“Additive Judgments”
471
16.3.3. Substantive Limitations to Additive Judgments: Criminal Law
There are some sectors of the legal system where additive judgments are not
envisaged: namely those causing expenses to be borne by public bodies and
criminal matters.
44
According to Article 25 of the Constitution, “No one may be punished
except by virtue of a law already in force before the offense was committed.”
Thus, the Constitutional Court may not adopt additive judgments in criminal
matters which act in malam partem, i.e., extending the scope of criminal law.
A leading case on this subject is Judgment 42 of 1977. In this case, the Court
was asked to rule on the constitutionality of a provision on making libel com-
mitted through the press a criminal act, which excluded the possibility of pun-
ishment for the same conduct if committed by other means.
45
Given the a
quo judge’s request to extend the punitive discipline to cases of defamation
committed by other means, the Court clearly stated that it had no way of
subtracting specific cases from the ordinary discipline to place them under
a special and more restrictive discipline. Since this is a highly political issue,
reserved by Article 25 of the Constitution to the legislator alone, there can
be no possibility of intervention using additive sentences. This approach has
gradually been consolidated and confirmed in the Court’s case law.
46
The principle of strict legality in criminal matters does not operate in an
absolute sense, however. The Court may introduce legislation and practices
able to bring about reductions in the range of the penal precept (in bonam
partem intervention). Judgment 108 of 1974 thus declared the unconstitution-
ality of Article 415 of the Criminal Code, which provided for prison sentences
ranging from six months to five years for actions inciting others to breach laws
of public order or instigating hatred between social classes. The Court found
this law unconstitutional because it conflicted with the exercise of the right
to freedom of speech guaranteed by Article 21 of the Constitution, failing to
specify that the incitement to hatred between social classes had to be manifest
in a form that would lead to disorderly conduct.
On the same lines, with Judgment 71 of 1983, when asked to pronounce
an additive decision to exclude the contravention pertaining to advertising
tobacco products from decriminalization, the Court declared the inadmissi-
bility of the question pointing out that “such decisions exceed the powers of
44
See Judgment 42 of 1997, Considerato in diritto 4.
45
Article 1 of the Law no. 47 of 1948.
46
In this sense, see Orders 187 of 2005 and 437 of 2006. For their discussion see Report
of the Constitutional Court of the Italian Republic,
Legislative Omission in Constitutional
Jurisprudence.
472
Irene Spigno
the constitutional court, which does not remove specific cases from the com-
mon rules, adding a new exception to a series absolutely fixed by law; and even
more so when it is – as in the case under consideration – a way of creating a
new type of crime that will affect the fundamental principle of rule of law in
criminal matters.”
47
According to the Court, this disposition did not indicate
incitement to a specific criminal action or activity against public order or dis-
obedience of the law; it simply punished action intending to bring about a
feeling or sensation without requiring the modalities used to necessarily con-
stitute a danger to public order and peace. It did not, however, rule out the
possibility that it could affect the mere manifestation and incitement to the
persuasion of the truth of a political or philosophical doctrine and ideology.
Due to this lack of precision, the provision was declared contrary to Article 21
of the Constitution (on freedom of expression) “in the part in which” it pun-
ished anyone who publicly incites hatred between the social classes, insofar
as the same article did not specify that this instigation had to take place in a
manner that represented a danger to public peace.
48
This approach was partially specified in Judgment 42 of 1997, in which the
Court stated that,
Even granted that this Court may remove from the criminal law provisions
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