de la Conférence des Cours constitutionnelles européennes, 2008) 551 ff.
See Judgments 15 of 1969 and 409 of 1989. For both, see Report of the Constitutional Court of
464
Irene Spigno
provide for “in the part in which it does not provide that . . .:” the Court
decision adds a fragment to the provision declared unconstitutional.
These “manipulative” decisions come under the category of judgments the
Court uses to declare the unconstitutionality of a disposition, a provision, or a
norm with force of law, thus producing the same effects set out in Article 136 of
the Constitution. However, they present several theoretical problems related
to the fact that the Court, especially with reference to “substitutive sentences”
and “additive sentences,” is introducing new legal provisions that are the sole
province of Parliament in the Italian legal system.
16.3. The Constitutional Court’s Reaction to
Legislative Omission: Additive Judgments
The Constitutional Court issued its first additive judgment in 1967. With
Judgment 151, the Court recognized the unconstitutionality of Article 376 of
the 1889 Italian Code of Criminal Procedure (the Zanardelli Code, in force
until 1988) for not providing for the obligation to dispute the facts and the
questioning of the defendant in the case of their acquittal with a formula stat-
ing anything other than that the fact did not take place or was not committed
by the accused. For a similar reason, the Court also declared the unconstitu-
tionality of Articles 395, last paragraph, and 398, last paragraph, of the Code
of Criminal Procedure. The contested provision, Article 376 of the Code of
Criminal Procedure, stipulated that the defendant may not be acquitted by
the granting of judicial pardon or for lack of evidence or under amnesty if
they have not been heard or if they have not been informed of the fact by
means of a mandate that has remained without effect. It has been argued that,
in all other cases of acquittal, questioning or rebuttal of the charge were not
necessary. The question of constitutionality was directed precisely against this
unwritten part of the norm, implicit in the normative disposition.
The Court emphasized how the legislature itself recognized that, in some
cases, an acquittal may affect the dignity of the citizen as much as an indict-
ment, so it ruled that both be preceded by questioning or a contestation of
the fact, in order to allow the accused to defend themselves and avoid such
a sentence. According to the Court, some cases, such as acquittal for lack of
evidence, were already included in these norms at the time of publication of
the Code (in 1889). Others were added later with the 1955 reform.
25
However,
there was no doubt that among the different possible political or social reasons
25
Law no. 517 of 1955.
“Additive Judgments”
465
behind these changes, the need to guarantee the right to a defense provided
by Article 24 of the Constitution (posterior to the Zanardelli code) was the
main one.
The Court acknowledges the effort made by the legislator, but states that
the legislator has stopped halfway. It did not consider that the acquittal deci-
sion under certain circumstances may contain or imply a restrictive meas-
ure of personal freedom (e.g., acquittal for mental infirmity); in some other
hypothesis, not even referred to by Article 376, it may even have defamatory
effects, greater than or at least equaling a conviction (e.g., the acquittal for
chronic alcohol or narcotic poisoning); all of them, except for judgments
issued because the fact did not take place or was not committed by the
defendant, attribute something or do not exclude the attribution of some-
thing that may not constitute a crime but may nevertheless be unfavorably
judged by public opinion or otherwise by the social conscience.
Respect for Article 24 of the Constitution led the Court to declare the disputed
disposition unconstitutional.
26
It has been clear since the very first additive judgment that they effectively fill
legislative gaps. A legislative gap can be understood in two ways: as a “non-ful-
fillment” – in the sense of “inertia” – and as a “not-complete-fulfillment” in
the sense of an “incomplete action,” which constitutes a deficiency in the part
that is incomplete in terms of what the action should have produced.
Additive judgments should only serve to fill cases of “incomplete action.”
The Court can adopt an additive decision only if there is a legislative product,
albeit an incomplete one. In the absence of a law or an act having the force
of law, a constitutional proceeding could not even begin. Moreover, the need
must arise for the Court to make the disputed provision compatible with the
Constitution (and in reality this need drastically reduces the characteristics
of originality of additive judgments in comparison to other unconstitutional
decisions).
The most original aspect of additive decisions lies in the part of the judg-
ment where the Court explicitly states the new normative fragment deduced
from the Constitution. Even if these features do not have any influence on the
Court’s argumentation, they have a great influence on the ratio decidendi. It is
the Court itself that dictates the limitations and characteristics additive judg-
ments must have. These characteristics may be described from three different
perspectives: equality and tertium comparationis, the concept of the com-
pulsory constitutional solution referred to as the doctrine of rime obbligate
26
Judgment 151 of 1967.
