Depenalizzazione dell’ingiuria e (obbligo di) protezione del diritto all’onore: riflessioni a margine di una questione di legittimità costituzionale

The Giudice di Pace di Venezia has raised an issue of constitutionality of the rules depenalising the offence of insulting behaviour. According to the referring judge, the right to honor can only be preserved by means of criminal law, which is the only body of rules that gives adequate protection to inviolable rights referred to in the Italian Constitution. Furthermore, the legislature should have complied with obligations arising from the European legal order(arts. 10 and 117 of the Constitution), which demands Member States, through art. 1 of the Charter of fundamental rights of the European Union, to respect human dignity. Moreover, the repealing and depenalising rules are deemed to violate also art. 3 of the Constitution (which is expression of the principles of non-discrimination and reasonableness), given that the offence of defamation (which is set to preserve the same right protected by the offence of insulting behaviour) has been kept in the criminal code; as a result, in the referring judge’s opinion, the legal order is now giving a different substantial protection to the same right, thus violating the above mentioned principles. The performed analysis shows that – after deducing the concrete risk of obtaining a decision that would simply declare the indisputability of the question (since the mentioned depenalising rules can be qualified as “more favourable” criminal law, which is covered, according to the case law of the Constitutional Court, by an absolute immunity from constitutional review) – the allegations made by the referring judge are unfounded. As a matter of fact, according to the theory of the State obligation to protect individuals’ rights, the legislature must give adequate protection to the right at stake, but not necessarily by means of criminal law. The latter, indeed, should be used only when the absence of an incrimination could undermine the effectiveness of the right’s recognition in the Constitution. This, however, doesn’t seem to happen in the analysed case.