Italian Constitutional Court, No. 230/2021, 20 October 2021
Recently, the Constitutional Court ruled in its judgment No. 230/2021 on certain provisions of the Legislative Decree No. 235 of 2015 concerning the suspension by right from the office of mayor for those who received a non-final conviction for certain crimes.
In the present case, the Ordinary Court of Genoa raised, under Articles 24 (right of defence) and 113 (judicial protection against acts of the PA) of the Constitution, questions of constitutional legitimacy in relation to Article 11, paragraphs 1, letter a), and 4, of the Legislative Decree No. 235 of 31 December 2012 (Consolidated text of the provisions on the prohibition on being elected resulting from final convictions for non-culpable crimes).
The prefectorial decree provided for in Article 11(5) of the Legislative Decree no. 235 of 2012, which was challenged before the judicial authority, is binding in nature and merely serves to ascertain the suspensive effect resulting directly from the conviction. The legislature chose to identify the conditions for the application of the suspension and to reserve to the judges the task of verifying its existence, without any assessment to be made in the specific case. Such a regulatory solution does not in itself constitute a violation of Articles 24 and 113 of the Constitution. For this reason, a substantive regulation that automatically links the suspension to the non-final conviction for certain crimes is not in itself likely to violate the right of defence, since it does not preclude the interested party from asserting his right in court within the limits in which it is protected by the substantive law. Moreover, it follows from the judgment that suspension from holding administrative office does not constitute a restriction on the principle of political pluralism, but rather preserves it.
(Comment by Edin Skrebo)