Unconstitutionality of Article 649 of the Italian Code of Criminal Procedure, insofar as it excludes that the fact is the same merely because of the circumstance that there is a formal concurrence between the crime already judged by a judgment that has become irrevocable and the crime for which the new criminal proceeding has begun: the Constitution and ECHR are welded together in the guarantee that the person already definitively judged in a criminal trial cannot find himself or herself accused for the same historical fact, and repudiate the muddying of the comparative assessment by virtue of considerations removed from the certainty of the empirical dimension, as ascertained in the first judgment. The always debatable considerations on the interests protected by the incriminating norms, the legal goods offended, the legal nature of the event, the criminalistic implications of the fact and whatever else concerns the different crimes, which are the subject of the subsequent judgments, do not fit with the constitutional and conventional guarantee of ne bis in idem and are alien to our system.
(mechanical not official translation)
ITALIAN CONSTITUTIONAL COURT
JUDGMENT NO. 200 /2016
Public Hearing of 05/31/2016; Decision of 05/31/2016
composed of Messrs: President : Paolo GROSSI; Justices : Alessandro CRISCUOLO, Giorgio LATTANZI, Aldo CAROSI, Marta CARTABIA, Mario Rosario MORELLI, Giancarlo CORAGGIO, Giuliano AMATO, Silvana SCIARRA, Daria de PRETIS, Nicolò ZANON, Franco MODUGNO, Giulio PROSPERETTI,
has pronounced the following
in the judgment on the constitutional legitimacy of Article 649 of the Code of Criminal Procedure, brought by the Judge of the Preliminary Hearing of the Ordinary Court of Turin, in the criminal proceedings against S.S.E., by order of July 24, 2015, entered under No. 262 of the Register of Ordinances 2015 and published in the Official Journal of the Republic No. 48, first special series, of the year 2015.
Having regard to the acts of incorporation of S.S.E., the Municipalities of Casale Monferrato, Ponzano Monferrato, Rosignano Monferrato, Cella Monte and Ozzano Monferrato, M.G. and others, in their capacity as heirs, AIEA - Associazione italiana esposti amianto, AFeVA - Associazione Familiari Vittime Amianto, G.M.G. and others, in their capacity as heirs, as well as the act of intervention of the President of the Council of Ministers;
Hearing at the public hearing on May 31, 2016, Judge-Rapporteur Giorgio Lattanzi;
Hearing of the attorneys Astolfo Di Amato for S.S.E., Marco Gatti for the Municipalities of Casale Monferrato, Ponzano Monferrato, Rosignano Monferrato, Cella Monte and of Ozzano Monferrato, Maurizio Riverditi for M.G. and others, as heirs, Sergio Bonetto for AIEA - Associazione italiana esposti amianto and for G.M.G. and others, as heirs, Laura D'Amico for AFeVA - Associazione Familiari Vittime Amianto and State Advocate Massimo Giannuzzi for the President of the Council of Ministers.
1.- The Judge of the Preliminary Hearing of the Ordinary Court of Turin, by order of July 24, 2015 (r.o. n. 262 of 2015), raised a question of constitutional legitimacy of Article 649 of the Code of Criminal Procedure, in the part in which this provision "limits the application of the principle of ne bis in idem to the existence of the same 'legal fact', in its constituent elements, albeit differently qualified, instead of to the existence of the same 'historical fact'", with reference to Art. 117, first paragraph, of the Constitution, in relation to Article 4 of Protocol No. 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter "Protocol No. 7 to the ECHR"), adopted in Strasbourg on November 22, 1984, ratified and made enforceable by Law No. 98 of April 9, 1990.
The referring party premises that it has to decide on the request for indictment for intentional homicide of a defendant, who has already been finally judged for the same historical fact and has already been acquitted by prescription of the crimes of intentional disaster (Article 434 of the Criminal Code) and intentional omission of precautions against accidents at work (Article 437 of the Criminal Code), to the detriment of numerous people. As many as 186 of these are among the 258 victims of the homicide crimes, for which prosecution has been re-executed.
The judge a quo notes that, from a historical-naturalistic perspective, the facts must be considered identical. The charges focus on the activities carried out by the defendant, in his capacity as manager of some factories where asbestos was used, and concern the omission of appropriate measures to prevent the injury of the physical integrity of workers and the spread of materials contaminated with the carcinogenic substance, resulting in the deaths of 258 people.
The judgments declaring the extinction of the crimes provided for in Articles 434 and 437 of the Criminal Code due to the statute of limitations confirm, in the remittent's opinion, that the causal link, which has already been positively verified, and the additional conduct described in the new charge to reinforce the accusatory hypothesis, but already the subject of evaluation by the first judges, must be considered identical.
Despite this established identity of the historical facts, the judge a quo excludes the possibility of declaring that there is no need to proceed under Article 649 of the Code of Criminal Procedure, as was requested by the defense, because, on the basis of living law, this provision prohibits proceeding again for the same fact, only in the presence of conditions that do not apply in the present case.
With extensive examination of the jurisprudence of legitimacy, the remittent considers that the prohibition of bis in idem requires, pursuant to Article 649 of the Criminal Procedure Code, the identity, according to legal criteria, of the triad "conduct-event-causal link." It is possible that the same historical action or omission corresponds to a plurality of "legal events," due to the diversity of the nature of the crimes and the interests they protect, with the consequence that, in such a case, the fact, although identical in its naturalistic dimension, cannot be considered as such for the purposes of bis in idem preclusion.
In particular, the latter could not operate in cases of formal concurrence of crimes, that is, when several criminal offenses are committed with a single action or omission.
The judge a quo notes that in the case before him, the crime of intentional homicide belongs to a "legal type" that is different from the crimes of intentional disaster and intentional failure to take precautions against occupational accidents, for which the statute of limitations has already been tolled. The latter are crimes of danger, not of harm; death is not a constituent element of the case, as in homicide; the legal good of public safety is protected rather than that of life.
Therefore, the legal events caused by the defendant's omissive conduct would be multiple, and this circumstance would not allow the application of Article 649 of the Criminal Procedure Code.
At this point arises the question of constitutional legitimacy of the referring party, which, again with extensive citations of the jurisprudence of the European Court of Human Rights (henceforth "EDU Court"), considers that the prohibition of bis in idem in criminal matters enunciated by Article 4 of Protocol No. 7 to the ECHR has a broader character than the corresponding rule provided by Article 649 of the Code of Criminal Procedure.
Since the judgment of the Grand Chamber, Feb. 10, 2009, Zolotoukhine v. Russia, the judge a quo observes, the principle has been consolidated that only the identity of the historical fact, assessed with exclusive regard to the conduct of the agent, is relevant, without the lack of coincidence between "the constituent elements of the offenses," with particular regard to the plurality of legal events, being opposed in the opposite sense.
In application of this criterion, a judgment of non-suit should be adopted in the main trial; however, this would be hindered by the living law formed on Article 649 of the Code of Criminal Procedure, which should therefore be declared illegitimate in order to incorporate the more favorable notion of bis in idem accepted by the EDU Court.
Such a notion would not only not conflict with any constitutional parameter, but would also be in harmony with Article 111, second paragraph, of the Constitution, which enunciates the principle of reasonable duration of the trial. Indeed, it would prevent a person from retaining the position of defendant for the same fact, "beyond the time 'reasonably' necessary to define the trial."
2.- The President of the Council of Ministers, represented and defended by the Attorney General's Office, intervened in the case, requesting that the question be declared inadmissible.
The question would be irrelevant, because the referring court has not indicated the date of death of the offended persons, and because, in any case, an attempt at an adequately interpretation of the challenged provision would have been omitted.
Moreover, the judge a quo would lack active "legitimacy," because the decision it must adopt would not have the characteristics of finality.
3.- The defendant in the main trial has entered an appearance, requesting that the question be declared well-founded.
The private party argues that there is an "almost total overlap" between the facts charged and those for which the crimes have already been declared extinct due to the statute of limitations, and that this should entail, pursuant to Article 4 of Protocol No. 7 to the ECHR, the application of the prohibition of bis in idem, which also has force with respect to judgments of non-prosecution resulting from the statute of limitations.
It is added that European jurisprudence is undoubtedly established in the sense that the fact must be "reconstructed having reference to the conduct and not already also to the event."
The private party then dwells on the compatibility with the Constitution of the prohibition of bis in idem, in the version transposed by the ECHR, and notes that in the Italian legal tradition this prohibition, which does not find explicit recognition in the Charter, has lived in "a proceduralist perspective," as a "safeguard provided by the system to ensure the functionality of the trial." For this reason, "the breadth of the operativeness of the concept of 'fact,' with respect to which the identity or otherwise of the proceedings must be verified, is the result of a decision of the legislature of an entirely conventional nature, not existing, on the logical-legal level, the possibility of reaching a single admissible conclusion."
The EDU Court would, however, "completely reverse the perspective," valuing the bis in idem prohibition as "the (fundamental) right of the individual not to be tried twice." In this view, "the criterion for determining the identity of the fact cannot but shift to an assessment that is not formalistic, but substantive, centered essentially on the conduct deserving of censure." It would therefore be necessary to have regard to the identity of the conduct alone, rather than to "legal-formal data."
This arrangement would first of all connect to Articles 25(2) and 27(2) of the Constitution, from which should be derived an interest of the accused in being indefinitely removed from prosecution for the same fact, that is, to "penal quietude," since, otherwise, there would be "unjustified persecution."
Second, the principle of ne bis in idem would harmonize with Articles 2 and 3 of the Constitution, placing itself in the open catalog of fundamental rights, which must take precedence over any other constitutional principle, and thus also over the principle of mandatory prosecution.
Finally, the prohibition of bis in idem would belong to the constituent features of due process, guaranteed by Article 111 of the Constitution, and, in the version incorporated by the ECHR, would accord with the accusatory nature of criminal proceedings, which, "precisely because it moves from a full awareness of the limits of procedural truth," implies that "the trial must be conducted with respect for individual rights and positions."
4.- The Associazione Familiari Vittime Amianto (Asbestos Victims Family Association), a plaintiff in the main trial, has entered an appearance, requesting that the issue be declared inadmissible or otherwise unfounded.
The private party first of all contests that Article 4 of Protocol No. 7 to the ECHR, when compared with Article 649 of the Code of Criminal Procedure, has a more favorable scope for the defendant.
While the domestic rule applies even if the defendant was acquitted by statute of limitations in the first trial, the conventional one requires that he or she be "acquitté ou condamné," employing an expression that "is traced by the French legal tradition exclusively to those cases in which the defendant is acquitted following a recognition of his or her total extraneousness to the facts." The conventional provision would therefore have no place where the first proceeding had come to a halt due to the lapse of the statute of limitations, and consequently the question of constitutionality would be irrelevant.
Moreover, while for Article 649 of the Code of Criminal Procedure the prohibition of bis in idem presupposes the same fact, for Article 4 of Protocol No. 7 it presupposes the identity of "une infraction," or, in the private party's view, of the crime in its legal classification. In this respect, too, conventional protection would be less extensive than that offered by domestic law.
Finally, the case law of the EDU Court could never be binding on the national interpreter, which would imply a further profile of inadmissibility of the question.
In conclusion, the private party observes that the notion of the bis in idem prohibition that the referring party seeks to introduce would be contrary to Article 112 of the Constitution, because it would result in a "downsizing" of the principle of mandatory prosecution.
5.- M.G., M.M., L.L. and C.M.V., who were already civil parties in the main trial, have joined the proceedings, requesting that the question be declared inadmissible or in any case manifestly unfounded.
The plea of inadmissibility due to lack of relevance is based on the finding that the facts for which the statute of limitations has expired and those for which the judgment a quo is pending would not be the same. The event of death would be foreign to the case of the crimes provided for in Articles 434 and 437 of the Criminal Code, and would determine a different fact in terms of both the event and the causal link.
On the merits, the European jurisprudence formed on the prohibition of bis in idem, while linked to the historical-naturalistic dimension of the fact, would require taking into consideration not only the defendant's conduct but also every effect that resulted from it. The question would therefore be unfounded, since the diversity of events in the case would render Article 4 of Protocol No. 7 to the ECHR inapplicable.
The private parties add that, if instead one were to limit the ascertainment to the identity of the conduct alone, manifestly unreasonable effects would be produced, contrary to Article 3 Const. and the principle of mandatory prosecution.
Indeed, the prosecutor would be forced to "'concentrate' [...] in a single trial context the punitive initiative," even when the event may occur years after the conduct that is in any case punishable, "with good peace for the majority of proceedings for murder or injuries resulting from environmental crimes."
This would introduce a "vacuum of protection" of primary legal goods, which would also be contrary to the "obligation of criminalization" that the ECHR would impose to protect the right to health and the right to life, rights which, requiring a higher level of protection, should prevail under Article 53 of the ECHR.
6.- The Italian Asbestos Exposed Association, already a plaintiff in the main trial, has entered an appearance, requesting that the question be declared inadmissible or in any case manifestly unfounded.
The private party believes that the first trial against the defendant, which ended with the declaration of extinction of the crimes due to the statute of limitations, did not have as its object the ascertainment concerning the death of the victims and the causal link.
The question would therefore be irrelevant, because this Court would have to express "an abstract opinion" about the compatibility of Article 649 of the Criminal Procedure Code with the conventional protection.
On the merits, the private party notes that "imagining a system in which criminal conduct could be subject to assessment only once [...] would lead to totally illogical results," because it would be precluded from "the prosecution of further and different offenses that would be subsequently integrated," as in the case of the death of other victims, which occurred at the conclusion of the first criminal trial.
This would result in an "absolutely unacceptable regulatory gap for individual victims," which could also result in a violation of the ECHR "because of the sanctioning vacuum that would be created."
7.- G.M.G., C.M., C.Mi. and R.F., already civil parties in the main trial, have entered an appearance, requesting that the issue be declared inadmissible or in any case manifestly unfounded, with arguments similar to those developed by the Associazione italiana esposti amianto.
8.- The municipalities of Casale Monferrato, Ozzano Monferrato, Cella Monte, Rosignano Monferrato and Ponzano Monferrato, already civil parties in the main trial, have joined the proceedings, asking that the issue be declared inadmissible or in any case manifestly unfounded.
The private parties first contest that the facts already adjudicated and those for which the main trial is pending are the same from a historical-naturalistic point of view. In the judgment a quo, the defendant would be charged with positive conduct that was not the subject of the first indictment, which related to mere omissions, and in any case the deaths of 258 people, some of which occurred after the first trial, are brought into focus. These deaths are constituent elements of the crime of murder, while the trial that ended with the statute of limitations did not focus on them or on the causal link between the lethal events and the defendant's conduct.
This would result in the inadmissibility of the question for lack of relevance.
Moreover, in the opinion of the private parties, the referring party has not adequately appreciated the case law of the European Court of Human Rights, which, while referring to the historical dimension of the fact, would not prevent the consideration of all the elements that realize the crime, and, among them, the event. To confirm this they point out that Article 4 of Protocol No. 7 to the ECHR refers to the identity of the crime, a notion within which the "'events,' understood as 'concrete effects' or 'consequences'" that connote the criminal figure should be included.
This finding, also inferred from a ruling of the Court of Cassation, would further substantiate the inadmissibility of the question.
9.- In the vicinity of the public hearing, the Prime Minister filed a memorandum, requesting, based on arguments similar to those made in the affidavit, that the issue be declared inadmissible or otherwise unfounded.
10.- The defendant's defense also filed a memorandum, in which it asked that "the exceptions of inadmissibility and irrelevance put forward" be declared unfounded, that Article 649 of the Code of Criminal Procedure be declared constitutionally illegitimate, and, "in the alternative," that a "question be raised before the EU Court of Justice for a preliminary ruling."
In response to the deductions made by the defense of the State and the other private parties, the defense of the defendant observes, in particular, that the order of remittal contains an articulate and complete reconstruction of the concrete case being tried, allowing for a full assessment of relevance by this Court. Pacifica would then be the legitimacy of the judge of the preliminary hearing to raise questions of constitutionality. The remittent, moreover, would have conformed to the "absolutely consolidated" orientation of the Court of Cassation in interpreting the challenged rule, which would exempt him from attempting to give it a "meaning in conformity with the constitutional parameters allegedly violated." The reconstruction of the cases charged in the first and second proceedings and the assessment of their identity made by the judge of the preliminary hearing would escape a judgment of blatant arbitrariness, given their logical consistency. Groundless would be the objection, made by the defense counsel of some civil parties, that in the first proceeding against the defendant the death of the victims was not examined. According to the defendant's defense, the first instance ruling, in affirming that the hypothesis referred to in Article 437, second paragraph, of the Criminal Code constituted an autonomous crime, the event of which was the death of the victim, had necessarily carried out a verification with regard to that event, while the ruling of the second instance judge, through the introduction of the concept of epidemiological event, had made it "include all death events, including future ones." From the legal point of view, moreover, the EDU Court's pronouncements would have given prominence exclusively to the naturalistic fact and, within that framework, to the conduct, and not "to the abstract facts contested." The identity between the facts that were the subject of the first and second proceedings should be assessed with regard to the wording of the indictment and not the type of finding or reasoning made by the judge. From this perspective in the "old indictment and the new one," the conduct would be absolutely identical, and the death events would be identical.
With regard to the substantive aspects, the defendant goes over the contents of the most recent rulings of the EDU Court, starting with the February 10, 2009, Zolotoukhine v. Russia judgment, stressing that the principle of ne bis in idem has been interpreted as a prohibition against judging an individual for a second offense, if it stems from the same facts or facts that are substantially identical, taking into consideration the "conduct alone" and not also "the effects" resulting from it. Such a notion, overcoming the exclusively formal dimension of ne bis in idem, would not result in the paralysis of the principle of mandatory prosecution provided for in Article 112 Const. Finally, the objection that the provision contained in Article 4 of Protocol No. 7 to the ECHR has been misinterpreted would also be unfounded, in that "the term 'infraction,' used by the provision to identify 'idem,'" would not refer to the merely factual dimension of the case, but to its legal-formal aspects. According to the defendant's defense, the nomofilactic function of the EDU Court would be confirmed by Articles 19, 32 and 46 of the ECHR, as well as by numerous pronouncements of this Court.
The defendant's defense requests, in the alternative, that a "question be raised for a preliminary ruling" before the Court of Justice of the European Union, as the case at hand would be relevant to EU law on substantive and procedural grounds. Relevant in this regard would be European Union provisions on the protection of workers against the risks of exposure to asbestos. The party notes that in 1983 Directive No. 83/477/EEC (Council Directive on the protection of workers from the risks related to exposure to asbestos at work - second individual directive within the meaning of Article 8 of Directive 80/1107/EEC) was adopted, which was transposed into our law by Law No. 257 of March 27, 1992 (Regulations concerning the cessation of the use of asbestos). The relevance of this directive would have been highlighted in the grounds of the first instance judgment against the defendant. Therefore, the subject of the protection of workers from the risks arising from exposure to asbestos would fall within the scope of Union law, as would be evidenced by the adoption of a series of normative acts of the European Union, including Directive No. 2009/148/EC (Directive of the European Parliament and of the Council on the protection of workers from the risks related to exposure to asbestos at work) of November 30, 2009, which would be part of the Union's policies aimed at ensuring a high degree of health protection and the preservation, protection and improvement of the quality of the environment. The conditions would therefore be met, contrary to the judge a quo's opinion, to make a "preliminary reference for interpretation" before the Court of Justice of the European Union regarding the notion of "same facts."
11.- The other private parties have also filed briefs of identical content. They note how the hermeneutical path adopted by the EDU Court would be characterized by a strictly casuistic approach, as such "not necessarily functional to the elaboration of a definition of idem on which to base a general and paradigmatic theory in an abstract and absolute way." From an analysis of the EDU Court's recent pronouncements, starting with the Zolotoukhine case, it would not seem to be possible to discern any indication that "the expression 'identical facts or facts that are substantially the same'" should be evaluated, not only with regard to conduct, but also with reference to the event and the causal link. Acceptance of the question, as formulated by the judge a quo, would imply abnormal consequences, "both in terms of the (ir)rationality of the criminal and criminal procedural system, and (and above all) with regard to the (in)compatibility of the aforementioned interpretation with the system of fundamental rights," including the right to health and the right to life, protected, moreover, by Article 2 of the ECHR.
Considered in law
1.- The Judge of the Preliminary Hearing of the Ordinary Court of Turin raised a question of constitutional legitimacy of Article 649 of the Code of Criminal Procedure, insofar as this provision limits the application of the principle of ne bis in idem to the same legal fact, in its constituent elements, although differently qualified, instead of to the same historical fact, with reference to Art. 117, first paragraph, of the Constitution, in relation to Article 4 of Protocol No. 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter "Protocol No. 7 to the ECHR"), adopted in Strasbourg on November 22, 1984, ratified and made enforceable by Law No. 98 of April 9, 1990.
The referring judge is deciding on the request for indictment brought against a person charged with the intentional murder of 258 people. The judge notes that in connection with the same conduct the defendant, in a previous trial, has already been acquitted by prescription of the crimes provided for in Articles 434, second paragraph, and 437, second paragraph, of the Criminal Code.
Specifically, in that first criminal trial, aggravated unnamed disaster and wilful failure to take precautions against accidents at work, also in the aggravated form, crimes that the defendant allegedly committed in his capacity as manager of plants of the Eternit company, were charged. Through the spread of asbestos dust, a disaster and an accident were allegedly caused, resulting in the death or illness of some 2,000 people, 186 of whom were named in the new murder charges.
The remittent premised that he could not apply Article 649 of the Code of Criminal Procedure, which enunciates the prohibition of bis in idem in criminal matters, because of the meaning that this provision would have taken on in the living law: there would in fact be two insuperable obstacles for the interpreter who intends to adapt to such established case law.
First, although the literal wording of the provision is clearly intended to compare the historical fact, living law would instead require the identity of the legal fact, or rather "the coincidence of all the constituent elements of the crime and the legal goods protected."
That is, the court would be required to evaluate not the agent's conduct alone, but the triad "conduct-event-causal link," investigating the nature of the crimes and the goods they protect. Applying this criterion to the case at hand, the remittent states that murder is in itself a different fact from the aggravated unnamed disaster and the aggravated wilful failure to take precautions against accidents at work, since these are two crimes of danger, rather than damage, directed at the protection of public safety, rather than life. Moreover, the event of death, which is a constitutive element of homicide, does not even figure among the aggravating circumstances provided for in the second paragraph of Articles 434 and 437 of the Criminal Code, because it is not necessary to integrate the figures of disaster and accident, to which these provisions refer.
Secondly, the remittent recalls the well-established jurisprudence of legitimacy according to which homicide formally concurs with the crimes indicated in Articles 434 and 437 of the Criminal Code, when, as was the case in the present case, the former and the latter are committed by a single action or omission.
Living law in this case recisely excludes the applicability of Article 649 of the Code of Criminal Procedure, holding that the mere circumstance of having violated several provisions of the law or having committed several violations of the same provision of the law (Article 81 of the Criminal Code) prevents the fact from being considered, for the purposes of Article 649 of the Code of Criminal Procedure, as a single act, although it is committed with a single action or omission.
That said, the judge a quo notes, based on an extensive examination of the jurisprudence of the European Court of Human Rights ("ECHR"), that Article 4 of Protocol No. 7 to the ECHR instead has a more favorable meaning for the defendant, since, starting with the Grand Chamber judgment, Feb. 10, 2009, Zolotoukhine v. Russia, it would have been established that identity of the fact is discernible when the same is the action or omission for which the person has already been irrevocably tried. In the present case, applying this guideline, neither the diversity of the event resulting from the conduct nor the configurability of a formal concurrence of crimes would preclude the bis in idem prohibition.
The remittent concludes that Article 649 of the Code of Criminal Procedure is of doubtful constitutional legitimacy, insofar as, under national living law, it establishes criteria for assessing the sameness of the fact that are more restrictive than those derived from Article 4 of Protocol No. 7 to the ECHR. Under the latter norm, in fact, the defendant should be acquitted on the sole ground that the actions and omissions that caused the murders would be, on the historical-naturalistic level, those for which he has already been judged in another criminal trial by final judgment. The circumstance that the event, i.e., the death of the victims, was not at that first trial the subject of ascertainment would have no bearing to the contrary.
2.- The State Attorney General's Office and the private parties put forward numerous exceptions of inadmissibility.
The Attorney General's Office first argues that the referring party lacks standing to raise the issue of constitutional legitimacy.
The exception is manifestly unfounded because the judge of the preliminary hearing is undoubtedly a judicial authority required to apply the challenged rule during the trial (Article 23 of Law No. 87 of March 11, 1953, on "Rules on the Constitution and Functioning of the Constitutional Court").
Second, the Advocate General argues that the failure to mention the date of death of the victims renders the description of the case deficient. This plea is also manifestly unfounded, as it focuses on an element of fact that is not necessary to essay the relevance of the issue of constitutional legitimacy. The latter is discernible because the referring party postulates the sameness of the conduct, which is the subject of a new indictment after a first trial that has been definitively concluded, and the impossibility of applying Article 649 of the Code of Criminal Procedure, notwithstanding, without a prior declaration of constitutional illegitimacy. The date of death of the victims has no bearing on the terms of the question thus proposed.
2.1.- The Advocate General also objects to the inadmissibility of the question, because the referring party could have resolved the doubt of constitutional legitimacy through a conventionally oriented interpretation of Article 649 of the Code of Criminal Procedure.
This exception is also unfounded. In fact, the judge gave ample reasons, noting the existence of a living law contrary to such an interpretative solution, and identified it in numerous pronouncements subsequent to the Grand Chamber's judgment, Zolotoukhine v. Russia, by which the orientation of the jurisprudence of the EDU Court to be considered consolidated was defined. This means that in the perspective of the referring court even this new element could not be worth questioning the persistence of the living law, opening the way for an attempt at an adaptive interpretation. In this context, the judge a quo has "the power to take the censured interpretation in terms of 'living law' and to request on this basis its control of compatibility with constitutional parameters" (Judgment No. 242 of 2014).
2.2.- A private party objected to the lack of relevance of the question, arguing that Article 4 of Protocol No. 7 to the ECHR is not applicable when, as was the case here, the first criminal judgment, which had become final, did not express a judgment on the merits of the charge. In fact, the French text of the European provision requires that the defendant has already been acquitté ou condamné, and acquittement would imply an acquittal, whereas in the case at issue in the main proceedings the defendant was acquitted due to the statute of limitations of the crimes.
The exception is not well founded.
Premised on the fact that the meaning of the provisions of the ECHR and its Protocols must be drawn from the case law of the Strasbourg Court (Judgments No. 348 and No. 349 of 2007), provided that it is consolidated (Judgment No. 49 of 2015), the point is immediate that for that Court what is relevant is the final nature of a judicial decision in order to determine whether it can preclude a new prosecution for the same fact, and this nature is deduced from the res judicata authority that the national system attributes to it. The Grand Chamber's May 27, 2014, judgment in Marguš v. Croatia (Judgment No. 184, 2015) also made application of this principle.
Given that the Italian legal system also recognizes the character of res judicata to judgments of extinction of the crime due to prescription it must be concluded that Article 4 of Protocol No. 7 to the ECHR applies to the judgment a quo.
2.3.- Some private parties have objected to the lack of relevance of the question, arguing that the facts already tried are different, from a historical-naturalistic point of view, from those that are the subject of the new indictment, therefore, even accepting the perspective of the referring party, not even Article 4 of Protocol No. 7 to the ECHR could remove the defendant from the trial.
The exception is unfounded.
Indeed, the remittent has carried out extensive reasoning to demonstrate the identity of the defendant's conduct. Given that this is one of the logical preliminary steps with respect to the doubt of constitutionality, this Court, in order to postulate its adequacy for the purposes of the reasoning on relevance, can only limit itself to the appreciation of the non-implausible nature of the premise developed by the judge a quo.
2.4.- Some private parties objected to the irrelevance of the issue because the first criminal trial did not establish, either the event of the victims' death or the causal link between it and the conduct. Therefore, the facts should be considered different even on the basis of European case law, which would include event and causal link in the comparison judgment.
The objection is unfounded in that it claims to assert on the level of admissibility a profile that pertains to the merits of the question. The referring party, in fact, assumes that Article 4 of Protocol No. 7 to the ECHR requires consideration of only the agent's act or omission, unlike Article 649 of the Code of Criminal Procedure, which would also attach importance to the causal link and the legal event.
For this reason, assessing whether or not the already res judicata judgment has appreciated the causal link and the event exceeds the check on relevance. Indeed, this, in this respect, depends on the remittent's reasoning alone on the sameness of the conduct, i.e., on the only requirement that, in the opinion of the judge a quo, has importance, according to European criteria, to affirm or exclude the uniqueness of the fact.
3.- The defense of the defendant in the main proceedings urges, should the question not be upheld, a preliminary reference to the Court of Justice to clarify whether or not Article 50 of the Charter of Nice (Charter of Fundamental Rights of the European Union, proclaimed in Nice on December 7, 2000, and adapted in Strasbourg on December 12, 2007), itself containing the prohibition of bis in idem in criminal matters, prevents Article 649 of the Code of Criminal Procedure from having the meaning attributed to it by the living law.
The request, beyond any further consideration, cannot be accepted, given that the referring court has excluded the inherent nature of EU law to the case at hand and has delimited the thema decidendum with reference to the profiles of compatibility with the ECHR (Judgment No. 56 of 2015).
4.- Turning to the merits of the question, it is a matter of verifying whether indeed the principle of ne bis in idem in criminal matters, enunciated by Article 4 of Protocol No. 7 to the ECHR, has a different and more favorable field of application to the defendant than the corresponding principle transposed by Article 649 of the Code of Criminal Procedure.
It is first appropriate to essay the judge a quo's belief that the European provision means that the sameness of the fact must be inferred by considering only the agent's conduct, assumed in the terms of bodily movement or inaction.
It is well known that the judgment of the Grand Chamber, Feb. 10, 2009, Zolotoukhine v. Russia, intervened to resolve an articulated conflict that had arisen between the chambers of the EDU Court, on the scope of Article 4 of Protocol No. 7 to the ECHR. After reviewing the theses enunciated in this regard, the Grand Chamber consolidated European jurisprudence to the effect that the sameness of the fact is appreciated in light of the concrete factual circumstances, which are inextricably linked in time and space. Thus, the view, previously held by part of that jurisprudence, that the infraction indicated by the normative text is to be considered the same only if the same is the offense charged again after a first final judgment, that is, the fact in the legal characterization given to it by the criminal system, was rejected.
It is therefore now common ground that the Convention incorporates the more favorable criterion of idem factum, despite the letter of Article 4 of Protocol No. 7, rather than the more restrictive notion of legal idem.
The remittent seems persuaded that from this correct premise inevitably derives the corollary hypothesized above, namely that the test of comparison between fact already finally adjudicated and fact subject to a new prosecution depends exclusively on the sameness of the agent's conduct.
In other words, according to the remittent, if one does not intend to let implications related to the legal good protected by the criminal provisions flow back into the comparative judgment, and one wants to latch on to the empirical component of the fact alone, as is envisaged by the EDU Court, it would be forced to conclude that the latter should be identified by reason of the action or omission, neglecting event and causal link.
The argument is erroneous.
The historical-naturalistic fact is relevant, for the purposes of the bis in idem prohibition, according to the meaning given to it by the legal system, because the epistemological approach fails to describe an identity contour with necessary content. Fact, in this perspective, is the material happening, certainly freed from the yoke of legal framing, but still the result of an addition of elements whose selection is conducted according to normative criteria.
There is, in other words, no logical reason for concluding that the fact, while taken in its empirical dimension alone, is restricted to the action or omission, and does not include, instead, also the physical object on which the gesture falls, if not also, at the extreme limit of the notion, the naturalistic event that resulted, that is, the modification of reality induced by the agent's behavior.
It is clear that the choice among the possible solutions summarized here is normative, because each of them is compatible with the conception of idem factum. This does not mean that the legal implications of the cases being compared result in the reemergence of the legal idem. They, in fact, cannot have any relevance to the decision on the sameness of the historical fact. What has legal character is the mere indication of the segments of the naturalistic occurrence that the interpreter is required to take into account in assessing the sameness of the fact.
In the context of the ECHR, once the relevance of the idem factum has been clarified, it is therefore essential to turn to the established jurisprudence of the EDU Court, in order to understand whether it is restricted to the conduct of the agent, or embraces the physical object, or even the naturalistic event.
5.- The inquiry just alluded to does not support the hypothesis formulated by the judge a quo. Neither the judgment of the Grand Chamber, February 10, 2009, Zolotoukhine v. Russia, nor the subsequent pronouncements of the EDU Court bear the affirmation that the fact must be assumed, for the purposes of the prohibition of bis in idem, with exclusive reference to the action or omission of the accused. For this purpose, in fact, decisions dealing with the comparison of conduct-only offenses cannot come into account, where it is obvious that the judicial inquiry had as its object only the latter (e.g., judgment March 4, 2014, Grande Stevens v. Italy).
Indeed, on at least three occasions, the European court has attached importance, in establishing the uniqueness of the fact, to the circumstance that the conduct was directed toward the same victim (judgment April 14, 2014, Muslija v. Bosnia and Herzegovina, para. 34; judgment April 14, 2014, Khmel v. Russia, para. 65; Judgment Sept. 23, 2015, Butnaru and Bejan-Piser v. Romania, para. 37), and this might suggest that a change in the object of the action, and therefore of the person offended by the crime, breaks the link between the fact finally adjudicated and the new charge, even in the presence of the same conduct (as might happen, for example, in multiple homicide).
What is certain is that, at least at present, the European case law, which "still remains linked to the concreteness of the situation that gave rise to it" (Judgment No. 236 of 2011), does not allow one to isolate with sufficient certainty any principle (Judgment No. 49 of 2015), in the light of which to assess the constitutional legitimacy of Article 649 of the Code of Criminal Procedure, where one excludes the option made with clarity in favor of the idem factum (this yes, truly expressive of a systematic and definitive orientation). In particular, not only is there no way to hold that the fact, as to Article 4 of Protocol No. 7, is to be circumscribed to the conduct of the agent alone, but there are indications to include in the judgment the physical object of the latter, while it cannot be excluded that the event also falls within it, provided that it is rigorously transposed in the material dimension alone.
This is tantamount to concluding that the lack of an unambiguous European jurisprudence, such as to overcome the sporadic nature of casuistic decisions oriented by factors wholly peculiar to the concrete case, frees the interpreter from the obligation to place at the basis of the decision a content of the interposed legislation that is additional, with respect to the historical-naturalistic relief of the fact, except for what will have to be added later about the formal concurrence of crimes.
6.- Similarly, an option in favor of the broader expansion of the guarantee of the prohibition of bis in idem in criminal matters is not stimulated either by the normative and logical context within which Article 4 of Protocol No. 7 to the ECHR is placed.
It is intuitive that the acceptance of the position advocated by the judge a quo, about the appreciation of the conduct alone for the purpose of judging the sameness of the fact, reassures to the highest degree the defendant already definitively judged, who by this means would escape a new criminal trial, both in cases, among others, in which the offense against the same person has been aggravated, and in those in which a single conduct has resulted in a plurality of victims, injured in primary and very personal goods such as life and physical integrity.
However, conventional protection approaches the principle of ne bis in idem with a certain degree of relativity, in the sense that it suffers such conditioning as to make it recessive to contrary requirements of a substantive nature. This circumstance does not direct the interpreter, in the absence of established European jurisprudence to comfort him, toward readings necessarily oriented in the direction of the most favorable solution for the defendant, when another exegesis of the provision is nevertheless placeable in the idem factum framework.
First, Article 4 of Protocol No. 7 to the ECHR, second paragraph, permits the reopening of the criminal trial, when it is provided for by the national legal system, if supervening facts or new revelations are capable of invalidating the already final judgment. While in the Italian legal system only the revision of the conviction is allowed, in order to ensure without any time limit "the protection of the innocent person" (Judgment No. 28 of 1969), the Convention allows the "penal quietude" of the person already finally acquitted to be broken only because new eventualities, including those of an evidentiary nature, have accrued after the trial.
The purpose of pursuing justice, in such cases, overrides the stability of the procedural guarantee concerning the evasion of the state's punitive claim.
Second, the same Grand Chamber (May 27, 2014, Marguš v. Croatia judgment) held (in a case in which a politician had enjoyed an amnesty, noted at trial, for war crimes, but had been tried again for the same facts) that Article 4 of Protocol no. 7 is subject to balancing with Articles 2 and 3 of the Convention, as parts of a whole (para. 128), and added that this entails the inoperability of the ne bis in idem guarantee in the presence of extremely serious incidents, such as crimes against humanity, which States parties are obliged to prosecute (para. 140).
Thus, a further trait of tarnishment of the institution that the Convention justifies in the context of balancing with obligations of criminal protection is manifested.
It should be emphasized, however, that in the national system there can be no satisfaction of punitive claims that is not contained in the forms of due process, i.e., that is not made compatible with the bundle of procedural guarantees attributed to the defendant. Neither the principle of mandatory prosecution, nor the constitutional relevance of the legal goods that have been offended, to which the private parties have referred extensively, can make a trial that has violated the fundamental, and constitutionally relevant, rights of the person subjected to it just, and thus constitutionally compliant.
Among these cannot fail to include the "principle of legal civilization, as well as of very general application" (Ordinance No. 150 of 1995) expressed by the prohibition of bis in idem, thanks to which there comes a time when, having formed a judgment, the individual is removed from the spiral of repeated criminal initiatives for the same fact. Otherwise, the potentially continuous contact with the repressive apparatus of the state would cast the shadow of precariousness in the enjoyment of freedoms related to the development of the individual personality, which is placed, instead, at the center of the constitutional order (Judgment No. 1 of 1969; later, Judgment No. 219 of 2008).
Here, moreover, it is not of interest to compare the levels of protection offered by the ECHR and national law, but rather to draw confirmation that the former does not oblige, not even on a logical-systematic level, to opt in every case for the conception of the same fact more favorable to the defendant, given that the guarantee of ne bis in idem does not take on traits of absoluteness, neither in the text of Article 4 of Protocol No. 7, nor in the consolidated interpretation drawn by the Strasbourg Court.
It remains, in sum, established that, contrary to the hypothesis of the judge a quo, at present the Convention requires member states to apply the bis in idem prohibition on the basis of a naturalistic conception of the fact, but not to restrict the latter to the sphere of the agent's action or omission alone.
7.- Once the scope of the constraint arising from the ECHR has been clarified, it is a matter of ascertaining the compatibility with it of the living law formed on Article 649 of the Code of Criminal Procedure.
In terms of what has been clarified so far, it is clear that the reason for the contrast could not consist in the national interpreter's reception of a view of the sameness of the fact released from the conduct alone, and extended instead to the physical object of it, or to the event in the naturalistic sense, as the referring party suggests. Rather, the national provision would have violated Article 117(1) of the Constitution only if it were to be interpreted in the sense of assigning prominence to the legal idem, or to profiles pertaining to the legal qualification of the fact.
This is what the judge a quo considers to have happened, as a result of a curial twisting of the letter of Article 649 of the Code of Criminal Procedure, which refers to the historical fact, even if considered differently in terms of title, degree or circumstances.
It should be added that, if this were the case, Articles 24 and 111 of the Constitution, to which the principle of ne bis in idem should be linked in general terms (Ordinance No. 501 of 2000), but with particular poignancy in criminal matters (Judgment No. 284 of 2003), would also be violated. Although not expressly recognized by the letter of the Constitution, this principle is in fact immanent to the ordaining function to which the Charter gave rise, because it is not compatible with that function of the legal system to have legislation in the context of which the same legal situation can become the subject of jurisdictional adjudications in perpetuity. In criminal law, this Court has long enriched the force of the prohibition, projecting it from a dimension related to the objective value of the judgment (Judgments No. 6 and No. 69 of 1976, No. 1 of 1973 and No. 48 of 1967) to invest the sphere of the rights of the individual, as a "principle of legal civilization" (Order No. 150 of 1995; also, Judgments No. 284 of 2003 and No. 115 of 1987), moreover endowed with "expansive force" (Judgment No. 230 of 2004), and marked by the nature of personal "guarantee" (Judgment No. 381 of 2006).
The criterion of legal idem then appears too weak to accord with such constitutional premises, because only an objective judgment on the sameness of the historical event averts the risk that the proliferation of crime figures, to which in the abstract the same fact could be traced, offers the occasion for punitive initiatives, if not pretextual, in any case such as to perpetually place the individual in subjection before one of the most penetrating and invasive manifestations of the sovereign power of the state-apparatus.
Thus, the Constitution and ECHR are welded together in the guarantee that the person already definitively tried in a criminal trial cannot find himself or herself impeached for the same historical fact, and they repudiate the muddying of comparative assessment by virtue of considerations removed from the certainty of the empirical dimension as ascertained in the first trial. The always debatable considerations on the interests protected by the incriminating norms, the legal goods offended, the legal nature of the event, the criminalistic implications of the fact and whatever else concerns the different crimes, which are the subject of the subsequent judgments, do not fit with the constitutional and conventional guarantee of ne bis in idem and are alien to our system.
8.- That said, this Court has already had occasion to take note that "the identity of the 'fact' subsists - according to the jurisprudence of legitimacy (Cass. Sez. un. June 28, 2005, no. 34655) - when there is historical-naturalistic correspondence in the configuration of the crime, considered in all its constituent elements (conduct, event, causal link) and with regard to the circumstances of time, place and person" (judgment no. 129 of 2008).
It is in these terms, and only in these, as marked by a pronouncement of the united sections, that Article 649 of the Code of Criminal Procedure lives in the national system with the meaning that must be placed at the basis of today's incident of constitutional legitimacy. And it is a clear and unequivocal statement in favor of the idem factum, although the fact is then broken down into the triad of conduct, causation, and naturalistic event.
Provided that these elements are weighted with exclusive reference to the empirical dimension, the compatibility of this normative bearing with the notion of historical fact has already been favorably tested, both in its abstractness and in the concreteness attributed by established European jurisprudence.
Certainly, contrary to what the referring party also shows to believe with regard to the ruling of the united sections just recalled, the event will not be able to have relevance in legal terms, but will assume significance only as a modification of material reality consequent to the agent's action or omission. That said, and under the conditions recalled, there is no room for conflict between Article 649 of the Code of Criminal Procedure and Article 4 of Protocol No. 7 to the ECHR.
However, this Court must recognize that a minority orientation persists in the same jurisprudence of legitimacy, different from that adopted by the united sections since 2005. The referring court itself has precisely identified some examples of decisions that merely echo the principle of law affirmed by the united sections, but corrupt it by adding that not only the historical-naturalistic dimension of the fact but also the legal dimension should be taken into account; that is, that the criminalistic implications of the event should be considered.
These and other such formulas conceal a criterion of judgment linked to legal idem, which is not compatible, either with the Constitution or with the ECHR, so that it must be definitively abandoned.
However, the occasional nature of such jurisprudential interventions renders them incapable of transfiguring the letter and logic of Article 649 of the Code of Criminal Procedure, giving it, as the remittent hypothesizes, a meaning that differs from the interposed legislation evoked in the present cross-trial. On the contrary, living law, with a reading that conforms to the current stage of development of Article 4 of Protocol No. 7 to the ECHR, requires that the identity of the conduct and the event, according to the manner in which it was concretely produced as a result of the former, be evaluated with a historical-naturalistic approach.
Therefore, there is no doubt that in the case at hand, the indices pointed out by the referring judge to consider the facts already judged as different from those of homicide that are the subject of the new charge are inadequate, because neither the nature of danger of the crimes provided for in Articles 434 and 437 of the Criminal Code, nor the legal good protected, nor the "different 'role' of the same death event within the case in point" can have any weight for these purposes. At the same time, it is clear that, even from a strictly material point of view, the death of a person, although caused by the same conduct, gives rise to a new event, and therefore to a different fact than the death of other people.
Within these limits, it must be ruled out that the first profile of contrast identified by the judge a quo between Article 649 of the Code of Criminal Procedure and the conventional interposed legislation exists, because both transpose the criterion of idem factum, and within it the Convention does not oblige to discard the event in the naturalistic sense from the identity elements of the fact, and therefore to overcome the national living law.
9.- The second profile of contrast, pointed out by the order of referral, between Article 649 of the Code of Criminal Procedure and Article 4 of Protocol No. 7 to the ECHR concerns the rule, enucleated from the national living law, which prohibits the application of the principle of ne bis in idem, where the crime already judged has been committed in formal concurrence with the one that is the subject of the new initiative of the prosecutor, despite the sameness of the fact.
The correspondence of this rule to a constant orientation of the jurisprudence of legitimacy is not in doubt, given that it has been uninterruptedly applied from the entry into force of Article 90 of the Code of Criminal Procedure of 1930 until today, even after the latter provision was succeeded by Article 649 of the new Code of Criminal Procedure. The only permissible exception, in order to prevent a conflict between judgments, is that which case law has seen in cases where the first trial ended with a final ruling because the fact does not exist or because the defendant did not commit it.
It follows that this Court is obliged to scrutinize the constitutional legitimacy of Article 649 of the Code of Criminal Procedure postulating that it has the meaning given to it by the living law, and the related question, connected with the one already examined on the sameness of the fact, is well-founded in the terms that will be specified.
10.- In the current state of the living law, the renewed prosecution is permitted, in the presence of a formal concurrence of offenses, even when the fact, in the sense indicated, is the same on the empirical level, but forms the subject of a real convergence between distinct incriminating norms, such as to generate a plurality of criminal offenses.
It should be premised that, on the level of the State's criminal policy options, it is well possible, as far as it is of interest here, that a single action or omission infringes, according to the normative assessment of the system, several criminal provisions, to which corresponds an autonomous disvalue that the legislator, within the limits of the discretion available to him, deems appropriate to reflect in the multiplicity of corresponding offenses and to punish through the corresponding penalties (albeit according to the favorable criterion indicated by Article 81 of the Criminal Code).
Where the judge has ruled out that a relationship of specialty is in force between the norms (Articles 15 and 84 of the Criminal Code), or that they stand in apparent concurrence, in that one crime entirely absorbs the disvalue of the other, it is undisputed that all the offenses that were consummated through a single commissive or omissive conduct should be attributed to the defendant, insofar as the fact is the same on the historical-naturalistic level.
We are, in fact, in the context of an institute of substantive criminal law that evokes changeable choices of incriminating policy, proper to the legislature, and as such subject to the control of this Court only if they transmogrify into a manifestly unreasonable, arbitrary or disproportionate sanctioning arrangement (ex plurimis, judgments No. 56 of 2016 and No. 185 of 2015).
Nor do these options in themselves violate the individual guarantee of the prohibition of bis in idem, which is instead developed with absoluteness in an exclusively procedural dimension, and precludes not simultaneus processus for distinct crimes committed with the same fact, but a second criminal initiative, where that fact has already been the subject of a ruling of a definitive nature.
In the abstract therefore, the circumstance that the crimes formally concur would not seem to interfere with the area covered by the normative scope of Article 649 of the Criminal Procedure Code. The latter should, on the contrary, be determined exclusively by the formation of a judgment on the same fact, whether it constitutes a single offense or integrates multiple criminal offenses carried out by a single action or omission.
That said, this Court is obliged to take note that the living law, as was correctly noted by the referring party, has welded the substantive profile implied by the formal concurrence of crimes with the procedural one recited by the bis in idem prohibition, exempting the judge from investigating the empirical identity of the fact, for the purpose of applying Article 649 of the Code of Criminal Procedure. The guarantee expressed by this rule, in fact, is overridden by the mere circumstance that the crime already definitively judged formally concurs, pursuant to Article 81 of the Criminal Code, with the crime for which it is being prosecuted.
It is not for this Court to pronounce on the hermeneutical correctness of the principle just stated. Instead, it is the subject of the cross-examination whether it, and thus Article 649 of the Code of Criminal Procedure, which according to living law expresses it normatively, complies with Article 4 of Protocol No. 7 to the ECHR.
If, in fact, there were no grounds for conflict, the referring court, even in the face of the same fact, would be required to proceed in the trial for the sole reason that the homicide formally concurs, according to the jurisprudence of legitimacy, with the crimes provided for in Articles 434, second paragraph, and 437, second paragraph, of the Criminal Code, while, in the opposite case, he would have to focus his attention on the mere identity of the fact, in order to decide whether or not to apply Article 649 of the Criminal Procedure Code.
11.- The nexus of necessity preached in the living law between formal concurrence of crimes and the overcoming of ne bis in idem inevitably reintroduces into the body of Art. 649 of the Code of Criminal Procedure profiles of appreciation on the legal dimension of the fact, which had been expelled through the adherence to a strictly naturalistic conception of conduct, causal link and event.
In order to decide on the uniqueness or plurality of offenses determined by the agent's conduct under Article 81 of the Criminal Code, the interpreter, who has to untie the knot of the possible apparent concurrence of incriminating norms, considers the elements of the material fact that are legally relevant, questions, among other things, the legal good protected by the converging criminal provisions, and may take on the event in an understanding that ceases to be empirical.
This operation, quite legitimately inherent in the criminalistic judgment on the formal concurrence of offenses, and on which the celebration of any simultaneus processus depends, must be deemed barred by Article 4 of Protocol No. 7, because it marks the abandonment of the idem factum as the sole factor in determining whether or not the bis in idem prohibition is applicable.
Instead, in the ECHR system (and, as we have seen, also under the Republican Constitution), the bringing of a new prosecution after the formation of a judgment must depend exclusively on the comparison between the first charge, as it developed in the trial, and the fact underlying the new prosecutor's initiative, and is therefore permitted in the case of diversity, but always prohibited in the hypothesis of the sameness of the historical fact (subject to the exceptions, in the conventional system, provided for in the second paragraph of Article 4 of Protocol No. 7).
Any further criteria of judgment related to the legal aspects of the fact are beyond the options granted to the acceding state.
In fact, the Grand Chamber judgment, February 10, 2009, Zolotoukhine v. Russia, did not adhere to a previous orientation of the EDU Court to exclude the violation of the prohibition of bis in idem in the presence of a concours idéal d'infractions (paras. 72 and 81).
On the other hand, it is clear that the reservation clause outlined by the national case law, which exempts cases of acquittal of the accused for the non-existence of the fact or for not having committed the act, prohibiting for them the second trial even in the presence of a formal concours d'offences, betrays in an uncovered way the mere purpose of preventing the conflict of judgments, and with this the obscuring of the guarantor component of the principle of ne bis in idem, which instead in criminal matters deeply connotes it and should indeed be considered a priority.
Therefore, there is the contrast denounced by the referring party between Article 649 of the Code of Criminal Procedure, insofar as it excludes the sameness of the fact for the sole circumstance that there is a formal concurrence of crimes between res iudicata and res iudicanda, and Article 4 of Protocol No. 7 to the ECHR, which instead prohibits proceeding again when the historical fact is the same.
12.- It should be pointed out that the conclusion just reached does not require the application of the bis in idem prohibition for the sole reason that the crimes formally concur and were therefore committed by a single act or omission.
In fact, it is easily imaginable that the uniqueness of the conduct does not correspond to the sameness of the fact, once it has been made clear that it may derive from the historical-naturalistic identity of additional elements with respect to the agent's action or omission, whether they consist of the physical object of the latter, or even the causal link and the event. The latter position, in particular, is taken up by national living law, and its compatibility with the Constitution and the current state of European jurisprudence has already been ascertained.
These are the hypotheses to which the jurisprudence of this Court should be referred, for which Article 90 of the Code of Criminal Procedure of 1930 did not refer to "the case of formal concurrence of crimes," where "even if the action is a single one, the events, which are multiple and different, ontologically give rise to several facts, which may also be separately prosecuted" (Judgment No. 6 of 1976; later, Judgment No. 69 of 1976). And they are, likewise, the hypotheses regulated by Article 671 of the Criminal Procedural Code, which allows the judge of criminal execution to apply the discipline of the formal concurrence of offenses, in the case of several irrevocable judgments pronounced against the same person, and thus normatively presupposes that occasions are given in which the formation of the first judgment does not preclude the prosecution in separate proceedings of the crime concurrent with the first.
Ultimately, the existence or non-existence of a formal concurrence between the crimes covered by res iudicata and res iudicanda is an irrelevant factor for the purposes of applying Article 649 of the Code of Criminal Procedure, once this provision has been brought back into constitutional conformity, and the irrelevance plays in both directions, because it is permitted, but not required, for the court to exclude the sameness of the fact, where the crimes have been executed in formal concurrence. Indeed, for the purpose of deciding on the applicability of the bis in idem prohibition, only the judgment on the historical fact is relevant.
As a result of this pronouncement of constitutional illegitimacy, therefore, the judicial authority (and thus the judge a quo itself) will be required to compare the historical fact, according to the identity conformation that it has acquired at the outcome of the trial concluded with a final pronouncement, with the historical fact placed by the prosecutor as the basis of the new charge. For this purpose, the existence of a formal concurrence, and with it, for example, the set of elements indicated by the referring party in the main trial (the nature of the offense; the legal good protected; the event in the legal sense), is excluded from exerting a conditioning effect.
On the basis of the triad conduct-causal nexus-naturalistic event, the judge can affirm that the fact that is the subject of the new judgment is the same only if he finds the coincidence of all these elements, taken in an empirical dimension, so that there should be no doubt, for example, about the diversity of the facts, if from a single conduct arises the death or injury to the physical integrity of a person not considered in the previous judgment, and therefore a new event in the historical sense. Where, on the other hand, that judgment has also concerned that person, it will be necessary to ascertain whether the death or injury has already been specifically considered, together with the causal link with the defendant's conduct, that is, whether the fact already judged is in its material elements really the same, even if differently qualified by title, degree and circumstances.
13.- In conclusion, for the reasons stated, Article 649 of the Code of Criminal Procedure should be declared constitutionally illegitimate, due to its conflict with Article 117, first paragraph, of the Constitution, in relation to Article 4 of Protocol No. 7 to the ECHR, in the part in which, according to the living law, it excludes that the fact is the same for the sole circumstance that there is a formal concurrence between the crime already judged with irrevocable judgment and the crime for which the new criminal proceedings have begun.
For These Reasons
THE CONSTITUTIONAL COURT
Declares the constitutional illegitimacy of Article 649 of the Code of Criminal Procedure, insofar as it excludes that the fact is the same for the sole circumstance that there is a formal concurrence between the crime already judged by a judgment that has become irrevocable and the crime for which the new criminal proceedings have begun.
Thus decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on May 31, 2016.
Paolo GROSSI, President
Giorgio LATTANZI, Editor
Roberto MILANA, Registrar
Filed in the Registry on July 21, 2016.
The Director of the Chancellery
F.to: Roberto MILANA