1. Introduction

At the beginning of 2015, the Italian Constitutional Court got the opportunity to reaffirm some of the core principles of the juvenile criminal justice system that have been established under international legal instruments. With judgment n. 1/2015 the Constitutional Court declared two legal provisions unconstitutional: Article 458 of the Italian Code of Criminal Procedure (which regulates the application of the defendant to be judged by summary trial [in Italy, giudizio abbreviato] after a request for an “immediate” trial issued by the Prosecutor) and Article 1 of the D.P.R. (Decreto del Presidente della Repubblica) n. 448/1988 (the opening provision of this sort of “special code” of criminal procedure regulating criminal proceedings against minors).

In particular, the judgment focused on two main aspects of the criminal proceedings against minors: the collegiality of the tribunal appointed to judge a young defendant who has applied to be judged under the “summary trial” procedure; and the multidisciplinary nature of the proceedings, guaranteed by the mixed composition of the Youth Court, formed by one professional judge and two lay experts (in social sciences, pedagogy, psychology etc.). The Court found that the provisions (in combination) violate the fundamental principle of equality (Article 3 of the Italian Constitution), the right to defence (Article 24 of the Italian Constitution) and the principle of youth protection (Article 31 of the Italian Constitution). The Court also reaffirmed, indirectly, the requirement to respect the minimum standard of procedural guarantees in juvenile criminal justice, in accordance with the national and international tools in this field[1].

2. The “summary trial” under Italian criminal procedure (in ordinary and juvenile justice).

In the case at issue, the referrals[2] criticised some procedural aspects of the Italian summary process against young defendants. Under the ordinary criminal procedure applicable to adults, the defendant has the right to apply to be tried in a summary trial which consists of: being brought before a single judge, usually the Giudice dell’Udienza Preliminare (pre-trial judge); and being judged at a preliminary phase of the proceedings (the pre- trial phase), only on the basis of the case files prepared by the Prosecution during the investigation.

The Italian Code of Youth Criminal Procedure (D.P.R. 448/1988) also provides for the opportunity for young defendants’ cases to be conducted, at the pre–trial phase, by summary trial. The Code does not, however, expressly regulate the procedure where a young defendant applies for a summary trial, following a request issued by the Prosecutor (i.e. richiesta di giudizio immediato) with the aim of bypassing the pre–trial phase.  This legal vacuum has, so far, been resolved[3]  by applying the general provisions laid down in the Code of Criminal Procedure, specifically Article 458, which regulates summary proceedings generally. In accordance with this provision – and in line with the settled case law of the Italian Supreme Court of Cassation – the young defendant, after presenting a request for summary trial is therefore brought before a single judge of the Youth Court (G.I.P. presso il Tribunale per i Minorenni) and not before a mixed bench as is usually the case when the defendant is below the age of 18. This creates an exception to the ordinary procedure of conducting the pre–trial phase against young defendants by the Youth Court, sitting in collegiality, composed of one professional judge and two lay magistrates who are experts in the field of psychology and pedagogy

3. The allegations and the conclusion of the Court.

In the context of this legal vacuum, the G.I.P of Bologna submitted three referrals to the Italian Constitutional Court questioning the compliance of Article 458 and Article 1 with Articles 3, 31 and 24 of the Italian Constitution.[4] In particular, the Judge questioned whether there was a potential violation of one of the main principles of juvenile justice, as internationally recognised: the collegial and multidisciplinary composition of the youth courts at every stage of the proceedings.

In its reasoning, the Court followed the pathway offered by the judge a quo and gave an overview of the international tools that the applicant provided to support his allegations. The judgment has three notable aspects. Firstly, the main question is related to the suitability (i.e. “idoneità”), not to the competence (i.e. “competenza”), of the (single) judge chairing a single bench in the case of a summary trial against a young defendant. This is a crucial point: according to Article 25 of the Code of Criminal Procedure and to the case law of the Constitutional Court, matters of competence must be solved by the Italian Supreme Court of Cassation with a binding decision. In similar cases, there is no way for the Constitutional Court to overturn a decision of the Supreme Court and all referrals on this point would be inadmissible[5].

Secondly, in dealing with the merits about the suitability of the single judge, the Court  reaffirmed the fundamental role of collegiality in the judicial decision-making process against minors. It is only where the court sits as a panel of more than one judge  that it is indeed possible to achieve the aims of juvenile justice: the personalisation of the proceedings, the rehabilitation of the young people in trouble with the law and the application of the rules of restorative justice. Lastly, the Court affirmed that the juvenile system must also be characterised by the multidisciplinary background (and approach) of the tribunal. In particular, it held:

‘Questa Corte ha avuto modo di sottolineare come il principio costituzionale espresso dall’art. 31, secondo comma, Cost. richieda l’adozione di un sistema di giustizia minorile caratterizzato dalla specializzazione del giudice, dalla prevalente esigenza rieducativa, nonche’ dalla necessita’ di valutazioni, da parte dello stesso giudice, fondate su prognosi individualizzate in funzione del recupero del minore deviante (sentenza n. 222 del 1983).’ [6].

The Court agreed with the G.I.P. and found a violation of the principle of equality (Article 3 of the Constitution) because of the unreasonable unequal treatment of the minors who apply for the summary trial after a request of “immediate trial” issued by the Prosecutor, compared to the ordinary procedure applicable to minors.

4. Recalling the international framework.

Judgment n. 1/2015 also offered the opportunity to recall discussions about the international framework which has inspired the whole Italian juvenile justice system. The 1985 United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) represent, probably, the most important compendium of principles and good practices in the administration of justice for juveniles. In particular, Rules 1.6, 2.3, 14 and 16.1 provide some guidance on the minimum standard requirements that every competent authority in charge of handling young offenders must have: a commitment towards improving the level of competence of involved personnel; special mixed qualifications and a commitment to training; a suitable and proper approach in handling and understanding the needs of the offender, as well as their social and legal situations.

Additionally, in February 2007, the (UN) Committee on the Rights of the Child (Forty-fourth session Geneva, 15 January – 2 February 2007) issued its “General Comment no. 10 (2007) Children’s rights in juvenile justice”.

Chapter V of the document, on “The organisation of juvenile justice”, highlights the importance of the specialisation of the competent authorities with the aim of ensuring the effective functioning of youth justice:

‘As stated in article 40 (3) of CRC, States parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children in conflict with the penal law.(…)

  1. A comprehensive juvenile justice system further requires the establishment of specialized

units within the police, the judiciary, the court system, the prosecutor’s office, as well as

specialized defenders or other representatives who provide legal or other appropriate assistance

to the child.’.

 

Hence, the best way to implement these international principles in the Italian juvenile justice system was throughout the instruction of a youth court which was characterised by the multidisciplinary nature and the mixed background of the bench.

The value of the judgement is therefore twofold: first, it underlined the unreasonable unequal judicial treatment linked to a legal vacuum by challenging a number of problematic domestic procedural matters; secondly, it reaffirmed the main inspirational principles, entrenched in the international instruments mentioned above, on the fundamental requirements of the juvenile justice system.

[1] See the full text of the D.P.R. 448/1988 (as for the national instruments); see the  United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), the UN Convention on the Rights of the Child (General Assembly Resolution 44/25, 20 November 1989), European Convention  on the Exercise of Children’s rights (Strasbourg 25 January 1996) (as for the international instruments).

[2] Court orders no. 17, 18 and 19/2014 of the Giudice per le Indagini preliminari di Bologna – G.I.P.-  judge a quo.

[3] According to Article 1 of the D.P.R.

[4] Respectively, the principle of equality, the principle of youth protection and the right to defence.

[5] In fact, the G.I.P. of Bologna promoted the referrals during the 4th stage of each trial (i.e. giudizio di rinvio) after the decisions of the Supreme Court of Cassation (one for each case) holding that the competence/the jurisdiction must be recognised to the G.I.P. sitting as single judge and not in collegiality.

[6] Corte Cost., sent. n. 1/2015, para 5 (recalling at Corte Cost., sent. n. 222/1983).