Judgment No. 151 of 2025 - AI translated judgement

JUDGMENT NO. 151

YEAR 2025

ITALIAN REPUBLIC

IN THE NAME OF THE ITALIAN PEOPLE

THE CONSTITUTIONAL COURT

composed of:

President: Giovanni AMOROSO;

Judges: Francesco VIGANΓ’, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI, Massimo LUCIANI, Maria Alessandra SANDULLI, Roberto Nicola CASSINELLI, Francesco Saverio MARINI,

has pronounced the following

JUDGMENT

in the constitutional legitimacy review of Article 69, fourth paragraph, of the Penal Code, promoted by the Court of Assizes of Rome, First Section, in the criminal proceedings against A. D.A. and L. P., with an order dated January 20, 2025, registered under no. 34 of the register of orders for 2025 and published in the Official Gazette of the Republic no. 10, first special series, of 2025.

Heard in the private session of September 22, 2025, the Reporting Judge Antonella Sciarrone Alibrandi;

Deliberated in the private session of September 22, 2025.

Facts Considered

1.– With an order dated January 20, 2025 (r.o. no. 34 of 2025), the Court of Assizes of Rome, First Section, raised questions of constitutional legitimacy concerning Article 69, fourth paragraph, of the Penal Code, in reference to Articles 3, first paragraph, 25, second paragraph, and 27, first and third paragraphs, of the Constitution, in the part where it "with reference to the crime under Article 630 of the Penal Code, prohibits the prevalence of generic mitigating circumstances pursuant to Article 62-bis of the Penal Code over repeated recidivism pursuant to Article 99, paragraphs 2 and 4, of the Penal Code."

2.– The referring body reports that it must rule on the charges brought against two subjects, accused – in concert with each other and with a third party (tried separately), as well as in the execution of a single criminal plan – of the following crimes, charged as committed from July 31 to August 2, 2023:

(a) Kidnapping for the purpose of extortion (Art. 630 of the Penal Code), for having deprived the victim – with whom all the accused had just consumed "cocaine-crack" and one of them also a paid sexual act – of personal liberty, by tying them to a chair and blindfolding them, with the aim of obtaining, as the price for release, the sum of EUR 1,500 plus the unjust profit of EUR 100 to purchase further narcotic substance and EUR 250 as reimbursement for the loss of "further clients"; and this for almost two continuous days, until the victim, taking advantage of the temporary absence of the accused, managed to free herself and call for help, triggering the intervention of law enforcement officers who proceeded to her release;

(b) Aggravated personal injury (Arts. 582 and 585 of the Penal Code), for having repeatedly struck the victim with slaps, kicks, and punches, as well as with a wet towel and a rolling pin, causing bruising and fractures;

(c) Aggravated robbery (Art. 628, first and third paragraphs, number 1, of the Penal Code), for having taken possession, through violence and threats and by taking them from the victim, of the mobile phone and a "postepay" payment card;

(d) Undue use of payment instruments other than cash (Art. 493-ter of the Penal Code), for having used, with the intent to profit and not being the holder thereof, the "postepay" card owned by the victim.

For all the aforementioned crimes, the one accused who had agreed to the paid sexual service with the victim was charged with "specific and repeated recidivism."

3.– The referring judge deems the legal classification of the facts under indictment to be correct.

3.1.– In particular, regarding the charge of kidnapping for the purpose of extortion, it gives relevance to the deprivation of personal liberty "for a non-irrelevant period, equal to two full days" and, with the modalities described above, against the victim's will.

3.2.– Furthermore, according to the referring body, the prerequisites for applying repeated recidivism against the accused to whom it has been charged (a subject, moreover, already declared a repeated recidivist in three previous conviction sentences, which became final prior to the facts under consideration) are met. Indeed, this accused "is burdened by an uninterrupted series of convictions [...] dating from 2012 up to 2023," for committed robbery and personal injury, as well as for theft and receiving stolen goods, "interspersed with multiple convictions for evasion (as many as four) concerning house arrest measures." These facts are deemed, in the referring body's opinion, to be symptomatic "of a growing social dangerousness" and of "greater culpability and propensity to crime," which, together with the homogenous nature (compared to prior offenses) of the "very serious crimes" charged in the present proceedings, justify – due to the "further increase in the propensity to crime" attested by these facts – "the sanctioning response inherent in the correct application of repeated recidivism."

4.– On the other hand, the referring body deems the generic mitigating circumstances to be recognizable in favor of the same accused, "requested by the Public Prosecutor and the Defense Counsel," in order to rebalance the final sanction to the actual disvalue of the contested act, considered in the entirety of its subjective and objective elements, and, in particular, to adequately assess "circumstantial elements other than those described in norms that are relevant exclusively from an objective perspective," such as the mitigating circumstance under Art. 311 of the Penal Code.

For the referring judge, the concrete living conditions of the accused ("a drug-dependent subject in economic difficulty, who has undertaken a gender transition process, including pharmacological, organic, and physiological treatments"), the context in which the facts were committed (characterized by the "degeneration of a reciprocal relationship that escalated with violent modalities"), as well as the correct and loyal procedural conduct adopted throughout the entire hearing (to which the accused chose to attend "offering his useful contribution to the reconstruction of the facts") "induce an assessment of the merit of these circumstances."

4.1.– The simultaneous recognition of the prerequisites for repeated recidivism would not be an obstacle to the application of the generic mitigating circumstances pursuant to Art. 62-bis of the Penal Code, since case law of the Court of Cassation (some rulings of which are cited) has recognized the autonomy and independence "of the judgments concerning the two institutes."

5.– The Court of Assizes of Rome observes that, precisely due to the provision contained in the contested provision, the balancing judgment of generic mitigating circumstances against the contested aggravating circumstance "must stop" at equivalence, even if the former were "deemed to have a greater weight than the aspects expressed by the held repeated recidivism."

This in itself establishes the relevance of the questions.

5.1.– This relevance, for the referring body, is also appreciated from another point of view, since, in the event of a conviction, the minimum applicable custodial sentence "would necessarily have to be thirty years of imprisonment."

Pursuant to Art. 81, fourth paragraph, of the Penal Code, in fact, if committed by subjects to whom the recidivism referred to in Art. 99, fourth paragraph, of the Penal Code is applied, the increase in sentence for crimes committed in continuation with the most serious crime (here, kidnapping for the purpose of extortion) "may not in any case be less than one-third of the sentence" established for the latter. Since the statutory minimum for extortionate kidnapping is set at twenty-five years of imprisonment, for the referring judge, the final result of the calculation should yield a sentence "equal to thirty-three years and four months of imprisonment," capped at thirty years due to the moderating criterion set forth in Art. 78, first paragraph, number 1), of the Penal Code.

Following the trend of case law of the Court of Cassation (some rulings of which are cited), only if the generic mitigating circumstances could be considered prevalent over repeated recidivism would the application of the "minimum limit of increase in sentence for continuation" set by Art. 81, fourth paragraph, of the Penal Code, which operates even when the judge considers the mitigating circumstances equivalent to repeated recidivism, be excluded.

5.2.– The referring judge also excludes the grant of the mitigating circumstance under Art. 62, number 4), of the Penal Code, which refers to the "special slightness" of the "pecuniary damage" caused to the victim. To this end, even assuming the amount demanded for release (between EUR 1,500 and EUR 2,500) to be modest, it would still be necessary to evaluate the damage to the person against whom violence or threat was used, "as these are crimes that harm both property rights and the physical and moral freedom of the victim." And in the opinion of the Court of Assizes of Rome, the serious physical injuries reported by the victim following the act, which healed in about thirty days, would be "sufficient in themselves to exclude an assessment of special slightness of the overall damage suffered, even independent of the pecuniary aspect."

5.3.– Finally, the referring Court excludes the possibility of recognizing the mitigating circumstance of the "slightness of the act" under Art. 311 of the Penal Code, applicable also to kidnapping for the purpose of extortion following this Court's judgment no. 68 of 2012 and, as a result of judgment no. 143 of 2021, exempted from the preclusive mechanism under Art. 69, fourth paragraph, of the Penal Code.

The modalities of the act would preclude, in the referring judge's opinion, its classification among those "of slightness," noting, in particular: (a) "the temporally appreciable duration of the kidnapping (equal to 48 hours)," (b) the amount of the price for release, requested "also involving the elderly parent" of the victim, and above all (c) the modalities of execution of the act, characterized by the infliction of "serious physical injuries" (which resulted in the victim's hospitalization for four days), as well as threats and mockery by several people gathered together.

5.4.– Only the acceptance of the raised questions, ultimately, could eliminate the "manifest disproportion" of the sanctioning treatment resulting from the "derogation from the ordinary regime for balancing circumstances, as governed by Art. 69 of the Penal Code," compared to a case that is "absolutely peculiar" in terms of sanctioning response, "even higher than that set for homicide." Compared to this case, only the restoration of "the ordinary rule for balancing heterogeneous circumstances under the first three paragraphs of Art. 69 of the Penal Code" would avoid a sanctioning treatment that is "manifestly unreasonable with respect to the conduct actually carried out, even if not constituting an act of slightness," allowing "the imposition of a sentence" proportional to the charged facts, as being "slightly over sixteen years and eight months of imprisonment," with a slight increase for continuation, "within the terms set by Art. 81, paragraph 2 of the Penal Code."

6.– As for the non-manifest unfoundedness, the referring judge preliminarily reconstructs the normative and jurisprudential framework of reference.

6.1.– The review begins with the amendments that, over time, have affected the statutory provision of the crime of kidnapping for the purpose of extortion, following the trend of progressive severity of the related "sanctioning framework," ultimately set between a minimum of twenty-five years and a maximum of thirty years of imprisonment.

6.2.– Then, the numerous rulings by which this Court has declared the constitutional illegitimacy of Article 69, fourth paragraph, of the Penal Code, in relation to the prohibition of prevalence of multiple mitigating circumstances over the aggravating circumstance of repeated recidivism, are reconstructed, without any longer distinguishing the nature and effects of the mitigating circumstances involved in the balancing judgment with repeated recidivism.

6.3.– Furthermore, the referring body observes that, although it has declared questions of constitutional legitimacy analogous to those proposed here manifestly unfounded, the case law of the Court of Cassation has nonetheless recognized that the limit to the rule established by Art. 69, fourth paragraph, of the Penal Code, "is given by the concrete occurrence of situations 'clearly disproportionate'" (citing Court of Cassation, Third Penal Section, judgment of May 22–July 22, 2024, no. 29723).

7.– Having stated this, the referring body deems the provision prohibiting the balancing in terms of prevalence over repeated recidivism pursuant to Art. 99, paragraph 4, of the Penal Code of generic mitigating circumstances, applied to the criminal case under Art. 630 of the Penal Code, to be inconsistent with the principles emerging from the jurisprudential outline traced.

8.– In this regard, it affirms that this Court has established three *rationes decidendi* as the basis for the rulings accepting the cases presented so far concerning the provision challenged herein and believes that "today's question shares all the aforementioned reasons."

8.1.– In particular, for the referring body, a first group of rulings (citing, for example, Judgment No. 251 of 2012) has highlighted the "not negligible divergence between the penalty provided for the base crime and that applicable following the recognized mitigating circumstance," deeming it compatible with the constitutional principles of equality (Art. 3, first paragraph, Const.), of the harmfulness of conduct (Art. 25, second paragraph, Const.), and of the proportionality of the penalty tending towards the rehabilitation of the convicted person (Art. 27, third paragraph, Const.), only to the extent that the judge's power to carry out "an ordinary balancing" and "to assess the mitigating circumstances as prevalent over repeated recidivism" is preserved.

In the present case as well, there exists "an important divergence" between the penalty provided for the base crime and that provided for the crime with circumstances: for the former, "even assuming the statutory minimum, there would be twenty-five years of imprisonment," whereas for the latter, considering the mitigating circumstances under Art. 62-bis of the Penal Code in their "maximum scope of application, one would arrive at a penalty of sixteen years and eight months of imprisonment."

Moreover, given the application of the rules under Art. 81, fourth paragraph, of the Penal Code, the aforementioned divergence would be "even more disproportionate," as the penalty that can be imposed would in any case be equal to thirty years of imprisonment.

The referring body clarifies that it does not consider the "entrenchment in terms of equivalence of generic mitigating circumstances" compared to repeated recidivism to be "bordering on arbitrariness."

It is only in relation to the crime of kidnapping for the purpose of extortion, and "even more so if the act is committed in continuation with other crimes," that, "due to the extremely severe punitive framework contemplated within a very narrow sanctioning range," the application of the contested provision produces an "abnormal emphasis on the subjective components attributable to repeated recidivism," with a sanctioning aggravation that is manifestly unreasonable, as it tends towards the "doubling of the penalty for an act that, objectively identical, is committed by a repeated recidivist rather than by an unconvicted subject."

Moreover, the referring body concludes on this point, this Court (Judgment No. 94 of 2023) has already recognized for mitigating circumstances – without distinctions between common and special effect ones – "a necessary rebalancing function" of the marked divergence discussed so far, declaring the constitutional illegitimacy of Art. 69, fourth paragraph, of the Penal Code, in the part where, in relation to all crimes punishable with life imprisonment, it does not allow "all mitigating circumstances – therefore including generic mitigating circumstances – to prevail over the held repeated recidivism."

8.2.– The referring body further believes that, with a second set of rulings, this Court has highlighted the need "to balance the particular breadth of the definition of the un-circumstanced crime which encompasses markedly different conduct," and which, for this reason, "needs to be differentiated in the determination of the sanctioning treatment."

For the referring judge, the abstract definition outlined by Art. 630 of the Penal Code can be "attributed to a very broad and heterogeneous case history," in light of the "non-negligible differences in context, duration, and modalities of execution of kidnapping for the purpose of extortion."

This being the case, "the urgency to apply a proportional penalty" cannot lead the interpreter "to the extreme, and in this case mandatory, conclusion" of considering – "even to avoid the extremely harsh sanction" described – every act of extortionate kidnapping as of slightness pursuant to Art. 311 of the Penal Code, even when, as in this case, the prerequisites for it are not met.

Moreover, the referring body adds, the applicability of Art. 311 of the Penal Code cannot exclude the need for a different and further circumstance capable of fulfilling the same mitigating function, "but for different reasons." The circumstances provided for in Arts. 311 and 62-bis of the Penal Code, in fact, are not at all overlapping, as the generic ones are "a flexible tool that allows subjective aspects escaping objective judgment on the slightness of the act to be valued," as would be necessary in the present case.

8.3.– As for the third *ratio decidendi* derivable from the review of constitutional case law on the matter, the referring judge asserts that a further set of rulings concerned "mitigating circumstances strictly linked to the personal nature – and therefore more markedly individual – of criminal responsibility."

It therefore holds that the arguments made on those occasions, with reference to the mitigating circumstances under Arts. 89 and 116, second paragraph, of the Penal Code (relating, respectively, to partial mental defect and so-called anomalous concurrence in the crime) can be "extended [...] to the present case," in light of the "subjective nature of generic mitigating circumstances."

In this regard, it would be necessary to recognize the possibility of valuing subsequent events to the crime, which are nonetheless inherent to the author's person and indicative of a lower dangerousness.

For the referring body, it would certainly be contrary to the constitutional principles of proportionality and equality to impose on two subjects – both repeated recidivists and authors of an identical act of extortionate kidnapping – "the same, maximum sanction," if for only one of them the prerequisites for applying generic mitigating circumstances also occurred (for example, for "exemplary procedural conduct, full post-offense cooperation, demonstration of sincere remorse, etc.").

9.– Ultimately, for the Court of Assizes of Rome, the contested provision, by prohibiting the judge from deeming generic mitigating circumstances prevalent over the held repeated recidivism, results, in relation to the crime under Art. 630 of the Penal Code, primarily in a violation of Art. 27, third paragraph, of the Constitution, as it hinders the rehabilitative purpose of the penalty. This is because the possibility of imposing a sentence that is susceptible to modulation with reference to different facts, reflects the concrete disvalue of the committed crime, and is proportional to the subjective dangerousness of the offender, is denied, "especially where connected crimes are ascertained which determine the sanction increase referred to in Art. 81, para. 4 of the Penal Code." In this way, the convicted person would be led to "mature a deep aversion and emotional contempt for everything perceived as retributive and undeserved," leading to "a refusal of a penalty deemed excessive and profoundly unjust."

It is also not "sustainable" that the assessment of the social dangerousness of the agent, "of which recidivism is certainly an expression," can have "an exclusive and absorbing relevance, nullifying the specific weight of different elements, such as to be comparatively prevalent over the objective fact." The principles of the necessary proportionality of the penalty to the harmfulness of the act and of the indispensable individualization of the sanctioning treatment, safeguarded by the remaining constitutional parameters invoked in the reasoning of the order (Arts. 3, first paragraph, 25, second paragraph, and 27, first paragraph, Const.), would otherwise be infringed.

10.– None of the parties appeared in the proceedings, nor did the President of the Council of Ministers intervene.


Considered in Law

1.– The Court of Assizes of Rome, First Section, raises questions of constitutional legitimacy concerning Article 69, fourth paragraph, of the Penal Code, in reference to Articles 3, first paragraph, 25, second paragraph, and 27, first and third paragraphs, of the Constitution, in the part where, with reference to the crime under Article 630 of the Penal Code, it prohibits the prevalence of generic mitigating circumstances over repeated recidivism.

2.– The referring judge is called upon to decide on the accusations brought against two subjects, accused of having committed – in concert with each other and with a third party (tried separately), as well as in the execution of a single criminal plan – the crimes of kidnapping for the purpose of extortion, aggravated personal injury, aggravated robbery, and undue use of payment instruments other than cash.

In a context characterized by the consumption of "cocaine-crack" by all protagonists of the event, the victim, after having agreed to and then consumed a paid sexual act with one of the accused, allegedly suffered, among other things, kidnapping for the purpose of extortion: the victim, deprived of personal liberty by being tied to a chair and blindfolded, was indeed demanded, as the price for her release, the payment of EUR 1,500, plus further amounts, EUR 100 to purchase more narcotic substance and EUR 250 as reimbursement for the loss of "further clients." The kidnapping allegedly lasted for almost two continuous days, during which the victim was repeatedly struck with slaps, kicks, and punches (also using a wet towel and a rolling pin), suffering bruising and fractures. This continued until her release by law enforcement officers, whom the victim herself managed to alert, with the help of neighbors, taking advantage of the temporary absence of the accused, who in the meantime had stolen from her, with further violence and threats, her mobile phone and a "postepay" payment card, which was used to unduly withdraw further sums of money.

For all the aforementioned crimes, "specific and repeated recidivism" was charged to one of the accused.

3.– The questions pass the preliminary admissibility review, which must be carried out even in the absence of objections raised by other parties, who neither appeared nor intervened in the proceedings.

3.1.– Firstly, the attribution of the charged facts to the purview of extortionate kidnapping punished by Art. 630, first paragraph, of the Penal Code, is deemed supportable.

The referring body has scrupulously fulfilled the duty, recently emphasized by this Court, "to assess with particular attention whether the ascertained facts are actually subsumable under Art. 630 of the Penal Code" (Judgment No. 113 of 2025).

To this end, and with the support of relevant case law from the Court of Cassation, the referring judge assigned decisive importance to: (a) the "non-irrelevant time, equal to two full days," of the limitation of the victim's personal liberty, left predominantly tied to a chair, in a locked apartment; (b) the threats and violence perpetrated, during the entire period indicated, by the three accused (as well as by other persons, remaining unknown, specially called upon) and materialized in slaps, kicks, and punches, and blows inflicted with a wet towel and a rolling pin, leading to bruising and fractures; (c) the instrumentality of the threats and violence – carried out "in a violent, harsh, mocking, and sarcastic manner" – in relation to the progressively increasing demands for money, as the price for release, violently demanded "even from the defenseless mother of the victim."

This reasoning amply passes the review of non-implausibility.

3.2.– The reasoning regarding the existence of the prerequisites for applying aggravated specific and repeated recidivism pursuant to Art. 99, second and fourth paragraphs, of the Penal Code, to one of the accused, is also adequate according to the latter criterion.

The referring judge is, first of all, aware of the discretionary nature of the application of this aggravating circumstance, as reaffirmed by the constant constitutional case law (most recently, Judgment No. 230 of 2022), according to which it "is justified only if the new crime, committed by a person already convicted of previous non-negligent crimes, is expressive in concrete terms of both greater criminal dangerousness and a higher degree of culpability, linked to the greater reprehensibility of the decision to violate criminal law despite the individual admonition stemming from previous convictions" (Judgment No. 74 of 2025).

Precisely in light of these indications, the referring body enumerates the multiple convictions (all final, and some very recent) already held by the accused and issued for crimes similar (robbery and injury, theft and receiving stolen goods) to those currently being prosecuted in the main proceedings.

It therefore deems that these prior convictions – which delineate "the picture of a criminal career spanning over a decade characterized by serious crimes against persons and property" – are "symptomatic of a growing social dangerousness, not contained even by the personal precautionary measures ordered in the meantime and, subsequently, by the repeated periods of detention: an undeniable symptom of greater culpability and propensity to crime."

The conduct forming the basis of the prior convictions is deemed connected to that charged in the present proceedings and demonstrates "the incidence of the latest relapse into crime in marking the further increase in the propensity to crime" of the accused, who was, moreover, already declared a repeated recidivist in as many as three sentences that became final before the commission of the facts currently under consideration, and under which periods of detention have already been served.

Finally, in line with the same constitutional case law (most recently, Judgment No. 141 of 2023), the Court of Assizes of Rome adds, quite plausibly, that the recidivism cannot be excluded, "not because the conditions for its application are lacking, but rather due to the disproportionate impact that the sanctioning treatment would derive from it." As this Court has already stated, this would be "an exercise of the judge's discretion for purposes other than those inherent in the institute" (Judgment No. 120 of 2023).

3.3.– Still within the framework of non-implausibility, the reasoning supporting the recognizability of the generic mitigating circumstances under Art. 62-bis of the Penal Code to the accused, moreover "requested by the Public Prosecutor and the Defense Counsel," is also adequately reasoned.

The referring body considers the following aspects relevant for this purpose: (a) the concrete living conditions of the accused, "a drug-dependent subject in economic difficulty, who has undertaken a gender transition process, including pharmacological, organic, and physiological treatments, in order to achieve alignment between physical identity and psychic identity"; (b) the general context of the event, characterized by the "degeneration of a reciprocal relationship that escalated with violent modalities"; (c) the correct and loyal procedural conduct "adopted throughout the entire hearing, which he chose to attend, offering his useful contribution to the reconstruction of the facts."

It is true that Art. 62-bis, second paragraph, of the Penal Code, in cases of repeated recidivism involving the commission of a crime that, like extortionate kidnapping, is listed in Art. 407, paragraph 2, letter a), of the Code of Criminal Procedure and is punishable by a minimum imprisonment term of five years, still prevents taking into account, for the application of generic mitigating circumstances, "the criteria referred to in Article 133, first paragraph, number 3), and second paragraph" of the Penal Code and, therefore, as far as we are concerned here, the "living conditions of the offender, family and social," which the referring judge expressly took into consideration.

However, the focus in the referring judge's reasoning is on the cooperation loyally provided by the accused throughout the entire proceedings, through the contribution offered to the reconstruction of the facts.

This is a subjective aspect that can be usefully valued after this Court, with Judgment No. 183 of 2011, declared the constitutional illegitimacy of Art. 62-bis, second paragraph, of the Penal Code, precisely in the part where it establishes that, for the purpose of applying generic mitigating circumstances, the "conduct of the offender subsequent to the crime" (from the second part of Art. 133, second paragraph, number 3, of the Penal Code) cannot be taken into account.

The judgment of non-implausibility of the reasoning is, moreover, supported by the case law of the Court of Cassation itself, according to which "even a single element pertaining to the personality of the guilty party [...] may prove sufficient for this purpose" (among the most recent, Court of Cassation, First Penal Section, judgment of May 30–July 9, 2024, no. 27115) and, among the positive elements assessable for the recognition of generic mitigating circumstances, "correct procedural conduct" is certainly included (Court of Cassation, Fifth Penal Section, judgment of May 14–September 2, 2009, no. 33690; in the same sense, Court of Cassation, Third Penal Section, judgment of July 21–September 4, 2020, no. 25044, which refers to the "cooperative attitude adopted by the accused").

3.4.– Finally, regarding the implications for the assessments to be made not only on relevance but also on the merits of the questions raised, it is important to specify, always preliminarily, that the referring body offers adequate arguments supporting the non-existence of the prerequisites for recognizing other mitigating circumstances for the accused which have already been removed by this Court – with Judgments No. 141 of 2023 and No. 143 of 2021 (the latter precisely in relation to extortionate kidnapping) – from the prohibition of prevalence in the balancing judgment with the aggravating circumstance of repeated recidivism.

3.4.1.– Firstly, the referring judge focuses on the mitigating circumstance integrated by the fact of having "in crimes against property, or those that otherwise affect property, caused the victim of the crime pecuniary damage of special slightness," pursuant to Art. 62, number 4), of the Penal Code.

The referring body recalls the prevailing trend, concerning robbery, in the case law of the Court of Cassation, according to which the said mitigating circumstance can only be recognized if the assessment of special slightness concerns both the prejudice caused to the person and that caused to property (Court of Cassation, United Penal Sections, judgment of June 27–November 15, 2024, no. 42124).

Considering these principles to be extensible also to kidnapping for the purpose of extortion, given the analogous multi-offending nature of the crime (confirmed, among many others, by Court of Cassation, Fifth Penal Section, judgment of March 9–May 24, 2021, no. 20610), the Court of Assizes of Rome, once again not implausibly, concludes that "[t]he serious physical injuries reported by the victim following the act, which healed in about thirty days, are sufficient in themselves to exclude an assessment of special slightness of the overall damage suffered, even independent of the pecuniary aspect."

3.4.2.– On another front, the referring body also excludes the possibility of recognizing the mitigating circumstance of the slightness of the act, which this Court introduced, with Judgment No. 68 of 2012, precisely for kidnapping for the purpose of extortion.

Citing recent case law of the Court of Cassation, according to which the mitigating circumstance in question postulates an assessment of the act as a whole (Court of Cassation, Second Penal Section, judgment of January 26–March 7, 2024, no. 9820), the referring judge excludes that, in the concrete case submitted to its examination, the act can be classified as of slightness (due to the duration of the kidnapping "equal to 48 hours," the amount of the price for release, demanded "also involving the elderly parent," and the modalities of execution, characterized by "serious physical injuries inflicted by the three accomplices and by unknown persons specially called upon," which necessitated "a four-day hospitalization").

This is reasoning that describes conduct certainly not comparable – due to its undisputed greater seriousness – to that which, on a recent occasion, this Court considered comparable in seriousness to that characterizing the facts in the proceedings that led to Judgment No. 68 of 2012 (Judgment No. 113 of 2025).

4.– Before moving to the merits, it is useful to provide a summary reconstruction of the now substantial constitutional case law that has addressed issues analogous to those subject to this review.

5.– As recently recalled, "[i]t is a long-standing statement in the case law of this Court that the balancing judgment between heterogeneous circumstances allows the judge to evaluate the act in its full scope, either by eliminating all circumstances from the sanctioning effects (equivalence), or by considering only those that aggravate the *quantitas delicti*, or only those that diminish it (Judgment No. 38 of 1985; most recently, Judgment No. 56 of 2025)" (Judgment No. 117 of 2025).

Article 69, fourth paragraph, of the Penal Code, as amended by Art. 3 of Law no. 251 of December 5, 2005 (Amendments to the Penal Code and Law no. 354 of July 26, 1975, regarding generic mitigating circumstances, recidivism, the comparison judgment of crime circumstances for recidivists, usury, and prescription), by providing for the prohibition of the prevalence of mitigating circumstances over repeated recidivism under Art. 99, fourth paragraph, of the Penal Code, introduces a derogation from the ordinary regime of the balancing judgment between circumstances.

This Court has affirmed the "legitimacy, in general, of differentiated treatment for the recidivist, i.e., for 'a subject who intentionally re-offends despite having undergone a trial and a conviction for an intentional crime, demonstrating the inadequacy, as a deterrent, of direct and concrete experience with the criminal sanctioning system'" (Judgment No. 249 of 2010) (Judgment No. 205 of 2017, which in turn cites Judgments No. 106 and No. 105 of 2014, and No. 251 of 2012).

However, the exercise of legislative discretion cannot go so far as to determine "an alteration of the constitutionally imposed balances on the structure of criminal responsibility" (again, most recently, Judgment No. 117 of 2025).

When this has occurred, this Court has intervened to declare the constitutional illegitimacy of the mechanism introduced by the contested provision, noting the violation of the same parameters invoked today, variously combined, in relation to mitigating circumstances attributable essentially to three *rationes*: circumstances expressive of a lesser disvalue of the act from the point of view of its harmful dimension (Judgments No. 117 of 2025, No. 188, No. 141 and No. 94 of 2023, No. 143 of 2021, No. 205 of 2017, No. 106 and No. 105 of 2014, No. 251 of 2012), circumstances expressive of a lower degree of subjective reprehensibility (Judgments No. 55 of 2021 and No. 73 of 2020) and circumstances relating to the offender's post-offense collaboration (Judgments No. 56 of 2025, No. 201 of 2023 and No. 74 of 2016).

5.1.– The analysis of the arguments, from time to time put forward in the reasoning of the aforementioned judgments, allows for the reconstruction of the contours of a process of both settlement and development of constitutional case law.

In its initial rulings, this Court assessed the constitutional validity of the prohibition of prevalence under examination with respect to special-effect mitigating circumstances, as such expressive of a legislative evaluation in terms of lesser disvalue of the act from the viewpoint of harmfulness, resulting in a penalty reduction exceeding one-third (Art. 63, third paragraph, last period, of the Penal Code).

On those occasions (Judgments No. 205 of 2017, No. 74 of 2016, No. 106 and No. 105 of 2014, No. 251 of 2012), primary emphasis was given to the particular breadth of the divergence between the base penalty provided for the un-circumstanced crime and that resulting from the application of the mitigating circumstance considered case by case, and it was affirmed – starting from the "landmark" ruling (Judgment No. 251 of 2012) – that the provision again challenged here required disregarding the reduced harmfulness of the act, directing the identification of the concrete penalty towards "an abnormal emphasis on the subjective components attributable to repeated recidivism, to the detriment of the objective components of the crime," fundamentally infringing the principles of proportionality and the finality of the penalty towards the rehabilitation of the convicted person (Arts. 3 and 27, third paragraph, Const.).

Subsequently confronted with analogous questions, still concerning mitigating circumstances linked to the reduced harmful dimension of the act, but this time of common effect, this Court integrated its reflection on the subject.

On the one hand, it certainly did not abandon the criterion of excessive divergence between the base penalty and the penalty provided for the crime with circumstances, as the most frequently involved crimes are characterized by a particularly severe statutory range in the minimum, resulting in a significant reduction in the quantum of the sanctioning response even in the case of a reduction "not exceeding one-third" (as stated in Art. 65, first paragraph, number 3, of the Penal Code).

On the other hand, it began to attribute growing relevance to the particular breadth of the definition of the un-circumstanced crime, as such capable of encompassing markedly different conduct, and which, for this reason, needs to be adequately differentiated in the determination of the sanctioning treatment.

In this perspective, for example, Judgment No. 143 of 2021 declared the constitutional illegitimacy of Art. 69, fourth paragraph, of the Penal Code, in the part where it provided for the prohibition of the prevalence of the mitigating circumstance of slightness of the act, introduced by Judgment No. 68 of 2012 in relation to the crime of kidnapping for the purpose of extortion, over the aggravating circumstance of repeated recidivism under Art. 99, fourth paragraph, of the Penal Code, noting a violation of Art. 3, first paragraph, of the Constitution, also under the profile of the principle of equality.

More or less contemporaneously, a line of reasoning centered on arguments complementary to those privileged until then began to emerge.

With Judgments No. 73 of 2020 and No. 55 of 2021, in fact, this Court neutralized the prohibition of prevalence with respect to mitigating circumstances, still of common effect, but pertaining to the person of the offender and, therefore, expressive not so much, on the objective level, of lesser harmfulness of the act regarding the interests protected by the criminal norm, as much as of the reduced subjective reprehensibility of the author.

The core of the reasoning in those instances is found in the statement contained in Judgment No. 73 of 2020, according to which the principle of proportionality of the penalty derivable from Arts. 3 and 27, third paragraph, Const. generally requires "that a lower penalty correspond to a lower degree of subjective reprehensibility than that which would be applicable with equal objective disvalue of the act, 'so as to ensure also that the penalty appears a response – as well as not disproportionate – as 'individualized' as possible, and therefore calibrated on the situation of the individual convicted person, in implementation of the constitutional mandate of 'personality' of criminal responsibility under Art. 27, first paragraph, Const. (Judgment No. 222 of 2018)'" (Judgment No. 73 of 2020).

The valuation of the principle of individualization of the penalty subsequently found fertile ground also on the occasion of the review solicited from this Court regarding the prohibition of prevalence established by the provision challenged today with respect to common-effect mitigating circumstances, not specifically expressive of a lower degree of subjective reprehensibility, but again primarily implying the evaluation of the objective dimension of the offense to the protected legal interest.

Thus, with reference to the mitigating circumstance of slightness of the act, introduced by Judgment No. 86 of 2024 in relation to the crime of robbery, Judgment No. 117 of 2025 affirmed that, given an abstract definition "characterized by intrinsic variability in the concrete manifestation of the constituent elements, the impossibility for the judge to deem the mitigating circumstance prevalent also contradicts the principle of individualization of the penalty (Art. 27, first paragraph, Const.), which requires taking into account the actual extent and specific needs of individual cases." A principle which, together with the rehabilitative purpose of the penalty, "must guide both the choices of the legislator in identifying the sanctioning treatment, and the decisions of the judges who determine the penalty to be imposed in concrete terms" (thus, again, Judgment No. 117 of 2025).

This approach, moreover, had already been foreshadowed by Judgment No. 141 of 2023, with which – as recalled previously (at point 3.4.) – the prohibition of prevalence of the mitigating circumstance, also relating to the lesser harmful dimension of the act and of common effect, of damage of special slightness provided for by Art. 62, number 4), of the Penal Code, applicable to crimes against property or which otherwise affect property, was declared constitutionally illegitimate: on that occasion, in fact, this Court, following the path already left by Judgment No. 94 of 2023 through the reconstruction of all its precedents and related *rationes decidendi*, outlined "common principles," attributable "to the need to maintain a convenient balance between the gravity (objective and subjective) of the individual criminal act and the severity of the sanctioning response."

Ultimately, it is a matter of recognizing the crucial role of the balancing judgment between circumstances, which Judgment No. 38 of 1985 had already identified in the "global judgment both on the criminal act and on the personality of its author," that is, on "the entire subjective and objective history of the offense." To this end, the judge must be placed in a position to assign the correct weight to each element of the concrete case, without being forced to necessarily underestimate elements deemed relevant.

6.– Having stated this, the present questions call into question the sanctioning treatment provided for extortionate kidnapping, which, as recalled above, this Court has already addressed several times, even when dealing with the issue of derogations from the ordinary regime of balancing between heterogeneous circumstances.

Judgment No. 143 of 2021, in particular, reconstructed the historical evolution of the sanctioning response to the crime under Art. 630 of the Penal Code, originally punishable with imprisonment from eight to fifteen years, as well as the fine penalty.

The alarming increase in criminal episodes recorded in the seventies and eighties of the last century, committed "by dangerous criminal organizations, often with brutal execution modalities" and characterized "as a rule by the risk of loss of life for the kidnapped person," led to a continuous raising of statutory penalties, with legislation having "the typical features of 'emergency' legislation."

Today, the first paragraph of Art. 630 of the Penal Code provides for imprisonment from twenty-five to thirty years, so that the minimum penalty is "even higher – and not slightly so – than that provided for intentional homicide (punishable, in the minimum, with twenty-one years of imprisonment: Art. 575 of the Penal Code)," while, in the maximum, the penalty has been set "at the extreme limit" allowed for custodial sentences (Art. 78 of the Penal Code), well beyond the time limit that Art. 23, first paragraph, of the Penal Code generally sets at twenty-four years for the latter.

In this context, the oft-cited Judgment No. 68 of 2012 – by introducing the mitigating circumstance of slightness of the act, along the lines of that provided for in Art. 311 of the Penal Code, also for the crime in question – has already intervened to mitigate the rigidity of the described sanctioning response, defined in that ruling as "exceptionally harsh." In this way, it has been possible from that time to exclude that such a punitive reaction is triggered in the face of "episodes markedly dissimilar, in criminological terms and in terms of disvalue, from those targeted by the emergency legislation," such as in the case of conduct that, although falling within the legal model, does not endanger the life of the kidnapped person and is not part of a criminal association context.

The latter ruling, however, also clarified that the mitigating circumstance of slightness of the act, of common and non-specific effect, allows the penalty to be mitigated "in relation only to the objective aspects of the act (characteristics of the criminal action, extent of the damage or danger)."

7.– The latter aspect is perceived clearly by the present referring body.

In relation to extortionate kidnapping, in fact, the Court of Assizes of Rome, in demanding the faculty to fully carry out the balancing judgment for generic mitigating circumstances, recognizes the need that these as well, once removed from the prohibition of prevalence over repeated recidivism, can fulfill the same mitigating function of an extremely severe punitive reaction, "but for different reasons" from those merely objective that characterize the slightness of the act.

8.– The assumption of the referring body is expressly based on the constitutional case law illustrated above (at point 5.1.) and recalls the function that, therein, has already been recognized for generic mitigating circumstances.

This Court has, in fact, clarified that such circumstances "are essential tools available to the judge" (Judgment No. 197 of 2023) and perform the " 'natural' function [...] of adjusting the measure of the penalty to the existence of special objective or subjective indicators of a lesser disvalue of the concrete act under the judge's examination compared to the ordinary severity of the acts attributable to the base crime definition" (Judgment No. 63 of 2022, cited by the subsequent Judgment No. 120 of 2023). In particular, they allow not so much for the granting of general indulgence, but for giving relevance, within a precise reasoning dedicated to the quantification of the sanction, "to specific and precise characteristics of the individual criminal act or its author [...] that characterize the act with a lesser disvalue, compared to what conformity of the conduct to the abstract definition of the crime suggests at first glance" (Judgment No. 46 of 2024).

These are characteristics "not typifiable *ex ante* by the legislator due to their extreme variety, and different from those that already constitute 'named' hypotheses of penalty reduction" (Judgment No. 197 of 2023). The latter ruling, as far as is relevant here, linking back to Judgment No. 183 of 2011, clarified that Art. 62-bis of the Penal Code also allows the judge to value "circumstances subsequent to the crime, or in any case pertaining to the author's person, which indicate a lower dangerousness thereof, or which in any case make it less deserving and in need of penalty," as often happens precisely in the presence of full procedural cooperation, where the judge considers it – as occurred in this case – an index of a positive ongoing evolution of the accused's personality.

9.– By applying the principles illustrated above, the questions raised by the present referring body are founded.

10.– Consistent with the calculations made by the referring judge, there is undoubtedly a wide gap between the base penalty provided for the un-circumstanced crime (equal, in the minimum, to twenty-five years of imprisonment) and that resulting from the application of generic mitigating circumstances (sixteen years and eight months of imprisonment). And this already due to the particular severity of the starting statutory range and, therefore, regardless of the further effect arising from the need to apply the penalty increase in the high measure provided for by Art. 81, fourth paragraph, of the Penal Code, if, as in this case, extortionate kidnapping is committed by a repeated recidivist in continuation with other crimes.

It has already been clarified, in fact, that "the concrete extent of the penalty reduction obviously depends on the extent of the base penalty [...] this reduction well being capable of resulting, with respect to the most serious crimes, in several years less of imprisonment" (Judgment No. 73 of 2020, cited by Judgment No. 197 of 2023).

The referring body is well aware that, so far, the case law of the Court of Cassation has often considered manifestly unfounded analogous questions of constitutional legitimacy raised with reference to the prohibition of prevalence of generic mitigating circumstances over repeated recidivism, although, to its knowledge, in relation to crimes other than the one under examination (among many, it is sufficient to cite the most recent rulings of the Court of Cassation, Fifth Penal Section, judgment of January 9–April 24, 2025, no. 15889; Fourth Penal Section, judgment of June 21–October 10, 2024, no. 37215; no. 29723 of 2024).

However, in the context of the overall event submitted to its review, it deems it necessary that it be restored, in the balancing judgment with repeated recidivism, the possibility of applying, in its maximum extent, a further mitigating circumstance which, like that under Art. 62-bis of the Penal Code, allows for the valuation of aspects also different from those that can found the recognition of the slightness of the act, already exempted from the scope of operation of the contested provision in relation to extortionate kidnapping.

The constitutional principles invoked require that this need be satisfied.

This Court, in fact, has affirmed that the exceptional rigor of the base penalty for extortionate kidnapping "is only partially mitigated by the possibility of applying [...] the mitigating circumstance of slightness of the act" (Judgment No. 113 of 2025) and that the latter "does not 'absorb,' in principle, common mitigating circumstances [...] which have their own distinct prerequisites for application. Considerations, these, extensible, *mutatis mutandis*, also [...] to generic mitigating circumstances (Art. 62-bis of the Penal Code)" (Judgment No. 68 of 2012).

It is precisely generic mitigating circumstances that can play an essential role with respect to conduct abstractly falling within the broad legal model of Art. 630 of the Penal Code, but characterized by a lesser "need for penalty" due to aspects other than the objective ones of the act and pertaining, rather, to subjective aspects of the author of the crime or to "atypical" characteristics thereof. This is a function that can unfold in relation to aspects not only preceding or concurrent with the commission of the crime, but also subsequent ones (such as procedural cooperation, not constituting the specific mitigating circumstances typified by the legislator in the fourth and fifth paragraphs of Art. 630 of the Penal Code).

The constitutional case law that has scrutinized the contested provision has traditionally intended to prevent – since Judgment No. 251 of 2012 – an "abnormal emphasis on the subjective components attributable to recidivism" from "detrimentally affecting the objective components of the crime."

Well, especially in the face of a sanctioning response of "exceptional harshness" (Judgment No. 68 of 2012), the same necessity arises also with respect to peculiar characteristics pertaining to the individual act or its author and, therefore, to the criminal event understood in its globality, which only generic mitigating circumstances are able to intercept.

Moreover, this Court has already clarified that the principle of proportionality "generally requires that the penalty be adequately calibrated not only to the concrete content of the harmfulness of the criminal act for the protected interests, but also to the subjective disvalue expressed by the act itself (Judgment No. 222 of 2018)" (Judgment No. 73 of 2020; in the same sense, Judgments No. 197 and No. 94 of 2023 and No. 55 of 2021).

And precisely with regard to the crime under consideration, it has been specified that the same principle "aims to ensure that the sanctioning response to a criminal act, although harmful to the legal interest and culpably committed, does not result in being excessive with respect to the concrete objective and subjective gravity of the act" (Judgment No. 113 of 2025).

The ascertained existence of the prerequisites for the application of generic mitigating circumstances – even within the narrow limits still imposed today by the second paragraph of Art. 62-bis of the Penal Code – can indeed constitute an expression of reduced gravity of the crime, on the objective or subjective side.

Consequently, in the concrete quantification of the sanctioning treatment established in abstract terms in an extremely severe measure, the judge must be able to take this aspect into account "without being bound to ignore it solely because of the repeated recidivism of the accused. A circumstance, the latter, which has nothing to do with the objective and subjective gravity of the individual criminal act, to which the penalty – in a system oriented towards 'culpability for the act,' and not towards 'author's fault,' or mere neutralization of individual dangerousness – is called to respond" (Judgment No. 141 of 2023).

The contested statutory prohibition, applied to the crime under Art. 630 of the Penal Code, results first and foremost in a violation of the canon of penalty proportionality safeguarded by Arts. 3 and 27, third paragraph, of the Constitution. This principle "opposes the imposition by the legislator – and consequent application by the judge – of manifestly disproportionate penalties with respect to the objective and subjective disvalue of the crime" (Judgment No. 188 of 2023, citing Judgment No. 141 of 2023), and instead requires avoiding a punitive response that would inevitably be perceived as unjust by the convicted person, contrary to the rehabilitative purpose of the penalty itself" (Judgment No. 56 of 2025).

The principle of individualization of the penalty is also infringed, which exclusively admits a sanctioning response "as 'individualized' as possible, and therefore calibrated on the situation of the single convicted person, in implementation of the constitutional mandate of 'personality' of criminal responsibility under Art. 27, first paragraph, Const." (Judgment No. 222 of 2018, cited by Judgment No. 73 of 2020).

The principle of equality (Art. 3, first paragraph, Const.) is also violated, because it would be unreasonable to apply the same severe sanctioning treatment to two subjects, both repeated recidivists and authors of an identical act of extortionate kidnapping, if for only one of them the prerequisites for a judgment of prevalence of generic mitigating circumstances over the aggravating circumstance under Art. 99, fourth paragraph, of the Penal Code also occurred.

Finally, the prohibition of prevalence of generic mitigating circumstances over repeated recidivism also conflicts with the principle of harmfulness safeguarded by Art. 25, second paragraph, Const., which "requires that the penalty be always essentially conceived as a response to a single 'act' of crime, and not instead used as a measure primarily aimed at controlling the social dangerousness of its author, revealed by his personal qualities" (Judgment No. 188 of 2023, citing, on this point, Judgments No. 205 of 2017, No. 105 of 2014 and No. 251 of 2012).

for these reasons

THE CONSTITUTIONAL COURT

declares the constitutional illegitimacy of Article 69, fourth paragraph, of the Penal Code, in the part where it provides, concerning the crime of kidnapping for the purpose of extortion, under Article 630 of the Penal Code, for the prohibition of the prevalence of generic mitigating circumstances, under Article 62-bis of the Penal Code, over the aggravating circumstance of repeated recidivism under Article 99, fourth paragraph, of the Penal Code.

Decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on September 22, 2025.

Signed:

Giovanni AMOROSO, President

Antonella SCIARRONE ALIBRANDI, Rapporteur

Roberto MILANA, Director of the Registry

Filed in the Registry on October 16, 2025