Sentenza n. 157 del 2025

Judgment No. 157 of 2025 - AI translated

JUDGMENT NO. 157

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 rendered the following

JUDGMENT

in the constitutional legitimacy review proceedings concerning Article 168-bis, first paragraph, of the Penal Code, initiated by the Judge of the Preliminary Hearing of the Ordinary Court of Taranto, in the criminal proceedings against D.G. M., with an order dated May 22, 2024, registered under no. 156 of the ordinary registers of 2024 and published in the Official Gazette of the Republic no. 36, first special series, of 2024.

Having reviewed the statement of intervention by the President of the Council of Ministers;

Heard in the Chamber of Council on October 6, 2025, the Reporting Judge Francesco Saverio Marini;

Deliberated in the Chamber of Council on October 6, 2025;

Facts Considered

1.– With an order dated May 22, 2024 (reg. ord. no. 156 of 2024), the Judge of the Preliminary Hearing of the Ordinary Court of Taranto raised, with reference to Articles 3 and 27, third paragraph, of the Constitution, questions of constitutional legitimacy concerning Article 168-bis, first paragraph, of the Penal Code, in that it "does not provide that the accused, even upon proposal by the Public Prosecutor, may request the suspension of the proceedings with probation in relation to the crime of real aiding and abetting pursuant to Article 379 of the Penal Code."

2.– The referring judge states that he is proceeding, at the preliminary hearing stage, against D.G. M., "accused of the crimes under Articles 378 and 379 of the Penal Code, for having assisted" other defendants in the same criminal proceedings "to evade the investigations conducted" against them for the crimes of fraud, misappropriation, and filing a false report with the judicial authority, as well as "to secure the profit" from said crimes.

The accused filed a request for suspension of proceedings with probation, attaching a "social investigation report and treatment program" from the External Penal Enforcement Office (UEPE).

3.– In the opinion of the referring judge, the questions of constitutional legitimacy concerning Article 168-bis of the Penal Code are relevant in the proceedings a quo, as the conditions for ordering the suspension of proceedings with probation are met.

Firstly, the accused has never availed himself of the institute in question and, since the crimes attributed to him were committed in execution of a single criminal design, the principle established by this Court's Judgment no. 174 of 2022 should apply, according to which "in the case of a simultaneous process concerning multiple criminal acts, the Judge [may] recognize the continuity bond" and allow admission to probation for all acts.

Secondly, the referring judge deems that a judgment of acquittal, pursuant to Article 129 of the Code of Criminal Procedure, should not be issued, as "the evidence of innocence cannot be asserted based on the evidence available to [him] [...]".

Furthermore, "pursuant to Article 133 of the Penal Code, the treatment program drawn up by the UEPE must be considered adequate," as evidenced by the accused's lack of prior convictions, his repentance—having "expressed regret for his anti-legal conduct" during the social investigation—and his being "an educated subject coming from a socio-familial context distant from deviant environments and logics."

Finally, the judge a quo believes that, in light of these same elements, it is possible to "predict that [the accused], in the future, will refrain from committing further crimes."

However—the referring judge notes—Article 168-bis, first paragraph, of the Penal Code limits the applicability of the probation institute to cases where proceedings are brought "for crimes punishable only by a pecuniary sanction or by a maximum custodial sentence not exceeding four years, alone, combined or alternative to the pecuniary sanction, as well as for the crimes indicated in paragraph 2 of Article 550 of the Code of Criminal Procedure"; whereas one of the crimes charged to the accused, real aiding and abetting, is punishable by a maximum custodial sentence of five years of imprisonment and does not fall within the scope of those to which, pursuant to Article 550, paragraph 2, of the Code of Criminal Procedure, the direct citation to trial procedure applies. This precludes the granting of probation.

4.– Regarding non-manifest unfoundedness, the judge a quo holds, firstly, that Article 168-bis, first paragraph, of the Penal Code violates Article 3 of the Constitution in terms of unreasonable disparity of treatment compared to the crimes of perjury (Article 372 of the Penal Code) and inducing someone not to make or to make false statements to the judicial authority (Article 377-bis of the Penal Code), which are taken as tertia comparationis.

These criminal offenses, in fact, offend the same legal interest—"the administration of justice, as judicial activity"—offended by real aiding and abetting, and they are punished with a more severe custodial sentence (from two to six years of imprisonment) and may also infringe upon other "fundamental rights and freedoms."

However, probation is admissible for them because they are included in the list of crimes under Article 550, paragraph 2, of the Code of Criminal Procedure, for which the public prosecutor exercises criminal action by direct citation to trial, a provision to which Article 168-bis, first paragraph, of the Penal Code refers to expand the hypotheses in which the suspension of proceedings with probation is permitted.

Real aiding and abetting, conversely, is excluded from the scope of the institute, because it is punished with imprisonment up to five years, plus a pecuniary sanction, meaning a maximum statutory penalty exceeding the limit within which Article 168-bis, first paragraph, of the Penal Code allows probation ("a maximum custodial sentence not exceeding four years, alone, combined or alternative to the pecuniary sanction") and is not included in the list of crimes under Article 550, paragraph 2, of the Code of Criminal Procedure.

5.– In the view of the referring judge, a disparity of treatment violating Article 3 of the Constitution is also found in relation to the crime of personal aiding and abetting under Article 378 of the Penal Code, for which probation is possible, as it is punished with imprisonment up to four years.

The commission of this crime, in fact, "is potentially capable of compromising the fate of an entire criminal proceeding" and not, like real aiding and abetting, only the "possibility of securing the price, product, or profit of a crime."

Despite the crime of real aiding and abetting being punished with a "higher statutory maximum" than that of personal aiding and abetting, it is therefore evident that the latter is "more capable of destabilizing the administration of justice," with the result that—also considering that the minimum statutory penalty is the same in both cases—the admissibility of probation only for the second of the two criminal offenses in comparison is unjustifiable.

6.– The issues are also deemed not manifestly unfounded with reference to Article 27, third paragraph, of the Constitution, as "the impossibility of resorting to the suspension of criminal proceedings with probation" is "not rationally explainable and, therefore, capable of leading to the imposition of sentences perceived as unjust."

7.– The President of the Council of Ministers intervened in the proceedings, represented and defended by the State Attorney General's Office, which requested that the issues be declared manifestly unfounded.

In the opinion of the State defense, the legislator has not unreasonably provided for a sanctions treatment, considered overall, more favorable for the crime under Article 379 of the Penal Code than that provided for the crimes under Articles 372 and 377-bis of the Penal Code. The contested provision, therefore, does not violate Article 3 of the Constitution, because "the severity of the sanctioning response" does not appear "manifestly disproportionate to the objective and subjective gravity of the crime."

The issue raised with reference to Article 27 of the Constitution is also deemed manifestly unfounded, "as the same considerations [...] regarding the not unreasonable use of its discretion by the legislator apply to the preclusive choice concerning access to the institute."

It falls within this discretion, in fact, "the definition of the scope of possibilities for the accused's rehabilitation (which remain intact, in this case, except for probation), both in the cognitive phase and in the execution phase."

Considerations in Law

1.– The Judge of the Preliminary Hearing of the Court of Taranto, with the order mentioned in the heading (reg. ord. no. 156 of 2024), doubts, with reference to Articles 3 and 27, third paragraph, of the Constitution, the constitutional legitimacy of Article 168-bis, first paragraph, of the Penal Code, insofar as it "does not provide that the accused, even upon proposal by the Public Prosecutor, may request the suspension of proceedings with probation in relation to the crime of real aiding and abetting under Article 379 of the Penal Code."

1.1.– The referring judge holds that the contested provision violates, firstly, Article 3 of the Constitution in terms of unreasonable disparity of treatment compared to the crimes of perjury (Article 372 of the Penal Code) and inducing someone not to make or to make false statements to the judicial authority (Article 377-bis of the Penal Code), which are taken as tertia comparationis.

1.2.– The judge a quo then identifies a disparity of treatment violating Article 3 of the Constitution also in relation to the crime of personal aiding and abetting (Article 378 of the Penal Code), for which probation is possible, as it is punished with imprisonment up to four years.

Despite real aiding and abetting being punished with a "higher statutory maximum" than personal aiding and abetting, it is, in fact, evident that the latter is "more capable of destabilizing the administration of justice," with the consequent non-justifiability—also considering the identity of the minimum statutory penalty—of admissibility to probation only for the second of the two criminal offenses in comparison.

1.3.– Finally, the issues are deemed not manifestly unfounded with reference to Article 27, third paragraph, of the Constitution, as "the impossibility of resorting to the suspension of criminal proceedings with probation" is "not rationally explainable and, therefore, capable of leading to the imposition of sentences perceived as unjust."

2.– The issue raised with reference to Article 3 of the Constitution, concerning disparity of treatment compared to the crime of personal aiding and abetting, is inadmissible due to insufficient reasoning regarding the non-manifest unfoundedness of the doubt on constitutional legitimacy.

The referral judge's challenge concerns the reasonableness and proportionality of the statutory penalty ranges, respectively provided by Articles 378 and 379 of the Penal Code for the two forms of aiding and abetting (personal and real), which result in the abstract admissibility of probation for one and not the other.

However, the reasoning in the order of referral regarding the alleged greater gravity of personal aiding and abetting compared to real aiding and abetting—and thus the manifest unreasonableness of the legislative choice to sanction the latter more severely than the former—is generic and does not argue around the similarities between the two criminal offenses, merely deducing the supposed disparity of treatment from the alleged greater capacity of personal aiding and abetting "to destabilize the administration of justice."

3.– With regard to the other issues, it is useful to recall that this Court has already declared Article 168-bis, first paragraph, of the Penal Code constitutionally illegitimate, insofar as it did not allow the suspension of proceedings with probation for the crime provided for by Article 73, paragraph 5, of Presidential Decree no. 309 of October 9, 1990, containing the "Consolidated Text of Laws on the Discipline of Narcotics and Psychotropic Substances, Prevention, Treatment, and Rehabilitation of Related Drug Addiction States" (so-called "minor drug dealing" or "low-level drug dealing"), finding "an unreasonable disparity of treatment compared to the crime of inciting illicit use of narcotic substances, punished with a higher penalty, for which, however, probation is abstractly admissible" (Judgment no. 90 of 2025).

While emphasizing the "diversity at the level of conduct typification," this Court found "a similarity in disvalue between the two compared offenses," attested by "the identity of the legal interests and the anticipation of the [related] criminal protection" (Judgment no. 90 of 2025). It noted, in particular, that the offenses compared "relate to the same subject matter and are substantially homogeneous in terms of legal objectivity, as well as structured as crimes of abstract or presumed danger."

Thus, an "anomaly" was created, which reversed "the scale of gravity between the two criminal offenses in comparison, both relating to the subject of narcotics and intended to protect the same legal interests, whose mere exposure to danger is criminalized. The less serious offense is subject to a stricter treatment, on the considered aspect, i.e., admissibility to probation, resulting in a violation of the principles of equality and reasonableness under Article 3 of the Constitution" (Judgment no. 90 of 2025).

This Court, however, considered "the subversion of the scale of disvalue marked by the statutory penalties [...] unjustified [and therefore violative of Article 3 of the Constitution] in light of [...] the function of the attenuated offense of low-level drug dealing," whose ratio—consisting in "mitigating the repressive system for narcotics offenses, where conduct results in a attenuated offense to the protected interest and is an 'expression of minor criminality,' typical of 'marginal segments' of society" (Judgment no. 223 of 2022)—is particularly responsive to the rehabilitative aims, on the one hand, and the deflative aims, on the other, of probation (Judgment no. 90 of 2025).

With reference to the former, it was held that the institute "lends itself to achieving the goal [...] of the rehabilitation of the subject" with particular evidence regarding the crime of low-level drug dealing, which "translates into an act, still relating to the production, trafficking, and illicit possession of narcotic substances, but of limited harmfulness and, above all, indicative of reduced dangerousness" (Judgment no. 43 of 2024) (Judgment no. 90 of 2025).

With reference to the concurrent deflative purpose of the institute, it was further highlighted that minor drug dealing is "a crime of lesser gravity and easy ascertainment," which "is well suited to an alternative definition of the proceedings, with evident deflative effects (Judgments no. 146 of 2022, no. 14 of 2020, no. 91 of 2018, and no. 240 of 2015)" (Judgment no. 90 of 2025).

4.– Having established the foregoing, the other issue raised with reference to Article 3 of the Constitution is unfounded.

In the opinion of the referring judge, Article 168-bis, first paragraph, of the Penal Code—insofar as it does not allow the suspension of proceedings with probation for the crime of real aiding and abetting (Article 379 of the Penal Code)—violates Article 3 of the Constitution, creating an unreasonable disparity of treatment compared to the crimes of perjury (Article 372 of the Penal Code) and inducing someone not to make or to make false statements to the judicial authority (Article 377-bis of the Penal Code), punished with a higher penalty, for which, however, probation is abstractly admissible.

It is true that the offenses for which probation is possible because they are listed in Article 550, paragraph 2, of the Code of Criminal Procedure—to which Article 168-bis of the Penal Code refers, as mentioned—exhibit significant heterogeneity, so much so that it is problematic to identify a single and coherent guiding ratio for them; however, according to the constant jurisprudence of this Court, the comparison between normative provisions, aimed at verifying the non-manifest unreasonableness of legislative choices, must nevertheless concern homogeneous cases, as otherwise the comparison itself would be unfeasible (Judgments no. 90 of 2025, no. 120 of 2023, no. 156 of 2020, no. 282 of 2010, and no. 161 of 2009).

Moreover, this Court has repeatedly recognized the legislator's "broad discretion in defining the objective limits"—for example, relating to penalty limits or "specific types of crimes (identified by name or, as in this case, through reference to a category defined by another provision)"—within which non-custodial punitive criminal law institutes may find application, provided that the normative choice does not appear manifestly unreasonable, creating unsustainable disparities of treatment (as, most recently, Judgment no. 139 of 2025); disparities which, as will be discussed, must be excluded in the present case.

4.1.– The criminal offenses compared—real aiding and abetting, perjury, and inducing someone not to make or to make false statements to the judicial authority—present substantial differences in the typification of the criminal offense.

In particular, Article 372 of the Penal Code punishes three alternative conduct types, two of which are commissive—stating falsehood and denying the truth—and one omissive—remaining silent, totally or partially, about what is known (so-called reticence). This conduct must be carried out by the person who assumes the status of a witness, thus constituting a specific crime, and the recipient can only be the judge, ordinary or special, civil or criminal, single-judge or collegiate, as well as the International Criminal Court.

The offense constitutes a crime of concrete danger, as it is sufficient, for its consummation, that the falsehood or reticence be capable of misleading the judge and altering his conviction, even if it has not effectively impacted the content of the decision.

Under Article 377-bis of the Penal Code, instead, the typical conduct consists in inducing the person called upon to make statements before the judicial authority (including the public prosecutor, in addition to the judge, but not the judicial police) to exercise the right not to answer and not to make statements or to make false statements. This conduct must be carried out through modalities strictly indicated by the legislator, consisting of threats or violence or the offer or promise of money or other benefit, and must effectively induce the recipient to procedural reticence or falsehood. This is, in fact, a crime of event, because, for its consummation, it is necessary that the conduct of not making statements or making false statements occurs, although, even in this case, as a crime of danger, it is not necessary that this has contaminated or diverted the correct course of the criminal proceedings.

While the acting subject can be anyone, the recipient of the inducing conduct must be the person called to make statements before the judicial authority who has the procedural right not to answer, such as, for example, the suspect or the accused (Article 64 of the Code of Criminal Procedure), as well as the suspect or accused in connected proceedings pursuant to Article 12 of the Code of Criminal Procedure, or for a crime linked pursuant to Article 371, paragraph 2, letter b), of the Code of Criminal Procedure (Article 210 of the Code of Criminal Procedure).

The criminal provision, moreover, punishes only the person who carries out the inducing conduct, not the induced person, even when the inducement was carried out by offering or promising money.

The statements that the recipient of the inducing conduct may refrain from making are, finally, only those that flow into the criminal proceedings and not into any proceedings, including civil or administrative ones, like the false statements of a witness.

In real aiding and abetting—which presupposes the prior commission of a crime and that the active subject did not participate in it—the typical conduct consists, instead, in helping someone to secure the product, profit, or price of a crime.

For the integration of the crime, any action or omission objectively suitable for the purpose—that is, to make the advantage gained by the perpetrator from the crime definitive, or at least certain—is sufficient, even if this result is not achieved; this is, in fact, a crime of danger, as, for its consummation, it is not necessary that the asset or advantage has definitively entered the assets of the "aided person," as well as a free-form crime.

In real aiding and abetting, moreover, the assistance must be provided exclusively in the interest of the perpetrator of the underlying crime, otherwise, other criminal offenses may be configured, with respect to which it has a subsidiary nature.

In conclusion, the conduct constituting the crimes in comparison is profoundly different, united only by their connection to the performance of judicial functions.

4.2.– Faced with this "diversity at the level of conduct typification," this Court must verify whether that "similarity in disvalue" is discernible between the compared provisions, attested by the identity of the subject matter, the sameness of the legal interests, and the anticipation of the criminal protection thereof (and, therefore, by the structure of the provisions in question as crimes of danger), in line with the precedent represented by the aforementioned Judgment no. 90 of 2025.

The crimes of real aiding and abetting, perjury, and inducing someone not to make or to make false statements to the judicial authority are commonly placed within the category of crimes against the administration of justice and, specifically, among those against judicial activity (Chapter I, Title III, Book II of the Penal Code), generally intended to preserve the regular and effective functioning of judicial activity in all its phases, preparatory, concurrent, and subsequent to the trial.

The criminal offenses compared are all structured, as stated above, as crimes of concrete danger, as their perfection does not require an actual injury to the judicial function, but its exposure to danger, to be verified, precisely, in concrete terms, based on the characteristics and circumstances of the specific case.

Although there is an identity of subject matter and anticipation of the threshold of criminal protection, these are, however, substantially heterogeneous provisions in terms of legal objectivity.

The criminal provisions compared, in fact, share only the generic legal interest—the administration of justice—which, however, groups together a heterogeneous series of criminal offenses, which, "while presenting common features that justify their placement in the category of crimes against judicial activity, are not entirely homogeneous" (Judgment no. 47 of 2010).

In particular, the criminal provision on perjury protects, within the more general interest in the regular conduct of judicial activity, the specific interest in the correctness of judicial decisions, which can be disturbed by the lack of truthfulness and completeness of testimonial evidence, also "in consideration of the primary role [it plays] in the procedural system" (Judgment no. 47 of 2010). The crime, therefore, "safeguards the genuineness of evidence" as a guarantee for the normal conduct of the trial and the correct judicial ascertainment to which it tends (Judgment no. 47 of 2010).

The crime of inducing someone not to make or to make false statements to the judicial authority is also placed, within the broader category of crimes against judicial activity, among those aimed at protecting the correctness of the judicial ascertainment of facts, which in that case constitute a crime, acting as a guarantee of the genuineness of the statements that flow into the (only) criminal proceedings for evidentiary purposes.

The specific legal interest protected by the criminal provision thus concerns, even in this case, the formation of evidence, which, in criminal proceedings, takes place during the hearing and the adversarial process between the parties. This interest, as clarified by this Court, has a primary role "in relation to the current model of a largely adversarial criminal process" (Judgment no. 47 of 2010).

Moreover, where the inducement is carried out through violence or threat, the offense to the aforementioned legal interest is added to the infringement of the personal liberty of the recipient of the undue pressure, resulting in the configuration of the offense as a multi-offense crime.

In real aiding and abetting, instead, the object of protection is the interest, not only in not providing direct collaboration to the perpetrators to make the advantages acquired through the crime definitive, but also, and above all, in ensuring the fruitfulness and concrete enforceability of confiscation, as demonstrated by the fact that the material object of the typical conduct is identified in the product, profit, or price of the crime, i.e., in the assets that may be subject to the security measure under Article 240 of the Penal Code.

Real aiding and abetting, therefore, falls outside the criminal offenses aimed at protecting the correctness of judicial ascertainment and decisions, into which, instead, both perjury and inducing someone not to make or to make false statements to the judicial authority fall.

Real aiding and abetting, on the one hand, and perjury and inducing someone not to make or to make false statements to the judicial authority, on the other—while presenting common features and points of contact, which justify their placement in the same category of crimes against the administration of justice—do not, therefore, have a homogeneous character in relation to the protected interest, declined in the peculiar specificity of each criminal offense.

4.3.– The established substantial heterogeneity of the criminal provisions compared, both with regard to their structure and the legal interests protected, "determines the unsuitability of the tertia comparationis to serve as a reference point for verifying the alleged violation of the principle of equality" (Judgment no. 207 of 2017).

4.4.– Finally, it cannot be overlooked that real aiding and abetting, unlike what was found for low-level drug dealing, does not result in "an attenuated offense to the protected interest" and is not an "'expression of minor criminality,' typical of 'marginal segments' of society" (Judgment no. 223 of 2022), thus not being considered, in itself, "particularly responsive to the rehabilitative aims" of probation. Nor can the general "deflationary aims for crimes of limited gravity," which, according to constitutional jurisprudence, the institute pursues (ex multis, Judgment no. 139 of 2020), be deemed frustrated, as it cannot certainly be held that real aiding and abetting constitutes, like minor drug dealing, "a crime of lesser gravity and easy ascertainment" (Judgment no. 90 of 2025).

The challenge regarding the violation of Article 3 of the Constitution is, therefore, unfounded.

5.– The issue raised with reference to Article 27, third paragraph, of the Constitution is also unfounded.

In the opinion of the referring judge, "the impossibility of resorting to the suspension of criminal proceedings with probation" would be "not rationally explainable and, therefore, capable of leading to the imposition of sentences perceived as unjust."

In this regard, this Court reiterates that the exclusion of the crime of real aiding and abetting from the scope of application of probation does not frustrate the special preventive aim of the institute. With respect to this crime, which cannot be considered "of limited harmfulness and [...] indicative of reduced dangerousness," probation does not lend itself "to achieving the goal—constitutionally required by Article 27, third paragraph, of the Constitution—of the rehabilitation of the subject" (Judgment no. 90 of 2025) more effectively than other institutes "equally inspired by avoiding the imposition of a sentence that may be perceived as disproportionate and therefore unlikely to favor the rehabilitation of the convicted person" (Judgment no. 146 of 2023).

6.– For the reasons set forth above, the question of constitutional legitimacy of Article 168-bis, first paragraph, of the Penal Code, raised with reference to Article 3 of the Constitution, concerning unreasonable disparity of treatment compared to the crime of personal aiding and abetting (Article 378 of the Penal Code), is to be declared inadmissible; the questions of constitutional legitimacy of the same Article 168-bis, raised with reference to Article 3 of the Constitution, concerning unreasonable disparity of treatment compared to the crimes of perjury (Article 372 of the Penal Code) and inducing someone not to make or to make false statements to the judicial authority (Article 377-bis of the Penal Code), and to Article 27, third paragraph, of the Constitution, are to be declared unfounded.

for these reasons

THE CONSTITUTIONAL COURT

1) declares inadmissible the question of constitutional legitimacy of Article 168-bis, first paragraph, of the Penal Code, raised, with reference to Article 3 of the Constitution, concerning unreasonable disparity of treatment compared to the crime of personal aiding and abetting (Article 378 of the Penal Code), by the Judge of the Preliminary Hearing of the Ordinary Court of Taranto with the order mentioned in the heading;

2) declares unfounded the questions of constitutional legitimacy of Article 168-bis, first paragraph, of the Penal Code, raised, with reference to Article 3 of the Constitution, concerning unreasonable disparity of treatment compared to the crimes of perjury (Article 372 of the Penal Code) and inducing someone not to make or to make false statements to the judicial authority (Article 377-bis of the Penal Code), and to Article 27, third paragraph, of the Constitution, by the Judge of the Preliminary Hearing of the Ordinary Court of Taranto with the order mentioned in the heading.

Decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on October 6, 2025.

Signed:

Giovanni AMOROSO, President

Francesco Saverio MARINI, Rapporteur

Roberto MILANA, Director of the Registry

Filed with the Registry on October 30, 2025

The anonymized version conforms, in text, to the original