Coup de main (armed)! In Italy the penalties for robbers are decided by the Constitutional Court
For more than a quarter of a century (the first time in 1995, the last in 2020), the Constitutional Court Italian (which judges, with the power to annul them, of conformity Constitution of laws parliamentarians and government decree-laws) has continuously reminded itself, common judges and scholars that the legislator’s sanctioning choices (and, therefore, also the measure of penalties provided for by the Criminal Code) could be judged unconstitutional, and be annulled , only if “manifestly unreasonable”, that is, so contrasting with the canon of reasonableness as to appear arbitrary. For a long time, it was even said that the Consulta could at most “cancel” them regulatory provisions desired by the legislator and deemed unconstitutional, never introduce new rules of one’s own invention (except in the case in which their existence was strictly imposed by the constitutional provisions and the legislator remained inert: we spoke of “obligatory rhymes”, to limit the discretion of the Court to a minimum).
For at least as long, everyone (judges, constitutionalists, other scholars) has seen in this orientation a plastic, scholastic example of the principle of separation of powers (without which our country would not be a democracy). This is because – Beccaria wrote – the right to punish is the prerogative of the sovereign and in liberal democracies the sovereign is Parliament. Either the sovereign is unreasonable, and then – as has been the case since the times of Commodus and Caligula – he must be neutralized (him as a person, as happened then, or, as fortunately they limit themselves to doing the constitutional courts modern, its legislative action manifestly unreasonable), or its action can only be countered with democratic tools (new laws, referendums, etc.). Whether this or that crime should be punished with three or four years’ imprisonment, it has always been considered “choice of merit” and, as such, of the legislator, legitimized in his discretion by the popular vote.
This was the case, at least, until a few years ago. For some years now, however, the idea has taken hold in certain academic, political and intellectual circles that the electorate has collectively become numb and – although the percentage of graduates has never been so high in the two Chambers – only elects bunches of imbeciles, incapable of doing what they are handsomely paid to do in their Capitoline stays (legislate).
This brought a group currently made up of fourteen illustrious people over seventy among the professors and magistrates who make up the Constitutional Court to convince themselves that they can increasingly replace the sovereign Parliament. This not only when parliamentary choices (formally the expression of the will of millions of citizens) appear manifestly unreasonable (i.e. delusional, like the nomination of a horse as senator) but also when they do not appear “proportionate” (according to the measure of proportion shared by a majority of the aforementioned abundant dozen judges) and even when they do not appear “adequate” to the achievement of the objectives established by the Constitution (always according to the idea of adequacy shared only within the aforementioned abundant dozen judges). Practically: a political judgement. Basically: the germ of the most extreme oligarchy. But if the constitutional charter itself wants us to be democratic, then also the germ of a coup.
Thus we arrived, last April 16th, at the sentence no. 86 of 2024published yesterday, with which thirteen constitutional judges decided that the minimum sentence for the crime of robbery provided for by the Italian Criminal Code (five years of imprisonment) is too severe, or rather: “disproportionate” compared to the severity of less violent hypotheses, such as those in which the robber simply pushes the victim or utters threats, perhaps to take possession of goods of modest value. For this reason they decided to invent a new mitigating factor: the reduction of the sentence (even the minimum one) by a third in cases where «due to the nature, type, means, methods or circumstances of the action, or due to the particular tenuousness of the damage or danger, the fact appears to be minor».
Net of technical observations (for example: in our code, the mitigating circumstance of particularly minor financial damage already exists for crimes such as robbery), what is shocking is the ease and discretion with which the Court exercised a prerogative of the legislature: that of inserting new provisions into the Criminal Code, which is a law and which therefore should be modified or integrated only by law, unless, as has been said, the manifest opposition to the Constitution of the absence of a provision in the legal system makes it makes the introduction “mandatory”. If, however, from 2019 (the year of the last increase in the minimum sentences for robbery) to 2024 we have lived peacefully without the doubt that this mitigating circumstance was today a “obligatory rhyme” – and not, at most, “appropriate” – is more than legitimate (also because there are already plenty of mitigating circumstances, both generic and specific, in addition to those mentioned).
Of course: five years of imprisonment might seem too much, especially in the mildest cases. Only those who have never set foot in a classroom, however, can believe that, today, in Italy, anyone who steals a pack of ham from a supermarket by pushing the security guards actually ends up in jail for five years.
The reality is quite different, and don’t call a work of Benotherism fact checking: illustrious constitutionalists such as Mengoni, Baldassarre and Modugno himself, current member of the Court, have written that the constitutional judge must evaluate and weigh the material consequences, and not just the abstract ones, of the legislative choice and its annulment.
First: every time a convicted person has to serve a sentence of less than four years in prison (even if it is the residue of a longer sentence, for example: sentenced to five years and has already served one), he can leave prison (or not enter it at all) . Second, but above all: in 2017 (latest ISTAT data), 92% of those convicted of robbery (consummated or attempted) received a sentence of less than five years (on paper, the minimum sentence!), 70% a sentence of less than three years, 45% less than two years.
Introducing a mechanism that could lower by a further third the average punishment that will be imposed on 70% of those convicted of robbery means one thing: impunity even for the few who get caught. In fact, under two years of imprisonment, it is always possible to request and obtain, especially if it is the first crime, the conditional suspension of the sentence (which is not carried out and is, in fact, “suspended”). The only historical precedent that comes to mind is 19th century Northwest America: the Wild West.
Is there any reason to fear that civil war will come to us too? An institutional clash is looming on the horizon, caused by the undoubtedly inexorable reaction of the current majority right-right (the same as the Caivano decree and the anti-rave) to the pro-delinquency leap forward made by the constitutional judges? No, don’t worry. As stated in the sentence, «he is not the President of the Council of Ministers» not even «intervened in court».
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