JUDGMENT NO. 172

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 delivered the following

JUDGMENT

in the judgment regarding the constitutional legitimacy of articles 131-bis, third paragraph, and 339, of the Penal Code, referred by the Ordinary Court of Florence, First Penal Section, in a single-judge composition, in the criminal proceedings against A. M., with order of May 24, 2024, registered under no. 133 of the register of ordinary orders 2024 and published in the Official Gazette of the Republic no. 28, first special series, of the year 2024.

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

Heard in the council chamber on October 20, 2025, the Reporting Judge Stefano Petitti;

Deliberated in the council chamber on October 20, 2025.

Facts in brief

1.– By order of May 24, 2024, registered under no. 133 of the register of ordinary orders 2024, the Ordinary Court of Florence, First Penal Section, in a single-judge composition, raised, with reference to Article 3 of the Constitution, a question of constitutional legitimacy of Article 131-bis, third paragraph, of the Penal Code, insofar as it establishes that the offense cannot be deemed of particular insignificance when proceedings are brought for the crimes provided for by Articles 336 and 337 of the same Code if the act is committed against an officer or agent of public security or an officer or agent of judicial police in the exercise of their functions.

By the same order, in a subsidiary manner, the referring judge raised, with reference to Articles 3, 17, and 21 of the Constitution, a question of constitutional legitimacy of Article 339 of the Penal Code, insofar as it does not exclude, for the crimes referred to in Articles 336, 337, and 338 of the same Code, the aggravating circumstance of commission during demonstrations in a public place or a place open to the public "where the demonstrations are of a political nature".

The referring court states that it is called upon to adjudicate on the charge of aggravated resistance to a public official, ascribed to A. M., pursuant to Articles 337 and 339 of the Penal Code, consisting of having repeatedly touched the chest of a State Police agent with a finger, finally striking him with a slap to the face, in order to oppose an act of his office, namely preventing her access to a political demonstration, held in October 2019, the host structure of which had already reached its maximum capacity.

1.1.– Having reclassified the act as violence against a public official, pursuant to Article 336, first paragraph, of the Penal Code, the referring judge assumes the existence of elements suitable for the application of the justification of particular insignificance.

It avers, in fact, that A. M., who has no prior convictions, is a "woman of small stature," already suffering from "oncological pathology," and thus acted with evidently modest force, "not to disrupt the regular conduct of the demonstration in progress, but in order to participate in it."

In the opinion of the referring judge, by absolutely excluding the application of the ground for non-punishment when proceedings are brought for the crimes provided for by Articles 336 and 337 of the Penal Code committed against an officer or agent of public security or an officer or agent of judicial police in the exercise of their functions, Article 131-bis, third paragraph, of the Penal Code violates the principle of reasonableness established by Article 3 of the Constitution, under the aspect of comparison with other types of crimes.

Referring to the assessment of the non-homogeneity of the *tertia comparationis* expressed by this Court in Judgment no. 30 of 2021 – which rejected a similar challenge – the referring judge declares to "submit the question again to the Court, indicating different *tertia*."

It then points out, as factual circumstances of equal or greater gravity than that subject to the main proceedings, and yet admitted to the justification under Article 131-bis of the Penal Code: violence or threat against a political, administrative, or judicial body, provided for by Article 338, first paragraph, of the Penal Code; resistance to the armed force, provided for by Article 143 of the Military Penal Code of Peace; violence or threat against a school principal or a member of the school staff, or against healthcare professionals and auxiliary activities, provided for by Articles 336, second paragraph, 337, 61, first paragraph, numbers 11-octies) and 11-novies), of the Penal Code.

1.2.– Regarding the subsidiary question, the Court of Florence recalls that the aggravating circumstance of committing the crime "during demonstrations in a public place or a place open to the public" was added to the first paragraph of Article 339 of the Penal Code by Article 7, paragraph 1, letter a), of Decree-Law no. 53 of June 14, 2019 (Urgent provisions regarding public order and security), converted, with amendments, into Law no. 77 of August 8, 2019.

For the referring judge, this increase in penalty, "linked to the commission of the crime during the demonstration, results in a punishment of the demonstration itself – in violation of Articles 17 and 21 of the Constitution, according to which freedom of assembly and freedom of expression of thought constitute fundamental rights – to the extent that the realization of the crime during the demonstration does not in itself entail a greater offense to the protected legal interest"; with specific reference to the crimes under Articles 336 and 337 of the Penal Code, "the normal functioning of the public administration does not appear to be more harmed by the fact that the conduct criminalized under the aforementioned articles is carried out during public demonstrations."

By not excluding "political demonstrations" from the scope of application of the aggravating circumstance, the challenged provision would therefore violate the invoked parameters – Articles 3, 17, and 21 of the Constitution – for reasons analogous to those highlighted by Judgment no. 119 of 1970, with which this Court declared the constitutionally illegitimate aggravating circumstance for the crime of damage committed by striking workers or employers in lock-out.

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

2.1.– The main question would be inadmissible because the referring judge failed to illustrate "the specific reasons based on which the legislator is prevented from selecting the hypotheses for the application of the justification of particular insignificance in relation to the crime type."

The subsidiary question would lack relevance, since the act subject to the main proceedings did not occur – as the challenged provision requires – "during" a public demonstration, but "outside the congress center (place open to the public) where the political demonstration was taking place."

2.2.– On the merits, the main question would be unfounded, as the arguments set out in the cited Judgment no. 30 of 2021 are not superseded by the indication of further *tertia* by the referring judge, all of which are "lacking the homogeneity necessary to frame the comparative judgment."

The subsidiary question would likewise be unfounded, as the challenged provision provides for an aggravating circumstance for crimes of violence and threat, on the indisputable assumption that the right to demonstrate must always be exercised peacefully.

Considerations in Law

1.– With the order indicated in the preamble (reg. ord. no. 133 of 2024), the Court of Florence raised a question of constitutional legitimacy of Article 131-bis, third paragraph, of the Penal Code, insofar as it establishes that the offense cannot be deemed of particular insignificance when proceedings are brought for the crimes provided for by Articles 336 and 337 of the same Code if the act is committed against an officer or agent of public security or an officer or agent of judicial police in the exercise of their functions.

In the opinion of the referring judge, the exclusion of this factual circumstance from the scope of application of the justification of particular insignificance violates Article 3 of the Constitution, given that there are other types of crimes which, despite being of equal or greater gravity, fall within that scope.

The types of crimes compared are violence or threat against a political, administrative, or judicial body (Article 338 of the Penal Code), resistance to the armed force (Article 143 of the Military Penal Code of Peace), and violence or threat against school or healthcare personnel (Articles 336, second paragraph, 337, 61, first paragraph, numbers 11-octies and 11-novies, of the Penal Code).

The referring judge therefore complains of being unable to recognize the ground for non-punishment regarding the charge ascribed to an unconvicted woman, who allegedly committed an occasional act of minor violence against a police officer who was preventing her from accessing the venue of a political demonstration, due to capacity constraints.

2.– The President of the Council of Ministers, having intervened in the proceedings through the State Attorney's Office, raised an objection to the inadmissibility of the question, as it is incumbent upon the legislator to select the hypotheses for the application of the justification of particular insignificance of the act, also in relation to the crime type.

The objection is unfounded, as the referring judge does not dispute that the legislator has broad discretion in defining the prerequisites and limits of application of the justification, but complains that the legislator exercised this discretion in a manifestly unreasonable manner.

3.– On the merits, the question is well-founded.

3.1.– It is useful to first provide a brief explanation of the evolution of the provision under challenge.

3.1.1.– Under the original text of Article 131-bis of the Penal Code, introduced by Article 1, paragraph 2, of Legislative Decree no. 28 of March 16, 2015, concerning "Provisions regarding non-punishability for particular insignificance of the act, pursuant to Article 1, paragraph 1, letter m), of Law no. 67 of April 28, 2014," punishment could be excluded, on the grounds of the particular insignificance of the act, for crimes with a maximum custodial sentence not exceeding five years.

The so-called nominative exceptions, based on the type of crime, were not provided for; instead, it was established that the offense could not be deemed of particular insignificance if the perpetrator acted for base or futile motives, or with cruelty, including against animals, or if they used torture or took advantage of the victim's diminished capacity for defense, including in reference to the victim's age, or if the conduct caused, or resulted in, as unintended consequences, the death or very serious injury of a person.

The nominative exception for crimes under Articles 336 and 337 of the Penal Code – namely, for violence or threat against a public official and for resistance to a public official – was introduced by Article 16, paragraph 1, letter b), of Decree-Law no. 53 of 2019, as converted, with reference to the hypothesis where such crimes are committed against any public official in the exercise of their functions.

The generic reference to the public official was replaced by the specific reference to the officer or agent of public security or judicial police by Article 7, paragraph 1, of Decree-Law no. 130 of October 21, 2020 (Urgent provisions regarding immigration, international and complementary protection, amendments to Articles 131-bis, 391-bis, 391-ter and 588 of the Penal Code, as well as measures regarding the prohibition of access to public establishments and places of public entertainment, for combating the distorted use of the web, and on the regulation of the National Guarantor for the Rights of Persons Deprived of Personal Liberty), converted, with amendments, into Law no. 173 of December 18, 2020.

3.1.2.– With Judgment no. 30 of 2021, this Court declared unfounded the questions of constitutional legitimacy for violation of the principles of reasonableness, proportionality, and the rehabilitative purpose of punishment, raised regarding the exclusion of the ground for non-punishment for the crime of resistance to a public official.

In that judgment, it was observed that "[t]he legislative choice to exclude the crime of resistance to a public official from the scope of application of the insignificance justification is not manifestly unreasonable, as it corresponds, rather, to the discretionary identification of a complex legal interest, deemed worthy of special protection," as it includes both the regular functioning of the public administration and the safety and freedom of determination of the natural persons exercising public functions."

It was also emphasized that "[t]he *tertia* adduced by the referring judges from the perspective of Article 3 of the Constitution" – namely, abuse of office, refusal of official acts, and interruption of public service – "prove to be lacking the homogeneity necessary to frame the comparative judgment," as these are criminal factual circumstances that, "although they also affect the regular functioning of the public administration, do not directly involve the safety and freedom of the natural person exercising the public function, understood as the passive subject of the crime."

A similar question, examined by this Court after the pronouncement of Judgment no. 30 of 2021, was declared manifestly unfounded, by order no. 82 of 2022, noting that the further *tertia*, indicated in the types of crimes under Articles 342 and 353 of the Penal Code, are "manifestly heterogeneous with respect to the criminal factual circumstance of resistance to a public official, since, on the one hand, outrage against a political, administrative, or judicial body does not have violence or threat as its constituent elements, and on the other hand, bid-rigging has a peculiar legal object, confined to the contractual determinations of the public administration."

3.1.3.– A profound shift in the regulation of the ground for non-punishment under Article 131-bis of the Penal Code was brought about by Article 1, paragraph 1, letter c), of Legislative Decree no. 150 of October 10, 2022 (Implementation of Law no. 134 of September 27, 2021, delegating the Government to improve criminal proceedings, as well as on matters of restorative justice and provisions for the speedy conclusion of judicial proceedings).

In fact, this reform changed the paradigm in defining the operational scope of the justification, as it shifted its limit from the maximum statutory penalty (not exceeding five years of imprisonment) to the minimum (not exceeding two years).

This resulted in the inclusion within the scope of application of the ground for non-punishment of many types of crimes, with a minimum statutory penalty not exceeding two years, which were previously excluded from it due to the maximum statutory penalty exceeding five years.

This extension was balanced by the introduction of new nominative exceptions, detailed in the amended third paragraph of Article 131-bis of the Penal Code, the number 2) of which still reaffirms the previous exception for the crimes provided for by Articles 336 and 337 of the same Code, when the act is committed against an officer or agent of public security or an officer or agent of judicial police in the exercise of their functions.

3.1.4.– As a result of the 2022 reform, the crime of violence or threat against a political, administrative, or judicial body entered the scope of application of the justification of particular insignificance, since it is punished by Article 338 of the Penal Code with imprisonment from one to seven years.

Previously, this type of crime, having a maximum statutory penalty exceeding five years of imprisonment, did not have access to the justification under Article 131-bis of the Penal Code, which it achieved with the amendment, due to the minimum statutory penalty not exceeding two years and the omission of mention among the nominative exceptions.

3.2.– The comparison between the factual circumstances under Articles 336 and 337 of the Penal Code, on the one hand, and that under Article 338 of the Penal Code, on the other, highlights a profile of manifest unreasonableness, regarding the applicability of the ground for non-punishment, precisely identified by the referring judge.

3.2.1.– The crimes referred to in Articles 336, first paragraph, and 337, first paragraph, of the Penal Code, punished with imprisonment from six months to five years, have as constituent elements the use of violence or threat against the public official and the aim of altering administrative action.

The same elements are characteristic of the criminal offense under Article 338 of the Penal Code, with the specificity that the violence or threat is directed against an authority constituted in a body, which justifies a stricter penalty bracket, both in the minimum (one year of imprisonment) and in the maximum (seven years).

As a result of Article 1, paragraph 1, of Law no. 105 of July 3, 2017 (Amendments to the Penal Code, the Code of Criminal Procedure, and the consolidated law under Presidential Decree no. 570 of May 16, 1960, for the protection of political, administrative, or judicial bodies and their individual members), this penalty treatment also applies to the hypothesis where the conduct under Article 338 of the Penal Code is committed against individual members of the political, administrative, or judicial body, but always insofar as the individual is a projection of the collective body, thus still in a context of greater gravity compared to the individual factual circumstance under Articles 336 and 337 of the Penal Code.

Case law of the Supreme Court of Cassation, in fact, links the greater severity of the penalty under Article 338 of the Penal Code to the direction of the violence or threat against the unity of the collective public body (Court of Cassation, United Criminal Sections, judgment of February 22 - September 24, 2018, no. 40981; then, similarly, Sixth Criminal Section, judgment of April 27 - November 10, 2023, no. 45506).

3.2.2.– It is manifestly unreasonable that the ground for non-punishment of particular insignificance of the act is admitted for the more serious crime, to the detriment of the collective public agent, and conversely excluded for the less serious crime, to the detriment of the individual public agent.

The legislator itself, through the aforementioned diversification of statutory limits, has defined the relationship between the considered factual circumstances in comparative terms, and therefore cannot, without falling into manifest incongruity, disregard it for the purposes of the particular insignificance of the act.

This finding does not change even if the supervening Article 19, paragraph 1, letters a) and b), of Decree-Law no. 48 of April 11, 2025 (Urgent provisions regarding public security, protection of personnel in service, as well as victims of usury and penitentiary law), converted into Law no. 80 of June 9, 2025, is considered. This introduced into Articles 336 and 337 of the Penal Code a final paragraph wherein an increase in the penalty "up to half" is provided if the act of violence or threat is committed against – or to oppose – an officer or agent of judicial police or public security.

As this is an aggravating circumstance with a special effect, it is relevant for the determination of the minimum statutory penalty for the justification of particular insignificance (Article 131-bis, fifth paragraph, of the Penal Code), and yet it is not capable of raising the minimum of six months, established for the crimes under Articles 336 and 337 of the Penal Code, beyond the one year, established for the crime under Article 338 of the same Code.

The manifest unreasonableness of the non-operability of the justification for the less serious crime, in contrast to its applicability to the more serious crime, therefore persists.

The new aggravating circumstance under the final paragraph of Articles 336 and 337 of the Penal Code (the inapplicability to the case at hand due to the *favor rei* principle remaining firm) may abstractly influence the comparison with some further *tertia* adduced by the Court of Florence: on the one hand, resistance to the military armed force, which in its simple form still has a minimum statutory penalty of six months and has not been affected by the introduction of an aggravating circumstance with a special effect; on the other hand, crimes committed with violence or threat against healthcare and school personnel, since that under numbers 11-octies) and 11-novies) of Article 61, first paragraph, of the Penal Code, is an aggravating circumstance with a common effect, not computable for the purpose of the applicability of the provision under Article 131-bis of the Penal Code.

Conversely, the discrepancy emerging from the comparison, based on the minimum statutory penalties, remains intact with respect to violence or threat against a political, administrative, or judicial body, as defined in Article 338 of the Penal Code, and the consequent unconstitutionality of the exclusion of the crimes under Articles 336 and 337 of the Penal Code, if committed against officers or agents of public security or judicial police, from the scope of operation of the ground for non-punishment under Article 131-bis of the Penal Code.

The finding of this ground for unconstitutionality dispenses from considering the further aspect raised by the referring judge, concerning the comparison with the factual circumstance characterized by the aggravating circumstance with a special effect – introduced by Article 5, paragraph 1, letter a), of Law no. 25 of March 4, 2024 (Amendments to Articles 61, 336 and 341-bis of the Penal Code and other provisions for the protection of school personnel security) – of violence or threat committed by the parent or guardian of the pupil against school personnel, under the second paragraph of Article 336 of the Penal Code, which is exempt under Article 131-bis of the Penal Code as it is not contemplated by a nominative exception.

4.– The State defense's argument for the inadmissibility of the present question by invoking the *ratio decidendi* expressed by this Court in Judgment no. 30 of 2021 is not on target.

The plurioffensive nature recognized in that judgment for the crimes provided for by Articles 336 and 337 of the Penal Code also belongs to the crime described in Article 338 of the same Code, and with greater intensity, considering that the latter crime can collectively harm multiple persons, and impinge upon constitutional functions, such as the legislative function (second paragraph of the same Article 338, inserted by Article 1, paragraph 1, letter b, of Law no. 105 of 2017).

Therefore, while reiterating the substance of the previous decision, this Court can only note the irrationality that has arisen after it, due to the changed regulatory framework and the comparisons that it necessitates.

Although it cannot be ruled out that it reflects a mere lack of coordination, the identified normative dissonance is nevertheless to the detriment of the accused, also in terms of the rehabilitative function of punishment, the latter requiring a rational structure of the entire sanctioning discipline, including the grounds for justification.

5.– Therefore, the constitutional illegitimacy of Article 131-bis, third paragraph, of the Penal Code must be declared, insofar as it refers to Articles 336 and 337 of the same Code.

The question, raised by the Court of Florence in a subsidiary manner, concerning the aggravating circumstance of committing the violence or threat during a demonstration in a public place or a place open to the public, pursuant to Article 339, first paragraph, of the Penal Code, remains absorbed.

for these reasons

THE CONSTITUTIONAL COURT

declares the constitutional illegitimacy of Article 131-bis, third paragraph, of the Penal Code, insofar as it refers to Articles 336 and 337 of the same Code.

Decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on October 20, 2025.

Signed:

Giovanni AMOROSO, President

Stefano PETITTI, Reporting Judge

Roberto MILANA, Clerk Director

Filed in the Registry on November 27, 2025

 

The anonymized version is textually consistent with the original