paragraph 1, of the ECHR to the Contracting States, any shortcomings of the judicial system can be compensated in the most effective way by an appeal aimed at speeding up the proceedings.

According to the Court, such an appeal is preferable to a merely compensatory remedy, but it is "effective" only to the extent that it makes the decision by the court concerned more prompt and is adequate only if it does not intervene in a situation in which the duration of the proceeding has already been clearly excessive (ECtHR, judgment 25 February 2016, Olivieri and others v Italy, and, more recently, 30 April 2020, Keaney v Ireland).

In the Court's opinion, identical conclusions must be affirmed with reference to the contested norms, in the part in which they lead to the inadmissibility of the request for equitable reparation proposed by the accused or by another party in the criminal trial that has not filed a request for acceleration at least six months before the deadlines referred to in art. 2, paragraph 2-bis.

The Court highlighted how "the contested provisions contrast with the need for a fair trial, due to its reasonable duration, and with the right to an effective remedy, guaranteed by the aforementioned conventional parameters"; it also established that the filing of the request for acceleration in the criminal trial operates "as a burden", since failure to comply leads to the inadmissibility of the request for just reparation.

However, the request for acceleration "does not offer any guarantee of shorter procedural times, does not engage an alternative procedural model and therefore does not constitute a tool available to the interested party to prevent the further prolongation of the process, nor does it imply a priority in dealing with the judgment, as clarified by paragraph 7 of art. 1-ter of the same law, according to which the criteria laid down by art. 132-bis of the legislative decree 28 July 1989, n. 271 ".

In summary, the request for acceleration "does not reveal the effective acceleration of the judgment, given that this, despite the fulfilment of the deposit charge, can in any case continue and extend beyond the reasonable term, without the violation of the itself may be charged to the sole responsibility of the party ".

In other words, the Judge of the Laws has established that the failure to present the request for acceleration in the criminal trial may possibly be relevant for the purpose of determining the extent of the compensation pursuant to Law no. 89 of 2001, "but it must not affect the feasibility of the correlative demand".

Hence the declaration of constitutional illegitimacy of art. 2, paragraph 1, in relation to art. 1-ter, paragraph 2, of Law no. 89 of 2001, in the text resulting from the changes made by art. 1, paragraph 777, lett. a) and b), Law no. 208 of 2015.