Constitutional illegitimacy of the prohibition of prevalence of the mitigation ex art. 116, paragraph 2 of the criminal code on recidivism pursuant to art. 99, paragraph 4, c.p.

The Constitutional Court declared the constitutional illegitimacy of art. 69, fourth paragraph, of the criminal code, as replaced by art. 3 of the law 5 December 2005, n. 251 (Amendments to the Criminal Code and to Law No. 354 of 26 July 1975, regarding general extenuating circumstances, recidivism, judgment for comparing the circumstances of the offense for repeat offenders, usury and prescription), in the part in which it provides the prohibition of prevalence of the extenuating circumstance referred to in art. 116, second paragraph, cod. pen., on recidivism pursuant to art. 99, fourth paragraph, cod. pen.

With sentence no. 55/2021 (pres. Coraggio, rel. Amoroso) issued in court of constitutional legitimacy in an incidental way following an order of the ordinary Court of Florence, in reference to arts. 3 and 27, third paragraph, of the Constitution, the Judge of the Laws observed that the contested provision absolutely prevents the judge from considering the diminuent referred to in art. 116, paragraph 2, of the Criminal Code, in the presence of the aggravating circumstance of repeated recidivism, thereby unreasonably frustrating the effects that the mitigation aims to implement and compromising the necessary sanctioning rebalancing function.

In the opinion of the Constitutional Court, therefore, "the mandatory prohibition of prevalence of the mitigating circumstance in question is therefore not compatible with the constitutional principle of determining a proportionate penalty."

In the body of the motivation, the Giudce delle Leggei observes that "the principle of proportionality of the penalty with respect to the seriousness of the crime" generally requires that the penalty be adequately calibrated not only to the concrete content of offensiveness of the crime for the protected interests, but also to the subjective disvalue expressed by the fact itself (sentence no. 222 of 2018). And the quantum of subjective disvalue depends in a decisive way not only on the content of the criminal will (intentional or negligent) and on the degree of willful misconduct or negligence, but also by the possible presence of factors that have influenced the motivational process of the author, making him more or less reprehensible "(sentence no. 73 of 2020).".

For this reason, "the disproportion of the penalty with respect to the reproach of the fact put in place, considered as a whole, consequent to the censored prevalence prohibition, determines a sanctioning treatment that prevents the penalty from carrying out its re-educational function in violation of art. 27 of the Constitution. . ".

The Court also observed that "the contrast of article 69, fourth paragraph, of the penal code, with article 3 of the Constitution is highlighted in terms of the violation of the principle of equality, as the censured prohibition ends to nullify the function that the diminuent referred to in Article 116, second paragraph, of the Italian Criminal Code, tends to ensure, that is to penalize in a different way situations that are profoundly distinct on the level of the subjective element (that of the corrective 'different and more serious event and that of those who want a less serious crime without guilty of predicting that this may degenerate into a more serious fact). ".

The declaration of partial constitutional illegitimacy therefore derived from these considerations.

Constitutional Court judgement n. 55/2021