Constitutional framework

Regulations referred to
Penal Code, article 348

No. 149

 Ruling of 27 January - 2 February 1988

Interim judgement on constitutional legitimacy

Illegal exercise of a profession - Protection of Chiropractors - Demonstrated inadmissibility

(Penal Code, article 348)

(Constitution, articles 10 and 25)

THE CONSTITUTIONAL COURT

Consisting of:

President: Dr Francesco SAJA

Judges: Prof. Giovanni CONSO, Prof. Ettore GALLO, Dr Aldo CORASANITI, Prof. Giuseppe BORZELLINO, Dr Francesco GRECO, Prof. Renato DELL’ANDRO, Prof. Gabriele PESCATORE, Avv. Ugo SPAGNOLI, Prof. Francesco P. CASAVOLA, Prof. Antonio BALDASSARRE, Prof. Vincenzo CAIANIELLO, Avv. Mauro FERRI, Prof. Luigi MENGONI, Prof. Enzo CHELI;

has pronounced the following

RULING

in judging the constitutional legitimacy of Penal Code article 348, enforced by the ruling issued on 10 July 1985 by the Prefect of Catania, listed at no. 809 in the 1985 register of rulings and published in the Official Gazette no. 11, first special series 1986;

given the acts constituting Eric Gruen and Francis Gran, and the Prime Minister’s act of intervention;

judge referee Ettore Gallo having been heard in Cabinet on 16 December 1987;

agreed that in his ruling of 10 July 1985 the Prefect of Catania raised the question of the constitutional legitimacy of Penal Code article 348 with reference to articles 10 and 25 of the Constitution;

that – in the opinion of the Prefect – as it concerns defining a penal judgement in which he himself found that three United States citizens had exercised the profession of “Chiropractic” without being in possession of training required by the State, the article referred to (which is a general penal regulation) lacks the necessary supplemental references, inasmuch as on the one hand the enabling acts issued in the United States of America are not recognized in this country, and on the other hand, there are no degree courses in Chiropractic in this country, and therefore no specific training, and hence the penal code cannot be applied without breaching article 25 of the Constitution;

that nothing is stated in the grounds of the ruling concerning article 10 of the Constitution, although it was used as a reference;

that the Prime Minister participated in the judgement, represented by the Government lawyers, by requesting that the question be declared inadmissible or in any case unfounded;

considering that the matter reported only punishes those who illegally exercise a profession for which specific State training is required, where it is evident that the illegality actually consists in the exercise of a profession for which the Sate requires specific training by those who have not undergone such training; 

that, on the contrary, it is the Prefect himself who recognizes in his ruling that the Italian State does not require any training for the profession of Chiropractic, which is not covered by Italian law, while Civil Code article 2229 entrusts to the law the identification of those professions for which enrolment on an appropriate register or list is a requirement;

that, consequently, given the disinterest of common law, it is irrelevant that Chiropractic could be included in the register of professions, as, until the State decides to regulate it and makes specific training for its exercise a requirement, it is apparently professional work governed ex art. 35 paragraph 1 of the Constitution in all its forms and applications and as a free private enterprise ex art 41 of the Constitution, it is decided that Penal Code article 348 is absolutely inappliccable because the fact in question is not considered a crime under the law and the question proposed is wholly irrelevant;

that the question is therefore demonstrably inadmissible;

given article 26, para 1 of Law 87, 11 March 1953 and article 9 paragraph 2 of the Supplemetal Regulations for judgements before the Constitutional Court;

FOR THESE REASONS

THE CONSTITUTIONAL COURT

declares the demonstrated inadmissibility of the question of the constitutional legitimacy of Penal Code article 348 raised by the Prefect of Catania in his ruling of 10 July 1985 in reference to articles 10 and 25 of the Constitution.

Decided in Rome, in Cabinet, in the offices of the Constitutional Court, Palazzo della Consulta, on 27 January 1988.

President: SAJA
Referee: GALLO
Clerk of the Court: MINELLI

Filed in the Clerk’s Office, 2 February 1988

Director of the Clerk’s Office: MINELLI

Source: Official Gazette of the Italian Republic, 1st special series, no. 7, 17 February 1988, pp 68–69.