La Corte costituzionale ha dichiarato la illegittimità CONSTITUTIONAL. 314 of the Code of Criminal Procedure, to the extent that, in the suffering of detention, conditions in each case the right to fair reparation to the acquittal on the merits of the charges, as set out in the grounds.
JUDGEMENT NO 219
YEAR 2008
ITALIAN REPUBLIC ON BEHALF OF THE ITALIAN PEOPLE
THE CONSTITUTIONAL COURT
composed of:
- President Franco BILE
- Giovanni Maria FLICK Judge
- Francesco AMIRANTE "
- Ugo De Siervo"
- Paolo MADDALENA "
- Alfio Finocchiaro"
- Alfonso FORTY "
- France Gall"
- Luigi Mazzella "
- Gaetano SILVESTRI "
- Sabino Cassese"
- Maria Rita Saulle "
- Tesauro"
- Paolo Maria NAPOLITANO "
gives the following Judgement
in reviews of the constitutionality of Article 314 of the Code criminal proceedings initiated by orders of July 19, 2006 by the Supreme Court, the United Sections criminal action brought by the PA and 30 March 2007 the Court of Appeal of Trieste on the instance proposed by BAV members at no 558 Register of Orders of 2006 and No 753 of the Register of Orders 2007 and published in the Official Gazette of the Republic No. 49, Special Series of 2006 and No 45, Special Series, 2007.
hearing in chambers on April 2, 2008 the Judge Rapporteur Ugo De Siervo.
The facts
1. - By order dated July 19, 2006, the Court of Cassation, in sections joined criminal, has raised the question of CONSTITUTIONAL. 314 of the Criminal Procedure Code in relation to Articles. 2, 3, 13 (the latter invoked only in the grounds of the order of referral), 24, 76 and 77 of the Constitution, "in so far as there is no right to compensation for detention that is more than the amount the sentence imposed. "
pressed the Court to proceed in respect of an appeal against the order in which the Court of Appeal in Reggio Calabria had only partially accepted the application made under From the instant ' art. 314 cod. proc. pen. to receive payment of a sum for reparations for the unjust imprisonment suffered by a total of 23 January 1986 to 22 June 1989. The Court territorial, in fact, had ordered the Ministry of Economy to the payment of only in relation to deprivation of liberty suffered by the 26 January 1988 to 22 June 1989. So
the Supreme Court summarized the facts of the contested decision.
On January 23, 1986 the accused was subjected to the precautionary measure of custody in prison for charges of conspiracy of the Mafia, the possession and carrying of weapons, and subsequently attempted murder.
On January 22, 1988 the time limit had expired in custody for crimes relating to weapons and criminal association, the case was, however, maintained that the accused was sentenced to fourteen years' imprisonment for offenses of attempted murder and possession and carrying of weapons. By decision of 23 June 1989, Assize Court of Appeal had acquitted the accused of the crime of attempted murder for lack of evidence, while the process was continuing in relation to other crimes. On June 17, 1999 the accused was acquitted of the crime and sentenced to ten associative months in prison for crimes relating to weapons. Finally, on May 7, 2001, the Court territorial pronounced sentence of not having to carry out time-barred in the port with the offense and possession of weapons.
The Court of Appeal, speaking on the application for reparation for wrongful imprisonment, he believed that the compensation should be recognized only for the period between January 26, 1988 and June 22, 1989, concerning custody on the offense of attempted murder, while for the period from 23 January 1986-22 January 1988, the application should be dismissed, either because the detention was justified by the plurality of charges, either as a declaration of not having to do time-barred crimes relating to weapons precluded recognition of the right to repair. This is because this right is set by art. 314 cod. proc. pen. only in case of acquittal on the merits.
against that order was appealed to the PA Supreme Court.
sections together, where the appeal was recovered from the fourth section (with Ordinance No. 1920 of November 14, 2005), clarifying first to examine the request for redress for wrongful imprisonment limited to the period of detention suffered from 23 January 1986-22 January 1988, in which the latter date, the deadline the maximum precautionary measure in relation to the crimes of criminal association, possession of illegal weapons and harbor, the crimes for which the maximum prison term of custody in the same.
That being said, the Supreme Court says that the subject of inquiry on which it is required to decide is whether or not it is "configuring the right to compensation in cases where the accused is under detention for more securities of equal duration precautionary principle, be performed by a crime with the formula given in the first paragraph of art. 314 cod. proc. pen. and is, however, acquitted the other offense because extinguished by prescription. "
The Court of legitimacy, in the case of cumulative process with multiple charges, is inclined to the view that since the right to fair repair it only because the person has been acquitted on a release formula with the purpose of recognition of this right it is necessary that this condition is satisfied in respect of all the complaints made. This follows from the fact that the period of detention is one and indivisible for all custodial securities so that, if they have an identical maximum term, the lack of acquittal on the merits for one of the offenses would mean that the ' entire pre-trial detention should be referred to the latter, regardless of the length of the sentence that would be imposed if convicted.
Consequently, in the case of enforcement action based on more protests, with the acquittal, the formula does not merit even one of them, would prevent the rise of the right to repair.
In a different sense has, however, the Supreme Court ruled in two decisions of the fourth section, which is characterized by the fact that he recognized the repair in favor of defendants accused in the same process now works for the repair, who, like him, had been acquitted of the crime of association and, after being convicted for crimes related to arms, had been acquitted by prescription.
In the first sentence (July 6, 2005, No. 40094), the Court noted that "the period of custody attributable to crimes relating to weapons could in no case exceed the limit of ten months, corresponding to 'extent of imprisonment imposed by the sentence handed down in the first instance: talcum powder, because that decision had not appealed the prosecutor, said after the crime was attributable to a prescribed period of detention not exceeding ten months and longer life of custody in prison had to be linked to the imputation which had intervened acquittal on the merits. "
Nella seconda decisione (8 luglio 2005, n. 36898) si è affermato che «qualora risulti per il particolare svolgersi del processo, che il periodo, il tempo, delle limitazioni della libertà non coincide per tutti i titoli-reati, nel senso che possono distinguersi, con estrema precisione, il periodo di limitazione della libertà sofferta per il titolo-reato per il quale si è avuto il proscioglimento per prescrizione e il periodo di limitazione della libertà – oltre e, nel caso di specie, ben oltre, quella soglia – sofferta soltanto per il titolo-reato per il quale v'è stato il proscioglimento nel merito, non v'è nessuna ragione per negare l’equa riparazione per questo secondo periodo di limitazione of freedom. "
Underlying these decisions there is the argument that the writ failed after acquittal by prescription "can not be referred to a period corresponding to the maximum provided by law of the case, but only the period of detention amounted to ' level of penalties that would be imposed on conviction. "
sections together disagreed with these conclusions since they would lead to consequences that go beyond the actual content of Article ball. 314 cod. proc. pen.
This provision, in paragraph 1, identifies in his favor on the merits a prerequisite for the origin of the right fair compensation. Paragraph 4 further provides that the right to compensation is excluded for that part of the custody to be counted for determining the size of a penalty, according to the rule of fungibility art. 657 cod. proc. pen. or for the period in which the limitations arising from the application of the case were also suffered under another title. From reading
coordinate those provisions, "the legislature's intention to exclude full reparation for wrongful imprisonment in all cases of acquittal, not substantive and, a fortiori, the sentencing, totally disregarding the actual level of the penalty applicable or in concert applied, even if it proves much lower than the period of detention actually suffered. "
However, the sections together question the constitutionality of Article. 314 cod. proc. pen. own "insofar as it excludes the right to compensation for detention that is longer than the sentence imposed, precluding reflex - if multiple titles with the same precautionary limits maximum - the compensation, in order to 'allegation that stepped acquittal on the merits, even if the actual period of detention exceeds the length of the sentence imposed (or would imposed) for the other charges if the crime had not been declared prescribed.
The unequivocal language of the contested provision would preclude the possibility of interpreting the same in a manner consistent with the Constitution. In the same sense would suggest the choice of legislative policy underlying Article. 314, paragraph 1, no. proc. pen. which postulates the acquittal on the merits to all charges.
That provision, according to the Supreme Court, counter, first, with the Articles. 76 and 77 of the Constitution, as it would give a faithful implementation of the directive contained in Art. 2, paragraph 1, no Law 100 of February 16, 1987, No 81 (legislative delegation the Government of the Republic to issue a new Code of Criminal Procedure). In fact, given the scale of the principle stated by the delegation, in which there is no limitation with respect to the title of detention or the reasons for injustice, the legislator would not be indiscriminately repair cases where the actual sentence for the offense is less than the length of detention suffered "although in the latter, for some, 'ex post' objectively unfair."
addition, the legislator would have ignored the directive contained in Art. 2, paragraph 1, of that law that requires law compliance "International conventions ratified by Italy and on the rights of the person and the criminal process." In fact, denying compensation for damage resulting from the deprivation of liberty for a period longer than the sentence imposed, would deviate art. 5, paragraph 5 of the European Convention and Art. 9, paragraph 5, of the International Covenant on Civil and Political Rights which include the right to compensation in case of illegal detention without any restrictions.
The legislator would also diverged art. 5, paragraph 3 of the Convention, which recognizes the right of every person arrested or detained to be tried in due course. The contested provision, in fact, would not recognize the right to compensation even when the subject is undergoing long-term preventive detention, the higher their risk in what the Court established a considerable distance from the offense was committed.
Article. 314 cod. proc. pen. breach also Articles. 2, 13 and 24, fourth paragraph of the Constitution
to be such constitutional provisions, which reveal the value of the primary and essential principle of solidarity and personal freedom, the concept of a miscarriage of justice - in the art. 24 of the Constitution provides for the repair - should include "all cases of detention which, being found 'ex post ' objectively unjust, reveal the fallacy of the restrictive measure adopted because it infringes the right of liberty. " The exclusion of the right to compensation in the event that the sacrifice of personal freedom has exceeded the length of the sentence imposed - especially when the gap between custody and extent of punishment depends on unreasonable length of time the process - contrary to the values \u200b\u200bprotected by the Constitution.
Finally, it would be in breach of art. 3 of the Constitution in terms of reasonableness, as restrictions on the right to compensation, which the Court has recognized the constitutional foundation of solidarity, would be inadequate to meet the objective of ensuring fair compensation for restrictions on personal freedom objectively unjust.
2. - Even the Court of Appeal of Trieste , by order of March 30 2007, raised, with reference to Arts. 2, 3, 24 and 77 of the Constitution, the question of the constitutionality of Article. 314 cod. proc. pen. in so far does not include the right to compensation for wrongful imprisonment for the period of detention that is longer than the sentence imposed. The referring
reports that the accused was been subjected to the precautionary measure of custody in prison, 8 January 1999 to 8 September 2000, for crimes of detention and the port in a public common weapon gun, stolen goods, possession of weapon and the port town illegal and attempted murder premeditated. The decision at first instance, having declassified the latter offense to voluntary pluriaggravate injury, ordered the defendant to death after one year, eight months' imprisonment and a fine of 3,000,000 lire. The Court of Appeal, in sentence no 503 of 2004 of 17 June 2004 in partial reform that decision after further declassified the crime inflicted injuries in the personal injury due to negligence (art. 590 no. pen.) declared not to proceed with respect to this crime for lack of prosecution and revised the sentence for other crimes in a year, two months, twenty days in jail and € 1,600.00 in fines, also giving the benefit of probation.
The court, felt unable to accede to the request for repair for the entire period of custody, as it relates to all the offenses (and not only to that of attempted murder), states that in this case for its consideration the detention was prolonged for one year and eight months, ie for a period of time than the sentence imposed on appeal following the declaration of admissibility for lack of prosecution in relation to the crime under Article. 590 cod. pen.
Article. 314 cod. proc. pen., "as consistently interpreted by the Supreme Court," would not, however, to believe unjust imprisonment suffered and therefore recognize the right to compensation.
circumstances, the court a quo acknowledges that the Court of Cassation in criminal sections together, raised the question of the constitutionality of that provision, in conjunction with Articles. 76 and 77 of the Constitution and in relation to Articles. 2, 3 and 24, fourth paragraph of the Constitution That question is tailored also the case for its consideration in which he has suffered a period of detention than the sentence of imprisonment imposed. The referring
regards this question of the constitutionality of the proceedings is also relevant to its evaluation is not manifestly unreasonable "for the reasons envisaged by the order and terms of the Joint Sections of the Supreme Court cited above, which must be integral decoy.
legal considerations
1. - The Joint Sections of the Criminal Court of Cassation doubt the constitutionality of Article. 314 of the Code of Criminal Procedure, "in as it does not [there] is no right to compensation for detention that is longer than the sentence imposed, "in reference to Arts. 2, 3, 13 (last evoked only in the grounds of the order of referral), 24, 76 and 77 of the Constitution.
Similarly, the Court of Appeal of Trieste complaint that provision, in the same direction, with reference to Arts. 2, 3, 24 and 77 of the Constitution.
2. - The opinions deserve to be met, because the identity of the object of the issues of constitutionality raised.
3. - The order of the Court Appeal fails to Trieste in order to justify the requirement of the matter is not manifestly unfounded, but merely to account for the previous order for reference of the Joint Sections, and to indicate some of the parameters that they have laid the basis for the claim of constitutional legitimacy.
to this is not accompanied by any independent argument as to the reasons why the examination of these parameters follows the question of constitutionality: in accordance with the settled jurisprudence of this Court, the question thus raised must be declared manifestly inadmissible (see, ex plurimis , ordinances No. 81 and No. 14 of 2008).
4. - The facts on which the sections are combined to decide the proposal by the instance was created for the purpose of reparation for the unjust detention of a person who has been remanded in custody in prison, under several titles related to offenses for where the law provides for a maximum period of not less restrictive measure. The referring
reports that the accused has been acquitted by final court, pursuant to art. 530 cod. proc. pen., the most serious offense complained of, in the first degree and sentenced to death ten months in prison, as a further indictment: Then, for the latter, the court appeal only on the appeal given by the accused, gives ruling not to proceed, given the extinction of the offense which occurred prescription.
An applicant moves from the premise that the failure to appeal by prosecutors in connection with the sentence imposed at first instance makes it clear that even if the appeal proceedings had resulted in a ruling on the merits of imputation , could not exceed ten months imprisonment. It would follow that the title of custody on the offense for which he did not act acquittal on the merits, you may be told a custodial period of ten months, while the remaining and more long period of imprisonment would be a matter exclusively for the imputation, which, however, there has been acquitted on the merits: it should therefore be compensated, under the first paragraph of art. 314 cod. proc. pen.
rating court moves, therefore, a particular hypothesis of convergence of evidence of pre-trial detention in prison, nonetheless, called for action to the Court's purpose, in more general terms, the constitutionality of the guidelines to repair the unjust detention, in so far as it applies to the cases of acquittal on the merits, and not also the case in which the offender has not complied on the merits, has served a period of custody.
Clearly, in this way, the scope of constitutional review takes place within an area which is of indemnity character: it is for the repair to those who are irrevocably acquitted on the merits, even if there were originally required under the conditions for precautionary measure. Other
profile, which falls outside the scope of this case, vice versa are cases where certain conditions of application were not present when the remand was ordered, or has been retained. The referring
believes that the acceptance of the instance on which must decide is hopelessly barred by the ban, to be calculated under the read-only article. 314, paragraph 1, no. proc. pen. to grant compensatory repair when the acquittal not be characterized as exculpatory on its merits. In fact, this prohibition would prevent the operation of interpretation, yet experienced by some earlier decisions of the Court of Cassation, a simple division of the title attribute for which imprisonment is the only sentence intervened period equal to the length of the sentence imposed and consider indemnifying the further period, as no longer justified the title which was followed, however, the acquittal on the merits. According to the Joint Sections only on the basis of the assumption riparabilità della custodia cautelare che abbia ecceduto la pena inflitta (allo stato preclusa dalla lettera dell’art. 314 cod. proc. pen.) si potrebbe contenere entro l’invalicabile limite di siffatta pena la fase custodiale non indennizzabile, concedendo viceversa la riparazione per il periodo eccedente.
In caso contrario, l’intero termine, pari alla durata massima della custodia cautelare, verrebbe giustificato alla luce del titolo in relazione al quale non vi è stata assoluzione nel merito, impedendo la riparabilità del periodo che eccede la pena concretamente commisurata dal giudice, e conseguentemente precluderebbe l’apprezzamento di tale ultimo periodo in relazione al titolo su cui si è formato il considered an acquittal.
The transition from a situation peculiar convergence of securities custody to the request to declare as unconstitutional the art. 314 cod. proc. pen. to the fullest extent set forth above does not imply the irrelevance of the question. It is not for this court to reviewing details the logical and legal steps that the court a quo has made leading to the conclusion just summed up: Just to emphasize, indeed, that they are properly motivated ( Case No. 39 of 2008 and No. 50 of 2007). Through such reasoning, the referring is called upon to consider, not without an appreciation by plausibility, that the object instance in the main proceedings can be accepted only after the introduction in the text of art. 314 cod. proc. pen. a new hypothesis of repair of the unjust imprisonment in cases where custody suffered exceed the sentence imposed by the sentence, and that this introduction is constitutionally tax in the light of the parameters mentioned.
Within these terms, it is clear that the wording of Article. 314 cod. proc. pen. opposed to conduct an exegesis of this provision according to the canons of interpretation in accordance with the constitution: that fact marks the border, in the presence of which attempt to give interpretive il passo al sindacato di legittimità costituzionale.
L’ammissibilità di quest’ultimo, per non avere il rimettente esplorato la via dell’interpretazione conforme, non è infatti pregiudicata dalla presenza di pronunce giudiziali che abbiano sì conseguito l’adeguamento della norma alla Costituzione, ma per il tramite di interpretazioni eccentriche e palesemente contrarie al dettato letterale della legge.
Le ragioni che hanno consentito di definire in tali termini l’oggetto del presente processo incidentale sono le medesime che, in direzione contraria, si oppongono ad un allargamento dei confini del giudizio costituzionale oltre il limite segnato dall’ordinanza di rimessione: questa Court is now asked to decide only whether it is constitutionally permissible, in the case of detention suffered, it was not due to repair if that person has been acquitted on the merits.
In this case, the court a quo back the case, the main object of the process, in which, although there has been no final conviction on grounds of supervening statute of limitations, however, has made a procedural bar to review the sentence imposed at first instance, because not appealed by the prosecutor. It is, for the same line, an assessment that, because it does not implausible, referring only to compete, and that does not affect the requirements eligibility of these proceedings.
5. - First, the court a quo doubts that Article. 314 cod. proc. pen. is compatible with Articles. 76 and 77 of the Constitution, since, by restricting the nature of repair indemnity to the cases of acquittal on the merits, it would have violated Article. 2, paragraph 1, number 100, the Law of 16 February 1987, n. 81 (legislative delegation to the Government of the Republic to issue a new code of criminal procedure), which provides that the legislature delegated governing the "repair of the unjust detention and miscarriage of justice."
In support of this doubt, the referring court notes that this same Corte, pronunciandosi sull’art. 314 cod. proc. pen. ha evidenziato che la legge delega «enuncia la direttiva della riparazione dell’ingiusta detenzione, senza porre alcuna limitazione circa il titolo della detenzione stessa o le ‘ragioni’ dell’ingiustizia» (sentenze n. 231 e n. 413 del 2004 ).
Tuttavia, il giudice a quo omette di considerare che tali pronunce sono state rese dalla Corte al fine di avallare l’estensione in via interpretativa del campo di applicabilità dell’art. 314 cod. proc. pen. ad ipotesi (rispettivamente, l’arresto provvisorio e l’applicazione provvisoria di misura custodiale su domanda di Stato estero che si accerti carente di giurisdizione; l’archiviazione per morte del reo, quando i coimputati risultano prosciolti nel merito, perché il fatto non sussiste) che, secondo i giudici a quibus , non vi erano ricomprese. Ipotesi, è necessario aggiungere, che sono parse corrispondenti alla ratio cui si ispira la disciplina della riparazione per ingiusta detenzione, ed ai casi ivi espressamente previsti, sicché, proprio nel raffronto con tali ultimi casi, si è appalesata priva di rilievo la circostanza che il titolo formale, ovvero la “ragione” che avevano condotto alla detenzione, non fossero immediatamente corrispondenti alla fattispecie astratta della norma censurata.
Just the irrelevance of formal treaty, in response to the identity of any valid reason, such cases have allowed and indeed necessitated the use of constitutionally interpreted in the light of the forecast delegation visited by the law.
entirely different question would be, however, believe that the 'injustice' of imprisonment should, for this constraint imposed by the legislature delegating, be entrusted to mere appreciation of the interpreter, unless the legislator is to achieve that "natural relationship normally responsible for filling that binds to the delegator, "without which there would be a" distortion of the very different regime la Costituzione ha inteso prefigurare», quanto a simile rapporto (sentenze n. 308 del 2002 e n. 4 del 1992 ).
In quest’ottica, non vi sono ragioni per ritenere che la legge delega abbia voluto introdurre direttamente una clausola generale di riparabilità della detenzione “ingiusta”, che sia affidata al filtro dell’interprete, anziché a quello “fisiologico” ( sentenza n. 198 del 1988 ) della norma delegata. Anzi, poiché all’epoca della emanazione della delega era ancora dibattuta la questione degli àmbiti entro cui dovesse qualificarsi come ingiusta la detenzione e dunque riconoscersi il diritto alla redress in accordance with art. 24 of the Constitution, must be regarded as the amplitude of the expression used by delegating the legislature wanted to refer back to the legislature delegated the identification and specification of these assumptions, even while respecting the principles and criteria as defined in the management proxy.
Rather, it is true as stated in the court a quo about the need, repeatedly emphasized by this Court (Case No. 251 and No. 109 of 1999 ; No 310 of 1996; n . 373, 1992 and No. 344 of 1991), that the rules of the Code of Criminal Procedure to adjust the rules interposed for the assessment of constitutionality, made up of the international conventions ratified by Italy and on the rights of the person and the criminal process' (Article 2, paragraph 1, of Law No. 81 of 1987), and from these, in fact, well can be derived principles and criteria appropriate to address, from time to time, although present, but limited discretion (Case No. 224 of 1990 ; No 156 of 1987; No. 56 of 1971 and Ordinance No. 228 of 2005 ) of the legislator.
In order to repair the discipline of wrongful imprisonment, the referring refers, in particular, Article. 5, paragraph 5, of Convention for the Protection of Human Rights and Fundamental Freedoms, ratified by Law 4 August 1955, No 848, art. 9, paragraph 5, of the International Covenant on Civil and Political Rights, adopted in New York December 19, 1966, and implemented by the law October 25, 1977, No 881.
However, these provisions do not apply to support the conclusions reached by the Joint Sections.
Article. 9, paragraph 5, of the Covenant, "anyone who has been the victim of unlawful arrest or detention shall be entitled to compensation." Under this term literally, and went further prediction article. 3 of Act No. 881 of 1977, according to whom it is unlawful arrest or detention 'arbitrary' willing (Article 9, paragraph 1), in the absence of 'grounds' and in contrast to the "procedures" required by law, it is clear that this source relates to international treaty only those situations which are attributable to in paragraph 2 of art. 314 cod. proc. pen. in which, regardless of the outcome of subsequent proceedings, originally lacked the legal conditions to implement or maintain a custodial measure.
For the same reason, no conference is the reference to Article. 5, paragraph 5 of the ECHR, which states "every person the victim of arrest or detention in violation of the requirements made of this article shall be entitled to compensation. " The right to compensation follows whenever someone has been deprived of personal freedom outside the cases provided for by national law and provided for in paragraph 1 of art. 5, or in violation of the terms and timing governed by paragraphs 2, 3 and 4.
In particular, paragraph 1, letter c) of Article 5 permits the detention, according to national law, who has been arrested or detained to be brought before the competent judicial authority, the interpretation of this provision by the Court of Human Rights reference should be made as explained by this Court in n. 348 e n. 349 del 2007 .
Quest’ultima ha più volte affermato che l’art. 5 esige che la privazione della libertà sia conforme al fine di proteggere la persona da arbìtri ( sentenza relativa all’ affaire n. 26629/95 Witold Litwa c. Polonia e sentenza relativa all’ affaire n. 24952/94 N.C. c. Italia ), ovvero di impedire, in armonia con il nucleo costitutivo dell’ habeas corpus , che la libertà personale possa venire offesa in difetto di un provvedimento adottato da un tribunale indipendente, e al di fuori dei casi previsti dalla legge. Quando, pertanto, la detenzione è in execution of a judicial decision, it is regular, in principle ( Grand Chamber, Judgement Benham v. United Kingdom, concerning the 'affaire 7/1995/513/597 ).
It is true that the Court of Human Rights calls on national courts, reserving to itself the task in second place, to ensure also that the deprivation of liberty is necessary, taking into account the circumstances ( sentence relating to ' affaire No 26629/95 NC v. Italy), but the ballot is still bound to find any evidence of arbitrariness ( ruling concerning the 'affaire No 42644/02 Picaro c. Italy) and infected by the factual context and in light of preclude undue restriction of freedom in any way the art. 5, according to his capacity and according to the literal interpretation of the Court of Strasbourg, goes so far as to regulate the situation, its cross-appeal of this case, in which someone has been subject, in accordance with domestic law, custody and has been sentenced to punishment that is less restrictive for the period attributable to this title. In this case, there is no question about the legality of detention, nor is it to fix the arbitrary perpetrated by public authorities: they assume, vice versa, that the detention was based on a title according to law, and he attracted the attention of the Court a different kind of question.
Sections together further note, according to the view of the complaint for infringement of a third recall in the enabling act, that paragraph 3 of art. 5 of the ECHR requires the judge who is placed in custody "within a reasonable time ', or to set him at liberty, if this is not possible. There is, therefore, a "close connection" between the legitimate question of period of detention and that of the reasonable time of the process definition, which is reflected up all'incostituzionalità art. 314 cod. proc. pen., as indicated above.
The Court notes in this regard that the compensation provided for by law. 5 of the ECHR for the benefit of those who, under the conditions mentioned above, is not tried within a reasonable time, it the excessive period of detention, imposed since the criminal proceedings, but has no necessary link with the distinct regulatory question, posed in the current opinion concerning the relationship between this term and the penalty may be imposed: it might in the abstract report a deranged character, even if rapid, or at least tolerable in time, the definition of the criminal trial.
The protraction of the latter for a long period of time no doubt makes it less unlikely that the offender is sentenced to imprisonment under the custody suffered as a precaution and kept in place during the process, albeit within the insurmountable limits. However, that fact is a problem with any factual evidence, that does not follow necessarily from the legal purport of the contested provision, and therefore escapes by these terms, the control of constitutionality ( Judgement No 375 of 2006).
The complaint is based on Articles. 76 and 77 of the Constitution for such situations is unfounded.
6. - It remains to consider the complaint of unconstitutionality of art. 314 cod. proc. pen. made by the Joint Sections as Articles. 2, 3, 13 (the latter indicated only in the recitals of the order) and 24 fourth paragraph of the Constitution.
This court has had occasion to rule on the legal framework regulating the repair of the error with the sentence no 1, 1969, which dates back to times well before the formulation of today's rule in question, and that was in fact subject to the then current article. 571 cod. proc. pen.
There, the Court called by the court court to extend the scope of that legislation under Article. 24, last paragraph of the Constitution, had to stop in front of the finding that the lack of comprehensive legislation aimed at regulating substantive and procedural aspects of the institution of repair, could not be substituted by a preliminary constitutional, since "a possible declaration of unconstitutionality, which was based solely on the bias of the discipline, while risk of leading to a decline in the regulatory situation, re-opening an unbridgeable gap that would not be in the interpretation. "
is easily verified that this condition impediment has now failed, just following on the body of the new Code of Criminal Procedure Article. 314. Through this provision, the legislature has shown the desire to attract the area of \u200b\u200brepair beyond the false assumption that the judicial decision based on place of detention, to embrace cases bearing an "objective infringement of personal freedom, however unjust the same way as an assessment ex post "(Case No. 413 , No. 231 and No. 230 of 2004 ; No 446 of 1997). At the same time, an institute was set up analytically, which lends itself, in the way application, to be extended any further assumptions that turned out to be constitutionally imposed. The sentence no
1, 1969 is therefore exceeded this part of the evolution of the legal system, as evidenced by this Court in its Judgement No 310 of 1996, which recognized that "it is art. Cpp 314 to act as a concrete framework of the provision contained in principle. 24 'of the Constitution.
It remains vital complements and vice versa, the allegation, which was the basis for which "the last paragraph of art. 24 of the Constitution lays down a principle di altissimo valore etico e sociale, che va riguardato – sotto il profilo giuridico – quale coerente sviluppo del più generale principio di tutela dei diritti inviolabili dell’uomo (art. 2), assunto in Costituzione tra quelli che stanno a fondamento dell’intero ordinamento repubblicano, e specificantesi a sua volta nelle garanzie costituzionalmente apprestate ai singoli diritti individuali di libertà, ed anzitutto e con più spiccata accentuazione a quelli tra essi che sono immediata e diretta espressione della personalità umana».
Nell’attuale giudizio, tale principio merita di essere apprezzato non solo con riguardo all’art. 24, ultimo comma, della Costituzione, ma anche alla luce parameters referred to by the Constitutional court, or Articles. 2, 3 and 13 of the Constitution.
"The ultimate goal of social organization" is, in fact, "the development of every human person" (Judgement No. 167 of 1999 ), whose value is at the heart of the constitutional order: a matter for the legislature prepare the most effective system of protection so that it is not compromised.
The inviolability of the right, and in this case of personal liberty is not in fact empty proclamation of the Charter, but is, instead, a "leading force of constitutional principles," such as to oppose "a reconstruction system that would result in an injury to them "(Judgement No 232 of 1998 ). It is, in other words, requires that the legislature, and the interpreter are oriented, each within their respective powers, towards recognition of the most effective means of protection available to prevent and, if this is not possible to provide relief to the lesion of this inviolable right. Constitutional Charter, in fact, "requires that prevent the creation of situations without protection which may affect the implementation" of the "irreducible core" of the inviolable rights (Case No. 252 of 2001 , No 509 of 2000 , No 309, 1999 and No 267, 1998).
This Court is well aware that a repair of a patrimonial nature, coming to monetize the sacrifice of an inviolable freedom, it is a weak remedy, which must always be favorite instruments capable of avoiding or limiting the damage or to reinstate him in the specific form .
Yet this argument can not be used to exclude definitely the way of protection or indemnity for damages when, in fact, it is the only workable order: it is already considered in this regard, that the claimant is technical protection of the legal situation lesa, alla natura della quale si conforma ( sentenza n. 204 del 2004 ).
Ugualmente, questa Corte ha anche di recente sottolineato l’esigenza di garantire l’integrale riparazione del danno subito nei valori propri della persona, anche in riferimento all’art. 2 della Costituzione ( sentenza n. 233 del 2003 ). Ed anzi, si è a maggior ragione affermata l’incostituzionalità del difetto di tutela risarcitoria, in seno a discipline costruite per tutelare i diritti inviolabili della persona umana, ove esse siano «estrinsecazione di un principio solidaristico» ( sentenza n. 561 del 1987 ).
Non si può, peraltro, ignorare che una compressione of personal freedom can result from the need to pursue, through this instrument and in accordance with the provision of the law and jurisdiction, with equal dignity constitutional purposes. In such cases, where the correct balance point reached by the law between the conflicting interests, the lawfulness of the acts and conduct by which freedom is inviolable partially sacrificed, while objecting to the configuration of compensatory instruments of protection, is not a valid reason to exclude, under dell'inderogabile duty of solidarity, refreshments indemnity "due to the simple objective fact and not guilty of having suffered a preventable injury, on one occasion from which the community as a whole derives a benefit ( Judgement No 118 of 1996).
Indeed, the restaurant becomes, in these circumstances, constitutionally required: this Court has repeatedly held similar principle, with regard to the harm suffered by innocent people who, for reasons of protection of the public, has been subject to compulsory vaccination and, unexpectedly, it has suffered damage to health (Case No 118 of 1996 , No. 258 of 1994 and No 307 of 1990).
The Institute of reparation for the unjust detention under Article. 314, paragraph 1, no. proc. pen. shares this purpose solidarity ( Judgement No 109 of 1999 and No 446 of 1997), because the discipline is one instance where the protective measure, restricting personal freedom, arose and was maintained in a lawful, but it turned out only ex post "unfair" because the merits of absolution of the accused. Protection requirements of the community have imposed, and legitimized, a measure, which has accused the head injury could only appreciate the outcome of the criminal trial, remaining, however legitimate, in the light of these requirements, and compliance the conditions required by law to soddisfarle.
Per tale evenienza, nonostante il difetto delle condizioni per il riconoscimento di una tutela risarcitoria, il legislatore ha ritenuto di rimediare alla oggettiva lesione del diritto inviolabile tramite una misura indennitaria, affidata, quanto alla fase di liquidazione, alla valutazione equitativa del giudice, che potrà in tal modo trovare, caso per caso, il ristoro adeguato alla sofferenza incolpevolmente patita dall’individuo.
Tuttavia, l’art. 314 cod. proc. pen. condiziona espressamente tale rimedio alla circostanza per cui, all’esito del giudizio, l’imputato sia stato prosciolto nel merito.
Tale limitazione viene contestata, sul piano della legittimità constitutional by the United Sections, which assume because of the impediment to configure the right to compensation "for the part (in custody) in excess of the amount of the penalty imposed in practice" just the unique rule which restricts the possibility of repair for wrongful imprisonment to the fact that the accused has been acquitted by final court of merit.
Through the contested provision, the legislature therefore intended standardize the effects of pre-trial detention, a process concluded in the outcome of the proceedings on the criminal liability of the accused.
This legislative choice is manifestly unreasonable, and therefore detrimental to art. 3 of the Constitution.
It is not constitutionally permissible in this context is that the impact that the detention had on the inviolable right of liberty of the individual, in the pre-sentence final, can be appreciated only with respect to the outcome of the process criminal, and only for the case of an acquittal on the merits of the charges. If, indeed, a sacrifice of personal freedom there was during pre-trial detention, the solidarity of the repair mechanism can only take action for this case, whatever was the outcome of the proceedings, and therefore even if it is missed proscioglimento nel merito. È, per tale ragione, palesemente privo di ragionevolezza che il legislatore pretenda di apprezzare la ricorrenza delle condizioni necessarie ai fini della riparazione alla luce dell’esito della vicenda processuale concernente il merito dell’imputazione, e non già della sola lesione verificatasi durante l’applicazione della misura custodiale.
Per apprezzare quest’ultima, non è poi certamente possibile limitarsi a constatare la legalità del procedimento di applicazione della misura cautelare: invero, le guarentigie attorno alle quali si deve costituire il nucleo irriducibile dell’inviolabilità del diritto apparirebbero ben misero presidio, se esse fossero soddisfatte from the mere observance of law and subject to the reservation of jurisdiction contained in art. 13 of the Constitution, not accompanied by the imposition of a fine track that constitutionally justified in essence, to the extent that they become necessarily and strictly instrumental to its achievement.
This element is the proprium inviolability of the right against the legislator, the observance of which is assigned to the control of constitutionality of this Court.
The purpose of the constitutional own precautionary measures, which affect the personal freedom in the course of criminal proceedings, have been identified, with consolidated jurisprudence of this Court, "only in view of the satisfaction of requirement of supervision or closely related to the process" ( Case No. 64 of 1970 and No 1 of 1980)
Therefore, the "limits that must meet the period of detention, is derived directly from nature that serving the Constitution assigns to the pre-trial detention with respect to the purposes of the trial, on the one hand, and the need to protect the community, on the other, such that, the balance of interests worthy of protection, the temporary sacrifice of personal freedom of those who has not yet been judged definitively guilty "(Judgement No 229 of 2005 ; see also the judgments No. 223 of 2006; No 292 and No 232 of 1998 ; No. 15 of 1982 ; ordinances No. 397 of 2000 and No. 269 of 1999).
If, however, the period of detention has exceeded the sentence imposed after a final of immediate perception is that the law in order to pursue their objectives, required a sacrifice to the offender directly affect the freedom that, As justified in the light of the first, it goes beyond the level of personal responsibility. This
sacrifice not for that reason cease to be appreciated in terms of legitimacy: a circumstance occurred does not affect the assessment of conformity of the restriction of personal freedom in pre-trial phase of the legal case. But this is not the point at issue: rather to decide whether the pursuit of the objective requirements of the protection of society not only allows the compression of an inviolable right, under the circumstances and conditions provided by law, but also allows the legislature to negate the activation of repair mechanisms of solidarity sacrifice, even if introduced and fully covered for other similar cases.
The answer to that question can not be negative: it is indeed precisely the provision of protective measures which affect personal liberty of the individual, and forged in relation to general needs and objective for which the defendant is subject purely to entertain the foundation of solidarity and of reparation for wrongful imprisonment to impose constitutionally extend to cases of detention suffered in excess of the sentence imposed or otherwise due to lack of acquittal on the merits ..
thus framed the terms of the matter before this Court, it is clear that only the position of someone who apparently has been acquitted on the merits by the accused criminal is different from that of someone who has been instead convicted (as, of course, the only opinion about the injustice of excessive pre-trial detention that the sentence imposed).
In both cases, the accused has suffered a restriction of their inviolable right. In both cases, therefore, uses a constitutional obligation to compensate the injury.
Taking into account only the first case, and failing to regulate the second, the legislature violated Article. 3 of the Constitution.
Article. 314 cod. proc. pen. should therefore be declared unconstitutional, in that, assuming suffered detention, conditions in each case the right to fair reparation to the acquittal on the merits of the charges. Of course, once enshrined the right to repair, measure of compensation will be made by the judge, according to the criteria in the form and state regulations.
From that perspective, the Court would emphasize that the character of its concreteness of such an assessment implies that the distinction between acquitted and convicted, irrelevant to the ' an debeatur under the conditions just exposed again made manifest in the determination of the quantum debeatur .
To the extent that the compensation is related to a relief of suffering suffered by the accused, it seems clear, in fact, that the degree of suffering faced by those who, innocent, suffer the detention is amplified in principle than the plight of people, guilty, is restricted for a period of excessive compared to the punishment.
It will, however, the courts assess the common characteristics of each case before them, in order to adjust the compensation provided by law, in light of the impairment of the fundamental value of the human person.
Of course, this decision does not preclude the legislature, in exercising its discretion, may in future revisions of the institution della riparazione nel rispetto delle fondamentali esigenze di tutela del valore primario della libertà personale dell’individuo.
Questa sentenza, infatti, ha per oggetto – secondo quanto già osservato al punto 4 – la sola ipotesi, rilevante ai fini del giudizio a quo , in cui la pena definitivamente inflitta all’imputato, ovvero oggetto di una preclusione processuale che la sottragga a riforma nei successivi gradi di giudizio, risulti inferiore al periodo di custodia cautelare sofferto.
Resta pertanto escluso il riconoscimento dell’indennizzo in fattispecie nelle quali la mancata corrispondenza tra detenzione cautelare e pena eseguita o eseguibile – se diversa da quella inflitta – consegua a vicende posteriori, connesse al reato o alla pena. In tali casi, infatti, si produce una situazione affatto diversa rispetto a quella che induce questa Corte a dichiarare l’illegittimità costituzionale dell’art. 314 cod. proc. pen.
Sono assorbite le ulteriori censure svolte dal rimettente, con riguardo agli artt. 2, 13 e 24 della Costituzione.
PER QUESTI MOTIVI
LA CORTE COSTITUZIONALE
riuniti i giudizi,
dichiara la illegittimità costituzionale dell’art. 314 del codice of Criminal Procedure, in so far, assuming suffered detention, conditions in each case the right to fair reparation to the acquittal on the merits of the charges, as set out in the grounds;
clearly states that the question of constitutionality of Article. 314 cod. proc. pen. raised, with reference to Arts. 2, 3, 24 and 77 of the Constitution, the Court of Appeal of Trieste with the order mentioned in the inscription.
Decided in Rome, the seat of the Constitutional Court, Palazzo della Consulta, on 11 June 2008.
F.to:
Franco BILE, Chairman
Ugo De Siervo , Editor
Giuseppe DI PAOLA, Registrar
Filed in Chancery June 20, 2008.
