«Father, may I smoke while I am praying? » – A judgment lying midway between proportionality and equality

Issue 4/2021

Abstract. The objective of this article is to reconstruct the reasoning developed by the Constitutional Court in regard to the punishment for improper robbery, a criminal offence which is suspected of being punished with a disproportionate penalty thus in contrast to the principle of proportionality. Although the referring court or tribunal regrets the violation of the constitutional article 3 as well as articles 27 (3), 25 (2) of the Constitution, and 49 EU Charter of Fundamental Rights, ultimately, it is a rigid comparative system which lies at the core of the judges’ arguments, resumed by the Court afterwards. The discussion seems to point to the conclusion that a key role, for the purpose of an acceptance judgment, is represented by the correct structure of the question, just like the well known paradox of the novice who asked his prior: «Father, may I smoke while I am praying?», and was severely rebuked. Later on, another novice asked the said prior: «Father, may I pray while I am smoking?», and he was praised for his piety. The aforementioned judgment provides an opportunity to reflect how the principles of equality and penal proportionality are dealt with in constitutional case-law, and lead us to ponder whether, formulated differently, the issue of legitimacy with regard to article 628 (2) of the Italian Criminal Code, could have obtained better results.

This article was submitted anonymously for evaluation by two expert reviewers, with a positive outcome.

SUMMARY: 1. Introduction. – 2. The central role of the constitutional Article 3. – 2.1. Formal equality. – 2.2. The principle of proportionality. – 3. The response provided by the Court. – 4. Almost a warning?

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