Yes to the abolition of the probationary exclusion period for offences against the public administration
Yes to the exclusion of the offences of unlawful influence-peddling and obstruction of justice
Key points
It is legitimate to exclude from probation the offences of influence-peddling and interference with the tendering procedure. The Constitutional Court, in Judgment No. 180, declared the questions of constitutional legitimacy regarding Article 168-bis, first paragraph, of the Criminal Code to be unfounded, in relation to the doubts concerning its conflict with Articles 3, 27, third paragraph, and 76 of the Constitution, raised by the judge presiding over the preliminary hearing at the Ordinary Court of Pescara. The provision came under scrutiny by the Constitutional Court insofar as it excludes the two offences The Council’s guidance
The Court first of all held that the failure to include the two offences amongst those for which probation is permitted does not conflict with Delegated Act No. 134 of 2021, as it left it to the delegated legislator to select the ‘further specific offences’ to be included, provided they are punishable by a maximum term of imprisonment not exceeding six years and are suitable for rehabilitation or restorative programmes, without requiring either a general raising of the threshold laid down in Article 168-bis of the Criminal Code, or the inclusion of all offences punishable within that limit.
Having also noted the legislature’s broad discretion in defining the objective limits of the institutions of ‘non-custodial’ punitive criminal law, the Court held that the selection criterion set out in Article 168-bis of the Criminal Code—which combines the statutory limit with a flexible reference to Article 550(2) of the Code of Criminal Procedure—was not manifestly unreasonable. Any inconsistencies may be remedied by the Court itself, by assessing on a case-by-case basis whether the excluded offence merits inclusion within the scope of application of probation on the basis of its structure and its legal objectivity.
Furthermore, in the Court’s view, the rehabilitative purpose of probation does not require its application to every offence compatible with restorative measures or to every defendant for whom a prognosis of abstention from committing offences can be formulated, since the measure also serves a punitive and deterrent purpose and such exclusion does not, therefore, the rehabilitative function of the sentence.
Finally, the Court held that the offences are not comparable to those of handling stolen goods, nor of contempt, violence or threats and resisting a public official, owing to the differences in their typical structure and specific legal objectivity, and the absence of relevant common features; this fundamentally precludes any possibility of comparing the respective statutory penalty ranges and the eligibility criteria for probation.
