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Italy: Provision of Regional Basilicata Law Granting State Legal Aid to Certain Criminal Defendants Ruled Unconstitutional

(Mar. 3, 2020) On November 19, 2019, the Italian Constitutional Court declared the unconstitutionality of article 7, paragraph 2 of Law No. 45 of the Basilicata Region, which granted legal assistance to certain criminal defendants. (Decision No. 285 of November 11, 2019  (the Decision) (in Italian).)

Request for Declaration of Unconstitutionality

 The President of the Italian Council of Ministers (the petitioner) requested that the Constitutional Court issue a declaration of the unconstitutional illegitimacy of specific provisions of two laws enacted by the Basilicata region: Law No. 41 of the Basilicata Region of December 29, 2009, Local Police and Urban Security Policies, and Law No. 45 of the Basilicata Region of November 30, 2018, Regional Interventions for the Prevention of and Fight Against Crime and for the Promotion of the Culture of Legality and an Integrated Security System Within the Regional Territory. (Decision, considerations of fact §§ 1.) In both cases, the petitioner alleged a violation of article 3 and article 117, second paragraph, letters (h) and (l), of the Constitution, which in general consecrate the guarantee of equality before the law and enumerate the exclusive powers of the state (national government) in the areas of public order and security, and jurisdiction and procedural law. (Italian ConstitutionEnglish translation; Decision, considerations of fact § 1.)

Dismissal of Several Constitutional Claims

The Court dismissed the claims of unconstitutionality against Law No. 41 and Law No. 45, article 1. The Court’s decision concerning this latter provision is relevant as it clarifies that the competence to enact measures in the areas of public order and security is shared between the national government and the regions. In particular, Law No. 45, article 1, paragraph 1 had provided that within the framework established by article 117 of the Constitution—which considers security as an essential element of the common good for orderly and lasting civil coexistence in the regional community—the role of the Basilicata region is to collaborate with the prevention of and fight against common and organized crime, including initiatives that support crime victims in the regional context. (Decision, considerations of fact §§ 2.) An additional provision of Law No. 45 had empowered the Basilicata region to promote policies to fight physical and psychological abuse against vulnerable individuals residing at both public and private facilities. (Decision, considerations of fact §§ 3, para. 3.)

In its analysis of the constitutionality of Law No. 45, article 1, the Court accepted the argument that the design and implementation of criminal policies at the regional level is a matter of “public order and security” that, per article 117, paragraph 2, letter (h) of the Constitution, lies exclusively with the national government and not the regions. (Decision, considerations of fact §§ 2.1, para. 1.) The Court also recognized that Decree-Law No. 14 of February 20, 2017 (converted into Law No. 48 of April 18, 2017) had introduced the concept of integrated security, providing for the institutional collaboration and coordination between the state and the regions, with a view to the creation of a unitary security system that would guarantee the well-being of the local communities. (Decision, considerations of fact §§ 2.1, para. 2.) The Court noted that, under Law No. 48, the regions would limit themselves to activities that promote the livability of the territory and the well-being of local communities. (Decision, considerations of fact §§ 2.2.) However, the Court considered that the challenged provisions were too generic and encroached on the prerogatives of the national government regarding criminal policies. (Decision, considerations of fact §§ 3.1.) Dismissing the claim against Law No. 45, article 1, the Court held that the regions may adopt policies only in those areas indicated in the general guidelines proposed by the minister of the interior and adopted at “unified conferences” (where representatives of the state, cities, and autonomous localities review interests common to the regions, provinces, and mountain communities, in accordance with article 8 of Legislative Decree No. 281 of August 28, 1997) and that relate to activities concerning integrated security, but excluding the fight against illegality or common or organized crime. (Decision, considerations of fact §§ 3.1.) With this clarification, the Court dismissed the challenge to Law No. 45, article 1.

Declaration of Unconstitutionality

On the other hand, as a result of its violation of article 117, paragraph 2, letter (l) of the Constitution (considerations of law § 8.2.3, para. 1), the Court declared the unconstitutionality of article 7, paragraph 2 of Regional Law No. 45, which stated as follows:

The Region provides for legal aid on its own account in criminal proceedings for the defense of citizens who are victims of a crime against property or person, and are accused of committing a crime of culpable excess in self-defense, or are acquitted of the existence of the exculpatory circumstance of self-defense. This paragraph applies to citizens against whom criminal prosecution is exercised from 1 January 2019. The Regional Board defines the criteria and methods for accessing legal aid through specific regulations governing its application to different situations.

The Court found that article 7, paragraph 2 conflicted with the exclusive jurisdiction of the state in the matter of jurisdiction and discipline of legal processes. (Decision, considerations of fact §§ 5.2, para. 1.) In its reasoning, the Court accepted the arguments of the petitioner that article 7 would contradict the exclusive competence that the Constitution gives to the national government in matters of public order and security because it involved political evaluations in the area of the fight against crime and criminality, and also entailed a violation of the exclusive competence of the state on matters of jurisdiction and procedural norms, whether or not the state support for the accused was provided by the public defender or through pro bono representation, since such activities related to the constitutional right to defense. (Considerations of law § 8, para. 2.)

To conclude, the Court considered that, as worded, the assistance contemplated in the controverted provision went beyond mere procedural judicial help, but amounted to a consulting activity of an extrajudicial nature, which “was not susceptible to translate into procedural representation.” (Considerations of law § 8.2, para. 2.)

To support its decision, Court also referred to several of its own precedents. (Considerations of law § 8.2.2.)