Constitutional illegitimacy of the prohibition on the prevalence of the special mitigating circumstance pursuant to article 648-ter.1, 2nd paragraph, Criminal Code

With ruling no. 188/2023, the constitutional illegitimacy of the art. 69, fourth paragraph, of the penal code, in the part in which it provides for the prohibition on the prevalence of the mitigating circumstance referred to in the art. 648-ter.1, second paragraph, cod. pen. - in the version introduced by the art. 3, paragraph 3, of law 15 December 2014, n. 186 (Provisions regarding the emergence and return of capital held abroad as well as for the strengthening of the fight against tax evasion. Provisions regarding self-laundering), and in force until its replacement by art. 1, paragraph 1, letter f), number 3), of the legislative decree 8 November 2021, n. 195, containing «Implementation of Directive (EU) 2018/1673 of the European Parliament and of the Council, of 23 October 2018, on the fight against money laundering through criminal law» - on recidivism referred to in art. 99, fourth paragraph, cod. pen.

In the sentence in question, it is recalled that on numerous previous occasions the Judge of Laws declared the art constitutionally illegitimate. 69, fourth paragraph, cod. pen., in the part in which it provided for the prohibition on the prevalence of as many mitigating circumstances on recidivism as per art. 99, fourth paragraph, cod. pen. also due to the need to maintain - with the words of the subsequent sentence no. 141 of 2023 - «a convenient balance between the gravity (objective and subjective) of the single crime and the severity of the sanctioning response, avoiding in particular that which the "progenitor" sentence no. 251 of 2012 had already defined the "abnormal emphasis on the subjective components attributable to repeated recidivism, to the detriment of the objective components of the crime" (point 5 of the Consideration in Law) created by the art. 69, fourth paragraph, cod. pen.».

This general criterion therefore once again led the Constitutional Court to the declaration of constitutional illegitimacy desired by the referring judge.

In particular, providing for self-laundering a penalty halved, both in maximum and in minimum, when the underlying crime is of less seriousness - in particular when it is punished with a sentence lower than five years of imprisonment - according to the Court the legislator intended to clearly differentiate the objective negative value of this hypothesis compared to the basic case, which is also characterized by a sanctioning framework of considerable severity, calibrated on much more serious criminal phenomena - also due to the their offensive dimension to the economic, entrepreneurial and financial system - compared to conduct such as that which is the subject of the main proceedings.

However, when the crime is aggravated by repeated recidivism - a statistically very frequent situation when the underlying crime is theft, as in the case under the judgment a quo -, the legislative intent to provide significantly less severe sanctioning treatment for money laundering acts resulting from objectively less serious crimes is, for practical purposes, frustrated by the contested provision, which obliges the judge to impose a sentence not lower than the minimum provided for the basic case of self-laundering.

Always according to the Court, this amounts first and foremost to a violation of the canon of proportionality of the sentence based on articles. 3 and 27, third paragraph, of the Constitution, who opposes the imposition by the legislator - and consequently applied by the judge - of manifestly disproportionate penalties compared to the objective and subjective disvalue of the crime (sentence 141 of 2023, point 3.2. of the Consideration in right).

The contested provision also gives rise to a vulnus to the principle of offensiveness referred to in the art. 25, second paragraph, of the Constitution, which requires that the punishment is always essentially conceived as a response to a single "fact" of crime, and is not instead used as a measure primarily aimed at controlling the social dangerousness of its perpetrator, revealed by his personal qualities.

Which happens, precisely, as a result of the rule now criticized, from which the doubling of the minimum sentence even follows, given the same objective negative value of the fact, in consideration of the only the author's criminal record.

Hence the declaration of constitutional illegitimacy of the art. 69, 4th paragraph, Penal Code.