JUDGMENT NO. 154

YEAR 2025

ITALIAN REPUBLIC

IN THE NAME OF THE ITALIAN PEOPLE

THE CONSTITUTIONAL COURT

composed of:

President: Giovanni AMOROSO;

Judges: Francesco VIGANÒ, 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 judgment concerning the constitutional legitimacy of articles 1, paragraph 2, and 5 of Legislative Decree No. 8 of 15 January 2016 (Provisions concerning decriminalization, pursuant to article 2, paragraph 2, of Law No. 67 of 28 April 2014) and of art. 116, paragraph 15, of Legislative Decree No. 285 of 30 April 1992 (New Road Code), initiated by the Ordinary Court of Florence, first criminal section, in single-judge composition, in the criminal proceedings against F. C., with an order dated 3 June 2024, registered under no. 147 of the ordinary rulings register of 2024 and published in the Official Gazette of the Republic No. 34, special first series, of 2024.

Having seen the intervention of the President of the Council of Ministers;

having heard, in the council chamber on 23 June 2025, the Reporting Judge Maria Rosaria San Giorgio;

deliberated in the council chamber on 23 June 2025.

Facts Considered

1.– With an order dated 3 June 2024, registered under no. 147 of the ordinary rulings register of 2024, the Ordinary Court of Florence, first criminal section, in single-judge composition, raised questions of constitutional legitimacy:

a) concerning art. 1, paragraph 2, of Legislative Decree No. 8 of 15 January 2016 (Provisions concerning decriminalization, pursuant to article 2, paragraph 2, of Law No. 67 of 28 April 2014), "limited to the words 'In such cases, the aggravated hypotheses are to be considered autonomous criminal offenses' (in general or, subsidiarily, with regard to the sole offense under art. 116 co. 15 of Legislative Decree 285/1992)", and, consequently, of art. 5 of the same Legislative Decree No. 8 of 2016, in reference to art. 76 of the Constitution;

b) subsidiarily, concerning art. 116, paragraph 15, of Legislative Decree No. 285 of 30 April 1992 (New Road Code), in the part where it provides for the criminal relevance of driving without a license in cases of recidivism within two years, in reference to articles 3, 25, second paragraph, and 27, third paragraph, of the Constitution;

c) further subsidiarily, concerning art. 1, paragraph 2, of Legislative Decree No. 8 of 2016, "in the part where it did not provide (in general or, subsidiarily, with regard to the sole offense under art. 116 co. 15 of Legislative Decree 285/1992) that, with regard to the aggravated hypotheses now to be considered autonomous criminal offenses, the judge for the calculation of the penalty should continue to apply the sanctioning rules provided before the enactment of Legislative Decree 8/2016", in reference to art. 76 of the Constitution;

d) in the further and ultimate subsidiary case, concerning art. 116, paragraph 15, of the Road Code, in the part where – in the case of driving without a license with recidivism within two years – it provides for the penalty of arrest for up to one year and a fine from 2,257 to 9,032 euros, instead of the penalty of a fine from 5,000 to 30,000 euros, in reference to articles 3, 25, second paragraph, and 27, third paragraph, of the Constitution.

1.1.– The referring judge premises that he is called to judge, under the simplified proceedings following a summary trial and upon consolidation of proceedings, a person charged with the crimes of resisting a public official and aggravated personal injury, as well as the contravention of driving without a license by a person subject to a definitive personal preventive measure, pursuant to art. 73 of Legislative Decree No. 159 of 6 September 2011 (Code of Anti-Mafia Laws and Preventive Measures, as well as new provisions on anti-mafia documentation, pursuant to articles 1 and 2 of Law No. 136 of 13 August 2000).

According to the accusation, the accused – who was driving a motor vehicle without a license, as he had never obtained one, after having been sanctioned in the preceding two years for the same reason and being subject to the preventive measure of a police warning – had not complied with the order to stop given by two State Police officers and had violently resisted them, fleeing and making reckless maneuvers with his vehicle capable of deliberately endangering the safety of the pursuing officers and other road users, to the point of ramming the judicial police vehicle that was pursuing him, causing personal injuries to the occupants.

Deeming the accused responsible for the crimes of resisting a public official and personal injury to be established in light of the evidentiary findings, the referring judge observes, as regards the charge of driving without a license, that two different crimes are in fact contested: on the one hand, the contravention under art. 73 of the Anti-Mafia Code, for having driven a motor vehicle without a license while subject to the preventive measure of a police warning, issued by the Police Commissioner of Naples, with a definitive measure; on the other hand, the contravention under art. 116, paragraph 15, of the Road Code, for driving a motor vehicle without a license with recidivism within two years.

In the opinion of the referring judge, the accused should be acquitted of the first of the two crimes because the act does not constitute a crime, as the police warning he was subject to was issued without the prescription of the prohibitions under art. 3, paragraph 4, of the Anti-Mafia Code: in the absence of which, according to the majority view of the Supreme Court, the crime in question is not constituted.

The contravention under art. 116, paragraph 15, of the Road Code would, however, subsist. With regard, in particular, to recidivism within two years, the accused had indeed been convicted twice for driving without a license with recidivism within two years, and the new offense was committed on 5 January 2020, thus within two years of the last preceding incident, whether considering the date of finality of the criminal decree of conviction (12 January 2019) or the date of the act judged by it (23 October 2018).

1.2.– The Florence Court deems, however, that for a correct decision regarding the liability of the accused for the latter crime, and potentially for the related sanctioning treatment, it is necessary to raise, sequentially, four sets of questions of constitutional legitimacy.

The referring judge starts from the observation that, before the reform introduced by Legislative Decree No. 8 of 2016, the crime of driving without a license under art. 116, paragraph 15, of the Road Code was punished, for the basic offense, only by a fine ranging from 2,257 to 9,032 euros; in cases of recidivism within two years, the penalty of arrest for up to one year was also provided. Furthermore, it was settled in jurisprudence that the latter provision constituted an aggravating circumstance, and not an autonomous criminal offense.

The crime in question would therefore fully fall within the scope of application of art. 1 of Legislative Decree No. 8 of 2016, which – after providing, in paragraph 1, that "[n]o acts constitute a crime and are subject to the administrative sanction of payment of a sum of money for all violations for which only the penalty of a fine or penalty of a fine is provided" – adds, in paragraph 2, that this provision "also applies to the crimes provided for therein which, in aggravated hypotheses, are punished with the penalty of detention, alone, alternative or concurrent with the pecuniary penalty. In such cases, the aggravated hypotheses are to be considered autonomous criminal offenses."

As repeatedly stated by the Supreme Court, as a result of the aforementioned provisions, the crime of driving without a license is therefore decriminalized regarding the old basic offense, while the old aggravated hypothesis due to recidivism within two years retains criminal relevance as an autonomous criminal offense.

1.3.– This being established, the referring judge primarily doubts the constitutional legitimacy of art. 1, paragraph 2, of Legislative Decree No. 8 of 2016, in the part where, in the second period, it contains the provision: "[i]n such cases, the aggravated hypotheses are to be considered autonomous criminal offenses."

1.3.1.– In the opinion of the referring judge, the challenged norm violates art. 76 of the Constitution, as it is contrary to the principles and guiding criteria set out in Law No. 67 of 28 April 2014 (Delegations to the Government concerning non-custodial sentences and reform of the sanctioning system. Provisions on the suspension of proceedings with probation and against the unfindable): a law aimed at achieving – as far as the legislative delegations conferred by it are concerned – a reduction of the criminal system consistent with the principle of *extrema ratio* in the recourse to punishment.

Art. 1 of Legislative Decree No. 8 of 2016 implemented, in particular, the so-called "blind" decriminalization prefigured by art. 2, paragraph 2, letter a), of Law No. 67 of 2014, which merely provided for the transformation into administrative offenses of all crimes punishable only by a fine or penalty of a fine (with the exception of those related to the subsequently listed subject matters), without authorizing the delegated legislator to maintain the criminal relevance, as autonomous offenses, of any aggravated hypotheses punishable by a custodial sentence.

The fact that, on the occasion of the previous "blind" decriminalization of crimes punishable only by a pecuniary penalty, enacted by art. 32 of Law No. 689 of 24 November 1981 (Amendments to the Criminal System), the second paragraph of that article had expressly excluded from its scope of application the criminal offenses which, in aggravated hypotheses, were punishable by a custodial sentence, even if alternative to the pecuniary penalty, supports this view. In light of this legislative precedent, the lack of a similar limitation in art. 2, paragraph 2, letter a), of Law No. 67 of 2014 should be interpreted to mean that the new decriminalization should also affect – regarding crimes punishable only by a pecuniary penalty – any aggravated hypotheses punishable by a custodial sentence.

1.3.2.– By excluding such aggravated hypotheses from decriminalization and transforming them into autonomous criminal offenses, the delegated legislator has, on the other hand, de facto aggravated their sanctioning treatment, without any authorization from the delegation law and contrary to the underlying logic of minimal recourse to criminal law and the rationalization of the justice system.

Before the enactment of Legislative Decree No. 8 of 2016, in fact, driving without a license with recidivism within two years, being an aggravated hypothesis, was subject to the balancing judgment with any concurrent mitigating circumstances, pursuant to art. 69 of the Criminal Code: a judgment which, in case of prevalence or equivalence of the latter, resulted in the application of only the pecuniary penalty provided for the basic offense. The transformation of the offense into an autonomous criminal offense implies, however, that the custodial sentence must be applied even in the presence of mitigating circumstances.

This Court, the referring judge notes, has already dealt with a situation "in some ways similar" in Judgment No. 354 of 2002. The norm challenged at the time (albeit for aspects different from the violation of art. 76 of the Constitution) was art. 688, second paragraph, of the Criminal Code, which punished with arrest from three to six months any person found in a state of manifest drunkenness in a public place or open to the public, when the act was committed by someone who had already received a conviction for a non-culpable crime against life or personal integrity.

Similarly to the case under examination, on that occasion, Legislative Decree No. 507 of 30 December 1999 (Decriminalization of minor offenses and reform of the sanctioning system, pursuant to article 1 of Law No. 205 of 25 June 1999) had transformed into an administrative offense only the basic offense of drunkenness provided for by the first paragraph of art. 688 of the Criminal Code, which did not require the personal condition of the agent, with the consequence that the offense in the second paragraph – previously constituting an aggravated hypothesis – was transformed into an autonomous criminal offense. This Court then declared the challenged norm unconstitutional – in addition to the reason discussed below – for the "intrinsic irrationality" of the result thereby produced, consisting not only in the decriminalization of the basic offense, but also in the aggravation of the sanctioning treatment of the old aggravated offense, due to its exclusion from balancing with mitigating circumstances.

1.3.3.– The challenge set forth is formulated by the referring judge "in general," with regard to all the offenses falling within the scope of application of art. 1, paragraph 2, of Legislative Decree No. 8 of 2016. Alternatively, in the event that this Court deems "this request too extensive," the referring judge limits it to the relationship between the norm under scrutiny and the offense under art. 116, paragraph 15, of the Road Code.

In both perspectives, the question would be relevant in the main proceedings, since, if accepted, the referring judge, instead of issuing a conviction, would have to acquit the accused of the charge of driving without a license with recidivism within two years because the act is no longer provided for by law as a crime.

In the opinion of the referring judge, the acceptance of the question should also lead to the declaration of unconstitutionality, as a consequence, of the coordinating provision under art. 5 of Legislative Decree No. 8 of 2016, according to which when the offenses transformed into administrative offenses by this legislative decree provide for aggravated hypotheses based on recidivism and excluded from decriminalization, "recidivism is to be understood as the repetition of the decriminalized offense."

1.4.– Subsidiarily, the Court of Florence raises questions of constitutional legitimacy, in reference to articles 3, 25, second paragraph, and 27, third paragraph, of the Constitution, regarding art. 116, paragraph 15, of the Road Code, in the part where – after the decriminalization of the basic offense of driving without a license by Legislative Decree No. 8 of 2016 – it continues to attribute criminal relevance to the act committed by someone who has recidivism within two years.

According to the referring judge, a situation similar to that challenged in the aforementioned Judgment No. 354 of 2002 concerning the crime of drunkenness has arisen in this respect as well. In that case, this Court had noted that, following the decriminalization of the basic offense provided for by the first paragraph of art. 688 of the Criminal Code, having a prior conviction for a non-culpable crime against life or personal integrity, although an event entirely extraneous to the criminal act and lacking a necessary connection with the state of drunkenness, rendered punishable conduct which, if carried out by any other person, assumed no criminal value. The criminal norm thus ended up punishing, not so much the drunkenness itself, but rather a personal quality of the subject, thus impressing upon the contravention "the traits of a sort of author's crime, in open violation of the principle of offensiveness of the crime."

Regarding driving without a license, a "similar critical issue" is noted – in the opinion of the referring judge – where an act that for the generality of citizens does not constitute a criminal offense assumes such a connotation if committed by someone who has recidivism within two years.

Although in this case the link between the subjective requirement and the illicit conduct appears closer than in the case of drunkenness, having committed a similar violation in the preceding two years would still constitute an element extraneous to the criminal act, lacking any impact on the offense to the protected legal interest: the danger to road traffic safety would in fact remain identical whether the driver without a license is a subject with recidivism within two years or any other person.

Article 25, second paragraph, of the Constitution, which through the reference to the "act committed" attaches fundamental importance to the criminal action for its objective disvalue, and not only as a manifestation of social dangerousness, would consequently be violated.

The referring judge also cites the abundant constitutional jurisprudence on the limits to the balancing of mitigating circumstances with repeated recidivism, noting that since Judgment No. 251 of 2012 this Court deemed a norm unconstitutional "that direct[s] 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," particularly by making recidivism determine equal treatment for fact patterns significantly different in terms of offensiveness.

The referring judge further recalls that in Judgment No. 211 of 2022, concerning the crime of driving without a license committed by a person subject to preventive measures, this Court affirmed that the principle of offensiveness of the crime precludes provisions that attribute criminal relevance to personal qualities of subjects or their past conduct, unless such specific and differentiated treatment is necessary to preserve other interests worthy of protection. The latter eventuality was found in the case then under discussion, given that the configuration of the status of being subject to a personal preventive measure as a constituent element of the criminal offense responded to the need to impose limitations on movement, prevent or obstruct the perpetration of illicit activities, and make it less easy for dangerous subjects to evade control by the authority.

The same could not be said for driving without a license with recidivism within two years, since the prior commission of the same offense by the agent would not add anything to the offense in terms of offensiveness.

Therefore, such a marked disparity of treatment compared to the conduct of those who have not committed a similar violation in the preceding two years would not be justified. Recidivism – the referring judge observes – could possibly justify an increase in the penalty (as was the case when the basic offense of driving without a license constituted a crime), but not rise to the level of a discriminating element between what is criminally relevant and what is not.

Nor would it be useful to object that, in matters of particular triviality of the act, the habitual nature of the behavior – and therefore the commission of other analogous acts – constitutes an obstacle to the application of the non-punishability ground under art. 131-bis of the Criminal Code. As this Court underlined in Order No. 279 of 2017, the particularly trivial act referred to in the cited provision of the Criminal Code is still an offensive act, constituting a crime, which the legislature prefers not to punish: whereas the challenged norm makes the very criminal relevance of the act and the application of a custodial sentence, radically different from the administrative pecuniary sanction provided for the offense in the absence of recidivism, dependent on recidivism.

Furthermore, it should be considered that recidivism under art. 99 of the Criminal Code (configured as an aggravating circumstance), in light of the appropriate interpretation of constitutional and common jurisprudence and following this Court's Judgment No. 185 of 2015, is always discretionary, in the sense that the increase in penalty presupposes an assessment by the judge of the concrete significance of the new episode in terms of heightened culpability and greater dangerousness of the offender. In the case of art. 116, paragraph 15, of the Road Code, recidivism must instead be understood, pursuant to art. 5 of Legislative Decree No. 8 of 2016, as mere repetition of the decriminalized offense, resulting in a rigid automatism between repetition and criminal relevance of the act, the feasibility of adaptive interpretations requiring judicial verification of the significance of the new episode in the aforementioned sense being precluded by the literal text of the two provisions.

The referring judge ultimately deems art. 27, third paragraph, of the Constitution also violated, as a penalty related to a subjective condition extraneous to the offense to the protected legal interest would inevitably be perceived as unjust by the convicted person, consequently remaining unsuitable to realize its punitive purpose.

These questions would also be relevant in the main proceedings, for the same reason indicated with respect to the question raised primarily.

1.5.– Further subsidiarily, in the event that this Court does not uphold the questions relating to the continuing criminal relevance of the challenged offense, the Court of Florence raises a question of constitutional legitimacy of art. 1, paragraph 2, of Legislative Decree No. 8 of 2016, in reference to art. 76 of the Constitution, in the part where it does not provide that, with regard to the aggravated hypotheses of crimes punishable only by a pecuniary penalty now considered autonomous criminal offenses, the judge continues to apply the sanctioning rules provided before the enactment of the aforementioned legislative decree for the calculation of the penalty.

As already noted, in fact, the challenged norm – by decriminalizing the basic offenses of crimes punishable only by a pecuniary penalty and transforming the old aggravated hypotheses for which a custodial sentence was provided into autonomous criminal offenses – would have made the sanctioning treatment of the latter more severe without such an outcome being authorized by the delegation law and contrary to the logic that inspired its entire framework, based on enhancing the principles of fragmentation, offensiveness of the crime, and subsidiarity of the criminal sanction (and the custodial one in particular).

This challenge is also formulated with regard to all the offenses falling within the scope of application of art. 1, paragraph 2, of Legislative Decree No. 8 of 2016 or, subsidiarily, only in relation to the offense under art. 116, paragraph 15, of the Road Code.

The question would likewise be relevant in the main proceedings. According to the referring judge, in fact, the general mitigating circumstances could be recognized in favor of the accused, in consideration of his young age at the time of the act and his troubled adolescence. Consequently, if the question were upheld, it would be necessary – applying the sanctioning rules in force before the amendments made by Legislative Decree No. 8 of 2016 – to balance the general mitigating circumstances against the old aggravation of recidivism within two years: a balancing that would have to be resolved in terms of at least equivalence, with the result of making only the fine penalty applicable.

1.6.– In the further and ultimate subsidiary case, should all the preceding questions not be upheld, the referring judge asks this Court to declare art. 116, paragraph 15, of the Road Code unconstitutional in the part where – in the case of recidivism within two years – it provides for the application of arrest for up to one year, in addition to a fine from 2,257 to 9,032 euros, instead of the fine from 5,000 to 30,000 euros.

In the opinion of the referring judge, even if the provision of an autonomous criminal offense for driving without a license with recidivism within two years were deemed constitutionally legitimate, the application of a custodial penalty, rather than (only) a pecuniary one, could not, however, be derived from an element extraneous to the crime, such as recidivism, in light of the aforementioned principles of articles 3, 25, second paragraph, and 27, third paragraph, of the Constitution.

The referring judge recalls that this Court, with Judgment No. 94 of 2023, declared the unconstitutionality of art. 69, fourth paragraph, of the Criminal Code, in the part where, regarding crimes punishable by the statutory penalty of life imprisonment, it prohibits the prevalence of mitigating circumstances over repeated recidivism. This Court held, therefore, that recidivism – even if repeated – cannot determine, by inhibiting the mitigating effect of mitigating circumstances, the application of a life sentence in situations where, in its absence, the judge could apply a (high, but) temporary custodial sentence.

The situation under examination, albeit at a different level, would be similar. If it is legitimate to attach a quantitative increase (within certain limits) of the penalty to recidivism, it is not legitimate to have it result in the application of a penalty of a different and decidedly more severe nature than the one otherwise applicable.

The referring judge identifies, as an adequate alternative solution, the replacement of the challenged penalty with a fine in an amount equal to that of the administrative pecuniary sanction applicable in the simple case of driving without a license, pursuant to art. 1, paragraph 5, letter b), of Legislative Decree No. 8 of 2016 (from 5,000 to 30,000 euros). The significant breadth of the statutory range would allow for taking into account recidivism within it, while the continued criminal relevance of the act would still serve to differentiate the hypothesis of recidivism within two years from the simple hypothesis.

These final questions would be relevant if the preceding ones were not upheld, since in that case, to determine the sanctioning treatment, one would have to start from the new statutory range provided for the new autonomous offense of driving without a license with recidivism within two years.

1.7.– As a concluding note, the referring judge excludes that the challenged norms are amenable to a constitutionally compliant interpretation, given their clear and unambiguous literal wording, which the constant jurisprudence of the Supreme Court has effectively adhered to.

2.– The President of the Council of Ministers intervened in the proceedings, represented and defended by the State Attorney's Office, who requested that the questions be declared inadmissible or, subsidiarily, unfounded.

2.1.– In the opinion of the intervener, the questions would be inadmissible as the referring order would have incurred "a significant procedural error."

The referring judge was called, in fact, to rule on the offense under art. 73 of the Anti-Mafia Code, which the Public Prosecutor's Office charged the accused with because he had driven a motor vehicle "without a driver's license never obtained and already sanctioned in the two-year period for that reason," while being subject – with a definitive measure – to the preventive measure of a police warning issued by the Police Commissioner of Naples.

The "mere eventuality" that the indictment refers to the latter circumstance would not allow the referring judge to reclassify the contested crime as the contravention of driving without a license with recidivism within two years, under art. 116, paragraph 15, of the Road Code, since such an operation would entail a change in the description of the act.

The referring judge, after excluding the configuration of the crime under art. 73 of the Anti-Mafia Code, should therefore not have found the contravention under art. 116, paragraph 15, of the Road Code to be established and raised questions of constitutional legitimacy in relation to it, but should have returned the documents to the Public Prosecutor's Office pursuant to art. 521, paragraph 2, of the Code of Criminal Procedure, so that it could proceed with the reformulation of the indictment, since the fact was different from the one charged, thus giving the accused's defense the opportunity to address the new charge, choosing the preferable procedural strategy. According to an established trend in the Supreme Court jurisprudence, moreover, the power-duty of the judge to order the transmission of the documents to the Public Prosecutor when he finds the difference of the fact is not limited to cases where the proceedings are conducted under the summary trial procedure.

The inadmissibility of the questions would consequently follow, as the challenged art. 116, paragraph 15, of the Road Code would not be applicable in the main proceedings.

2.2.– On the merits, the questions would not be founded in any case.

2.2.1.– Regarding the question raised primarily, the State Attorney's Office recalls that, according to the constant jurisprudence of this Court, the provision of art. 76 of the Constitution does not preclude the delegated legislator from issuing norms that represent a coherent development and completion of the choices expressed by the delegating legislator, which limits the defect of excess delegation to cases of expansion of the object indicated by the delegation law, to the extreme of including subject matters that were excluded from it. The silence of the delegating legislator on a topic does not prevent the delegated legislator from regulating it, provided that through choices that are not contrary to the general directives of the delegation law.

In this case, the choice made by the challenged art. 1, paragraph 2, of Legislative Decree No. 8 of 2016, to include in decriminalization the crimes punishable only by a pecuniary penalty that provide for aggravated hypotheses punishable by a custodial sentence, transforming these latter into autonomous criminal offenses, would fall within the scope of art. 2, paragraph 2, of Law No. 67 of 2014, constituting a logical and coherent development of the delegating legislator's will, inspired by the rationalization of the system through a reduction of the area of criminal relevance of fact patterns with less offensiveness, identified by referring to the sanctioning of only a pecuniary penalty.

2.2.2.– The questions raised subsidiarily, intended to challenge, in reference to articles 3, 25, second paragraph, and 27, third paragraph, of the Constitution, art. 116, paragraph 15, of the Road Code, in the part where it continues to recognize criminal relevance to driving without a license with recidivism within two years after the decriminalization of the basic offense of driving without a license by Legislative Decree No. 8 of 2016, would likewise be unfounded.

The referring judge's assumption, according to which recidivism within two years adds nothing, in terms of offensiveness, to the new offense, which would thus remain focused only on the subjective condition of the agent, cannot be shared.

On the contrary, the element in question would be an indication of greater dangerousness of the conduct connected to the violation of the same provision, which identifies the possession of a driving license as an indispensable prerequisite for the lawful carrying out of a dangerous activity, within an area of "permitted risk."

2.2.3.– A similar assessment of no foundation would be necessary with regard to the question raised further subsidiarily, which denounces as vitiated by excess delegation the aggravation of the sanctioning treatment for driving without a license with recidivism within two years, resulting from its transformation into an autonomous criminal offense.

Although this operation makes the offense in question no longer subject to the balancing judgment with any mitigating circumstances, capable of "sterilizing" the application of the custodial sentence, this would respond to a precise legislative choice, which could not be deemed manifestly unreasonable. By limiting the criminal relevance of driving without a license to the sole case of recidivism within two years, the legislator would have considered the need to maintain the punishability of conduct significantly dangerous for road traffic, because carried out by someone who has already perpetrated the same violation in the preceding two years, to be predominant.

The current configuration as an autonomous criminal offense would not prevent the judge from assessing – in order to grade, mitigate, or exclude the punitive response – the concrete offensiveness of the conduct based on the parameters of art. 133 of the Criminal Code, or, if the prerequisites are met, the effects of art. 131-bis of the Criminal Code.

The possible application, by the judge of cognition, of substitute penalties pursuant to art. 53 of Law No. 689 of 1981, as well as, in the executive phase, of alternative measures to detention provided for by Law No. 354 of 26 July 1975 (Provisions on the penitentiary system and the execution of custodial and restrictive measures of freedom), would also remain unaffected.

The State's defense finally notes that according to the jurisprudence of this Court, an assessment concerning the merits of the legislator's sanctioning choices is possible only if they manifestly conflict with the standard of reasonableness, as when the choice misses its objective or betrays its *ratio*. This hypothesis is not found in the present case, the challenged norm appearing proportional, appropriate, and adequate to the goal pursued by the legislator.

Considered in Law

1.– The Ordinary Court of Florence, first criminal section, in single-judge composition, raises four sets of questions of constitutional legitimacy, in a graded subsidiary order.

1.1.– The referring judge primarily challenges, with reference to art. 76 of the Constitution, art. 1, paragraph 2, of Legislative Decree No. 8 of 2016, in the part where – after providing, in the first period, that the decriminalization of crimes punishable only by a pecuniary penalty, provided for by paragraph 1 of the same article, also applies to crimes which in aggravated hypotheses are punished with a custodial sentence, alone, alternative or concurrent with the pecuniary penalty – it adds, in the second period, that "[i]n such cases, the aggravated hypotheses are to be considered autonomous criminal offenses."

In the opinion of the referring judge, this latter provision would be contrary to the principles and guiding criteria of the delegation law, according to which, in the case considered, decriminalization should have extended to the entire fact pattern, both in the basic hypothesis and in the aggravated one. Art. 2, paragraph 2, letter a), of Law No. 67 of 2014 in fact limited itself to establishing the transformation into administrative offenses of all crimes for which only the penalty of a fine or penalty of a fine was provided (except for those related to the subsequently listed subject matters), without authorizing the delegated legislator to maintain the criminal relevance, as autonomous offenses, of any aggravated hypotheses punishable by a custodial sentence.

The question is raised with reference to all the offenses falling within the scope of application of the challenged norm or, subsidiarily, only in relation to the offense of driving without a license, under art. 116, paragraph 15, of the Road Code, which is relevant in the main proceedings.

According to the referring judge, the acceptance of the question should also lead to the declaration of unconstitutionality, as a consequence, of the coordinating provision under art. 5 of Legislative Decree No. 8 of 2016, according to which when the aggravated hypotheses excluded from decriminalization are based on recidivism (as in the case of driving without a license with recidivism within two years), "recidivism is to be understood as the repetition of the decriminalized offense."

1.2.– Subsidiarily, the Court of Florence raises, in reference to articles 3, 25, second paragraph, and 27, third paragraph, of the Constitution, questions of constitutional legitimacy of art. 116, paragraph 15, of the Road Code, in the part where, after the decriminalization of the basic offense of the crime provided for therein as a result of Legislative Decree No. 8 of 2016, it continues to attribute criminal relevance to driving without a license in the case of recidivism within two years, previously configured as an aggravated hypothesis of the crime itself.

In this way, the challenged norm would make the criminal relevance of an act, which for the generality of citizens constitutes a mere administrative offense, dependent on a subjective condition of the agent, extraneous to the offense to the protected legal interest, as it does not indicate a greater danger to road traffic safety, thus over-emphasizing, in terms of sanctions, the subjective components of the violation to the detriment of the objective ones: hence the violation of the principles of equality and offensiveness of the crime, as well as the punitive purpose of rehabilitation, given that the convicted person, who sees a criminal sanction (and moreover custodial) imposed as a result of recidivism, instead of a simple administrative pecuniary sanction, would inevitably perceive said sanction as unjust.

1.3.– Further subsidiarily, the referring judge challenges, in reference again to art. 76 of the Constitution, art. 1, paragraph 2, of Legislative Decree No. 8 of 2016, in the part where it does not provide – generally or, subsidiarily, only in relation to the offense under art. 116, paragraph 15, of the Road Code – that, with regard to the aggravated hypotheses of crimes punishable only by a pecuniary penalty that have become autonomous criminal offenses, the judge continues to apply the previous sanctioning rules for the calculation of the penalty.

The referring judge observes that, by excluding the aforementioned hypotheses from decriminalization and transforming them into autonomous criminal offenses, the delegated legislator has aggravated their sanctioning treatment, removing them from the balancing judgment with any concurrent mitigating circumstances: this, in the absence of any authorization from the delegation law and also contrary to the logic of minimal recourse to criminal law and the rationalization of the justice system that inspired the entire framework of that law.

1.4.– In ultimate subsidiary case, the referring judge finally deduces the unconstitutionality, again in reference to articles 3, 25, second paragraph, and 27, third paragraph, of the Constitution, of art. 116, paragraph 15, of the Road Code, in the part where it provides that, in the case of driving without a license with recidivism within two years, the penalty of arrest for up to one year and a fine from 2,257 to 9,032 euros shall be applied, instead of the fine from 5,000 to 30,000 euros.

In the opinion of the referring judge, even if the provision of an autonomous criminal offense for driving without a license with recidivism within two years were deemed constitutionally legitimate, the application of a custodial penalty, rather than (only) a pecuniary one, could not, however, be derived from "an element extraneous to the criminal act," such as recidivism, in light of the constitutional parameters invoked.

For the identification of the penalty to be substituted for the one denounced as unconstitutional, the amount of the administrative pecuniary sanction applicable in the simple case of driving without a license would, on the other hand, be a possible reference point.

2.– The State Attorney's Office has objected to the inadmissibility of the questions, on the assumption that the referring judge, in raising them, incurred "a significant procedural error."

The referring judge was called to judge a person charged, among other things, with the contravention under art. 73 of the Anti-Mafia Code (a special offense unaffected by decriminalization due to its sanctioning treatment: among others, Court of Cassation, sixth criminal section, judgment of 12 December 2017 - 20 February 2018, no. 8223), and wrongly held that he could reclassify the act being prosecuted as the contravention of driving without a license with recidivism within two years, under art. 116, paragraph 15, of the Road Code: an operation that would be, conversely, prohibited to him, as it implies a change in the description of the act. Instead of initiating the incidental constitutional legitimacy review, the Court of Florence should therefore have returned the documents to the Public Prosecutor's Office pursuant to art. 521, paragraph 2, of the Code of Criminal Procedure for the reformulation of the indictment, in view of the found difference of the fact. This would make the questions irrelevant, as the challenged art. 116, paragraph 15, of the Road Code would not be applicable in the main proceedings.

The objection is unfounded.

The referring judge excluded the configurability of the contested contravention under art. 73 of the Anti-Mafia Code – which punishes anyone who drives motor vehicles or mopeds without a license, or after it has been denied, suspended, or revoked, while already subject, with a definitive measure, to a personal preventive measure – because the police warning issued by the Police Commissioner in the specific case did not contain the prescription of the prohibitions under art. 3, paragraph 4, of the Anti-Mafia Code: a prescription in the absence of which, according to the prevailing Supreme Court jurisprudence, the crime in question cannot be considered constituted (ex plurimis, Court of Cassation, fifth criminal section, judgment of 28 February - 7 April 2023, no. 14935; first criminal section, judgment of 3 February - 6 September 2023, no. 36857).

The referring judge further noted that the indictment related to the aforementioned crime also charges, in fact, the contravention under art. 116, paragraph 15, of the Road Code, as the accused is specifically accused of driving a motor vehicle "without a driver's license never obtained and already sanctioned in the two-year period for that reason": a contravention on which the referring judge considers himself thus authorized to rule (pursuant to art. 521, paragraph 1, of the Code of Criminal Procedure) and which he considers concretely established in light of the evidentiary findings (hence the relevance of the questions).

This reasoning appears certainly capable of overcoming the "non-implausibility" test, on which the "external" control of relevance by this Court is based (ex plurimis, judgments No. 179, No. 148 and No. 80 of 2024).

3.– On the merits, the questions are unfounded.

4.– This applies, first of all, to the question raised primarily, which denounces a supposed defect of excess delegation.

4.1.– In this regard, it is useful to recall preliminarily that, according to the constant jurisprudence of this Court, "the provision of art. 76 of the Constitution does not prevent the delegated legislator from issuing norms that represent a coherent development and completion of the choices expressed by the delegating legislator, and it must be excluded that the function of the latter is limited to a mere linguistic scanning of provisions established by the former" (among many, judgments No. 36 of 2025 and No. 96 of 2020). The verification of the conformity of the delegated norm to the delegating norm must therefore be carried out through a comparison between the outcomes of two parallel interpretative processes, concerning, on the one hand, the provisions that determine the object, principles, and guiding criteria indicated by the delegation law and, on the other hand, the provisions established by the delegated legislator, to be interpreted in the meaning compatible with the delegation (ex plurimis, judgments No. 36 of 2025, No. 129 of 2024 and No. 166 of 2023).

4.2.– In the present case, the delegation law n. 67 of 2014 pursues overall – as this Court has already had occasion to note – "the objective of reducing the criminal system, substantive and procedural, in compliance with the principles of fragmentation, offensiveness, and subsidiarity of criminal sanctions. The clear criminal-policy purpose of the delegations contained in the aforementioned law is therefore found in the need for a reduction of the criminal system consistent with the principle of *extrema ratio* in the recourse to punishment" (judgments No. 81 of 2025 and No. 88 of 2024).

From this perspective, art. 2 of the aforementioned law delegated the Government to adopt one or more legislative decrees "for the reform of the sanctioning discipline of crimes and for the simultaneous introduction of administrative and civil sanctions" (paragraph 1), based on principles and guiding criteria that include, as a first line of intervention, the transformation into administrative offenses of a set of criminal figures, selected through two distinct techniques. On the one hand, by means of a general clause which provides for the decriminalization of "all crimes" punishable with "only the penalty of a fine or penalty of a fine," with the exception of those related to certain subject matters (paragraph 2, letter a): so-called "blind" decriminalization; on the other hand, through the "nominative" listing of further fact patterns included in the operation (paragraph 2, letters b to d).

With art. 1 of Legislative Decree No. 8 of 2016, the delegated legislator implemented the delegation relating to "blind" decriminalization, establishing that "[n]o acts constitute a crime and are subject to the administrative sanction of payment of a sum of money for all violations for which only the penalty of a fine or penalty of a fine is provided" (paragraph 1), subject to certain exclusions (paragraphs 3 and 4), and subsequently setting the quantification criteria for pecuniary administrative sanctions for decriminalized violations (paragraphs 5 and 6).

As far as is most relevant here, paragraph 2 of the same art. 1 clarifies that the decriminalization ordered by paragraph 1 "also applies to the crimes provided for therein which, in aggravated hypotheses, are punished with the penalty of detention, alone, alternative or concurrent with the pecuniary penalty" (first period), further specifying that, "[i]n such cases, the aggravated hypotheses are to be considered autonomous criminal offenses" (second period).

4.3.– It is precisely on this latter provision that the doubt of constitutional legitimacy of the referring judge centers. In the opinion of the Court of Florence, as already specified, this provision would be incompatible with the dictates of the delegation law, whose art. 2, paragraph 2, letter a), limited itself to providing for the transformation into administrative offenses of all crimes punishable only by a pecuniary penalty: not allowing – in its assertion – the delegated legislator to maintain the criminal relevance, as autonomous offenses, of any aggravated hypotheses punishable (also or only) by a custodial sentence.

The thesis would be corroborated by the observation that, on the occasion of the previous "blind" decriminalization of crimes punishable only by a pecuniary penalty provided for by art. 32 of Law No. 689 of 1981, the second paragraph of that article had expressly excluded its applicability to "crimes which, in aggravated hypotheses, [were] punishable by a custodial sentence, even if alternative to the pecuniary penalty." The absence of a similar provision in Law No. 67 of 2014 should therefore be interpreted to mean that, in the intentions of the delegating legislator, the new decriminalization should affect these crimes in their entirety, both as to the basic offense and as to the aggravated hypotheses. The Government could not, therefore, leave the criminal relevance of the latter standing, transforming them into autonomous forms of crime, with the result – antithetical to the general objectives of the delegation law – of aggravating their sanctioning treatment, due to their exclusion from the balancing judgment with any concurrent mitigating circumstances (a judgment which, if the latter were deemed equivalent or prevailing, would make only the pecuniary penalty provided for the basic offense applicable).

4.4.– The referring judge's thesis is not sustainable.

In implementing the delegation, the delegated legislator in fact faced the problem of establishing whether – given the lack, in the delegation law, of a preclusive provision similar to that in art. 32, second paragraph, of Law No. 689 of 1981 – the decriminalization of crimes punishable only by a pecuniary penalty, provided for by art. 2, paragraph 2, letter a), of Law No. 67 of 2014, should also extend to the criminal figures that met this condition as to the basic offense, but whose aggravated hypotheses were suppressed with a custodial sentence.

On this point, the Government adopted the indications of the Study Commission established by decree of the Minister of Justice of 27 May 2014 "to elaborate proposals on the revision of the sanctioning system and to implement the delegation law 28 April 2014, n. 67 on non-custodial sentences and decriminalization": it deemed, that is, that it should "attribute the widest possible scope of application to the general clause" of decriminalization contained in the delegation law, also extending its benefit to the aforementioned crimes (thus the explanatory report of the preliminary draft of Legislative Decree No. 8 of 2016, which paraphrases point 5 of the report on the decriminalization of the aforementioned Commission). This solution effectively supports and enhances the general goals of reducing the criminal system underlying the delegation law.

In proceeding in this direction, the delegated legislator – always in adherence to the Commission's proposals – however, duly maintained the criminal relevance of the aggravated hypotheses of the crimes in question, for which the law in force at the time provided, due to the more accentuated disvalue of the act, also or only the penalty of imprisonment or arrest. Contrary to what the referring judge seems to believe, in fact, these hypotheses could not have been included in the scope of application of the delegation criterion, which did not refer the condition for the effectiveness of "blind" decriminalization – that is, the crime being punishable only by a pecuniary penalty – to the basic offense alone, thus rendering the different sanctioning treatment possibly reserved for the aggravated hypotheses irrelevant.

The transformation of these aggravated hypotheses into autonomous criminal offenses – with all the resulting effects, even if unfavorable – is, moreover, an unavoidable consequence of the adopted solution: it is in fact evident that the old aggravations could not survive as such once the criminal relevance of the basic offense ceased to exist.

The considerations set forth above are also supported by the opinions expressed by the parliamentary committees on the draft decree: opinions which, as this Court has repeatedly noted, although not binding, nor expressing authentic interpretations of the delegation law, nevertheless constitute an element that contributes to the correct exegesis of the latter (ex plurimis, judgments No. 81 of 2025, No. 96 of 2020, No. 127 of 2017 and No. 250 of 2016; similarly, judgments No. 79 of 2019 and No. 47 of 2014).

In this case, while the opinion of the 2nd Standing Committee (Justice) of the Senate of the Republic raised no objection on this point, the opinion of the 2nd Standing Committee (Justice) of the Chamber of Deputies expressly shared "the choice regarding criminal offenses punishable only by a pecuniary penalty in the basic hypothesis and, in the aggravated hypothesis, also by custodial sentences, according to which the basic offense is decriminalized while the aggravation becomes an autonomous criminal offense."

4.5.‒ The considerations set forth above clearly suffice to exclude the foundation of the suspicion of unconstitutionality of the challenged provision raised by the referring judge, subsidiarily, with reference only to the crime of driving without a license, under art. 116, paragraph 15, of the Road Code.

4.6.– Furthermore, the censure advanced "consequently" by the referring judge to the coordinating provision under art. 5 of Legislative Decree No. 8 of 2016, under which, when the aggravated hypotheses excluded from decriminalization are based on recidivism (as in the case of driving without a license with recidivism within two years), "recidivism is to be understood as the repetition of the decriminalized offense," also falls, due to what has been stated above.

This is, in fact, also in this case, a logical corollary of the solution adopted by the delegated legislator. As stated in the explanatory report of the preliminary draft of the legislative decree, in fact, "[i]n the absence of the coordinating norm, the aggravated offense would have been destined to 'fall' because that constituent element represented by 'recidivism' would have ceased to exist, since it would no longer be possible to refer this legal institute to an administrative offense."

5.– Likewise unfounded appear the questions raised subsidiarily, which specifically concern the current sanctioning framework for driving without a license outlined by art. 116, paragraph 15, of the Road Code, in the part where it continues to attach criminal relevance to the offense committed by someone who has recidivism within two years.

5.1.– As the referring judge himself recalls, before the reform introduced by Legislative Decree No. 8 of 2016, driving motor vehicles without the corresponding driver's license – because never obtained, or revoked or not renewed due to lack of physical and mental requirements – was punished by the aforementioned art. 116, paragraph 15, of the Road Code with a fine from 2,257 to 9,032 euros (first period of paragraph 15); in case of recidivism within two years, arrest for up to one year was also applied (second period). The Supreme Court jurisprudence did not doubt that the latter hypothesis constituted an aggravating circumstance, and not an autonomous form of crime (Court of Cassation, fourth criminal section, judgment of 30 April - 1 October 2014, no. 40617; judgment of 12 - 30 January 2012, no. 3566).

Following the decriminalization measure ordered by art. 1 of Legislative Decree No. 8 of 2016, in the terms recalled above, driving without a license is therefore generally punished with the administrative pecuniary sanction from 5,000 to 30,000 euros, which replaced the previous fine based on paragraph 5, letter b), of the aforementioned art. 1 (subject to subsequent updates provided for pursuant to art. 195, paragraph 3, of the Road Code). When, however, there is recidivism within two years, the act constitutes an autonomous hypothesis of crime, punishable by arrest for up to one year and a fine from 2,257 to 9,032 euros (Court of Cassation, fourth criminal section, judgment of 4 June - 4 July 2024, no. 26285, where it is excluded that the offense can currently be considered sanctioned only with a custodial sentence), a crime of which recidivism constitutes a constituent element (among others, Court of Cassation, fourth criminal section, judgment of 28 January - 4 March 2025, no. 8871; judgment of 10 May - 15 September 2017, no. 42285).

It is also useful to note that, according to the constant Supreme Court jurisprudence, recidivism must be considered constituted for this purpose both by specific judicial precedent (especially in relation to acts committed before the reform), and – in light of the provision of art. 5 of Legislative Decree No. 8 of 2016 – by a previous administrative violation, provided it is definitively established (ex plurimis, Court of Cassation, fourth criminal section, judgment of 6 - 12 May 2025, no. 17795; judgment of 6 April - 14 June 2018, no. 27398), the mere accusation of the offense not being sufficient (Court of Cassation, fourth criminal section, no. 8871 of 2025; judgment of 12 October - 8 November 2023, no. 44905).

Before the entry into force of Legislative Decree No. 8 of 2016, the Supreme Court jurisprudence also appeared oriented towards the view that, for the purpose of configuring recidivism within two years, the date of finality of the judgment relating to the previous act was relevant as the *dies a quo* and not the date of commission of that act (among others, Court of Cassation, fourth criminal section, judgment of 30 April - 1 October 2014, no. 40617): a guideline reiterated after the reform (Court of Cassation, fourth criminal section, judgment of 30 September - 31 October 2016, no. 45769) and which appears applicable, *mutatis mutandis*, also to the repetition of the decriminalized offense (in the sense that the two-year period will run from the moment the related finding becomes final).

5.2.– Having established this, it must be recalled that, according to the referring judge, the provision as a crime hypothesis of driving without a license in the case of recidivism within two years violates the principles of equality, offensiveness of the crime, and the punitive purpose of rehabilitation (articles 3, 25, second paragraph, and 27, third paragraph, of the Constitution). The referring judge essentially bases his challenges on a twofold argumentative line.

From one perspective, the referring order argues that the challenged norm makes the criminal relevance of an act, which for any other person remains punishable only administratively, dependent on a subjective condition of the agent (recidivism within two years) lacking any impact on the offense to the protected legal interest. In this way, the provision would configure – similarly to what happened at the time for the contravention of drunkenness (art. 688, second paragraph, of the Criminal Code), removed by this Court's Judgment No. 354 of 2002 – a so-called "author's" criminal liability, which is not constitutionally permissible.

From a second and concurring perspective, the Court of Florence – referencing the jurisprudence of this Court regarding the prohibition of mitigating circumstances prevailing over repeated recidivism established by art. 69, fourth paragraph, of the Criminal Code – holds that the challenged norm over-emphasizes the weight of recidivism in the sanctioning sphere, making it overwhelming compared to the objective components of the act. According to the referring judge, recidivism could justify, indeed, an increase (within certain limits) of the penalty, but not rise to the level of a discriminator between what falls within the area of criminal relevance and what falls outside it.

5.3.– In this case too, the referring judge's position cannot be shared.

Regarding the first line of argument, this Court has, in fact, affirmed that the principle of offensiveness of the crime, derivable from art. 25, second paragraph, of the Constitution – which requires the legislator to limit criminal repression to behaviors that in their abstract configuration appear offensive to interests worthy of protection, even only in the form of exposure to danger (ex plurimis, Judgment No. 211 of 2022) –, precludes the provision of criminal offenses that "have, as a prerequisite, a quality of the person not connected to the conduct" (Judgment No. 116 of 2024), as well as provisions that establish more severe criminal treatments based on personal qualities derived from the prior commission of acts "entirely extraneous to the criminal act" (Judgment No. 249 of 2010).

In this logic, it has been excluded that the status of being convicted of non-culpable crimes against life or personal integrity can be elevated to a constituent element of the crime of drunkenness (Judgment No. 354 of 2002); or that the status of being an irregular migrant can constitute a general aggravating circumstance, applicable to any crime (Judgment No. 249 of 2010); or again that the configurability of the crimes of unjustified possession of altered keys or lock-picking tools (art. 707 of the Criminal Code) and unjustified possession of valuables (art. 708 of the Criminal Code) can be linked to the status of being convicted of begging, being warned, being subject to personal security measures or to a bond of good conduct (in this sense, based on a reasonableness review, judgments No. 14 of 1971 and No. 110 of 1968), as well as, limited to the second crime, to that of being convicted of crimes motivated by profit or of contraventions concerning the prevention of crimes against property (Judgment No. 370 of 1996).

Conversely, this Court has ruled on the latter condition with regard to the crime of unjustified possession of altered keys or lock-picking tools, deeming it not unreasonable that, in the face of conduct that must have a potential projection towards an offense against property, the legislator takes into account prior convictions of the active subject for aggressive crimes against the same asset, or characterized by profit motives, as they are capable of making said offensive projection more concrete (Judgment No. 225 of 2008).

Specifically concerning the contravention provided for by art. 73 of the Anti-Mafia Code, initially charged in the referring proceedings, this Court has also held that the incrimination of the conduct of driving without a license by a subject subject to a personal preventive measure is not unconstitutional, when the subject in question does not have a license because he never requested it or because, despite having requested it, it was denied to him, or was revoked due to the application of the preventive measure, since this incrimination is aimed at protecting public order, in correlation with the need to impose limitations on movement, prevent or obstruct the perpetration of illicit activities, and make it less easy for dangerous subjects to evade control by the authority (Judgment No. 211 of 2022).

Based on the aforementioned principles, this Court has, on the contrary, reached a declaration of constitutional illegitimacy with regard to the case where the subject under preventive measures drove motor vehicles without a license because it had been suspended or revoked due to violations of road code rules (such as those on blood alcohol limits for drivers). In such an eventuality, which does not reveal the protection perspective indicated above, "Both for the subject under preventive measures and for the other subjects, the subsequent conduct of driving with a suspended or revoked license for violations of road code rules cannot but have the same legal treatment": it must, that is, constitute an administrative offense, "except for the hypothesis of recidivism within two years" (Judgment No. 116 of 2024).

5.4.– Coming then precisely to the hypothesis exempted by the latter judgment, it must be noted that the fact pattern under examination, beyond apparent points of contact, is significantly dissimilar from that ruled upon in Judgment No. 354 of 2002, specifically invoked by the referring judge.

In that judgment, this Court noted that, following the decriminalization of the basic offense of drunkenness implemented by Legislative Decree No. 507 of 1999, the agent's prior conviction for a non-culpable crime against life or personal integrity – which already constituted an aggravating circumstance – came to assume "the features of a mark, which the convicted person [could] do nothing to erase and which served to qualify [as criminally relevant] conduct which, if carried out by any other person, would not constitute a criminal offense." The fact, moreover, that the prior criminal record in question was "an event entirely extraneous to the criminal act" and "lacking a necessary correlation with the state of drunkenness," made it clear that the criminal norm ended up punishing not so much the drunkenness itself, but a personal quality of the subject, so that the contravention assumed "the features of a sort of author's crime, in open violation of the principle of offensiveness of the crime."

In the present case, by contrast, the prior offense in question cannot be said to be without correlation with the conduct of driving without a license sanctioned by the challenged norm, as it is constituted by the definitively established commission of the same offense. In fact, the formula "[i]n the case of recidivism within two years" is to be understood as referring to the latter in the context of the criminal norm, as the commission of a violation simply of the "same nature" is not sufficient – as required for specific recidivism under art. 99, second paragraph, number 1), of the Criminal Code. It follows that, as the referring judge himself recognizes, in the present case "the link between the subjective requirement and the illicit conduct is closer than in the case of drunkenness."

Recidivism, moreover, to be relevant for the purposes of art. 116, paragraph 15, second period, of the Road Code, must manifest itself within a very limited time frame: two years, starting – according to the most accredited thesis – from the definitive finding of the previous offense. It cannot, therefore, be considered that this finding assumes – like the previous conviction to which art. 688, second paragraph, of the Criminal Code referred – "the features of a mark, which the convicted person could do nothing to erase" (Judgment No. 354 of 2002, already cited): once the two-year period has passed without the subject having repeated the violation, he returns to being in the same condition as the generality of citizens with regard to any subsequent acts of driving without a license.

5.5.– Regarding the second line of argument supporting the referring judge's challenges, it must be recalled that this Court, as well as the Supreme Court jurisprudence, has identified the reason capable of justifying the increases in penalties provided for by art. 99 of the Criminal Code for the various cases of recidivism, not only in the greater dangerousness of the offender attested by his criminal record, but also in the greater degree of culpability found in those who "do not give up committing new crimes, despite already having received an individualized warning on their duty to respect criminal law, addressed to them by previous convictions" (Judgment No. 73 of 2020; in the Supreme Court jurisprudence, in a similar vein, United Criminal Sections of the Court of Cassation, 27 May - 5 October 2010, no. 35738). Greater culpability which in turn translates into a higher (subjective) gravity of the crime.

In the broad jurisprudence concerning the prohibition of mitigating circumstances prevailing over repeated recidivism established by art. 69, fourth paragraph, of the Criminal Code – jurisprudence summarized, regarding prior rulings, in Judgment No. 94 of 2023 (point 10 of the Considered in Law) and to which the referring judge appeals – this Court has, however, emphasized the need to maintain "a suitable balance between the (objective and subjective) gravity of the individual criminal act and the severity of the punitive response, avoiding in particular what the "leading" Judgment No. 251 of 2012 had already defined as the "abnormal emphasis on the subjective components attributable to repeated recidivism, to the detriment of the objective components of the crime" (Judgment No. 141 of 2023; in the same terms, also Judgment No. 188 of 2023). This phenomenon, which has been found in the "sterilization," induced by the prohibition in question, of the mitigating effect of certain mitigating circumstances, and particularly of those expressing a reduced offensiveness of the act, often accompanied by the provision of a penalty clearly lower than the basic penalty for the crime (regarding these, judgments No. 205 of 2017, No. 106 and No. 105 of 2014, No. 251 of 2012): which risked making the penalty imposed disproportionate to the individual act for which the subject was judged, in contrast with the constitutional principles invoked by the referring judge today.

5.6.– The aforementioned affirmations are extendable, with due adjustments, to the case where recidivism (or repetition of the offense) is configured – as in the present case – not as an aggravating circumstance, but as an element that determines the transition from an administrative violation to a criminal offense (this, despite the differentiating factor that recidivism under art. 99 of the Criminal Code applies only to non-culpable crimes, whereas here we are discussing an offense also punishable through negligence).

In the present case, however, the aforementioned phenomenon of abnormal overestimation of the subjective components of the offense does not appear to be present.

In this regard, it should be observed that driving without a license – the discipline of which has gone through an alternation of penalization and decriminalization interventions (recounted analytically in this Court's Judgment No. 211 of 2022, point 5 of the Considered in Law) – represents, in any case, an offense of significant disvalue within the framework of those contemplated by the Road Code, consisting in the carrying out of an activity intrinsically dangerous to road traffic safety, and therefore to the personal integrity of people and things – such as driving motor vehicles – in the absence of the enabling title that attests to the subject's suitability to perform it.

Even in the discipline preceding Legislative Decree No. 8 of 2016, when the act generally had criminal relevance, recidivism within two years caused a qualitative change in the punitive response, being configured as an autonomous aggravating circumstance, which implied the addition of a custodial sentence to the fine provided for the basic hypothesis. The transformation of the latter into an administrative offense has widened the gap, but without making the sanctioning response to the new violation exceed the limits of proportionality to the act.

The solution of providing that the repetition within a short time frame of the same violation – which, as mentioned, is of significant relevance in the system of road traffic offenses – renders criminal sanctions applicable to its author, instead of the ordinarily provided administrative pecuniary sanction, does not appear capable of producing such an effect in particular. This, considering that we are dealing with a contraventional crime, punished not only with the penalty of a fine (of an amount, moreover, significantly lower than that of the administrative sanction), but also with the penalty of arrest, but within contained statutory limits – up to one year, and therefore with a minimum of only five days, pursuant to art. 25 of the Criminal Code (which is notoriously what matters most in judicial practice) – and such as to render the penalty itself, in appropriate cases, currently replaceable with a pecuniary penalty even if applied at the maximum amount (art. 53, first paragraph, of Law No. 689 of 1981).

The conclusion does not appear to be affected by the observation – on which the referring judge also relies – that the recidivism provided for by art. 116, paragraph 15, of the Road Code, unlike that contemplated by art. 99 of the Criminal Code, is not discretionary, i.e., it does not require, for its application, a concrete verification by the judge of the significance of the new violation as an index of a heightened culpability and dangerousness of the agent. This is, considering that the two main elements on which this verification must be based – namely the nature and time of commission of the preceding acts (ex plurimis, judgments No. 185 of 2015 and No. 192 of 2007) – are in this case subject to statutory typification (the violation must be the same, the repetition must occur within a short time frame).

5.7.– In light of the foregoing considerations, it must therefore be excluded, in addition to the alleged violation of the principle of offensiveness, also that of the principle of equality – since the different treatment reserved for those with recidivism within two years cannot be considered unjustified or disproportionate – as well as of the punitive purpose of rehabilitation – which is not amenable in this case to being assessed as unjust, and therefore unsuitable for rehabilitation, by the convicted person.

6.– The question raised further subsidiarily is also unfounded, by which the referring judge asks that art. 1, paragraph 2, of Legislative Decree No. 8 of 2016 be declared constitutionally illegitimate, under the aspect of excess delegation, in the part where it does not provide that, with regard to the aggravated hypotheses now transformed into autonomous criminal offenses, the judge continues to apply the sanctioning rules in force prior to the reform for the calculation of the penalty.

The lack of foundation of this question – based on which the referring judge, as specified, deduces the alleged incompatibility with the delegation law of the aggravation of the sanctioning treatment of the aggravated hypotheses resulting from their transformation into autonomous criminal offenses, which prevents their balancing with any mitigating circumstances – is already inherent in what was observed previously in point 4.4., with regard to the question raised primarily.

It can be added that the ruling sought in this regard by the referring judge would result in an "extra ordinem" and completely unsystematic framework: the judge would have to continue to treat as an aggravating circumstance a sanctioning provision to which no basic offense still corresponds.

7.– Similarly, what was noted previously in point 5.6., concerning the questions raised subsidiarily, serves to also exclude the foundation of the questions raised in the ultimate subsidiary case with reference to the same parameters (articles 3, 25, second paragraph, and 27, third paragraph, of the Constitution), aimed at obtaining the replacement of the penalty currently provided for driving without a license with recidivism within two years (arrest for up to one year and fine from 2,257 to 9,032 euros) with that of the fine from 5,000 to 30,000 euros: this, on the assumption that recidivism within two years can at most justify, in this case, the provision of only a pecuniary penalty.

8.– In conclusion, therefore, all the questions submitted to the Court's examination must be declared unfounded.

for these reasons

THE CONSTITUTIONAL COURT

1) declares unfounded the questions of constitutional legitimacy of art. 1, paragraph 2, and, consequently, art. 5 of Legislative Decree No. 8 of 15 January 2016 (Provisions concerning decriminalization, pursuant to article 2, paragraph 2, of Law No. 67 of 28 April 2014), raised, in reference to art. 76 of the Constitution, by the Ordinary Court of Florence, first criminal section, in single-judge composition, with the order indicated in the heading;

2) declares unfounded the questions of constitutional legitimacy of art. 116, paragraph 15, of Legislative Decree No. 285 of 30 April 1992 (New Road Code), raised, in reference to articles 3, 25, second paragraph, and 27, third paragraph, of the Constitution, by the Ordinary Court of Florence, first criminal section, in single-judge composition, with the order indicated in the heading.

Decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 23 June 2025.

Signed:

Giovanni AMOROSO, President

Maria Rosaria SAN GIORGIO, Rapporteur

Roberto MILANA, Director of the Registry

Filed in the Registry on 21 October 2025