Order of the Court of Bologna, I Criminal Section, 21 April 2015

Through this order, the Court of Bologna submitted to the Constitutional Court a question concerning the legitimacy of the ne bis in idem principle as laid down in Article 649 of the code of criminal procedure, insofar it does not prevent criminal prosecution for the offense of “failure of paying VAT” (Article 10 ter of legislative decree No. 74/2000) in the event that the accused has been already sentenced for the same fact following an administrative proceeding. According to the ruling of the European Court of Human Rights on the case Grande Stevens v. Italy (2014), the possibility of cumulating an afflictive administrative sanction with a criminal sanction, which is allowed under Italian legislation, represents a violation of the substantive content of Article 4 of the 7th Protocol to the ECHR. It is therefore contrary, also, to Article 117.1 of Italian Constitution, under which national legislation must conform with the ECHR provisions as interpreted by the European Court. Moreover, the Constitutional Court has clarified, in its decisions No. 348 and 349 of 2007, that the Italian judge has a duty to interpret national norms in compliance with the ECHR and the European Court’s decisions; and, whenever this is not possible, the judge must submit the question to the Constitutional Court.