The right to silence in criminal proceedings covers not only the circumstances regarding the merits of the case, but also those which concern the defendant, outside of generalities in the strict sense (first name, last name, place and date of birth): thus the defendant in Italy has no obligation to inform police about criminal records in Italy or abroad, nickname or pseudonym, the possible availability of assets, individual, family and social living conditions, being subject to other criminal proceedings, and whether he or she exercises or has exercised public offices or services, services of public necessity or public offices.
(unofficial machine translation, orignal here)
Constitutional Court
JUDGMENT NO. 111
YEAR 2023
JUDGMENT
in the case of the constitutional legitimacy of Article 495 of the Criminal Code and, in the alternative, of Article 64, paragraph 3, of the Code of Criminal Procedure, as well as of the same Article 495 of the Criminal Code, promoted by the Ordinary Court of Florence, First Criminal Section, in the criminal proceedings against M. G, by order of July 4, 2022, entered under No. 98 of the Register of Orders 2022, published in the Official Gazette of the Republic No. 38, first special series, of the year 2022, the hearing of which was set for the meeting in chambers on April 5, 2023.
Having regard to the statement of intervention of the President of the Council of Ministers;
Hearing in the council chamber of April 6, 2023, Judge-Rapporteur Francesco Viganò;
Deliberated in the council chamber of April 6, 2023.
Held in fact
1.- The Ordinary Court of Florence, First Criminal Section, raised questions of constitutional legitimacy of Article 495 of the Criminal Code, in reference to Articles 3 and 24 of the Constitution, "insofar as it applies to false statements made in the context of criminal proceedings by the person under investigation or defendant in relation to his or her criminal record and in general in relation to the circumstances indicated in Article 21 disp. att. c.p.p."
In the alternative, the same court raised questions of constitutional legitimacy, with reference only to Article 24 Const. of the Constitution, of Article 64, paragraph 3, of the Code of Criminal Procedure, "insofar as it does not provide that the notices provided for therein must be given to the person under investigation/defendant prior to any kind of hearing of the same in the criminal proceedings," as well as of the same Article 495 of the Criminal Code, "insofar as it does not provide for the exclusion of punishability for the crime provided for therein in the case of false statements - in relation to one's criminal record and in general in relation to the circumstances indicated in Article 21 disp. att. c.p.p. - made within the framework of criminal proceedings by one who should have been warned of the right not to answer."
1.1.- The referring court finds itself judging, at trial, the criminal responsibility of M. G., charged, among other things, with the crime under Article 374-bis of the Criminal Code, for having declared to the personnel of the Pisa Police Headquarters - during identification, election of domicile and appointment of a defense counsel in the context of criminal proceedings - that he had no criminal convictions in Italy, having, on the other hand, already received two convictions that have now become final.
Such a fact, the court notes, actually integrates - according to the constant jurisprudence of legitimacy (cited are Corte di cassazione, fifth criminal section, judgments Feb. 26-May 3, 2016, no. 18476; July 8-Sep. 16, 2015, no. 37571; July 9-23, 2014, no. 32741; March 6-May 15, 2007, No. 18677) - the more serious crime under Article 495 of the Criminal Code (False attestation or statement to a public official about one's own identity or personal qualities or those of others), for which the defendant should therefore be convicted.
The remittent doubts, however, the constitutional legitimacy of this provision.
1.2.- First of all, the judge a quo observes that Article 495 of the Criminal Code, which punishes "anyone who falsely declares or attests to a public official the identity, status or other qualities of one's own or another's person," has been considered applicable by the Court of Cassation not only to the hypothesis of false declarations regarding one's criminal record (Court of Cassation, judgments No. 18476 of 2016, No. 37571 of 2015, No. 32741 of 2014 and No. 18677 of 2007 are cited), but also to false declarations regarding other circumstances indicated in Art. 21 of the Implementing Rules of the Code of Criminal Procedure (the Court of Cassation, Ferial Section, judgment September 4-11, 2012, No. 34536, in relation to the false statement regarding the educational qualification during questioning before the judge for preliminary investigations, as well as the Court of Cassation, Fourth Criminal Section, judgment January 14-24, 2022, No. 2497, in relation to the generality of the statements about one's personal conditions and qualities are cited).
The referring party then adds that Article 64, paragraph 3, of the Code of Criminal Procedure, in dictating an articulate discipline concerning the notices that must be given to the person under investigation before he is subjected to interrogation, including the notice of the right not to answer any questions, expressly makes exceptions to the provisions of Article 66, paragraph 1, of the Code of Criminal Procedure. ; a provision, the latter, according to which "[i]n the first act in which the defendant is present, the judicial authority shall invite him to state his personal details and anything else that may be of value in identifying him, warning him of the consequences to which he exposes himself who refuses to give his personal details or gives them falsely."
Article 66 of the Code of Criminal Procedure. - continues the remittent - is in turn referred to by Article 21 norme att att att. cod. proc. penale, which provides that, "[w]hen proceeding under Article 66 of the code, the judge or the prosecutor shall invite the defendant or the person under investigation to declare whether he has a nickname or pseudonym, whether he has assets and what his individual, family and social living conditions are. It also invites him or her to declare whether he or she is subject to other criminal proceedings, whether he or she has been convicted in the state or abroad, and, when appropriate, whether he or she exercises or has exercised public offices or services of public necessity and whether he or she holds or has held public office."
The referring party notes, on the one hand, that according to the jurisprudence of legitimacy, the person being investigated or under investigation would be obliged to answer truthfully only to questions relating to his or her personal details and those strictly aimed at identification, with the exclusion of statements relating to criminal records and other circumstances listed in Article 21 norme att att att. cod. proc. penale. With respect to these circumstances, the person could indeed legitimately refuse to answer without incurring criminal liability. Where, however, he decides to answer and makes false statements, he would be liable for the crime referred to in Article 495 of the Criminal Code (Court of Cassation Decisions Nos. 37571 of 2015, 32741 of 2014 and 18677 of 2007 are cited, as well as Judgment No. 108 of 1976 of this Court, with reference to the rules in force at the time).
On the other hand, the referring party notes that, according to the jurisprudence of legitimacy, the guarantees provided in general by Article 64 of the Code of Criminal Procedure with respect to the person under investigation or the defendant, and in particular the obligation to formulate the warnings referred to in paragraph 3 of that provision, would not operate in the identification and election of domicile (it is cited Court of Cassation, judgment No. 18476 of 2016). In particular, there would be, according to the Court of Cassation, no obligation to precede the applications under Article 21 norms att. cod. proc. penale by the warnings under Article 64, paragraph 3, cod. proc. penale, since such questions would refer to the identity and marital and legal status of the defendant, and not to the fact with which he is charged (Court of Cassation, Judgments No. 2497 of 2022; Second Criminal Section, Nov. 3-10, 2020, No. 31463; Sixth Criminal Section, Sept. 20-Oct. 13, 2016, No. 43337; Fifth Criminal Section, March 6-June 26, 2013, No. 28020 are cited). Nonetheless, the remittent further observes, the answers provided by the person under investigation or the defendant to those questions could then be used by the judge "for precautionary or substantive purposes" to the detriment of the person under investigation or defendant.
1.3.- All this being said, the referring party doubts - primarily - the constitutional legitimacy of Article 495 of the Criminal Code, with reference to Articles 3 and 24 of the Constitution, insofar as - according to the living law reconstructed thus far - it also applies to false statements, made in the context of criminal proceedings by the person under investigation or the accused, with respect to his or her criminal record and the generality of the circumstances referred to in Article 21 of the norms of the penal code.
In fact, the right to silence, recognized by this Court's jurisprudence as a corollary of the right of defense under Article 24 of the Constitution, would also operate with respect to such circumstances (Order No. 117 of 2019 and the additional precedents mentioned therein are cited).
In the remittent's opinion, the legislature-"while not (perhaps) a constitutionally or conventionally obligated choice"-would have declined that right by recognizing, as a general rule, that the person under investigation, and then the accused, not only have no obligation to answer to the judge or the prosecuting authority, but also have the right to lie to them in the exercise of their defense. To the point that, as recognized by the jurisprudence of legitimacy, from the mere mendacity of the accused the judge cannot normally draw prejudicial consequences for him, and in particular deny him on that basis mitigating circumstances or benefits (Court of Cassation, Fifth Criminal Section, judgments Jan. 17-June 5, 2020, No. 17232 and Sept. 14-Dec. 28, 2017, No. 57703; Criminal Unified Sections, judgment May 24-Sept. 20, 2012, No. 36258 are cited).
Therefore, it would be necessary to assess whether the exception represented by the false statements made by the person under investigation regarding the circumstances referred to in Article 21 norms att. cod. proc. penal is reasonable.
In this regard, the referent notes that "very often the information reported with regard to the family and economic conditions of the suspect has an obvious relevance to the assessment of the charges: one thinks, for example, of the greater or lesser plausibility of the charge of theft or other crime against property depending on whether or not the suspect/defendant has a regular source of income or substantial assets; or, in the same vein, the assessment of the possession in the home of a not insignificant amount of narcotics as intended for one's personal consumption or rather for dealing."
With regard then to criminal records, the remittent continues, they are sometimes even constituent elements of the crime (as in the case of the contravention referred to in Article 707 of the Criminal Code), and in any case they assume relevance for the purposes of the possible contestation of recidivism and the penalty treatment under Article 133 of the Criminal Code, as well as the granting of benefits.
On the other hand, "the declaration by the suspect of whether or not he has a criminal record (as well as that of having a job or living with a person with a stable income or having other pending proceedings, perhaps with a precautionary measure in progress)" could "affect the assessment of the precautionary needs, different being clearly the meaning that the crime for which one is proceeding assumes in the presence of an incensed subject or, rather, a subject burdened with multiple specific precedents."
According to the remittent, in answering all these questions, the subject would in fact already be defending himself, "trying to provide his own version which, also with regard to the criminal record and the other qualities and conditions referred to in Article 21 disp. att. c.p.p., would make the charges less truthful or make the facts appear less serious or the precautionary requirements less stringent."
It would, therefore, be "excessively formalistic and therefore unreasonable to distinguish between preliminary questions, which would not be covered by the right to lie, and questions falling within the actual interrogation/examination, which the defendant could freely answer without fear of incurring further criminal liability." On the contrary, it would be constitutionally necessary to decline in a unified manner the content of the right to silence with respect to both the object of the accusation and the additional questions that may be relevant, among other things, in relation to the circumstances of the crime, punitive treatment, benefits, and precautionary requirements, thus excluding criminal liability for any false statement made in this regard by the person under investigation or the accused.
1.4.- In the event that this Court does not deem to uphold the issues thus raised in the main, the referring party raises - in the alternative - questions of constitutional legitimacy, this time with reference only to Article 24 Const:
- of Article 64, paragraph 3, of the Code of Criminal Procedure, insofar as it does not provide that the notices provided for therein must be formulated to the person under investigation and to the defendant before any kind of hearing in the criminal proceedings - and therefore also before the questions referred to in Article 21 norme att att att att att. cod. proc. penale. -; as well as
- of the same Article 495 of the Criminal Code, insofar as it does not provide for the exclusion of punishability in the case of false statements about one's criminal record and in general in relation to the circumstances referred to in Article 21 norme att att att att. cod. proc. penale, made within the framework of criminal proceedings by one who should have been warned of the right not to answer.
Where, therefore, it would not be deemed unreasonable to deny the person under investigation or the defendant the right to lie, and consequently to provide for his punishability for the crime under Article 495 of the Criminal Code for the case of false statements to the questions referred to in Article 21 norme att att att att. cod. proc. penale, in the opinion of the referring party it would nevertheless remain necessary to ensure adequate protection of the right to silence of the person concerned, based on Article 24 Const.
And this through - first and foremost - his prior and express notice concerning this right, pursuant to Article 64, paragraph 3, of the Code of Criminal Procedure, in the absence of which he would in fact be induced to answer, "perhaps lying in order to defend himself," to questions put to him by the police or judicial authority.
Such a necessity would exist both in the event that the person under investigation or accused is already assisted by a defense counsel, and - all the more so - when he or she is not, there being in that case no one who can otherwise make him or her aware of his or her rights.
In order, then, to ensure effectiveness of the obligation to formulate the notices referred to in Article 64, paragraph 3, of the Code of Criminal Procedure before the applications referred to in Article 21 norms of the Code of Criminal Procedure, it would be necessary, moreover, to sanction the non-punishability under Article 495 of the Criminal Code of those who have made false statements in response to such questions without receiving the same notices, similarly to what is already provided today by Article 384, second paragraph, of the Criminal Code with respect to those who should have been warned of the right to refrain from making information, testimony, expert opinion, advice or interpretation.
1.5.- Lastly, the referring party excludes that the desired results can be reached hermeneutically, through a constitutionally oriented interpretation of the censured provisions, given the obstacle posed by the living law; which would make the raising of today's questions unavoidable.
2.- The President of the Council of Ministers, represented and defended by the Attorney General's Office, has intervened in the case, arguing that all the questions raised by the referring party are unfounded.
First of all, the declarations of the person under investigation or defendant regarding his or her criminal record would be completely irrelevant in terms of the exercise of the right of defense, since the prosecutor from the preliminary investigation stage always acquires the information contained in the criminal record; hence "the absolute inanity of the suspect's attempt to mislead the investigating bodies by falsely declaring that he or she has not previously committed crimes."
On the other hand, the questions referred to in Article 21 norms att. cod. proc. penal would concern, as a whole, "facts and circumstances easily knowable by the prosecuting authority, reason why any refusal to answer would not lead to any real advantage in terms of defense," as would be recognized by the same jurisprudence of legitimacy (it is cited Court of Cassation, judgment no. 2497 of 2022).
Consequently, the failure to provide for non-punishability for the crime referred to in Article 495 of the Criminal Code in the event that - in the absence of the necessary notices - the defendant or suspect has made false statements in relation to his or her criminal record and other circumstances referred to in Article 21 norme att att att att. cod. proc. penale could not be held to be in conflict with Article 24 Const.
Considered in law
1.- The Ordinary Court of Florence, First Criminal Section, raised issues of constitutional legitimacy of Article 495 of the Criminal Code, with reference to Articles 3 and 24 of the Constitution, "insofar as it applies to false statements made in the context of criminal proceedings by the person under investigation or defendant in relation to his or her criminal record and in general in relation to the circumstances indicated in Article 21 of the provisions of the Code of Criminal Procedure."
In the alternative, the same court raised questions of constitutional legitimacy, with reference only to Article 24 of the Constitution, of Article 64, paragraph 3, of the Code of Criminal Procedure, "insofar as it does not provide that the notices provided for therein must be given to the person under investigation/defendant before any kind of hearing of the same in the criminal proceedings," as well as of the same Article 495 of the Criminal Code, "insofar as it does not provide for the exclusion of punishability for the crime provided for therein in the case of false statements - in relation to one's criminal record and in general in relation to the circumstances indicated in Article 21 disp. att. c.p.p. - made within the framework of criminal proceedings by a person who should have been warned of the right not to answer."
2.- The Attorney General's Office of the State did not make any exceptions of inadmissibility of the issues.
2.1.- In fact, the questions - raised in the main and in the alternative - concerning Article 495 of the Criminal Code are certainly admissible, since the judge a quo is directly called upon to apply this provision in criminal proceedings.
2.2.- Admissible, moreover, is also the question - raised in the alternative - having as its object the provision in Article 64, paragraph 3, of the Code of Criminal Procedure, of which the referring party also complains, properly, of the failure to apply it by the police authority when identifying the person under investigation pursuant to Article 349 of the Code of Criminal Procedure.
In fact, the remittent invokes from this Court an overall intervention - in his opinion imposed by the logic of an effective protection of the right to silence, descending from Article 24 Const. - by which substantive and procedural criminal law should be affected at the same time. On substantive criminal law, through the exclusion of punishability under Article 495 of the Criminal Code in the case of false statements made in response to the questions referred to in Article 21 of the Norms of Attendance of the Criminal Procedural Code by the person under investigation or accused who has not been warned in advance of the right not to answer such questions; and on procedural criminal law, through the introduction of the obligation to warn the same person of this right, in the forms already provided in general by Article 64, paragraph 3, of the Criminal Procedural Code, before the questions referred to in the same Article 21 are addressed to her.
The two horns of the desired intervention are, in the perspective of the remittent, inseparably connected, since a pronouncement of partial constitutional illegitimacy of the incriminating provision of Article 495 of the Criminal Code does not have significance, declaring its non-applicability to cases in which the notices referred to in Article 64, paragraph 3, of the Code of Criminal Procedure have been omitted, without at the same time sanctioning, on the ground of procedural law, the obligation to formulate such notices also in relation to the applications referred to in Article 21 norms att. cod. pen. Therefore, the desired normative addition could only be realized on both provisions: if the issues raised in the alternative were to be accepted, the indicated provisions would come to constitute a single coherent discipline, the reflections of which on the terrain of substantive criminal law would lead to the result of the acquittal of the defendant from the crime referred to in Article 495 of the Criminal Code, who has not been previously warned, pursuant to Article 64, paragraph 3, of the Criminal Procedure Code, of his right not to answer in relation to his criminal record.
3.- On the merits, the issues now brought before this Court revolve around the extent of the right to silence of the person under investigation or accused in the course of criminal proceedings. More specifically, the petitioner assumes that the right to silence covers not only the circumstances pertaining to the fact of which the person is suspected or accused, but also those - referred to in Article 21 norme att att att att. cod. proc. penale. - which concern his person, outside of generalities in the strict sense (first name, last name, place and date of birth).
3.1.- Since ancient times, this Court has held that the right to silence - defined by Article 14(3)(g) of the International Covenant on Civil and Political Rights (ICCPR) as the guarantee, incumbent on every individual accused of a crime, "not to be compelled to testify against himself or to confess guilt" - constitutes an implicit corollary of the inviolable right of defense, enshrined in Article 24 of the Constitution.
Already, Judgment No. 236 of 1984 states that the right of defense of the person against whom indications of a crime have emerged "certainly includes the right to refuse to answer (except, of course, to requests pertaining to the identification of the person himself)" (para. 12 of the Consideration in Law). Judgment No. 361 of 1998 states, in even more explicit terms, that "the intangibility of the right of defense, in the form of respect for the principle nemo tenetur se detegere, and consequently of the right to silence, is manifested in the guarantee of the exclusion [...] of the obligation to answer at trial questions that might involve one's own responsibilities" (point 2.1. of the Consideration in Law). Again, Ordinance No. 291 of 2002, verbatim taken up on the point by Ordinances No. 451 and No. 485 of 2002, and then by Ordinance No. 202 of 2004, defines the principle nemo tenetur se detegere as an "essential corollary of the inviolability of the right of defense."
More recently, Ordinance No. 117 of 2019 - basing the right in question, together, on Article 24 of the Constitution and on the sources of international law binding on the Italian legal system, including the aforementioned Article 14 PIDCP and Article 6 of the European Convention on Human Rights, as interpreted by the Strasbourg Court (point 7. 2. of the Recitals in Law) - defined it as the "right of a person not to contribute to his own incrimination and not to be compelled to make statements of a confessional nature (nemo tenetur se ipsum accusare)" (para. 3 of the Recitals in Law).
Then, in response to the preliminary questions formulated by this Court in the same Order No. 117 of 2019, concerning the relevance of the right to silence in the context of administrative proceedings likely to result in the imposition of sanctions of an essentially punitive nature, the Grand Chamber of the Court of Justice of the European Union, in its judgment of February 2, 2021, in Case C-481/19, D. B. v. Consob, likewise recognized that the right to silence is implicitly guaranteed in Art. 47 of the Charter of Fundamental Rights of the European Union, in harmony with the consistent case law of the ECHR Court on Art. 6 ECHR, specifying that this right "is violated, in particular, in a situation where a suspect, threatened with punishment for failure to testify, either gives evidence or is punished for refusing to testify" (para. 39), and that it "also includes information on matters of fact which may subsequently be used in support of the prosecution and thus have an impact on the conviction or punishment imposed on that person" (para. 40). Statements, the latter, which were punctually taken up by the subsequent Judgment No. 84 of 2021 of this Court, by which a sanctioning provision of Legislative Decree No. 58 of February 24, 1998 (Consolidated Law on Financial Intermediation, pursuant to Articles 8 and 21 of Law No. 52), insofar as it also applied to a person who refused to answer CONSOB's questions from which his or her responsibility for an offense liable to punitive administrative sanctions, or even a crime, might emerge.
3.2.- The current rules of criminal proceedings protect the right to silence of the person under investigation essentially by means of Article 64, paragraph 3, of the Code of Criminal Procedure, pursuant to which the prosecuting authority must, before the interrogation begins, formulate a series of warnings, including in particular that provided for in subparagraph (b), concerning the "right not to answer any question." Paragraph 3-bis below then stipulates that failure to issue such a warning "renders the statements made by the person being questioned useless." The warnings referred to in Paragraph 3 must also be given in any case of interrogation during the trial, as well as, as a rule, during summary information to the judicial police (Art. 350, Paragraph 1, Code of Criminal Procedure).
On the other hand, on the side of substantive criminal law, neither silence nor false information given by the person under investigation or the defendant during interrogation gives rise to criminal liability per se, except in cases - in particular - in which they falsely accuse others of having committed the crime (Art. 368 of the Criminal Code) or falsely claim that a crime actually never took place (Art. 367 of the Criminal Code).
3.3.- The procedural code, moreover, at present does not recognize to the person under investigation and to the defendant the right to silence with respect to questions concerning their "generalities" and "anything else that may serve to identify [them]": questions which, pursuant to Article 66, paragraph 1, of the Code of Criminal Procedure, must be addressed to them in the first act in which they are present. This is inferred both from the same Article 66, paragraph 1, of the Code of Criminal Procedure, which imposes on the prosecuting authority the obligation to warn the person under investigation of the "consequences to which he exposes himself who refuses to give his personal details or gives them falsely"; and from Article 64, paragraph 3, letter b), of the Code of Criminal Procedure, which, in prescribing the obligation to warn the person about the right to remain silent, expressly makes "without prejudice to the provisions of Article 66, paragraph 1," Code of Criminal Procedure.
At the same time, in the area of substantive criminal law, Article 651 of the Criminal Code establishes as a contravention the refusal to give one's personal details; and Article 495 of the Criminal Code imposes the penalty of imprisonment from one to six years on anyone who "falsely declares or attests to a public official the identity, status or other qualities of his or her own or another's person." According to the constant jurisprudence of legitimacy, the latter provision - the subject of today's censures - also applies to the person under investigation and the defendant who provides false generalities (ex multis, Court of Cassation, Fifth Criminal Section, Dec. 6, 2021-Feb. 7, 2022, No. 4264 and July 20-Sep. 5, 2016, No. 36834).
3.4.- As anticipated, however, the issues before this Court today do not concern the questions relating to the generalities of the person under investigation and the defendant, but rather the additional ones that the prosecuting authority - by virtue of Article 21 norms att. cod. proc. penale. - is required to formulate when proceeding under Article 66, paragraph 1, of the Code of Criminal Procedure. These are, in particular, additional questions relating to nickname or pseudonym, the possible availability of assets, individual, family and social living conditions, as well as the invitation, addressed to the identifier, to declare whether he or she is subject to other criminal proceedings, whether there are any convictions against him or her in the state or abroad, and whether he or she exercises or has exercised public offices or services, services of public necessity or public offices.
3.4.1.- This Court was asked, in 1976, questions similar to those under consideration today, formulated with reference to Article 24 of the Constitution, and concerning both the former version of Article 495, second paragraph, of the Criminal Code, which likewise incriminated the false declaration by the accused of his identity, status and personal qualities, and Article 25 of Royal Decree No. 602 of May 28, 1931 (Provisions implementing the Code of Criminal Procedure). The latter provision, which is functionally homologous to the current Art. 21 norme att att. cod. proc. penale, stipulated, among other things, the judge's obligation to preliminarily ask the defendant whether he was subject to other criminal proceedings and had any convictions in Italy or abroad.
In ruling that those issues, which assumed that the censured provisions conflicted with the defendant's right to "refrain from any statement prejudicial to him," were unfounded, this Court held that there was no doubt "that if the defendant, to the question put to him by the investigator about his criminal record answers contrary to the truth, he incurs the penalties provided for in Article 495 of the Criminal Code. But it is not correct that, to such a question, he is obliged to answer, it being certain that he can refuse to provide the information, which in this regard is requested of him, without incurring any criminal liability." From an analysis of the aforementioned Article 25 of the implementing provisions then in force, this Court deduced, in effect, "that the defendant, only when asked for his personal details is obliged to provide an answer, incurring criminal liability if he refuses to answer, or gives false personal details," generalities having to be understood to mean only "the first name, last name, date and place of birth": thus excluding the other circumstances indicated by the provision then censured, including any criminal record (Judgment No. 108 of 1976, point 4 of the Consideration in Law).
3.4.2.- In the force of the new Code of Criminal Procedure, the jurisprudence of legitimacy has, on the one hand, confirmed that with respect to the circumstances referred to in Article 21 norme att att att att att. cod. proc. pen. there is no obligation for the person under investigation or accused to answer, unlike what happens with respect to one's personal details; on the other hand, it continues to hold that, if the person being questioned answers and makes false statements, the crime referred to in Article 495, first paragraph, of the Criminal Code can be recognized against him/her, in the version in force today (in relation to false statements about one's criminal record, ex multis, Court of Cassation, Fifth Criminal Section, judgments June 8-July 8, 2022, No. 26440 and No. 18476 of 2016; in relation to the false statement of being a law graduate, Court of Cassation, judgment No. 34536 of 2012).
Moreover, this same jurisprudence denies that the questions referred to in Article 21 norms att. cod. proc. penale have any relevance to the constitutional right of defense of the person under investigation or accused, and therefore does not require that the same person be warned of the right not to answer such questions pursuant to Article 64, paragraph 3, cod. proc. penale, well being able - indeed - such questions to be formulated immediately after the warning, provided for in Article 66, paragraph 1, of the Criminal Procedure Code, about the consequences to which one exposes himself who refuses to give his personal details or gives them falsely (Court of Cassation, Judgment No. 2497 of 2022).
In addition, the Court of Cassation sees no obstacle in using even contra reum, in pre-trial proceedings or on the merits, the statements made by the person under investigation or defendant in response to questions under Article 21 norme att att att att. cod. proc. penale: for example, valuing statements on income and assets for the purposes of the existence of the prerequisites of a preventive seizure aimed at confiscation in particular cases under Article 240-bis cod. pen. (Court of Cassation, Judgment No. 31463 of 2020), or to exclude the purpose of personal use of drugs (Court of Cassation, Judgment No. 2497 of 2022, as well as Judgment No. 43337 of 2016, where it is stated that there is "no limit of usability [...] with regard to the answers provided by the defendant on his living and personal conditions, since they do not pertain to the merits of the proceedings, nor can they qualify as statements contra se only because of the assessment made by the judge").
3.5.- This Court believes that the above-described set-up of living law does not provide sufficient protection for the right to silence of the person under investigation or accused under Article 24 of the Constitution, read also in the light of the international obligations binding on our country and of the law of the Union (supra, point 3.1.).
This is because, on the one hand, the constitutional right to silence extends, in the opinion of this Court, also to the questions referred to in Article 21 norme att att att att. cod. proc. penal (infra, point 3.5.1.); and, on the other hand, because an effective protection of this right cannot disregard the formulation of a prior warning to the person under investigation or accused of the right not to answer such questions as well (infra, point 3.5.2.).
3.5.1.- First of all, if the right to silence is the individual's right "not to be compelled" not only "to confess guilt," but also "to testify against himself," as stated in Art. 14(3)(g) PIDCP, this right is necessarily at stake when the prosecuting authority in connection with the commission of a crime asks the person suspected or accused of having committed it questions about circumstances which, although not directly pertaining to the fact of the crime, may later be used against him or her in the criminal proceedings or trial, and are otherwise likely to have "an impact on the conviction or penalty" that may be imposed on him or her (Court of Justice, D. B. v. Consob, para. 40).
Such a situation arises, precisely, with respect to the questions indicated in Art. 21 norme att att. cod. proc. penale, which concern, rather, personal conditions of the suspected offender or the accused other than his personal details, but knowledge of which by the prosecuting authority may generate prejudicial consequences for him in the course of the criminal proceedings, that is, for the purposes of conviction and commensuration of the penalty. And this is so in view of the fact that there is - according to the living law just mentioned - no prohibition against using contra reum the answers to such questions.
Beginning with criminal records, they sometimes - as the remittent correctly observes - integrate constituent elements of the crime, as in the case of the contravention referred to in Article 707 of the Penal Code; and they are in any case susceptible to integrating, when crystallized in res judicata sentences, the aggravating circumstance of recidivism, which can entail even very significant increases in punishment. In addition, information on other criminal proceedings to which the person is subject or on any convictions, including non-final ones, that he or she may have had, whether in Italy or abroad-the latter normally not knowable through the criminal record-could well be used by the prosecutor and then by the judge to assess social dangerousness, for all the purposes for which such an assessment is required: from the decision on a possible precautionary and precautionary measure or on the request for suspension of the proceedings with probation, up to the determinations regarding the possible acquittal for particular tenuity of the fact or the quantification of the sentence, including the commensuration of the penalty in the strict sense (Art. 133, second paragraph, number 2, of the Criminal Code), the applicability of certain extenuating circumstances (and in particular of the general extenuating circumstances referred to in Article 62-bis of the Criminal Code), as well as the possible conditional suspension of the sentence (in light of the provisions of Article 164, first paragraph, of the Criminal Code).
It is of little relevance, then, that information on criminal records can be easily obtained - as the Attorney General's Office observes - from an examination of criminal records, resulting in the "inanity of the suspect's attempt to mislead the investigating bodies by falsely declaring that he has not previously committed crimes." Since these are in fact potentially prejudicial circumstances for the person under investigation or accused, moreover susceptible in many cases to integrate an aggravating circumstance that can result in drastic increases in punishment, the burden of proving the existence of such circumstances - as well as all the others on which the criminal liability of the accused depends - can only rest on the prosecutor, resulting frontally incompatible with Art. 24 Const. any regulatory arrangement that aims to impose on the person suspected or accused of a crime a duty to provide information likely not only to contribute to his or her conviction, but also to aggravate the applicable punishment, or to determine the adoption of measures limiting his or her rights within the framework of the criminal proceedings and then the criminal trial.
Similar considerations can be made for all the other circumstances that are the subject of the questions set forth in Article 21 norme att att. cod. proc. pen. The knowledge of a person's nickname or pseudonym-which, unlike the first and last name, serves to identify him or her not already in the presence of the entire civil community, but exclusively in the circle of his or her private relations-may be of crucial importance for investigative purposes, for example, in the presence of wiretaps in which the person under investigation or accused has been referred to, as is often the case, by nickname: the question concerning this circumstance being equivalent, in such cases, to the solicitation of a true confession.
Again, as proceduralpenal doctrine has not failed to point out, information on the assets owned by the person under investigation or accused, on his individual, family and social living conditions, as well as on the exercise of public offices or services-far from being merely functional for the identification of the subject-may also be relevant, during the investigation and trial, in the perspective of the assessment of the precautionary needs (in particular the danger of flight or reiteration of the crime) that underpin personal precautionary measures, as well as the prerequisites of real precautionary measures (e.g., in relation to the extent of the assets for the purposes of attachment) as well as, as a result of the trial, for the purpose of commensuration of the prison sentence (art. 133, second paragraph, number 4, of the Criminal Code) and pecuniary (Art. 133-bis of the Criminal Code), as well as disqualification measures that have as their object the exercise of public offices or services.
With respect to the generality of these circumstances, the constitutional dimension of the right to silence precludes the recognition of a duty on the part of the same person to provide the relevant information to the prosecuting authority, and thereby to cooperate in the investigation and trial against him or her.
3.5.2.- If, therefore, the circumstances referred to in Article 21 norms att. cod. proc. penal must be considered covered by the right to silence referred to in Article 24 Const. it remains to be assessed whether the living law is designed to ensure adequate protection of this right.
In this regard, it should be preliminarily recalled that a violation of the right to silence occurs not only when the person is compelled by violence or intimidation to make such statements, but also when he or she is induced to do so under threat of punishment or otherwise of a punitive nature, as in the case decided by Judgment No. 84 of 2021.
Now, it is true that the substantive criminal law in force - exactly as at the time of the aforementioned Judgment No. 108 of 1976 - does not consider the mere silence of the person under investigation or defendant kept on the questions referred to in Article 21 norme att att att att. cod. proc. penale, considering punishable only the false statements made in that context, which according to case law integrate the crime referred to in Article 495 cod. penale.
However, it is equally true that procedural law, as interpreted by the constant jurisprudence of legitimacy (supra, point 3.4.2.), does not require that the person be warned of the right not to answer before being asked the questions indicated in Article 21 of the norms of the penal code, which - on the contrary - are normally formulated immediately after the warning, provided for in Article 66, paragraph 1, of the penal code, about the consequences to which those who refuse to give their personal details are exposed.
And nothing then prohibits-as recognized by that same jurisprudence of legitimacy-that the statements made in response to such questions may be used against the declarant, for the most diverse purposes, in the course of the proceedings and then the criminal trial. What, moreover, follows flatly from Article 64, Paragraph 3-bis, of the Code of Criminal Procedure, the prohibition on use provided for therein applying only in cases where the notices provided for in Paragraph 3 above have been unlawfully omitted: notices, precisely, which case law does not hold must precede the questions referred to in Article 21 norme att att att. cod. proc. penale.
Such a normative and jurisprudential set-up determines a situation of insufficient protection of the right to silence, in light of the general principle of effectiveness of the guarantee of fundamental rights recognized by the Constitution, particularly enhanced by this Court precisely in relation to the right of defense, falling within that "inalienable group of rights of the human person (judgments n. 238 of 2014, n. 323 of 1989, and No. 18 of 1982), which characterize the Italian constitutional identity" (Order No. 117 of 2019, point 7.1. of the Consideration in Law; on the effectiveness of the right of defense in its various corollaries, ex multis, recently, Judgments No. 18 of 2022, points 4.3. and 4.4.2. of the Consideration in Law; No. 10 of 2022, point 9.2. of the Consideration in Law; No. 157 of 2021, point 8.1. of the Consideration in Law).
Indeed, as pointed out by the U.S. Supreme Court in one of its best-known decisions of the last century (U.S. Supreme Court, Miranda v. Arizona, 384 U.S. 436 [1966], page 467), the effective guarantee of the right not to contribute to one's own incrimination requires the provision of appropriate procedural means to ensure compliance by the police and judicial authorities. To counterbalance the psychological pressure that is inevitably connected with an interrogation carried out in a court or prosecutor's office, and which can understandably induce the person interrogated to make statements that he or she would not have made under different circumstances, it is necessary - the Supreme Court argued on that occasion - that the person be "adequately and effectively informed of his or her rights," through the well-known "warnings" enunciated by the same judgment, almost literally taken up by the Italian legislature itself in the current Code of Criminal Procedure; and it is, likewise, necessary for the system to provide, correlatively, the procedural sanction of the unusability of all the statements made by the person concerned, when said procedural obligation has been violated (in the sense of the need, for the purposes of respect for the right to silence inferable from Art. 6 ECHR, of a prior warning regarding the right to remain silent, also EDU Court, judgments Oct. 24, 2013, Navone and others v. Monaco, para. 74; Oct. 27, 2011, Stojković v. France and Belgium, para. 54; Oct. 14, 2010, Brusco v. France, para. 54).
Such a procedural obligation and procedural sanction are not currently provided for in relation to the circumstances to which the applications provided for in Article 21 norme att att. cod. proc. penale refer, despite their undoubted suitability to be used contra reum in the course of the proceedings and then the criminal trial. It follows that the person concerned is today not placed in a position to consciously exercise his or her right to silence, and is in no way protected when that right has been violated.
Which concretizes the complained of infringement of Article 24 of the Constitution.
4.- That being said, the remedy identified by the remittent with the first group of questions is, however, in one respect exceeding the purpose (infra, point 4.1.), and in another respect insufficient with respect to this same purpose (infra, point 4.2.).
4.1.- The judge a quo correctly points out that the Italian legislature has considered, as a general rule, not to provide for any criminal sanction against the person under investigation or defendant who makes false statements in his or her own defense; and therefore considers that the punishment, under Article 495 of the Criminal Code, of specific false statements in response to the questions referred to in Article 21 norme att att att att. cod. proc. penale violates Articles 3 and 24 of the Constitution. Consequently, the referring party requests that this Court declare the constitutional illegitimacy of the same Article 495 of the Penal Code, insofar as it also includes such statements among the criminally relevant conduct.
By this - it should be noted - the remittent does not assume that the right to silence under Article 24 Const. also includes a real right to lie, which in itself makes the punishment of false statements by the person under investigation or accused constitutionally illegitimate. Such an assumption, on the other hand, would not only not correspond to the internationally recognized notion of the right to silence, but would, moreover, be devoid of any precise support in the jurisprudence of this Court itself, since the cursory statement, sometimes valorized by doctrine, contained in Judgment no. 179 of 1994 - "the defendant not only enjoys the right not to answer, but is not even obliged to tell the truth" (point 5.1. of the Considerato in diritto) - fulfills in that context a mere descriptive function of the system designed by the legislature, without intending thereby to specify the content of the constitutionally protected right to silence.
Rather, from the perspective of the referring party, a mere imperative of consistency on the part of the legislature, relevant in terms of Article 3 Const, in declining the protection of the right set forth in Article 24 Const. in the concreteness of the system: once the legislature, in the exercise of its discretion, has held as a general rule that the requirements for the protection of that right exclude the punishability of the statements of those who, suspected or accused of a crime, have told falsehoods to the authorities in an attempt to defend themselves, it would be constitutionally untenable to treat differently similar situations, such as statements relating to the fact of crime, on the one hand, and those relating to the personal circumstances of its possible perpetrator, on the other.
It does not seem to this Court, however, that the requirements of internal coherence of the system, while in principle relevant to the yardstick of Article 3 of the Constitution, can go so far as to preclude the legislature from adopting differentiated solutions in relation to situations equally ascribable to the area of the right to silence, but not entirely homogeneous among themselves.
The legislative choice not to provide, as a rule, criminal sanctions against the person suspected or accused of a crime who lies in an attempt to defend himself rests on sound reasons, and corresponds to a long-standing tradition in our country; but the fact that the legislature has not provided a criminal sanction for a given conduct does not necessarily mean that this choice corresponds to an assessment of the lawfulness of that conduct (much less to having considered that conduct as an expression of a right of constitutional rank).
On the other hand, the current legal system already knows of situations in which the person under investigation or accused - who has not availed himself of his constitutionally protected right to silence - may be punished if he makes false statements concerning the responsibility of others (Article 64, paragraph 3, letter c, of the Code of Criminal Procedure), or claims that a crime has in fact been committed that does not exist (supra, point 3.2.). In such hypotheses, the system considers the punishment to be necessary as a function of effective protection of the interests-public and private-protected by Articles 367 and 368 of the Criminal Code, evaluating as recessive the reasons that, normally, make it inappropriate, or unnecessary, to punish the person who has made such statements in an effort to defend himself against the charges against him.
Nor is there, as anticipated, a perfect overlap between false statements relating to the fact of the crime - generally held not to be criminally relevant by the legislature - and those relating to the personal circumstances of the suspected offender, potentially embraced by Article 495 of the Criminal Code. Notwithstanding the fact that the right to silence extends to the one as well as the other, it does not appear to this Court unreasonable that - where the person concerned consciously renounces the exercise of that right - the legislature may prohibit him from making false statements about the circumstances relating to his person and provide for a criminal sanction in the case of failure to comply with that prohibition. That the prosecuting authority may rely, in particular, on the truthfulness of these statements, freely made by the person concerned, appears, moreover, also functional to the interest of the latter in not seeing precautionary measures taken against him that are useless, or at any rate excessive, in relation to the real needs of containing his dangerousness, or of the periculum pertaining to the assets potentially subject to real measures.
From this it follows that the desired declaration of constitutional illegitimacy of Article 495 of the Criminal Code, in the part in which it also includes false statements made by those who have been warned in advance of the right not to answer questions under Article 21 of the Implementing Rules of the Criminal Procedural Code, would achieve a result exceeding the purpose of ensuring the compliance of the current legal and jurisprudential framework with the Constitution.
4.2.- The remedy indicated would, on the other hand, be inadequate with respect to this purpose, intervening only on the side of the punishability of false statements, but not on that - which constitutes a prius of it from the point of view of both logic and chronology - of the imposition on the proceeding authorities of the obligation to notify the person questioned of his or her right not to answer even the questions referred to in Art. 21 norme att att. cod. proc. penale: an obligation without which, as noted above, the same right to silence with respect to such questions would remain emptied of all effectiveness.
4.3.- It follows that the issues raised in the main case are not grounded.
5.- On the other hand, the questions formulated by the referring party in the alternative are well-founded.
5.1.- Deserves acceptance, first of all, the question concerning Article 64, paragraph 3, of the Code of Criminal Procedure in reference to Article 24 of the Constitution.
According to the constant jurisprudence of legitimacy (supra, point 3.4.2.), the warnings provided for therein need not be formulated to the person under investigation or accused before the questions referred to in Article 21 norms attested cod. proc. penal are addressed to him. Consequently, the general rule of their unusability, posed by the subsequent paragraph 3-bis, does not operate with respect to statements made by the person concerned in response to such questions.
For the considerations already made (supra, Section 3.5.2.), such a normative and jurisprudential set-up does not comply with the requirements of protection of the right to silence, as recognized by Article 24 of the Constitution, which requires instead that the person under investigation or accused be duly warned, in particular, of his or her right not to answer even questions relating to his or her personal circumstances other than those relating to his or her personal details, and of the possibility that any statements made by him or her may be used against him or her.
Article 64, paragraph 3, of the Code of Criminal Procedure must, therefore, be declared constitutionally illegitimate insofar as it does not provide that the warnings referred to therein be addressed to the person under investigation or the defendant before they are asked for the information referred to in Article 21 norms att. cod. proc. penale.
As a result of this declaration of constitutional illegitimacy, the relevant statements made by the interested party who has not received the warnings referred to in Article 64, Paragraph 3, of the Criminal Procedure Code will remain, pursuant to Paragraph 3-bis, not usable against him.
5.2.- The question concerning Article 495 of the Criminal Code, also with reference to Article 24 of the Constitution, is also grounded in the terms put forward in the alternative.
The punishability of false statements concerning the "qualities of one's own or another's person" under Article 495 of the Criminal Code must be deemed not to be in conflict with Article 24 Const. only where the person under investigation or accused has previously received the warning about his or her right not to answer under Art. 64, paragraph 3, Code of Criminal Procedure; the legislator then remaining free to consider whether to extend non-punishability also to the hypothesis in which the person concerned, having received the warning, nonetheless makes false statements in order to avoid consequences prejudicial to himself in the proceedings and then in the criminal trial.
Therefore, Article 495, first paragraph, of the Criminal Code must also be declared constitutionally illegitimate insofar as it does not exclude the punishability of the person under investigation or the defendant who, having been requested to provide the information indicated in Article 21 norms of act. cod. proc. penale without having been previously given the warnings referred to in Article 64, paragraph 3, cod. proc. penale, have made false statements.
For these reasons
THE CONSTITUTIONAL COURT
1) Declares the constitutional illegitimacy of Article 64, paragraph 3, of the Code of Criminal Procedure, insofar as it does not provide that the warnings referred to therein shall be addressed to the person under investigation or to the defendant before they are asked for the information referred to in Article 21 of the Implementation Rules of the Code of Criminal Procedure;
2) declares the constitutional unlawfulness of Article 495, first paragraph, of the Criminal Code, insofar as it does not exclude the punishability of the person under investigation or the defendant who, when requested to provide the information indicated in Article 21 of the Implementing Rules of the Code of Criminal Procedure without having been previously given the warnings referred to in Article 64, paragraph 3, of the Code of Criminal Procedure, have made false statements;
3) declares as unfounded the further questions of constitutional legitimacy of the same Article 495 of the Penal Code, raised, with reference to Articles 3 and 24 of the Constitution, by the Ordinary Court of Florence, First Criminal Section, with the order indicated in the epigraph.
Thus decided in Rome, in the seat of the Constitutional Court, Palazzo della Consulta, on April 6, 2023.
F.to:
Silvana SCIARRA, President
Francesco VIGANÒ, Editor
Igor DI BERNARDINI, Registrar
Filed in the Clerk's Office on June 5, 2023.
The Registrar
F.to: Igor DI BERNARDINI