By this order, the Court of Cassation referred a constitutionality question to the Constitutional Court concerning Article 75.2 of legislative decree No. 159 of 2011 in so far the Article requires those subjected to special preventive surveillance measures due to public security to “live honestly and respecting the law”. Despite Constitutional Court’s interpretive efforts over the years, this wording remains too much vague, and thus in breach of the legality principle in criminal matters (Article 7 of the ECHR and Article 2 of the Fourth Protocol to the ECHR), as stated by the ECHR Court in its decision of 23 February 2017 on the case de Tommaso v. Italy. The Court of Cassation firstly examined which decisions of the ECHR Court have as an effect to oblige Italian courts to interpret national laws accordingly. The ruling of the ECHR Court in the de Tommaso case is among these decisions; on other hand, interpreting Article 75.2 of legislative decree No. 159 of 2011 consistently is impossible. Hence from, the decision of submitting the legitimacy question of the Article – read in conjunction with Article 117.1 of the Constitution (respect for Italy’s international obligations) – to the Constitutional Court.
Judgment of the European Court of Human Rights, Grand Chamber, 23 February 2017, de Tommaso v. Italy; Decree of the Court of Milan, Autonomous Section on Preventive Measures, No. 13 of 7 March 2017; Order of the Court of Appeal of Naples, VIII Criminal Section, 15 March 201; Decree of the Court of Palermo, I Criminal Section – measures of prevention, 28 March 2017; Decree of the Court of Rome, Preventive Measures Section, No. 30 of 3 April 2017; Order of the Court of Udine, Criminal Section, 4 April 201; Decision of the Court of Cassation, United Criminal Sections, No. 40076 of 27 Avril 2017; Decree of the Court of Palermo, I Criminal Section – preventive measures, 16-29 May 2017; Decree of the Court of Palermo, I Section on Preventive Measures, No. 62 of 1 June 2017