Until the entry into force of Legislative Decree 21/18, the parent who had violated the economic obligations that came out from custody of the children was exposed to the criminal sanc- tion, since the entry into force of Article 570-bis of the Italian Criminal Code (introduced by the aforementioned legislative decree) only the married parent was exposed to this sanction. The new legislation (result, also, of an error emerged in the preparatory works where the word “parent” has been replaced by the word “spouse”), apparently, introduces decriminalization that determines unreasonable discrimination between the married parent and the unmarried one. This unreasonable discrimination, certainly not in accordance with the Constitution, is not an easy solution as any declaration of unconstitutionality of the exclusion would have a criminal effect in malam partem. Judges are also aware of this criticism and, in raising the issue of constitutional legitimacy, they propose arguments aimed at circumventing the obstacle. The arguments proposed, however, do not appear fully convincing, except for the one that evokes the violation, not of art. 3 of the Constitution, but of articles 76 and 25 - paragraph 2 of the Constitution. This different aspect, although abstractly suitable, misses the target, or rather, affects only a part of it, as it only concerns article 2, paragraph 1, letter c) of Legislative Decree 21/18 (which introduced the ‘article 570-bis in the penal code) and not also letters b) and o) of article 7 (which repealed the previous legislation). This inaccuracy, combined with the well-known reluctance of the Consulta to intervene with judg- ments of acceptance on the criminal matter, may determine the Constitutional Court to achieve the expected effect through an interpretative rejection judgment.
Riflessioni sull’intervento del decreto legislativo delegato 21/18 in tema di assegno di mantenimento.
Roberto Russo
2020-01-01
Abstract
Until the entry into force of Legislative Decree 21/18, the parent who had violated the economic obligations that came out from custody of the children was exposed to the criminal sanc- tion, since the entry into force of Article 570-bis of the Italian Criminal Code (introduced by the aforementioned legislative decree) only the married parent was exposed to this sanction. The new legislation (result, also, of an error emerged in the preparatory works where the word “parent” has been replaced by the word “spouse”), apparently, introduces decriminalization that determines unreasonable discrimination between the married parent and the unmarried one. This unreasonable discrimination, certainly not in accordance with the Constitution, is not an easy solution as any declaration of unconstitutionality of the exclusion would have a criminal effect in malam partem. Judges are also aware of this criticism and, in raising the issue of constitutional legitimacy, they propose arguments aimed at circumventing the obstacle. The arguments proposed, however, do not appear fully convincing, except for the one that evokes the violation, not of art. 3 of the Constitution, but of articles 76 and 25 - paragraph 2 of the Constitution. This different aspect, although abstractly suitable, misses the target, or rather, affects only a part of it, as it only concerns article 2, paragraph 1, letter c) of Legislative Decree 21/18 (which introduced the ‘article 570-bis in the penal code) and not also letters b) and o) of article 7 (which repealed the previous legislation). This inaccuracy, combined with the well-known reluctance of the Consulta to intervene with judg- ments of acceptance on the criminal matter, may determine the Constitutional Court to achieve the expected effect through an interpretative rejection judgment.I documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.
