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Italy: Constitutional Court Declares Criminal Code Provision on Child Abduction Unconstitutional

(June 30, 2020) On May 29, 2020, the Italian Constitutional Court issued a decision declaring the unconstitutionality of a Criminal Code provision on the suspension of parental authority in cases of child abduction and child maintenance overseas. ( Decision No. 102 of May 29, 2020 .)
Background of the Case
At the request of the Supreme Court of Cassation’s Sixth Criminal Chamber, the Italian Constitutional Court reviewed the constitutionality of article 34 and article 574-bis of the Criminal Code on the basis that they violated the United Nations Convention on the Rights of the Child of 1989 (implemented in Italy through Law No. 176 of May 27, 1991 ) and articles 2; 3; 10; 27, paragraph 3; 30; and 31 of the Italian  Constitution  ( English translation ) in requiring the automatic suspension of the kidnapping parent’s parental authority over the child. (Decision, considerations of fact § 1, para. 1.)
On April 30, 2016, the Tribunal of Grosseto sentenced a woman to prison for two years and one month for failing on several occasions to comply with an order of the juvenile court of Florence regarding the shared custody of her two minor children and for kidnapping the children and bringing them to Austria against the will of the father. In addition to the prison sentence, the tribunal suspended the mother’s parental authority over the children. On April 6, 2018, the Florence Court of Appeal rejected the defendant’s appeal and, affirming the decision of first instance, increased her prison sentence to two years and six months. (Considerations of fact § 1.1.)
Reasoning of the Court
The Constitutional Court reviewed the case in light of article 3.1 of the Convention on the Rights of the Child, which states that “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” (Considerations of fact § 1.3, para. 6.) In addition, article 8 of the convention consecrates the duty of the state to respect the right of the child to preserve his or her identity, including nationality, name, and family relations as recognized by law without unlawful interference, and the principles that all decisions concerning a child must be adopted on the basis of the child’s best interests and protection. (Considerations of fact § 1.3, para. 2.) Further, article 9, paragraph 3 indicates that “States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.” (Considerations of law § 4.2, para. 2.)
The court noted that the general rules on cessation of parental authority established in the Civil Code are applied by a specialized judge—that is, the judge of the juvenile court who reviews all of the specific circumstances of a case. Under the challenged provision, the suspension of parental authority resulting from parental kidnapping operates automatically, thereby impeding the judge from evaluating the specific circumstances of the case, in particular whether the best interests of the child have been observed. (Considerations of fact § 1.3, para. 3.) In this context, the court sustained that the conduct punished by article 574-bis of the Criminal Code “would cause a prejudice to the moral and material interests of the minor.” (Considerations of fact § 2.2, para. 2.)
In addition, the court went on to state that the automatic application of the penalty violates the principle of proportionality of the penalty established in article 3 and article 27, paragraph 3 of the Constitution; would be excessive when the offender was motivated by the purpose of protecting the child from harm that could be caused by the other parent; and would not have any re-educational value. (Considerations of law § 1, para. 3.) Article 30 of the Constitution, in turn, as highlighted by the court, guarantees “the right of the child to have a direct and personal relationship with both parents, except when a concrete harm results to his/her interests. (Considerations of law § 4.2, para. 3.)
The court also pointed out the arbitrariness of article 574-bis of the Criminal Code in that this provision imposes the automatic suspension of parental authority when the kidnapping parent has committed the crime of “harming the minor” without establishing the duration of such suspension (considerations of fact § 1, para. 1), whereas article 34 of the Criminal Code establishes that the duration of the accessory penalty cannot be twice the duration of the principal penalty imposed on the offender (considerations of law § 2.1, para. 1; § 2.2, para. 2).
The court then concluded that an automatic and necessary suspension of parental authority is not optimal for the best interests of the child inasmuch as the penalty may affect a person other than the guilty party, usually the minor children. (Considerations of law § 5.2, para. 3; § 5.3.) Finally, the court maintained that the unreasonableness of the automatic penalty is aggravated by the fact that the suspension of parental authority is implemented only after the final conviction of the parent, which often takes place years after the offense. (Considerations of law § 5.3.3., para. 1.)
Holding of the Court 
The Constitutional Court declared the unconstitutionality of article 574-bis, third paragraph, of the Criminal Code because, contrary to the best interests of the child, it provides for the automatic suspension of the exercise of parental authority of a parent convicted of abducting and maintaining a child abroad rather than allowing the judge to order the suspension. (Holding, para. 1.)

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